exv10w30





Exhibit 10.30



SUBLEASE




     SUBLEASE (“Sublease”) dated __________ ___, 2010, between METROPOLITAN LIFE INSURANCE COMPANY
(“Landlord”), a New York corporation having a place of business at 27-01 Queens Plaza North, Long
Island City, New York 11101, and JETBLUE AIRWAYS CORPORATION (“Tenant”), a Delaware corporation
having its principal place of business at 118-29 Queens Boulevard, Forest Hills, New York 11375.



     Landlord and Tenant hereby covenant and agree as follows:



ARTICLE 1

BUSINESS TERMS, PREMISES, TERM, RENTS




     1.01 For the purposes of this Sublease certain terms are defined in this Section 1.01 as
follows and certain terms used in this Sublease with an initial capital letter are defined
hereinafter in those Sections in which the same are mentioned:



          (a) “Building” means the buildings located at 27-01 Bridge Plaza North (also known as 27-01
Queens Plaza North), Long Island City, New York which is also known by the address of 27-11 Queens
Plaza North, Long Island City, New York, Landlord and Tenant hereby acknowledging and agreeing that
the Building is comprised of the so-called “Brewster Building,” which is the original premises
under the Existing Superior Lease, and the so-called “Infill Building,” which is the
27th Street Building under the Existing Superior Lease;



          (b) “Base Floors” means the ground through and including the seventh (7th) floors
of the Building;



          (c) “Tower Floors” means the floors above the seventh (7th) floor of the Building;



          (d) “Land” means the parcel of land on which the Building is located, as more particularly
described in Exhibit A annexed hereto;



          (e) “Real Property” means the Building and the Land;



          (f) “Premises” means a portion of the fifth (5th) floor of the Building (such
portion, the “5th Floor Premises”), the entire sixth (6th) floor of the
Building (the “6th Floor Premises”), and the entire seventh (7th) floor of
the Building (the “7th Floor Premises”), substantially where shown in hatching on the
floor plans annexed hereto as
Exhibits B-1, and B-2 and B-3, subject to the provisions of Articles 42, 44, 47 and



 









 




48 hereof
(the “Office Space”), as well as the Storage Space (as defined in Section 1.01(g) below).




          (g) “Storage Space” means that certain portion of storage space within the Building,
substantially where shown in hatching on the floor plan annexed hereto as Exhibits B-4 and B-5,
which shall be included within the definition of Premises;



          (h) “Effective Date” means the date of this Sublease;



          (i) “Commencement Date” means the earlier of (A) the later of (x) the Substantial Completion
Date (as such term is defined in Section 4.02 hereof) for the 5th Floor Premises, the
6th Floor Premises and the 7th Floor Premises (excluding from the 5th
Floor Premises the Contraction Space (as such term is defined in Section 42.01) in respect of
which Tenant has exercised, and not rescinded, the Contraction Option (as defined in Section 42.01
hereof and the 5th Floor Contraction Space, if Tenant has exercised the 5th
Floor Contraction Option (as defined in Section 42.03), and including in the 5th Floor
Premises the Expansion Space, if any, in respect of which Tenant has exercised the Expansion Option
(as set forth in Section 42.02 hereof)), and (y) July 1, 2011, and (B) the date on which Tenant or
any other Tenant Party occupies any portion of the Premises (other than for (x) inspecting
Landlord’s Work (as such term is defined in Section 4.02 hereof), the taking of measurements or the
preparation of surveys, elevations, sketches and layouts (collectively, “Pre-Commencement
Activities”), and (y) as provided in Sections 1.11 and 1.12 hereof);



          (j) “[***]” means [***];



          (k) “[***]” means the period beginning on the Commencement Date and ending on the day
immediately prior to the [***];



          (l) “Expiration Date” means June 30, 2023 or, if the Renewal Option is not exercised pursuant
to Section 40.01, June 1, 2023;



          (m) “Base Rent” means, subject to adjustment as provided elsewhere in this Sublease:



               (1) For the Office Space:



                    (i) $[***] per year ($[***] per month) (based on $[***] per RSF per annum) for the period (the
“First Rent Period”)
commencing on [***] and ending on the day immediately preceding the fifth (5th)
anniversary of [***];



                    (ii) $[***] per year ($[***] per month) (based on $[***] per RSF per annum) for the period
(the “Second Rent Period”) commencing on the date





 




			
	[***]	 	Represents material which has been redacted and
filed separately with the Commission pursuant to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.




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immediately succeeding the last day of the First
Rent Period and continuing through and including the Expiration Date;




               (2) For the Storage Space:



                    (i) $[***] per year ($[***] per month) (based on $[***] per RSF per annum) for the First Rent
Period;



                    (ii) $[***] per year ($[***] per month) (based on $[***] per RSF per annum) for the Second
Rent Period;



          (n) “[***]” means [***];



          (o) “Permitted Uses” means, with respect to the Office Space, executive, general and
administrative offices, all other office uses permitted by Legal Requirements and not prohibited by
the Existing Superior Lease, and all uses ancillary thereto, including a copy room, conference room
and data room. In addition, the Permitted Use for the Systems Operations Center (“SOC”) portion of
the Office Space (the “SOC Space”) shall be as follows: operates 24 hours/day, 365 days per year
and consists of office space in which the following operations of Tenant are performed: system
operations, flight dispatch, crew services/scheduling, scheduling and controlling aircraft
maintenance, air traffic coordinators and aircraft routing and security. In addition, adjacent
conference rooms function when needed as an incident command center and emergency command center.
In the event of an accident or incident involving an aircraft, these conference rooms are converted
into a central command center. The physical plant includes separate offices, separate conference
rooms, work stations and common work areas. Additionally, the plant will have capacity for
redundancy appropriate for a datacenter that operates 24 hours per day 7 days per week with respect
to infrastructure supporting the SOC. The SOC shall initially be operated by Tenant in
approximately 30,000 RSF of the 7th floor of the Building as shown on Exhibit B-6. The
SOC shall be operated solely by or on behalf of the JetBlue Tenant (as defined in Article 9) or its
Related Entity (as defined in Article 9) primarily in connection with the operations of JetBlue
airline (or such other trade name under which such airline operates from time to time) or the
operations of an entity that is permitted to sublet the Premises or be an assignee of Tenant
pursuant to Section 9.11. The “Permitted Use” for the Storage Space shall be as set forth in
Section 2.08.



          (p) (i) “RSF” shall mean the rentable square feet or rentable area of the Premises and/or
other portions of the Building (as the case may be). As of the date of this Sublease, and based
upon the configuration and layout of the Premises, the RSF of the Office Space is 217,233,
consisting of 31,661 RSF in the 5th Floor Premises (including 6,767 RSF in the
5th Floor Contraction Space (as such term is defined in Section 42.03(c) hereof)),
92,932 RSF in the 6th Floor Premises and 92,640 RSF in the





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




3









 









7th Floor
Premises, the RSF of the Storage Space is 5,795 and the RSF of the Building is 709,248, which
amounts are conclusive and binding upon Landlord and Tenant for the Term. Nothing contained in
this Sublease shall entitle Tenant to dispute such RSF’s unless Landlord seeks to change the RSF of
the Building or the Premises.




               (ii) The determination of RSF for Partial Floors shall be done utilizing the following
definitions and procedures:



                    (A) “Full Floor” shall mean any floor of the Building above the ground floor level with
respect to which Tenant or another tenant or occupant shall have leased all of the space thereon
(or all of such space is vacant or otherwise available for leasing by Landlord, as the case may
be), other than any portion(s) thereof containing Building systems (including any mechanical
system(s) exclusively serving any tenant or occupant of the Building, including Tenant);



                    (B) “Partial Floor” shall mean any floor of the Building above the ground floor level with
respect to which (a) two (2) or more different tenants or occupants (including Tenant) shall have
each separately leased or subleased a portion of the space thereon, or (b) one (1) tenant or
occupant (including Tenant) shall have leased or subleased a portion of the space thereon and the
balance thereof shall be vacant or otherwise available for leasing to a tenant or other occupant,
which floor may also consist of space containing Building systems;



                    (C) The RSF and Useable Area of each floor of the Building is set forth in Exhibit I hereto;



                    (D) For the purposes of determining the RSF of space on a Partial Floor, the RSF of the entire
floor in question, as set forth in said Exhibit I, shall be multiplied by the fraction, the
numerator of which is the “Useable Area” of the space in question (including the pro-rata share of
the common area on the floor in question), and the denominator of which is the Useable Area of the
floor in question, as set forth in said Exhibit I, it being the intention of the parties that the
RSF of all space on a Partial Floor leased or subleased to two (2) or more different tenants or
occupants (including Tenant) and/or which shall be available for leasing by Landlord, shall equal
the RSF of the entire Partial Floor in question, as set forth in said Exhibit I; and



                    (E) “Useable Area” shall be determined in accordance with the Real Estate Board of New York
Recommended Method of Floor Measurement for Office Buildings, effective January 1, 1987 and as
amended through December 2003 (as shown on Exhibit J attached hereto, for “Single Tenant Floors”).



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          (q) “Demising Work” shall mean such work, as shall be required to separate any Partial Floor
space leased by Tenant from the balance of the floor, including the creation or reconfiguration of
common corridor(s), demising wall(s), ceilings and common area restrooms, the performance any other
reasonably necessary adjustments to adapt or install the common areas necessary for a Partial
Floor, adapting the Building HVAC Systems (as defined in Section 17.02 hereof) to provide heating
service and air-conditioning service (as such terms are defined in said Section 17.02) to a Partial
Floor, adapting the lighting, electric and other Building systems and equipment and in complying
with any Requirements relating to such separation. The Demising Work shall be, at minimum, of a
quality that is substantially consistent with the Building Standard for design, color, quality of
materials, workmanship and décor established or adopted by Landlord for a majority of the Partial
Floors of the Building.



          (r) “Tenant’s Proportionate Share” with respect to the Tax Payment, the Expense Payment and
Tenant’s Projected Expense Payment (as herein defined), means [***]%, which has been computed on
the basis of a fraction, the numerator of which is [***], and the denominator of which is [***].
Both the RSF of the Premises and Tenant’s Proportionate Share are subject to readjustment (with
prospective effect), utilizing the same standards, during the Term as necessary due to [***], in
accordance with the terms of this Sublease;



          (s) “Base Taxes” shall mean the Taxes (as defined in Section 5.01) for the Base Tax Year, as
finally determined, except that if the Commencement Date is after January 1, 2012, “Base Taxes”
shall mean [***] ([***]%) percent of the sum of (i) the Taxes for the Base Tax Year, plus (ii) the
Taxes for the 2013/2014 Tax Year, both as finally determined;



          (t) “Base Tax Year” shall mean the 2012/2013 Tax Year (as defined in Section 5.01);



          (u) “Base Expenses” shall mean the Operating Expenses (as defined in Section 5.06) for the
Base Expense Year (as herein defined);



          (v) “Base Expense Year” shall mean the 2012 calendar year; and



          (w) “Existing Superior Lease” means that certain lease dated May 10, 2001 between Brause Plaza
LLC, as owner, and Landlord, as tenant, covering the Real Property, as said lease has been, and
may, subject to the terms of this Sublease, hereafter be, amended, modified and/or assigned,
including a First Amendment of Lease dated August 8, 2002, a Second Amendment of Lease dated June
30, 2003 and a Third Amendment of Lease to be signed by the Existing Lessor, Landlord and Tenant
(the “Third Amendment of the Existing Superior Lease”). In addition to the provisions of Article
7, this Sublease, and all rights of Tenant hereunder,





 




			
	[***]	 	Represents material which has been redacted and
filed separately with the Commission pursuant to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.




5









 









are and shall be subject and subordinate in
all respects to the Existing Superior Lease, and in the event any provision of this Sublease grants
a right that if exercised would be in contravention of the provisions of the Existing Superior
Lease, the provisions of the Existing Superior Lease shall supersede such conflicting provision of
this Sublease.




          (x) “Existing Lessor” means the lessor under the Existing Superior Lease at the time in
question.



     1.02 Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Premises, as
the Premises may hereinafter be expanded by any of the Expansion Space, Supplemental Space,
Additional Space or ROFO Space or contracted pursuant to the terms of this Sublease, for the term
herein stated, for the rents herein reserved and upon and subject to the conditions (including
limitations, restrictions and reservations) and covenants hereinafter provided, including the
license to use the Roof Areas (as defined in Section 41.01 below), the right to use Building
Amenities (as such term is defined in Section 18.11(a) hereof), conduits, risers, elevators, stairs
and other rights and appurtenances accorded to Tenant pursuant to this Sublease, all in accordance
with, and subject to, the applicable provisions of this Sublease.



     1.03 The term for which the Premises are hereby leased (such term being herein sometimes
referred to as the “Term”) shall commence at 12:01 a.m. on the Commencement Date, and shall expire
at 11:59 PM on the Expiration Date (as same may be extended pursuant to Article 40 hereof or by
mutual agreement of Landlord and Tenant), or shall expire on such earlier date upon which said Term
may expire or be cancelled or terminated pursuant to any of the conditions or covenants of this
Sublease or pursuant to any Legal Requirement. Under no circumstances shall the Expiration Date (as
same may be extended pursuant to Article 40 hereof or by mutual agreement of Landlord and Tenant)
extend beyond June 30, 2023, the “Fixed Expiration Date” under the Existing Superior Lease, except
if the Term shall be extended for the Renewal Term as provided below. References in this Sublease
to the “initial Term” are references to the Term without taking into account the Renewal Term or
any other extension or renewal of the term of this Sublease.



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



          (a) The Base Rent, all of which Tenant covenants and agrees to pay in equal monthly
installments, in advance, on [***] and thereafter on the first day of each and every calendar month
during the Term; and



          (b) All such other sums of money as shall become due from and payable by Tenant to Landlord
hereunder, such other sums of money being herein





 




			
	[***]	 	Represents material which has been redacted and
filed separately with the Commission pursuant to a request for confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended.




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referred to as “Additional Rent.” In furtherance
of the preceding sentence, to the extent Landlord is permitted or obligated, under this Sublease or
pursuant to applicable Legal Requirements, to perform an act at Tenant’s cost and/or expense
(including at Tenant’s reasonable and/or sole cost or expense), such cost and/or expense shall be
Additional Rent and payable in accordance with the applicable provisions of this Sublease.
Landlord shall have the same rights and remedies for a default in the payment of Additional Rent as
it has for a default in the payment of Base Rent




          (c) Tenant shall not be required to pay any Tax Payment, Expense Payment or charge for
electricity with respect to the Storage Space. Tenant’s Proportionate Share with respect to the
Tax Payment and the Expense Payment [***] in the calculation thereof.



     1.05 (a) Tenant shall pay the Base Rent and the Additional Rent herein reserved to Landlord,
if by check, at the following address: MetLife Lease Administration, c/o Jones Lang LaSalle
Americas, Inc., 501 Grant Street, Suite 925, Pittsburgh, PA 15259, Attn: Facilities Lease
Administration. At Tenant’s option, the Base Rent may be paid by a check (only if such check is
drawn on a bank that is a member of the New York Clearing House Association or on a bank that is
chartered in the United States, provided such check is drawn from a branch of such bank that is
located in the continental United States that Tenant routinely uses for the payment of its bills),
or by wire transfer or electronic ACH transfer to [***] (which reference shall appear on each such
payments), or such other place, or to such agent and at such place, as Landlord may designate by
notice to Tenant received not less than thirty (30) days prior to the effective date of such
notice, in lawful money of the United States of America. Notwithstanding the foregoing, the Base
Rent payments shall be paid by wire transfer or by ACH transfer if such method of payment shall
hereafter be the predominant method of payment in a majority of the first class multi-tenant office
buildings in New York City. Tenant shall pay the Base Rent and Additional Rent herein reserved as
and when the same shall become due and payable, without demand therefor, except that Landlord shall
send Tenant an
invoice for Additional Rent that is not Recurring Additional Rent (as defined in subsection
(b) below). There shall be no abatement of, deduction from, or claim, counterclaim or setoff
against, the Base Rent or Additional Rent, except as expressly provided in this Sublease. If no
time period is set forth in this Sublease for the payment of an item of Additional Rent, then such
item of Additional Rent shall be payable within thirty (30) days after Tenant is given Notice
demanding payment of same. In addition, and except as may otherwise be expressly provided in this
Sublease, all bills, invoices and statements rendered to Tenant or any Tenant Party with respect to
this Sublease or the Premises shall be conclusive and binding on Tenant and all Tenant Parties
unless, within one hundred eighty (180) days after the giving of same, Tenant notifies Landlord
that Tenant is disputing same, which notice, to be effective, must specify in reasonable detail the
particular respects in which the bill, invoice or statement is claimed by Tenant to be incorrect,
provided, however, that no such notice





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




7









 









given by Tenant shall toll the time period in which such
payment is required to be paid, and, provided further, if the payment in question is determined to
be due to Landlord, then no subsequent notices given by Tenant shall be effective if Tenant fails
to pay the disputed Additional Rent or other amounts in the manner and in the time period set forth
in this Sublease or such bill, invoice or statement.




          (b) All other rent payments payable under this Sublease shall be paid (at the option of
Tenant) by either (i) wired funds of Tenant or electronic ACH transfers or (ii) a check of Tenant
drawn on a bank that is a member of the New York Clearing House Association or (iii) a check drawn
on a bank that is chartered in the United States, from a branch located in the continental United
States that Tenant routinely uses for the payment of its bills; provided, however, such other rent
payments shall be paid by wire transfer or by ACH transfer if such method of payment shall
hereafter be the predominant method of payment in a majority of the first class multi-tenant office
buildings in New York City. For the purposes of this Sublease, “Recurring Additional Rent” means
Additional Rent for which Tenant has been given notice that payments thereof are payable in the
same amount on a regular basis (e.g., monthly) for a period of at least twelve (12) months.



     1.06 If the [***] or the Expiration Date occurs on a day other than the first day of a
calendar month, the Base Rent for such calendar month shall be equitably prorated based on the
actual number of days in such month.



     1.07 Except as otherwise expressly provided in this Sublease with respect to the Rooftop Sign,
but subject to the provisions of the Existing Superior Lease and the rights of the Existing Lessor
thereunder, Tenant acknowledges that it has no rights to any development rights, “air rights” or
comparable rights appurtenant to the Real Property or any part thereof, and consents, without
further consideration, to any utilization of such rights by Landlord and agrees without cost to
Tenant to promptly execute and deliver any commercially reasonable instruments which may be
requested by Landlord,
including instruments merging zoning lots, evidencing such acknowledgment and consent,
provided that the same do not adversely impact Tenant’s occupancy of the Premises or the conduct of
its business therein or Tenant’s other rights under this Sublease. The provisions of this Section
1.07 shall be deemed to be and shall be construed as an express waiver by Tenant of any interest
Tenant may have as a “party in interest” (as such quoted term is defined in Section 12-10 of the
Zoning Resolution of the City of New York) in the Real Property or any part thereof.



     1.08 Each and every covenant contained in this Article shall be deemed separate and
independent, and not dependent on any other term of this Sublease, and the performance of any such
term by Landlord shall not be considered to be for rent or other payment for use of the Premises.





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




8









 










     1.09 Intentionally Deleted.



     1.10 Except for amounts that are required to be deposited with Landlord in connection with the
payment of insurance premiums, real property taxes and assessments, Operating Expenses and other
similar charges or expenses payable under this Sublease, Tenant shall not pay rent or other sums
payable under this Sublease to Landlord for more than one (1) month in advance.



     1.11 Upon at least ninety (90) days prior written notice thereof from Tenant to Landlord (the
“Early Possession Space Notice”), which Early Possession Space Notice, if any, must be given
between October 1, 2010 and March 31, 2011, Landlord shall allow Tenant to take possession of a
portion of the Premises located on the sixth (6th) floor of the Building or a portion of
the Premises located on the seventh (7th) floor of the Building prior to the
Commencement Date, not to exceed 25,000 RSF, in a location designated by Tenant on such sixth
(6th) floor or seventh (7th) floor (the “Early Possession Space”). The Early
Possession Space Notice from Tenant to Landlord shall specify the location and the RSF of the Early
Possession Space (not to exceed 25,000 RSF). The location of the Early Possession Space shall be
subject to Landlord’s reasonable approval, which shall be given (or denied) within fifteen (15)
days after Landlord’s receipt of the Early Possession Space Notice. Upon Tenant’s designation of
the Early Possession Space and the reasonable acceptance of such space by Landlord, Landlord shall
determine the RSF of the Early Possession Space (not to exceed 25,000 RSF) and notify Tenant of the
Landlord’s calculation of the RSF. If Landlord disagrees with the designation of the Early
Possession Space or if Landlord and Tenant disagree about the calculation of the RSF of the Early
Possession Space, Landlord shall give Tenant a reasonably detailed description of its concerns and
suggested alternatives and Landlord and Tenant shall forthwith meet and in good faith attempt to
resolve the disagreement over the location or RSF; provided, however, that any disagreement as to
the exact location or the calculation of the RSF of the Early Possession Space shall not cause the
Early Possession Space Notice to be ineffective. Any such disagreement as to the location or RSF
of the Early Possession Space that is not resolved within thirty (30) days shall be submitted to
and resolved by arbitration in
accordance with Article 34 hereof. The Base Rent payable by Tenant to Landlord for the Early
Possession Space shall be in the amount of $[***] per RSF per annum payable in equal monthly
installments for the period commencing upon the later of (i) the date of possession specified in
the Early Possession Space Notice by Tenant, and (ii) Landlord’s delivery of possession of the
Early Possession Space to Tenant and ending at 12:01 AM on the Commencement Date or such earlier
date upon which Tenant has vacated the Early Possession Space and gives Landlord notice that it has
vacated the Early Possession Space. All of the other applicable terms and provisions of this
Sublease shall apply to Tenant’s use and occupancy of such Early Possession Space prior to the
Commencement Date. Notwithstanding the foregoing, the only alterations allowed to be performed by
Tenant in any such Early Possession Space prior to the Commencement





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




9









 









Date of this Sublease shall be
limited to (i) limited electrical work as required for office desks, related equipment and
partitions, and (ii) work for which a building permit is not required under applicable law (such as
telephone lines, cable preparation, furniture installation, but not drywall installation or
demolition for which a building permit is required under applicable law).




     1.12 (a) Subject to the provisions of the Existing Superior Lease and the rights of the
Existing Lessor thereunder, Landlord shall, on (or at Tenant’s option, after) October 1, 2010 allow
Tenant to take possession of (i) the initial SOC Space in order to commence construction of the
subleasehold improvements to the SOC Space and (ii) portions of the roof associated with equipment
and common risers and other common infrastructure areas required for the operation of the SOC, as
designated by Tenant and reasonably approved by Landlord, and for no other purpose. Tenant may
commence and perform work and install fixtures and equipment in the SOC Space only after Tenant has
obtained all required applicable governmental approvals for such work and has provided copies
thereof to Landlord, has obtained written approval from Landlord of the plans and specifications
for such work and installations and, to the extent required under the Existing Superior Lease,
Landlord has obtained the approval of the Existing Lessor. Landlord’s review of Tenant’s plans
shall be in accordance with other provisions of this Sublease. Upon its receipt of the Tenant’s
Plans, Landlord shall, in accordance with, and subject to, the applicable provisions of Article 13
hereof, review the plans and specifications for such work and installations and seek the approval
of Existing Lessor, if required under the Existing Superior Lease. Any such work shall be
performed by Tenant in accordance with the terms and provisions of this Sublease applicable to the
performance of the Tenant’s Work and Alterations including, without limitation, providing the
insurance required hereunder. No Base Rent or Additional Rent shall be payable by Tenant in
connection with its early occupancy of the SOC Space for the purpose of constructing leasehold
improvements and installing fixtures and equipment therein; provided, however, Tenant shall pay for
electricity and other services used by Tenant in connection with such early occupancy and, subject
to the “Freight Elevator/Loading Dock Abatement” set forth in Section 18.01(c) below, shall also
pay the applicable charges for the use of the freight elevator. In no event shall Tenant commence
or continue any business operations in the SOC Space or otherwise occupy the SOC Space for the
conduct of business, except for limited testing, prior to the Commencement Date. No later than
November 1, 2010, Landlord shall remove the leasehold improvements, furniture, fixtures, equipment
and personal property in the portion of the 7th floor of the Building known as the
“Craig Memorial Library” and shall put such portion of the 7th floor in vacant, broom
clean shell condition. If, by December 1, 2010, Tenant gives to Landlord a list specifying any
work required to be completed by Landlord to correct any deficiencies in connection with the work
required to be performed by Landlord pursuant to the preceding sentence, Landlord agrees it will
complete all deficiencies required under such list which are the obligation of Landlord within
thirty (30) days after Landlord’s receipt of such list or such longer time as may be reasonably
required because of the nature of the deficiency, provided Landlord must have promptly undertaken
procedures to correct the deficiency and thereafter diligently pursues such efforts to completion.



10









 





          (b) Subject to the provisions of the Existing Superior Lease and the rights of the Existing
Lessor thereunder, Landlord shall endeavor to allow Tenant to take possession of 5th
Floor Premises on June 1, 2011 in order to commence demolition therein and for the purposes of
construction staging purposes (collectively, the “Pre-Commencement 5th Floor Uses” ),
and for no other purpose. Tenant may commence and perform the demolition work in the
5th Floor Premises only after Tenant has obtained all required applicable governmental
approvals therefor and has provided copies thereof to Landlord, has obtained written approval from
Landlord of the plans and specifications for such demolition work and, to the extent required under
the Existing Superior Lease, Landlord has obtained the approval of the Existing Lessor. Landlord’s
review of Tenant’s plans shall be in accordance with other provisions of this Sublease. Upon its
receipt of the Tenant’s Plans, Landlord shall, in accordance with, and subject to, the applicable
provisions of Article 13 hereof, review the plans and specifications for such demolition work and
seek the approval of Existing Lessor, if required under the Existing Superior Lease. Any such
demolition work shall be performed by Tenant in accordance with the terms and provisions of this
Sublease applicable to the performance of the Tenant’s Work and Alterations including, without
limitation, providing the insurance required hereunder. [***]; provided, however, Tenant shall pay
for electricity and other services used by Tenant in connection with such early occupancy and,
subject to the “Freight Elevator/Loading Dock Abatement” set forth in Section 18.01(c) below, shall
also pay the applicable charges for the use of the freight elevator. In no event shall Tenant
commence or continue any business operations in the 5th Floor Premises or otherwise
occupy the 5th Floor Premises prior to the Commencement Date.



          (c) Provided that Tenant has obtained all applicable governmental approvals for the
installation of its Rooftop Sign (as defined in Section 45.03(a) below) and has provided Landlord
with copies of all such approvals, and has obtained the written consent of Landlord and the
Existing Lessor (to the extent required under the Existing Superior Lease) to the plans and
specifications for such work to be performed by Tenant, prior to the Commencement Date Landlord
shall permit Tenant to perform such structural, electrical and other modifications for the sign
structure for the Rooftop Sign; provided, however, the actual Tenant’s signage and graphics to be
installed on the Rooftop Sign will not be installed until after the occurrence of the Commencement
Date or such earlier date as may be permitted or required by the Third Amendment of the Existing
Superior Lease. All of the applicable terms of this Sublease shall apply to any such work to be
performed by Tenant prior to the Commencement Date including, without limitation, approval of
plans, providing required insurance and terms and provisions applicable to the Tenant’s Work and
Alterations.





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




11









 










ARTICLE 2

USE




     2.01 (a) Subject to, in accordance with, and to the extent permitted by, all Legal
Requirements and the other provisions of this Sublease, Tenant covenants and agrees that the
Premises shall be used, occupied and operated solely as and for the Permitted Uses, and for no
other purpose. Nothing contained in this Section 2.01 or elsewhere in this Sublease shall be
deemed to constitute a warranty or representation by Landlord that the Premises are or will be
suitable for the Permitted Uses, Tenant hereby acknowledging that, except as expressly provided
herein, Landlord has made no representation or warranty as to whether any portion of the Premises
is or will be suitable for such uses.



          (b) Notwithstanding anything in this Sublease to the contrary, no portion of the Premises
shall be used, occupied or operated, and Tenant covenants and agrees that it will not permit any
portion of the Premises to be used, occupied or operated, by the United States Government, the
County of Queens, the City or State of New York, any foreign government, an autonomous
governmental corporation, a trade mission, the United Nations or any agency or department of any
of the foregoing, or any other person having or who is entitled to, directly or indirectly,
sovereign or diplomatic immunity or who is not subject to service of process in New York State or
to the jurisdiction of both the State and Federal Courts located in New York State.
Notwithstanding the foregoing, Tenant may permit a Governmental Authority that would otherwise
violate the provisions of this Section 2.01(b) and that is an Affiliated Person to occupy or use
the Premises in accordance with the provisions of Section 9.17 or in connection with the review or
monitoring of the operations of Tenant and this subsection (b) shall not limit or affect Tenant’s
rights under Section 9.19.




          (c) Notwithstanding anything in this Sublease to the contrary, no portion of the Premises
shall be used, occupied or operated by Tenant or any other Tenant Party (as defined in Exhibit H),
and Tenant covenants and agrees that no portion of
the Premises shall be used, occupied or operated by Tenant or any other Tenant Party, for or
as any of the uses or purposes (i) prohibited by Section 7.6(e) of the Existing Superior Lease, or
(ii) described in Exhibit C hereto, which uses and purposes are collectively referred to as
“Prohibited Uses.”




     2.02 No portion of the Premises shall be used, occupied or operated by Tenant or any other
Tenant Party, and Tenant covenants and agrees that it will not permit any portion of the Premises
to be used, occupied or operated by any other Tenant Party, in violation of any provision of this
Sublease or in violation of any Legal Requirement. If any governmental approval, license or permit
(other than a certificate of occupancy that permits the Premises to be used as offices) shall be
required for the proper and lawful conduct of business in the Premises, or any part thereof,
Tenant, at its cost and expense, shall duly procure and thereafter maintain such approvals,
licenses and/or permits, and, upon Landlord’s request, submit the same for inspection by Landlord
and Landlord shall reasonably cooperate with Tenant to the extent necessary for Tenant to



12









 




obtain any such approval, license or permit. Tenant shall at all times comply with, and cause the
compliance with, the terms and conditions of each such approvals, licenses and permits, except that
Tenant at its expense in accordance with this Sublease and applicable Legal Requirements may
contest same prior to its compliance to the extent that such failure to comply and contest will not
subject Landlord to any fine, penalty or forfeiture. The use of the Premises shall be subject to,
and conditioned upon, procuring, maintaining and complying with such approvals, licenses and
permits, but the failure or inability to procure, maintain or comply with such approvals, licenses
or permits shall not relieve or release Tenant from any of its obligations or liabilities under
this Sublease, constitute an actual or constructive eviction, or impose any liability upon
Landlord.




     2.03 No portion of the Premises shall be used, occupied or operated, and Tenant covenants and
agrees that it will not permit any portion of the Premises to be used, occupied or operated or
otherwise permit anything to be done in the Premises, in violation of the certificate of occupancy
for the Building, or which requires an amendment to, or modification of, the certificate of
occupancy for the Building (other than as may be required for Tenant’s Work and subsequent
Alterations permitted under this Sublease), or in violation of any Requirement, superior mortgage
or superior lease (including the Existing Superior Lease, as hereinafter defined), or which would
adversely affect (except to a de minimis extent) the appearance, character or reputation of the
Building as a first-class facility in the Borough of Queens.



     2.04 (a) Tenant, on its behalf and on behalf of all persons operating, using or otherwise
occupying any portion of the Premises, further covenants and agrees that Tenant shall, at Tenant’s
sole cost and expense:



               (i) have deliveries to and from the Premises done at the time, in the manner and through the
entrances reasonably designated by Landlord;



               (ii) not suffer, permit, install or operate in or about the Premises any arcade-type of
amusement devices or any coin or token operated vending machine or other devices for the sale of
goods, wares, merchandise, food and beverages, including, but not limited to, pay lockers, pay
toilets, and machines for the sale of cigarettes, provided, however, that nothing herein contained
shall be deemed to prevent Tenant from installing vending machines for sale of food, beverages and
similar items in the Premises for use by Tenant’s employees. Notwithstanding the foregoing,
Tenant, at its expense, in accordance with Legal Requirements, may install and operate electronic
video games and other amusement-entertainment devices in an area not to exceed, in the aggregate,
3,000 RSF in the Tenant’s employee lounge(s) located in the Premises for use by Tenant’s employees
and their guests (and not for use only by the public or other occupants of the Building) provided
that any vibration or noise that emanates from any such employee lounge will not be audible to any
other occupant of the Building not within the Premises;



13









 





               (iii) keep the drain, waste and sewer pipes and connections in, and servicing the Premises
free from obstructions caused by any Tenant Party and otherwise in compliance with all applicable
Requirements.



          (b) (i) Neither Tenant nor any Tenant Party shall use or obstruct, or permit to be used or
obstructed, any corridor or other space outside the Premises, for display, sale, storage or any
other purpose, or use, or permit to be used, any portion of the Premises for housing
accommodations or sleeping purposes, except Tenant may designate a portion of the Premises where
certain employees may rest.




               (ii) Tenant shall not permit any noise, vibrations or other sounds (including music, video and
other electronic games, public address systems and advertisements) emanating from the Premises to
be audible to any other occupant of the Building not within the Premises, provided however, nothing
herein contained shall be deemed to prohibit the operation of the Supplemental HVAC Units (as
defined in Section 17.05(b) hereof) (provided that noise levels produced by the Supplemental HVAC
Units comply with the standards set forth in the performance specifications annexed as Exhibit K),
testing or operation of Tenant’s Generator Equipment (as defined in Section 16.12(a)) or the
performance of any Alterations (but in either case subject to and in accordance with Section 13.09
and any other restrictions set forth in this Sublease).



               (iii) Intentionally Deleted.



               (iv) Neither Tenant nor any Tenant Party shall use the plumbing facilities in or serving the
Premises for any purpose other than that for which they were constructed, and neither Tenant nor
any Tenant Party shall dispose of any garbage or other foreign substance therein, whether through
the utilization of so-called “disposal” or similar units, or otherwise.



               (v) Intentionally omitted



               (vi) Tenant shall not permit window cleaning at any time, nor permit other maintenance and
janitorial services in and for the Premises to be performed except in accordance with all
applicable Legal Requirements and, subject to the provisions of Article 52 hereof, by one of
Tenant’s employees (as to light duty cleaning (such as conference room/post-meeting clean-up) in
the Premises only) or by such person(s) as shall be reasonably approved by Landlord in accordance
with the terms of this Sublease, which approval shall, subject to Article 52 below, not be
unreasonably reasonably withheld or delayed. Tenant shall remove all obstacles or items blocking
access to all windows within the Premises as necessary to allow Landlord’s scheduled cleaning of
windows, provided that Landlord gives Tenant reasonable advance telephonic, facsimile or other
notice thereof.



               (vii) Neither Tenant nor any Tenant Party shall place a load on any floor in the Premises
exceeding the floor load per square foot that such floor was



14









 




designed, or as modified and
reinforced by Tenant, to carry and that is allowed by applicable Legal Requirements.




               (viii) Intentionally Deleted.



               (ix) There shall be no cooking or baking by or on behalf of Tenant or any other Tenant Party
in, at or from the Premises, except for the reheating of food as may be done in Tenant’s pantries
by and for the use of Tenant’s employees and invitees, and except for the Renewal Premises
Cafeteria Space (as such term is defined in Section 2.09 hereof), to the extent same becomes a part
of the Renewal Premises pursuant to Sections 18.11 and 40.01 hereof. Nothing herein shall limit
Tenant’s right to use the Roof Terrace as permitted by this Sublease or the Premises for catered
receptions.



          (c) Tenant shall neither commit nor suffer any waste to the Real Property.




     2.05 Tenant shall, at its sole cost and expense, install in and about the Premises fire
extinguishing devices as required, from time to time, by all applicable Requirements and as
approved by the Fire Insurance Rating Organization and its successors (to the extent such devices
do not presently exist or are not in good working order), and shall, at its sole cost and expense,
keep all fire extinguishing devices (whether new or presently existing) under service, and maintain
all such devices (whether new or presently existing) in good working order, throughout the Term as
so required. Should Tenant fail to satisfy its obligations under this Section 2.05 after notice
and a reasonable cure period, Landlord shall be entitled to do so on Tenant’s behalf, as more fully
set forth in Article 30.



     2.06 Tenant agrees that the value of the Premises and the Building and the reputation of the
Landlord will be seriously injured if the Premises are used for any obscene or pornographic
purposes or any sort of commercial sex establishment. Tenant shall not sell or offer to sell, or
display, any obscene or pornographic material from, at or in the Building or the Premises, and
shall not permit or conduct any obscene, nude, or semi-nude live performances on or in the Building
or the Premises, nor permit
the use of any portion of the Building or the Premises for nude modeling, or as a so called
rubber goods shops, or as a sex club of any sort, or as a “massage parlor,” and Tenant shall not
permit any of the foregoing uses by any Tenant Party. Pornographic material is defined for
purposes of this Section as any written or pictorial matter with prurient appeal or any objects or
instruments that are primarily concerned with lewd or prurient sexual activity. Obscene material
is defined here as it is in Penal Law §235.00. The provisions of this Section 2.06 shall not be
applicable to advertisements, films, television, internet or other entertainment offered or
promoted by or on behalf of Tenant, so long as the same do not contain the address of the Building
or any picture or other depiction of the Building.



     2.07 Intentionally Deleted.



15









 





     2.08 (a) The Storage Space shall be used solely for storage (including the use of high density
storage racks that are installed in the Storage Space by Tenant, at its sole cost and expense, in
accordance with, and subject to, the applicable provisions of this Sublease), of office equipment,
furniture, documents, other papers, office supplies and other typical office materials and lockers
for Tenant’s employees working on the Premises (but not Hazardous Materials, except Tenant may
store in the Storage Space limited quantities of substances reasonably necessary in the ordinary
operation and maintenance of office equipment, provided such substances are used and stored in
accordance with all applicable Requirements provided and to the extent that (i) none of the
foregoing items are food (except employees’ lunch stored in his or her lockers), beverage (except
for water or soda) or other perishable items, and (ii) all of the foregoing items are used in
connection with Tenant’s use of the Premises. Under no circumstances shall the Storage Space be
occupied by individuals for office, clerical or any other use, except to the extent reasonably
necessary to transport the stored items between the Storage Space and the Premises and except for
lockers for employees working at the Premises.



          (b) Except for “Decorative Alterations” (as defined in Section 13.01), neither Tenant
nor any other Tenant Party shall perform any Alteration or other work in or to any portion of the
Storage Space without Landlord’s prior written approval in each instance, which approval shall be
granted or withheld in accordance with Article 13 below.




          (c) Notwithstanding anything to contrary contained in any other provisions of this Sublease,
Landlord shall have no obligation to provide or furnish any services or utilities to the Storage
Space (except that Landlord shall (i) provide common corridor access, passenger elevator and
freight elevator service thereto, and (ii) furnish electricity to the Storage Space for the
operation of the lighting fixtures and electrical receptacles installed in the Storage Space, and
basic heat and air-conditioning to the Storage Space at such times, and at the level of service,
furnished to other tenants or occupants utilizing storage space in the Building), and Tenant shall
not be permitted to furnish the Storage Space with any services or utilities, or perform any work
in or to the Storage Space or any other portion of the Building with respect to
services or utilities to the Storage Space, without Landlord’s prior written approval in each
instance, which approval shall not be unreasonably withheld, conditioned or delayed, including
conditions relating to compliance with Article 52 hereof. Notwithstanding the foregoing, with the
prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned
or delayed, Tenant at its expense, shall have the right to install conduit for telephone lines to
the Storage Space and to install outlets for telephone lines therein and Landlord agrees to not
unreasonably withhold, condition or delay approval of the Tenant’s conduit and riser plans in
connection with any such installation.




          (d) The Storage Space may not be sublet, either in whole or in part, or otherwise used or
occupied by any person claiming by, through or under Tenant, except by a subtenant of the Premises
whose sublease has been approved by




16









 







Landlord (except to the extent such approval is not required
pursuant to the provisions of this Sublease), and the right to use the Storage Space shall not be
assigned, transferred, sold or conveyed except in connection with a valid assignment of this
Sublease in accordance with the terms of this Sublease;




          (e) Subject to the provisions of Section 18.02, Tenant, at its sole cost and expense, shall
keep the Storage Space clean, and shall place all of the refuse and rubbish generated in, by or
from the Storage Space in sealed plastic bags at a location in the Building, and at times, to be
reasonably designated by Landlord from time to time.




          (f) In the event that from time to time during the Term, Landlord shall, in its sole
discretion, desire to relocate the Storage Space, Landlord shall send written notice thereof
(hereinafter referred to as the “Relocation Notice”) to Tenant, which Relocation Notice shall be
sent to Tenant together with a floor plan of the space in the Building to which the Storage Space
is to be relocated (hereinafter referred to as the “New Storage Space”) and which New Storage
Space shall have a rentable area approximately the same as the rentable area of Storage Space
being relocated, and shall have comparable access and egress, shall have comparable ceiling height
to the Storage Space being relocated, shall be dry and suitable for storage. Effective on the
date specified in the Relocation Notice (which effective date shall not be less than ninety (90)
days after the Relocation Notice is given to Tenant), and so long as Landlord has improved the New
Storage Space in the same manner as the Storage Space (including the relocation, or installation
of new, high density storage racks and related floor reinforcement (to the extent same were in the
Storage Space and are not in the New Storage Space), provided adequate locks and provided all
required services hereunder, the New Storage Space shall become the Storage Space under this
Sublease, and on or prior to such effective date, Tenant, at Landlord’s expense (which expense
shall not be more than Tenant’s cost) shall remove from the Storage Space all of the contents
thereof (other than any of Landlord’s property therein) and move such contents to the New Storage
Space, and Tenant, at Tenant’s expense, shall repair any and all damage to the prior Storage Space
occurring during, or by reason of, the use thereof by Tenant
or by any other person or entity claiming by, through or under Tenant, and to all other
portions of the Building caused by its use of the Storage Space or such removal or move.
Notwithstanding, until Tenant has completely vacated the prior Storage Space and made all of such
repairs thereto, Tenant’s obligations with respect thereto (including its obligation to include
same in its insurance coverage) shall remain in full force and effect. In no event will Tenant be
obligated to pay rent on the Storage Space being relocated and the New Storage Space at the same
time.




     2.09 (a) If Tenant leases all or a portion of the Cafeteria Space (as such term is defined in
Section 18.11 hereof) during the Renewal Term, as more particularly provided in Section 18.11 and
Article 40 hereof, then during the Renewal Term, and only to the extent permitted by, and subject
to all applicable Requirements, and subject to the reasonable rules and
regulations of Landlord
(which may include rules and



17









 




regulations that in Landlord’s reasonable opinion, minimize risk of
injury or damage to persons and property or that involve avoiding increases in the premiums charged
to Landlord by such insurance companies, but which rules and regulations in no event will diminish,
beyond a de minimis extent, Tenant’s ability to maintain and operate its cafeteria to a level
comparable to the level of services and maintenance utilized by Landlord while it was operating the
Cafeteria Space as a cafeteria), Tenant may, at Tenant’s sole cost and expense, continue to operate
the Cafeteria in the Renewal Premises Cafeteria Space (as hereinafter defined), subject further to
the provisions of this Section 2.09, and the other applicable provisions of this Sublease. The
portion of the Cafeteria Space (where same is located in the Building on the last day of the
initial Term) that becomes a part of the Renewal Premises is herein referred to as the “Renewal
Premises Cafeteria Space” or the “RP Cafeteria Space.” The following provisions of this Section
2.09 shall apply only during the Renewal Term and only if the Renewal Premises Cafeteria Space is a
part of the Renewal Premises, it being understood and agreed that the use of the RP Cafeteria Space
in accordance with, and subject to, the provisions of this Section 2.09 and the other applicable
provisions of this Sublease shall at all times be subject to the provisions of the Existing
Superior Lease, including any provisions thereof which may limit the rights of Tenant provided for
in this Section 2.09, with Landlord having no liability to Tenant if the provisions of the Existing
Superior Lease in any way limit, restrict or prohibit the use of the RP Cafeteria Space or impose
additional obligations on Tenant with respect to such use.




          (b) The Renewal Premises Cafeteria Space shall be used solely for the preparation and sale of
food to, and for dining by, the employees and guests of Tenant and of other tenants and occupants
of the Building, and of permitted subtenants of Tenant and of other tenants of the Building, to the
extent such guests have business to conduct in the Premises or in the Building at the time they are
using the Renewal Premises Cafeteria Space (i.e., no off street guests or other patrons), and by no
other person and for no other purpose, except as expressly provided below in this subsection (b).
(The foregoing use is herein referred to as the “Cafeteria Use” and such guests are herein
referred to as “Permitted Guests.” ) No other portion of the Premises may be used for Cafeteria
Use. Notwithstanding the foregoing, during the Renewal Term, if the RP Cafeteria Space is a
part of the Renewal Premises, Tenant may, at its sole cost and expense, in accordance with, and
subject to, the applicable provisions of this Lease and the Existing Superior Lease (including
obtaining any required consent of the Existing Lessor), convert the use of the RP Cafeteria Space
to any of the Permitted Uses (other than an SOC) and use the RP Cafeteria Space for any of the
Permitted Uses (other than an SOC), it being understood and agreed that Landlord shall have no
liability to Tenant if the RP Cafeteria Space cannot be so converted or used and that Landlord has
made no representation or warranty as to whether the RP Cafeteria Space may be so used or whether
the RP Cafeteria Space is or will be suitable for such uses. Tenant’s obligations in furtherance
of the preceding sentence shall include obtaining any required amendment to the Building’s
certificate of occupancy, notwithstanding anything to the contrary contained in this Lease.



18









 





          (c) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall obtain and maintain all necessary
approvals of all Governmental Authorities having jurisdiction (including all permits and licenses,
and any amendment to the certificate of occupancy for the Building) to operate the Renewal Premises
Cafeteria Space for the Cafeteria Use.



          (d) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall operate the Cafeteria and the Renewal
Premises Cafeteria Space (including all of the equipment therein and all equipment that services
the Cafeteria Space (including all exhaust and ventilation equipment), regardless of whether any of
the equipment described in this subsection (d) (the “Cafeteria Equipment” ) is located in, or
affixed to, the Premises or any other portion of the Building), maintain the Renewal Premises
Cafeteria Space (including the Cafeteria Equipment) in good working order, and make all necessary
repairs thereto and replacements thereof, and all other portions of the Building inside and outside
the Premises affected thereby, all in accordance with, and subject to, all of the applicable
Requirements.



          (e) Tenant, at its sole cost and expense, shall:



               (i) Cause the Renewal Premises Cafeteria Space to be properly ventilated, and prevent any
odors from emanating from the Renewal Premises Cafeteria Space into other portions of the Premises
or the Building;



               (ii) Keep the Renewal Premises Cafeteria Space, the balance of the Premises and the areas
adjacent thereto, free from rats, mice, insects and other vermin, and shall obtain and maintain at
all times during the Renewal Term a service contract, with a person approved by Landlord (which
approval shall not be unreasonably withheld or delayed), for the extermination of rats, mice,
insects and other vermin, in and about the Renewal Premises Cafeteria Space;



               (iii) Maintain in all cooking areas and in all other areas required by all applicable
Requirements, fire extinguishing devices approved by the Fire Insurance Rating Organization having
jurisdiction over the Premises and which otherwise comply with such Requirements, and, if gas is
used in the Renewal Premises Cafeteria Space, suitable gas cut-off devices (manual and automatic);



               (iv) Prevent fat, grease, or any other greasy substance from entering the waste lines of the
Building and from accumulating in the exhaust hoods and fans;



               (v) Maintain the floors in Renewal Premises Cafeteria Space in a waterproof condition; and



               (vi) Subject to the provisions of Section 18.02, shall keep the Renewal Premises Cafeteria
Space clean to the reasonable satisfaction of Landlord,



19









 




and handle and dispose of all rubbish,
refuse, garbage and waste from the Renewal Premises Cafeteria Space in accordance with all
applicable Requirements and not permit the accumulation of any rubbish, refuse or garbage in, on,
or about any part of the Building. Tenant shall place all refuse and rubbish generated in, by or
from the Renewal Premises Cafeteria Space in sealed plastic bags at a location in the Building, and
at times, to be reasonably designated by Landlord from time to time, except that all food or food
product rubbish, refuse, garbage or waste shall be stored in closed containers and kept in
refrigerated areas, to be installed and maintained by Tenant in the Renewal Premises Cafeteria
Space.




          (f) Notwithstanding anything to contrary contained in any other provisions of this Sublease,
Landlord shall have no obligation to provide or furnish any services or utilities to the Renewal
Premises Cafeteria Space (except that Landlord shall (i) provide common corridor access thereto,
and (ii) continue to furnish substantially the same electric power to the Renewal Premises
Cafeteria Space that was being furnished thereto on the last day of the initial Term, and basic
heat and air-conditioning to the Renewal Premises Cafeteria Space at such times, and at the level
of service, being furnished to the Renewal Premises Cafeteria Space on the last day of the initial
Term, and allow Tenant to continue (by direct application and arrangement with the applicable
utility company, if such arrangement is possible) to receive substantially the same gas service to
the RP Cafeteria Space that was being furnished thereto on the last day during the initial Term
that gas service was being furnished to the RP Cafeteria Space, and Tenant shall not be permitted
to furnish the Renewal Premises Cafeteria Space with any services or utilities, or perform any
Alteration or other work in or to the Renewal Premises Cafeteria Space (except for Decorative
Alterations) or any other portion of the Building with respect to services or utilities to the
Renewal Premises Cafeteria Space, without Landlord’s prior written approval in each instance,
which approval shall not be unreasonably withheld, conditioned or delayed, including conditions
relating to compliance with Article 52 hereof.




          (g) To the extent that any insurance premium payable by Landlord is increased as a result of
the operation of the Cafeteria, Tenant shall pay to Landlord, as Additional Rent, the amount of
such increase(s) within thirty (30) days after Landlord’s demand therefor from time to time. The
liability insurance of Tenant as required by this Sublease shall expressly cover the use and
occupancy of the Renewal Premises Cafeteria Space for the Cafeteria Use.




          (h) The Renewal Premises Cafeteria Space may not be sublet, either in whole or in part, or
otherwise used or occupied (except by a third-party operator in accordance with, and subject to,
the provisions of Section 2.12(b) hereof) by any person claiming by, through or under Tenant,
except by a subtenant of the Premises whose sublease has been approved by Landlord (except to the
extent such approval is not required pursuant to the provisions of this Sublease), and the right
to use the Renewal Premises Cafeteria Space shall not be assigned, transferred, sold or conveyed
except in connection with a valid assignment of this Sublease in accordance with the terms of this
Sublease.





20









 








          (i) Tenant shall operate and maintain the Cafeteria Equipment and Renewal Premises Cafeteria
Space in a manner and a standard that is consistent with standard being utilized by Landlord as of
the Effective Date.



     2.10 (a) If Tenant leases the FC Space (as such term is defined in Section 18.11 hereof)
during the Renewal Term, as more particularly provided in Section 18.11 and Article 40 hereof, then
during the Renewal Term, and only to the extent permitted by, and subject to all applicable
Requirements, and subject to the reasonable rules and regulations of Landlord (which may include
rules and regulations that in Landlord’s reasonable opinion, minimize risk of injury or damage to
persons and property or that involve avoiding increases in the premiums charged to Landlord by such
insurance companies, but which rules and regulations in no event will diminish, beyond a de minimis
extent, Tenant’s ability to maintain and operate its fitness center to a level comparable to the
level of services and maintenance utilized by Landlord while it was operating the FC Space as a
fitness center), Tenant may, at Tenant’s sole cost and expense, continue to operate the Fitness
Center in the FC Space, subject further to the provisions of this Section 2.10, and the other
applicable provisions of this Sublease. The following provisions of this Section 2.10 shall apply
only during the Renewal Term and only if the FC Space is a part of the Renewal Premises, it being
understood and agreed that the use of the FC Space in accordance with, and subject to, the
provisions of this Section 2.10 and the other applicable provisions of this Sublease shall at all
times be subject to the provisions of the Existing Superior Lease, including any provisions thereof
which may limit the rights of Tenant provided for in this Section 2.10, with Landlord having no
liability to Tenant if the provisions of the Existing Superior Lease in any way limit, restrict or
prohibit the use of the FC Space or impose additional obligations on Tenant with respect to such
use.



          (b) The FC Space shall be used solely for the use of fitness and exercise equipment, cardio
and movement workout rooms, and locker rooms and showers
related to such use, by the employees of Tenant, other tenants and occupants of the Building
and of permitted subtenants of Tenant and other tenants of the Building (i.e., no guests (off
street or otherwise), and by no other person and for no other purpose, except as expressly provided
below in this subsection (b). (The foregoing use is herein referred to as the “FC Use.” ) No
other portion of the Premises may be used for FC Use, and under no circumstances shall there be
installed or placed in any portion of the Fitness Center or in any other portion of the Premises,
any swimming pools, lap pools, hot tubs or so-called “Jacuzzis.” Notwithstanding the foregoing,
during the Renewal Term, if the FC Space is a part of the Renewal Premises, Tenant may, at its sole
cost and expense, in accordance with, and subject to, the applicable provisions of this Lease and
the Existing Superior Lease (including obtaining any required consent of the Existing Lessor),
convert the use of the FC Space to any of the Permitted Uses (other than an SOC) and use the FC
Space for any of the Permitted Uses (other than an SOC), it being understood and agreed that
Landlord shall have no liability to Tenant if the FC Space cannot be so converted or used and that
Landlord has made no representation or warranty as to whether the FC Space may be so used or
whether the FC Space is or will be suitable for such uses. Tenant’s obligations in furtherance of
the



21









 




preceding sentence shall include obtaining any required amendment to the Building’s certificate
of occupancy, notwithstanding anything to the contrary contained in this Lease.




          (c) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall obtain and maintain all necessary
approvals of all Governmental Authorities having jurisdiction (including all permits and licenses,
and any amendment to the certificate of occupancy for the Building) to operate the FC Space for the
FC Use.



          (d) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall operate the Fitness Center and the FC
Space (including all of the equipment therein and all equipment that services the FC Space,
regardless of whether any of the equipment described in this subsection (d) (the “FC Equipment” )
is located in, or affixed to, the Premises or any other portion of the Building), maintain the FC
Space (including the FC Equipment) in good working order, and make all necessary repairs thereto
and replacements thereof, and all other portions of the Building inside and outside the Premises
affected thereby, all in accordance with, and subject to, all of the applicable Requirements.



          (e) Tenant, at its sole cost and expense, shall:



               (i) Cause the FC Space to be properly ventilated, and prevent any odors from emanating from
the FC Space into other portions of the Premises or the Building;



               (ii) Maintain the floors in FC Space in a waterproof condition; and



               (iii) Subject to the provisions of Section 18.02, shall keep the FC Space clean, and handle
and dispose of all rubbish, refuse, garbage and waste from the FC Space in accordance with all
applicable Requirements and not permit the accumulation of any rubbish, refuse or garbage in, on,
or about any part of the Building. Tenant shall place all refuse and rubbish generated in, by or
from the FC Space in sealed plastic bags at a location in the Building, and at times, to be
reasonably designated by Landlord from time to time.



          (f) Notwithstanding anything to contrary contained in any other provisions of this Sublease,
Landlord shall have no obligation to provide or furnish any services or utilities to the FC Space
(except that Landlord shall (i) provide common corridor access thereto, and (ii) continue to
furnish substantially the same electric power to the FC Space that was being furnished thereto on
the last day of the initial Term, and basic heat and air-conditioning to the FC Space at such
times, and at the level of service, being furnished to the FC Space on the last day of the initial
Term, and Tenant shall not be permitted to furnish the FC Space with any services or utilities, or
perform any Alteration or other work in or to the FC Space (except for Decorative





22









 







Alterations) or
any other portion of the Building with respect to services or utilities to the FC Space, without
Landlord’s prior written approval in each instance, which approval shall not be unreasonably
withheld, conditioned or delayed, including conditions relating to compliance with Article 52
hereof.




          (g) To the extent that any insurance premium payable by Landlord is increased as a result of
the operation of the Fitness Center, Tenant shall pay to Landlord, as Additional Rent, the amount
of such increase(s) within thirty (30) days after Landlord’s demand therefor from time to time.
The liability insurance of Tenant as required by this Sublease shall expressly cover the use and
occupancy of the FC Space for the FC Use.



          (h) The FC Space may not be sublet, either in whole or in part, or otherwise used or occupied
(except by a third-party operator in accordance with, and subject to, the provisions of Section
2.12(b) hereof) by any person claiming by, through or under Tenant, except by a subtenant of the
Premises whose sublease has been approved by Landlord (except to the extent such approval is not
required pursuant to the provisions of this Sublease), and the right to use the FC Space shall not
be assigned, transferred, sold or conveyed except in connection with a valid assignment of this
Sublease in accordance with the terms of this Sublease.



          (i) Tenant shall operate and maintain the FC Equipment and FC Space in a manner and a standard
that is consistent with standard being utilized by Landlord as of the Effective Date.



     2.11 (a) If Tenant leases the CC Space (as such term is defined in Section 18.11 hereof)
during the Renewal Term, as more particularly provided in Section 18.11 and Article 40 hereof, then
during the Renewal Term, and only to the extent permitted by, and subject to all applicable
Requirements, and subject to the reasonable rules and
regulations of Landlord (which may include rules and regulations that in Landlord’s reasonable
opinion, minimize risk of injury or damage to persons and property or that involve avoiding
increases in the premiums charged to Landlord by such insurance companies, but which rules and
regulations in no event will diminish, beyond a de minimis extent, Tenant’s ability to maintain and
operate its conference center to a level comparable to the level of services and maintenance
utilized by Landlord while it was operating the CC Space as a conference center), Tenant may, at
Tenant’s sole cost and expense, continue to operate the Conference Center in the CC Space, subject
further to the provisions of this Section 2.11, and the other applicable provisions of this
Sublease. The following provisions of this Section 2.11 shall apply only during the Renewal Term
and only if the CC Space is a part of the Renewal Premises, it being understood and agreed that the
use of the CC Space in accordance with, and subject to, the provisions of this Section 2.11 and the
other applicable provisions of this Sublease shall at all times be subject to the provisions of the
Existing Superior
Lease, including any provisions thereof which may limit the rights of Tenant
provided for in this Section 2.11, with Landlord having no liability to Tenant if the provisions of
the Existing Superior



23









 




Lease in any way limit, restrict or prohibit the use of the CC Space or
impose additional obligations on Tenant with respect to such use.




          (b) The CC Space shall be used solely for meetings and conferences, by the employees of
Tenant, other tenants and occupants of the Building and of permitted subtenants of Tenant and other
tenants of the Building and by Permitted Guests, and by no other person and for no other purpose.
(The foregoing use is herein referred to as the “CC Use.” ) Notwithstanding the foregoing, during
the Renewal Term, if the CC Space is a part of the Renewal Premises, Tenant may, at its sole cost
and expense, in accordance with, and subject to, the applicable provisions of this Lease and the
Existing Superior Lease (including obtaining any required consent of the Existing Lessor), convert
the use of the CC Space to any of the Permitted Uses (other than an SOC) and use the CC Space for
any of the Permitted Uses (other than an SOC), it being understood and agreed that Landlord shall
have no liability to Tenant if the CC Space cannot be so converted or used and that Landlord has
made no representation or warranty as to whether the CC Space may be so used or whether the CC
Space is or will be suitable for such uses. Tenant’s obligations in furtherance of the
preceding
sentence shall include obtaining any required amendment to the Building’s certificate of occupancy,
notwithstanding anything to the contrary contained in this Lease.



          (c) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall obtain and maintain all necessary
approvals of all Governmental Authorities having jurisdiction (including all permits and licenses,
and any amendment to the certificate of occupancy for the Building) to operate the CC Space for the
CC Use.



          (d) Tenant or, subject to the provisions of Section 2.12(b) hereof, a third-party operator
retained by Tenant, at Tenant’s sole cost and expense, shall operate the Conference Center and the
CC Space (including all of the equipment therein and all
equipment that services the CC Space, regardless of whether any of the equipment described in
this subsection (d) (the “CC Equipment” ) is located in, or affixed to, the Premises or any other
portion of the Building), maintain the CC Space (including the CC Equipment) in good working order,
and make all necessary repairs thereto and replacements thereof, and all other portions of the
Building inside and outside the Premises affected thereby, all in accordance with, and subject to,
all of the applicable Requirements.



          (e) Tenant, at its sole cost and expense, shall:



               (i) Cause the CC Space to be properly ventilated, and prevent any odors from emanating from
the CC Space into other portions of the Premises or the Building; and



               (ii) Subject to the provisions of Section 18.02, shall keep the CC Space clean, and handle and
dispose of all rubbish, refuse, garbage and waste from the CC Space in accordance with all
applicable Requirements and not permit the



24









 




accumulation of any rubbish, refuse or garbage in, on,
or about any part of the Building. Tenant shall place all refuse and rubbish generated in, by or
from the CC Space in sealed plastic bags at a location in the Building, and at times, to be
reasonably designated by Landlord from time to time.




          (f) Notwithstanding anything to contrary contained in any other provisions of this Sublease,
Landlord shall have no obligation to provide or furnish any services or utilities to the CC Space
(except that Landlord shall (i) provide common corridor access thereto, and (ii) continue to
furnish substantially the same electric power to the CC Space that was being furnished thereto on
the last day of the initial Term, and basic heat and air-conditioning to the CC Space at such
times, and at the level of service, being furnished to the CC Space on the last day of the initial
Term, and Tenant shall not be permitted to furnish the CC Space with any services or utilities, or
perform any Alteration or other work in or to the CC Space (except for Decorative Alterations) or
any other portion of the Building with respect to services or utilities to the CC Space, without
Landlord’s prior written approval in each instance, which approval shall not be unreasonably
withheld, conditioned or delayed, including conditions relating to compliance with Article 52
hereof.




          (g) To the extent that any insurance premium payable by Landlord is increased as a result of
the operation of the Conference Center, Tenant shall pay to Landlord, as Additional Rent, the
amount of such increase(s) within thirty (30) days after Landlord’s demand therefor from time to
time. The liability insurance of Tenant as required by this Sublease shall expressly cover the use
and occupancy of the CC Space for the CC Use.



          (h) The CC Space may not be sublet, either in whole or in part, or otherwise used or occupied
(except by a third-party operator in accordance with, and subject to, the provisions of Section
2.12(b) hereof) by any person claiming by, through or under Tenant, except by a subtenant of the
Premises whose sublease has been
approved by Landlord (except to the extent such approval is not required pursuant to the
provisions of this Sublease), and the right to use the CC Space shall not be assigned, transferred,
sold or conveyed except in connection with a valid assignment of this Sublease in accordance with
the terms of this Sublease.



          (i) Tenant shall operate and maintain the CC Equipment and CC Space in a manner and a standard
that is consistent with standard being utilized by Landlord as of the Effective Date.



     2.12 (a) If the RP Cafeteria Space, the FC Space and/or the CC Space are a part of the Renewal
Premises during the Renewal Term, if any, then, to the extent, and for as long as, such portion(s)
of the Renewal Premises is/are used for a cafeteria, fitness center or conference center,
respectively, the employees of Landlord and Landlord’s Affiliates, and, except for the FC Space,
the invitees and guests of Landlord and Landlord’s Affiliates (collectively, the “Landlord Amenity
Customers”), shall have non-exclusive use of such amenity(ies) for so long as such portion(s) of
the Renewal



25









 




Premises are being used for its/their respective amenities, subject to the limitations
in this Section 2.12(a), on a direct cash basis, subject in all cases to any reasonable rules and
regulations of Tenant regarding the use thereof by all users (which shall be enforced in a
non-discriminatory manner). Landlord acknowledges that said reasonable rules and regulations, as
applied to the use of the FC Space as a fitness center, may include excluding from the fitness
center any person who does not satisfy reasonably established medical or health conditions and/or
who refuses to sign Tenant’s then waiver and release form, if any, for use of the fitness center.
It is understood and agreed that (i) Tenant shall have no obligation to operate any such portion of
the Renewal Premises for its respective amenity, and (ii) Tenant shall have no obligation to
modify any such portion of the Renewal Premises to accommodate Landlord’s Amenity Customers use
thereof or to subsidize use of such amenities by Landlord Amenity Customers. Regardless of whether
Tenant permits other tenants or occupants of the Building to use any of such amenities, the
Landlord Amenity Customers shall have the non-exclusive right described in this subsection (a) to
use such amenities for so long as such portion(s) of the Renewal Premises are being used for
its/their respective amenity, provided that Tenant shall have the right to exclude Landlord Amenity
Customers from use of such amenities from time to time for private functions or repairs to such
portions of the Renewal Premises, and Tenant may exclude Landlord Amenity Customers temporarily or
permanently if usage by Tenant increases and such portion of the Renewal Premises no longer
accommodates usage by both Tenant and Landlord Amenity Customers.




          (b) The retention by Tenant of any third-party to operate the RP Cafeteria Space as a
cafeteria, the FC Space as a fitness center and the CC Space as a conference center shall be
subject to the provisions of Article 52 of this Sublease and to Landlord’s prior written approval
(which approval shall not be unreasonably withheld, conditioned or delayed) and which third-party
operator shall be deemed to be acting on Tenant’s behalf. No such third-party operator shall have
any rights, title or interest in, to or under the Premises or any other portion of the Building
and/or Land, or any rights or
remedies against Landlord, and Tenant shall indemnify and hold Landlord harmless from and
against any and all, actions, proceedings, liabilities, obligations, claims, damages, deficiencies,
losses, judgments, suits, expenses and costs (including court costs and reasonable third-party
legal fees and disbursements for which Landlord is or may be liable) arising under or out of or in
connection with or resulting from the acts or omissions of any such third-party operator. Tenant
shall remain fully liable for the payment of Base Rent and Additional Rent due and to become due
under this Sublease and for the observance, performance and compliance with all of the terms,
covenants and conditions contained in this Sublease on Tenant’s part to observe, perform or comply
with, and all acts or omissions by any such third-party operator or anyone claiming under or
through any such third-party operator which shall be a default under this Sublease, shall be deemed
to be a default by Tenant. Tenant’s right to have a third-party operator manage the RP Cafeteria
Space, the FC Space and/or the CC Space shall not be deemed a waiver of Landlord’s rights under
this Sublease to consent to the use or occupancy of the Premises (or any portion thereof) by any
other person or



26









 




to the assignment of this Sublease or the subletting of the Premises (or any
portion thereof).




          (c) Other than any cost or expense of the following services and utilities that Landlord, at
its election, includes in “Operating Expenses,” Tenant shall pay for all services and utilities
provided or furnished during the Renewal Term to the RP Cafeteria Space, the FC Space and the CC
Space (to the extent such portion(s) of the Building are a part of the Renewal Premises),
regardless of whether or not Landlord is obligated to provide or furnish same or is obligated to
allow Tenant to receive same. Tenant shall pay for such services and utilities either pursuant to
this subsection (c), another provision of this Sublease or, as more particularly described in
Section 40.01(a) hereof, as part of any “Additional Rent” or other charge payable under the
Existing Superior Lease for the Renewal Term that has been allocated to a particular service or
utility, it being the intention of the parties that Landlord shall not be obligated (without
reimbursement by Tenant) to incur any, or pay the, cost or expense of any such services and
utilities. If the mechanism for Tenant paying for any such services or utilities is not set forth
in another provision of this Sublease and is not part of the “Additional Rent” or other charge
payable under the Existing Superior Lease for the Renewal Term, then, at Landlord’s election,
Tenant shall pay for the service or utility either by directly paying the vendor or supplier
thereof for the service or utility in question, or by reimbursing Landlord from time to time,
within thirty (30) days after Landlord’s demand therefor, for the actual cost and expense incurred
or paid by Landlord in respect of the service or utility in question, and if the actual cost and
expense cannot be definitively determined by third-party invoices or otherwise, such actual cost
and expense shall be reasonably determined by Landlord.



ARTICLE 3

FAILURE TO GIVE POSSESSION




     3.01 Except as otherwise expressly provided in Sections 3.02 and 3.03 hereof, If for any
reason Landlord shall fail or be unable to deliver to Tenant possession of the
Premises or any other portion of the Building that is to be added to, or included with, the
premises demised under this Sublease, on any date specified in this Sublease for the commencement
of the term of this Sublease for the Premises or such other portion(s) of the Building or for such
delivery of possession of the Premises or of such other portion(s) of the Building (including by
reason of a holdover in the Premises or such other portions of the Building by the tenant or any
other occupant thereof, other than a tenant or other occupant that is Landlord or an Affiliate of
Landlord), Tenant shall have no right to rescind this Sublease or any amendment or modification of
this Sublease and shall have no claim against Landlord, and Landlord shall have no liability to
Tenant or to any other Tenant Party by reason thereof of such failure or inability, and the parties
hereto further agree that any such failure or inability shall in no way affect the obligations of
Tenant hereunder (except that the date specified in this Sublease for the commencement of the term
of this Sublease for the Premises or such other portion(s) of the Building or for such delivery of
possession of the Premises or of such other portion(s) of the Building shall be deemed postponed
until the date that the Premises or



27









 




of such other portion(s) of the Building, as the case may be,
shall be available for occupancy by Tenant or any Tenant Party, nor shall the same be construed in
any way to extend the term of this Sublease, nor shall Tenant be entitled to any damages therefor.
This Section 3.01 shall be an express provision to the contrary for purposes of Section 223-a of
the New York Real Property Law and any other law of like import now or hereafter in effect.




     3.02 (a) Notwithstanding anything to the contrary contained in this Sublease, subject to
extension due to Unavoidable Delay (which extension shall not exceed ninety (90) days in the
aggregate) and Tenant Delay, if the Commencement Date has not occurred on or before August 1, 2011,
then commencing on the [***], the Base Rent applicable to the 5th Floor Premises (to the
extent the 5th Floor Premises is a part of the Premises), the 6th Floor
Premises and the 7th Floor Premises shall [***]; provided, however, if the Commencement
Date has not occurred on or before September 30, 2011, then commencing on October 1, 2011 the
aforesaid [***] shall be [***].



          (b) Notwithstanding anything to the contrary contained in this Sublease, subject to extension
due to Unavoidable Delay (which extension shall not exceed ninety (90) days in the aggregate) and
Tenant Delay, if the Commencement Date has not occurred on or before February 1, 2012, then Tenant
shall have the right to terminate this Sublease by giving Landlord notice thereof on or before
February 10, 2012, TIME BEING OF THE ESSENCE with respect to the giving of such termination
notice. In the event that Tenant gives Landlord such termination notice, both parties hereto
shall be released and relieved of any and all further obligations hereunder or in connection
herewith, subject to Tenant’s restoration obligations as set forth herein and any indemnity
obligations of either party that survive the termination of this Sublease. In the event that this
Sublease terminates pursuant to this subsection (b), then, within thirty (30) days after the
giving of such termination notice, Tenant shall surrender to
Landlord those portions of the Premises that have theretofore been delivered to Tenant and
shall remove all Tenant’s Property from the Premises and the Building and repair all damage to the
Premises and Building caused by such removal, and, within ninety (90) days after the giving of
such termination notice, Tenant shall remove all of the Roof Installations, if any, from the
Building and repair all damage to the Building caused by such removal.




          (c) Notwithstanding anything to the contrary contained in this Sublease, subject to extension
due to Unavoidable Delay (which extension shall not exceed ninety (90) days in the aggregate), if
the Commencement Date has not occurred on or before August 1, 2012, then Landlord shall have the
right to terminate this Sublease by giving Tenant notice thereof on or before August 10, 2012,
TIME BEING OF THE ESSENCE with respect to the giving of such termination notice. In the event
that Landlord gives Tenant such termination notice, both parties hereto shall be






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




28









 









released and
relieved of any and all further obligations hereunder or in connection herewith, subject to
Tenant’s restoration obligations as set forth herein and any indemnity obligations of either party
that survive the termination of this Sublease. In the event that this Sublease terminates
pursuant to this subsection (c), then, within thirty (30) days after the giving of such
termination notice, Tenant shall surrender to Landlord those portions of the Premises that have
theretofore been delivered to Tenant and shall remove all Tenant’s Property from the Premises and
the Building and repair all damage to the Premises and Building caused by such removal, and,
within ninety (90) days after the giving of such termination notice, Tenant shall remove all of
the Roof Installations, if any, from the Building and repair all damage to the Building caused by
such removal.




          (d) Any dispute between Landlord and Tenant concerning any aspect of Landlord delivering
possession of any portion of the Premises to Tenant or the rights and remedies of Tenant set forth
in Section 3.02 may be resolved by either party submitting such dispute to arbitration as provided
in Article 34. Until such dispute is resolved either by mutual agreement of Landlord and Tenant or
pursuant to arbitration, the Premises shall remain as Landlord contends and, if Tenant prevails in
such dispute, there shall be a retroactive adjustment in Base Rent and Additional Rent and any
other retroactive adjustments as may be appropriate.




ARTICLE 4

CONDITION OF PREMISES




     4.01 (a) Tenant acknowledges that it has made a full and complete inspection of the Premises
to the extent that defects can be detected without causing damage to the Premises or without
intrusive inspection of the Premises and is fully familiar and satisfied with the condition
thereof, to the extent it could inspect the Premises. Except as otherwise provided in this
Sublease, Tenant shall accept possession and occupancy of the Premises on the Commencement Date in
their then “AS-IS” condition and state of repair, subject to any and all apparent defects therein
(except (i) latent or hidden defects
which were not reasonably identifiable by Tenant prior to delivery of the Premises of which
Tenant gives Landlord notice within one (1) year following the date upon which possession of any
such portion of the Premises was delivered to Tenant), (ii) the performance by Landlord of
Landlord’s Work (as defined in Section 4.02 below), (iii) the conditions described in Section 4.02,
and (iv) the Premises being in broom clean condition (except for the FF&E permitted to remain) and
free of tenancies and occupancies. NEITHER LANDLORD, NOR ANY OF LANDLORD’S AGENTS, HAS MADE OR
MAKES, ANY WARRANTY, REPRESENTATION, COVENANT OR PROMISE, EXPRESS OR IMPLIED, IN RESPECT OF THE
PREMISES OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE OR OTHERWISE AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT. Tenant’s failure,
refusal or inability to open for business



29









 




in the Premises, however, shall not be deemed evidence
that the Premises were not in good or satisfactory condition.




          (b) Except with respect to (i) Landlord’s Work, (ii) repair of latent or hidden defects of
which Tenant gives Landlord notice within one (1) year following the date upon which possession of
such portion of the Premises was delivered to Tenant, and (iii) providing the Tenant Allowance to
Tenant, Landlord shall have no obligation to perform any work, supply any materials or incur any
cost in preparing the Premises for Tenant’s occupancy. Any installations, materials and work
which may be undertaken by or for the account of Tenant to equip, decorate and furnish the
Premises for Tenant’s initial occupancy thereof, including all demolition (hereinafter referred to
as “Tenant’s Work”) shall be performed by Tenant, at Tenant’s sole cost and expense in accordance
with the terms, covenants and conditions set forth in this Sublease, including, without
limitation, Article 13. Landlord conceptually agrees, subject to any approval required under the
Existing Superior Lease, which approval Landlord shall in good faith request, that Tenant’s Work
may include (i) the installation of connecting staircases between floors 5 and 6, and between
floors 6 and 7, all within the Premises as part of Tenant’s Work, but in all events only to the
extent that any such staircases are located entirely within the Premises, and (ii) the branding,
decorations and signs described in Section 45.05, subject in all instances to the provisions of
this Sublease concerning the approval of plans and specifications, the performance of Alterations,
the installation of Signs, and Landlord’s approval, which approval shall not be unreasonably
withheld, conditioned or delayed. As part of, and to the extent Tenant does, Tenant’s Work,
Tenant and where applicable, Landlord, agrees to perform the work described in Sections 10.04,
10.05 and 10.06 below.




     4.02 (a) Landlord and Tenant agree that in connection with the delivery of the Premises to
Tenant, all of the existing leasehold improvements, furniture and installed equipment present
within the Premises on the Effective Date, (collectively, the “FF&E”), shall remain in the Premises
and be delivered to Tenant in its then “as is” condition; provided, however, Landlord, at its
expense, shall remove any existing furniture included in the FF&E which furniture is expressly
designated by Tenant for
removal either at the time Tenant submits the Tenant’s Plans to Landlord or set forth in an
earlier written notice. Tenant may give Landlord only one (1) such notice not later than 60 days
prior to the Commencement Date which designates which of the furniture items of the FF&E are to be
removed and such items shall be removed by Landlord within ninety (90) days after Landlord’s
receipt of such notice from Tenant. The FF&E delivered to Tenant shall not include portable
business equipment such as, without limitation, personal computers, copy machines, fax machines,
and telecommunications equipment but shall include all A/V equipment and security card readers.
Notwithstanding anything contained in this Sublease which may be to the contrary, the existing
cable infrastructure from the hub closets to systems furniture and offices on the floors of the
Premises shall remain in its then as-is condition, however, all items in the hub closets and the
backbone cabling from existing computer room to the hub closet shall be removed by Landlord at
Landlord’s cost prior to the Commencement Date. As used herein the term “Abandoned Furniture”
shall mean the furniture included as part



30









 




of the FF&E that Tenant does not designate for removal by
Landlord. For One Dollar ($1.00), Landlord hereby sells, transfers, assigns, conveys, sets over
and delivers to Tenant, as of the Commencement Date, all of Landlord’s right, title and interest in
and to the Abandoned Furniture, free and clear of all liens, encumbrances and rights of others, but
otherwise without any covenant, warranty or representation by, or recourse against, Landlord of any
kind whatsoever. Tenant agrees to pay the sales tax imposed by a Governmental Authority on the
conveyance of the Abandoned Furniture to Tenant, if any.




          (b) With respect to any FF&E that remains in the Premises, if requested by Tenant, and
provided this Sublease is in full force and effect and no Event of Default exists, Landlord shall,
at no cost to Landlord, reasonably cooperate with Tenant in connection with Tenant’s attempt to
purchase, at Tenant’s sole cost and expense, from Landlord’s provider, and at Landlord’s pricing
structure, additional parts and pieces to complement the FF&E that so remains. Nothing contained
in this Section or elsewhere in this Sublease shall be deemed to constitute a warranty or
representation by Landlord that Tenant will be able to so purchase any of such additional parts and
pieces, Tenant hereby acknowledging that Landlord has made no such representation or warranty, and
Tenant’s inability or failure to so purchase any of such additional parts and pieces shall not
relieve or release Tenant from any of its obligations or liabilities under this Sublease,
constitute an actual or constructive eviction, or impose any liability upon Landlord. Any
modifications, additions, expansion or reprogramming to the FF&E that remains in the Premises
required to meet Tenant’s needs with respect thereto shall be the responsibility of Tenant. Upon
request from Tenant, to the extent in Landlord’s possession or control, Landlord shall provide and
assign (to the extent assignable) to Tenant without representation or warranty by Landlord (other
than as to Landlord’s prior ownership of the FF&E), on or after the Effective Date, any information
(including manuals, service contracts and specifications) and warranties applicable to all FF&E and
all leasehold improvements in the Premises as of the Effective Date.



          (c) After the sooner of actual knowledge or Landlord’s receipt of written notice from Tenant
or from a Governmental Authority, Landlord shall promptly remedy
any code violations or conditions not caused by Tenant or any Tenant Party that would delay
or prohibit the issuance of a building permit for Tenant’s Work.




          (d) Except as expressly provided in subsections (a), (b) and (c) above, Landlord’s sole
obligation to prepare the Premises for Tenant’s occupancy thereof shall be the performance of the
following work (which work is herein referred to as the “Landlord’s Work”):



               (i) The delivery to Tenant of Form ACP-5 (or equivalent) applicable to the Premises;



               (ii) For any Partial Floor space leased by Tenant, the Demising Work, except that Demising
Work, the need for which results from Tenant’s exercise of



31









 




the Partial Surrender Option pursuant to
Section 42.04 hereof, shall be paid for by Tenant, as more particularly described in Section
42.04(g) hereof, it being understood and agreed that this subsection (ii) shall not apply to the
5th Floor Premises, except for the Expansion Space, if any, portion thereof; and




               (iii) For the 5th Floor Premises only (as same may be reduced pursuant to Section
42.03 hereof or eliminated pursuant to Section 42.01), but not the Expansion Space, if any, portion
thereof, the installation of Building Standard demising walls to separate the 5th Floor
Premises from the balance of the 5th floor of the Building, taped, with no obligation on
the part of Landlord to paint.



          (e) Landlord’s Work shall be performed by Landlord, at its sole cost and expense, except as
otherwise provided in subsection (d) above. Landlord shall from time to time allow Tenant
reasonable opportunity to inspect the progress of Landlord’s Work, and upon request shall supply
updates as to such progress and any anticipated date of delivery. Subject to the provisions of
subsection 4.02(f) below, for all purposes hereof, the Landlord’s Work shall be “substantially
complete” when the only items thereof remaining to be performed are minor or insubstantial details
of construction, mechanical adjustment or decoration, the non-completion of which does not
interfere with Tenant’s use of the Premises or with the performance of Tenant’s Work except to a de
minimis extent. If the substantial completion of Landlord’s Work shall be delayed principally due
to any act or omission of Tenant or any Tenant Party (any such act or omission being hereinafter
referred to as a “Tenant Delay”), and Landlord gives to Tenant notice of the Tenant Delay in
question, Landlord’s Work shall be deemed substantially complete on the date on which Landlord’s
Work would have been substantially complete but for the effect of all Tenant Delays. The date on
which Landlord’s Work is substantially completed or is deemed to have been substantially completed
is herein referred to as the “Substantial Completion Date,” and “Substantial Completion Notice”
shall mean a notice from Landlord to Tenant specifying the Substantial Completion Date, which
notice may be sent prior to the substantial completion (or deemed substantial completion) of the
Landlord’s Work. In
lieu of a separate notice to Tenant regarding a Tenant Delay (if applicable), the Substantial
Completion Notice may contain such notice regarding a Tenant Delay.



          (f) The Substantial Completion Date set forth in the Substantial Completion Notice shall be
conclusive and binding upon Tenant unless, solely by giving Landlord notice (the “Dispute Notice”)
within ten (10) Business Days after the Substantial Completion Date set forth in the Substantial
Completion Notice (TIME BEING OF THE ESSENCE), Tenant disputes the fact that on or before the
Substantial Completion Date set forth in the Substantial Completion Notice Landlord’s Work was
substantially completed (or should have been substantially completed), and sets forth, in
reasonable detail, the reasons for such dispute, including any disagreement Tenant may have with
respect to Landlord’s claim, if any, that a Tenant Delay may have had on the substantial completion
of Landlord’s Work. Pending the resolution of such dispute, the Substantial Completion Date shall
be deemed to be the date set forth in the Substantial Completion Notice, and Tenant’s obligations
under this Sublease shall



32









 




commence as if the Substantial Completion Notice was correct and the
Substantial Completion Date shall have occurred as set forth in the Substantial Completion Notice.
If Landlord and Tenant cannot resolve such dispute within ten (10) days after Landlord receives the
Dispute Notice from Tenant, such dispute shall be resolved by arbitration pursuant to Article 34 of
this Sublease. If the dispute (whether by agreement or arbitration) is resolved in Tenant’s favor,
then the Substantial Completion Date shall be as determined by such agreement or arbitration and
any payments based on the occurrence of the Substantial Completion Date made by Tenant under this
Sublease shall be adjusted accordingly. If such dispute shall be resolved by arbitration, and it
is determined that on or before the Substantial Completion Date set forth in the Substantial
Completion Notice Landlord’s Work was not substantially completed (or is not deemed to have been
substantially completed), then the arbitration shall also determine whether Landlord’s Work has
been so substantially completed (or should have been so substantially completed, as more
particularly described above) after the Substantial Completion Date set forth in the Substantial
Completion Notice. If the arbitration determines that Landlord’s Work has been so substantially
completed (or deemed to have been so substantially completed) after the Substantial Completion Date
set forth in the Substantial Completion Notice, then the date thereof so determined shall be the
Substantial Completion Date without any requirement that Tenant be given another Substantial
Completion Notice. If, however, the arbitration determines that Landlord’s Work has not yet been
so substantially completed (and is not yet deemed to have been so substantially completed), then
the arbitration shall also determine, in reasonable detail, the respects in which Landlord’s Work
has not been so substantially completed (or deemed not to have been so substantially completed),
which determination shall be conclusive and binding upon Landlord and Tenant, and, to cause the
Substantial Completion Date to occur, Landlord shall substantially complete those items of
Landlord’s Work that have not theretofore been substantially completed and shall be obligated to
give to Tenant another Substantial Completion Notice, which, when given, shall be subject to all of
the provisions of this subsection (f).




          (g) If Tenant does not give the Dispute Notice within the ten (10) Business Days period set
forth in subsection (f) above, but, within thirty (30) days after the Substantial Completion Date
set forth in the Substantial Completion Notice (TIME BEING OF THE ESSENCE), Tenant gives to
Landlord a list (a “Compliance List”), specifying any Landlord’s Work required to be completed by
Landlord to correct any deficiencies in connection with Landlord’s Work, Landlord agrees it will
complete all deficiencies required under the Compliance List which are the obligation of Landlord
within thirty (30) days after Landlord’s receipt of the Compliance List or such longer time as may
be reasonably required because of the nature of the deficiency, provided Landlord must have
undertaken procedures to correct the deficiency within such thirty (30) day period and thereafter
diligently pursues such efforts to completion. The fact that Landlord still has to complete work
set forth on the Compliance List shall not delay or postpone the Commencement Date or the
Substantial Completion Date. The taking of possession of the Premises by Tenant shall be deemed an
acceptance of the Premises and substantial completion by Landlord of the Landlord’s Work, subject
to items on the Compliance List. If Landlord has failed to complete all deficiencies



33









 




required under the Compliance List which are the obligation of Landlord to complete within said thirty (30)
day period and Landlord is not diligently pursuing the completion of all such deficiencies, then
Tenant shall have the right upon five (5) Business Days prior written notice to Landlord to enter
into the Premises to complete any such deficiencies at the commercially reasonable cost and expense
of Landlord. In such event, upon completion of such deficiencies by Tenant, Tenant shall provide
Landlord with copies of paid invoices as evidence of the cost incurred by Tenant and Landlord
agrees to reimburse Tenant for such costs within thirty (30) days after Landlord’s receipt of such
paid invoices from Tenant (such costs being herein referred to as the “Compliance List
Reimbursement Amount” ). If Landlord does not pay the Compliance List Reimbursement Amount to
Tenant in accordance with, and subject to, the terms and conditions of this Sublease and such
failure continues for more than ninety (90) days after Landlord’s receipt of Tenant’s demand
therefor, accompanied by such invoices, then provided Landlord did not or does not notify Tenant
prior to the expiration of such ninety (90) day period that it disputes that such payment (or any
portion thereof) is due Tenant in accordance with, and subject to, the provisions of this Sublease,
the amount of the Compliance List Reimbursement Amount that Landlord is not disputing, may be
deducted from the next installment(s) of Base Rent and Additional Rent payable hereunder until paid
in full, and the amount of the Compliance List Reimbursement Amount that Landlord is disputing
shall be resolved by arbitration in accordance with Article 34 hereof. Article 49 of this Sublease
shall not apply to or limit the Compliance List and Tenant’s rights under this subsection (g).




     4.03 (a) Landlord agrees to pay to Tenant as an allowance towards Tenant’s Work, general
construction costs, including cabling and the costs of furniture, fixtures and equipment, in
accordance with, and subject to, the provisions of this Section 4.03,
the sum of (i) $[***] (the “Base Tenant Allowance” ), plus (ii) $[***] (the “Additional
5th Floor Tenant Allowance” ), plus (iii) $[***] (“Supplemental Tenant Allowance” ),
which Base Tenant Allowance and Additional 5th Floor Tenant Allowance are subject to
adjustment as provided in this Sublease if Tenant elects to expand or contract the Premises in
accordance with the provisions of this Sublease (the Base Tenant Allowance, the Additional
5th Floor Tenant Allowance and the Supplemental Tenant Allowance being herein
collectively referred to as the “Tenant Allowance”), provided that at the time Landlord is
otherwise obligated to make such payment of the Tenant Allowance or any portion thereof no Event of
Default (as hereinafter defined) then exists. Notwithstanding the foregoing, if at the time
Landlord would otherwise be obligated to make such payment, but for the fact that at such time an
Event of Default exists under this Sublease, Landlord shall become obligated to make such payment
when such Event of Default is cured, provided that this Sublease is then in full force and effect
and the other conditions to Landlord’s obligation to make such payment remain satisfied.
Notwithstanding anything contained in this Sublease to the contrary, no more than fifteen (15%)
percent of (x) the Base Tenant Allowance, (y) the Additional 5th Floor





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




34









 









Tenant Allowance,
or (z) $150,000 of the Supplemental Tenant Allowance may be used for architectural, engineering,
space planning, expediter and inspection fees, fees for all municipal and other permits, licenses
and approvals, moving expenses, telephones and other so-called “soft costs”, including costs that
may have been incurred by Tenant prior to the Effective Date (all of the foregoing being herein
referred to as the “Soft Costs”).




          (b)
(x) Landlord hereby agrees to pay $[***] of the Supplemental Tenant Allowance to Tenant
within thirty (30) days after the date on which this Sublease is released from escrow pursuant to
that certain escrow agreement of even date herewith relating to this Sublease, and (y) Subject to
the provisions of this Section, Landlord hereby agrees to make periodic payments of portions of
the balance of the Tenant Allowance to Tenant as Tenant’s Work progresses in amounts equal to the
costs eligible to be paid from the Tenant Allowance that have been completed to such date, that
(i) have not previously been reimbursed by Landlord and (ii) meet the requirements set forth below
in subsections (b)(i)(A), (B) and (C) (the “Payment Conditions”):




               (i) Tenant shall submit to Landlord from time to time, but not more often than once per month
and not for less than [***] Dollars ($[***]) in any single request, except for the final request,
requisitions (each such requisition being herein
referred to as a “Tenant’s Request”) for such periodic payment on AIA Form G702, together with
the following:



                    (A) copies of paid receipted invoices from the contractors and subcontractors who performed
the portions of Tenant’s Work and other costs that are eligible for reimbursement from the Tenant
Allowance, and from the materialmen and suppliers who supplied the materials and supplies referred
to in such Tenant’s Request;



                    (B) a certificate from Tenant’s architect or general contractor or construction manager that
in such person’s professional judgment such portion of the Tenant’s Work has been substantially
completed materially in accordance with the Tenant’s Plans (as such term is defined in Section
13.03 below) and revisions thereto theretofore approved by Landlord; and



                    (C) lien waivers from each contractor, subcontractor, materialman and supplier to the extent
of the amount paid to such parties as provided in the preceding Tenant’s Request;



               (ii) Landlord shall not be obligated to pay more than ninety percent (90%) of any Tenant’s
Request until all Tenant’s Work is substantially complete, at which time Landlord shall pay the
retainage.





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




35









 










               (iii) A certificate from Tenant that, to Tenant’s knowledge, such portion of the Tenant’s Work
has been performed in compliance with the applicable provisions of this Sublease; and



               (iv) With respect to the final Tenant’s Request, Tenant shall have delivered to Landlord
as-built drawings and copies of balancing reports. If some of the as-built drawings are not
available or balancing reports are not yet complete, Tenant shall deliver them when completed.
Tenant shall use reasonable diligence to deliver all such reports to Landlord within thirty (30)
days thereafter.



          (c) Landlord shall have the right from time to time to enter the Premises for the purpose of
verifying that such portion of Tenant’s Work covered by Tenant’s Request has been performed
materially in accordance with the Tenant’s Plans and revisions thereto theretofore approved by
Landlord or otherwise to inspect Tenant’s Work, either by Landlord’s designated project manager or
by Landlord’s architect or by an independent architect retained by Landlord at Landlord’s sole
cost and expense. Such inspections shall be performed during business hours on Business Days,
upon reasonable prior notice from Landlord to Tenant, which notice may be oral and shall be
conducted in the presence of a representative of Tenant. Landlord shall use commercially
reasonable efforts not to interfere or delay Tenant’s Work during any such inspections. Provided
the Payment Conditions have been satisfied, within thirty (30) days after Landlord’s receipt of
Tenant’s Request together with the accompanying documentation as set forth above, Landlord shall
pay to Tenant the amounts shown on such Tenant’s Request.




          (d) Following the substantial completion of Tenant’s Work, if any Tenant Allowance remains
unfunded to Tenant on [***], then, provided that Tenant is not in monetary default under this
Sublease after the giving of notice, the remaining portion of the Tenant Allowance shall be
credited to Tenant against the Base Rent and Additional Rent next coming due under this Sublease
following such [***]. Under no circumstance shall the payments and credits set forth in this
Section 4.03 exceed the amount of the Tenant Allowance. Any disputes under this Section 4.03
shall be resolved by arbitration pursuant to Article 34 thereof.




          (e) If Landlord does not pay any installment of the Tenant Allowance to Tenant when due in
accordance with, and subject to, the terms and conditions of this Sublease and such failure
continues for more than five (5) Business Days after notice from Tenant that same is overdue, then
provided Landlord did not or does not notify Tenant prior to the expiration of said five (5)
Business Day period that it disputes that such payment is due Tenant in accordance with, and
subject to, the provisions of this Sublease, the amount of the Tenant Allowance that is so
properly due but not paid, plus interest on the balance of such amount from time to time
outstanding, from the date such amount was due through the date next preceding the date of which
such






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




36









 









amount is fully deducted (as hereinafter provided), at an annual interest rate equal to the
rate described in clause (ii) of subsection 30.01(b) below, shall be deducted from the next
installment(s) of Base Rent and Additional Rent payable hereunder until paid in full.




ARTICLE 5

ADJUSTMENTS OF RENT




     5.01 For the purpose of this Sublease:



          (a) “Taxes” shall mean Real Estate Taxes as defined in the Existing Superior Lease. If any
assessment is paid by Landlord in installments, then only the installments paid by Landlord in a
given Tax Year, together with interest thereon if Landlord is obligated to pay interest to a
Governmental Authority, shall be included in “Taxes” for such Tax Year.




          (b) “Tax Year” shall mean the fiscal year for which Taxes are levied by the applicable
Governmental Authority.




          (c) “First Tax Year” shall mean the Tax Year immediately succeeding the Base Tax Year.




          (d) “Tax Payment” shall mean Tenant’s Proportionate Share multiplied by the amount, if any,
by which the Taxes for the subject Tax Year payable by Landlord exceed the Base Taxes, but in no
event shall the Tax Payment be less than zero.




          (e) “Tenant’s Projected Tax Payment” shall mean for the First Tax Year, a [***]% increase to
the Base Taxes, multiplied by Tenant’s Proportionate Share, and for the immediately following Tax
Year and each and every Tax Year thereafter, a [***]% increase to the Tax Payment for the Tax Year
immediately preceding the subject Tax Year, which Tenant’s Projected Tax Payment shall be applied
to the Tax Payment for the subject Tax Year, as more particularly provided in subsection 5.02(b)
below.




          (f) “Reduction Benefits” shall mean a partial or full tax exemption in connection with
Existing Lessor’s application with the New York City Department of Finance pursuant to the ICIP
Program, as more fully set forth in the Existing Superior Lease, or any other real estate tax
exemption, abatement, reduction or benefit having the effect of reducing or deferring Taxes or
reducing the assessed value of the Building or the tax rate (other than proceedings, such as tax
certiorari proceedings, pursuant to which Landlord or the Existing Lessor disputes or contests the
amount of Taxes or the






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




37









 









assessed valuation of the Building or the Land). “Taxes” shall be
determined without taking into account any Reduction Benefits (i.e., “Taxes” shall be determined
as if no Reduction Benefits existed).




     5.02 (a) Commencing with the First Tax Year, and continuing thereafter throughout the balance
of the Term, Tenant shall pay, as Additional Rent, the Tax Payment for such Tax Year and for each
and every Tax Year thereafter that occurs (in whole or in part) during the Term, as more
particularly provided in subsection 5.03(a) below. The Tax Payment shall be prorated, if
necessary, to correspond with the portion of the Tax Year occurring during the Term.



          (b) If Landlord escrows for Taxes with the holder of a superior lease or superior mortgage,
then on account of Tenant’s obligations to pay the Tax Payment,
commencing on [***], and
continuing thereafter for the period that Landlord escrows for Taxes, Tenant shall pay, in equal
monthly installments, the Tenant’s Projected Tax Payment for the First Tax Year and for each and
every Tax Year thereafter that occurs (in whole or in part) during the Term. Tenant’s Projected
Tax Payment(s) shall be set forth in a statement furnished to Tenant, which statement shall be
accompanied by a copy of the tax bill or notice of assessment for the Tax Year immediately
preceding the subject Tax Year and shall set forth Landlord’s calculation of the Tenant’s
Projected
Tax Payment for the subject Tax Year. As of the first (1st) day of each and every
Tax Year occurring during the Term, the Tenant’s Projected Tax Payment shall be adjusted.
However, if Tenant has not been furnished with the statement described above prior to the first
(1st) day of the Tax Year in question, then Tenant shall continue to pay the Tenant’s
Projected Tax Payment for the immediately preceding Tax Year until such time as Tenant is
furnished with a new statement. Thereafter, commencing on the first (1st) day of the
first calendar month immediately succeeding the date Tenant is furnished with the new statement,
the Tenant’s Projected Tax Payment shall be adjusted and Tenant shall pay same in accordance with
such statement until it is again furnished with a new statement. In addition, on such first
(1st) day of said first calendar month, Tenant shall pay in a lump sum, retroactive to
the first (1st) day of the Tax Year, the difference between (i) the Tenant’s Projected
Tax Payment that would have been payable had Tenant been furnished with a statement prior to the
first (1st) day of the Tax Year, and (ii) the amount of Tenant’s Projected Tax Payments
actually paid for such period, all as set forth in the statement.




     5.03 (a) After Landlord receives the tax bill or notice of assessment for the subject Tax
Year, Tenant shall be furnished with a statement, which statement shall be accompanied by the tax
bill or notice of assessment for the subject Tax Year and shall set forth the Tax Payment for the
subject Tax Year; the amount of Tenant’s Projected Tax Payments paid by Tenant for the subject Tax
Year (if applicable); the amount of any overpayment or underpayment of the Tax Payment
(i.e., the difference between the Tax Payment and the amount of Tenant’s Projected Tax
Payment paid by Tenant, if





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




38









 









applicable); and Landlord’s calculation of the Taxes due or, if
applicable, Tenant’s Projected Tax Payment for the next Tax Year, which Tenant’s Projected Tax
Payment shall be paid in accordance with Section 5.02 above. If such statement indicates an
underpayment of the Tax Payment, Tenant shall pay to Landlord the amount of the underpayment within
thirty (30) days after Tenant is furnished with such statement. If such statement indicates an
overpayment of the Tax Payment, and Tenant is not then in monetary default under this Sublease
after the giving of notice, then Landlord shall refund promptly the overpayment to Tenant, or, at
Tenant’s election, apply the overpayment to the next installment(s) of the rents due under this
Sublease. If Tenant’s Projected Tax Payment are not due in monthly installments pursuant to
Section 5.02(b), then Tenant shall not be required to pay the Tax Payment to Landlord more than
thirty (30) days prior to the date that Taxes are payable by Landlord.




          (b) Each statement, notice and bill given or furnished by, or on behalf of, Landlord under
this Article is hereinafter called a “Tax Statement.” If the Taxes for the subject Tax Year are
increased or decreased after a Tax Statement therefor has been given to Tenant, or if the Base
Taxes are increased or decreased after Tax Statement for a Tax Year has been given to Tenant,
Landlord shall give Tenant a revised Tax Statement for the subject Tax Year and the Tax Payment
for the Tax Year in question shall be adjusted accordingly. If the revised Tax Statement is given
to Tenant after the commencement of the subject Tax Year and after Tenant has made the applicable
Tax Payment, Tenant shall, within thirty (30) days after the date the revised Tax Statement is
given to Tenant, pay to Landlord an
amount equal to the difference between the Tax Payment indicated in the revised Tax Statement
for the subject Tax Year and the Tax Payment theretofore paid by Tenant for the subject Tax Year
(if the Tax Payment indicated in the revised Tax Statement for the subject Tax Year is greater
than the Tax Payment indicated in the original Tax Statement (and any prior revised Tax
Statements) for the subject Tax Year), or, if Tenant is not then in monetary default under this
Sublease after the giving of notice, Landlord shall promptly refund to Tenant the difference
between the Tax Payment indicated in the original Tax Statement (and any prior revised Tax
Statements) for the subject Tax Year and the Tax Payment indicated in the revised Tax Statement
for the subject Tax Year (if the Tax Payment indicated in the revised Tax Statement for the
subject Tax Year is less than the Tax Payment indicated in the original Tax Statement (and any
prior revised Tax Statements) for the subject Tax Year) or, at Tenant’s option, credit any amounts
owed to Tenant against the next payments of rent due under this Sublease. Landlord’s obligation
to refund such overpayment shall survive the expiration or earlier termination of this Sublease.
Every Tax Statement (including revised Tax Statements) given to Tenant shall be conclusive and
binding upon Tenant, unless Tenant shall notify Landlord within one (1) year after the Tax
Statement in question is given to Tenant that Tenant disputes the correctness of the computations
made thereon, specifying the particular respects in which such computations are claimed to be
incorrect. Pending the resolution of such dispute, Tenant shall, within thirty (30) days after it
is given such disputed Tax Statement, pay any Additional Rent due in accordance therewith, but
such payment shall be without prejudice to Tenant’s position. If the dispute shall be resolved in
Tenant’s favor, and Tenant is not then in monetary default under this




39









 







Sublease, Landlord shall,
within thirty (30) days after receiving Tenant’s demand therefor, pay Tenant the amount of
Tenant’s overpayment of the Additional Rent, if any, resulting from compliance with the disputed
Tax Statement or, at Tenant’s option, credit any amounts owed to Tenant against the next payments
of rent due under this Sublease. Notwithstanding the foregoing, if at the time Landlord would
otherwise be obligated to make such payment, but for the fact that at such time Tenant is in
monetary default under this Sublease beyond any applicable notice and cure period, Landlord shall
become obligated to make such payment when such monetary default is cured, provided that this
Sublease is then in full force and effect and the other conditions to Landlord’s obligation to
make such payment remain satisfied.




     5.04 (a) Notwithstanding the fact that the Tax Payment is measured by an increase in Taxes,
such increase is Additional Rent and shall be paid by Tenant as herein provided 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. In addition to
the foregoing, if the Taxes for any Tax Year are payable to the taxing authority on an installment
basis and Landlord pays Taxes due on an installment basis, Landlord may serve such demands upon,
and the Tax Payment with respect to such Tax Year shall be payable by, Tenant on a corresponding
installment basis in accordance with the terms of Section 5.03(a).



          (b) In no event whatsoever related to the Tax Payment shall the Base Rent be reduced below
the Base Rent amounts set forth in subsection 1.04(a).




     5.05 Only Landlord shall be eligible to contest the Taxes or the assessed valuation of the
Building or the Land, or to institute tax reduction or other proceedings to reduce the Taxes or
such assessed valuations, or to negotiate for a reduction in such assessed valuations prior to the
issuance of a tax bill or notice of assessment (all of the foregoing being collectively referred to
as the “Tax Reduction Actions”). If Landlord takes any Tax Reduction Action, then Tenant shall pay
to Landlord, within thirty (30) days after Landlord’s demand therefor, Tenant’s Proportionate Share
of the actual and reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees
and disbursements) incurred or paid by Landlord in taking the Tax Reduction Action (such costs and
expenses being herein referred to as the “Tax Reduction Expenses”) but only to the extent of
savings realized by Tenant. If Landlord receives a refund of Taxes for any Tax Year in respect of
which Tenant has made a Tax Payment, and Tenant is not then in monetary default under this Sublease
beyond any applicable notice and cure period, Landlord shall reimburse to Tenant (or at Tenant’s
option, credit Tenant against the next payments of rent due under this Sublease) Tenant’s
Proportionate Share of such refund, less Tenant’s Proportionate Share of the Tax Reduction Expenses
attributable to such refund, except to the extent Tenant has already paid to Landlord Tenant’s
Proportionate Share of the Tax Reduction Expenses attributable to such refund. Notwithstanding the
foregoing, if at the time Landlord would otherwise be obligated to make such reimbursement, but for
the fact that at such time Tenant is in monetary default under this Sublease, Landlord shall become
obligated to make such reimbursement when such monetary default is cured, provided that this
Sublease is



40









 




then in full force and effect and the other conditions to Landlord’s obligation to make
such reimbursement remain satisfied. Landlord’s obligations to refund any sums pursuant to this
Section 5.05 shall survive the expiration or earlier termination of this Sublease.




     5.06 For the purposes of this Sublease and determining “Operating Expenses”:



          (a) “Operating Expenses” shall mean expenses incurred or paid by Landlord in connection with
the operation, management, maintenance and repair of the Real Property and otherwise to observe,
perform and comply with all of its obligations under this Sublease, including:




               (i) Salaries, wages, medical, surgical and general welfare benefits, pension payments and
other fringe benefits of employees of Landlord or Landlord’s managing agent engaged in the
operation and maintenance of the Building (the salaries and other benefits aforesaid of such
employees servicing the Building shall be comparable to those of employees servicing buildings
similar to the Building, located in the Borough of Queens, and if such employees shall service
other buildings, only the share of the salaries and benefits representing compensation for work in
the Building shall be included in Operating Expenses);



               (ii) Payroll taxes, worker’s compensation, uniforms and dry cleaning for the employees
referred to in subdivision (i);



               (iii) The cost of all charges for steam, heat, ventilation, air conditioning and water
(including sewer rental) furnished to the Building and/or used in the operation of all of the
service facilities of the Building and the cost of all charges for electricity furnished to the
public and service areas of the Building and/or used in the operation of all of the service
facilities of the Building including any taxes on any of such utilities;



               (iv) All charges and premiums for insurance in respect of the Real Property and/or Landlord’s
interest therein, including liability, property damage and loss rent insurance, as well as any
escalations in insurance costs due from Landlord to the Existing Lessor pursuant to the terms of
the Existing Superior Lease. If Landlord maintains a blanket or global insurance plan covering
other property in addition to the Real Property, Landlord shall be permitted to make fair and
reasonable allocations of the cost of such blanket or global insurance plan to the Real Property,
for inclusion within Operating Expenses;



               (v) The cost of all building and cleaning supplies for the Building and the charges for
telephone for the Building’s management office;



               (vi) The cost of all charges for management, security, cleaning and service contracts for the
Building, provided, however, that any such management, security, cleaning or other services for the
purposes of inclusion in “Operating Expenses,” shall not be in excess of the competitive charges
for the same service then



41









 




being paid by owners or managing agents of similarly situated comparable
buildings in the Borough of Queens (and if no managing agent is employed by Landlord or if the
managing agent that is employed by Landlord or an affiliate of the managing agent is the leasing
agent for the Building, there shall be included in Operating Expenses a sum equal to a management
fee that would be charged by a reputable, third-party and nationally or regionally recognized
management company (assuming said company or an affiliate thereof is not the leasing agent for the
Building), to be determined based upon what such types of companies are then charging to manage
buildings comparable in size, age and upgrade to the Building in the same area in the Borough of
Queens as the Building, but not in excess of 2.5% of all rents collected from tenants or other
occupants of the Building);




               (vii) The cost of rentals of capital equipment which results in savings or reductions in
Operating Expenses but only to the extent of the savings realized in such year;



               (viii) The cost incurred in connection with the maintenance and repair of the Building; and



               (ix) Expenditures for capital improvements (1) which are required by any Legal Requirement
becoming effective after the Commencement Date, or (2)
which are intended, in good faith, to result in a reduction in the amount of Operating
Expenses in excess of the cost of such capital improvement. The cost of such capital improvements
shall be included in Operating Expenses for the Expense Year (as defined in subsection (f) below)
in which the costs are incurred and subsequent Expense Years, amortized on a straight line basis,
over the longer of ten (10) years or the unexpired balance of the initial Term of this Sublease;
and



               (x) Any charges of the same characterization as Operating Expenses hereunder, without
duplication, which are payable by Landlord to the Existing Lessor under the Existing Superior
Lease, to the extent not applicable to Landlord’s personal use as an occupant of the Building.



          (b) Landlord may use related or affiliated entities to provide services (including management
services) or furnish materials for the Building, provided that the rates or fees charged by such
entities are competitive with those charged by unrelated or unaffiliated entities in the same area
in the Borough of Queens as the Building, for the same services or materials;




          (c) Provision in this Sublease for a cost or expense to be Landlord’s cost or expense (or
sole cost or expense), or at Landlord’s cost or expense (or sole cost or expense) shall not affect
the inclusion thereof in “Operating Expenses” to the extent the same would otherwise constitute
Operating Expenses under this Section 5.06;




          (d) “Operating Expenses” shall not include:





42









 








               (i) Taxes;



               (ii) Leasing and brokerage commissions in connection with leasing or attempting to lease in
the Building;



               (iii) Salaries, fringe benefits and other compensation of personnel above the grade of
building manager;



               (iv) The cost of any electricity furnished to the Premises or any other space leased, leasable
or occupied (including space occupied by Landlord or a Landlord Party) in the Building;



               (v) Except as provided in subsection 5.06(a)(ix), the cost of any repair or replacement,
alteration, addition or change which is a capital expenditure under GAAP consistently applied;



               (vi) The cost of items, including overtime HVAC, which are reimbursable to Landlord or for
which Landlord is or is entitled to be compensated by any other party including this Tenant (except
pursuant to provisions similar in intent to Sections 5.06 through 5.11 hereof for the payment of a
share of the costs of operating
the Building) or which are provided to Landlord as tenant under the Existing Superior Lease;



               (vii) The cost of repairs or replacements incurred by reason of fire or other casualty,
condemnation or the negligence of Landlord;



               (viii) Advertising and promotional expenditures and any other expense incurred in connection
with the renting of space;



               (ix) Legal and other professional or consulting fees incurred in disputes with the Existing
Lessor or tenants and legal, arbitration and auditing fees other than legal, arbitration and
auditing fees reasonably incurred (A) in connection with the maintenance and operation of the
Building or (B) in connection with the preparation of statements required pursuant to rental
escalation provisions;



               (x) Depreciation of the Building, equipment or other improvements;



               (xi) Mortgage debt service (including interest and amortization), rent payable under the
Existing Superior Lease and other ground rents (except for any amounts thereof that would be
included in Operating Expenses or Taxes pursuant to this Article 5), and any recording or mortgage
tax or expense in connection therewith;



               (xii) The cost to prepare a space in the Building for occupancy by a tenant (including
Landlord or a Landlord Party), including painting and decorating, or any cash or other
consideration paid by Landlord on account of, with respect to, or in lieu of such preparation;



43









 





               (xiii) Lease buy-outs, takeover costs and related expenses;



               (xiv) General and administrative overhead of Landlord not specifically allocated to the
operation, maintenance or repair of the Real Property;



               (xv) Costs incurred with respect to a sale of all or any portion of the Building or any
interest therein or in connection with the purchase or sale of any air or development rights;



               (xvi) Any interest, fine, penalty or other late charges payable by Landlord that results from
Landlord’s failure to perform any of its obligations under this Sublease;



               (xvii) Except as otherwise expressly provided in this Article 5 to the contrary, franchise,
income, transfer, gains, inheritance, personal property or other tax imposed on Landlord;



               (xviii) The cost of the acquisition, removal or installation of any art;



               (xix) The cost of performing work or furnishing services at Landlord’s expense to or for any
tenant other than Tenant, or for the benefit of Landlord in any premises within the Building
retained by Landlord for its own use, to the extent such work or service is in excess of any work
or service Landlord is obligated to provide to Tenant or generally to other tenants in the Building
at Landlord’s expense;



               (xx) Financing costs in connection with any financing or refinancing of the Building,
including, without limitation, points, commitment fees, broker’s fees, and legal fees and expenses;



               (xxi) The cost of any items reimbursable by insurance, by warranty, by award in condemnation,
or by other tenants of the Building;



               (xxii) Any cost stated in Operating Expenses representing an amount paid to a Landlord-related
corporation or entity which is in excess of the amount which would be paid in the absence of such
relationship;



               (xxiii) The cost of correcting defects in the construction of the Building or in the Building
equipment, except the conditions resulting from ordinary wear and tear shall not be deemed defects
for the purpose of this category;



               (xxiv) The cost of any repair made by Landlord to remedy damage caused by, or resulting from,
the negligence of willful act or omission of Landlord, its agents, servants, contractors or
employees or of other tenants in the Building or payments to any person seeking recovery for
negligence or other torts committed by Landlord or its agents;



44









 





               (xxv) Any insurance premium to the extent that Landlord is entitled to be reimbursed therefor
by Tenant pursuant to this Sublease or by any other occupant of the Building pursuant to its lease
(except pursuant to provisions similar to Sections 5.06 through 5.11 hereof or other escalation
provisions designed to reimburse Landlord for increases in the cost of operating the Building);



               (xxvi) Brokerage commissions, legal, space planner’s, architect’s, and other professional fees
and expenses incurred in procuring tenants for the Building and/or preparing, negotiating and
executing leases, amendments, terminations and extensions or in resolving any disputes with tenants
and other occupants or enforcing lease or lease related obligations, including, without limitation,
court costs;



               (xxvii) The costs incurred by Landlord in connection with the transfer or disposition of the
Land or Building or any ground, underlying or overriding lease, including, without limitation,
transfer, deed and gains tax, whether or not such transaction is consummated;



               (xxviii) The costs incurred to correct any misrepresentation by Landlord to Tenant or to any
other tenant of the Building;



               (xxix) Bad debt loss, rent loss or reserves for either;



               (xxx) The damages payable by Landlord for its failure to perform any of its covenants,
agreements, representations, warranties, guarantees or indemnities made under this Sublease or any
other lease for space in the Building (other than the cost to perform such covenants, agreements,
representations, warranties, guarantees or indemnities, to the extent such cost would otherwise be
included in “Operating Expenses” pursuant to another provision of this Sublease), except to the
extent such failure directly results from the act or omission or Tenant, in which event such
damages shall be included in “Operating Expenses”;



               (xxxi) Any costs, fines, interest or penalties payable by Landlord due to violations by
Landlord of any applicable Requirement with which Landlord is obligated to comply pursuant to this
Sublease, except to the extent such failure directly results from the act or omission or Tenant or
any third-party;



               (xxxii) The costs incurred in the removal, abatement or other treatment of Hazardous Materials
present in the Building or on the Land to the extent such Hazardous Materials existed on the date
hereof and were required to be remediated or removed pursuant to applicable Requirements in effect
on the date of this Sublease;



               (xxxiii) All costs associated with Landlord’s political, civic or charitable contributions;



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



45









 





               (xxxv) Expenses for any item or service which Tenant pays directly to a third party or
separately reimburses Landlord;



               (xxxvi) A property management fee in excess of, or in addition to, the property management fee
provided for in Section 5.06(a)(vi);



               (xxxvii) Salaries of (i) employees above the grade of Building manager and (ii) that portion
(which allocation shall be made by Landlord in a commercially reasonable manner) of employee
expenses for employees whose time is not spent directly and solely in the operation of the Real
Property;



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



               (xxxix) Expenses related to retail stores and any specialty service (except that expenses
related to the Building Amenities may be included, to the extent not recovered through direct
charges to customer, provided that in no event shall a charge (or an imputed charge) for use of
space in the Building occupied by Building Amenities be included);



               (xl) Reserves;



               (xli) Any and all costs incurred by Landlord to comply with any Requirement in effect on the
Commencement Date;



               (xlii) The salaries of any employees engaged to operate the conference center, cafeteria,
fitness center or the grab and go food service; and



               (xliii) Any increase in costs incurred by Landlord directly related to an upgrade in the
Building’s LEED certification in effect as of the Commencement Date, except to the extent any such
increase was required by Requirements or was the result of repairs or alterations required by
Requirements.



          (e) If during all or part of the Base Expense Year (as hereinafter defined) or any other
Expense Year, Landlord shall not furnish any particular item(s) of work or service (the cost of
which would otherwise constitute an Operating Expense hereunder) to office portions of the
Building due to the fact that (i) less than 95% of the RSF of the Building is occupied or leased,
(ii) such item of work or service is not required or desired by the tenant of such portion, or
(iii) such tenant is itself obtaining and providing such item of work or service, then, for the
purposes of computing Operating Expenses, the amount for such item and for such period shall be
deemed to be increased by an amount equal to the additional costs and expenses which would
reasonably have been incurred during such period by Landlord if it had at its own expense
furnished such item of work or services to such portion of the Building or to such tenant. In
addition, in the event any portion of the Building is covered by a warranty or service agreement
at any time during the Base Expense Year and to the extent the Building is not covered by such
warranty or service agreement during a




46









 







subsequent Expense Year, the Base Operating Expenses shall
be deemed increased by such amount as Landlord would have incurred during the Base Expense Year
with respect to the items or matters covered by the subject warranty, had such warranty or service
agreement not been in effect at the time during the Base Expense Year;




          (f) “Expense Year” shall mean each calendar year occurring in whole or in part during the
Term hereof after the Base Expense Year;




          (g) “Expense Payment” shall mean Tenant’s Proportionate Share multiplied by the amount, if
any, by which the Operating Expenses for the subject Expense Year exceeds the Base Expenses, but
in no event shall the Expense Payment be less than zero; and




          (h) “Tenant’s Projected Expense Payment” shall mean, for each Expense Year after the Base
Expense Year, Landlord’s reasonable good-faith estimate of the Expense Payment for the Expense
Year in question, based upon Landlord’s reasonable good-faith estimate of the Operating Expenses
for the Expense Year in question (and, for the first Expense Year after the Base Expense Year,
based upon Landlord’s reasonable good-faith estimate of the Base Expenses), which Tenant’s
Projected Expense Payment may be
adjusted one time by Landlord during the Expense Year in question based on Landlord’s good
faith determination that the total actual Operating Expenses for the Expense Year in question
(and, for the first Expense Year after the Base Expense Year, based upon Landlord’s good faith
determination that the Base Expenses) will be different by more than 5% than the amount originally
estimated by Landlord, provided, however, that in no event shall Tenant’s Projected Expense
Payment for the first Expense Year after the Base Expense Year, increase by more than 5% above the
Operating Expenses for the Base Expense Year, multiplied by Tenant’s Proportionate Share, and in
no event shall Tenant’s Projected Expense Payment for each and every Expense Year thereafter,
increase by more than 5% above the Expense Payment for the Expense Year immediately preceding the
subject Expense Year, unless Landlord can demonstrate that the actual Expense Payments for the
Expense Years in question will exceed such 105% amount(s) and provided further that in no event
shall Landlord adjust Tenant’s Projected Expense Payment more than one (1) time in any 12-month
period. Tenant’s Projected Expense Payment shall be applied to the Expense Payment for the
subject Expense Year, as more particularly provided in subsection 5.09 below.




     5.07 After the expiration of the Base Expense Year, Landlord shall furnish Tenant a statement
setting forth in reasonable detail the aggregate amount of the Operating Expenses actually incurred
by Landlord for the Base Expense Year. After the expiration of each Expense Year after the Base
Expense Year, Landlord shall furnish Tenant a statement setting forth in reasonable detail the
aggregate amount of the Operating Expenses actually incurred by Landlord for such Expense Year, the
correct amount of the Expense Payment for such Expense Year and the amount of Tenant’s payments on
account thereof. Each statement furnished under this Section 5.07 is hereinafter referred to as an
“Expense Statement.” Within one (1) year after its receipt



47









 




of an Expense Statement, Tenant shall
have the right to request copies of Landlord’s records relating to any item or items of Operating
Expenses included on the Expense Statement for such Expense Year. In such event, within twenty
(20) days after Landlord’s receipt of such request from Tenant, Landlord shall furnish to Tenant or
its representative in New York City such documentation reasonably requested by Tenant or its
representative. Tenant agrees that if it is using a representative, such person shall not be
engaged on a contingent fee basis.




     5.08 Commencing with the first Expense Year after the Base Expense Year, and continuing
thereafter throughout the balance of the Term, Tenant shall pay, as Additional Rent, the Expense
Payment for such Expense Year and for each and every Expense Year thereafter that occurs (in whole
or in part) during the Term. The Expense Payment shall be prorated, if necessary, to correspond
with that portion of an Expense Year occurring within the Term. The Expense Payment shall be paid
by Tenant within thirty (30) days after Landlord gives to Tenant the corresponding Expense
Statement.



     5.09 On account of Tenant’s obligation to pay the Expense Payment for a given Expense Year,
commencing with the first Expense Year after the Base Expense Year, and for each and every Expense
Year thereafter occurring in whole or in part during the
Term, Tenant shall pay, as Additional Rent, for the then Expense Year, in equal monthly
installments (subject to adjustment as herein provided) Tenant’s Projected Expense Payment. If
after the expiration of a given Expense Year, the Expense Statement for such Expense Year indicates
an underpayment of the Expense Payment, Tenant shall pay to Landlord the amount of the underpayment
within thirty (30) days after it is furnished with such statement. If such statement indicates an
overpayment of the Expense Payment, and Tenant is not then in monetary default beyond any
applicable notice and cure period under this Sublease, then Landlord, at Tenant’s option, shall
either refund the overpayment to Tenant within thirty (30) days after the date of such statement,
or apply the overpayment to the next installment(s) of rent due under this Sublease.
Notwithstanding the foregoing, if at the time Landlord would otherwise be obligated to make such
refund, but for the fact that at such time Tenant is in monetary default under this Sublease beyond
any applicable notice and cure period, Landlord shall become obligated to make such refund when
such monetary default is cured, provided that this Sublease is then in full force and effect.
Landlord’s obligations under this Section 5.09 shall survive the expiration or earlier termination
of this Sublease.



     5.10 Every Expense Statement, including the Expense Statement for the Base Expense Year, given
by Landlord shall be conclusive and binding upon Tenant unless within one (1) year after the
receipt of such Expense Statement, Tenant shall notify Landlord that it disputes the correctness of
the Expense Statement, specifying the particular respects in which the Expense Statement is claimed
to be incorrect. If such dispute shall not have otherwise been settled by agreement within ninety
(90) days after Tenant notifies Landlord of the dispute, Tenant shall have the right to submit the
dispute to arbitration within thirty (30) days after the expiration of such ninety (90) day period.
If Tenant so notifies Landlord of a dispute, Landlord agrees, at no cost or expense to Landlord,
to grant Tenant or an accounting firm of reputable quality designated by



48









 




Tenant, subject to the
provisions of this Article, reasonable access to the books and records of Landlord (other than
privileged materials) for the purpose of verifying Operating Expenses incurred by Landlord in the
Expense Year in question and the Base Year and to have and make copies of any and all bills and
vouchers relating to such dispute; provided, however, Landlord shall be required to give such
access to the books and records of Landlord for the purpose of verifying the Base Expenses and/or
to have and make copies of any and all bills and vouchers relating to the Base Expenses, only in
connection with, and at the time of, Tenant’s dispute, if any, of the Expense Statement for the
first Expense Year after the Base Expense Year. Tenant may perform such examination at reasonable
times, in the office of Landlord, Landlord’s agent or accountant, which office shall be located in
New York City. Tenant agrees that Tenant will not employ, in connection with any review or dispute
under this Article 5, any person who is to be compensated on a contingency fee basis. In
connection with any such review, audit or dispute, Tenant and its representatives shall execute and
deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to
Landlord and Tenant, whereby such parties agree not to disclose to any unrelated third party any of
the information obtained in connection with such review or audit, or the substance of any
admissions or stipulations by any party in connection therewith, or of any resulting
reconciliation, compromise or settlement (subject, however, to the
disclosure of the information that Tenant or Tenant’s accountant derives from such examination
to Tenant’s counsel or other professional advisors that in either case agree to maintain such
information in confidence, or to the extent reasonably required by Tenant to enforce Tenant’s
rights hereunder, including disclosure to an arbitrator designated in accordance with this
Sublease, or as may be required by Legal Requirements). Tenant shall pay the fees and expenses
relating to such audit, unless such audit shall determine that the Expense Statement overstated the
Tenant’s Expense Payment by more than 5% for such Expense Year, in which case Landlord shall pay
such commercially reasonable fees and expenses of the accounting firm designated by Tenant to
conduct such audit. Pending the resolution of any dispute, Tenant shall pay to Landlord the
Expense Payment payable in accordance with the disputed Expense Statement, within thirty (30) days
after Landlord gives same to Tenant, such payment to be without prejudice to Tenant’s position. If
the dispute shall be determined in Tenant’s favor, Landlord shall, within thirty (30) days after
Tenant’s demand therefor, pay to Tenant the amount of Tenant’s overpayment, if any, of the Expense
Payment resulting from compliance with the Expense Statement, or, at Tenant’s option, credit such
amounts against the next payments of rent due under this Sublease, in each case, together with
interest thereon at the rate of two (2%) percentage points in excess of the Prime Rate.




     5.11 Landlord’s failure to prepare, give or furnish any Tax Statement or Expense Statement, or
Landlord’s failure to make a demand, shall not in any way cause Landlord to forfeit or surrender
its rights to collect any of the foregoing items of Additional Rent that may have become due during
the Term, provided, however, in the event Landlord fails to furnish any Expense Statement within
three (3) years following the end of any Expense Year, Landlord hereby waives the right to collect
any Expense



49









 




Payment with respect to such Expense Year. Landlord’s and Tenant’s obligations and
liabilities for the amounts due under this Article shall survive the expiration of the Term.




     5.12 Tenant shall pay to Landlord as Additional Rent, any occupancy tax or rent tax imposed,
levied or assessed by any Requirements in respect of rents payable under this Sublease, any
sublease of any portion of the Premises, or in respect of the occupancy by Tenant or any Tenant
Party of any portion of the Premises, whether now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord based upon Tenant’s
occupancy of the Premises, but in no event shall Tenant be required to pay an occupancy based tax
if Tenant is, itself, paying the same or equivalent occupancy tax to the Governmental Authorities
and Landlord is not required to pay such amounts to the extent of such direct payments by Tenant
(e.g. if there is an occupancy tax based on the base rent paid by Tenant and such base rent is
$[***] per RSF and if Landlord also pays such occupancy tax related to the same RSF based on
Landlord’s base rent of $[***] per RSF then Tenant shall not be required to pay Additional Rent for
an occupancy tax in excess of the tax based on Tenant’s base rent of $[***] per RSF, less the
amount of the occupancy tax paid by
Tenant to the Governmental Authority on such RSF, notwithstanding that Landlord pays an
occupancy tax on a higher base rent, regardless of whether Landlord pays occupancy tax on the RSF
of the Premises); provided, however, that Tenant shall not be required to pay any income,
franchise, profits or similar taxes personal to Landlord, except as otherwise provided in Section
5.01(a) hereof.



ARTICLE 6

LETTER OF CREDIT/SECURITY DEPOSIT




     6.01 [***].



     6.02 If [***] Tenant is required to deliver to Landlord a letter of credit as a security
deposit as a guaranty for the faithful performance and observance by Tenant of the Tenant’s
obligations [***], then the following provisions of this Article 6 shall apply.



            (a) Letter of Credit. Tenant shall deliver to Landlord, [***], a Letter of Credit (as
hereinafter defined) in the amount specified in Article 40 as a guaranty for the faithful
performance and observance by Tenant of the terms, covenants and conditions of this Sublease. The
letter of credit shall be in the form of a clean, irrevocable, non-documentary and unconditional
stand-by letter of credit (the “Letter of Credit”) issued by and drawable upon any commercial
bank, trust company, national banking association or savings and loan association with offices for
banking purposes in the City of New York, New York (the “Issuing Bank”), which has outstanding
unsecured, uninsured and unguaranteed indebtedness, or shall have issued a letter of credit or
other credit facility that constitutes the primary security for any outstanding indebtedness
(which is otherwise uninsured and unguaranteed), that is either (i) then






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




50









 









rated, without regard to
qualification of such rating by symbols such as “+” or “-” or numerical notation, “Aa” or better
by Moody’s Investors Service and “AA” or better by Standard & Poor’s Rating Service, and has
combined capital, surplus and undivided profits of not less than $5,000,000,000 or (ii) is a major
money center bank or a clearinghouse bank, such as Citibank, N.A., J.P. Morgan Chase or Wells
Fargo that is reasonably acceptable to Landlord. The Letter of Credit shall (a) name Landlord as
beneficiary, (b) have a term of not less than one year, (c) permit multiple drawings, (d) be fully
transferable by Landlord without the payment of any fees or charges by Landlord, and (e) otherwise
be in form and content reasonably acceptable to Landlord. If upon any transfer of the Letter of
Credit any fees or charges shall be so imposed, then such fees or charges shall be payable solely
by Tenant and the Letter of Credit shall specify that it is transferable without charge to
Landlord. If Landlord pays any such fees or charges, Tenant shall reimburse Landlord therefor
upon demand. The Letter of Credit shall provide that it shall be automatically renewed, without
amendment or need for any other action, for consecutive periods of one year each thereafter during
the Renewal Term, as the same may be extended (and in no event shall the Letter of Credit expire
prior to the 30th day following the expiration date of the Renewal Term) unless the Issuing Bank
sends duplicate notices (the “Non-Renewal Notices”) to Landlord by certified mail, return receipt
requested (one of which
shall be addressed “Attention, Chief Legal Officer” and the other of which shall be addressed
“Attention, Chief Financial Officer”), not less than 30 days next preceding the then expiration
date of the Letter of Credit stating that the Issuing Bank has elected not to renew the Letter of
Credit. Tenant shall provide Landlord with a replacement Letter of Credit at least ten (10) days
before the expiration of the Letter of Credit which is then held by Landlord and is expiring. The
Issuing Bank shall agree with all beneficiaries, drawers, endorsers, transferees and bona fide
holders that drafts drawn under and in compliance with the terms of the Letter of Credit will be
duly honored upon presentation to the Issuing Bank at an office location in New York or such other
location in the United States customarily used by such bank for presentation. The Letter of
Credit shall be subject in all respects to the International Standby Practices 1998, International
Chamber of Commerce Publication No. 590.




          Tenant shall have the right from time to time to substitute a new Letter of Credit that meets
the requirements of this Article 6 from a different Issuing Bank that nevertheless meets the
requirements for an Issuing Bank set forth in this Section 6.02. Upon Tenant tendering the new
Letter of Credit to Landlord, Landlord shall promptly return the then existing Letter of Credit to
Tenant.



          (b) Application of Proceeds of Letter of Credit. If an Event of Default by Tenant occurs in
the payment or performance of any of the terms, covenants or conditions of this Sublease,
including the payment of rent, Landlord shall have the right by sight draft to draw, at its
election, all or a portion of the proceeds of the Letter of Credit and thereafter hold, use,
apply, or retain the whole or any part of such proceeds, (x) to the extent required for the
payment of any rent or any other sum as to which an Event of Default has occurred, including (i)
any sum which Landlord may expend or may be required to expend by reason of Tenant’s default,
and/or (ii) any damages to




51









 







which Landlord is entitled pursuant to this Sublease, whether such
damages accrue before or after summary proceedings or other reentry by Landlord and/or (y) as cash
proceeds to guaranty Tenant’s obligations hereunder, unless and until Tenant delivers to Landlord
a substitute Letter of Credit which meets the requirements of this Article 6, provided at such
time no Event of Default by Tenant has occurred and is continuing, in which event Landlord shall
have no obligation to accept such substitute Letter of Credit and shall have the right to retain
the cash proceeds. If Landlord applies any part of the cash proceeds of the Letter of Credit,
Tenant shall promptly thereafter amend the Letter of Credit to increase the amount thereof by the
amount so applied or provide Landlord with an additional Letter of Credit in the amount so
applied, so that Landlord shall have the full amount thereof on hand at all times during the
Renewal Term. If Tenant shall comply with all of the terms, covenants and conditions of this
Sublease, the Letter of Credit or the cash proceeds thereof, as the case may be, shall be returned
to Tenant within thirty (30) days after the expiration date of this Sublease and after delivery of
possession of the Premises to Landlord in the manner required by this Sublease.



     (c) Transfer. Upon a sale or other transfer of Landlord’s interest in the Building, Landlord
shall transfer the Letter of Credit or the cash proceeds to its
transferee. With respect to the Letter of Credit, within ten (10) Business Days after notice
of such transfer, Tenant, at its sole cost, shall (if required by Landlord) arrange for the
transfer of the Letter of Credit to the new landlord, as designated by Landlord in the foregoing
notice or have the Letter of Credit reissued in the name of the new landlord. Upon such transfer,
Tenant shall look solely to the new landlord for the return of the Letter of Credit or the cash
proceeds and thereupon Landlord shall without any further agreement between the parties be
released by Tenant from all liability therefor, and it is agreed that the provisions hereof shall
apply to every transfer or assignment made of the Letter of Credit or the cash proceeds to a new
landlord. Tenant shall not assign or encumber or attempt to assign or encumber the Letter of
Credit or the cash proceeds and neither Landlord nor its successors or assigns shall be bound by
any such action or attempted assignment, or encumbrance




ARTICLE 7

SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES




     7.01 This Sublease, and all rights of Tenant hereunder, are and shall be subject and
subordinate in all respects to all ground leases (including the Existing Superior Lease),
overriding leases and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the Building and/or any of
such leases, whether or not such mortgages shall also cover other lands and/or buildings, to each
and every advance made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages, provided, however, Tenant’s subordination to any superior lease
(as hereinafter defined) not in existence on the Effective Date shall be conditioned upon Tenant’s
receipt of a commercially reasonable



52









 




SNDA (as defined in Section 7.04) from the holder of such
superior lease. Tenant agrees to execute and deliver any instrument that Landlord, the lessor of
any such lease (including the Existing Superior Lease) or the holder of any such mortgage or any of
their respective successors in interest may reasonably request to evidence such subordination
within fifteen (15) days after such request. The leases to which this Sublease is, at the time
referred to, subject and subordinate pursuant to this Article, including the Existing Superior
Lease, are hereinafter sometimes referred to as “superior leases,” the mortgages to which this
Sublease is, at the time referred to, subject and subordinate are hereinafter sometimes referred to
as “superior mortgages,” and the lessor of a superior lease or its successor in interest at the
time referred to is sometimes hereinafter referred to as a “lessor.”




     7.02 In the event of any act or omission of Landlord that would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this Sublease, or to claim a
partial or total eviction, or entitle Tenant to any abatement or offset against the payment of
rent, Tenant shall not exercise such right (a) until it has given written notice of such act or
omission or the accrual of such claim or right, to the holder of each superior mortgage and the
lessor of each superior lease in each case whose name and address shall previously have been
furnished to Tenant, and (b) until the expiration of
the period of time provided in this Sublease for the Landlord to cure the condition giving
rise to Tenant’s right.



     7.03



          (a) If the lessor of a superior lease (including the Existing Superior Lease), the holder of
a superior mortgage (or its designee), purchaser at a foreclosure sale or transferee under a
deed-in-lieu of foreclosure shall succeed to the rights of Landlord under this Sublease, whether
through possession or foreclosure action or delivery of a new lease or deed, or if a superior
lease shall terminate or be terminated for any reason, then, at the election and upon demand of
the party so succeeding to Landlord’s rights, as the successor owner of the property of which the
Premises is a part, or as the mortgagee in possession thereof, or otherwise (such party, owner or
mortgagee being herein sometimes called the “successor landlord”), Tenant shall attorn to and
recognize such successor landlord as Tenant’s landlord under this Sublease, and shall promptly
execute and deliver any instrument that such successor landlord may reasonably request to evidence
such attornment. Upon such attornment, this Sublease shall continue in full force and effect as,
or as if it were, a direct lease between the successor landlord and Tenant, upon all of the
executory terms, conditions and covenants as are set forth in this Sublease and shall be
applicable after such attornment, except that the successor landlord shall not be:




               (i) liable for any previous act or omission of Landlord (or any of its
predecessors-in-interest) under this Sublease, it being understood, however, that the person
becoming the successor landlord shall be liable for the future performance of any such acts or
omissions upon its becoming successor landlord, excluding monetary claims against Landlord (or any
of its predecessors-in-interest), to the extent that (A)



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such acts or omissions continue as a
default under this Sublease after Tenant’s attornment to such successor landlord, (B) Tenant gives
the successor landlord notice thereof, and (C) the act or omission has not been corrected within
thirty (30) days after the later of (x) the giving of such notice and (y) the end of the period to
which Landlord is entitled to cure such condition under this Sublease, which thirty (30) day period
shall be extended for a reasonable period in the case of a condition which cannot with due
diligence be corrected within a period of thirty (30) days, except that such liability shall only
exist for the period that such person is the Landlord under this Sublease;




               (ii) subject to any credits, offsets, claims, counterclaims, demands or defenses which Tenant
may have against Landlord (or any of its predecessors in interest), provided that if the acts or
omissions that gave rise to such credits, offsets, claims, counterclaims, demands or defenses
continue after (A) Tenant’s attornment to such successor landlord, and (B) Tenant gives the
successor landlord notice thereof and the act or omission entitling Tenant to such credits,
offsets, claims, counterclaims, demands or defenses has not been corrected within thirty (30) days
after the later of (x) the giving of such notice and (y) the end of the period to which Landlord is
entitled to cure such condition under this Sublease, which thirty (30) day period shall be extended
for a reasonable period in the case of a condition which cannot with due diligence be
corrected within a period of thirty (30) days, such successor landlord shall be subject to such
credits, offsets, claims, counterclaims, demands or defenses;



               (iii) bound by any previous modification of this Sublease or by any previous prepayment of
more than one month’s Base Rent, unless such modification or prepayment shall have been expressly
approved in writing by the lessor of the superior lease or the holder of the superior mortgage
through or by reason of which the successor landlord shall have succeeded to the rights of Landlord
under this Sublease or if Landlord was entitled to make such modification or prepayment without the
approval of the lessor of the superior lease or the holder of the superior mortgage;



               (iv) liable for the obligations of Landlord under this Sublease for any period of time other
than such period as such successor landlord holds such interest;



               (v) responsible for any monies owing by Landlord to the credit of Tenant, other than Tax
Payments, Expense Payments or the Tenant Allowance; and



               (vi) required to remove any person occupying the Premises or any portion thereof and any
tenant or occupant occupying the Expansion Space, ROFO Space, Supplemental Space or Additional
Space.



          (b) The foregoing provisions shall inure to the benefit of any successor landlord, shall
apply to the tenancy of Tenant notwithstanding that this Sublease may terminate upon the
termination of the superior lease, and shall be self-operative upon any such demand, without
requiring any further instrument to give effect to said provisions. Tenant, however, upon demand
of any successor landlord, agrees to execute, from time to time, a commercially reasonable
instrument in




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confirmation of the foregoing provisions, satisfactory to Tenant and such successor
landlord, in which Tenant shall acknowledge such attornment. Nothing contained in this Section
shall be construed to impair any right, privilege or option of any successor landlord or, except
as otherwise provided in this Sublease, to impair any right, privilege or option of Tenant.
Subject to all of the limitations on Landlord’s obligations and liabilities provided for in this
Sublease, nothing contained in this Section shall be construed to release Landlord from its
obligations to Tenant pursuant to this Sublease.




          (c) At the option of the Existing Lessor, on the termination of the Existing Superior Lease
pursuant to an “Event of Default” under the Existing Superior Lease or otherwise, Tenant shall
attorn to, or shall enter into a direct lease on the terms of this Sublease with, the Existing
Lessor for the balance of the unexpired term of this Sublease, provided, that, notwithstanding
anything to the contrary contained in this Sublease, the Existing Lessor shall not be: (1) liable
for any previous act or omission of Landlord, as landlord under this Sublease unless such act
continues as a default under this Sublease after the Tenant’s attornment to the Existing Lessor
and is the obligation of the landlord under this Sublease; (2) responsible for any monies owing by
Landlord to the credit of Tenant, except to the extent that the Existing Lessor is in possession
of, or has control over, such monies; (3) subject to any offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord; (4) bound by any payments of rent
which Tenant might have made for more than one (1) month in advance to Landlord; (5) bound by any
covenant in this Sublease to either (A) undertake or complete any construction of, in or about the
Real Property (or any part thereof), (B) undertake or complete any construction of, in or about
the Premises (or any part thereof), or (C) provide any money, by way of an allowance to Tenant or
otherwise, to or for any such construction; (6) required to account for any security or other
deposit hereunder, other any such deposit actually delivered to, or collected by, the Existing
Lessor; (7) bound by any amendment or other modification of this Sublease which was entered into
in violation of the Existing Superior Lease; or (8) required to remove any person occupying the
Premises (or any part thereof) unless the Existing Lessor shall have caused the Premises to be
occupied by a person other than Tenant.




     7.04 Without limiting any of the provisions of this Article 7, and subject to and in
accordance with Section 7.4 of the Existing Superior Lease and Section 7.02 of this Sublease, upon
the prior written request of Tenant, Landlord agrees in good faith to request and to use
commercially reasonable efforts to obtain and deliver to Tenant a Subordination, Non-Disturbance
and Attornment Agreement (“SNDA”) for the benefit of Tenant, which SNDA shall be in recordable form
and of the content then utilized by the Existing Lessor, which shall provide, in substance, that as
long as Tenant is not in default in the payment of Base Rent or Additional Rent, or any other term,
covenant or condition of this Sublease, beyond any applicable notice and cure period and provided
Tenant attorns to the Existing Lessor under the terms and provisions of this Sublease, (a) its
rights as Tenant hereunder shall not be affected or terminated, (b) its possession of the Premises
shall not be disturbed, and (c) no action or proceeding shall be commenced to remove or evict
Tenant. For the purposes of this Section 7.04,



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“commercially reasonable efforts” shall not be
interpreted to require Landlord to enter into any agreement other than the SNDA or undertake to pay
or otherwise confer or to actually pay or otherwise confer anything of value to or for the benefit
of a third-party (including, without limitation, Existing Lessor) other than the reimbursement to
such superior lessor or superior mortgagee of expenses incurred or a review or processing fee
charged by such superior lessor or superior mortgage, to guarantee any obligation, or to otherwise
modify any of its obligations under the Existing Superior Lease. Landlord’s failure or inability
to obtain or deliver to Tenant an SNDA (despite using such commercially reasonable efforts) shall
not be a default by Landlord and shall not entitle Tenant to exercise any rights or remedies
whatsoever. Whether or not Tenant obtains an SNDA from the Existing Lessor, subject to all of the
limitations on Landlord’s obligations and liabilities provided for in this Sublease, nothing
contained in this Article shall be construed to release Landlord from its obligations to Tenant
pursuant to this Sublease, including Landlord’s obligation to pay the Tenant Allowance in
accordance with, and subject to, the applicable provisions of this Sublease.




     7.05 Whether or not Tenant attorns to the Existing Lessor or otherwise, subject to all of the
limitations on Landlord’s obligations and liabilities provided for in this Sublease, nothing
contained in this Article shall limit Tenant’s right to first proceed against
Landlord for any monetary or other violation of this Sublease, and Tenant shall have no
obligation to initiate or pursue remedies against the Existing Lessor or other successor landlord.



ARTICLE 8

QUIET ENJOYMENT




     8.01 So long as no Event of Default or any of the events or occurrences described in Section
25.01 hereof exists and is continuing, Tenant shall peaceably and quietly have, hold and enjoy the
Premises for the Term without disturbance by or from Landlord and any person claiming by through or
under Landlord, including, without limitation, Existing Lessor and the holders of superior leases
and superior mortgages, in accordance with, and subject to all of the terms, covenants and
conditions of this Sublease.



ARTICLE 9

ASSIGNMENT AND SUBLETTING




     9.01 (a) Except as otherwise expressly permitted in this Article 9, Tenant, for itself, its
heirs, distributees, executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage, or encumber this Sublease or any of its
rights, interests or estates hereunder or in the Premises, sublet the Premises or any part thereof,
or suffer or permit the Premises, or any part thereof, to be used, occupied or operated by others
for desk space, mailing privileges or any other purpose, or suffer or permit any of the other
transactions or events described in this sentence by operation of law or otherwise, without the
prior written consent of Landlord in each instance, which consent may be given or withheld



56









 




by Landlord in its sole and absolute discretion, and if any of the foregoing transactions or events
occur without Landlord’s consent (except in those instances where, pursuant to the express
provisions of this Article, the transaction does not require Landlord’s consent or approval) same
shall be null and void. If this Sublease be assigned, or if the Premises or any part thereof be
sublet or occupied by any person other than Tenant, Landlord may collect rent from the assignee,
subtenant, or occupant, and apply the net amount collected to the rent herein reserved, but no
assignment, subletting, occupancy, or collection shall be deemed a waiver of the provisions hereof,
the acceptance of the assignee, subtenant, or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein contained. Landlord’s
consent to an assignment or subletting shall not, in any wise, be construed to relieve Tenant from
obtaining Landlord’s express written consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease, further sublet all or any portion of
its sublet space, or otherwise suffer or permit the sublet space, or any part thereof, to be used,
occupied or operated by others, except as otherwise expressly set forth in Section 9.16 hereof, and
in no event shall any assignment instrument or sublease be amended, modified or terminated, without
Landlord’s prior written consent in each instance, except that Landlord’s consent shall not be
required for any amendment or modification of any assignment or sublease that is solely
ministerial in nature or does not otherwise amend or modify the transaction in question in any
material or substantive manner, provided that a copy of the ministerial and/or non-material and
non-substantive amendment or modification is given to Landlord no more than ten (10) Business Days
after the effective date thereof, without prejudice to Landlord’s right to claim that the amendment
or modification in question amended or modified the transaction in a material or substantive
manner. For the purposes of this Sublease, the entering into of any management, operating
agreement or any agreement in the nature thereof transferring control of the Premises (or any
portion thereof), including the use, occupancy and/or disposition thereof, or control of the
operation or management of the business being conducted in the Premises or any portion thereof, to
a person other than Tenant (or a permitted subtenant, as the case may be), or otherwise having
substantially the same effect, including a so-called “take-over agreement” in respect of the
Premises or Tenant’s interest therein or in this Sublease, shall not be permitted. For the
purposes of clarification, retaining the services of an outside vendor or manager to manage
specific departments or services of Tenant at the Premises, such as Tenant’s office services
department or messengers, or, during the Renewal Term, if any, in accordance with, and subject to,
the provisions of Section 2.12(b) hereof, a cafeteria in the RP Cafeteria Space, a fitness center
in the FC Space and a conference center in the CC Space (to the extent such portions of the
Building are a part of the Renewal Premises and such amenities are being operated in such portions
of the Renewal Premises) shall not be a violation of the preceding sentence. In addition, under no
circumstances shall a partial assignment of Tenant’s interest in the Premises or in this Sublease
be permitted.




          (b) As used in this Article, the word “control,” (including the derivations of the word
“control,” such as “controlling” “controlled by” or “under common control with” or words of like
import) shall mean: (i) ownership of more than




57









 







50% of the outstanding voting capital stock of a
corporation or more than 50% of the beneficial interests of any other entity or (ii) the
ability effectively to control or direct the business decisions of such corporation or entity.
The term “Related Entity” shall mean an entity which directly or indirectly controls, is
controlled by or is under common control with Tenant.




     9.02 (a) For the purposes of this Article a “Material Sublease” means a sublease (i) whose
term (including all extensions and renewals thereof, regardless of whether or not the right or the
option to so extend or renew is exercised) is to end on a date that is during the last two (2)
years of the Term, and (ii) where the aggregate area of the Premises that is to be covered by such
sublease (including all portions of the Premises which the prospective subtenant may sublease
pursuant to any rights or options set forth in the sublease or otherwise, regardless of whether or
not such rights or options are exercised) comprises seventy-five (75%) percent (or more) of the RSF
of the Premises, including (A) the aggregate area of the Premises covered by all other subleases
and other occupancy agreements then in effect (regardless of whether or not the terms thereof have
commenced), including all portions of the Premises which the subtenant or other occupant under such
subleases or other occupancy agreements then in effect may sublease or occupy
pursuant to any rights or options set forth in its sublease, occupancy agreement or otherwise,
regardless of whether or not such rights or options are exercised, and (B) the aggregate area of
the Premises covered by all other subleases theretofore submitted to Landlord for approval, which
such approval is pending, including all portions of the Premises which the prospective subtenant
may sublease pursuant to any rights or options set forth in its proposed sublease, regardless of
whether or not such rights or options are exercised. In determining whether a sublease is a
Material Sublease, the portions of the Premises covered by the sublease in question, including the
portions of the Premises described in clauses “(A)” and “(B)” of the preceding sentence, shall not
be counted more than one (1) time. Such other subleases and other occupancy agreements then in
effect, if any, are herein referred to as the “Existing Subleases” and such pending subleases are
herein referred to as the “Pending Subleases.”



          (b) Unless (i) Tenant first complies with the provisions of subsection (c) below, and (ii)
the A/S Recapture Period (as hereinafter defined) expires and Landlord has not exercised any
Landlord’s Option (as hereinafter defined), Tenant shall not be permitted to assign this Sublease
or sublet all or portions of the Premises pursuant to a Material Sublease, or, except as expressly
provided in subsection (d) below, request Landlord’s approval thereof or consent thereto.




          (c) (i) If Tenant shall, at any time or times during the Term, desire to assign this Sublease
or sublet all or portions of the Premises pursuant to a Material Sublease to, in either case, any
person other than a Related Entity pursuant to Section 9.11(c) hereof, then Tenant shall give
notice to Landlord of Tenant’s desire to assign this Sublease or enter into a Material Sublease,
which notice (the “A/S Recapture Notice”) shall set forth the following information (the “A/S
Recapture Information”): (A) whether Tenant desires (x) to dispose of the entire Premises, either
pursuant to an




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assignment of this Sublease or a subletting, pursuant to a Material Sublease, of
all of the Premises not subject to Existing Subleases or Pending Subleases (it being understood
and agreed that with respect to a disposition described in this clause “(x),” Tenant may (but
shall not be obligated to) specify in the A/S Recapture Notice that such disposition may be
pursuant to either an assignment of this Sublease or a Material Sublease), or (y) to sublet less
than all of the Premises pursuant to a sublease that would constitute a Material Sublease (when
taking into account Existing Subleases and Pending Subleases), in which case (under this clause
“(y)”) the A/S Recapture Notice shall include a floor plan(s) indicating the portions of the
Premises intended to be sublet pursuant to such sublease, it being understood and agreed that
Tenant must specify in the A/S Recapture Notice whether the desired disposition will be pursuant
to clause “(x)” or “(y),” but not both, and (B) the anticipated effective date of the desired
assignment or the anticipated commencement date of the desired subletting (which effective date or
commencement date shall be not less than thirty-five (35) days after the giving of the A/S
Recapture Notice), which anticipated effective date or commencement date is hereinafter referred
to as the “A/S Recapture Surrender Date.” (The date on which Landlord
receives the A/S Recapture Notice and all of A/S Recapture Information is herein referred to
as the “A/S Recapture Notice Date”). In the case of a desired assignment, the entire Premises is
herein referred to as the “A/S Recapture Space.” In the case of a desired sublease, the
portion(s) of the Premises that is/are proposed to be demised under the Material Sublease is/are
herein referred to as the “A/S Recapture Space,” except that if the desired transaction is a
disposition of the entire Premises pursuant to a Material Sublease of all of the Premises not
subject to Existing Subleases or Pending Subleases, then, at Landlord’s election, the “A/S
Recapture Space” shall be the entire Premises, or the entire Premises less the portions thereof
covered by the Existing Subleases, or the entire Premises less the portions thereof covered by the
Pending Subleases.




               (ii) Each A/S Recapture Notice (including an A/S Notice in lieu of an A/S Recapture Notice or
an A/S Notice in connection with the rescission and revocation of an A/S Recapture Notice, in
either case pursuant to the provisions of subsection (d) below) given to Landlord with respect to a
desired assignment of this Sublease or a desired Material Sublease shall be deemed an irrevocable
offer from Tenant to Landlord (except as otherwise expressly provided in subsection (d) below)
whereby Landlord may, at its option (hereinafter referred to as “Landlord’s Option”), terminate
this Sublease with respect to the A/S Recapture Space. Landlord’s Option may be exercised by
Landlord by notice (the “Landlord’s Option Notice”) to Tenant at any time during the fifteen (15)
Business Day period (the “A/S Recapture Period”) commencing on the A/S Recapture Notice Date (as
the A/S Recapture Period may hereafter be extended pursuant to the provisions of this subsection
(c)), and through the last day of the A/S Recapture Period Tenant shall not assign this Sublease
nor sublet any portion of the Premises. If within such fifteen (15) Business Day period, Landlord
fails to give the Landlord’s Option Notice or waive (in writing) Landlord’s Option, the A/S
Recapture Period shall be extended until Tenant gives to Landlord a second (2nd) A/S
Recapture Notice that specifically identifies the first (1st) A/S Recapture Notice and
includes a copy thereof and the corresponding A/S Recapture Information, and contains



59









 




substantially
the following statement in bold and CAPITAL letters: “THIS IS A SECOND A/S RECAPTURE NOTICE WITH
RESPECT TO TRANSACTION DESCRIBED HEREIN. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS
DAYS AFTER TENANT GIVES THIS NOTICE TO LANDLORD, THEN THE A/S RECAPTURE PERIOD WITH RESPECT TO
SUCH TRANSACTION SHALL EXPIRE ON THE LAST DAY OF SUCH FIVE (5) BUSINESS DAY PERIOD.” If Landlord
fails to give the Landlord’s Option Notice within five (5) Business Days after Tenant gives to
Landlord said second (2nd) A/S Recapture Notice, the A/S Capture Period for the
transaction in question shall expire on the last day of such five (5) Business Day period.




          (d) At Tenant’s option, in lieu of giving an A/S Recapture Notice with A/S Recapture
Information in connection with a desire to assign this Sublease or sublet all or portions of the
Premises pursuant to a Material Sublease, Tenant may give to
Landlord an A/S Notice with all of the required A/S Information (as such terms are defined in
Section 9.05 below), provided such A/S Notice contains substantially the following statement in
bold and CAPITAL letters: “THIS A/S NOTICE ALSO CONSTITUTES AN A/S RECAPTURE NOTICE PURSUANT TO
THE PROVISIONS OF SECTION 9.02(d) OF THE SUBLEASE,” in which event all of the provisions of this
Article 9 with respect to an A/S Recapture Notice shall apply to such A/S Notice as if same were
an A/S Recapture Notice, and in furtherance of the foregoing, the term “A/S Recapture Information”
shall be deemed to mean the A/S Information, the term “A/S Recapture Notice Date” shall be deemed
to mean the date on which Landlord receives the A/S Notice and all of A/S Information, the term
“A/S Recapture Surrender Date” shall be deemed to mean the effective date or commencement date of
the proposed assignment or sublease (which effective date or commencement date shall,
notwithstanding anything to the contrary contained in Section 9.05 below) be not less than
thirty-five (35) days after the giving of the A/S Notice), and the “A/S Recapture Space” shall be
as provided above in subsection (c)(i). In addition, if Tenant has given an A/S Recapture Notice
and Landlord has not exercised Landlord’s Option, then during the A/S Recapture Period Tenant may
rescind and revoke such A/S Recapture Notice by giving to Landlord, in connection with a desire to
assign this Sublease or sublet all or portions of the Premises pursuant to a Material Sublease, an
A/S Notice with all of the required A/S Information, provided such A/S Notice contains
substantially the following statement in bold and CAPITAL letters: “THIS A/S NOTICE ALSO
CONSTITUTES AN A/S RECAPTURE NOTICE PURSUANT TO THE PROVISIONS OF SECTION 9.02(d) OF THE SUBLEASE,
AND RESCINDS AND REVOKES THE A/S RECAPTURE NOTICE GIVEN TO LANDLORD ON ___________ [TENANT TO
INSERT THE APPROPRIATE DATE],” in which event all of the provisions of the preceding sentence
shall apply.




     9.03 (a) If Landlord timely exercises Landlord’s Option to terminate this Sublease with
respect to A/S Recapture Space that is the entire Premises, then this Sublease and all Related
Entity Subleases shall end and expire on the A/S Recapture Surrender Date, and the Base Rent and
Additional Rent shall be paid and apportioned to such date.



60









 





          (b) If Landlord exercises Landlord’s Option to terminate this Sublease with respect to A/S
Recapture Space that is less than the entire Premises, then, (i) this Sublease shall end and
expire with respect to A/S Recapture Space on the A/S Recapture Surrender Date, as if, with
respect to the A/S Recapture Space only, such expiration date were the Expiration Date; (ii) on or
before such expiration date, Tenant shall quit and surrender to Landlord the A/S Recapture Space
in the condition and in the manner provided in this Sublease for the surrender of the Premises to
Landlord on the Expiration Date, including Tenant’s obligations under Sections 16.13 and 17.05(c)
hereof; (iii) from and after the date that this Sublease ends and expires with respect to the A/S
Recapture Space the Base Rent and Tenant’s Proportionate Share shall be adjusted, based upon
[***], determined pursuant to the provisions of Section 1.01(p)
hereof; and (iv) Tenant shall pay to Landlord, as Additional Rent, within thirty (30) days
after Landlord’s demand therefor, the reasonable out-of-pocket costs incurred by Landlord in
performing the Demising Work (except that Tenant shall not be obligated to pay for any such work
in excess of Building Standard work performed by Landlord on other Partial Floors in the
Building). The failure of Tenant to quit and surrender to Landlord the A/S Recapture Space in the
condition and in the manner provided in this Sublease for the surrender of the Premises to
Landlord on the Expiration Date on or before such expiration date shall be a default under this
Sublease, entitling Landlord to exercise any or all of its rights and remedies hereunder, and
available at law and in equity, other than terminating this Sublease with respect to the remaining
portion of the Premises. In addition, Landlord may exercise any or all of Landlord’s rights and
remedies under Section 24.02 of this Sublease as if, for the purposes of said Section 24.02, the
A/S Recapture Space were the Premises. Furthermore, in the event of such failure, for the
purposes of said Section 24.02, the Base Rent and Additional Rent payable by Tenant during the
last year of the Term,” as applied to the A/S Recapture Space, shall mean the amounts of the Base
Rent and Additional Rent that would have been payable on account of the A/S Recapture Space but
for the surrender of the A/S Recapture Space.




     9.04 Intentionally omitted



     9.05 (a) Except as otherwise expressly provided in Sections 9.11, 9.18 or 9.19 hereof, if
Tenant shall, at any time or times during the Term, desire to assign this Sublease or sublet all or
portions of the Premises (including pursuant to a Material Lease), then Tenant shall give notice
thereof to Landlord, which notice (the “A/S Notice”) shall be accompanied by: (i) a statement
setting forth, in reasonable detail, the identity of the proposed assignee or subtenant, including
the names and addresses of the proposed assignee or subtenant and, except in the case of a proposed
assignee or subtenant that is listed and traded on a nationally recognized stock exchange or
over-the-counter market, the names and addresses of each of its constituent members, shareholders,
partners and/or other principals that own (directly or indirectly) a twenty-five (25%) percent (or
more) interest in the proposed assignee or subtenant; (ii)





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




61









 









reasonably satisfactory information as
to the nature and character of the business of the proposed assignee or subtenant and as to the
nature of its proposed use of the Premises; (iii) a fully executed counterpart of the proposed
assignment or sublease, the effective or commencement date of which shall be not less than thirty
(30) nor more than 180 days after the giving of the A/S Notice, or, in lieu of a fully executed
counterpart of the proposed assignment or sublease, an A/S Term Sheet (as such term is defined in
subsection (b) below); (iv) the annual financial statements of the proposed assignee or subtenant
for its two (2) most recent fiscal years, to the extent annual financial statements have been
prepared for the proposed assignee or subtenant (and if annual financial statements have not been
prepared for the proposed assignee or subtenant for its two (2) most recent fiscal years, then
Tenant shall deliver to Landlord other evidence of financial qualifications that are reasonably
satisfactory to Landlord), and (v) if the proposed transaction is an assignment of this Sublease, a
Material Sublease or a Substantial Sublease, the current banking, financial and other credit
information relating to the proposed assignee or subtenant, reasonably sufficient to enable
Landlord to evaluate the financial condition and credit of the proposed assignee or subtenant. The
statements and information contained in the A/S Notice, as well as the statements, information and
documentation described in all of the items set forth in clauses (i) through (v) above, including,
if applicable, the A/S Term Sheet, are herein referred to as the “A/S Information,” and the date on
which Landlord receives the A/S Notice and the A/S Information being herein referred to as the “A/S
Notice Date”).




          (b) In lieu of the fully executed counterpart of the proposed assignment or sublease
described in clause (iii) of subsection (a) above, the A/S Notice may be accompanied by a term
sheet or letter of intent (the “A/S Term Sheet”), duly executed by both Tenant and the proposed
assignee or subtenant, which sets forth, or which has attached to it a draft of the proposed
assignment or sublease which sets forth: (i) whether the desired transaction is an assignment of
this Sublease or a subletting of all or portions of the Premises, and if the desired transaction
is a subletting of less than the entire Premises, the approximate RSF of the portion(s) of the
Premises to be sublet and a floor plan(s) indicating the approximate portion(s) of the Premises to
be sublet, including, in both cases, such portions of the Premises in respect of which the
subtenant will have an option or right to sublet (to the extent the option space has been agreed
to by the parties, otherwise the approximate option space), it being understood and agreed that if
the A/S Notice is given pursuant to subsection 9.02(d) above, the RSF and portion(s) of the
Premises, including option space shall be more detailed, and not approximate), (ii) the effective
date of the proposed assignment or the commencement date and the expiration date of the proposed
subletting (which effective date or commencement date shall be not less than thirty (30) days
after the giving of the A/S Notice), (iii) in the case of an assignment or sublease, all sums and
other consideration to be paid to, or on behalf of, Tenant or Tenant’s designee for, or by reason
of, such assignment or sublease, including all sums to be paid for the sale or rental of fixtures,
leasehold improvements, equipment, furniture, furnishings and/or other personal property, and in
the case of a sublease, the annual rental (or annual rental rate per RSF) payable during the term
of the proposed subletting, all additional rent payable under, or with respect to, the




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proposed sublease, including any additional rent related to increases in real estate taxes or operating
expenses for the Building, increases in any price index or wage or labor rate, (iv) the dollar
amount of any work which Tenant is willing to perform and/or pay for in the Premises in connection
with the transaction in question and/or a reasonably detailed description of the work which Tenant
is willing to perform or pay for, (v) any concession or free rent period that Tenant anticipates
granting in connection with the transaction in question to the proposed subletting, and (vi) all
other material terms and conditions, if any, of the desired transaction agreed to by the parties.




          (c) For the purposes of this Sublease:




               (i) In the case of a sublease, the portion(s) of the Premises that is/are proposed to be
demised under the proposed sublease is/are herein referred to as the “A/S Subject Space”;



               (ii) In the case of a proposed assignment, the entire Premises is herein referred to as the
“A/S Subject Space”;



               (iii) A “Substantial Sublease” means a sublease (i) whose term (including all extensions and
renewals thereof, regardless of whether or not the right or the option to so extend or renew is
exercised) is to end on a date that is during the last two (2) years of the Term, and (ii) where
the aggregate area of the Premises that is to be covered by such sublease (including all portions
of the Premises in respect of which the prospective subtenant may sublease pursuant to any rights
or options set forth in the sublease or otherwise, regardless of whether or not such rights or
options are exercised), comprises 90,000 (or more) RSF;



               (iv) “A/S Net Worth Test” means (A) the proposed assignee or subtenant (or an Acceptable
Guarantor (as hereinafter defined)) has a tangible net worth, as reflected on its financial
statements, which financial statements shall be audited and shall include a signed opinion from the
proposed assignee’s, the proposed subtenant’s or the Acceptable Guarantor’s, as the case may be,
reputable, nationally or regionally recognized independent certified public accountant, that states
the financial statements fairly represent the financial condition of the company in question (or,
if the proposed assignee, proposed subtenant or Acceptable Guarantor does not have audited
financial statements, then the financial statement shall include a statement from a senior officer
(or equivalent) of the proposed assignee, proposed subtenant or Acceptable Guarantor, as the case
may be, that such financial statements fairly represent the financial condition of the company in
question), in an amount equal to fifteen (15), multiplied by the highest annual fixed, minimum or
base rent per annum payable under this Sublease, in the case of a proposed assignment or, in the
case of a proposed sublease, under the sublease or this Sublease, whichever is greater on a per RSF
basis, except that if the proposed assignee or subtenant is a law firm, accounting firm or
comparable service providing firm, “A/S Net Worth Test” means the proposed assignee or subtenant
has receivables, work in progress, on an annualized basis, and



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permanent capital, all as reflected
on its financial statements, which financial statements shall be audited and shall include a signed
opinion from the proposed assignee’s or the proposed subtenant’s, as the case may be, reputable,
nationally or regionally recognized independent certified public accountant, that states the
financial statements fairly represent the financial condition of the company in question (or, if
the proposed assignee or proposed subtenant does not have audited financial statements, then the
financial statement shall include a statement from a senior officer (or equivalent) of the proposed
assignee or proposed subtenant, as the case may be, that such financial statements fairly represent
the financial condition of the company in question), in an amount equal to fifteen (15), multiplied
by the highest annual fixed, minimum or base rent per annum payable under this Sublease, in the
case of a proposed assignment or,
in the case of a proposed sublease, under the sublease or this Sublease, whichever is greater
on a per RSF basis, (B) the proposed assignee or subtenant has had the tangible net worth (or the
receivables, work in progress and permanent capital, as the case may be), described in the
preceding clause “(A)” for at least the three (3) years immediately preceding the effective date or
the commencement date of the proposed assignment or subtenant, and (C) reasonably adequate proof
thereof the conditions set forth in the preceding clauses “(A)” and “(B)” shall have been furnished
to Landlord. If the proposed assignee or subtenant does not satisfy the A/S Net Worth Test as
described in the preceding sentence, then the A/S Net Worth Test described in the preceding
sentence shall be deemed satisfied if (1) same is satisfied using a multiplier of “five (5),”
instead of “fifteen (15),” and (2), the proposed assignee or subtenant deposits with Landlord a
security deposit equal to twelve (12) months of the highest fixed, minimum or base rent payable
under the sublease to Landlord;




               (v) “Acceptable Guarantor” means (A) a person that is subject to the jurisdiction of all of
the courts of the State of New York and of the United States of America for the Southern District
of New York, (B) in the case of a proposed assignment, such person is a guarantor of all of the
obligations and liabilities of Tenant under this Sublease, or, in the case of a proposed sublease,
such person is a guarantor of all of the obligations and liabilities of the proposed subtenant
under the sublease in question (including if and when such sublease becomes a direct lease between
Landlord and such subtenant, subject to the modifications of such sublease if and when such
sublease becomes a direct lease between Landlord and such subtenant), and (C) such person is
guaranteeing such obligations and liabilities pursuant to a written guaranty for the benefit of
Landlord and, if applicable, Tenant, that has been reasonably approved by Landlord as to form and
content; and



               (vi) “A/S Excluded Entity” means all Competitor Entities.



          (d) Provided that (A) Tenant complies with the provisions of this Section 9.05 and, if the
proposed transaction is an assignment of this Sublease or a Material Sublease, Tenant complied
with the provisions of Section 9.02 above, the A/S Recapture Period expired and Landlord did not
exercise any Landlord’s Option, (B) no Event of Default then exists, and (C) neither the proposed
assignee, the proposed subtenant or any Affiliate of the proposed assignee or proposed subtenant
is an A/S





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Excluded Entity, Landlord’s consent (which must be in writing and in a commercially
reasonable form that is reasonably satisfactory to Landlord) to the proposed assignment or
sublease shall not be unreasonably withheld, conditioned or delayed, provided and upon the
condition that (Tenant hereby agreeing that it shall be reasonable for Landlord not to grant its
consent to a proposed assignment or subletting if, among other things, any of the following
conditions are not satisfied in all material respects):




               (i) The material A/S Information is true, accurate and complete in all material respects;



               (ii) In Landlord’s reasonable judgment the proposed assignee or subtenant is engaged in a
business, and the A/S Subject Space will be used in a manner, which (i) is in keeping with the then
standards of the Building, and (ii) will not violate any negative covenant which is contained in
any superior lease or in any lease of space in the Building executed and delivered on or prior to
the date hereof (which restrictions, exclusive use rights and negative covenants are set forth in
Exhibit L hereto);



               (iii) the proposed assignee or subtenant is a reputable person of good character and, in the
case of a proposed assignment of this Sublease or a Substantial Sublease, the assignee or
subtenant, as the case may be, satisfies the A/S Net Worth Test and Landlord has been furnished
with reasonable proof thereof;



               (iv) if, on the date that Landlord receives the A/S Notice, Landlord, in Landlord’s reasonable
determination, has available for leasing, or expects to have available for leasing during the six
(6) month period commencing on such date, space in the Building that is comparable in size to the
Premises (in the case of a proposed assignment by Tenant) or comparable in size to the portion of
the Premises that Tenant desires to sublet (in the case of a proposed subletting by Tenant),
neither (x) the proposed assignee or subtenant nor (y) any person that, directly or indirectly,
controls, is controlled by, or is under common control with, the proposed assignee or subtenant or
any person who controls the proposed assignee or subtenant, is then an occupant or tenant of any
part of the Building, it being understood and agreed that the condition set forth in this
subsection (iv) shall only apply if on the date Landlord receives the A/S Notice, the Tenant under
this Sublease is not a JetBlue Tenant (as such term is defined in Section 9.11(g) hereof);



               (v) if, on the date that Landlord receives the A/S Notice, Landlord, in Landlord’s reasonable
determination, has available for leasing, or expects to have available for leasing during the six
(6) month period commencing on such date, space in the Building that is comparable in size to the
Premises (in the case of a proposed assignment by Tenant) or comparable in size to the portion of
the Premises that Tenant desires to sublet (in the case of a proposed subletting by Tenant), the
proposed assignee or subtenant is not a person with whom Landlord is then, or shall



65









 




have been
during the previous six (6) month period, negotiating to lease space in the Building;




               (vi) the proposed assignment agreement or sublease agreement, as the case may be, shall be in
form and content reasonably satisfactory to Landlord and shall comply with the applicable
provisions of this Article, it being agreed that if A/S Notice is accompanied by an A/S Term Sheet
in lieu of a fully executed counterpart of the proposed assignment or sublease, and Landlord
consents to the proposed assignment or sublease, such consent may be conditioned, among other
things, upon the delivery to Landlord, within five (5) Business Days after the effective date of
the
proposed assignment or commencement date of the proposed sublease, as the case may be, of a
fully executed counterpart of the proposed assignment or sublease, as the case may be, that is in
form and content reasonably satisfactory to Landlord, which complies with the applicable provisions
of this Article and which contains the same or, in Landlord’s reasonable determination,
substantially the same, rental, economic and other material terms and conditions as those contained
in the A/S Term Sheet, as the case may be, it being understood and agreed that if the fully
executed counterpart of the proposed assignment or sublease, as the case may be, so delivered to
Landlord is not in form and content reasonably satisfactory to Landlord, does not comply with the
applicable provisions of this Article or does not contain the same or, in Landlord’s reasonable
determination, substantially the same, rental, economic and other material terms and conditions as
those contained in the A/S Term Sheet, as the case may be, Tenant may deliver a revised fully
executed counterpart of the proposed assignment or sublease, as the case may be, to Landlord, and
if such revised counterpart is delivered within thirty (30) days after Landlord notifies Tenant
that the counterpart first delivered to Landlord pursuant to this subsection (vi) does not comply
with the provisions of this subsection (vi), Landlord shall notify Tenant within five (5) Business
Days after Landlord’s receipt of such revised counterpart as to whether or not such revised
counterpart complies with the provisions of this subsection (vi);



               (vii) without Landlord’s written consent, at no time shall there be more than six (6)
separately demised spaces on any Base Floor on which the Premises or a portion thereof are located
or more than two (2) separately demised spaces on any Tower Floor on which the Premises or a
portion thereof are located, in all cases including Tenant and Landlord (or its designee(s));



               (viii) (x) in the case of a proposed assignment of this Sublease or a Material Sublease, the
actual effective date of the assignment or the actual commencement date and the expiration date of
the proposed subletting, are within one (1) year of the A/S Recapture Surrender Date, (y) in the
case of a proposed Material Sublease, the portions of the Premises covered by the Material Sublease
(including such portions of the Premises in respect of which the subtenant will have an option or
right to sublet) include at least seventy-five (75%) percent of the portions of the Premises
(including such portions of the Premises in respect of which the subtenant will have an option or
right to sublet) described in the A/S Recapture Notice and A/S Recapture Information furnished to
Landlord pursuant to Section 9.02, and (z) in the



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case of a proposed assignment of this Sublease or
a Material Sublease, the A/S Notice Date is not more than 180 days after the A/S Recapture Notice
Date, it being understood and agreed that the provisions of this subsection (viii) shall not apply
in the case of a proposed assignment of this Sublease or a Material Sublease when an A/S Notice was
given in lieu of an A/S Recapture Notice or an A/S Notice was given in connection with the
rescission and revocation of an A/S Recapture Notice, in either case pursuant to the provisions of
subsection 9.02(d) above;




               (ix) Intentionally omitted; and



               (x) the proposed subtenant or assignee shall not be a Competitor Entity, or an Affiliate
thereof, without Landlord’s consent, which consent may be withheld in Landlord’s sole discretion.
For purposes of this Article 9, a “Competitor Entity” shall mean any of the ten (10) companies
identified by the names, or commonly referred to as, AIG, Aon, AXA, The Hartford, John Hancock, New
York Life, Prudential. SunLife, USAA or Northwestern Mutual, and any of said companies’ Affiliates
which are in the insurance business or share the name (or a derivative of the name) of any of said
companies. Landlord may replace any of the foregoing named Competitor Entities with another
company upon notice to Tenant (which notice shall not be given more frequently than two (2) times
in any 12-month period, except that if Tenant is already in negotiations with such replacement
company at the time of such notice, Tenant shall have one hundred thirty-five (135) days from
receipt of such notice to execute such sublease or assignment with such company, before such
replacement entity would be deemed a Competitor Entity); and



               (xi) Tenant shall not have: (x) advertised or publicized to the public in any way the
availability of the Premises without prior notice to, and approval by, Landlord, which approval
shall not be unreasonably withheld or delayed (it being understood and agreed that the mere listing
of the availability of the space in question shall not be deemed “advertised or publicized to the
public”), nor shall any advertisement state the name (as distinguished from the address) of the
Building or the proposed rental, or (y) listed the Premises for subletting or assignment at a
rental rate less than the base rent and additional rent at which Landlord is then offering to lease
other space in the Building, it being understood and agreed that provided such listing is not at a
rental rate that is less than the base rent and additional rent at which Landlord is then offering
to lease other space in the Building, Landlord’s approval of such listing shall not be required.



          (e) If within fifteen (15) Business Days after the A/S Notice Date, Landlord fails to respond
to Tenant’s request for Landlord’s consent to the proposed assignment or subletting (whether by
granting or denying such consent or by requesting any of the additional information or
documentation to which Landlord is entitled under this Article 9), Tenant shall have the right to
provide Landlord with a second (2nd) written request for consent (a “Second Article 9
Request”) that specifically identifies the proposed transaction and contains substantially the
following statement in bold and CAPITAL letters: “THIS IS A SECOND ARTICLE 9 REQUEST




67









 







FOR LANDLORD’S CONSENT TO THE PROPOSED TRANSACTION DESCRIBED HEREIN PURSUANT TO THE PROVISIONS OF
ARTICLE 9 OF THE SUBLEASE. IF LANDLORD FAILS TO RESPOND WITHIN TEN (10) DAYS AFTER TENANT GIVES
THIS NOTICE TO LANDLORD, THEN LANDLORD SHALL BE DEEMED TO HAVE CONSENTED TO THE PROPOSED
TRANSACTION DESCRIBED HEREIN.” If Landlord fails to respond to such Second Article 9 Request
within ten (10) days after Tenant gives to Landlord the Second Article 9 Request, Landlord shall
be deemed to have consented to the proposed transaction only. If Landlord responds to the first
request for Landlord’s consent or to the Second Article 9 Request by requesting any of the
additional information or documentation to which Landlord is entitled under this Article 9,
such request by Landlord shall not invalidate the A/S Notice in question, but the fifteen (15)
Business Day period or the ten (10) day period, as the case may be, set forth in this subsection
(e) shall commence on the date that Landlord receives such additional information or
documentation.




          (f) If Landlord denies its consent to a proposed assignment or sublease, Landlord shall
provide Tenant with the reasons for such denial in writing. Any dispute between Landlord and
Tenant as to whether Landlord unreasonably withheld or conditioned its consent to a proposed
assignment or sublease in those instances where, pursuant to this Article, Landlord’s consent is
not to be unreasonably withheld, conditioned or delayed, shall be resolved by expedited
arbitration in accordance with the provisions of Article 34 of this Sublease.




     9.06 (a) Tenant shall reimburse Landlord within thirty (30) days after Landlord’s demand, as
Additional Rent, for all actual, third-party reasonable costs and expenses that may be incurred or
paid by Landlord in connection with all proposed assignments and subleases (including proposed
assignments of any subleases and further sublettings by any subtenant), including the costs of
making investigations as to the acceptability of the proposed assignee or subtenant, and reasonable
third-party legal costs incurred in connection with the reviewing of the proposed assignment or
subletting and all of the documents and other information related thereto, and the preparation of
Landlord’s consent to the proposed transaction and all related documents (which costs and expenses
Tenant covenants and agrees to reimburse to Landlord regardless of whether Landlord consents to the
proposed assignment or sublease or whether such consent is required hereunder).



          (b) If Tenant fails to execute and deliver the assignment or sublease to which Landlord
consented within eight (8) months after the giving of such consent, then Tenant shall again comply
with all of the provisions and conditions of Sections 9.02 (to the extent applicable) and 9.05,
before assigning this Sublease or subletting all or part of the Premises.




          (c) With respect to each and every assignment of this Sublease or sublease of all or any
portion of the Premises, whether or not consent is required under this Article, the assignment
agreement or sublease agreement, as the case may be, shall expressly provide that the assignee’s
or subtenant’s use of the Premises or




68









 







the portion(s) thereof being sublet, as the case may be, is
expressly limited to the Permitted Uses and is expressly subject to all of the limitations and
restrictions set forth in this Sublease, including all of the provisions of Article 2 above.




     9.07 Each subletting pursuant to this Article (including further sublettings by a subtenant
that are expressly permitted by this Article or approved by Landlord) shall be subject to all of
the covenants, agreements, terms, provisions and conditions contained in this Sublease.
Notwithstanding any subletting and/or acceptance of rent or Additional Rent by Landlord from any
subtenant, Tenant shall and will remain fully liable for the
payment of the Base Rent and Additional Rent due, and to become due, hereunder, for the
performance of all of the covenants, agreements, terms, provisions and conditions contained in this
Sublease on the part of Tenant to be performed and for all acts and omissions of any licensee,
subtenant, or any other person claiming under or through any subtenant that shall be in violation
of any of the obligations of this Sublease, and any such violation shall be deemed to be a
violation by Tenant. Tenant further agrees that, notwithstanding any such subletting, no other and
further subletting of the Premises by Tenant or any Tenant Party (except as provided in Section
9.04), shall or will be made. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options under Section 9.02, Tenant
shall indemnify, defend and hold Landlord harmless from and against any and all losses,
liabilities, damages, costs and expenses (including all legal, litigation and courts costs
(including attorney’s fees), expenses and disbursements for which Landlord may be liable), that are
paid by, imposed upon, incurred by or asserted against, Landlord arising under or out of, or in
connection with, or resulting from any claims that may be made against Landlord by the proposed
assignee or subtenant or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease, other than claims made against
Landlord by Landlord’s managing agent for the Building in its capacity of Landlord’s managing
agent.



     9.08 With respect to each and every sublease or subletting, whether or not consent is required
under this Article, it is further agreed that:



          (a) except as otherwise expressly permitted pursuant to Section 9.19, no subletting shall be
for a term ending later than one day prior to the last day of the initial Term, and no sublease
shall provide for an option on behalf of the subtenant thereunder to extend or renew the term of
such sublease beyond the date which is one day prior to the last day of the initial Term;




          (b) no sublease shall be valid, and no subtenant shall take possession of the Premises or any
part thereof, if a true, accurate and complete copy of a fully-executed counterpart of such
sublease, consistent with the provisions of subsection 9.05(d)(vi) above, has not been delivered
to Landlord;




          (c) if there are one (1) or more guaranties of any of Tenant’s obligations under this
Sublease, no sublease shall be valid, and no subtenant shall take possession of the Premises or
any part thereof, until all guarantors under all




69









 







guaranties duly execute, acknowledge and deliver
to Landlord an amendment to, and/or ratification of, such guaranties, prepared by Landlord, which
confirms that such guaranties include and cover Tenant’s obligations under this Sublease with
respect to such sublease and is otherwise in full force and effect; and




          (d) each sublease shall provide that it is subject and subordinate to this Sublease and to
the matters to which this Sublease is or shall be subordinate, and that, in the event of
termination, re-entry, or dispossess by Landlord under this Sublease, Landlord may, at its option,
take over all of the right, title and interest of
Tenant as sublandlord 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 (or its predecessor in interest) under
such sublease, it being understood, however, that Landlord shall be liable for the future
performance of any such acts or omissions upon its becoming successor sublandlord, excluding
monetary claims against Landlord (or any of its predecessors-in-interest), to the extent that such
acts or omissions continue as a default under such sublease after the subtenant’s attornment to
Landlord;



               (ii) subject to any credits, offsets, claims, counterclaims, demands or defenses which the
subtenant may have against Tenant (or its predecessors in interest);



               (iii) bound by any previous modification of such sublease or by any previous prepayment of
more than one month’s rent, unless such modification or prepayment shall have been expressly
approved in writing by Landlord;



               (iv) bound by any covenant to undertake or complete any construction of the premises demised
to the subtenant or any portion thereof or to perform any other work that Tenant is obligated to
perform or to pay for or reimburse the subtenant for any costs incurred in connection with any
construction or work;



               (v) required to account for any security deposit of the subtenant other than any security
deposit actually delivered to Landlord;



               (vi) liable for the obligations of Tenant under such sublease for any period of time other
than such period as Landlord holds such interest;



               (vii) responsible for any monies owing by Tenant to the credit of the subtenant;



               (viii) bound by any obligation to make any payment to the subtenant or grant or be subject to
any credits; or



70









 





               (ix) bound by any obligation to provide any service or furnish any utility that Landlord is
not obligated to provide or furnish under this Sublease to the portion of the Premises demised to
the subtenant under such sublease.



     9.09 No assignment shall be valid, and no assignee shall take possession of the Premises or
any part thereof, if a true, accurate and complete copy of a fully-executed counterpart of the
assignment and assumption agreement, consistent with the provisions of subsection 9.05(d)(vi)
above, has not been delivered to Landlord. Any assignment or transfer by Tenant of this Sublease
or any assignment or transfer of any of Tenant’s interest herein, whether or not Landlord’s consent
is required under this Article, shall be made only if, and shall not be effective until, (a) except
in the case of a
Controlling Interest Transfer of the type described in clause “(i)” of subsection 9.11(a)
below, the assignee executes, acknowledges and delivers to Landlord an agreement, in form and
substance comparable to assignment and assumption agreements executed in comparable first class
office buildings located in the Borough of Queens and otherwise reasonably satisfactory to Landlord
and Tenant, whereby the assignee assumes all of the terms, covenants and conditions of this
Sublease on the part of Tenant to be observed, performed or complied with and whereby the assignee
or transferee agrees that the provisions contained in Section 9.01 shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect of all future assignments and
transfers, and (b) if there are one (1) or more guaranties of any of Tenant’s obligations under
this Sublease, all guarantors under all guaranties duly execute, acknowledge and deliver to
Landlord an amendment to, and/or ratification of, such guaranties, prepared by Landlord, which
confirms that such guaranties include and cover such assignment and is otherwise in full force and
effect. The original named Tenant, and all successors-in-interest to the original named Tenant (by
assignment or otherwise), covenant that, notwithstanding any assignment or transfer of this
Sublease, whether or not in violation of the provisions of this Sublease, and notwithstanding the
acceptance of Base Rent and/or Additional Rent by Landlord from an assignee, transferee, or any
other party, the original named Tenant and each such successor-in-interest shall remain fully
liable for the payment of the Base Rent and Additional Rent and for the other terms, covenants and
conditions of this Sublease on the part of Tenant to be observed, performed or complied with.



     9.10 (a) If Landlord shall give its consent to any assignment of this Sublease or to any
sublease (or if such consent shall be deemed given pursuant to the provisions of this Article),
Tenant shall in consideration therefor, pay to Landlord, as Additional Rent:



                 (i) in the case of an assignment, an amount equal to [***]% of the amount equal to (x) all
sums and other consideration (collectively, the “Assignment Consideration”) paid for or by reason
of such assignment, whether payable to, or on behalf of, Tenant or any other person (including the
direct or indirect owner of an





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




71









 









interest in Tenant), by, or on behalf of, the assignee or any other
person (including the transferee of a direct or indirect ownership interest in Tenant) (including
sums payable for the sale or rental of fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property), less (y) (A) in the case of a sale of Tenant’s equipment,
furniture, furnishings or other personal property where a portion of the Assignment Consideration
is specifically and expressly allocated to the sale of Tenant’s equipment, furniture, furnishings
or other personal property, the then fair market value thereof, up to the portion of the Assignment
Consideration specifically and expressly allocated thereto, (B) if substantially all of the
Tenant’s Work will remain and be used by such assignee, the sum of (I) the Office Space Unamortized
TW Cost (as hereinafter defined) multiplied by the Office Space Assignment Factor (as hereinafter
defined), if applicable, plus (II) the Storage Space
Unamortized TW Cost (as hereinafter defined) multiplied by the Storage Space Assignment Factor
(as hereinafter defined), if applicable (provided, however, if the Premises will be substantially
demolished for or by such assignee, no portion of the Office Space Unamortized TW Cost and Storage
Space Unamortized TW Cost (collectively, the “Unamortized TW Cost”) shall be deducted), (C) the
third-party, out-of-pocket costs and expenses, to the extent reasonable, paid or incurred by Tenant
in connection with such assignment, for alteration costs, tenant improvement allowances,
advertising, brokerage or consulting fees or commissions, reasonable third-party legal fees, net
takeover costs in assuming the assignee’s lease obligations at another location and other customary
concessions, and (D) all amounts paid by Tenant to the Existing Lessor in respect of the assignment
(the amounts described in clauses (A) through (D) being hereinafter referred to as the “Assignment
Expenses”); and




               (ii) in the case of a sublease, an amount equal to [***]% (subject to the provisions of
subsection 9.10(i) below) of the amount, in the aggregate, equal to (x) all rents, Additional
Rents, charges and other consideration (collectively, the “Subletting Consideration”) paid under
the sublease to, or on behalf of, Tenant by, or on behalf of, the subtenant or any other person, to
the extent such amounts, in the aggregate, exceed the Base Rent and Additional Rent accruing during
the term of the sublease in respect of the subleased space (at the rate per square foot payable by
Tenant hereunder) pursuant to the terms hereof (including sums payable for the sale or rental of
fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property),
after first deducting (y) (A) in the case of the sale of Tenant’s equipment, furniture, furnishings
or other personal property where a portion of the Subletting Consideration is specifically and
expressly allocated to the sale of Tenant’s equipment, furniture, furnishings or other personal
property, the then fair market value thereof, up to the portion of the Subletting Consideration
specifically and expressly allocated thereto, (B) if substantially all of the Tenant’s Work in the
A/S Subject Space will remain and be used by such subtenant, the sum of (I) the Office Space
Unamortized TW Cost multiplied by the Office Space Sublet Factor (as hereinafter defined), if





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






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applicable, plus (II) the Storage Space Unamortized TW Cost multiplied by the Storage Space Sublet
Factor (as hereinafter defined), if applicable (provided, however, if the A/S Subject Space will be
substantially demolished for or by such subtenant, no portion of the Unamortized TW Cost shall be
deducted), (C) the third-party, out-of-pocket costs and expenses, to the extent reasonable, paid or
incurred by Tenant in connection with such subletting, for alteration costs, tenant improvement
allowances, rent concessions, advertising, brokerage or consulting fees or commissions, reasonable
third-party legal fees, net takeover costs in assuming the subtenant’s lease obligations at another
location and other customary concessions, and (D) all amounts paid by Tenant to the Existing Lessor
in respect of the sublease (the amounts described in clauses (A) through (D) being hereinafter
referred to as the
“Subletting Expenses”). For the purpose of this Sublease, “Subletting Consideration” shall
also include all amounts payable to Tenant in connection with the amendment, modification,
extension, renewal or termination of the sublease in question.




          (b) The sums payable under subsection 9.10(a) shall be paid to Landlord as and when the
Assignment Consideration or Subletting Consideration is paid by, or on behalf, of the assignee,
subtenant or any other person, as the case may be (e.g. if monthly sublet rent is $[***] RSF and
Tenant’s rent is $[***] RSF, Tenant’s Subletting Expenses are $[***], then Tenant pays nothing to
Landlord pursuant to this Section 9.10 for three months and thereafter Tenant shall remit $[***]
per month to Landlord). Within ten (10) days after Landlord gives Tenant a written request
therefor, Tenant shall deliver to Landlord a statement of the Assignment Consideration and the
Assignment Expenses, or the Subletting Consideration and the Subletting Expenses, as the case may
be, certified as true, complete and correct by an officer or principal of Tenant. In addition,
within ten (10) days after Landlord gives Tenant a written request therefor, Tenant shall provide
Landlord with such other reasonable documentation so as to enable Landlord to verify the
Assignment Consideration and the Assignment Expenses, or the Subletting Consideration and the
Subletting Expenses, as the case may be, and to confirm that the obligations under this Section
have been observed, performed and complied with. In the event of any dispute with respect to the
Assignment Consideration, the Assignment Expenses, the Subletting Consideration or the Subletting
Expenses, such dispute shall be determined by arbitration in accordance with the provisions of
Article 34 hereof.




          (c) For the purposes of this Sublease, “Office Space Unamortized TW Cost” means the product
of (i) the lesser of (A) the total cost and expense paid or incurred by Tenant (excluding any
portion of the Tenant Allowance) as the so-called “hard costs” of the Tenant’s Work with respect
to the Office Space in question to third-party contractors, subcontractors, construction managers,
suppliers and materialmen that are not Related Entities (as certified to Landlord, without
prejudice to Landlord’s right to dispute such certification, in a written statement of an
executive officer of Tenant, incurred within two (2) years after the Commencement Date with
respect to






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.










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the initial Office Space and within two (2) years after the date that any subsequent
Office Space is added to the premises demised under this Sublease),
or (B) $[***] multiplied by
the RSF of the Office Space in question, multiplied by (ii) the fraction, the numerator of which
is the number of days during the period commencing on the effective date of the assignment in
question or the commencement date of the sublease in question, as the case may be, and ending on
the last day of the initial Term (in the case of an assignment) or on the last day of
the initial term of the sublease (in the case of a sublease), and the denominator of which is
the number of days during the period commencing on the Commencement Date with respect to the
initial Office Space or the date that any subsequent Office Space is added to the premises demised
under this Sublease, and ending on the last day of the initial Term.




          (d) For the purposes of this Sublease, “Storage Space Unamortized TW Cost” means the product
of (i) the lesser of (A) the total cost and expense paid or incurred by Tenant as the so-called
“hard costs” of the Tenant’s Work with respect to the Storage Space in question to third-party
contractors, subcontractors, construction managers, suppliers and materialmen that are not Related
Entities(as certified to Landlord in a written statement of an executive officer of Tenant,
incurred within two (2) years after the Commencement Date with respect to the initial Office Space
and within two (2) years after the date that any subsequent Office Space is added to the premises
demised under this Sublease), or (B) $[***], multiplied by the RSF of the Storage Space in
question, multiplied by (ii) the fraction, the numerator of which is the number of days during the
period commencing on the effective date of the assignment in question or the commencement date of
the sublease in question, as the case may be, and ending on the last day of the initial Term (in
the case of an assignment) or on the last day of the initial term of the sublease (in the case of
a sublease), and the denominator of which is the number of days during the period commencing on
the Commencement Date, and ending on the last day of the initial Term.




          (e) The officer’s statements given by Tenant shall be conclusive and binding upon Landlord
unless within 180 days after the receipt of a statement Landlord shall notify Tenant that Landlord
disputes the correctness of the statement in question. If such dispute shall not have otherwise
been settled by agreement within thirty (30) days after Landlord notifies Tenant of the dispute,
Landlord shall have the right to submit the dispute to arbitration within one hundred eighty (180)
days after the expiration of such thirty (30) day period. If Landlord so notifies Tenant of a
dispute, Tenant agrees, at no cost or expense to Tenant, to grant Landlord or an accounting or
auditing firm of reputable quality designated by Landlord, subject to the provisions of this
Section, reasonable access to the books and records of Tenant (other than privileged materials)
for the purpose of verifying the Office Space Unamortized TW Costs and/or Storage Space
Unamortized TW Costs, as the case may be, and to have and make copies of any and all bills and
vouchers relating to such dispute. Landlord agrees that if it is using a representative, such
person shall not be engaged on a






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.


 



74









 








contingent fee basis. Landlord may perform such examination at
reasonable times, in the office of Tenant, Tenant’s agent or accountant, as reasonably designated
by Tenant, Tenant hereby agreeing that the location designated by Tenant shall be in the
continental United States. Landlord agrees that Landlord will not employ, in connection with any
review or dispute under this Section, any person who is to be compensated on a contingency fee
basis. In connection with any such review, audit or dispute, Landlord and its representatives
shall execute and deliver to Tenant a confidentiality agreement, in form and substance reasonably
satisfactory to Landlord
and Tenant, whereby such parties agree not to disclose to any unrelated third party any of
the information obtained in connection with such review or audit, or the substance of any
admissions or stipulations by any party in connection therewith, or of any resulting
reconciliation, compromise or settlement (subject, however, to the disclosure of the information
that Landlord or Landlord’s accountant derives from such examination to Landlord’s counsel or
other professional advisors that in either case agree to maintain such information in confidence,
or to the extent reasonably required by Landlord to enforce Landlord’s rights hereunder or as may
be required by Legal Requirements). Landlord shall pay the fees and expenses relating to such
audit, unless such audit shall determine that the statement in question overstated the Office
Space Unamortized TW Costs or the Storage Space Unamortized TW Costs by more than 5%, in which
case Tenant shall pay such commercially reasonable fees and expenses of the accounting or auditing
firm designated by Landlord to conduct such audit. Pending the resolution of any dispute, Tenant
shall pay to Landlord the Assignment Consideration or Subletting Consideration, as the case may
be, payable in accordance with the disputed statement, such payment to be without prejudice to
Landlord’s position. If the dispute shall be determined in Landlord’s favor, Tenant shall, within
thirty (30) days after Landlord’s demand therefor, pay to Landlord the amount of Tenant’s
underpayment, if any, of the Assignment Consideration or Subletting Consideration, as the case may
be, resulting from compliance with the statement, together with interest thereon at the rate of
two (2%) percentage points in excess of the Prime Rate.




          (f) For the purposes of this Sublease, “Office Space Assignment Factor” means the fraction,
the numerator of which is [***], and the denominator is [***].




          (g) For the purposes of this Sublease, “Storage Space Assignment Factor” means the fraction,
the numerator of which is [***], and the denominator is [***].




          (h) For the purposes of this Sublease, “Office Space Sublet Factor” means the fraction, the
numerator of which is [***], and the denominator is [***].






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






75








 








          (i) For the purposes of this Sublease, “Storage Space Sublet Factor” means the fraction, the
numerator of which is [***], and the denominator is [***].




          (j) Notwithstanding anything contained in subsection (a)(ii) above to the contrary, Tenant
shall not sublet (or, except pursuant to Section 9.17 hereof, otherwise permit the use of by
third-parties) any portion of any ROFO Space (as such term is defined in Section 44.01 below)
within one (1) year after the date such ROFO Space (or applicable portion) was added to the
premises demised under this Sublease, and, with respect to any sublease of all or any portion of
ROFO Space which is added to the premises demised under this Sublease, the [***] percentage set
forth in said subsection (a)(ii) shall be [***] to [***]%.




          (k) Notwithstanding anything contained in this Sublease to the contrary, if any amounts are
payable to the Existing Lessor pursuant to the Existing Superior Lease in respect of any
assignment of this Sublease or any sublease (including sub-subleases) of any portion of the
Premises, such amounts shall be calculated, and paid by Tenant to the Existing Lessor, in
accordance with, and subject to, the applicable provisions of the Existing Superior Lease,
regardless of whether, pursuant to the provisions of the Existing Superior Lease, Landlord has the
obligation to make such payments. At the election of Landlord, the amounts described in this
subsection (j) shall be paid by Tenant to Landlord, in which event Landlord shall pay same to the
Existing Lessor.




     9.11 (a) For the purpose of this Article, the following are “Controlling Interest Transfers”
to which Section 9.01 shall apply as if any of such Controlling Interest Transfers were an
assignment of Tenant’s interest in this Sublease, requiring, among other things, the prior consent
of Landlord in accordance with, and subject to, the applicable provisions of this Sublease, except
as otherwise expressly provided in subsection (c) below: (i) The issuance or transfer of interests
in Tenant or any guarantor of any of Tenant’s obligations under this Sublease (a “Guarantor”) or
any person (a “Parent”) that directly or indirectly controls Tenant or any Guarantor (whether
stock, partnership interests, interests in a limited liability company or otherwise) to a person or
group of related persons, whether in a single transaction or a series of related or unrelated
transactions, in such quantities that after such issuance or transfer, control of Tenant, such
Guarantor or Parent (as it shall be constituted after giving effect to such issuance or transfer of
interests in Tenant, Guarantor or Parent, as the case may be), directly or indirectly, shall have
changed, (ii) the merger or consolidation of Tenant, a Guarantor or a Parent into or with any other
entity, or (iii) the acquisition by a third-party, of all or substantially all of the assets of
Tenant, a Guarantor or a Parent. Any person or legal representative of Tenant, to whom Tenant’s
interest under this Sublease passes by operation of law, or otherwise, shall be bound by the
provisions of this Article.





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






76









 








          (b) For the purposes of this Sublease, (i) an assignment of Tenant’s interest in this
Sublease to a Related Entity of Tenant (“Tenant Operating Company”) which is the entity primarily
and directly responsible for the day-to-day airline operations of Tenant’s airline business, or
the business of the then primary airline of Tenant if Tenant operates more than one airline, is
herein referred to as a “Related Entity Assignment,” and (ii) a sublease of all or any portion of
the Premises to a Related Entity of Tenant is herein referred to as a “Related Entity Sublease,”
it being understood and agreed that no assignment of this Sublease shall be permitted pursuant to
this Section 9.11 to a Related Entity of Tenant that is not the Tenant Operating Company or to any
Related Entity of Tenant if Tenant is not a JetBlue Tenant or if Tenant is not in the airline
business.




          (c) Notwithstanding anything contained in subsection (a) above to the contrary, to the extent
Tenant, a Parent or a Guarantor is a corporation listed and traded on a nationally recognized
stock exchange or over-the-counter market, a Controlling Interest Transfer in such Tenant, such
Parent or such Guarantor of the type described in clause “(i)” of subsection (a) above that is not
otherwise the type of Controlling Interest Transfer described in clauses “(ii)” or “(iii)” of said
subsection, shall not be deemed an assignment of this Sublease. In addition, (i) a Controlling
Interest Transfer of the type described in clause “(ii)” of said subsection (a), (ii) a
Controlling Interest Transfer of the type described in clause “(i)” or “(iii)” of said subsection
(a) to effectuate the bona fide sale of the business being conducted by Tenant in the Premises (a
“Business Sale”), or (iii) a Related Entity Assignment or a Related Entity Sublease, shall not
require Landlord’s consent, provided that:




                    (A) At least thirty (30) days prior to the effective date or commencement date, as the case
may be, of the proposed assignment or sublease, or within thirty (30) days after the effective date
of the Controlling Interest Transfer, as the case may be, Tenant gives to Landlord a notice
containing or accompanied by (i) a statement setting forth the identity of the proposed assignee,
subtenant or successor Tenant or, as the case may be, including the names and addresses of the
proposed assignee, subtenant or successor Tenant, and, except in the case of a proposed assignee,
subtenant or successor Tenant that is listed and traded on a nationally recognized stock exchange
or over-the-counter market, the names and addresses of each of its constituent members,
shareholders, partners and/or other principals that own (directly or indirectly) a twenty-five
(25%) percent (or more) interest in the proposed assignee, subtenant or successor Tenant; (ii)
reasonably satisfactory information describing, in reasonable detail, the proposed assignment,
sublease or Controlling Interest Transfer; and (iii) in the case of an assignment or sublease, a
fully executed counterpart of the proposed assignment or sublease, the effective or commencement
date of which shall be not less than thirty (30) nor more than 180 days after the giving of such
notice, it being understood and agreed that if the notice, in the case of a Controlling Interest
Transfer, is given after the effective date thereof and the terms of the Controlling Interest
Transfer do not (or are found not to) satisfy the requirements or conditions for the Controlling
Interest Transfer to not require Landlord’s consent, as provided in this Section 9.11, then such
Controlling Interest Transfer shall be a default



77









 




under this Sublease, entitling Landlord to
exercise any or all of its rights and remedies under, at law and in equity, notwithstanding the
fact that it may be impossible or commercially unreasonable or impractical to unwind the
Controlling Interest Transfer in question;




                    (B) In the case of a Related Entity Assignment or a Related Entity Sublease, no Event of
Default exists on the date Landlord receives the notice described in subsection (A) above;



                    (C) The proposed transaction is primarily for a valid business purpose other than for the
purpose of transferring the leasehold estate created hereby;



                    (D) In the case of any Controlling Interest Transfer, immediately after the effective date
thereof the Tenant under this Sublease shall have an Acceptable Credit Rating (as hereinafter
defined) and reasonable proof that such condition is or shall be satisfied shall have been
delivered to Landlord at least ten (10) Business Days prior to the effective date of such
Controlling Interest Transfer, Landlord hereby agreeing, if Tenant so requests, to execute and
deliver to Tenant a confidentiality agreement, in form and substance reasonably satisfactory to
Landlord and Tenant, whereby Landlord and its representatives agree not to disclose to any
unrelated third party any of the non-public information contained in such proof, subject, however,
to the disclosure of the information that Landlord derives from the examination of such proof to
Landlord’s counsel or other professional advisors that in either case agree to maintain such
information in confidence, or to the extent reasonably required by Landlord to enforce Landlord’s
rights hereunder or as may be required by Legal Requirements;



                    (E) In the case of a Business Sale of assets, Tenant assigns its interest in this Sublease, in
accordance with, and subject to, the applicable provisions of this Article, to the person acquiring
all or substantially all of the assets of Tenant;



                    (F) In the case of a Related Entity Assignment or a Related Entity Sublease, a reasonably
detailed statement detailing the legal and beneficial connection between the Tenant and the
assignee or subtenant in question, and establishing that such assignee or subtenant is, in fact,
the Tenant Operating Company (in the case of a Related Entity Assignment) or a Related Entity of
Tenant (in the case of a Related Entity Sublease), as certified to Landlord, without prejudice to
Landlord’s right to dispute such certification, in a written statement of an executive officer of
Tenant, shall have been delivered to Landlord at least fifteen (15) days prior to the effective
date of any Related Entity Assignment or the commencement date of any Related Entity Sublease;



                    (G) The purposes for which the Tenant under this Sublease from and after the effective date of
such Controlling Interest Transfer or Related Entity Assignment, as the case may be, or for which
the subtenant under a



78









 





Related Entity Sublease from and after the commencement date thereof, shall
use the Premises are limited to the Permitted Uses, in accordance with, and subject to, the terms,
covenants and conditions of this Sublease;




                    (H) An executed duplicate original of the assignment and assumption agreement (in the case of
a Business Sale or Related Entity Assignment) or
sublease (in the case of a Related Entity Sublease), which complies with the applicable
provisions of this Article, shall be delivered to Landlord within thirty (30) days after the
effective date of the Business Sale or Related Entity Assignment or the commencement date of the
Related Entity Sublease, said assignment and assumption agreement or sublease, as the case may be,
and the terms and conditions of the assignment or sublease satisfy the applicable requirements of
this Article;



                    (I) Other than in the case of a Related Entity Assignment or a Related Entity Sublease, within
thirty (30) days after Landlord’s request, Tenant shall deliver to Landlord a certified copy of a
duly adopted resolution of the board of directors of both Tenant and the assignee in connection
with a Business Sale, authorizing the execution, acknowledgment and delivery of said assignment and
assumption agreement or sublease, and the transactions contemplated therein, which resolutions may
be specific to the transactions relating to this Sublease or may be general and relate to the
transaction;



                    (J) Tenant (in the case of a Controlling Interest Transfer, Business Sale or a Related Entity
Sublease) or the assignor (in the case of a Related Entity Assignment) shall and will remain fully
liable for the payment of the Base Rent and Additional Rent due and to become due under this
Sublease and shall not be released from any of its obligations or liabilities under this Sublease
and Tenant shall be fully responsible and liable for all acts or omissions of the subtenant (in the
case of a Related Entity Sublease) or the assignee (in the case of a Business Sale or Related
Entity Assignment) or any person claiming by, through or under Tenant, or such subtenant or such
assignee, as the case may be; and



                    (K) Such assignee or subtenant (in the case of a Related Entity Assignment or a Related Entity
Sublease), as of the effective date of such assignment or the commencement date of such sublease,
as the case may be, and, subject to the provisions of subsection 9.11(d) below, all times
thereafter, is a Related Entity; and



          (d) In connection with the information to be provided to Landlord pursuant to this Section,
within twenty (20) days after Landlord’s request from time to time, Tenant shall deliver to
Landlord a certification from both Tenant and its assignee, in the case of a Related Entity
Assignment, and from both Tenant and the subtenant, in the case of a Related Entity Sublease, that
Tenant and, the assignee or the subtenant, as the case may be, remains a Related Entity, together
with such other information and documentation reasonably requested by Landlord to evidence and
substantiate the relationship between Tenant and its assignee, or Tenant and its



79









 







subtenant, as the
case may be. If, at any time after the effective date of a Related Entity Assignment or the
commencement date of a Related Entity Sublease, the assignee or subtenant thereunder is no longer
a Related Entity, then such event shall be a default under this Sublease, and Tenant’s right to
assign this Sublease or sublet the Premises to such person entity pursuant to this Section 9.11
without Landlord’s consent shall be deemed revoked and rescinded, and, if Tenant desires for such
person to remain an assignee
of Tenant’s interest in this Sublease or a subtenant of the Premises, as the case may be,
Tenant shall request Landlord’s consent to assign this Sublease or sublet the Premises to such
person pursuant to, and shall follow the procedures set forth in, this Article 9, and all of the
provisions of this Article 9 shall apply to such request to assign this Sublease or sublet the
Premises to such person, and to the assignment or subletting and sublease, as the case may be,
itself (if Landlord consents to such assignment or subletting). If Landlord exercises the
Landlord’s Option (to the extent applicable), then, for the purposes of Section 9.03 above, the
effective date of the assignment or the commencement date of the sublease, as the case may be, to
such person shall be deemed to be sixty (60) days after the date on which Landlord receives the
A/S Notice, notwithstanding the fact that such assignment or sublease is already in effect and the
term thereof has theretofore commenced. If Tenant fails to give to Landlord an A/S Notice in
respect of the assignment or sublease to such person within ten (10) days after such person is no
longer a Related Entity, such failure shall be deemed an election by Tenant not to continue such
assignment or sublease. If Tenant is deemed to have elected not to continue such assignment or
sublease, or if Landlord exercises the Landlord’s Option (if applicable), or if Landlord does not
grant its consent to such assignment or sublease pursuant to Section 9.05 above, then, in any of
such events, such person shall vacate and surrender the Premises within thirty (30) days after
such person is no longer a Related Entity. The failure of such person to so vacate and surrender
the Premises within such time period shall be a default by Tenant under this Sublease.




          (e) “Acceptable Credit Rating” shall mean a senior unsecured debt credit rating from Moody’s
Professional Rating Service of Caa3 or an equivalent rating from Standard & Poor’s Professional
Rating Service or from Fitch’s Inc.




          (f) Except as may otherwise be provided or required in the Existing Superior Lease (inclusive
of all amendments thereof through the Third Amendment of the Existing Superior Lease, the
provisions of Section 9.10 and Landlord’s Option shall not apply to the transactions contemplated
in this Section 9.11 for which Landlord’s consent is not required.




          (g) For the purposes of this Sublease, a “JetBlue Tenant” means (i) the Tenant named in this
Sublease (herein referred to as the “Named Tenant”), (ii) the immediate successor entity of the
Named Tenant in connection with the merger or consolidation of the Named Tenant, (iii) the
assignee of the Named Tenant’s interest in this Sublease who acquired all or substantially all of
the assets of the Named Tenant pursuant to a Business Sale, or (iv) the Tenant Operating Company,
if the Tenant




80









 







Operating Company is the assignee of the Named Tenant’s interest in this Sublease
pursuant to a Related Entity Assignment.




     9.12 The joint and several liability of Tenant and any immediate or remote successor in
interest to Tenant, and the due performance of the obligations of this Sublease on Tenant’s part to
be performed or observed, shall not be discharged,
released, or impaired in any respect by any agreement or stipulation made by Landlord
extending the time of, or modifying any of the obligations of, this Sublease, or by any waiver or
failure of Landlord to enforce any of the obligations of this Sublease.



     9.13 Neither the listing of any name other than that of Tenant, whether on the doors of the
Premises, on the Building directory, if any, or otherwise, nor the acceptance by Landlord of any
rent, security deposits or other monies from any person other than Tenant, shall operate to vest
any right or interest in this Sublease or in the Premises, nor shall it be deemed to be the consent
of Landlord to any assignment or transfer of this Sublease, to any sublease of the Premises, or to
the use or occupancy thereof by others.



     9.14 Intentionally omitted.



     9.15 (a) If (i) Tenant sublets all or a portion of the Premises in accordance with, and
subject to, the provisions of Section 9.05 above for an initial term of at least five (5) years
that is also for the then balance of the Term, (ii) the subtenant is not a Related Entity, (iii)
all of the conditions set forth in this Sublease with respect to such sublease have been satisfied
and no Event of Default exists under this Sublease, (iv) together with the A/S Notice, Tenant
requests Landlord to execute and deliver a subordination, non-disturbance and attornment agreement
to such subtenant, (iv) Landlord has not exercised Landlord’s Option, and (v) the portion(s) of the
Premises so sublet is Acceptable SNDA Sublet Premises (as hereinafter defined), then, within ten
(10) Business Days after the Tenant and the subtenant execute and deliver to Landlord a
subordination, non-disturbance and attornment agreement in form and content, in all material
respects, of the form of subordination, non-disturbance and attornment agreement attached to this
Sublease as Exhibit E (such subordination, non-disturbance and attornment agreement being herein
referred to as the “Subtenant SNDA”), to the extent permitted under the Existing Superior Lease,
Landlord shall execute and deliver the Subtenant SNDA to Tenant and to such subtenant. It shall be
a condition to Landlord’s obligations under the Subtenant SNDA and to the rights of the subtenant
thereunder, and the Subtenant SNDA shall provide, that (A) on the date (the “Attornment Effective
Date”) that the sublease becomes a direct lease between Landlord and the subtenant, (1) the
subtenant has at least the Required Subtenant Net Worth (as such term is hereinafter defined), (2)
the subtenant has had at least the Required Subtenant Net Worth for at least the three (3) years
immediately preceding the Attornment Effective Date, and (3) reasonably adequate proof thereof
shall have been furnished to Landlord, or (B) on or before the Attornment Effective Date, there
shall have been deposited with Landlord (either by the subtenant or transferred by Tenant) a
security deposit equal to not less than twelve (12) months of the highest fixed,



81









 




minimum or base
rent payable under the sublease to Landlord, as modified by the Subtenant SNDA. “Required
Subtenant Net Worth” shall mean the tangible net worth of the subtenant, as reflected on the
subtenant’s financial statements, which financial statements shall be audited and shall include a
signed opinion from the proposed subtenant’s reputable, nationally or regionally recognized
independent
certified public accountant, that states the financial statements fairly represent the
financial condition of the proposed subtenant (or, if the proposed subtenant does not have audited
financial statements, then the financial statement shall include a statement from a senior officer
(or equivalent) of the proposed subtenant that such financial statements fairly represent the
financial condition of the proposed subtenant), in an amount equal to fifteen (15), multiplied by
the highest annual fixed, minimum or base rent per annum payable under the sublease to Landlord, as
modified by the Subtenant SNDA, except that if the subtenant is a law firm, accounting firm or
comparable service providing firm, “Required Subtenant Net Worth” shall mean the receivables, work
in progress of the subtenant, on an annualized basis, and permanent capital, as reflected on the
subtenant’s financial statements, which financial statements shall be audited and shall include a
signed opinion from the proposed subtenant’s reputable, nationally or regionally recognized
independent certified public accountant, that states the financial statements fairly represent the
financial condition of the proposed subtenant (or, if the proposed subtenant does not have audited
financial statements, then the financial statement shall include a statement from a senior officer
(or equivalent) of the proposed subtenant that such financial statements fairly represent the
financial condition of the proposed subtenant), in an amount equal to fifteen (15), multiplied by
the highest annual fixed, minimum or base rent per annum payable under the sublease to Landlord, as
modified by the Subtenant SNDA. For the purposes of this Section, “Acceptable SNDA Sublet
Premises” means either (x) the entire Premises, (y) a minimum of one (1) entire Tower Floor, or (z)
contiguous space on one (1) Base Floor of the Premises containing not less than 25,000 RSF.




          (b) If there are one (1) or more guaranties of any of subtenant’s obligations under its
sublease with Tenant, then as an additional condition to Landlord’s obligation to execute and
deliver a Subtenant SNDA, all guarantors under said guaranties duly execute, acknowledge and
deliver to Landlord an amendment to, and/or ratification of, such guaranties, prepared by
Landlord, which confirms that such guaranties include and cover the subtenant’s obligations under
the Subtenant SNDA and the sublease, as and when the sublease becomes a direct lease with
Landlord, unless, as part of the original sublease transaction, all such guaranties provided, in
form and content reasonably satisfactory to Landlord, that as and when the sublease becomes a
direct lease with Landlord such guaranties will include and cover the subtenant’s obligations
under the Subtenant SNDA and the sublease, and Landlord approved such guaranties in writing.




          (c) Tenant shall reimburse Landlord within thirty (30) days after Landlord’s demand therefor,
as Additional Rent, for all reasonable out-of-pocket costs and expenses that may be incurred or
paid by Landlord in connection with the preparation, drafting, execution and/or delivery of the
Subtenant SNDA, which costs




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and expenses Tenant covenants and agrees to reimburse to Landlord
regardless of whether the Subtenant SNDA is executed or delivered by any of the parties thereto.




          (d) In no event shall Landlord be obligated to execute or deliver a Subtenant SNDA to a
Related Entity.




     9.16 (a) Except as otherwise expressly permitted pursuant to Section 9.19, in no event shall
any Permitted Subtenant assign or encumber its sublease, further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space, or any part thereof, to be used or
occupied by others, without Landlord’s prior written consent in each instance, except as otherwise
expressly set forth in this Section. For the purposes of this Section, a “Permitted Subtenant”
shall mean a person who is occupying all or a portion of the Premises pursuant to a sublease
consented to by Landlord pursuant to Section 9.05 above, or pursuant to a Related Entity Sublease;
the portion of the Premises being so sublet to a Permitted Subtenant is herein referred to as the
“Permitted Sublet Space”; and the sublease pursuant to which a Permitted Subtenant is subletting
its Permitted Sublet Space is herein referred to as a “Permitted Sublease.” To the extent Tenant
desires, a Permitted Subtenant shall have all of the rights to assign its Permitted Sublease, as
Tenant has to assign this Sublease, and all of the rights to sub-sublet all or a portion of its
Permitted Sublet Space, as Tenant has to sublet the Premises, as if this Article were incorporated
into the Permitted Sublease, in all cases in accordance with, and subject to the provisions of this
Section, including subsection (b)(i) below, and in all cases subject to the Existing Superior
Lease. In no event, however, shall a sub-subtenant of a Permitted Subtenant assign, mortgage or
encumber its sub-sublease or any of its rights or estates thereunder, or further sub-sublet all or
any portion of its sub-sublet space, or otherwise suffer or permit its sub-sublet space, or any
part thereof, to be used or occupied by others, unless it has complied with the provisions of this
Section 9.16. In addition, in no event shall a Permitted Subtenant have any more or greater rights
to assign its Permitted Sublease or to sub-sublet its Permitted Sublet Space than Tenant has to
assign this Sublease or to sublet the Premises.



          (b) Notwithstanding anything which may be deemed to the contrary contained in this Sublease
or in a Permitted Sublease, for each and every proposed (and actual) assignment of a Permitted
Sublease and for each and every proposed (and actual) subletting of all or portions of a Permitted
Sublet Space, Landlord shall have all of its rights, privileges and benefits under this Article
which apply to a proposed (and actual) assignment of this Sublease and a proposed (and actual)
subletting of all or portions of the Premises, and to be a Permitted Sublease the sublease in
question shall so provide, in form and content reasonably satisfactory to Landlord, whether or not
the sublease in question grants to Tenant such rights, privileges and benefits. Therefore, by way
of illustration but not limitation:




               (i) The terms “this Sublease,” “Tenant,” “proposed subtenant” and “proposed sublease,” as used
in this Article, shall be deemed to mean the



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Permitted Sublease, the Permitted Subtenant, the
proposed sub-subtenant and the proposed sub-sublease, respectively, where the context requires;




               (ii) As more particularly set forth in Section 9.01 above, and except in accordance with, and
subject to, the applicable provisions of this Section 9.16 (including Section 9.16(a) above) and
the provisions of the Permitted Sublease which
are no more beneficial than those contained in this Section 9.16, the Permitted Subtenant, for
itself, its heirs, distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage, or encumber its Permitted Sublease
or any of its rights or estates thereunder, sub-sublet the Permitted Sublet Space or any part
thereof, or suffer, or permit, the Permitted Sublet Space, or any part thereof, to be used or
occupied by others, without the prior written consent of Landlord (and, if the Permitted Sublease
provides, Tenant) in each instance as, and to the extent, required by the provisions of this
Article 9;



               (iii) All of the conditions set forth in Section 9.05 above shall apply;



               (iv) Tenant, not the Permitted Subtenant, shall be obligated under subsection 9.06(a) above to
reimburse Landlord for the costs and expenses referred to in said subsection, as same applies to
the proposed sub-sublease and proposed sub-subtenant; and



               (v) [***] of (A) all sums and other consideration (collectively, the “Permitted Sublease A/S
Profit”) payable to, or at the direction of, Tenant or any Tenant Party in connection with all
assignments of Permitted Subleases and all further sublettings of Permitted Sublet Space, less (B)
any portion of the amounts described in clause “(A)” that are paid by Tenant to the Existing Lessor
pursuant to the provisions of the Existing Superior Lease, shall be paid to Landlord within thirty
(30) days after the Permitted Sublease A/S Profit is paid to, or at the direction of, Tenant or any
Tenant Party. Tenant agrees to grant Landlord reasonable access to Tenant’s books and records for
the purpose of verifying the Permitted Sublease A/S Profit.



     9.17 (a) For the purposes of this Section, an “Affiliated Person” means a person that has a
business relationship with Tenant or a person that is supplying business services to Tenant, which
business relationship or business service is directly related to the business of Tenant being
conducted by Tenant in the Premises, including the conducting of audits.



          (b) Notwithstanding anything contained in Section 9.01 above to the contrary, but provided
this Sublease is in full force and effect, Landlord hereby consents to the use, in common with
Tenant, of up to twenty (20%) percent of the RSF of the Premises, in the aggregate and at any
given time, by Affiliated Persons solely for






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






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office purposes directly related to the business of
Tenant being conducted by Tenant in the Premises, such use to be in accordance with, and subject
to, the applicable provisions of this Sublease, and for no other purpose, provided, and upon the
condition that, the portions of the Premises so used are not separately demised from the balance
of the Premises and there be no separate access to or from the Premises for any of the Affiliated
Persons, and further provided, and upon the condition that:




               (i) Intentionally omitted;



               (ii) Within ten (10) Business Days after Landlord’s request from time to time, Tenant shall
provide to Landlord the names of each of the Affiliated Persons using portions of the Premises, a
description of the relationship between Tenant and the Affiliated Person and the activities being
conducted by the Affiliated Persons in the Premises;



               (iii) Such use shall be subject to all the terms, covenants and conditions of this Sublease on
Tenant’s part to observe and perform, except that no Affiliated Person shall have the right to make
any Alterations, assign any right to use or occupy any portion of the Premises or otherwise permit
any other person to use any portion of the Premises, and such use shall end on the earlier to occur
of the last day of the Term and the date that the subleasehold estate ends with respect to the
portion(s) of the Premises that the Affiliated Person(s) is/are using;



               (iv) Such use shall in no way increase, amend, modify or extend Landlord’s obligations or
liabilities under this Sublease in any way whatsoever, or diminish, restrict, limit, forfeit or
waive any of Landlord’s rights or remedies under this Sublease in any way whatsoever;



               (v) Such use shall in no way give to any Affiliated Person any rights, title or interest in,
to or under the Premises or any other portion of the Building and/or Land, or any rights or
remedies against Landlord, and Tenant shall indemnify and hold Landlord harmless from and against
any and all, actions, proceedings, liabilities, obligations, claims, damages, deficiencies, losses,
judgments, suits, expenses and costs (including court costs and reasonable third-party legal fees
and disbursements for which Landlord is or may be liable) arising under or out of or in connection
with or resulting from such use and occupancy;



               (vi) At no time shall any Affiliated Person pay to or on behalf of Tenant any rent, additional
rent or charges for using portions of the Premises, other than charges for the use of any of the
support services being provided to it (such as receptionists, secretaries, telecommunications,
photocopying, delivery services, etc.);



               (vii) Tenant shall remain fully liable for the payment of Base Rent and Additional Rent due
and to become due under this Sublease and for the observance, performance and compliance with all
of the terms, covenants and conditions contained in this Sublease on Tenant’s part to observe,
perform or comply with, and all acts or omissions by the Affiliated Persons or anyone claiming
under or



85









 




through Tenant or any of the Affiliated Persons which shall be a default under this
Sublease, shall be deemed to be a default by Tenant;




               (viii) Such use shall not be deemed a waiver of Landlord’s rights under this Sublease to
consent to the use or occupancy of the Premises (or any portion thereof) by any other person or to
the assignment of this Sublease or the subletting of the Premises (or any portion thereof);



               (ix) The use by any Affiliated Person of any portion of the Premises shall be deemed an
acceptance by such Affiliated Person of all of the terms, covenants and conditions set forth in
this Section;



               (x) No later than ten (10) days after any person who is an Affiliated Person ceases being an
Affiliated Person, such person shall cease using and occupying all portions of the Premises and
shall vacate the Premises; and



               (xi) There shall be no separate identification of any Affiliated Person in the lobby of the
Building, on or in the Building directory or in any other portion of the Building open to the
public or other tenants or occupants of the Building or visible from outside the Building.



     9.18 Intentionally omitted.



     9.19 (a) In order to obtain sales tax exemptions and other benefits (collectively, the
“Incentive Benefits”) from one or more state or local Government Authorities and related public
benefit companies, Tenant shall be permitted, contemporaneously with the execution of this
Sublease, and in accordance with, and subject to, the provisions of this Sublease, to sublet the
entire Premises (but not less than the entire Premises) to a state or local Governmental Authority
(such sublease being herein referred to as an “Incentive Sublease”), provided that:



               (i) Immediately after the execution and delivery of the Incentive Sublease, the Governmental
Authority which is the subtenant under the Incentive Sublease sub-subleases to Tenant all of the
premises demised to the Governmental Authority pursuant to the Incentive Sublease (i.e., the entire
Premises) in accordance with, and subject to, the provisions of this Sublease, which sub-sublease
to Tenant is hereby permitted and required;



               (ii) The terms of both the Incentive Sublease and such sub-sublease (including any and all
renewals and/or extensions thereof) shall automatically end and expire no later than the last day
of the Term;



               (iii) Neither the subtenant under the Incentive Sublease nor the sub-subtenant under such
sub-sublease shall be entitled to a Subtenant SNDA, and under no circumstances shall Landlord be
obligated to recognize or accept any Governmental Authority as a direct tenant or subtenant of
Landlord, nor shall any



86









 




Governmental Authority have any rights, title or interest in or to any
portion of the Real Property after the last day of the Term; and




               (iv) Tenant has obtained the approval of the Existing Lessor to the Incentive Sublease, such
sub-sublease, and all other documents, agreements and agreements related thereto (collectively, the
“Incentive Documents”).



          (b) If required by the Governmental Authority that is the subtenant under the Incentive
Sublease, a memorandum of the Incentive Sublease and of such sub-sublease may be recorded.



          (c) Landlord shall reasonably cooperate with Tenant (without Landlord being required to incur
or pay any cost or expense in connection with such cooperation) in Tenant’s attempt to obtain the
Incentive Benefits, which cooperation shall include requesting, in good faith, the approval of the
Existing Lessor to the Incentive Documents and, to the extent necessary, the execution by Landlord
of any applications or other documents reasonably required to be executed by Landlord.



          (d) In the event that at any time or from time to time during the Term, Landlord transfers or
sells personal property to Tenant that is or may be subject to the sales and use tax levied by the
State of New York and The City of New York, including the transactions concerning FF&E and
Abandoned Furniture set forth in Section 4.02 and the possible transactions concerning furniture,
fixtures, equipment, personal property and inventory in the Cafeteria Space, FC Space and/or CC
Space set forth in Section 18.11, and provided that the Incentive Documents are in effect on the
date of any such transaction, then on or before the date that such transaction is completed, Tenant
shall execute and deliver to Landlord the letter agreement containing applicable language that is
required under the Incentive Documents in the form annexed hereto as Exhibit V. Promptly after
Landlord’s receipt of such signed letter agreement, and provided the contents of said letter
agreement are accurate, Landlord shall execute such letter agreement and return such fully executed
letter agreement to Tenant.



          (e) Tenant shall pay, before the imposition of any fines, penalties or other late charges or
interest, all sales tax, if any, payable in connection with the transfers and sales described in
subsection (d) above. In addition, Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all losses, liabilities, damages, costs and expenses (including all legal,
litigation and courts costs (including reasonable attorney’s fees), expenses and disbursements for
which Landlord may be liable) (collectively, “Claims” ), that are paid by, imposed upon, incurred
by or asserted against, Landlord arising under or out of, or resulting from Tenant’s attempts to
obtain the Incentive Benefits, the Incentive Documents, the execution and delivery from time to
time of the letter agreement in the form annexed as Exhibit V (notwithstanding the fact that
Landlord may have determined that the contents of said letter agreement are accurate), and all
transactions between Tenant and any Governmental Authority contemplated therein. The foregoing
provisions shall not be construed to impose any



87









 




obligation upon Tenant if and to the extent that
any Claims result from a wrongful act of Landlord.




          (f) Nothing contained in this Section or elsewhere in this Sublease shall be deemed to
constitute a warranty or representation by Landlord that Tenant will be able to obtain any of the
Incentive Benefits, Tenant hereby acknowledging that Landlord has made no such representation or
warranty, and Tenant’s inability or failure to obtain any of the Incentive Benefits shall not
relieve or release Tenant from any of its obligations or
liabilities under this Sublease, constitute an actual or constructive eviction, or impose any
liability upon Landlord.



ARTICLE 10

COMPLIANCE WITH REQUIREMENTS




     10.01 Landlord and Tenant shall each give prompt notice to the other of any notice such party
receives of the violation of any Requirement concerning the Premises or the Building, provided,
however, that Landlord shall be obligated to give Tenant any such notice regarding the Building if
the violation in question adversely affects Tenant’s use of the Premises or the common areas of the
Building. Except as otherwise expressly provided in this Sublease, Landlord and Tenant and all
Tenant Parties, respectively, at their sole cost and expense, shall comply with, and cause the
compliance with, all Legal Requirements having or claiming jurisdiction, directly or indirectly,
over the Premises (or the appurtenances of any part thereof), the business conducted therein,
and/or the operation, occupancy, maintenance and use of the Premises, whether or not, in any of the
foregoing cases, arising out of the manner of use thereof, including the Legal Requirements under
the Federal Occupational Safety and Health Act of 1970 and the ADA (as hereinafter defined) to the
extent each of Landlord or Tenant is responsible for the matter subject to the Legal Requirement.
In furtherance of the foregoing, Tenant and all Tenant Parties, at their sole cost and expense,
shall comply with, and cause the compliance with, all Legal Requirements which shall, with respect
to the Premises or the manner of use and occupation thereof, or the abatement of any nuisance,
impose any violation, order, duty or obligation on Tenant arising from (i) the manner of use of the
Premises, (ii) the particular manner of conduct of business in any portion of the Premises, or the
manner of the operation of the installations, equipment or other property therein installed by, or
on behalf of, Tenant or any other Tenant Party, or the particular manner of the operation of the
Building systems and equipment servicing the Premises or any of the Roof Installations, (iii) any
Alteration constructed by Tenant or any Tenant Party, or (iv) a default by Tenant in the
observance, performance or compliance with any of Tenant’s obligations hereunder. However, Tenant
shall not be so required to make any structural change in the Premises unless (x) the requirement
arises or results from the particular manner of use of the Premises or (y) the requirement arises
or results from a cause or condition referred to in clause (ii), (iii) or (iv) above.
Notwithstanding the foregoing, Tenant shall not be required to comply with any such Legal
Requirement so long as Tenant shall be contesting the validity thereof, or the applicability
thereof to the Premises, in accordance with Section 10.02 of this Sublease. To the extent that
Tenant is obligated to perform



88









 




any Structural Alterations, structural repairs to any portion of the
Premises or other portion of the Building or is obligated to perform any changes, alterations or
repairs outside of the Premises, Landlord, at its election, may perform such structural repairs,
changes, alterations or repairs on Tenant’s behalf, in which event, Tenant shall reimburse Landlord
for the reasonable and actual market rate costs paid or incurred by Landlord to perform same within
thirty (30) days after Landlord’s request therefor, which request shall be accompanied by a
reasonably detailed description of the work in question and reasonable evidence of the costs
thereof. Tenant shall not be obligated to
comply with Owner Requirements, as such term is defined in the Existing Superior Lease.
Landlord, at its expense, shall comply with all Requirements in respect of the Building, the Land,
the Building systems, common areas and the Premises, to the extent Tenant is not obligated to so
comply, but with respect to compliance with Requirements in the Premises, only to the extent that
non-compliance by Landlord with such Requirements will adversely affect Tenant’s use, occupancy and
enjoyment of the Premises. Landlord shall have the right to contest and appeal any such
Requirements, provided that same is done with all reasonable promptness and provided that (w) such
appeal does not subject Tenant to criminal penalty or prosecution for a criminal offense nor shall
the Premises or any part thereof be subject to being condemned or vacated, (x) such non-compliance
or contest shall not constitute or result in any violation of any superior lease or superior
mortgage, or if such superior lease or superior mortgage shall permit such non-compliance or
contest on condition of taking of action or furnishing of security by Landlord such action shall be
taken and such security shall be furnished by and at the expense of Landlord, and (y) such
non-compliance does not adversely affect Tenant’s use, occupancy and enjoyment of the Premises.




     10.02 (a) Tenant may, at its expense (and if necessary, in the name of but without expense to
Landlord) contest, by appropriate proceedings prosecuted diligently and in good faith, the
validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to
comply pursuant to the provisions of this Sublease, and Landlord shall cooperate with Tenant in
such proceedings, provided that:



               (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall
the Premises or any part thereof be subject to being condemned or vacated, by reason of
non-compliance or otherwise by reason of such contest;



               (ii) Tenant shall defend, indemnify and hold harmless Landlord against all liability, loss or
damage which Landlord shall suffer by reason of such non-compliance or contest, including
reasonable attorney’s fees and other expenses reasonably incurred by Landlord;



               (iii) such non-compliance or contest shall not constitute or result in any violation of any
superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall
permit such non-compliance or contest on condition of the taking of action or furnishing of
security by Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and



89









 





               (iv) Tenant shall keep Landlord advised as to the status of such proceedings.



          (b) Without limiting the application of Section 10.01 or subsection 10.02(a)(i) above
thereto, a party shall be deemed subject to prosecution for a crime within the meaning of said
section, if the party or any officer, director, partner, member, principal or employee thereof
individually, is charged with a crime of any kind or degree whatever, whether by service of a
summons or otherwise, unless such charge
is withdrawn before such party or such officer, director, partner, member, principal or
employee (as the case may be) is required to plead or answer thereto.




     10.03 Tenant shall not cause or permit “Hazardous Materials” (as defined below) to be used,
remain, transported, stored, released, handled, produced or installed in, on or from the Premises
or the Building, except for the fuel tank and distribution piping for Tenant’s Generator Equipment
and Tenant may use and store in the Premises limited quantities of substances reasonably necessary
in the ordinary operation and maintenance of equipment used in connection with Tenant’s business
and occupancy of the Premises (to the extent permitted pursuant to the applicable provisions of
this Sublease), provided such substances are used and stored within the Premises, in accordance
with all applicable Legal Requirements. The term “Hazardous Materials” shall, for the purposes
hereof, mean any flammable, explosive or radioactive materials, hazardous wastes, hazardous or
toxic substances or related materials, asbestos or any material containing asbestos, or any other
substance or material, as now or hereafter defined as a hazardous material or a hazardous substance
by any Legal Requirement, including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Hazardous Materials Transportation Act, as
amended, the Resource Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a default by Tenant or
any Tenant Party of any of the provisions of this Article, Landlord shall, in addition to all of
its rights and remedies under this Sublease and pursuant to any applicable Legal Requirements,
require Tenant to remove any or all of such Hazardous Materials from the Premises or the Building
in the manner prescribed for such removal by all applicable Legal Requirements. The provisions of
this Article shall survive the expiration or sooner termination of this Sublease. Landlord
represents and warrants, to its actual knowledge, that on the Effective Date there are no Hazardous
Materials on the Premises in violation of any Legal Requirements. If such representation is
incorrect and Landlord receives notice thereof, Landlord’s only obligation and liability with
respect thereto shall be, at its expense, to remove or remediate such Hazardous Materials to the
extent required by Legal Requirements. Notwithstanding anything to the contrary contained in this
Sublease, if in connection with any Alterations or occupancy of the Premises, any Hazardous
Materials are found in the Premises or Tenant is required to remove any Hazardous Materials from
the Premises or Building, which Hazardous Materials were not introduced to the Premises by Tenant
or any Tenant Party, then Landlord shall perform such removal at Landlord’s sole cost and expense
and in an expeditious manner. Notwithstanding anything to the contrary contained in this



90









 




Sublease,
all Base Rent and Additional Rent shall be abated with respect to any portion of the Premises that
cannot reasonably be used by Tenant during such abatement of Hazardous Materials for more than
seven (7) consecutive days. Landlord agrees not to violate any Legal Requirements applicable to
the Building regarding the use, storage, transportation or release of Hazardous Materials.




     10.04 Notwithstanding anything to the contrary contained in this Sublease, Tenant shall be
solely responsible, at its expense, to cause the Premises (including the
lavatories within the Premises and all entrances and exits to and from the Premises) to be,
and to remain throughout the Term, in compliance with the provisions of the Americans With
Disabilities Act of 1990 and any regulations adopted and amendments promulgated pursuant to of the
foregoing (hereinafter referred to collectively as the “ADA”), and Landlord shall have no
obligation whatsoever in connection therewith. (For the purposes of clarification, to the extent
there is inconsistency between or among federal, state and city ADA, city ADA shall govern and
prevail over federal and state ADA, and state ADA shall govern and prevail over federal ADA.)
Within ten (10) days after receipt, Tenant shall advise Landlord in writing, and provide Landlord
with copies of, any notices alleging violations of the ADA relating to any portion of the Premises;
any claims made or threatened in writing regarding non-compliance with the ADA and relating to any
portion of the Premises; or any governmental or regulatory actions or investigations instituted or
threatened regarding non-compliance with the ADA and relating to any portion of the Premises.
Landlord shall be solely responsible, at its expense, to cause the common areas of the Building to
be, and to remain throughout the Term, in compliance with ADA.



     10.05 Notwithstanding anything to the contrary contained in this Sublease, Tenant, at its sole
cost and expense, shall (a) as part of Tenant’s Work, furnish and install (to the extent not
furnished and installed) the fire alarm and life safety system within the Premises (the “Fire
System”) that is required by all applicable Requirements, (b) as part of Tenant’s Work, connect
same (to the extent not connected) to the Building’s fire alarm and life safety system, and (c)
thereafter maintain the Fire System within the Premises (regardless of whether same was furnished,
installed and/or connected by or on behalf of Tenant) in compliance with all Requirements,
including the performance of any changes, additions and repairs thereto or replacements thereof,
except Landlord shall be responsible for testing the base Building fire alarm and life safety
systems (which will also include, for purposes of testing, the portions of such systems that are
within the Premises, which systems’ components within the Premises shall be repaired by Tenant, at
it expense, if such systems fail such tests) to the extent required by Legal Requirements. Except
for Landlord’s testing obligation and Landlord’s obligation to provide for an operable base
building Class E system (including providing adequate connection points for Tenant at the Class E
panel on or near each floor), Landlord shall have no obligation whatsoever in connection with the
Fire System within the Premises. Landlord’s fire alarm system contractor for the Building shall
provide the necessary service to repair and maintain Tenant’s Fire System in the Premises and
Tenant shall pay to Landlord, within thirty (30) days after Landlord’s



91









 




written demand as Additional
Rent, the reasonable monthly out-of-pocket cost of providing such service to the Premises




     10.06 Notwithstanding anything to the contrary contained in this Sublease, Tenant, at its sole
cost and expense and in accordance and in compliance with all applicable Legal Requirements, shall
(a) if and to the extent required to meet Legal Requirements, as part of Tenant’s Work, furnish,
install and distribute (to the extent not already furnished, installed or distributed) sprinkler
pipes and heads throughout the Premises from the riser valves (which riser valves shall be provided
by Landlord) and
Landlord shall specify to Tenant the demarcation points for connection by Tenant, (b) as part
of Tenant’s Work, connect same (to the extent not already connected) to the appropriate sprinkler
standpipe or riser indicated by Landlord, (c) as part of Tenant’s Work, perform all other sprinkler
work in or to the Premises (up to the riser valve) that is required under all applicable Legal
Requirements (including the Building Code of the City of New York) to occupy the Premises for the
purposes permitted under this Sublease, and (d) thereafter maintain the sprinkler system within the
Premises (regardless of whether same was furnished, installed and/or connected by or on behalf of
Tenant) in compliance with all Legal Requirements, including the performance of any changes,
additions and repairs thereto or replacements thereof, except Landlord shall be responsible for
testing the base building sprinkler system (which will also include, for purposes of testing, the
portions of such system that are within the Premises, which systems’ components within the Premises
shall be repaired by Tenant, at it expense, if such systems fail such tests) to the extent required
by Legal Requirements. In furtherance of the foregoing, if any Governmental Authority requires
that any changes, modifications, alterations or additions be made or supplied in said sprinkler
system (exclusive of the standpipes and connections), or if any changes, modifications, alterations
or additions become necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate set by any Governmental Authority or by
any property insurance company, Tenant shall, at Tenant’s sole cost and expense, promptly make such
changes, modifications, alterations and additions, at its expense, in accordance with the
provisions of Article 13.



ARTICLE 11

INSURANCE




     11.01 Tenant shall not knowingly violate or permit to be violated any of the conditions,
provisions or requirements of any insurance policy maintained by Landlord, the holder of any
superior mortgage or the lessor under any superior lease, including the Existing Superior Lease.
Tenant shall not do or permit anything to be done, keep, or permit anything to be kept, in the
Premises that would: (i) subject Landlord to any liability or responsibility for personal injury,
death, or property damage; (ii) increase the fire or other casualty insurance rate on the Building
or the property therein over the rate that would otherwise then be in effect (provided that, upon
request, Landlord shall provide to Tenant copies of the relevant provisions of the insurance
policies in question); (iii) result in insurance companies of good standing refusing to insure the
Building or any of such property in amounts reasonably satisfactory to Landlord; or (iv)



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make void
or voidable any insurance then in force with respect to the Premises or the Building. Landlord
acknowledges that Tenant’s use of the Premises for executive, general and administrative offices,
for the SOC and installation of Tenant’s Generator Equipment does not, as of the Effective Date,
cause any violation or breach of the above sentence.




     11.02 (a) Tenant covenants to provide or to have an affiliate provide on Tenant’s behalf, on
or before the Commencement Date (or such earlier date that Tenant shall enter upon the Premises
for the commencement of Alterations or the conduct of
business) and to keep in force during the Term and during any other time that Tenant or any
Tenant Party is in possession of, or is otherwise using or occupying, any portion of the Premises,
the following insurance coverage (including and promptly following written request ,evidence of the
payment of the premiums therefor), which coverage shall be effective on the Commencement Date or
such earlier date that Tenant shall enter upon the Premises for the commencement of Alterations or
the conduct of business:



               (i) Commercial General Liability (or equivalent), naming as additional insureds (with an
Additional Insureds — Managers or Lessors of Premises endorsement) Landlord, Landlord Indemnitees,
all “Tenant Parties” under the Existing Superior Lease (other than those Tenant Parties, such as
sublessees and contractors, that are required to separately provide insurance to the Tenant,
Landlord or Landlord Indemnitees under the applicable provisions of this Sublease), the Existing
Lessor and all “Owner Parties” under the Existing Superior Lease, the holders of all superior
mortgages, the lessors under all superior leases (other than the Existing Lessor), Landlord’s
agents (including Landlord’s property manager) and all other persons designated in writing by
Landlord from time to time (collectively, the “Additional Insureds”) and protecting Landlord,
Tenant, and all Additional Insureds, against (x) all claims, demands or actions for injury to, or
death of, persons or property, arising from, related to, or in any way connected with the use or
occupancy of the Premises, or caused by actions or omissions to act of Tenant, its agents, servants
and contractors, or of any Tenant Party, and (y) all accidents occurring in or about the Premises.
Such policy shall have limits of liability of not less than $[***] combined single limit on a per
occurrence basis with, for so long as Tenant’s primary business is the operation of an airline, an
annual aggregate limit of $[***] for this location, including property damage (which may include
coverage under a blanket policy, and which general liability coverage (or equivalent) may be
combined with an Umbrella or Excess Liability policy to achieve such minimum coverage amount).
Such policy shall contain contractual liability coverage with respect to Tenant’s indemnification
obligations under this Sublease, and shall include independent contractors’ coverage. Such
insurance may be carried under a blanket policy covering the Premises and other locations of
Tenant, if any, provided such policy contains an endorsement (A) naming Landlord (and the
Additional Insureds) as additional insureds, (B) specifically referencing the Premises, and (C) for
so long as Tenant’s primary business is not the operation of an airline, containing an
“Amendment-





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






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Aggregate Limits of Insurance (Per Location)” endorsement, also known as “Designated
Location(s) General Aggregate Limit” endorsement, Insurance Services Office Form CG2904 (or
equivalent). All of the insurance described in this subsection (i) shall be primary,
notwithstanding any other insurance that might be in effect for the indemnities, and any coverage
carried by indemnities shall be excess insurance;




               (ii) Worker’s Compensation and Employer’s Liability Insurance, and, if required by any
applicable Requirement, disability and such other similar insurance, in
statutory amounts or, in the case of Employer’s Liability Insurance, $[***] per accident, no
aggregate, covering all Tenant’s employees and endorsed to waive subrogation claims in favor of
Landlord if such endorsement is available at commercially reasonable rates;



               (iii) Property insurance coverage against all risk of loss or damage from any cause covered by
a standard “all-risk” property policy form as found in “all-risk” policies carried by similarly
situated tenants in properties of similar size and use located in the Borough of Queens that are in
the vicinity of the Building in an amount adequate to cover the cost of replacement of all of
personal property, fixtures, furniture, furnishings, valuable papers and documents, data, leasehold
improvements and equipment, located in the Premises or otherwise owned by Tenant or any Tenant
Party (providing no deductible greater than the lesser of $[***] or the amount permitted by the
Existing Lessor, provided, however, that the deductible under the property insurance coverage
maintained by each and every Tenant under this Sublease that is not a JetBlue Tenant and, except in
the case of a subtenant that is a Related Entity of a JetBlue Tenant, each and every subtenant,
shall not exceed $[***];



               (iv) “All Risk” business interruption or earnings insurance, including the perils of sprinkler
leakage, water damage, flood, burglary and collapse, to cover loss of gross earnings and continuing
expenses during the period of partial or total shutdown of Tenant’s business, and covering Tenant’s
obligation to pay all amounts of Base Rent and Additional Rent due under this Sublease and in an
amount sufficient to cover rentals due from Tenant and Affiliates for a period of twelve (12)
months;



               (v) At all times during which Alterations (including Tenant’s Work) are being performed, (A)
the property insurance provided for in subsection (ii) above shall be written in a so-called
builder’s risk completed value form (1) on a non-reporting basis, (2) insure against all risks
insured against pursuant to subsection (iii), (3) include permission to occupy the Premises, and
(4) shall waive co-insurance provisions, or (B) the coverage under the property insurance provided
for in subsection (iii) above shall be equivalent to the coverage described in clause “(A)” of this
subsection (v). Tenant shall furnish Landlord with satisfactory evidence that such insurance is in
effect prior to the commencement of any Alterations and, on request, at





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






94









 







reasonable intervals
thereafter during the continuance of the Alterations. In addition, at all times during which
Alterations (including Tenant’s Work) are being performed, Tenant shall cause the compliance with
the requirements of Section 13.04(b) below; and




               (vi) Such other insurance in such amounts as Landlord or the holder of any superior mortgage
or the lessor under any superior lease requests from time to time, to the extent (x) required under
the terms of the Existing Superior Lease; or (y) consistent with insurance that other landlords of
similar buildings are then requiring and obtaining from other tenants occupying space in buildings
in the Borough of
Queens that are in the vicinity of the Building to maintain, including specifically the
requirements of Article 12 of the Existing Superior Lease and the rights of Existing Lessor
thereunder to increase required amounts of insurance.



          (b) Each policy of insurance required to be carried by Tenant (other than Workers’
Compensation and property insurance) shall contain a provision that no act or omission (including
negligent or intentionally wrongful acts or omissions) of any person or entity shall affect or
limit the obligation of the insurance company to pay the amount otherwise payable under the policy
in question to any person or entity entitled to the proceeds pursuant to the policy in question,
it being understood and agreed that if the act or omission in question is a material breach of the
policy in question, the person or entity committing the act or omission in question may be
precluded from collecting the insurance proceeds to which such person or entity may otherwise be
entitled (if, in the case of an omission, the person or entity in question had a duty to perform
under the policy in question in the first instance), but that such act or omission shall not
preclude any other person or entity from collecting the insurance proceeds to which such other
person or entity may be entitled.




          (c) All such policies shall be issued by insurance companies authorized under the law of the
State of New York to do business in New York State and having either (i) a general policyholder
rating from Best’s Insurance Reports, or an equivalent organization if Best’s Insurance Reports is
no longer published, of not less than “A-” with a size of “VIII”, or (ii) an international
reputation in the aviation marketplace as a recognized insurance carrier and supplier of coverage
to the aviation industry and which is generally acceptable to commercial aircraft lenders and
lessors, or (iii) as reasonably approved by Landlord. All such policies shall contain a provision
whereby the same cannot be cancelled or modified unless Landlord is given at least thirty (30)
days prior written notice of such cancellation or modification (such notice being herein referred
to as an “Insurance Cancellation Notice”).




          (d) Prior to the time such insurance is first required to be carried by Tenant and prior to
the expiration of any such policies, Tenant shall deliver to Landlord certificate(s) evidencing
such insurance (signed by the authorized representatives of the insurer(s)), for all of Tenant’s
insurance policies and, promptly following written request, proof of payment therefor. Such
liability and workers’ compensation insurance certificates shall also name Landlord and each
Additional Insured, and such



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liability, property and workers’ compensation insurance certificates
shall evidence all required waivers of subrogation and the primacy of all insurance which is
required to be primary by the terms hereof. Tenant’s failure to provide or keep in force the
aforementioned insurance or to deliver the required proof thereof shall be regarded as a material
default hereunder, entitling Landlord to exercise any or all of the remedies as provided in this
Sublease in the event of Tenant’s default. In addition, in the event (A) Tenant fails to provide
or keep in force the insurance required by this Sublease, at the times and for the durations
specified in this Sublease, or (B) if an Insurance Cancellation Notice is given to Landlord and
within five (5) days after the date of the
Insurance Cancellation Notice the cancelled or modified insurance is not replaced with the
insurance required under this Article 11, Landlord shall have the right, but not the obligation,
at any time, and without notice, to procure such insurance and or pay the premiums for such
insurance in which event Tenant shall repay Landlord within five (5) days after demand by
Landlord, as Additional Rent, all sums so paid by Landlord and any costs or expenses incurred by
Landlord in connection therewith without prejudice to any other rights and remedies of Landlord
under this Sublease.




     11.03 In the event that either Tenant (including any Tenant Party) or Landlord sustains a loss
by fire or other casualty or cause and such loss is caused in whole, or in part, by acts or
omissions (including negligence) of the other party or such other party’s agents, employees or
servants, then the party sustaining the loss agrees, to the extent that the party sustaining such
loss is compensated by insurance (or would have been so compensated had it maintained the insurance
required to be maintained by it under this Lease) to waive all rights of recovery against the
other party and such other party’s agents, employees or servants, and in the case of a waiver by
Tenant, to waive all rights of recovery against Landlord and all Additional Insureds requested by
Landlord to be named therein; and no third party shall have any right of recovery, by way of
subrogation or assignment or otherwise, and all such rights shall be waived by such other parties,
including the insurance companies that issue Tenant’s insurance policies. Tenant shall cause all
other Tenant Parties to agree in writing, in form and content reasonably acceptable to Landlord, to
the foregoing. In furtherance of the foregoing, and as required under the Existing Superior Lease,
to the extent permitted by applicable Legal Requirements, Tenant shall have no claims of any nature
whatsoever against the Existing Lessor or any Owner Party (as such term is defined in the Existing
Superior Lease) for any damage to Tenant’s equipment or property from any cause covered by
insurance, including the negligence of the Existing Superior Lessor or any Owner Party, and
Tenant’s insurance shall be its sole recourse with respect to any damage thereto.



     11.04 If, by reason of a failure of Tenant to comply with the provisions of Section 10.01 or
Section 11.01, the rate of fire insurance with extended coverage on the Building or equipment or
other property of Landlord shall be higher than it otherwise would be, Tenant shall reimburse
Landlord, within twenty (20) Business Days after demand, for that part of the premiums for fire
insurance and extended coverage paid by Landlord because of such failure on the part of Tenant,
and, upon written request, Landlord shall provide Tenant with copies of the invoices of Landlord’s
insurer showing the premiums and other costs for both the base period and the then current period.



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Tenant and Landlord shall reasonably cooperate in connection with the collection of any insurance
moneys that may be due in the event of loss and shall execute and deliver such proofs of loss and
other instruments which may be reasonably required in that connection. Tenant shall reasonably and
promptly adjust losses under all policies of property insurance carried by Tenant.




     11.05 Landlord may, from time to time, but no more frequently than once every three (3) years
during the Term except in circumstances involving significant changes in the insurance marketplace,
require that the amount of the insurance to be provided and
maintained by Tenant under Section 11.02 hereof and/or the contractors, construction managers
and subcontractors under Section 13.04(b) be reasonably increased so that the amount thereof
reasonably protects Landlord’s interest, provided that any such increase shall be consistent with
insurance being required in comparable first-class office buildings in the Borough of Queens.



     11.06 If any dispute shall arise between Landlord and Tenant with respect to the incurring or
the amount of any additional insurance premium referred to in Section 11.05 due to the increase in
amount of insurance referred to in Section 11.05, the dispute shall be determined by arbitration in
accordance with the provisions of Article 34.



     11.07 A schedule or make up of rates for the Building or the Premises, as the case may be,
issued by the New York Fire Insurance Rating Organization or other similar body making rates for
fire insurance and extended coverage for the premises concerned, shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire insurance rate with
extended coverage then applicable to such premises.



     11.08 Landlord shall maintain at all times during the Term all insurance required to be
maintained by Landlord under any superior lease or any superior mortgage, to the extent not
required to be maintained by Tenant pursuant to the terms of this Sublease. In addition, Landlord
at all time during the Term shall use commercially reasonable efforts to cause the Existing Lessor
to maintain the insurance it is required to maintain under the Existing Superior Lease.



ARTICLE 12

RULES AND REGULATIONS




     12.01 Tenant, at Tenant’s sole cost and expense, shall observe and comply with (and cause its
officers, employees, contractors, agents, licensees, invitees, subtenants, concessionaires, and
other Tenant Parties to observe and comply with), the Rules and Regulations annexed hereto as
Exhibit F, and such reasonable changes therein (whether by modification, elimination or addition)
as Landlord at any time or times hereafter may make and communicate in writing to Tenant; provided,
however, that, except to a de minimis amount, such changes shall not diminish Tenant’s rights or
increase Tenant’s obligations under this Sublease or adversely affect Tenant’s use or



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occupancy of
the Premises or the appurtenant interests demised to Tenant hereunder. In case of any conflict or
inconsistency between the provisions of this Sublease and any of the Rules and Regulations as
originally promulgated or as changed, the provisions of this Sublease shall control. Any dispute
between Landlord and Tenant as to whether any changes to the Rules and Regulations are permitted
pursuant to this Section 12.01 shall be resolved by arbitration in accordance with the provisions
of Article 34 hereof.




     12.02 Nothing in this Sublease contained 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, as against any other tenant, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant or its employees, agents or
visitors. However, Landlord shall not enforce any of the Rules and Regulations in such manner as
to discriminate against Tenant or anyone claiming
under or through Tenant.



ARTICLE 13

ALTERATIONS




     13.01 (a) “Alteration” means an alteration, decoration, installation, improvement, repair,
addition or other physical change in, to or about the Premises made, or to be made, by or on behalf
of Tenant or any Tenant Party, it being understood and agreed that, except as otherwise expressly
provided in this Sublease, neither Tenant nor any other Tenant Party shall be permitted to make any
alteration, decoration, installation, improvement, repair, addition or other physical change in, to
or about any portion of the Building outside the Premises. For the purposes of clarification,
“Alterations” shall not include the placement in the Premises of any Tenant’s Property that is not
to be affixed to any portion of the Real Property.



          (b) “Decorative Alteration” means a Nonstructural Alteration that is entirely decorative in
nature (including installation of carpet), is not visible from outside the Premises, and does not
require the approval of any Governmental Authority.




          (c) “Nonstructural Alteration” means an Alteration in and to the interior of the Premises
only, which, (i) is not structural in nature and which does not and will not otherwise adversely
affect the structural parts or integrity of the Building, (ii) does not and will not affect any
portion of the Building outside of the Premises, (iii) does not and will not, in any material
manner, adversely affect, or increase the usage of, any of the mechanical, electrical, plumbing,
sanitary or other systems or service of the Building beyond the design specifications of such
systems, (iv) does not and will not, in any material manner, adversely affect any service or
utility being provided to Tenant or to any other tenant or occupant of the Building, and (v) does
not and will not result in, or require, an amendment to, or modification of, the certificate of
occupancy for the Building, and does not and will not result in a violation of said certificate of
occupancy.




          (d) “Permitted Nonstructural Alteration” means a Nonstructural Alteration that does not
require the approval of any Governmental Authority, the cost of




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which on any floor, together with
the cost of all other Permitted Non-Structural Alterations on such floor within the prior twelve
(12) months, is not more than $10.00 per RSF.




          (e) “Structural Alteration” means an Alteration that is not a Nonstructural Alteration.




     13.02 (a) Alterations shall be performed only in accordance with and subject to, this Article
and the other applicable provisions of this Sublease.



          (b) Tenant shall make no Alterations of any nature, including any Alterations outside the
Premises, without Landlord’s prior written consent in each instance, except as otherwise expressly
permitted in this Article.




          (c) All Structural Alterations shall be subject to Landlord’s prior written consent in each
instance, which consent may be withheld, granted and/or conditioned in Landlord’s sole and
absolute discretion, provided, however, that (i) any core drilling required in connection with the
Alterations, (ii) the installation of Tenant’s Generator Equipment (as defined in Section
16.12(a)), the installation of Tenant’s Signs (as such term is defined in Section 45.03 hereof)
and the installation of the Roof Installations (as such term is defined in Section 41.01 hereof),
together with the associated work to make such installations, and (iii) floor reinforcement and
the construction of internal stairways, shall be treated as Nonstructural Alterations (but not
Permitted Nonstructural Alterations) for purposes of Landlord’s consent.




          (d) With Landlord’s prior written consent in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed, Tenant may, from time to time during the Term, at
its sole expense, make Nonstructural Alterations.




          (e) Landlord’s consent shall not be required for any Decorative Alterations and Permitted
Nonstructural Alterations, provided that (i) the same are performed in accordance with, and
subject to, this Article and all other applicable provisions of this Sublease, and (ii) at least
five (5) Business Days prior to commencing any such Decorative Alteration or Permitted
Nonstructural Alteration, Tenant gives to Landlord a notice of Tenant’s intention to perform such
Decorative Alteration(s) or Permitted Nonstructural Alteration(s), which notice, to be effective,
shall be accompanied by a reasonably detailed description of the Decorative Alteration(s) or
Permitted Nonstructural Alteration(s) that Tenant intends to perform, the estimated commencement
date of such Decorative Alteration(s) or Permitted Nonstructural Alteration(s), and, in the case
of Permitted Nonstructural Alterations, the estimated cost thereof; provided, however, Tenant
shall not be required to give Landlord prior notice of its intention as to perform Decorative
Alterations that cost less than $25,000.00 but shall endeavor to give Landlord prior notice
thereof.




     13.03 (a) Before commencing any Alteration (except for, subject to the provisions of
subsection 13.02(e) above, Decorative Alterations and Permitted Nonstructural Alterations), Tenant
shall advise Landlord thereof, and at Tenant’s sole



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cost and expense, shall have prepared by a
licensed architect or engineer approved by Landlord (which approval shall not be unreasonably
withheld, conditioned or delayed), and deliver to Landlord for Landlord’s approval as provided for
herein, completed and reasonably detailed architectural, mechanical and electrical working
drawings, plans and specifications therefor (such completed and reasonably detailed working
drawings, plans and specifications being herein referred to as “Tenant’s Plans”), which approval
shall not be unreasonably withheld, conditioned or delayed for any Nonstructural Alterations
described therein. HLW International and Gensler are deemed approved by Landlord as such architect
or engineer, provided that Landlord reserves the right, upon notice to Tenant, with a statement as
to cause, to withdraw its approval of any such entity, provided that such entity has not
theretofore been irrevocably engaged by Tenant (without penalty) to prepare the Tenant’s Plans in
question. The submission to Landlord of Tenant’s Plans (or any revisions thereto) shall not be
effective if the Tenant’s Plans (or the revisions thereto, as the case may be) are not complete,
three (3) copies thereof in the latest version of AutoCAD format (or such other format including
hard copy/print format as may be requested by Landlord) are not delivered to Landlord, Attention
Kevin Brandenburg, at 9797 Springboro Pike, Dayton, OH 45448, and to Landlord, Attention: John
Chambers, at 501 Route 22, Bridgewater, NJ 08807, or the submission is not in a writing that
specifically identifies such submission as a formal request for the approval of Tenant’s Plans (or
revisions thereto) and contains substantially the following statement in bold and CAPITAL letters:
“THIS IS A FORMAL REQUEST FOR APPROVAL OF TENANT’S PLANS AND/OR REVISIONS THERETO PURSUANT TO THE
PROVISIONS OF ARTICLE 13 OF THE SUBLEASE. “ Such request may also contain substantially the
following statement in bold and CAPITAL letters: “THIS IS ALSO A FORMAL REQUEST PURSUANT TO SECTION
14.05 FOR LANDLORD TO IDENTIFY THOSE MISCELLANEOUS SPECIALTY ALTERATIONS THAT MUST BE REMOVED FROM
THE PREMISES BEFORE THE EXPIRATION DATE OR SOONER TERMINATION OF THIS SUBLEASE.”




          (b) After approval of Tenant’s Plans, Tenant shall deliver to Landlord copies of all change
orders relating to the Alterations promptly after same are entered into, which change orders shall
be subject to the applicable provisions of this Article, including, when applicable, Landlord’s
approval of the plans and specifications therefor.




          (c) Provided Tenant has delivered the Tenant’s Plans to Landlord as required above, Landlord
shall respond to Tenant’s request to approve Tenant’s Plans or not require removal of a designated
Specialty Alteration within fifteen (15) days after Landlord receives a complete set of Tenant’s
Plans, and Landlord shall respond to Tenant’s request to approve revisions to Tenant’s Plans
within seven (7) days after Landlord receives such revisions (in either case, the “Plan Review
Period”). If Landlord disapproves Tenant’s Plans, Landlord shall provide Tenant with written
notice during the Plan Review Period, which notice shall include Landlord’s reasons, in reasonable
detail, for such disapproval and Tenant shall submit appropriate revisions to Tenant’s Plans.
Landlord’s approval of any Tenant’s Plans or revisions thereto shall not be effective unless same
is in writing. If Landlord fails to approve or disapprove





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the Tenant’s Plans (or any revisions thereto) so submitted by Tenant within the applicable
Plan Review Period, Tenant shall have the right to provide Landlord with a second written request
for approval (a “Second Plan Approval Request”) that specifically identifies the applicable
Tenant’s Plans (or revisions thereto) and contains substantially the following statement in bold
and CAPITAL letters: “THIS IS A SECOND PLAN APPROVAL REQUEST FOR APPROVAL OF TENANT’S PLANS
AND/OR REVISIONS THERETO PURSUANT TO THE PROVISIONS OF SECTION 13.03 OF THE LEASE and if
applicable AND FOR LANDLORD TO IDENTIFY THOSE MISCELLANEOUS SPECIALTY ALTERATIONS THAT MUST BE
REMOVED FROM THE PREMISES BEFORE THE EXPIRATION DATE OR SOONER TERMINATION OF THIS SUBLEASE. IF
LANDLORD FAILS TO RESPOND WITHIN FIVE (5) DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD
SHALL BE DEEMED TO HAVE APPROVED THE TENANT’S PLANS (AND REVISIONS THERETO, IF ANY) DESCRIBED
HEREIN and add if applicable, AND LANDLORD SHALL BE DEEMED TO HAVE AGREED, SUBJECT TO THE
PROVISIONS OF THE EXISTING SUPERIOR LEASE AND THE RIGHTS OF THE EXISTING LESSOR THEREUNDER, THAT
TENANT HAS NO OBLIGATION TO REMOVE MISCELLANEOUS SPECIALTY INSTALLATIONS BEFORE THE EXPIRATION
DATE OR SOONER TERMINATION OF THIS SUBLEASE.” If Landlord fails to respond to such Second Plan
Approval Request within five (5) days after receipt by Landlord of the Second Plan Approval
Request, the Tenant’s Plans and revisions thereto, if any, in question but only to the Tenant’s
Plans (or revisions) so submitted and identified in such Second Plan Approval Request shall be
deemed approved by Landlord, and, if applicable, Landlord shall be deemed to have agreed, subject
to the provisions of the Existing Superior Lease and the rights of the Existing Lessor thereunder,
that Tenant has no obligation to remove any of the Miscellaneous Specialty Installations described
in such Tenant’s Plans before the Expiration Date or sooner termination of this Sublease.
Notwithstanding the foregoing, to the extent the Existing Lessor’s approval or consent is required
for the Alteration or Tenant’s Plan (or revision thereto) in question, the Plan Review Period
shall be extended, as reasonably necessary to comply with the applicable provisions of the
Existing Superior Lease, and the Existing Lessor’s rejection of any Tenant’s Plans (or revisions
thereto) shall be deemed a reasonable basis for Landlord’s rejection thereof, and the Existing
Lessor’s delay in responding, or failure to respond, shall be deemed a reasonable basis for
Landlord’s conditional rejection of the Tenant’s Plans (or revisions thereto) in question, pending
receipt by Landlord from the Existing Lessor of the Existing Lessor’s response to the Tenant’s
Plans (or revisions thereto) in question. To the extent the Existing Lessor’s approval or consent
is required for the Alteration or Tenant’s Plans (or revision thereto), Landlord, without cost to
Landlord, shall make a good faith and prompt request for the approval of the Existing Lessor
thereto, and thereafter diligently pursue such request, without any representation or warranty on
the part of the Landlord as to whether such approval can be obtained, and Landlord’s inability to
obtain such approval shall not relieve or release Tenant from any of its obligations or
liabilities under this Sublease, constitute an actual or constructive eviction, or impose any
liability upon Landlord. Landlord makes no representation or warranty as to the permissibility of
any Alteration under the Existing Superior Lease. To the extent


101









 






permitted pursuant to
 the Existing Superior Lease, Tenant may make direct request to the Existing
Lessor, with a simultaneous copy to Landlord, for Existing Lessor’s approval of the Roof
Installations, internal staircases, conduits that penetrate structural portions of the Building,
and Structural Alterations in connection with Tenant’s uninterrupted power supply system (a/k/a
UPS) and high density files, such approval (if given) by the Existing Lessor being in addition to,
and not in lieu thereof, Landlord’s approval (if given).




          (d) Tenant shall pay, as Additional Rent, to Landlord within thirty (30) days after
Landlord’s demand therefor together with reasonable supporting documentation, Landlord’s
reasonable and actual third-party out-of-pocket costs and expenses in connection with the review
of the Tenant’s Plans (and all revisions thereto), including all costs and expenses charged by the
Existing Lessor, Tenant hereby agreeing that Landlord’s or Existing Lessor’s approval of the
Tenant’s Plans (or any revisions thereto), or its or their monitoring or inspection, or its or
their right or failure to monitor or inspect of such work, shall not impose upon Landlord or
Existing Lessor any obligation or liability whatsoever with respect thereto, including any
obligation or liability that might arise as a result of such work not being performed in
accordance with applicable Legal Requirements or with the Tenant’s Plans (and revisions thereto)
approved by Landlord, Existing Lessor or otherwise. Other than such reasonable and actual
third-party out-of-pocket costs and expenses incurred by Landlord in connection with Landlord’s
and Existing Lessor’s review of Tenant’s Plans, Landlord shall not charge Tenant any supervisory
fee, surcharge, administrative fee or profit mark-up in connection with the performance of
Alterations (including Tenant’s Work). Any costs or expenses charged by Landlord’s managing agent
for the Building in connection with the review of Tenant’s Plans or the performance of Alterations
shall not be deemed third-party costs and expenses for the purposes of this Sublease. The review
or approval by Landlord of any Tenant’s Plans or any revisions thereto is solely for Landlord’s
benefit, and is without any representation or warranty whatsoever with respect to the adequacy,
correctness or efficiency thereof or otherwise. Neither the granting by Landlord of its approval
of any Tenant’s Plans or any revisions thereto, nor Landlord’s execution of any of the
applications referred to in Section 13.04 below, shall in any manner constitute or be deemed to
constitute a judgment or acknowledgment by Landlord as to their legality or compliance with Legal
Requirements. Landlord’s approval of any Tenant’s Plans or revisions thereto shall not be
effective unless same is in writing, except as provided in Section 13.03(b).




          (e) Tenant shall not use, employ or retain any contractor, construction manager or
mechanic, or permit the use, employment or retention of any subcontractor, that has not been first
approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed,
it being acknowledged that any requirement to use solely union labor shall be deemed reasonable.
Landlord hereby approves Turner Construction as a construction manager. Tenant shall request
Landlord’s approval of a contractor, construction manager or mechanic by giving to Landlord a
written request for such approval that contains substantially the following statement in bold and
CAPITAL letters: “THIS IS A FORMAL REQUEST FOR



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APPROVAL OF CONTRACTOR, CONSTRUCTION MANAGER OR
MECHANIC
PURSUANT TO THE PROVISIONS OF ARTICLE 13 OF THE SUBLEASE. “ IF LANDLORD FAILS TO RESPOND
WITHIN EIGHT (8) BUSINESS DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO
HAVE APPROVED THE CONTRACTOR, CONSTRUCTION MANAGER OR MECHANIC IDENTIFIED HEREIN.” Provided
Tenant makes such request in such manner, Landlord shall respond to Tenant’s request to approve
the contractor, construction manager or mechanic in question within eight (8) Business Days after
Landlord receives such request. If Landlord disapproves the proposed the contractor, construction
manager or mechanic, Landlord shall provide Tenant with written notice during such eight (8)
Business Day period, which notice shall include Landlord’s reasons, in reasonable detail, for such
disapproval. Landlord’s approval of any the contractor, construction manager or mechanic shall
not be effective unless same is in writing (except for a deemed approval pursuant to the next
sentence). If Landlord fails to respond to such Contractor Approval Request within eight (8)
Business Days after receipt by Landlord of the Contractor Approval Request, the proposed
contractor, construction manager or mechanic in question shall be deemed approved by Landlord.
Notwithstanding the foregoing, to the extent the Existing Lessor’s approval or consent shall be
required for the proposed contractor, construction manager or mechanic in question, the eight (8)
Business Day period set forth above shall be extended, as reasonably necessary to comply with the
applicable provisions of the Existing Superior Lease, and the Existing Lessor’s rejection of any
contractor, construction manager or mechanic shall be deemed a reasonable basis for Landlord’s
rejection thereof, and the Existing Lessor’s delay in responding, or failure to respond, shall be
deemed a reasonable basis for Landlord’s conditional rejection of the contractor, construction
manager or mechanic in question, pending receipt by Landlord from the Existing Lessor of the
Existing Lessor’s response to the proposed contractor, construction manager or mechanic in
question. To the extent the Existing Lessor’s approval or consent shall be required for the
proposed contractor, construction manager or mechanic in question, Landlord, without cost to
Landlord, shall in good faith and promptly request the approval of the Existing Lessor thereto and
thereafter diligently pursue such request, without any representation or warranty on the part of
the Landlord as to whether such approvals can be obtained, and Landlord’s inability to obtain such
approval shall not relieve or release Tenant from any of its obligations or liabilities under this
Sublease, constitute an actual or constructive eviction, or impose any liability upon Landlord.
Landlord makes no representations or warranties as to the permissibility of any such contractor,
construction manager or mechanic under the Existing Superior Lease. All contractors, construction
managers, mechanics and subcontractors set forth in Exhibit D hereto shall be deemed approved by
Landlord, provided that Landlord reserves the right, upon notice to Tenant, with a statement as to
cause, to remove any entity from such approved list provided that such entity has not theretofore
been irrevocably engaged by Tenant (without penalty) to perform the Alteration in question.
Notwithstanding the foregoing, Landlord may require Tenant to use a designated Class E vendor or,
in connection with any Alteration that may affect the certificates of occupancy for the Building,
a designated expediter, provided such



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designees are competitive in price with comparable
alternatives available within New York City.




          (f) Notwithstanding anything contained in subsection (d) above to the contrary, but in
all cases subject to the provisions of Article 52 hereof, Tenant’s employees, who are licensed by
all applicable Governmental Authorities and are otherwise well-qualified to perform the Alteration
or maintenance in question in question, shall be permitted to make, in accordance with, and
subject to, the applicable provisions of this Sublease, any Decorative Alteration or any item of
maintenance that Tenant is required or permitted to make pursuant to the applicable provisions of
this Sublease, provided that such maintenance does not require the approval of any Governmental
Authority.




     13.04 (a) All permits, notices, approvals and certificates required by all
Governmental Authorities for the commencement and prosecution of an Alteration, and, upon
completion, for the final approval of such Alterations, are herein referred to as the “Alteration
Permits.” Before commencing any Alteration, Tenant shall, at its expense, obtain, and deliver
copies to Landlord of, all Alteration Permits required for the commencement and prosecution of the
Alterations in question, and promptly after the substantial completion of an Alteration, Tenant
shall, at its expense, obtain, and deliver to Landlord copies of, all Alteration Permits for the
final approval of such Alterations. Landlord, at the sole cost of Tenant, shall cooperate with
Tenant in obtaining all Alteration Permits and shall execute any required applications promptly
after Tenant’s request therefor, provided that no Event of Default exists and that all Tenant’s
Plans and revisions thereto have been approved by Landlord in accordance with the provision of this
Article 13. Notwithstanding the foregoing, as an accommodation to Tenant, Landlord shall execute
such applications prior to approving Tenant’s Plans or any revisions thereto, it being understood
and agreed that any execution of any such applications shall in no way be deemed to be the approval
by Landlord of any of the Alterations contemplated in such applications or any of the Tenant’s
Plans or revisions thereto in respect of such Alterations, even if the Tenant’s Plans or revisions
thereto in question were submitted to Landlord with, or prior to, the submission to Landlord of
such application(s). Tenant shall indemnify, defend and hold harmless Landlord and all other
Landlord Indemnitees (as defined in Section 21.01 hereof) from all loss, cost, liability or
expense, including reasonable attorneys’ fees resulting from any misrepresentation contained in any
application prepared by Tenant, whether or not signed by Landlord.



          (b) (i) All contractors and construction managers of Tenant and all other Tenant
Parties, as well as all subcontractors of Tenant, all other Tenant Parties and such contractors
and construction managers, shall agree in a written instrument that is in form and content
reasonably satisfactory to Landlord, to the fullest extent permitted by law, to indemnify, defend
and hold harmless all Landlord Indemnitees, from and against any and all actions, proceedings,
claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages,
costs and expenses (including court costs and reasonable legal fees and disbursements) on account
of injury to



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persons, including death resulting from, and damage to property, arising out of the
performance, or lack of performance, of the agreements by said contractors, construction managers
and subcontractors, and their respective employees and
agents (collectively, the “Contractor Parties”), and damage to the property of the Contractor
Parties.




               (ii) In addition to the insurance required to be maintained pursuant to Article 11 above,
but without any requirement to duplicate any coverage, throughout the performance of all
Alterations, all of the contractors, construction managers and subcontractors described in
subsection (i) above shall, at no cost or expense to Landlord, obtain, and keep in full force and
effect, for the benefit of the Landlord Indemnitees, the following insurance coverage (or such
other insurance or greater amounts thereof as may be required under Section 12.1(a) of the Existing
Superior Lease, subject to increases provided for therein), which insurance coverage shall be
primary, notwithstanding any other insurance that might be in effect for the Landlord Indemnities:



                    (A) Commercial General Liability Insurance, including Contractual Liability (to
specifically include coverage for the indemnification set forth in subsection (b)(i) above),
Products & Completed Operations Liability (including XCU coverage), Broad Form Property Damage,
Personal Injury Liability and Advertising Injury Liability, all written on an occurrence form, with
combined bodily injury and property damage limits of liability of no less than $5,000,000 per
occurrence, $5,000,000 per location general aggregate, $5,000,000 Personal & Advertising Injury and
$5,000,000 Products and Completed Operations liability with an aggregate limit per project. The
limits of liability can be provided in a combination of a Commercial General Liability policy and
an Umbrella Liability policy, which is written on a no less than follow form basis. The policy
should be written on form CG00 01 07 98 or it’s equivalent and shall not include any exclusions or
limitations other than those incorporated in the standard form. Such insurance shall be primary
notwithstanding any insurance maintained by any Landlord Indemnitee;



                    (B) Worker’s Compensation Insurance, providing statutory benefits for said contractors,
construction managers and subcontractors employees and Employer’s Liability coverage in the amounts
required by applicable Requirements, if any, otherwise in an amount that is no less than
$1,000,000.00.



                    (C) Such other insurance in such amounts as Landlord or the holder of any superior
mortgage or the lessor under any superior lease requests from time to time, to the extent
consistent with insurance that other landlords are then requiring tenants occupying space in first
class buildings in the Borough of Queens that are in the vicinity of the Building to maintain,
including specifically the requirements of Article 12 of the Existing Superior Lease and the rights
of Existing Lessor thereunder to increase required amounts of insurance.



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               (iii) The general contractor or construction manager of Tenant and of all other Tenant
Parties shall have included, and shall cause all other contractors and subcontractors to have
included, in each of the above insurance policies, except Workers Compensation, a waiver of the
insurer‘s right of subrogation against the Landlord Indemnitees, and notwithstanding
anything which may be deemed to the
contrary, the general contractor or construction manager of Tenant and of all other Tenant
Parties and all other contractors and subcontractors, shall agree to waive all rights of
subrogation in favor of Landlord Indemnitees.



               (iv) Landlord, Landlord’s then managing agent of (which on the Effective Date shall be
Cushman & Wakefield, Inc.) the other Landlord Indemnitees and all other Additional Insureds (as
defined in Article 11 above), all as their interests may appear, and such other parties in interest
as Landlord may designate in writing from time to time, shall be named as additional insureds in
each of the above policies, except with respect to Workers Compensation.



               (v) Certificates in the customary form, i.e., ACORD 25, evidencing all of the insurance
required to be obtained pursuant to subsection (ii) above shall be delivered to Landlord at least
five (5) Business Days prior to the commencement of the Alterations in question, and similar
certificates shall be delivered evidencing the renewal or replacement of such insurance at least
ten (10) days prior to the effective date of such renewal or change of insurer.



               (vi) The general contractor or construction manager of Tenant and of all other Tenant
Parties and all other contractors and subcontractors shall request their respective insurers to
notify Landlord, at least twenty (20) days in advance, of any cancellation (other than for
non-payment of premium), non-renewal (other than for non-payment of premium) or material change in
any such insurance policies, or, at least ten (10) days in advance, of cancellation or non-renewal
for non-payment of premium.



     13.05 (a) All Alterations other than Decorative Alterations shall be performed with
due diligence and promptly completed, in compliance with all Alteration Permits (if applicable),
all applicable Requirements, all Rules and Regulations, including any required due to any LEED
Certification of the Building, in accordance with the Tenant’s Plans (and revisions thereto)
theretofore approved by Landlord (to the extent Landlord’s or the Existing Lessor’s approval is
required under this Sublease or the Existing Superior Lease), and otherwise in a good and
workmanlike manner, using new materials and equipment of a quality and class at least equal to the
original installations in the Building (except where LEED performance requires the use of recycled
or used materials). Alterations shall be performed in such a manner as not to unreasonably
interfere with or delay, and as not to impose any additional (non-de minimis) expense upon Landlord
(unless Landlord and Tenant agree in writing that Tenant shall pay or reimburse to Landlord such
additional expense) in, the maintenance or operation of the Building or any part thereof.



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          (b) Promptly after the substantial completion of each Alteration other than Decorative
Alterations, Tenant, at its sole cost and expense:




               (i) Shall have prepared and delivered to Landlord, as-built plans (in hard copy/print
format and in the latest version of AutoCAD format (or such other format as may be approved by
Landlord)), and sign-offs and inspection reports with
respect to the Alterations in question. Landlord shall have an unrestricted non-exclusive
license to use such “as built” plans, as well as all field notes and plans, for any purpose
relating to the Premises without paying any additional cost or compensation therefor;



               (ii) A certificate from Tenant’s architect, general contractor or construction manager
that in such person’s professional judgment, all Alterations have been completed in accordance with
the Tenant’s Plans and revisions thereto theretofore approved by Landlord; and



               (iii) Lien waivers from each contractor, subcontractor, materialman and supplier to the
extent of the amount paid to such parties. Notwithstanding the foregoing, Tenant shall not be
required to deliver to Landlord any lien waiver under this subsection (iii), as opposed to Section
4.03, if Tenant is disputing in good faith the payment which would otherwise entitle Tenant to such
waiver, provided that (x) Tenant keeps Landlord advised of the status of such dispute and the basis
therefor, (y) Tenant delivers to Landlord the lien waiver promptly after the date that the dispute
is settled, and (z) such lien waivers are not required under the Existing Superior Lease, any other
superior lease, any superior mortgage, any other agreement by which Landlord is bound, and the
failure to obtain such lien waivers would not otherwise adversely affect Landlord, the lessor under
the Existing Superior Lease or any other superior lease, the Building or Landlord’s or such
lessor’s interest therein; it being understood and agreed that the foregoing shall not relieve
Tenant of any of its obligations to remove a lien by bond or otherwise in the event a lien is filed
or to indemnify, defend and hold Landlord harmless in respect of such lien.



     13.06 Tenant shall not permit any mechanic’s or other liens to be filed, or violations to
be issued by the Department of Buildings or any other Governmental Authority, in any such case in
connection with or arising from, or otherwise connected with, any Alterations (including Tenant’s
Work, provided that, with respect to Tenant’s Work, Landlord has been timely in making construction
draws in accordance with, and subject to, the applicable provisions of Section 4.03 hereof) or any
other work claimed to have been done for, or materials furnished to, Tenant or any Tenant Party,
whether or not done or furnished pursuant to this Article, including the liens of any security
interest in, conditional sales of, or chattel mortgages upon, any materials, fixtures or articles
so installed in and constituting part of the Premises. Tenant shall not be in default of the
preceding sentence if, at its expense, it satisfies, cancels or discharges, or bonds over, all such
liens and violations, and, in all cases, removes same from the record, within thirty (30) days
after Landlord makes written demand therefor (or such shorter period of time as may be required
under the Existing Superior Lease); provided, however, that the granting of such thirty (30) days
shall not affect Tenant’s other



107









 







obligations and liabilities under this Sublease, including the
indemnification obligation set forth in this Section. Nothing in this Section shall prevent Tenant
from granting a security interest in any of Tenant’s Property that is not affixed to any portion of
the Real Property, provided that at no time shall any such security interest encumber or otherwise
affect, or attach to, Landlord, the lessor under any superior lease, or any estate or interest in
the Real Property (or any portions thereof).



     13.07 Nothing contained in this Sublease shall be deemed or construed to constitute the
consent or request of Landlord, express or implied, by implication, inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials for any specific improvement of, alteration to, or repair of, the Real
Property or any part thereof on behalf of Landlord or any lessor (including Existing Lessor) under
any superior lease, nor as giving Tenant any right, power or authority to contract on behalf of
Landlord or any such lessor, including Existing Lessor, or permit the rendering, on behalf of
Landlord or any such lessor, including Existing Lessor, of any services or the furnishing of
materials that would give rise to the filing of any lien, mortgage or other encumbrance against the
Real Property or any part thereof or against any assets of Landlord or any such lessor, including
Existing Lessor.



     13.08 Regardless of who performs an Alteration, all Alterations shall be performed subject
to the provisions of Article 52 hereof.



     13.09 Subject to the provisions of Section 2.04(b)(ii), Tenant covenants and agrees to use
commercially reasonable efforts to minimize noise and vibrations resulting from the performance of
Alterations (including Tenant’s Work), the operation and testing of Roof Installations and all
other work (including repairs) performed by Tenant or any other Tenant Party, from being audible or
felt outside the Premises (including portions of the Building outside the Premises) between the
hours of 8 AM and 5 PM on Business Days. With respect to the testing of Tenant’s Generator
Equipment, the performance of Alterations (including Tenant’s Work) and/or all other work
(including repairs) performed by Tenant or any other Tenant Party which, despite using commercially
reasonable efforts to minimize noise and vibrations, results in unreasonable noise or vibrations
being audible from or felt outside the Premises (including portions of the Building outside the
Premises), such testing, Alterations and other work shall be reasonably scheduled with Landlord,
and, except as otherwise required by Governmental Authority, shall only be performed (A) on days
that are not Business Days or (B) on Business Days other than
during the hours of 8:00 AM to 6:00
PM, provided, however, that if any Roof Installation is in need of immediate repair and the Roof
Installation in question is reasonably necessary to conduct Tenant’s business in the Premises, such
repairs may be performed during the hours of 8:00 AM to 6:00 PM on Business Days if the repair in
question is completed within forty-eight (48) hours from the time such repair commences, and if the
repair in question takes longer than forty-eight (48) hours from the time such repair commences,
the continuation of such repair (beyond such forty-eight (48) hour period) may only be performed
(x) on days that are not Business Days or (y) on Business Days other than during the hours of 8:00
AM



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to 6:00 PM. For the purposes of illustration, a functioning Tenant’s Generator Equipment shall
be deemed reasonably necessary to conduct Tenant’s business in the Premises even when there is no
power outage, but a functioning Rooftop Sign shall never be deemed reasonably necessary to conduct
Tenant’s business in the Premises.



ARTICLE 14

TENANT’S PROPERTY




     14.01 All fixtures, equipment, improvements and appurtenances attached to or built into
the Premises at the commencement of or during the Term, whether or not by or at the expense of
Tenant, shall be and remain a part of the Premises, shall be deemed the property of Landlord upon
the expiration of the Term and shall not be removed by Tenant, except (i) in the ordinary course of
business, (ii) in accordance with Section 13.05(a) or (iii) as hereinafter in this Article
expressly provided.



     14.02 All (a) movable partitions; lighting fixtures; special cabinet work; business,
office and trade fixtures, machinery and equipment; communications equipment; and equipment in the
SOC, whether or not, in the case of any of the foregoing, attached to or built into the Premises,
which are installed in the Building by or for the account of Tenant or any other Tenant Party, and
which can be removed without permanent structural damage to the Building, and (b) furniture,
furnishings and other articles of movable personal property of Tenant or any other Tenant Party and
located in the Premises (all of items described in clauses “(a)” and “(b)” being herein referred to
as “Tenant’s Property“) shall be and shall remain the property of Tenant (or such Tenant Party) and
may be removed by it at any time during the Term; provided that if any of Tenant’s Property is
removed, Tenant or any party or person entitled to remove same shall repair or pay the cost of
repairing any damage to the Premises or to the Building resulting from such removal. Any dispute
between Landlord and Tenant as to whether any property constitutes Tenant’s Property shall be
resolved by arbitration in accordance with the provisions of Article 34 hereof.



     14.03 On or before the Expiration Date or sooner termination of this Sublease (or as
promptly as practicable after such a sooner termination), or sooner date upon which any portion of
the Premises will no longer be a part of the Premises pursuant to the Contraction Option, the
5th Floor Contraction Option, Partial Surrender Option, the exercise of Landlord’s
Option or otherwise, Tenant at its expense, shall remove from the Premises and the Building all of
Tenant’s Property (except, at Tenant’s election, movable partitions, lighting fixtures and special
cabinet work) and, subject to the provisions of the next sentence, all cabling installed in the
Building by or on behalf of Tenant or any other Tenant Party, and shall repair any damage to the
Premises or the Building resulting from such removal of Tenant’s Property and such cabling. With
respect to such cabling, the removal (and corresponding repair) obligations described in the
preceding sentence shall apply if (i) under the applicable provisions of the Existing Superior
Lease, cabling is required to be removed upon the expiration or termination of the Existing
Superior Lease, or (ii) if such removal is required by Legal Requirements, it being agreed that for
the purposes of determining whether such removal is required by



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Legal Requirements the cabling
shall be deemed abandoned and not be used after Tenant’s use thereof. For the purposes of
clarification, if any cabling is located within portions of the Premises which no longer are a part
of the Premises pursuant to the Contraction Option, the 5th Floor Contraction Option,
Partial Surrender Option, the exercise of Landlord’s Option or otherwise, such removal (and
corresponding repair) obligations shall apply to the portions of the Premises in question, as and
when the such portions of the Premises are no longer a part of the Premises, with such removal and
repair obligations applying to all remaining cabling (including cabling that is outside the
Premises) on or before the Expiration Date or sooner termination of this Sublease. Tenant’s
obligation herein shall survive the expiration or sooner termination of this Sublease. Any dispute
between Landlord and Tenant as to whether any property constitutes Tenant’s Property shall be
resolved by arbitration in accordance with the provisions of Article 34 hereof.




     14.04 Any items of Tenant’s Property (except money, securities and other like valuables)
and Specialty Installations which shall remain in the Premises or the Building after (a) the
Expiration Date or fifteen (15) days following an earlier termination date, and (b) Tenant having
vacated the Premises, may, at the option of Landlord, be deemed to have been abandoned, and in such
case either may be retained by Landlord as its property or may be disposed of, without
accountability, at Tenant’s sole cost and expense in such manner as Landlord may see fit.



     14.05 (a) For purposes of this Sublease, “Specialty Installation(s)” shall mean all
(i) Structural Alterations made by or on behalf of Tenant or any other Tenant Party, (ii) Roof
Installations, (iii) all installations consisting of kitchens (but not pantries), private or
executive lavatories, vaults, internal staircases, dumbwaiters and pneumatic tubes, and (iv) other
installations of similar character or nature that are above and beyond standard or typical office
installations but specifically excluding raised floors and wiring and cabling (the Specialty
Installations described in this clause (iv) being collectively referred to as “Miscellaneous
Special Installations”). “Specialty Installations” shall also include all Alterations and
installations, which, under the applicable provisions of the Existing Superior Lease, are required
to be removed upon the expiration or termination of the Existing Superior Lease. Any dispute
between Landlord and Tenant as to whether an Alteration or installation constitutes a Specialty
Installation shall be resolved by arbitration in accordance with the provisions of Article 34
hereof. Unless, in response to Tenant’s notice, as hereinafter provided, Tenant is otherwise
expressly advised in writing by Landlord to the contrary, on or before the Expiration Date or
sooner termination of this Sublease, or sooner date upon which any portion of the Premises will no
longer be a part of the Premises pursuant to the Contraction Option, the 5th Floor
Contraction Option, Partial Surrender Option, the exercise of Landlord’s Option or otherwise,
Tenant shall, at its sole cost and expense, remove all Specialty Installation(s) from the Premises
(or applicable portion thereof) and the Building (unless (A) the Existing Lessor has agreed in
writing that such Specialty Installation need not be removed, and (B) Landlord does not renew or
extend the term of the Existing Superior Lease), repair all damage to the Premises (or applicable
portion thereof) and all other portions of the Building affected by such removal, restore all



110









 








portions of the Premises (or applicable portion thereof) and the other portions of the Building
affected by the Specialty Installations to the condition that such portions of the Premises (or
applicable portion thereof) and the Building existed prior to the installation of same, cap off
plumbing and gas lines in accordance with applicable Requirements and good construction practices,
and restore all slab and wall penetrations to the condition that existed prior to such penetrations
(such removal, repair and restoration work being hereinafter referred to as the “Restoration
Work”), except that if Tenant, at its election, prior to commencing such Restoration Work, notifies Landlord thereof and
Landlord shall advise Tenant in writing, within ten (10) Business Days after Landlord’s receipt of
such notice that Landlord wishes any Specialty Installations to remain, Tenant shall not perform
Restoration Work with respect to that particular Specialty Installation.




          (b) Notwithstanding anything contained in subsection (a) above to the contrary, except in
the case of (A) the Term or this Sublease ending or being terminated as a result of an Event of
Default, and (B) portions of the Premises no longer being a part of the Premises pursuant to the
Contraction Option, the 5th Floor Contraction Option, Partial Surrender Option, the
exercise of Landlord’s Option or otherwise, the Structural Alterations described in clause “(i)”
of subsection (a) above, that are not Specialty Installations pursuant to any other provision of
this Sublease, shall only be Specialty Installations under this Sublease if same, under the
applicable provisions of the Existing Superior Lease, are required to be removed upon the
expiration or termination of the Existing Superior Lease.




          (c) Tenant’s obligation and liability with respect to the removal of Specialty
Installation(s) and the performance of the Restoration Work shall survive the Expiration Date (as
same may be extended) or sooner expiration or termination of this Sublease.




ARTICLE 15

REPAIRS AND MAINTENANCE




     15.01 Tenant, at its sole cost and expense, (a) shall maintain in good working order and
condition, and shall repair promptly, the floors, ceilings, interior walls, and doors of the
Premises, (b) shall maintain in good working order and condition all other portions of the
Premises, and the fixtures, equipment and appurtenances therein, including all Building systems and
equipment therein that have been installed or modified in any way by or on behalf of Tenant or any
other Tenant Party, and (c) promptly shall make all nonstructural repairs to all of the foregoing
as and when needed to preserve the Premises (and all such fixtures, equipment and appurtenances) in
good working order and condition, except for reasonable wear and tear and damage by casualty or
condemnation. Furthermore, and notwithstanding anything in this Sublease to the contrary,
Tenant, at its sole cost and expense, shall maintain in good working order and condition, repair
promptly, all devices, systems, equipment and installations, whether located inside or outside the
Premises and regardless of the nature of such repairs, that exclusively service the Premises
(including the Supplemental HVAC Units, the Roof Installations, the Tenant’s Generator
Equipment and the Tenant’s Signs), as



111









 




may be required by applicable Legal
Requirements and as may be otherwise required solely to maintain such devices, systems,
equipment and installations in good working order and condition. (Except as otherwise provided in
the succeeding sentence, the preceding sentence shall not apply to the Building’s risers, exterior
windows, electrical closets, standpipes, sprinkler system outside the Premises or the Building HVAC
Systems.) Notwithstanding anything in this Sublease to the contrary, but subject to the provisions
of Section 11.03 hereof, Tenant, at its sole cost and expense, shall promptly
make all Alterations and repairs, ordinary or extraordinary, interior or exterior, structural
or otherwise, in and about the Premises and the Building, as shall be required by reason of (i) the
performance or existence of Tenant’s Work or Tenant’s Alterations, (ii) the installation, use or
operation of Tenant’s Property in the Premises or the installation, use or operation of the Roof
Installations, (iii) the moving of Tenant’s Property in or out of the Building, (iv) the negligence
or willful act of, or omission by, Tenant or any other Tenant Party, (v) the use of any portion of
the Premises for a use that is not permitted under this Sublease, or (vi) a default under any of
the terms, covenants or conditions in this Sublease on Tenant’s part to observe, perform or comply
with. In addition, and notwithstanding anything in this Sublease to the contrary, Tenant, at its
sole cost and expense, shall promptly make all repairs of any nature, to all devices, systems,
equipment and installations, whether located inside or outside the Premises that are installed by
or on behalf of Tenant or any other Tenant Party. Notwithstanding the foregoing, to the extent
that Tenant is obligated to perform any Structural Alterations or structural repairs to any portion
of the Premises or other portion of the Building or is obligated to perform any Alterations or
repairs outside of the Premises, Landlord, at its election, upon notice to Tenant, may perform such
Alterations or repairs on Tenant’s behalf in the event of an emergency or if Tenant fails to
commence or diligently pursue such work to completion within any applicable notice and cure period
set forth in this Sublease, in which event, Tenant shall reimburse Landlord for the reasonable and
actual out-of-pocket costs paid or incurred by Landlord to perform such Alterations or repairs
within thirty (30) days after Landlord’s request therefor, which request shall be accompanied by a
reasonably detailed description of the repairs in question and reasonable evidence supporting the
costs thereof. Tenant, at its sole cost and expense, shall be responsible for all repairs,
maintenance and replacement of interior doors, walls and wall and floor coverings, signs, window
treatments and window shades in the Premises and, for the repair and maintenance of all lighting
fixtures therein. Nothing contained in this Section 15.01 shall require Tenant to perform any
repairs to the Premises which, pursuant to the express provisions of Section 15.02, are Landlord’s
obligation to perform, or to repair the property of any person (other than Tenant or any other
Tenant Party) to the extent the need to repair such property results from the negligence or willful
act or omission of Landlord.




     15.02 Landlord, at its expense, except as otherwise expressly provided in Section 15.01
above, Articles 41, 45, 46 and 50 below, and as may be otherwise expressly provided in other
provisions of this Sublease, shall keep and maintain (or shall cause the Existing Lessor to keep
and maintain) the Real Property, the Building (including the exterior walls of the Building, the
structural portions of the Building, the roof of the Building and the exterior windows of the
Premises, all to the extent, if not



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maintained, would adversely affect (by more than a de minimis
extent) Tenant’s use of the Premises), the common areas, the sidewalks adjacent to the Building and
the Building systems and the facilities that serve the Premises (including the Building HVAC
Systems (as defined in Section 17.02 hereof) up to, in the case of the Building HVAC Units (as
defined in Section 17.02 hereof) the main feed of the Building HVAC Units where same intersects the
corresponding exterior wall of the Premises, and the system to furnish condenser water to the
Supplemental HVAC Units), in good working order,
condition and repair and in the same, or better, condition as comparable first class office
buildings located in the Borough of Queens.




     15.03 Except as may otherwise be expressly provided in this Sublease, Landlord shall have
no liability to Tenant by reason of any inconvenience, annoyance, interruption or injury to
business arising from Landlord, Tenant or others making or failing to make any repairs or changes
which, with respect to Landlord, Landlord is required or permitted by this Sublease, or required by
any Requirement to make, in or to any portion of the Building or the Premises, or in or to the
fixtures, equipment or appurtenances of the Building or the Premises, except, in each case, to the
extent caused by the gross negligence or willful misconduct of Landlord or a Landlord Party. With
respect to any repairs which Landlord is obligated to make, the performance of which will affect
Tenant’s use of the Premises for the Permitted Uses, Landlord shall use good faith commercially
reasonable efforts in making any such repairs and shall perform such repair work, except in case of
emergency, at times reasonably convenient to, and in coordination with, Tenant and otherwise in
such manner as will minimize any disruption to Tenant’s use of the Premises; provided, however, the
foregoing shall not require Landlord to perform any such repairs or changes on an overtime or
premium time basis, except (i) in an emergency (i.e., a condition that threatens the health or
safety of any occupant of the Premises), and (ii) if Tenant cannot, and, as a result of such repair
does not, use all or any portion of the Premises, including a condition that denies Tenant from
having reasonable access to the Premises. Tenant shall permit Landlord to access the Premises as
needed to perform any such repairs, including repairs of any sprinklers or Class E systems.
Notwithstanding the foregoing, but not in the case of an emergency where the circumstances will not
reasonably permit the following, any repairs to be performed by Landlord, whether within the
Premises or outside of the Premises, that adversely affect the continuous operation of the SOC,
shall be scheduled in advance with Tenant at a time that shall minimize interference with Tenant’s
operation of the SOC, and if requested by Tenant, Landlord shall perform such work on an overtime
or premium time basis, provided that Tenant shall pay, as Additional Rent, the incremental cost for
performance of the work on an overtime or premium time basis. For repairs that are to be performed
within the Premises, Landlord shall perform same accompanied at all times by a representative of
Tenant (which representative shall be provided at Tenant’s expense), but only to the extent Tenant
provides such representative, provided, however, that none of the foregoing shall require Landlord
to perform any such repairs on an overtime or premium time basis.



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ARTICLE 16

ELECTRICITY




     16.01 (a) Landlord shall make available to the Tenant, at the electrical distribution
panels serving the various portions of the Premises, an aggregate of six (6) watts per square foot
of the Useable Area of the Premises (demand load) of electrical capacity and in no event shall any
one electrical distribution panel on a floor of the Building on which the Premises are located be
serviced with less than four (4) watts per square foot of the Useable Area of the Premises served
by such panel (the “Basic Capacity”), exclusive of the electric power required to operate the
Building HVAC
Systems and other Building systems that are not Tenant’s responsibility to provide electric
power for pursuant to this Sublease (whether or not the cost of such electric power is included in
Operating Expenses), but inclusive of the power required to operate the Supplemental HVAC Units (as
defined in Section 17.05 hereof). Landlord shall not de-rate the watts per square foot of Useable
Area of the Premises that Landlord makes available on any particular riser or at any particular
electrical distribution panel serving the Premises at any time after Landlord approves Alterations
for work to distribute the electrical capacity within the Premises from such riser and panel. For
the purposes of clarification, to satisfy the foregoing obligation, and subject to any
re-distribution of electrical power by or on behalf of Tenant, the average electrical capacity to
be made available to the portions of the Premises in the aggregate on any given floor of the
Building shall be six (6) watts per square foot of the Useable Area of the Premises (demand load);
so that if, by way of example, an entire floor of the Building is part of the Premises and there
are four (4) electrical distribution panels serving such floor, each of which serves twenty (25%)
percent of the Useable Area on such floor, and the electrical capacity available at two (2) of such
electrical distribution panels is seven (7) watts per square foot of the Useable Area of the
portions of the Premises served by such electrical distribution panels (demand load), and the
electrical capacity available at the other two (2) of such electrical distribution panels is five
(5) watts per square foot of the Useable Area of the portions of the Premises served by such
electrical distribution panels (demand load), then the foregoing obligation will be satisfied.



          (b) If prior to the date which is one (1) year following the Commencement Date, Tenant
provides to Landlord a load letter from Tenant’s electrical consultant requesting that additional
electrical capacity be made available to Tenant, Landlord will make available to Tenant the amount
of electrical capacity so requested, but in no event exceeding two (2) additional watts per square
foot of Useable Area of the Premises (demand load) of electrical capacity (the “Additional
Electrical Capacity”), the costs associated with providing such Addition Electrical Capacity to be
paid solely by Tenant, provided, however, that if Landlord is already making available to the
portions of the Premises in question at least eight (8) watts per square foot of Useable Area of
such portions of the Premises (demand load) of electrical capacity, Landlord shall not be obligated
to make any Additional Electrical Capacity available to such portions of the Premises, and if
Landlord is already making available to the portions of the Premises in question more than six (6)
watts, but less than eight (8)



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watts, per square foot of the Useable Area of such portions of the
Premises (demand load) of electrical capacity, then the Additional Electrical Capacity for the
portions of the Premises in question shall be reduced to the difference between eight (8) watts per
square foot of Useable Area (demand load), and the actual capacity then being made available. If
Tenant has re-distributed any electrical capacity within the Premises and/or to any of the Roof
Installations so that the electrical capacity to the portion of the Premises in question is less
that what Landlord initially made available to such portion of the Premises, then, for the purposes
of determining how much, if any, Additional Electrical Capacity, if any, to which Tenant is
entitled, Landlord shall be deemed to be making available to the portions of the Premises in
question the electrical capacity initially made available to such portions.




     16.02 The calculations and determinations of the charges for electricity consumed in the
Premises (including the Renewal Premises Cafeteria Space, the FC Space and the CC Space, to the
extent any of the foregoing is part of the Renewal Premises) and by the Roof Installations shall be
based on the readings of one or more submeters (which shall include so-called CT meters and/or
other devices for measuring usage of electric power) serving the Premises (which submeters, to the
extent not installed as of the date hereof, shall be installed by Landlord, subject to the
provisions of Section 16.09 hereof), which readings shall be applied to the Cost Per Kilowatt Hour,
as defined below. Tenant shall pay to Landlord, within thirty (30) days after demand from time to
time, but no more frequently than monthly, for the consumption of electricity, an amount (the
“Basic Amount”) equal to the product of (x) Cost Per Kilowatt Hour, multiplied by (y) the actual
number of kilowatt-hours of electric power consumed by Tenant in such billing period. “Cost Per
Kilowatt Hour” means the total actual cost incurred by Landlord to provide electricity to the
Building during a particular billing period, including energy charges, demand charges, delivery
charges, commodity charges, surcharges, time-of-day charges, fuel adjustment charges, rate
adjustment charges, taxes (regardless of whether included in the utility company’s charges or paid
separately by Landlord), rebates, discounts and any other factors used by the utility company in
computing its charges to Landlord, divided by the total kilowatt hours purchased by Landlord to
provide electricity to the Building during such period. In addition, Tenant shall pay to Landlord,
as Additional Rent the sum of (such sum being herein referred to as the “Additional Amount”) (A)
the actual fees and expenses of Landlord’s third-party electrical contractor for services rendered
by such contractor in the maintenance, repair and reading of the submeter(s) serving the Premises
(including the Roof Installations) and the billing of electricity (which fees and expenses shall
not be included in Operating Expenses), and (B) the amount of any taxes specifically imposed by any
Governmental Authority on Landlord’s receipts from the sale or resale of electricity to Tenant.
Where more than one submeter measures the consumption of electric service, the electric service
rendered through each submeter shall be computed and billed conjunctively in accordance with the
provisions hereinabove set forth. Bills for such amounts, subject to the provisions of Section
16.11, shall be rendered to Tenant at such times as Landlord may elect, but not more often than
monthly.



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     16.03 (a) Landlord, at its cost, shall be responsible for furnishing (to the extent
not already installed), installing (to the extent not already installed) and maintaining in good
working order and condition all electrical facilities and equipment to deliver the Basic Capacity
to the electrical distribution panels serving the various portions of the Premises, including, if
necessary, installing additional risers and/or conduit, and shall be responsible, at its cost to
maintain in good working order and condition all existing electrical distribution panels serving
the various portions of the Premises, and any additional electrical distribution panels that may be
installed by Landlord.



          (b) Tenant, at its sole cost and expense, shall be solely responsible for the furnishing
and installation of all additional panel boards, feeders, risers, wires, conduits, and other
electrical facilities and equipment necessary and proper to obtain any Additional Electrical
Capacity and to deliver the Basic Capacity and any Additional
Electrical Capacity to the Premises from the electrical distribution panels serving the
various portions of the Premises and (subject to Section 16.04 and Section 16.05 and the other
applicable provisions of this Sublease, and provided Tenant’s manner of distribution shall not
cause any portion of the electrical system to overload) to distribute the Basic Capacity and any
Additional Electrical Capacity in the Premises and to the Roof Installations (as such term is
defined in Article 41 hereof). Said additional panel boards, feeders, risers, wires, conduits, and
other electrical facilities and equipment shall be furnished and installed by Tenant in accordance
with the terms of, and subject to the applicable provisions of, this Sublease (including Section
16.05 below) and thereafter, at Tenant’s sole cost and expense, maintained by Tenant in good
working order and condition and repaired.



     16.04 Landlord makes no representation or warranty as to whether the Basic Capacity is
adequate for Tenant’s use of the Premises. Except as otherwise provided in this Sublease, Landlord
shall not in anywise be liable or responsible to Tenant for any loss or damage or expense which
Tenant may sustain or incur if either the quantity or character of electric service is changed by
any cause not in Landlord’s control or is no longer available for any reason not within Landlord’s
control or suitable for Tenant’s requirements.



     16.05 At all times Tenant’s and all Tenant’s Parties’ use of electric current shall never
exceed the capacity of the then existing feeders and other equipment servicing the Premises and the
Roof Installations. It shall be Landlord’s responsibility to insure that such feeders and other
equipment have sufficient capacity to deliver the Basic Capacity and any Additional Electrical
Capacity to the electrical distribution panels serving the various portions of the Premises.
Tenant shall furnish, install and replace, as required, all lighting tubes, lamps, bulbs and
ballasts required in the Premises, at Tenant’s sole cost and expense. All lighting tubes, lamps,
bulbs and ballasts so installed shall become Landlord’s property upon the expiration or sooner
termination of this Sublease. Tenant shall only use such lighting tubes, lamps, bulbs, and
ballasts which comply with the standards of any LEED certification for the Building as of the
Effective Date or as Landlord may otherwise reasonably require in connection with other



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energy
conservation plans or environmental improvement initiatives implemented for the entire (or
substantially the entire) Building, provided, however, that except if otherwise required by
applicable Legal Requirements, Tenant shall not be obligated to (i) replace functioning lighting
tubes, lamps, bulbs or ballasts that are in place on the Effective Date to satisfy the foregoing
provisions of this sentence, and (ii) make changes that increase Tenant’s costs related to an
upgrade in the Building’s LEED certification in effect as of the Commencement Date, except to the
extent any such increase in costs was required by Requirements or was the result of repairs or
alterations required by Requirements. The furnishing, installation and replacement of all such
lighting may, at Tenant’s option, be performed by Landlord, at Landlord’s then established costs
which will be paid by Tenant within thirty (30) days after Landlord’s submission to Tenant of an
invoice with all supporting documentation.



     16.06 All installations, alterations and additions of and to the electrical distribution
system within or servicing the Premises shall be deemed an Alteration and
shall be subject to Landlord’s prior written approval in each instance in accordance with the
terms of Article 13. If, in connection with any request for such approval, Landlord, in its
good-faith judgment, made after consultation with Tenant, and subject to the obligation of
Landlord, at Landlord’s cost, to maintain the electrical infrastructure capable of delivering the
Basic Capacity and Additional Electrical Capacity to the Premises in accordance with, and subject
to this Article and the other applicable provisions of this Sublease, determines that the existing
risers, feeders or other installations or equipment of, in or servicing the Building require
modification or additions to adequately support such Alteration, Landlord shall so advise Tenant.
If Tenant elects to proceed without modifying its plans, Landlord shall, at the sole cost and
expense of Tenant, make such modifications and/or additions that Landlord shall deem necessary with
respect thereto, provided, however that, if Landlord shall determine, in its reasonable judgment,
that the same will cause permanent damage or injury to the Building or to the Premises, cause or
create a dangerous or hazardous condition, entail excessive or unreasonable alterations, repairs or
expense, or interfere with, or disturb, the other tenants or occupants of the Building, or
adversely affect the ability to supply or furnish electricity to other portions of the Building at
any time during, prior to, or after, the Term, then Landlord shall not be obligated to make such
modification(s) or addition(s), and Tenant shall not make the installation, alteration, or addition
with respect to which Tenant requested Landlord’s consent. Notwithstanding the provisions of the
prior sentence, the provisions of the prior sentence shall not apply to alterations necessary to
deliver the Basic Capacity and the Additional Electrical Capacity. All of the aforesaid costs and
expenses are chargeable and collectible as Additional Rent, and shall be paid by Tenant to Landlord
within thirty (30) days after Tenant is given a bill or statement therefor, along with reasonable
supporting documentation. Any dispute concerning the delivery of the Basic Capacity and Additional
Electrical Capacity and alterations to the electrical distribution system shall be determined by
arbitration in accordance with the provisions of Article 34 hereof.



     16.07 The provisions of Sections 16.01, 16.02, 16.09, 16.10, 16.11 and 16.13 shall not
apply to the Storage Space, but the provisions of Section 2.08(c) shall apply to



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providing
electricity to the Storage Space. The provisions of Sections 16.01, 16.11 and 16.13 shall not
apply to the to the Renewal Premises Cafeteria Space, the FC Space or the CC Space, to the extent
any of the foregoing is a part of the Renewal Premises, but (during the Renewal Term, if any) the
provisions of Section 2.09(g), 2.10(g) and 2.11(g) shall apply, respectively, to providing
electricity to the Renewal Premises Cafeteria Space, the FC Space and the CC Space, to the extent
any of the foregoing is a part of the Renewal Premises.



     16.08 Intentionally omitted.



     16.09 Landlord and Tenant acknowledge that as of the Effective Date the entire
6th Floor Premises and the entire 7th Floor Premises are serviced by
submeters that measure the electrical consumption in those portions of the Premises, and that the
entire 5th floor of the Building is serviced by submeters that measure the electrical
consumption, but that to the extent one or more of such submeters are not dedicated to the
5th Floor Premises, Landlord, at its expense, shall, by the Commencement Date,
reconfigure the 5th floor submeters and/or install additional submeters, to
separately measure the electrical consumption in the 5th Floor Premises. From time to
time after the date hereof, as additional portions of the Building which are not serviced by one or
more submeters are added to the premises demised under this Sublease (including, if applicable, the
Renewal Premises Cafeteria Space, the FC Space and the CC Space), Landlord shall install one or
more submeters to measure the electrical consumption in those portions of the Building, provided
that such installation shall be performed in a manner that does not unreasonably interfere with the
conduct of Tenant’s business in the Premises, including the operation of the SOC. From and after
the date that such a submeter becomes operational, Section 16.02 hereof shall apply to the
consumption of, and payment for, electricity in those portions of the Premises. Within thirty (30)
days after Landlord’s demand therefor, Tenant shall reimburse Landlord for the reasonable cost of
furnishing and installing such submeter(s) and all feeders, risers, wires, conduits and other
electrical facilities and equipment necessary to make such submeter(s) operational, except that
(other than with respect to the Renewal Premises Cafeteria Space, the FC Space and the CC Space)
Landlord shall pay the first $[***], in the aggregate, of the cost and expense of furnishing and
installing such submeter(s) and other equipment.



     16.10 If either submetering of electricity in the Premises, or Tenant obtaining
electricity by any method other than directly from a company that provides (or will provide)
electric power to the Building, is hereafter prohibited by any Legal Requirement or by any order or
ruling of the Public Service Commission of the State of New York (or its successor), such event(s)
shall not relieve or release Tenant from any of its obligations or liabilities under this Sublease
(except for the obligation to pay Landlord for electricity from and after the date that Landlord
discontinues furnishing or making electricity available for Tenant’s use), constitute an actual or
constructive eviction, or





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




118









 









impose any liability upon Landlord, and Tenant shall apply, within ten
(10) days of Tenant’s receiving notice thereof, to the company providing electric power to the
Building and arrange for obtaining direct electric service for the entire Premises (including those
portions which were not theretofore covered by a submeter) and the Roof Installations and other
equipment that are on the same circuits that service the Premises, and shall pay all costs and
expenses necessary to comply with all rules and regulations of such company related to such
application and direct electric service. From and after the date upon which such direct electric
service first becomes operational, Landlord shall be relieved of, and released from, any further
obligation to furnish or make available electricity to Tenant, the Premises or any equipment that
services the Premises, including the Roof Installations. After the giving of such notice by
Landlord, Tenant shall take all actions necessary to obtain such direct service as soon as
possible, and Landlord, at no cost or expense to Landlord (other than a de minimis cost or expense)
shall (a) cooperate with Tenant, and (b) as the net lessee of the Building, take all commercially
reasonable actions as are necessary to enable Tenant to obtain such direct service. Such direct
service may be furnished to Tenant,
without additional charge to Tenant (other than Landlord’s actual out-of-pocket costs and
expenses) by means of the then existing electrical facilities serving the Premises, including
Building feeders and risers, to the extent that the same are suitable and safe for such purposes.
All meters and all additional panel boards, feeders, risers, wiring and other equipment which may
be required by Tenant to obtain electricity directly from such company shall be furnished and
installed by Tenant, at its sole cost and expense, in accordance with, and subject, the provisions
of Article 13 and the other applicable provisions of this Sublease.




     16.11 If requested by Tenant, and provided this Sublease is in full force and effect,
Landlord shall, at Tenant’s expense (including all out-of-pocket fees and expenses incurred by
Landlord and Existing Lessor), cooperate with Tenant in connection with Tenant’s attempts to obtain
from any applicable Governmental Authority energy discounts, credits and other related energy
benefits related to Tenant’s Work and/or Tenant’s use and occupancy of portions of the Building,
and, to the extent that any such discounts, credits and other related energy benefits that relate
solely to Tenant’s Work and/or Tenant’s use and occupancy of the Building are granted to Landlord,
as opposed to directly to Tenant), Landlord shall pass-though such discounts, credits and other
similar benefits to Tenant so that Tenant receives, on a dollar-for-dollar basis, the discount,
credit or other similar benefit actually received by Landlord, provided that, with respect to all
of the foregoing, such attempts to obtain energy discounts, credits and other similar benefits, and
the actual granting and receipt of same do not, and will not, in Landlord’s reasonable
determination, adversely affect Landlord (including its successors and assigns), any present or
future occupant of the Building, or the operation or management of the Real Property (including the
cost and expense to operate and manage the Real Property), it being the intention of the parties
that any such discounts, credits and other similar benefits shall not have any net adversely
affect. Nothing contained in this Section or elsewhere in this Sublease shall be deemed to
constitute a warranty or representation by Landlord that the Tenant is entitled to, or will receive
(either directly or indirectly) any such discounts, credits and other similar



119









 







benefits, Tenant
hereby acknowledging that Landlord has made no such representation or warranty. Tenant’s inability
to obtain any such discounts, credits and other similar benefits shall not relieve or release
Tenant from any of its obligations or liabilities under this Sublease, or impose any liability upon
Landlord.



     16.12 (a) Tenant shall be permitted, at its sole cost and expense, in accordance with
all applicable Requirements, to install a single or dual emergency generator system, including one
or two generators and such other equipment (but excluding fuel tanks), and the wiring and conduits
to connect same to the Premises (collectively, “Tenant’s Generator Equipment”), in the locations
designated on Exhibit M attached hereto. The installation of Tenant’s Generator Equipment shall be
subject to the provisions of Article 13 and all other applicable provisions of this Sublease,
except that Landlord conceptually agrees, subject to any approval required under the Existing
Superior Lease, to such placement in accordance with Exhibit M. Any objection to Tenant’s Plans
regarding Tenant’s Generator Equipment that Landlord raises in accordance with the provisions of
Article 13 shall contain Landlord’s suggested changes thereto. Tenant shall have access to
Tenant’s Generator Equipment for inspection, repairs, replacement and testing at all times during the Term, subject to the applicable
provisions of this Sublease. Tenant shall have the right to periodically test Tenant’s Generator
Equipment, as scheduled with Landlord, and in no event during Business Hours, and otherwise in
compliance with Requirements and in a manner and at such times as are consistent with the testing
procedures of similar systems in buildings similar to the Building located in the Borough of
Queens. Without Landlord being liable to Tenant for any malfunction of Tenant’s Generator
Equipment, Tenant shall have the right to connect to Tenant’s Generator Equipment, the Building
systems that exclusively service the Premises, the Roof Installations, and any base Building
systems required to operate the SOC in any emergency (to the extent such base Building systems will
not be operated by Landlord’s emergency generator system for the Building), including the sanitary,
sprinkler and Building HVAC Systems that exclusively service the Premises, in order to maintain
Tenant’s operations during a power outage. No rent is due with respect to the space occupied by
Tenant’s Generator Equipment and Tenant shall have the right to use riser space to connect Building
systems to Tenant’s Generator Equipment without charge. All rights granted to Landlord with
respect to Tenant’s Generator Equipment that are set forth in the Third Amendment of the Existing
Superior Lease or subsequent amendments to the Existing Superior Lease for the Renewal Term shall
be made available by Landlord solely to Tenant during the Renewal Term and Tenant shall reimburse
to Landlord, within thirty (30) days after Landlord’s demand therefor from time to time, for all
out-of-pocket costs and expenses incurred by Landlord to the Existing Lessor in respect of Tenant’s
Generator Equipment during the Renewal Term.




          (b) During the initial Term, Tenant shall have the right to share in the usage of
Landlord’s two (2) existing 8,000 gallon fuel tanks and associated pumps and distribution
equipment (said fuel tanks and associated pumps and distribution equipment, including any
replacements thereof, being herein referred to as the
“Building Fuel Tanks”), on the following terms
and conditions: (i) with respect to the


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Building Fuel Tanks and the safety equipment and fire
protection described in clause “(iii)” below, Tenant shall reimburse to Landlord from time to
time, within thirty (30) days after Tenant’s receipt of an invoice from Landlord together with
reasonable supporting documentation, fifty (50%) percent of all costs incurred with respect to the
use and maintenance of the Building Fuel Tanks, the use and maintenance of any replacements
thereof (but not the cost of replacement) and the cost and expense to install and maintain such
safety equipment and fire protection, it being understood and agreed that Landlord’s share of such
costs (as well as the cost to re-fuel the Building Fuel Tanks from time to time, other than the
cost of fuel reimbursed by Tenant pursuant to the following clause “(ii)”) shall be included in
Operating Expenses; (ii) Tenant shall pay for all such actual fuel usage by Tenant, as measured by
the flow meters on the piping leading to, and returning from, Tenant’s Generator Equipment, at the
per gallon cost paid by Landlord for the then most recent delivery of fuel to the Building, which
meters shall, at Tenant’s sole cost and expense, be installed by Tenant at or prior to the time
Tenant first connects the Building Fuel Tanks to Tenant’s Generator Equipment, and, thereafter, be
maintained in good working order and repair by Tenant, and which meters shall be read by Landlord
(or Landlord’s contractor), at Tenant’s cost; (iii) Landlord shall install and maintain such
safety equipment and fire
protection in the fuel tank storage area as required by applicable Legal Requirements; (iv)
Landlord shall endeavor to keep the Building Fuel Tanks filled to not less than eighty percent
(80%) capacity at all times, but Landlord shall not be liable to Tenant for any failure to fill
the Building Fuel Tanks or otherwise maintain same, or any other failure of either of the Building
Fuel Tanks to operate adequately; (v) subject to the preceding clause “(iv),” Landlord shall use
commercially reasonable efforts to maintain the Building Fuel Tanks in good working order and in
compliance with applicable Requirements; (vi) Tenant shall indemnify and hold Landlord harmless
from and against any and all, actions, proceedings, liabilities, obligations, claims, damages,
deficiencies, losses, judgments, suits, expenses and costs (including court costs and reasonable
third-party legal fees and disbursements for which Landlord is or may be liable) arising under or
out of or in connection with or resulting from (x) the improper or unlawful usage of either of the
Building Fuel Tanks by Tenant or any other Tenant Party, (y) a violation of the Existing Superior
Lease with respect to Tenant’s use of the Building Fuel Tanks and/or (z) all amounts due and
payable by Landlord to the Existing Lessor under the Existing Superior Lease with respect to
Tenant’s use of the Building Fuel Tanks; and (vii) Tenant shall have the right, at its sole cost
and expense, to review, and make reasonable recommendations with respect to, the maintenance,
operation and testing procedures employed by Landlord with respect to the Building Fuel Tanks and
associated equipment including controls, pumps and meters. If additional testing of the Building
Fuel Tanks and ancillary equipment is required by Tenant during the initial Term, Landlord shall
cooperate with Tenant and permit Tenant to perform same at Tenant’s cost and with a contractor
selected by Tenant and reasonably acceptable to Landlord. Subject to the applicable provisions of
this Sublease, during the initial Term, Tenant shall have access to the Building’s oil pump room
and oil tank room solely for the purpose of (1) reading the fuel tank gauges from time to time
during the Term and inspecting the Building Fuel Tanks and the fuel distribution equipment and
systems, and (2) the Fuel Tank Self-Help (as such term is


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defined below, provided that in
connection with such access pursuant to both clauses “(1)” and (2),” Tenant (including its
employees, contractors and other representatives) are at all times accompanied by a representative
of Landlord, whom Landlord shall make available upon prior reasonable notice (except that (i) such
accompaniment shall be required in the case of an emergency only if practicable, and (ii) such
accompaniment shall not be required for such access, at any given time, by up to five (5) of
Tenant’s employees who are approved for such access by Tenant, provided the names of such approved
employees are on a written list (or updated thereof) prepared by Tenant and received by Landlord
at least five (5) Business Days prior to the date of any desired access). Other than use by
Tenant and Landlord (and/or any of its Affiliates) for its/their own purposes as an occupant(s) of
the Building, during the initial Term, the Building Fuel Tanks may be used only by the operator of
the Building in connection with the operation of the Building generally, but not the specific
requirements of a particular tenant. “Fuel Tank Self-Help ”shall only apply during the initial
Term and, for purposes of this Section, means that after (A) Tenant has determined that the
Building Fuel Tanks are below eighty (80%) percent of capacity, (B) Tenant has notified Landlord
of such condition, and (C) Landlord has not caused the Building Fuel Tanks to be filled to
capacity within twenty-four hours after its receipt
of such notice, then, and in such event, Tenant, using commercially reasonable methods, may
(provided this Sublease is in full force and effect) cause the Building Fuel Tanks to be filled to
capacity. If (1) Tenant exercises the Fuel Tank Self-Help in accordance with, and subject to, the
preceding sentence, (2) Tenant gives to Landlord a copy of the receipt from the fuel supplier
indicating, in reasonable detail, when and how much fuel oil was delivered to the Building Fuel
Tanks and the actual cost of such fuel oil paid by Tenant, together with a demand for Landlord to
reimburse to Tenant the actual cost of such fuel oil paid by Tenant, and (3) Landlord fails to
reimburse to Tenant such actual cost within thirty (30) days after Landlord’s receipt of such
receipt and demand, Tenant shall be further entitled to offset the actual cost of the fuel oil so
paid by Tenant against Tenant’s next due bill for maintenance of the Building Fuel Tanks. The
rights granted to Landlord with respect to Building Fuel Tanks and Fuel Tank Self-Help that are
set forth in the Third Amendment of the Existing Superior Lease or subsequent amendments to the
Existing Superior Lease for the Renewal Term shall be made available by Landlord to Tenant during
the Renewal Term, it being understood and agreed that as long as
 Tenant, during the Renewal Term,
if any, is entitled to substantially the same rights with respect to the Building Fuel Tanks and
Fuel Tank Self-Help that it has during the initial Term, Tenant’s rights with respect to the
Building Fuel Tanks during the Renewal Term shall be governed by the Existing Superior Lease.




          (c) Tenant shall be permitted, at its sole cost and expense, in accordance with, and
subject to, all applicable Requirements, the applicable provisions of this Sublease and such
reasonable rules and regulations as Landlord may issue with respect to the following, (i) to
install a conduit, at Landlord’s election, either at a point ending in the NE Loading Dock (as
defined in Section 18.01(b) hereof) or on the North face of the Building adjacent to the open lot,
if use of the open lot for parking a portable generator is permitted under the Existing Superior
Lease, approximately in one of the



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locations designated on Exhibit N attached hereto, to connect,
during the initial Term, a portable generator to provide emergency power to only the Premises, the
Roof Installations or portions thereof (except as expressly provided below with respect to
Landlord’s use), and (ii) during the initial Term, to park and operate one (1) portable generator
outside of the Building and adjacent to the NE Loading Dock, but only during a period of time that
Tenant is unable to access power through the electrical distribution system in the Building, all
without any representation or warranty on the part of the Landlord as to whether such conduit or
the parking of a portable generator or the operation thereof adjacent to the NE Loading Dock is
permitted by applicable Requirements, and Tenant’s inability to so install said conduit or to park
or operate said portable generator shall not relieve or release Tenant from any of its obligations
or liabilities under this Sublease, constitute an actual or constructive eviction, or impose any
liability upon Landlord. Landlord makes no representations or warranties as to the permissibility
of any of such conduit or the parking or operation of said portable generator under the Existing
Superior Lease. If a portable generator has been parked adjacent to such loading bay, Tenant, at
its sole cost and expense, and in accordance with all applicable Requirements, shall remove said
portable generator and the connection to the Building promptly after the power outage has ended.
The installation and use of such conduit shall be subject to the provisions of Article 13 and all
other
applicable provisions of this Sublease. Any objection to Tenant’s Plans regarding such
conduit that Landlord raises in accordance with the provisions of Article 13 shall contain
Landlord’s suggested changes thereto. Tenant shall use commercially reasonably efforts to minimize
interference with the use of the NE Loading Dock and other portions of the Building during such
times as said portable generator is parked adjacent to such loading bay, and shall indemnify and
hold Landlord harmless from and against any and all, actions, proceedings, liabilities,
obligations, claims, damages, deficiencies, losses, judgments, suits, expenses and costs (including
court costs and reasonable third-party legal fees and disbursements for which Landlord is or may be
liable) arising under or out of or in connection with or resulting from the use of said portable
generator, other than the use by Landlord as hereinafter provided. If, during such times that
Tenant is operating a portable generator adjacent to the NE Loading Dock, Landlord requests
permission to use a portion of the capacity of said portable generator in connection with the
operation of the Building, and, in Tenant’s reasonable determination, there is excess capacity
available for Landlord’s use, Tenant, at a reasonable cost to Landlord, shall make such excess
capacity available for Landlord’s use. Tenant makes no representation or warranty with respect to
such use by Landlord and Landlord shall indemnify and hold Tenant harmless from and against any and
all, actions, proceedings, liabilities, obligations, claims, damages, deficiencies, losses,
judgments, suits, expenses and costs (including court costs and reasonable third-party legal fees
and disbursements for which Landlord is or may be liable) arising under or out of or in connection
with or resulting from the improper or unlawful usage of said portable generator by Landlord.



     16.13 (a) Landlord is making available to Tenant, at the electrical distribution
panels serving the Premises, an aggregate of six (6) watts (with the possibility of increasing such
capacity by up to an additional two (2) watts) per square foot of the



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Useable Area of the Premises
(demand load) of electrical capacity (but not the Roof Areas, it being the understanding and
agreement of the parties that any electrical service required by Tenant for the Roof Installations
shall be taken by Tenant from the electrical service that is being made available to the Premises),
exclusive of the electrical service required to operate the Building HVAC Systems. In accordance
with, and subject to, the applicable provisions of this Sublease, Tenant may redistribute such
electrical service among portions of the Premises and to the Roof Areas. If at any time during the
Term, as a result of an act of Tenant or any other Tenant Party (including the re-distribution of
electrical service among the various portions of the Premises, the electrical service being
furnished to any portion of the Premises is less than six (6) watts per square foot of Useable Area
(demand load), as same may have been increased by any Additional Electrical Capacity, exclusive of
the electrical service required to operate the Building HVAC Systems, then on or before the last
day of the Term for all such portions of the Premises (including the ending of the Term for
portions of the Premises pursuant to Articles 9 and 42 hereof), Tenant, at its sole cost and
expense, shall redistribute the electrical service within the Premises so that all portions of the
Premises with respect to which the Term is so ending is being furnished with electrical service of
not less than six (6) watts per square foot of Useable Area (demand load), as same may have been
increased by any Additional Electrical Capacity, exclusive of the electrical service required to
operate the Building HVAC Systems. If Tenant fails, or elects not, to
perform such redistribution work, Landlord, at its election, may perform such work on Tenant’s
behalf, in which event, Tenant shall reimburse Landlord for the actual costs paid or incurred by
Landlord to perform same within thirty (30) days after Landlord’s request therefor.



          (b) Notwithstanding anything contained in this Sublease to the contrary, neither Tenant
nor any other Tenant Party shall be permitted to re-distribute the electrical service required to
operate the Building HVAC Systems or the electric service in or to the Storage Space, the Renewal
Premises Cafeteria Space, the FC Space and/or the CC Space; provided that Tenant shall be
permitted, in accordance with, and subject to, the applicable provisions of this Sublease
(including Article 13 and Section 16.13(a) above), to increase the capacity of electric service in
or to the Storage Space, the Renewal Premises Cafeteria Space, the FC Space and/or the CC Space, in
all cases by re-distributing electric service from the Office Space.



ARTICLE 17

HEAT, VENTILATING AND AIR-CONDITIONING




     17.01 For the purposes of this Sublease:



          (a) “Business Days” means Mondays through Fridays, except such days as are observed by the
State or Federal government as legal holidays and those days designated as holidays by the
applicable building service union employees contract (all of such holidays being hereinafter
referred to as “Holidays”);



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          (b) “regular hours” and “Business Hours” means the hours between 7:00 A.M. and 6:00 P.M.
on Business Days;



          (c) “Heating Season” means October 15 through April 15;



          (d) “after hours” shall mean, with respect to heating service, any time other than regular
hours.



     17.02 In accordance with, and subject to, the provisions of this Article and the other
applicable provisions of this Sublease, any mandatory energy conservation requirements of
Governmental Authorities and all other Legal Requirements, Landlord shall furnish heat to the
Premises (the “heating service”) through the perimeter heating equipment located in the Premises
and through the air-conditioning package units (the “Building HVAC Units”) located in one (1) or
more of the mechanical rooms on each floor of the Building on which the Premises is located, and
shall furnish air-conditioning to the Premises (the “air-conditioning service”) through the
Building HVAC Units, substantially in accordance with the design and performance specifications set
forth in Exhibit K hereto (except to the extent such specifications cannot be met until after the
completion of Tenant’s Work, or because of any Tenant’s Work or any subsequent Alterations made by
or on behalf of Tenant or any other Tenant Party, or because of the use of the Premises, or any
part thereof, in a manner exceeding the design conditions (including occupancy and connected
electrical load specified for the Building HVAC Systems, or any other act or omission of Tenant or
any other Tenant
Party, or because of said mandatory energy conservation requirements, other Legal Requirements
or the other applicable provisions of this Sublease (the exceptions set forth in this parenthetical
being herein referred to as the “HVAC Exceptions”)), it being understood and agreed that Landlord
may comply with voluntary energy conservation requirements of Governmental Authorities, provided
such compliance does not adversely affect the HVAC Service to the Premises beyond a de minimis
extent). The systems through which Landlord so supplies the heating service and the
air-conditioning (collectively, the “HVAC Service”) to the Premises, including the perimeter
heating equipment located in the Premises, are herein referred to as the “Building HVAC Systems.”
Landlord shall provide Tenant with access to the mechanical rooms on each floor of the Building on
which the premises are located from time to time to monitor the Building HVAC Systems serving the
Premises, at all times accompanied by a representative of Landlord, whom Landlord shall make
available upon prior reasonable notice (except that such accompaniment shall not be required for
such access, at any given time, by up to five (5) of Tenant’s employees who are approved for such
access by Tenant, provided the names of such approved employees are on a written list (or updated
thereof) prepared by Tenant and received by Landlord at least five (5) Business Days prior to the
date of any desired access). To the extent the Building HVAC Systems do not meet the design and
performance specifications set forth in said Exhibit K (subject to the HVAC Exceptions), Landlord
shall modify, replace and/or install additional Building HVAC Systems to meet said design and
performance specifications. Tenant shall not modify, or make any change, alteration, addition or
substitution to or of, the Building HVAC Systems or any component thereof, without



125









 







Landlord’s prior
written approval in each instance, which approval may be withheld in Landlord’s absolute and sole
discretion, except that with respect to any proposed modification any component of the Building
HVAC System servicing only the Premises. Landlord’s approval shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding anything contained in this Sublease which may be deemed to
the contrary, all work required to be performed within the Premises (i.e., from the main feed of
the Building HVAC Units where same intersects the corresponding exterior wall of the Premises) to
provide HVAC Service, including the installation and distribution of ductwork, variable air volume
devices and other equipment, shall be performed by Tenant, at its sole cost and expense, as part of
Tenant’s Work, and shall be maintained in good working order and repaired by Tenant at its sole
cost and expense. For the purposes of clarification, the fire dampers at the intersection of where
the main feed of the Building HVAC Units meets the corresponding exterior wall of the Premises are
part of the Building HVAC Systems.



     17.03 At no additional cost to Tenant, but subject to the HVAC Exceptions, Landlord shall
furnish heating service during regular hours during the Heating Season and air-conditioning service
during regular hours all year round. If during the Heating Season Tenant shall require after hours
heating service at any time other than during regular hours, or if Tenant shall require after hours
air-conditioning service at any time other than during regular hours, Landlord shall furnish such
after hours HVAC Service, provided Tenant notifies Landlord that Tenant requires such after hours
HVAC Service no later than 12:00 P.M. on the day for which such after hours HVAC Service is
requested (if such after hours HVAC Service is requested for Business Day), or no later
than 12:00 P.M. on the Business Day preceding the day for which such after hours HVAC Service
is requested (if such after hours HVAC Service is requested for a day that is not a Business Day),
at the rates set forth on Exhibit O hereto. Tenant also may give a standing notice to Landlord
that it requires after hours HVAC Service during stated time periods and such notice shall remain
in effect until Tenant notifies Landlord otherwise. In addition, for Partial Floors on which a
portion of the Premises are located and in respect of which Tenant and other tenants or occupants
of such Partial Floor have requested concurrent after hours HVAC Service, Landlord shall equitably
apportion the cost of such after hours HVAC service between or among Tenant and such other tenants
or occupants. Notwithstanding the foregoing, during each and every calendar year occurring during
the initial Term, but provided no Event of Default exists, the first $[***] of combined after hours
heating service and after hours air-conditioning service (i.e., not $[***] for after hours
heating service and an additional $[***] for after hours air-conditioning service) shall be at no
charge to Tenant. The $[***] credit shall be prorated on a per diem, 365 day basis, for any
partial calendar years occurring during the initial Term, and shall be increased by the same
percentage as the hourly after hours HVAC charge may increase from time to time during the initial
Term, as of the dates of such increases. Tenant acknowledges that there may be times when minimum





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




126









 










after hours HVAC Service is required by applicable labor agreements. Notwithstanding anything
contained in this Sublease which may be deemed to the contrary, Landlord shall have no obligation
to furnish after hours heating service on any day that is not during the Heating Season.




     17.04 Tenant shall keep or cause to be kept closed all windows in the Premises. In
addition, Tenant agrees at all times to cooperate fully with Landlord and to abide by all
reasonable regulations and requirements which Landlord may prescribe for the proper functioning and
protection of the Building HVAC Systems.



     17.05 (a) There exists in the Premises as of the date of this Sublease certain
condenser water cooled supplemental air-conditioning units and the related ductwork, fans, blowers,
chilling equipment, thermostatic controls, smoke detectors, condensate removal and other
facilities, equipment and machinery (collectively with such units, the “Existing Supplemental HVAC
Equipment”). Tenant shall accept the Existing Supplemental HVAC Equipment on the Commencement Date
(or on such later date as portions of the Building may be added to the premises demised under this
Sublease) in their then “AS-IS” condition and state of repair, subject to any and all defects
therein. NEITHER LANDLORD, NOR ANY OF LANDLORD’S AGENTS, HAS MADE OR MAKES, ANY WARRANTY,
REPRESENTATION, COVENANT OR PROMISE, EXPRESS OR IMPLIED, IN RESPECT OF THE EXISTING SUPPLEMENTAL
HVAC EQUIPMENT OR ANY PARTS THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE OR OTHERWISE AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREOF,
LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT. Notwithstanding the foregoing, other than the Existing Supplemental
HVAC Equipment in respect of the 5th Floor Premises, the 6th Floor Premises
and the 7th Floor Premises, without any liability on the part of Landlord, any or all of
the Existing Supplemental HVAC Equipment located in any other portions of the Building that may be
added to the premises demised under this Sublease, may, between the date of this Sublease and the
date the applicable portions of the Building are added to the premises demised under this Sublease,
be removed, relocated and/or replaced.




              (b) To furnish the Premises with supplemental air-conditioning (and supplemental heat, if
Tenant so desires), Tenant, at Tenant’s sole cost and expense, may use and operate the Existing
Supplemental HVAC Equipment, and, in accordance with, and subject to, the applicable provisions of
this Sublease, including Article 13 hereof, may furnish and install in the Premises and/or the HVAC
Roof Area (as defined in Section 41.01 hereof) additional condenser water cooled, air-cooled and/or
split refrigerant air conditioning units (with an electric heat coil, if Tenant so desires), the
aggregate connected and non-redundant tonnage of which additional condenser water cooled air
conditioning units, together with the Existing Supplemental HVAC Equipment, does not exceed the
Maximum Supplemental HVAC Capacity (as hereinafter defined), and, in connection with such
installation, shall, at its sole cost and expense, furnish, design, install and distribute (all
within the Premises) the ductwork, fans, blowers,



127









 







chilling equipment, thermostatic controls, smoke
detectors, condensate removal and other facilities, equipment and machinery (collectively,
“Tenant’s HVAC Equipment”) required to make the said units operational, and shall, at its sole cost
and expense, in connection with such distribution, furnish, design, install, distribute and locate
said units and Tenant’s HVAC Equipment in accordance with the approved Tenant’s Plans therefor.
All of said additional air conditioning units, together with Tenant’s HVAC Equipment and the
Existing Supplemental HVAC Equipment, are herein referred to as the “Supplemental HVAC Units,” and
the Supplemental HVAC Units, excluding the Existing Supplemental HVAC Equipment, are herein
referred to as the “New Supplemental HVAC Units.” To the extent not already installed and
connected to the Building’s condenser water system, the Supplemental HVAC Units shall be installed
by, and, for the condenser water cooled Supplemental HVAC Units, connected to the Building’s
condenser water system by, Tenant at its sole cost and expense and in accordance with, and subject
to, the applicable provisions of this Sublease, and shall be located solely within the Premises
(except for those components of the New Supplemental HVAC Units that are to be located in the HVAC
Roof Area). Other than the actual, out-pocket cost and expense actually incurred by Landlord to
third-parties to connect the Supplemental HVAC Units to the Building’s condenser water system
(which cost and expense Tenant covenants and agrees to reimburse to Landlord within thirty (30)
days after Landlord’s demand therefor), there shall be no so-called “tap-in” or other charge to
connect the Supplemental HVAC Units to the Building’s condenser water system.



          (c) For the purposes of this Lease, “Maximum Supplemental HVAC Capacity” means, with
respect to an entire floor of the Building, 20 tons, in the aggregate for the Brewster Building
portion of such floor, and 20 tons, in the aggregate,
for the Infill Building portion, if any, of such floor, or a percentage of such amounts, for
any portion of the Premises which does not comprise all of the Base Building portion of a given
floor or all of the Infill Building portion of a given floor, which percentage shall be based on
the fraction, the numerator of which is the RSF of the portion of the Premises in question, and the
denominator of which is the RSF of the Brewster Building portion or Infill Building portion, as the
case may be, of the floor in question. Based on the foregoing, the Maximum Supplemental HVAC
Capacity for the initial Office Space is 102 tons, in the aggregate (i.e., 40 tons for the
6th Floor Premises, plus 40 tons for the 7th Floor Premises, plus 22 tons for
the 5th Floor Premises, 20 tons of which are allocated to the Infill Building portion of
the 5th Floor Premises, and 2 tons of which are allocated to the Brewster Building
portion of the 5th Floor Premises; provided, however, that until the date which is
thirteen (13) months after the Commencement Date, TIME BEING OF THE ESSENCE, Tenant may, by notice
to Landlord given by such date, reduce the Maximum Supplemental HVAC Capacity, and if such notice
is given by such date, the Maximum Supplemental HVAC Capacity shall be reduced to the amount set
forth in such notice, with a corresponding reduction in the Annual Condenser Water Charge (as
hereinafter defined), subject to further adjustments in the Maximum Supplemental HVAC Capacity (and
corresponding Annual Condenser Water Charge) as provided in the next sentence. If at any time
after the date hereof, portions of the Premises that are part of the premises demised under this
Sublease on the date hereof are no longer



128









 







a part of the premises demised under this Sublease or
portions of the Building that are not part of the premises demised under this Sublease on the date
hereof are added to the premises demised under this Sublease, then from and after the date(s) that
such portions of the Premises are no longer part of the premises demised under this Sublease or
such portion(s) of the Building are added to the premises demised under this Sublease, the Maximum
Supplemental HVAC Capacity (as same may have been reduced pursuant to the preceding sentence) shall
be adjusted by the same percentage that the RSF of the Brewster Building portions and/or Infill
Building portions of the Premises is/are reduced or increased as a result of such portions of the
Premises no longer being part of the premises demised under this Sublease or such portions of the
Building being added to the premises demised under this Sublease (with a corresponding adjustment
in the Annual Condenser Water Charge), and on or before such dates Tenant, at its sole cost and
expense, shall, in accordance with, and subject to, the applicable provisions of this Sublease,
perform all work necessary so that the aggregate condenser water that can be furnished to all of
the Supplemental HVAC Units does not exceed the revised Maximum Supplemental HVAC Capacity.



          (d) Tenant, at its sole cost and expense, shall properly install (to the extent not
installed), operate, maintain in good working order and repair the Supplemental HVAC Units, in
compliance with all applicable Requirements and in compliance with the installation, design and
operating specifications therefor (including the manufacturer’s installation, operating and
maintenance instructions, guidelines and manuals and all manufacturers’ warranties and guaranties),
and otherwise in accordance with sound engineering practice. Tenant’s obligation under the first
sentence of this subsection (d) shall include the periodic cleaning and/or replacement of filters,
replacement of fuses and belts, the calibration of thermostats and all startup and shut down
maintenance of the Supplemental HVAC Units. Such maintenance and
repair obligations shall be performed throughout the Term, on Tenant’s behalf and in
accordance with, and subject to, the provisions of Article 52 hereof, either by Tenant’s employees
who are air-conditioning mechanics and are licensed as such by the State of New York, or by a
reputable air-conditioning service and maintenance company engaged by Tenant with Landlord’s prior
written approval, which approval shall not be unreasonably withheld or delayed. On the expiration
or sooner termination of this Sublease, Tenant shall surrender the Supplemental HVAC Units to
Landlord in a safe condition and in compliance with all applicable Requirements, but otherwise in
their then “as-is” condition.



          (e) All electricity used in connection with the operation of the Supplemental HVAC Units
(including any electric coil) shall be paid for by Tenant and measured by the metering system
described in Article 16 hereof and shall be supplied with electricity in accordance with, and
subject to, all of the terms, covenants and conditions contained in said Article 16. The
Supplemental HVAC Units shall be operated by Tenant at Tenant’s sole cost and expense. Tenant
shall control the hours of operation of the Supplemental HVAC Units; subject, however, to the
provisions of Section 18.07 and the other applicable provisions of this Sublease, including when
necessary for Landlord to maintain, or make repairs to, the Building or any of the



129









 







Building’s
systems or equipment. Landlord shall have access to the Premises and shall perform such
maintenance and repairs, in accordance with the applicable provisions of this Sublease, including
Sections 15.03, 18.07, 19.02 and 19.03 hereof. Tenant shall operate the Supplemental HVAC Units in
compliance with all applicable Requirements, including the New York State Energy Conservation Code,
as the same may be from time to time amended.



          (f) Landlord shall, subject to all applicable Legal Requirements and to Sections 18.07 and
21.03 below and the other applicable provisions of this Sublease, furnish condenser water to the
Supplemental HVAC Units, on a twenty-four (24) hour, 365 day per year basis (subject to
interruptions from time to time for maintenance, repairs and replacements of and to the Building’s
condenser water system and equipment, which maintenance, repairs and replacements shall be
performed in accordance with, and subject to, the applicable provisions of this Sublease, including
Sections 15.03, 18.07, 19.02 and 19.03 hereof), unless, and except to the extent that, Landlord is
prevented, prohibited or limited from furnishing such condenser water by reason of any Legal
Requirement. Commencing on the Commencement Date, Tenant shall pay, as Additional Rent, together
with each monthly installment of Base Rent, one-twelfth (1/12th) of the Annual Condenser Water
Charge (as hereinafter defined), which first monthly installment shall be prorated on a per diem
basis if the Commencement Date is not the first day of a calendar month. For the purposes of this
Lease, “Annual Condenser Water Charge” shall mean $[***] per year per ton of the Maximum
Supplemental HVAC Capacity, which $[***] shall be increased from time to time, by
Landlord to reflect increases in Landlord’s actual cost of producing and providing condenser
water, as reasonably determined by Landlord.



     17.06 The provisions of Section 17.01 through and including 17.05 above shall not apply to
the Storage Space or (during the Renewal Term, if any) to the Renewal Premises Cafeteria Space, the
FC Space or the CC Space, to the extent any of the foregoing is a part of the Renewal Premises.



     17.07 In no event may any window air-conditioning units be installed, maintained or
operated in any portion of the Premises.



ARTICLE 18

LANDLORD’S OTHER SERVICES




     18.01 (a) Subject to temporary service interruptions due to Unavoidable Delay and
repairs and maintenance, Landlord shall provide, at no cost to Tenant except as provided in Article
5, non-exclusive passenger elevator service to the Premises by not fewer than 4 elevators for the
Base Floors (with at least one (1) such elevator in each of the two (2) elevator banks serving the
portions of the Premises on the Base Floors) and not less than 2 elevators for the Tower Floors,
during Business Hours on





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




130









 









Business Days, and at least one non-exclusive passenger elevator in each
elevator bank shall be subject to call at all other times during the initial Term and any Renewal
Term which shall be primarily accessed through the Building’s main entrance on Queens Plaza;
provided, however, that any elevator that serves both the Base Floors and the Tower Floors shall be
counted as an elevator that serves the Base Floors and the Tower Floors for purposes hereof, but
this proviso shall not limit Landlord’s obligation to have at least one (1) elevator in each of the
two (2) elevator banks serving the portions of the Premises on the Base Floors. Subject to
temporary service interruptions due to Unavoidable Delay and repairs and maintenance (which
Landlord shall seek to promptly ameliorate as provided elsewhere herein), Tenant shall have the use
of the passenger elevators that service the Premises at all times, twenty-four (24) hours per day,
every day of the year. Such elevator service shall be provided in a manner (and at a level of
service) consistent with the operation of a multi-tenant first-class office building in the Borough
of Queens. In addition, at least one passenger elevator in each elevator bank shall be connected to
the emergency generator for the Building in the event of a power outage.




          (b) Landlord shall maintain and operate at least one freight elevator that serves the
Base Floors and the Tower Floors to which Tenant shall have non-exclusive use in accordance with,
and subject to, the provisions of this Sublease, it being understood and agreed that different
freight elevators serve different floors of the Building. Landlord shall designate at least one
of the freight elevators in the Building as the non-exclusive freight elevator of the Building
(such freight elevator(s) being herein referred to as the “NE Freight Elevator,” and the
non-exclusive use of the loading dock located of the Building is herein referred as the “NE
Loading Dock”). Subject to the other provisions of this Sublease, all deliveries to and from the
Building that are of a size that require a cart, hand truck or other type of rolling or carrying
mechanism, or which are otherwise reasonably determined by Landlord in a non-discriminatory
 manner not to be appropriate for the passenger elevators, shall be made only
through the NE Loading Dock and the NE Freight Elevator. In addition, all construction personnel
and materialmen performing work in, or delivering materials (including furniture and furnishings)
to, the Premises, shall only use the NE Loading Dock and the NE Freight Elevator to access the
Premises. Neither Tenant nor any other Tenant Party shall be permitted to use any other loading
dock or any other freight elevator, so long as reasonable access is available to Tenant. Tenant
acknowledges that, subject to the next sentence, the NE Freight Elevator may only be operated by
personnel supplied by Landlord and Landlord covenants that such personnel will be available during
the “Freight Elevator Hours” (as hereinafter defined) and for “After Hours Freight
Elevator/Loading Dock Usage” (as hereinafter defined), subject to scheduling as provided below.
Tenant shall not operate or attempt to operate the NE Freight Elevator in the absence of such
supplied operator, except that Tenant shall have the right to use its personnel to operate, on a
non-exclusive basis and subject to availability, either NE Freight Elevator (but not both at the
same time) during Business Hours solely for delivery of mail and supplies, delivery of
inter-office correspondence from and to each floor of the Premises, and use by maintenance and
service workers for facilities operations, provided that such use of the NE Freight Elevator does
not


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          violate Article 52 hereof. Subject to scheduling as provided below for After Hours Freight
Elevator/Loading Dock Usage and the other applicable provisions of this Sublease, Tenant shall
have the use of the freight elevator and loading dock that service the Premises, twenty-four (24)
hours per day, every day of the year.




          (c) (i) Landlord agrees that during the hours (the “Freight Elevator Hours”) of 8:00
A.M. to 5:00 P.M. (excluding a one (1) hour lunch break) on Business Days there shall be no charge
for Tenant’s non-exclusive use of the NE Loading Dock or the NE Freight Elevator, except to the
extent that a freight elevator operator is required by applicable labor agreements, in which case
Tenant shall be obligated to pay the actual cost and expense of such operator. However, Tenant
acknowledges that (x) Tenant’s use of the NE Loading Dock and the NE Freight Elevator is
non-exclusive use and subject to scheduling by Landlord, which scheduling shall be done on a first
come first served basis, (y) other than for Tenant’s Work performed during Freight Elevator Hours
and initial move-in during the Freight Elevator Hours when both of the Building’s freight
elevators are operable, if Tenant’s use of NE Loading Dock and/or the NE Freight Elevator for
transporting materials, supplies, equipment, machinery, furniture or furnishings will, in
Landlord’s reasonable opinion, disrupt the operation of the Building (including the normal use of
NE Loading Dock and/or the NE Freight Elevator) or cannot be scheduled during the Freight Elevator
Hours, then Tenant will only be permitted to use NE Loading Dock and the NE Freight Elevator
during times other than during the Freight Elevator Hours on Business Days, in which event Tenant
shall pay for such usage at Landlord’s then standard Building hourly rate therefor (the “After
Hours Freight Elevator/Loading Dock Charge”) for each hour of After Hours Freight Elevator/Loading
Dock Usage, and (z) there may be times when minimum usage of the NE Loading Dock and/or NE Freight
Elevator is required by applicable labor agreements, such as on weekend days, it being agreed that
Tenant shall be subject to the same minimum number of hours that Landlord is subject to during the
Term for Landlord’s own use of a freight elevator after hours. As
of the Effective Date, Landlord’s standard Building hourly rate for After Hours Freight
Elevator/Loading Dock Charge is $[***] per hour per elevator cab. Such rate shall be increased by
Landlord from time to time, upon not less than fifteen (15) days notice to Tenant, to reflect
increases in Landlord’s actual cost of providing such service, as reasonably determined by
Landlord.




               (ii) Usage of NE Loading Dock and/or the NE Freight Elevator during times other than
during the Freight Elevator Hours on Business Days is herein referred to as “After Hours Freight
Elevator/Loading Dock Usage” and shall be subject to scheduling by Landlord upon at least eight (8)
hours prior oral notice to Landlord or its building manager unless waived by Landlord or Landlord’s
then building manager. During the performance of the Tenant’s Work, Landlord and its building
manager shall endeavor to provide Tenant and its contractors with preferential right to schedule
and use the NE Freight Elevator and NE Loading Dock. For the use of the NE





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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Loading Dock or the NE
Freight Elevator by Tenant or any other Tenant Party during After Hours Freight Elevator/Loading
Dock Usage, Tenant shall pay to Landlord, within thirty (30) days after Tenant’s receipt of an
invoice therefor, together with Landlord’s calculation thereof, the After Hours Freight
Elevator/Loading Dock Charge for each hour of After Hours Freight Elevator/Loading Dock Usage.
Notwithstanding anything contained in this Section to the contrary,
[***] (the “Freight
Elevator/Loading Dock Abatement”).




          (d) During the Term Tenant shall have the non-exclusive use (on an equitable basis),
together with Landlord, other tenants and occupants of the Building, and their respective agents,
employees, contractors and invitees, subject to scheduling by Landlord on a first come first
served basis, of the NE Loading Dock and the NE Freight Elevator, subject to the provisions of
subsections (a) through (c) above and the other applicable provisions of this Sublease. In
addition, such use shall be subject to the condition that, and Tenant covenants and agrees that,
Tenant shall use the NE Loading Dock and the NE Freight Elevator in accordance and compliance
with, and subject to, (A) the design specifications therefor, (B) all Legal Requirements, and (C)
the Building’s rules and regulations which are now in effect or which from time to time hereafter
are reasonably promulgated by Landlord, which rules and regulations shall be consistently and
non-discriminately applied to all occupants of the Building.




     18.02 (a) Landlord, as part of the Operating Expenses, shall cause the Office Space,
including the exterior of the exterior windows, to be cleaned in accordance with the specifications
set forth in Exhibit G hereto in a manner that is commensurate with that provided by other
comparable first class office buildings in the Borough of Queens. Landlord shall provide such
cleaning services on all Business Days. Tenant shall pay to Landlord as Additional Rent, within
thirty (30) days after receipt of an invoice together with reasonable supporting documentation, the
reasonable and actual out-of-pocket
costs incurred by Landlord for (i) extra cleaning work in the Premises required because of (A)
misuse or neglect on the part of Tenant or its employees or visitors, (B) use of portions of the
Premises for preparation, cooking, serving or consumption of food or beverages (excluding
pantries); data processing or reproducing operations, showers; or other special purposes requiring
greater or more difficult cleaning work than office areas, (C) unusual quantity of interior glass
surfaces, and (D) non-Building Standard materials or finishes installed by Tenant or at its request
that are more costly to clean than Building Standard materials or finishes (collectively, “Extra
Cleaning Work”), (ii) the removal from the Premises (including the Storage Space) and the Building
of any refuse and rubbish of Tenant in excess of that ordinarily accumulated daily in the routine
of business office occupancy in first class office buildings in the Borough of Queens, (iii) during
the Renewal Term, to the extent the Renewal Premises Cafeteria Space, the FC Space and/or the CC
Space are a part of the Renewal Premises, the removal from the Renewal Premises Cafeteria Space,
the FC Space and the CC Space and the Building of all refuse and rubbish generated in, by or from
such portions of the Premises, and





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




133









 









(iv) routine cleaning services in the Premises on non-Business
Days. Landlord shall give Tenant notice before it performs any Extra Cleaning Work and Tenant may
elect to perform such Extra Cleaning Work with Tenant’s employees (subject to Article 52 below) or
to have Landlord’s cleaning contractor, at Tenant’s expense, perform such Extra Cleaning Work at
Tenant’s expense. Landlord, its cleaning contractor and their employees shall have after hours
access to the Premises and the free use of light, power and water in the Premises as reasonably
required for the purpose of cleaning the Premises in accordance with Landlord’s obligations
hereunder, provided that access to the SOC for cleaning shall be coordinated with Tenant in order
to minimize disruption in Tenant’s operations. Tenant may limit access of Landlord’s cleaning
contractor from entering certain so-called “sensitive” portions of the Premises such as the SOC and
other high security areas.




          (b) Subject to Article 52, Tenant shall have the right, at Tenant’s sole cost and expense,
to engage a cleaning contractor to provide cleaning services to the Storage Space, additional
cleaning services to the Office Space, and/or, during the Renewal Term, cleaning services to the
Renewal Premises Cafeteria Space, FC Space and/or CC Space (to the extent any of the foregoing is a
part of the Renewal Premises), which cleaning contractor shall be subject to the prior approval of
Landlord, which approval shall not be unreasonably withheld, conditioned or delayed and shall be
subject to Tenant selecting a cleaning contractor who, in Landlord’s reasonable determination will
not, and whose work will not violate Article 52. Nothing contained herein shall preclude Tenant
from utilizing its own employees and employees of Tenant Parties for cleaning, so long as the same
do not violate Article 52, or to have Landlord’s cleaning contractor perform cleaning services to
the Storage Space or additional cleaning services to the Office Space, or, during the Renewal Term,
cleaning services to the Renewal Premises Cafeteria Space, FC Space and/or CC Space (to the extent
any of the foregoing is a part of the Renewal Premises), all at Tenant’s expense. No one other
than persons first approved by Landlord in accordance with the applicable provisions of this
Sublease shall be permitted to enter the Premises (including the Storage Space, the Renewal
Premises Cafeteria Space, FC Space and/or CC Space) or the Building for the purposes of cleaning
the same. All cleaning of the Premises
(including the Storage Space, the Renewal Premises Cafeteria Space, FC Space and/or CC Space)
by the employees of Tenant or of any other Tenant Party or by a cleaning contractor selected by
Tenant after obtaining Landlord’s approval as aforesaid, shall be performed in accordance with the
reasonable rules and regulations established from time to time by Landlord.



          (c) Subject to Article 52, Tenant shall have the right, at Tenant’s sole cost and
expense, from time to time, to have Tenant’s employees and employees of Tenant Parties perform
certain services within the Premises, such as clean-up of conference rooms, conference dining and
day porter work.




     18.03 Tenant covenants and agrees, at Tenant’s sole cost and expense, regarding the
collection, sorting, separation and recycling of waste products, garbage, refuse and trash, as well
as the disposal of other waste products, to comply with all Legal Requirements and to comply with
any special procedures that are imposed on



134









 







tenants in first class office buildings in the Borough
of Queens. Tenant shall sort and separate all of its waste products, garbage, refuse and trash
into such categories as provided by applicable Legal Requirements. Each separately sorted category
of waste products, garbage and trash shall be placed in separate receptacles and shall be removed
from the Premises in accordance with a collection schedule prescribed by applicable Legal
Requirements, which removal is at Landlord’s cost, subject to inclusion in Operating Expenses and
any applicable charge to Tenant for removal from the Premises of refuse and rubbish in excess of
that ordinarily accumulated in the business office occupancy in first class office buildings in the
Borough of Queens as provided in Section 18.02(a) above. Tenant shall pay all costs, expenses,
fines, penalties or damages which may be imposed on Landlord or Tenant solely by reason of Tenant’s
failure to comply with the provisions of this Section. Tenant shall not be responsible for
failures caused by the Landlord’s cleaning contractor.



     18.04 Landlord shall furnish domestic cold water to the Premises through the existing wet
columns, for drinking, pantry and cleaning purposes and hot and cold water to rest rooms and
pantries to the extent such hot water service is available to any such pantries in the Premises as
of the Effective Date. If (a) water is used for any other purpose, other than one (1) shower for
men and one (1) shower for women which may be located in the Premises, or (b) notwithstanding
anything contained in this Sublease which may be deemed to the contrary, during the Renewal Term,
to the extent the RP Cafeteria Space, the FC Space and/or the CC Space is a part of the Renewal
Premises, Landlord, at Tenant’s sole cost and expense, at Landlord’s election, shall install meters
in the Premises (in a location that will minimize interference with the use and operation of the
Premises) or in any other portion of the Building, to measure the consumption of such additional
water usage (beyond the usage described in the first sentence above) and/or to measure, during the
Renewal Term, if any, consumption of all water in the RP Cafeteria Space, the FC Space and the CC
Space. Tenant shall pay for the quantities of additional water furnished to the Premises as shown
on such meters, at 100% of Landlord’s out-of-pocket cost thereof, within thirty (30) days of the
rendition of Landlord’s bills therefor from time to time together with reasonable supporting
documentation. If Tenant desires hot water in the Premises (other than in the pantries
and rest rooms), Tenant, at its sole cost and expense, shall furnish and install (to the
extent not furnished and installed on the Commencement Date), in accordance with, and subject to,
the applicable provisions of this Sublease, an electric hot water heater in the Premises to furnish
itself with such hot water. Tenant, at its sole cost and expense, shall properly install, operate,
maintain in good working order and repair said hot water heaters, in compliance with all applicable
Legal Requirements and in compliance with the installation, design and operating specifications
therefor (including the manufacturer’s installation, operating and maintenance instructions,
guidelines and manuals and all manufacturers warranties and guaranties), and otherwise in
accordance with sound engineering practice. All electricity used in connection with the operation
of said hot water heaters shall be measured by the metering system described in Article 16 hereof
and shall be supplied with electricity in accordance with, and subject to, all of the terms,
covenants and conditions contained in said Article 16.



135









 





     18.05 Landlord, at its expense, shall maintain and list the names of Tenant and its
permitted assignees and subtenants, and the names of any of their respective officers and employees
on the Building directory listing the tenants thereof (“Building Directory”), if there is a
Building Directory, or in the event a Building Directory is installed at any time during the term
hereof; provided, that, the names so listed shall not take up more than Tenant’s Proportionate
Share of the number of lines on the Building Directory. Landlord shall comply with Legal
Requirements (including ADA) in connection with any Building Directory. In the event Tenant shall
require additional names on the Building Directory, Landlord shall, to the extent space for such
additional listing is available, maintain such listings and Tenant shall pay to Landlord the then
Building standard charge for each such additional listing. Notwithstanding the forgoing, Tenant’s
rights provided for hereinabove, shall be, in each instance, subject to Landlord’s rights under the
Existing Superior Lease. If Landlord maintains a computerized directory in the lobby of the
Building, Landlord shall make such directory available to Tenant and any permitted subtenant during
the Term. Landlord shall reprogram such directory to add or delete names of Tenant and any
permitted subtenants at reasonable intervals after Tenant’s request from time to time at no charge
to Tenant.



     18.06 Except as otherwise expressly specified in this Article 18 and in Articles 16 and 17
hereof, Landlord shall not be obligated to supply to the Premises any utilities or building
services of any kind, and any service which Landlord is obligated to supply pursuant to this
Sublease may be supplied directly by the Existing Lessor.



     18.07 Interruption or curtailment of any building service or utility shall not constitute
a constructive or partial eviction nor entitle Tenant to any compensation or abatement of rent,
except as expressly herein provided in Section 18.12. Upon Landlord’s prior written request (which
may be sent by e-mail or facsimile in accordance with Article 32 hereof), except in an emergency
when such request may be oral (i.e., by telephone or in person), and without any liability to
Tenant, Tenant shall stop operating any of the heating, ventilating, air conditioning, electric,
sanitary or other systems, services or utilities serving the Premises, or (during the Renewal Term,
to the extent the RP Cafeteria Space, the FC Space and/or the CC Space is a part of the Renewal
Premises) the Cafeteria Equipment, the FC Equipment and the CC Equipment,
whenever and for so long as may be reasonably necessary by reason of accidents, emergencies,
or the making of repairs or changes that Landlord is required by this Sublease or by law to make or
in good faith deems necessary, to the extent permitted by this Sublease. If the stoppage referred
to in the preceding sentence is to last more than twenty-four (24) hours and the notice referred to
in the preceding sentence is sent by e-mail, facsimile or is oral, then such notice shall be
followed by a non-e-mail, non-facsimile written notice given in accordance with Article 32 hereof.
In addition, Landlord reserves the right, without any liability to Tenant except as expressly
provided in this Sublease, upon reasonable notice to Tenant (except in an emergency, in which case
oral (i.e., by telephone or in person), e-mail or facsimile notice in accordance with the Article
32 hereof, as is practicable under the circumstances, shall be permitted in lieu of written notice)
to stop operating any of the heating, ventilating, air conditioning, electric, sanitary, elevator,
or other building systems serving the Premises, and to stop the



136









 







rendition of any of the other
services required of Landlord under this Sublease, whenever and for so long as may be reasonably
necessary, by reason of an Unavoidable Delay (as such term is defined in Section 21.03 hereof). If
the stoppage referred to in the preceding sentence is to last more than twenty-four (24) hours and
no prior notice is given or the notice referred to in the preceding sentence is sent by e-mail,
facsimile or is oral, then a notice or such e-mail, facsimile or oral notice shall be given or
followed, as the case may be, by a non-e-mail, non-facsimile written notice given in accordance
with Article 32 hereof. Landlord shall give notice to Tenant (which notice, in an emergency, may
be oral (i.e., by telephone or in person) or given by e-mail or facsimile in accordance with
Article 32), including in an emergency, of any hiatus or planned stoppage in Building services and
shall use good faith diligent efforts to restore interruptions in service as quickly as possible,
including employing overtime or premium labor if the interruption in service materially and
adversely affects Tenant’s use and enjoyment of the Premises. If the hiatus or stoppage referred
to in the preceding sentence is to last more than twenty-four (24) hours and the notice referred to
in the preceding sentence is sent by e-mail, facsimile or is oral, then such notice shall be
followed by a non-e-mail, non-facsimile written notice given in accordance with Article 32 hereof.



     18.08 Tenant shall have access to and may use the Premises, subject to Legal Requirements
and Unavoidable Delay 24 hours per day, 7 days per week, 365 days per year.



     18.09 During the Term of this Sublease, prior to any change becoming effective, Landlord
shall inform Tenant of any change to the company responsible for the management of the Building.
Tenant shall not have any approval rights over the Landlord’s designated property management
company for the Building unless the Landlord and its related entity or affiliates no longer occupy
at least 90,000 RSF in the Building (exclusive of unrelated subtenants). If Landlord and its
related entity or affiliates no longer occupy at least 90,000 RSF in the Building (exclusive of
unrelated subtenants and space used for Building Amenities) and Landlord desires to change the
management company of the Building, then any such change shall require the consent of Tenant, which
consent shall not be unreasonably withheld or delayed and shall be deemed granted if not
disapproved in writing, stating the specific reasons therefor,
within ten (10) Business Days after receipt of Landlord’s request for approval. Any dispute
with regard to Tenant’s approval that is not resolved by the parties shall be resolved by
arbitration in accordance with Article 34 below.



     18.10 (a) To the extent permitted by, and subject to, all Legal Requirements, and
subject to the reasonable rules and regulations of Landlord, Tenant may, at its sole cost and
expense, use the Building’s fire staircases. Tenant shall be responsible and liable for such
access and for all persons using such access. The use of fire staircase shall be conditioned upon,
and subject to, the following terms and conditions: (i) prior to the date any fire staircase is
first used, Tenant, at its sole cost and expense, and in accordance with, and subject to, the first
sentence of this Section and the other applicable provisions of this Sublease, shall install
security devices and systems



137









 







reasonably approved by Landlord which are compatible with, and
connected to (at Tenant’s sole cost and expense) the Building’s security and Class E system to
provide for authorized access to floors on which the Premises is located, (ii) from time to time
after the date any such fire staircase is first used, Tenant, promptly after Landlord’s request, at
Tenant’s sole cost and expense, and in accordance with, and subject to, the first sentence of this
Section and the other applicable provisions of this Sublease, shall, if required by Requirements,
upgrade and add to the devices and systems described in clause (i) above so as to be comparable
with similar devices then being installed in the Building or in other buildings in the vicinity of
the Building that are comparable to the Building, (iii) at no time shall the access doors to the
fire staircases be propped or blocked open, (iv) nothing shall be stored or placed in the fire
staircases and nothing shall otherwise impede ingress thereto or egress therefrom, and (v) the use
of the fire staircases shall not unreasonably disturb any other tenants or occupants of the
Building. All of the provisions of this Sublease in respect of insurance shall apply to the use of
the fire staircases. Landlord shall maintain access to fire staircases from floors with fail-open
locking devices. Neither Landlord, nor any of its agents or employees, shall be liable for any
damage to, or theft of, any materials, supplies or other property, nor for any injury or damage to
persons, in connection with, resulting from, or relating to, such access and such use of the fire
staircases.



          (b) Notwithstanding anything in this Section to the contrary, in connection with
complying with any Requirement, Landlord shall have the right, without any liability to Tenant, to
designate any floor of the Premises as a so-called “Re-Entry Floor” or as not a Re-Entry Floor.
Tenant hereby acknowledges and agrees that any such designation(s) may limit, restrict or prohibit
the use of the fire staircases pursuant to this Section, and that such limitation, restriction or
prohibition shall be without liability to Landlord. Landlord acknowledges and agrees that the
Tenant may, as permitted by Legal Requirements, limit access to any Re-Entry Floors on which the
Premises is located by adding fail open egress locking devices tied into the Landlord’s Class E
system.




     18.11 (a) Landlord currently maintains at the Building (or is constructing) and shall
maintain throughout the initial Term on Business Days, for the non-exclusive use of the tenants of
the Building and their respective invitees (i) a cafeteria (the “Cafeteria”) for breakfast and
lunch service which also provides catered food service,
the location on the second (2nd) floor of the Building where the Cafeteria located
is herein referred to as the “Cafeteria Space”, (ii) a fitness center (the “Fitness Center”), the
location on the second (2nd) floor of the Building where the Fitness Center located is
herein referred to as the “FC Space”, (iii) a conference center (the “Conference Center”), the
location on the second (2nd) floor of the Building where the Conference Center located
is herein referred to as the “CC Space”, (iv) the roof deck (the “Roof Deck”) located on the
8th floor as shown on Exhibit M, and (v) space (“Bicycle Space”), which may be relocated
from time to time, for the temporary storage of bicycles by Tenant and other tenants and occupants
of the Building (collectively, the “Building Amenities”). Tenant, Tenant’s employees, Affiliated
Persons who occupy the Premises and, except with respect to the fitness center, Tenant’s guests and



138









 







invitees (collectively, the “Amenity Customers”), shall have non-exclusive use of the Building
Amenities throughout the initial Term and, during the Renewal Term, with respect to the Cafeteria,
the Fitness Center and the Conference Center, shall have the non-exclusive use thereof only to the
extent that Landlord has agreed to operate the Cafeteria, the Fitness Center and/or the Conference
Center during the Renewal Term, or shall have the exclusive use thereof to the extent Tenant has
elected to lease the Cafeteria Space, the FC Space and/or the CC Space and operate the Cafeteria,
the Fitness Center and/or the Conference Center during the Renewal Term, all as hereinafter
provided with respect to the Cafeteria Space, the FC Space and the CC Space during the Renewal
Term, subject in all cases to any reasonable rules and regulations of Landlord regarding the use
thereof by all users (which shall be enforced in a non-discriminatory manner) and subject to
Building-wide prices (which shall not prohibit Tenant from offering discounts to its employees).
(For the purposes of clarification, unless Landlord and Existing Lessor otherwise agree, Tenant
shall not have the use of the Roof Deck or any Bicycle Space during the Renewal Term.) Landlord
shall operate or cause the Building Amenities to be operated in a manner and to a standard of
service that is consistent with the standard being utilized as of the Effective Date. As of the
Effective Date, the Conference Center is operated from 8:30 a.m. to 5:00 p.m. and other hours can
be arranged upon request, the Cafeteria is operated from 7:00 a.m. to 10:30 a.m. for breakfast and
from 11:30 a.m. to 2:00 p.m. for lunch and catering services are available upon request during
Business Hours on Business Days, the Fitness Center is operated from 6:00 a.m. to 8:00 p.m. on
Business Days and the grab and go café is operated from 7:00 a.m. to 5:00 p.m.; provided, however,
Landlord shall have the right from time to time to reasonably adjust any such operating hours
consistent with patterns and levels of usage and other relevant factors. Tenant acknowledges that
said reasonable rules and regulations, as applied to the Fitness Center, may include excluding from
the Fitness Center any person who does not satisfy reasonably established medical or health
conditions and/or who refuses to sign Landlord’s then waiver and release form, if any, for use of
the Fitness Center. In the event that Landlord elects not to (or is deemed to have elected not to)
operate the Cafeteria, Fitness Center and/or Conference Center during the Renewal Term, which
election shall be made by Landlord pursuant to Article 40, and pursuant to the Third Amendment of
the Existing Superior Lease or any subsequent amendment, the Existing Lessor does not agree to
operate during the Renewal Term the Building Amenity (i.e., the Cafeteria, Fitness Center and/or
Conference Center) that Landlord has elected not
to operate, then Tenant shall have the right to add to the Renewal Premises (A) in the case of
Landlord electing not to operate the Cafeteria
and the Existing Lessor not agreeing to operate the
Cafeteria, all or a portion of the Cafeteria Space (provided, in the case of a portion of the
Cafeteria Space, such portion includes the existing kitchen and server areas), (B) in the case of
Landlord electing not to operate the Fitness Center and the Existing Lessor not agreeing to operate
the Fitness Center, all (but not a portion) of the FC Space, and (C) in the case of Landlord
electing not to operate the Conference Center and the Existing Lessor not agreeing to operate the
Conference Center, all (but not a portion) of the CC Space, so that Tenant can operate such
Building Amenities as it elects during the Renewal Term for the use of its employees and visitors.
In such event, the Tenant shall designate all or a portion of the Cafeteria



139









 







Space, all of the FC
Space and/or all of the CC Space, as the case may be, to be added to the Renewal Premises, as
provided in Article 40 and if Tenant designates a portion of any such space, the portion shall be
sized for Tenant’s requirements, provided that in the case of the Cafeteria Space, the portion to
be added to the Renewal Premises shall include the kitchen and server and all or a portion of the
seating area. Notwithstanding anything in Article 40 or elsewhere in this Sublease to the
contrary, to the extent all or portions of the Cafeteria Space, the FC Space and/or the CC Space,
as the case may be, is/are part of the Renewal Premises, same shall be delivered to Tenant on the
Renewal Term Commencement Date in its/their then as-is condition and any required Demising Work
shall be performed by Tenant, at its sole cost and expense. The right of Landlord to deliver such
space in its then as-is condition shall not derogate from Landlord’s agreement to operate the
Building Amenities through the Expiration Date in accordance with the provisions of this Sublease.
The delivery of the Cafeteria Space, the FC Space and/or the CC Space, or portions thereof, as the
case may be, as part of the Renewal Premises shall include all furniture, fixtures, equipment,
personal property and inventory of Landlord that is owned by Landlord and is located within the
applicable Cafeteria Space, the FC Space and/or the CC Space, as the case may be. For [***]
($[***]), Landlord hereby sells, transfers, assigns, conveys, sets over and delivers to Tenant, as
of the Renewal Term Commencement Date, all of Landlord’s right, title and interest in and to
furniture, fixtures, equipment, personal property and inventory, free and clear of all liens,
encumbrances and rights of others, but otherwise without any covenant, warranty or representation
by, or recourse against, Landlord of any kind whatsoever. Tenant agrees to pay the sales tax, if
any, imposed by a Governmental Authority on the conveyance of such furniture, fixtures, equipment,
personal property and inventory to Tenant. During the Renewal Term, to the extent the Cafeteria
Space, the FC Space and/or the CC Space, as the case may be, is part of the Renewal Premises, there
shall be no operating agreements or leases applicable to such space and Tenant shall be under no
obligation to employ any personnel who previously worked in such space.



          (b) All food services provided in connection with the Building Amenities, whether within
the Cafeteria or through catering elsewhere in the Building,
shall be supplied on a direct cash basis to the Amenity Customers, at their sole cost. All
Fitness Center services provided shall be on a direct cash enrollment basis, at the sole cost of
the Amenity Customers so enrolling. All Conference Center, Roof Deck and other tenant services
described in Exhibit Q hereto provided shall be charged on a cash basis directly to the Amenity
Customers, at a current rates as set forth in Exhibit Q hereto (subject to commercially reasonable
annual increases to offset actual increased costs to operate such services), except that to the
extent the current rates include an administrative fee, such fee shall not exceed 10% of the cost
of service. The Building Amenities shall be subject to availability on a first come first served
basis. Tenant may pre-book the use of appropriate rooms in the Conference Space as much






 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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as a year
in advance for up to six (6) special events in any calendar year on a first come first served
basis. Landlord shall continue to maintain and operate (including via third-parties) the Building
Amenities throughout the initial Term. Landlord will provide food services as they currently
exist or as reasonably modified to be consistent with patterns and levels of usage, the population
being housed and served in the Building and after relevant factors. Landlord represents that as
of the Effective Date it has no plans to reduce, change or modify its current food service
delivery. The foregoing notwithstanding, Landlord reserves the right to modify or relocate from
time to time any of the Building Amenities within the Building, so long as the modified or
relocated Building Amenities are substantially comparable and accessible to what existed prior to
such modification or relocation. In the event of such relocation, the Cafeteria Space, the FC
Space and/or the CC Space, as applicable, shall be deemed to refer to the portion(s) of the
Building to which the Building Amenity in question has been relocated. During the initial Term,
Landlord shall cause the Building Amenities to be maintained in a clean and safe condition,
comparable to the condition as of the Effective Date.




          (c) During the initial Term, Landlord shall permit Tenant to reserve the Roof Deck for
its exclusive use at least six (6) times per year, which dates may be reserved up to one year in
advance, on a first come first served basis. Except if required by Legal Requirements, Landlord
shall not, during the initial Term, reduce the size of the Roof Deck available for social
occasions in any material fashion.




          (d) Provided that this Sublease is in full force and effect, the Named Tenant or another
JetBlue Tenant is in occupancy of not less than 90,000 RSF of the Building (excluding the Storage
Space) and Tenant is not in default under this Sublease beyond any applicable notice and cure
period, upon written request from Tenant to Landlord, Landlord agrees to provide during the
initial Term wall space on a portion of the second (2nd) floor of the Building as
designated by Landlord to be used by Tenant for community displays. Such displays shall be in
keeping with the first class image of the Building, shall be professional in appearance and have
been approved in writing by Landlord, which approval shall not be unreasonably withheld or
delayed. It shall not be unreasonable for Landlord to withhold its approval if, in Landlord’s
reasonable determination, the matter is controversial or is of a political nature.




          (e) Provided that this Sublease is then in full force and effect, the Named Tenant or
another JetBlue Tenant is in occupancy of not less than 90,000 RSF
of the Building (excluding the Storage Space) and Tenant is not in default under this
Sublease beyond any applicable notice and cure period, upon written request of Tenant, Landlord
shall allow the Named Tenant or another JetBlue Tenant to use, during the initial Term, a portion
of the Cafeteria Space for “Pocket Sessions,” subject to availability and Tenant’s agreement to
pay any reasonable clean-up charges following such event incurred by Landlord. Such events shall
be in keeping with the first class image of the Building and shall be subject to Landlord’s
approval, which approval shall not be unreasonably withheld or delayed. As used herein, “Pocket
Sessions” consists of not more than seven (7) meetings per calendar year during the



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Term (prorated
for partial calendar years occurring during the Term), solely of the employees of the Named Tenant
or another JetBlue Tenant (but not necessarily employees who work at the Premises). The Pocket
Sessions may only be held after the Cafeteria has closed for the day and after which Tenant shall
clean-up (including restoring tables and chairs to their original locations) at Tenant’s sole cost
and expense. Attendance at a Pocket Session event shall not exceed the lower of (i) the maximum
occupancy permitted by Legal Requirements, or (ii) the number of individuals working in the
Premises at such time.




     18.12 In the event that conditions in the Premises or Building substantially interfere
with ingress or egress from the Building or Tenant’s use of the Premises (except if caused by a
casualty or condemnation, in which events the terms of Articles 22 and 23 shall control) and Tenant
is unable to use, and does not use (except during the Eligibility Period, as that term is defined
below), at least five percent (5%) of the Premises as a result of (i) any repair, maintenance,
alteration or other work performed by Landlord or Existing Lessor (including those required or
permitted by Landlord hereunder), or which Landlord or Existing Lessor failed to perform, and
required by this Sublease, or (ii) any failure to provide the services, utilities or ingress to and
egress from the Building or Premises caused by an event within the reasonable control of Landlord,
its agents, employees or contractors (any such set of circumstances as set forth in items (i) or
(ii) above, to be known as an “Abatement Event”); provided, however, no Abatement Event shall be
deemed to exist if resulting from the acts or omissions of Tenant or any Tenant Party), then Tenant
shall give Landlord oral notice in accordance with Article 32 hereof (followed promptly by written
notice within forty-eight (48) hours given in accordance with Article 32 hereof) of such Abatement
Event, and, if such Abatement Event continues for seven (7) consecutive days, after Landlord’s
receipt of any such notice (the “Eligibility Period”), then the Base Rent and Additional Rent shall
be abated or reduced, as the case may be, retroactively to the first day of the Eligibility Period,
for such time that such Abatement Event continues (the “Abatement Period”), in the proportion that
the RSF of the portion of the Premises that Tenant is prevented from using, and does not use, bears
to the total RSF of the Premises; provided, however, (i) Tenant may enter the affected portion of
the Premises for the sole purpose of moving furniture and business materials without being deemed
to have “used” the Premises under this Section, (ii) Tenant may conduct business from the Premises
and otherwise occupy the Premises during the Eligibility Period, provided that if Tenant occupies
(except as reasonably required to secure the Premises but not to conduct business) the Premises
after the expiration of the Eligibility Period, Tenant shall not receive any rental abatement under
this Section for that portion of the Premises
occupied by Tenant, and (iii) in the event that Tenant is unable to use, and does not use a
portion of the Premises for a period of time in excess of the Eligibility Period and the remaining
portion of the Premises on such floor is not sufficient to allow Tenant to effectively conduct its
business therein, and if Tenant does not conduct its business from such remaining portion, then for
such time commencing retroactively to the first day of the Eligibility Period and continuing during
the Abatement Period, the Base Rent and Additional Rent for the entire Premises on such floor,
shall be abated for such time as Tenant continues to be so unable to use, and does not use, the
Premises (except as



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reasonably required to secure the Premises but not to conduct business). If,
however, Tenant reoccupies any portion of the Premises during the Abatement Period, the Rents
allocable to such reoccupied portion and any other portions of the Premises that can be reoccupied,
based on the proportion that the RSF of such portions of the Premises bears to the total RSF of the
Premises, shall be payable by Tenant from the date Tenant reoccupies or could reoccupy such
portions of the Premises. Such right to abate Rents shall be Tenant’s sole and exclusive remedy at
law or in equity for an Abatement Event. This Section shall not be applicable to any event covered
by Article 22 or Article 23 of this Sublease. Except as provided in this Section, nothing
contained herein shall be interpreted to mean that Tenant is excused from paying Rent due
hereunder. Nothing herein shall be deemed to limit Landlord’s obligation to provide services,
except as otherwise as provided herein. In the event that any Abatement Event shall occur between
the Commencement Date and the [***] as to all or any portion of the Premises, then as to such
portion of the Premises that is affected by the Abatement Event, the [***] shall be extended on a
day for day basis commensurate with any corresponding delay in the performance of the Tenant’s Work
caused thereby until such Abatement Event shall cease to exist as to the Premises or such portion
thereof.



     18.13 Landlord has generator(s) to supply power in the event of an emergency to the
following Building systems as of the Effective Date: all life safety systems and one elevator in
each of the two elevator banks. Subject to the provisions of Sections 18.07 and 21.03 hereof,
Landlord shall maintain such generator(s) during the Term in operable condition and shall continue
to have such life safety systems and elevators connected to such generator(s), as well as any
additional Building systems that may be required by applicable Legal Requirements to be connected
to such generator(s). The costs of maintaining such generator(s) may be included in Operating
Expenses.



     18.14 As of the Effective Date, there are lights installed on the roof above the
13th floor of the Building that illuminate the Infill Building mechanical penthouse
portion of the Building, to which lighting it may be possible to attach color gels that can
illuminate said portion of the Building with colored light. For as long as Landlord operates such
lights, Tenant shall have the non-exclusive right to request Landlord to use one or more particular
colors for such illumination, provided that Tenant, at its cost, provides Landlord with the colored
gels, provided, however, that such right shall be exclusive, except as to Landlord, for so long as
the Signage Requirements (as such
term is defined in Section 45.01 hereof) are satisfied. If Tenant makes such request, then,
subject to applicable Requirements, the rights of Landlord, the availability of the requested
color, and such other factors that Landlord deems appropriate, Landlord shall endeavor to
accommodate Tenant’s request, it being understood and agreed that Landlord shall have no liability
to Tenant for Landlord’s failure to accommodate such request. If there shall be a scheduling
conflict between Landlord and Tenant with respect to a request pursuant to this Section 18.14,
Tenant’s request shall prevail for so long as the Signage Requirements remain satisfied.





 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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ARTICLE 19

ACCESS, ALTERATIONS IN BUILDING FACILITIES, NAME




     19.01 All portions of the Building, except for the inside surfaces of all walls, windows
and doors bounding the Premises, but including exterior building walls, core corridor walls and
doors and any core corridor entrances, and all space in or adjacent to the Premises used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks, elevators,
fire stairs or other building facilities and systems, and the use of all of the foregoing, as well
as access thereto through the Premises for the purpose of operation, maintenance, decoration and
repair, are reserved to Landlord, except that Landlord shall make available to Tenant, within
horizontal and vertical shafts from the telecommunications point of entry rooms on the
27th Street and 28th Street sides of the Building to the Premises and from
the Premises to the roof of the Building, sufficient unobstructed space with as little offset as
reasonably possible (from which any discovered asbestos or other Hazardous Materials shall be
removed by Landlord at Landlord’s cost) so as to allow Tenant to install in such shafts such
conduits as may be reasonably agreed upon by Landlord and Tenant, which at a minimum shall include
four (4) four inch (4”) conduits running in two (2) diverse paths and one (1) two inch (2”) conduit
from the Premises to the roof (collectively, “Tenant’s Conduits”) to carry Tenant’s
telecommunications and data cabling. The foregoing shall be in addition to any riser space
required in connection with Tenant’s Generator Equipment.



     19.02 Tenant shall permit Landlord and its agents and contractors, and the utility
companies servicing the Building (with Tenant having the right, at its sole cost and expense, to
have a representative present), upon prior written notice to Tenant given at least five (5)
Business Days prior to commencing work (except in the case of an emergency where, as practicable
under the circumstances, no prior notice shall be required or a shorter notice period shall be
permitted), to erect, install, use, maintain, repair and replace equipment, pipes, ducts and
conduits in and through the Premises (other than in the SOC or effecting the operation of the SOC
unless there is an emergency or no other practical or commercially reasonable manner in which to
perform such work), provided that they shall use commercially reasonable efforts not to interfere
with the conduct of Tenant’s business in the Premises, and further provided that such equipment,
pipes, ducts and conduits shall 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, and further provided that such installations do
not reduce the Useable Area of the Premises or the height of the ceilings in the Premises,
except to a de minimis extent.



     19.03 Provided that, in each case, Landlord shall minimize any disruption to the conduct
of Tenant’s business in the Premises, Landlord and/or Landlord’s employees, agents and contractors
may, upon reasonable advance written notice, provided that Tenant has been given the reasonable
opportunity to have a representative present (except in an emergency where oral notice shall be
given as soon as reasonably practicable) and provided Tenant is given the opportunity (subject to
emergencies) to



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have a representative present, (i) examine the Premises and/or show the Premises
(except for the SOC and high security areas) to the fee owners, lessors of superior leases, holders
of superior mortgages, or prospective purchasers, mortgagees or, during the last 22 months prior to
the Expiration Date, to prospective lessees of the Premises, make such repairs, replacements,
improvements or other changes in or to the Premises (including the facilities or fixtures of the
Premises and including in connection with repairs, replacements, improvements or other changes
being made to other parts of the Building), only as may be provided for by this Sublease or as may
be mutually agreed upon by the parties, or as Landlord may be required to make under this Sublease
or by Requirements or in order to repair and maintain the Premises or other parts of the Building,
and (ii) have access to, enter, and/or pass through, the Premises or any part thereof, for the
purposes of exercising its rights under clause “(i)” above, Section 19.02 above and Section 19.05
below, but only in the conditions set forth therein. Landlord shall be allowed to take all
materials into and upon the Premises that may be reasonably required for such repairs, changes,
repainting or maintenance to the Premises only, provided that, with respect to taking materials
into the Premises as well as all other aspects of Landlord’s access, Landlord shall not interfere
with Tenant’s use of the Premises other than to a de minimis amount, Landlord shall comply with
other provisions in this Sublease concerning access to the Premises and Landlord shall clean up any
such materials at the end of each day. Landlord and/or Landlord’s employees, agents and
contractors, as well as emergency personnel (such as, but not limited to, firemen, policemen and
utility workers) shall also have the right to enter on and/or pass through the Premises, or any
part thereof, at such times as such entry shall be required by circumstances of emergency affecting
the Premises or the Building, Tenant may have its employee or representative accompany all such
parties in the Premises. If Tenant is not present in the Premises to open or permit Landlord
and/or Landlord’s employees, agents and contractors and/or such emergency personnel, access or
entry to or through the Premises in an emergency, then Landlord and/or Landlord’s employees, agents
and contractors and/or such emergency personnel, as the case may be, may enter the Premises
whenever such access or entry is required for the preservation of life or to prevent material
property damage. Only in an emergency may Landlord enter the Premises without Tenant’s prior
permission and accompaniment; and only in such circumstances may Landlord enter the SOC area.
Landlord shall promptly repair all damage caused by such entry.



     19.04 During the period of twenty-two (22) months prior to the Expiration Date, Landlord
may exhibit the Premises to prospective tenants, subject to the provisions of Section 19.03.



     19.05 (a) Landlord has the right on not less than sixty (60) days prior written notice
to Tenant, at any time or from time-to-time, in its sole discretion, to, and may adopt or change
the name by which the Building is commonly known, provided that throughout the Term the Building
name shall be 27-01 Queens Plaza North or another reference or name relating to the address of the
Building or the Brause family and the Post Office address shall be 27-01 Queens Plaza North, unless
such address is changed by the Post Office without Landlord’s consent.



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          (b) Landlord has the right, on not less than ten (10) days prior written notice to
Tenant, so long as access and use of the Premises and the Building Amenities are not impaired, and
Landlord continues to maintain two lobby entrances and elevator banks, substantially as in
existence on the Effective Date (subject to commercially reasonable changes thereto in connection
with restoration following a casualty or condemnation), Tenant’s Signs continue to have
substantially the same visibility and that the same do not interfere with the conduct of Tenant’s
business at the Premises other than to a de minimis extent, to make such changes, alterations,
additions, improvements, repairs and/or replacements to the Building, the systems, services,
equipment and utilities of the Building, and the land on which the Building is located, including
changing the arrangement and/or location of entrances, passageways, halls, doors, doorways,
corridors, elevators, stairs, toilets and/or other common or public parts of the Building, as
Landlord, in its sole discretion, deems necessary, appropriate or desirable. Landlord shall use
commercially reasonably efforts to minimize interference with Tenant’s use and occupancy of the
Premises during the making of such changes or alterations. Notwithstanding anything contained in
this Sublease which may be deemed to the contrary, other than Section 18.12 hereof, (x) there
shall be no allowance to Tenant for a diminution of rental value, (y) there shall be no actual or
constructive eviction, and (z) there shall be no liability on the part of Landlord by reason of
inconvenience, annoyance, injury to business, or otherwise, as a result of the exercise of any of
Landlord’s rights set forth in the first (1st) sentence of this Section or in any other
provision of this Sublease, or as a result of the performance or completion of the work or acts
described therein or in any other provision of this Sublease and shall reimburse Tenant for any
reasonable costs incurred by Tenant to enable Landlord to make such changes.




     19.06 Subject to the provisions of this Sublease including Section 21.03 and Articles 22
and 23, access to the Premises and the Building will be available to Tenant 24 hours per day, 7
days per week. Landlord shall provide security to the Building commensurate with that of other
first-class multi-tenanted office buildings in the Borough of Queens that shall be available 24
hours per day, 7 days per week consisting of, at minimum during all non-Business Hours, a security
guard or lobby attendant in a lobby. Tenant shall have the right, at its sole cost and expense,
and subject to Article 13, the Rules and Regulations, and all applicable Legal Requirements, to
install a security system within the Premises which is compatible with any such security systems
for the Building which may be operated from time to time, including the right to install a badge
reader on one turnstile in each of the Building’s lobbies, as more particularly provided in Section
45.02 below.



     19.07 Any reservation in this Sublease of a right by Landlord to enter upon the Premises
and to make or perform any repairs, alterations or other work in, to or about the Premises which,
in the first instance, is the obligation of Tenant pursuant to this Sublease shall not be deemed
to: (i) impose any obligation on Landlord to do so, (ii) render Landlord liable (to Tenant or any
third party) for the failure to do so, or (iii) relieve Tenant from any obligations to indemnify
Landlord as otherwise provided elsewhere in this Sublease.



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     19.08 In connection with the performance of any work that Landlord shall at any time elect
or be required to perform in accordance with the terms of this Sublease, or in connection with
complying with any Requirement applicable to the Building or any portion thereof (whether or not
Landlord is obligated to comply with such Requirement), Landlord may erect and thereafter maintain
scaffolding, “bridges” and/or other temporary structures on the outside or inside of the Building
notwithstanding that the foregoing may obscure Signs and windows forming a part of the Premises and
notwithstanding that access to portions of the Premises may be diverted or partially obstructed,
provided that except in the event of an emergency the Rooftop Sign shall not be obscured nor shall
Tenant be denied access to, or the ability to operate Tenant’s Generator Equipment, New
Supplemental HVAC Units on the 8th floor roof, the Roof Area and the Roof Equipment. In
the event that any such scaffolding, bridges and/or other temporary structures on the outside of
the Building obscure any of Tenant’s signs, then Tenant at its expense in accordance with
applicable Legal Requirements, may erect temporary replacement signs to be installed on such
scaffolding, bridge or other structure. Landlord shall have no liability to Tenant or to any
Tenant Party arising out of any such work, obscuration, diversion or obstruction, or out of the
erection and maintenance of temporary scaffolding, “bridges” and/or other structures or out of any
noise resulting from such work or erection, nor shall any matter arising out of any of the
foregoing be deemed a breach of Landlord’s covenant of quiet enjoyment. In connection with any
work performed by Landlord as set forth in this Section 19.08, Landlord shall complete the work
necessary in order to allow removal of the “bridge” as quickly as commercially reasonable and to
minimize any interference with or disruption to the usual means of access to the Premises and with
Tenant’s use of the Premises, provided, however, that nothing contained herein shall obligate
Landlord to incur the expense of overtime or any other premium wage rate to perform the same.



     19.09 For the purposes of this Article 19, the term “Landlord” shall include the lessors
under superior leases (including the Existing Lessor) and the holders of superior mortgages, and in
the furtherance of the provisions of this Article 19 and the other applicable provisions of this
Sublease, Tenant shall permit the Existing Lessor and any “Owner Party” under the Existing Superior
Lease to enter the Premises for the purposes provided for in the Existing Superior Lease, and, in
addition, Tenant shall permit an inspection of the Premises by the Existing Lessor or by any such
“Owner Party,” and by prospective purchasers or mortgagees of the fee interest in the Real Property
during “Business Hours” (as defined in the Existing Superior Lease) on “Business Days” (as defined
in the Existing Superior Lease), throughout the Term upon the notice and under the other conditions
set forth in Sections 19.02 and 19.03.



     19.10 If Tenant desires internet service and/or other telecommunication services, Tenant,
at Tenant’s sole cost and expense, shall directly arrange and contract with a primary internet
service provider (an “ISP”) designated by Tenant to provide internet service to the Premises and
with Tenant’s telecommunications providers (collectively, “Telecommunications Provider”) designated
by Tenant to provide telecommunications service to the Premises. Only the Tenant’s Conduits may be
used for Tenant’s internet and telecommunications needs. Additional providers, other than



147









 







Verizon
Business and its affiliated companies, shall be subject to Landlord’s prior written approval (which
approval shall not be unreasonably withheld, conditioned or delayed, except that if a proposed
additional ISP is the then ISP designated by Landlord for the Building or if the proposed
additional Telecommunications Provider is the then Telecommunications Provider designated by
Landlord for the Building, such approval shall be deemed given). All wiring and related work,
including installation of Tenant’s equipment in base Building areas, required to be performed
within the Premises and base Building areas to allow Tenant to access such internet service and
telecommunications service shall be performed by or on behalf of Tenant in accordance with plans
approved by Landlord (which approval shall not be unreasonably withheld or delayed), and subject
to, the other applicable provisions of this Sublease, including Article 13. All fees and charges
charged by the ISP and the Telecommunications Provider shall be paid directly to Tenant’s ISP and
Telecommunications Provider by Tenant. Tenant’s use of an ISP or a Telecommunications Provider
(other than the then ISP designated by Landlord for the Building or the then Telecommunications
Provider designated by Landlord for the Building) may be conditioned upon such ISP and/or
Telecommunications Provider executing and delivering to Landlord (or to Landlord’s agent or
designee) a commercially reasonable license agreement, but with no charge to such ISP and/or
Telecommunications Provider. During the initial Term, Landlord shall permit Tenant, at its sole
cost and expense, to have access to Tenant’s wireless computer network from the CC Space and the
Roof Deck, or, to the extent Landlord has permitted an open wireless network provider to service
the Building, to access such open wireless network from the CC Space and the Roof Deck, and in
connection with either of the foregoing, Tenant, at its expense, in accordance with, and subject
to, the provisions of Article 13 hereof, shall have the right to make such interior Nonstructural
Alterations that are needed to install whatever equipment is reasonably required to permit such
access; provided, however, any such installation by Tenant shall not interfere with the access to
such open wireless network by Landlord, any other tenant or other occupant of the Building.



ARTICLE 20

NOTICE OF ACCIDENTS




     20.01 Tenant shall endeavor to give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Premises for which Landlord might be liable, (ii) all
fires in the Premises, (iii) all damage to or in the Premises, including the fixtures, equipment
and appurtenances thereof, for the repair of which Landlord might be responsible, and (iv) all
damage to or in any parts or appurtenances of the Building’s sanitary, electrical, heating,
ventilating, air-conditioning, elevator and other systems located in or passing through the
Premises or any part thereof. Landlord shall endeavor
to give notice to Tenant, promptly after Landlord learns thereof, of (i) any accident in or
about the Building for which Tenant might be liable, (ii) all fires in the public areas of the
Building, (iii) all damage to or in the Building, including the fixtures, equipment and
appurtenances thereof, for the repair of which Tenant might be responsible, and (iv) all damage to
or in any parts or appurtenances of the Building’s sanitary, electrical,



148









 




heating, ventilating,
air-conditioning, elevator and other systems that serve the Premises or any part thereof.




ARTICLE 21

NON-LIABILITY AND INDEMNIFICATION




     21.01 (a) To the fullest extent permitted by law, Landlord, the lessors under all
superior leases (including the Existing Superior Lease), the holders of all superior mortgages, and
all of their respective agents, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) (collectively, “Landlord Indemnitees”) shall not be liable or
responsible to Tenant or any Tenant Party for any injury, loss or damage to Tenant, any Tenant
Party or to any other person or for any damage to, or loss (by theft or otherwise) of, any property
of Tenant, any Tenant Party or of any other person, irrespective of the cause of such injury,
damage or loss, including any injury, loss or damage that may be occasioned by the acts or
omissions of persons occupying any space adjacent to or adjoining the Premises, or elsewhere in the
Building, or any part thereof, or for any loss or damage resulting to Tenant, any Tenant Party or
any of their property from water, gas, steam, fire, or the bursting, stoppage or leaking of sewer
or other pipes, except, in each case, to the extent caused by the negligence or misconduct of
Landlord or a Landlord Party or for which Landlord or a Landlord Party is liable under Legal
Requirements, in all events subject to Section 11.03 above. Furthermore, Landlord shall not be
responsible or liable for any damage to property of Tenant, any Tenant Party or any other person,
entrusted to employees of the Building. If at any time any windows of the Premises are closed,
darkened or bricked up as a result of any Requirement or adjacent construction, neither Landlord
nor any Landlord Indemnitee shall be liable for any damage Tenant or any Tenant Party may sustain
thereby and Tenant shall not be entitled to any compensation therefor nor abatement or diminution
of rents nor shall the same release Tenant from its obligations under this Sublease nor constitute
an eviction except as otherwise provided in this Sublease.



          (b) Wherever in this Sublease an indemnification is for the benefit of Landlord, such
indemnification shall also be for the benefit of all Landlord Indemnitees, regardless of whether or
not expressly so provided. Whenever in this Sublease an indemnification is for the benefit of
Tenant, such indemnification shall be for the benefit of all Tenant Indemnities, regardless of
whether or not expressly so provided.



     21.02 (a) To the fullest extent permitted by law, and subject to the provisions of
Section 11.03 hereof, Tenant shall (i) indemnify and hold harmless Landlord and all Landlord
Indemnitees harmless from and against any and all actions, proceedings, liabilities, obligations,
claims, damages, deficiencies, losses, judgments, suits, expenses and costs (including, without
limitation, reasonable legal fees and disbursements) arising under or out of, or in connection with
or resulting from (A) any negligent or
otherwise wrongful act or omission of Tenant or any other Tenant Party, except, in each case,
to the extent caused by the negligence or misconduct of Landlord or a Landlord Party; (B) the
Tenant’s or any Tenant Party’s use or manner of use of the Premises or the management of the
Premises or the conduct of any business therein; (C) any



149









 







default under any of the terms, covenants
or conditions of this Sublease on Tenant’s part to observe, perform or comply with; (D) any work
done, or any condition created (other than by Landlord or a Landlord Party for Landlord’s or
Tenant’s account) in or about the Premises during the Term or during the period of time, if any,
prior to the Commencement Date that Tenant may have been given access to the Premises or during the
period of time after the expiration of the Term that Tenant or any Tenant Party remains in
possession or occupancy of the Premises or any portion thereof; (E) the use by Tenant (or any other
person) of the Roof Installations (as such term is defined in Section 41.01 hereof) and those
portions of the Building used for the construction, installation, maintenance, repair, operation,
and use or removal of the Roof Installations; (F) the acts or omissions of any Tenant’s Security
Personnel (as such term is defined in Section 45.02 hereof); (G) the use of the fire staircases by
Tenant or by any Tenant Party or from a violation of any of the terms or conditions set forth
herein; and/or (H) the installation, maintenance or repair of the Tenant’s Signs (as such term is
defined in Section 45.03 hereof), and (ii) reimburse to Landlord and the Landlord Indemnities for
all reasonable and actual out-of-pocket costs and expenses paid by Landlord or any of the Landlord
Indemnities in connection with each such claim or action or proceeding brought thereon. In case
any action or proceeding be brought against Landlord or any of the Landlord Indemnities by reason
of any such claim, Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding by attorneys reasonably acceptable to Landlord, Landlord agreeing that the attorneys for
the insurance company providing Tenant’s insurance are acceptable. Notwithstanding the foregoing,
neither Tenant nor any Tenant Party shall be liable to Landlord or Landlord Indemnitees under this
Section 21.02 for indirect, consequential, special or punitive damages.



          (b) To the fullest extent permitted by law, and subject to the provisions of Section 11.03
hereof, Landlord shall (i) indemnify and hold harmless Tenant and any of its agents, officers,
directors, shareholders, partners or principals (disclosed or undisclosed) (collectively, “Tenant
Indemnitees”) harmless from and against any and all actions, proceedings, liabilities, obligations,
claims, damages, deficiencies, losses, judgments, suits, expenses and costs (including, without
limitation, reasonable legal fees and disbursements) arising under or out of, or in connection with
or resulting from (A) any negligent or otherwise wrongful act or omission of Landlord or any of its
employees, agents or contractors, except, in each case, to the extent caused by the negligence or
misconduct of Tenant or a Tenant Party; and/or (B) any default under any of the terms, covenants or
conditions of this Sublease on Landlord’s part to observe, perform or comply with; and (ii)
reimburse to Tenant and the Tenant Indemnities for all reasonable and actual out-of-pocket costs
and expenses paid by Tenant or any of the Tenant Indemnities in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be brought against Tenant
or any of the Tenant Indemnities by reason of any such claim, Landlord, upon notice from Tenant,
shall resist and defend such action or proceeding by attorneys reasonably acceptable to
Tenant, Tenant agreeing that the attorneys for the insurance company providing Landlord’s
insurance are acceptable. Notwithstanding the foregoing, neither Landlord



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nor any Landlord Party
shall be liable to Tenant or Tenant Indemnitees under this Section 21.02 for indirect,
consequential, special or punitive damages.



     21.03 Except as otherwise expressly provided in this Sublease, if by reason of: (i) area
wide strikes or other labor troubles or strikes or other labor troubles directed at Landlord, its
managing agent and/or the Building as a result of the acts of Tenant or any of its Affiliates, (ii)
governmental prohibitions, preemptions, restrictions or other controls, (iii) any Legal
Requirement, (iv) unavailability of fuel, supplies or labor, (v) acts of God or the elements (such
as tornado, hurricane, flood, snow, etc.), (vi) civil commotion, acts of war, terrorism or the
public enemy, (vii) fire or other casualty or catastrophe, (viii) accidents or mechanical
breakdowns not caused directly or indirectly by the negligence or willful misconduct of the party
obligated to perform or its agents, employees or contractors, or (ix) any other cause beyond the
reasonable control of the party obligated to perform (excluding, however, any financial inability),
including the acts, or failures to act when required to do so, of Existing Lessor in connection
with the Existing Superior Lease to the extent such actions or failure to act is not related to any
default by Landlord under the Existing Superior Lease, (each of the events described in the
preceding clauses being herein referred to as an “Unavoidable Delay,” and, collectively,
“Unavoidable Delays”), the observance, performance or compliance with, any non-monetary obligation
(i.e., any obligation other than the obligation to pay a sum of money) on the part of the party
obligated to observe, perform or comply with, is prevented or delayed, including the inability to
supply, provide or furnish, or a delay in supplying, providing or furnishing, any service expressly
or implicitly to be supplied, provided or furnished, or the inability to make, or a delay in
making, any alteration, decoration, installation, improvement, repair, addition or other physical
change in, to or about the Premises or any other portion of the Building, or the inability to
supply, or a delay in supplying, any equipment, fixtures or other materials, then, for so long as
such party shall be unable to observe, perform or comply with, or shall be delayed in the
observance, performance or compliance with, any such non-monetary obligation, except as provided in
Section 18.12, this Sublease shall in no way be affected, impaired or excused, and such party’s
obligation to observe, perform or comply with any such non-monetary obligation shall be excused for
the period during which the Unavoidable Delay prevents or delays such observance, performance or
compliance.



ARTICLE 22

DESTRUCTION OR DAMAGE




     22.01 (a) If the Building or the Premises shall be partially damaged or partially
destroyed by fire or other casualty and as a result thereof a portion of the Premises becomes
untenantable, the Base Rent and the Additional Rent payable under Article 5 hereof shall be abated
on a pro rata basis, based on the RSF of that portion of the Premises (taking into consideration
whether or not any portion of the Premises is Storage Space) as shall have been rendered
untenantable as a result of such damage or destruction or if (i) more than 30% of the Premises
becomes untenantable and the remaining area of the Premises shall not, in Tenant’s good faith
judgment, be
reasonably sufficient for Tenant to continue normal operation of its business at the Premises
and Tenant vacates the Premises, or (ii) the Premises is inaccessible and



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Tenant does not occupy
the Premises, all of the Base Rent and Additional Rent payable under Article 5 hereof shall be
abated, for the period, commencing on the date the Premises becomes untenantable or inaccessible
and ending on the date next preceding the earlier of (i) the date that is sixty (60) days following
the date on which the Required Landlord Restoration (as defined below) is substantially complete or
on which that portion of the Premises otherwise becomes tenantable and accessible, and (ii) the
date on which Tenant or any Tenant Party occupies such portion of the Premises for the normal
conduct of its business. If the SOC Space shall be partially damaged or destroyed by fire or other
casualty and as a result thereof Tenant is not able to operate and does not operate the SOC and
Tenant vacates the entire SOC Space, then, and in such event occurring, all of the Base Rent and
Additional Rent applicable to the SOC Space shall be abated, for the period commencing on the date
upon which the Tenant vacates the SOC Space and ending on the date that is the earlier to occur of
(i) the date that is ninety (90) days following the date on which the Required Landlord Restoration
is substantially complete in the SOC Space, and (ii) the date on which Tenant or any Tenant Party
occupies any portion of the SOC Space for the conduct of business therein (Tenant’s testing of the
SOC following casualty restoration work in the SOC Space shall not be deemed occupancy of the SOC
Space); provided, however, in no event shall the Base Rent and Additional Rent abate with regard to
more than 20,000 RSF of the SOC Space except to the extent, if any, that greater than 20,000 RSF of
the SOC Space has been damaged or destroyed by fire or other casualty. Notwithstanding anything to
the contrary herein contained, in no event shall the Base Rent or Additional Rent abate with regard
to any portion of the Premises that was not damaged or destroyed by fire or other casualty if the
fire or other casualty that damaged or destroyed any other portion of the Premises was caused by
Tenant or any Tenant Party.




          (b) If the Building or the Premises shall be totally (which shall be deemed to include
substantially totally) damaged or destroyed by fire or other casualty and as a result thereof the
entire Premises becomes untenantable or inaccessible, the Base Rent and the Additional Rent
payable under Article 5 hereof shall be abated for the period commencing on the date the Premises
becomes untenantable or inaccessible and ending on the date that is the earliest of (i) the date
that is sixty (60) days following the date on which the Required Landlord Restoration is
substantially complete or on which the Premises otherwise becomes tenantable and accessible, and
(ii) the date on which Tenant or any Tenant Party occupies the Premises for the normal conduct of
its business, provided that Tenant’s testing of the SOC following casualty restoration work in the
SOC Space shall not be deemed occupancy of the SOC Space.




     22.02 If any damage or destruction described in Section 22.01 above occurs, then, provided
the Existing Superior Lease has not been terminated pursuant to Section 13.3 thereof, and provided
that this Sublease shall not have been terminated pursuant to Section 22.03 below, Landlord shall
promptly and diligently repair or restore such damage or destruction with reasonable dispatch after
notice to it of the damage or destruction; provided, however, that Landlord shall not be required
to make (a) any
repairs or restoration that are the obligation of Tenant or any other person to make



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(other
than Landlord’s employees, agents or contractors), or (b) repairs to items that are obsolete, and
provided further that Landlord shall not be required to repair, replace or move any of Tenant’s
Property or any Roof Installations nor to repair or restore any Tenant’s Work or other Alterations
(regardless of whether such Tenant’s Work or other Alterations (or any portions thereof) become the
property of Landlord upon installation) (such damage or destruction that Landlord is expressly
obligated to repair or restore pursuant to this Section being herein referred to as the “Required
Landlord Restoration”). Landlord shall perform such repairs diligently, in a good and workmanlike
manner, and shall use commercially reasonable efforts to minimize interference with Tenant’s use
and occupancy of any portion of the Premises that remains tenantable. In furtherance of the
foregoing, Landlord shall not be obligated to make any repairs which are the obligation of the
Existing Lessor to make, but, if neither the Existing Superior Lease nor this Sublease shall have
been terminated, Landlord shall use good faith diligent efforts to cause the Existing Lessor to
make any repairs which under the Existing Superior Lease are the obligation of the Existing Lessor
to make, including if reasonably required, an action for specific performance against the Existing
Lease to cause such compliance with the Existing Superior Lease. Nothing in this Sublease shall
be deemed a waiver of Landlord’s rights, under Section 13.3 of the Existing Superior Lease, to
terminate said Existing Superior Lease under the circumstances set forth therein.




     22.03 (a) If the Building or the Premises shall be totally or substantially damaged or
destroyed by fire or other casualty, or if the Building shall be so damaged or destroyed by fire or
other casualty (whether or not the Premises are damaged or destroyed) as to require a reasonably
estimated expenditure by Landlord of more than fifty (50%) percent of the full insurable value of
the Building immediately prior to the casualty, then in either such case Landlord may terminate
this Sublease by giving Tenant notice to such effect within sixty (60) days after the date of the
casualty, so long as Landlord is then terminating the Existing Superior Lease.



          (b) In case of any damage or destruction to the Premises, Landlord shall provide to
Tenant, within ninety (90) days after the date of such damage or destruction, a notice containing
the good-faith estimate of Landlord’s architect or other qualified expert of the period of time
required to complete restoration of such damage (the “Estimated Restoration Period”). If the
Estimated Restoration Period shall exceed nine (9) months after the date of the casualty, Tenant
shall have the right to terminate this Sublease, by notice to Landlord within sixty (60) days
after Tenant’s receipt of the notice of the Estimated Restoration, TIME BEING OF THE ESSENCE. In
the event Tenant does not elect to so terminate this Sublease, Landlord shall complete the
Required Landlord Restoration in accordance with Section 22.02 and, in the event such Required
Landlord Restoration is not complete within nine (9) months after the date of the casualty or such
longer time period that was set forth in Landlord’s notice as the Estimated Restoration Period,
subject to Unavoidable Delays, Tenant shall again have the right to terminate this Sublease by
notice to Landlord given at any time prior to completion of the Required Landlord Restoration.
Notwithstanding the foregoing, if Tenant fails to give Landlord such notice of termination in the
manner and in the time period set forth above, then Tenant’s right to terminate this Sublease
shall



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be null and void, and of no further force or effect, and this Sublease shall
continue in full
force and effect, subject to the other provisions of this Sublease.




          (c) If, in accordance with, and subject to, the provisions of this Section, either
Landlord or Tenant give the other such notice of termination, (i) the term of this Sublease shall
expire as fully and completely on the date which is thirty (30) days after the date on which
Landlord or Tenant gives the other such notice of termination, as if such termination effective
date were the Expiration Date, (ii) on or prior to such termination effective date, Tenant shall
quit, surrender and vacate the Premises in accordance with the applicable provisions of this
Sublease but in “as is” condition as to any portion of the Premises damaged by the casualty,
without prejudice, however, to the parties’ rights and remedies against the other under the
provisions of this Sublease in effect prior to such termination effective date, and (iii) any
amounts, including Base Rent and Additional Rent, owing shall be paid up to the date of such
damage or destruction and any payments of Base Rent or Additional Rent made by Tenant which were
on account of any period subsequent to such date (less any amounts of other rents then owing to
Landlord) shall be returned to Tenant. Landlord’s obligation to make such refund shall survive
termination of this Sublease. Notwithstanding the foregoing, if pursuant to the provisions of
this Section, either Landlord or Tenant terminate this Sublease, then Tenant may remain in
possession of the SOC Space and operate the SOC for a period of not more than thirty (30) days
beyond such termination effective date provided that: (i) such continued occupancy shall be
permitted by Legal Requirements and by the Existing Lessor, (ii) such continued occupancy shall
not create a holdover under the Existing Superior Lease or impose any additional liability on
Landlord under the Existing Superior Lease that Landlord would not otherwise have but for such
continued occupancy of the SOC Space, (iii) Tenant shall continue to pay Landlord all Base Rent
and Additional Rent applicable to such SOC Space together with one hundred percent (100%) of all
of Landlord’s other costs to operate the Building for the benefit of Tenant’s continued occupancy
of the SOC Space if Tenant is the only occupant operating in the Building or Tenant shall pay its
pro rata share of such costs if other tenants or occupants are operating in the Building.




          (d) If the Premises shall be damaged or destroyed by fire or other casualty to the extent
of more than 40% of its replacement cost within the last twenty four (24) months of the Term,
either party shall have the right to terminate this Sublease, provided that notice thereof is
given to the other party not later than sixty (60) days after such damage or destruction.
However, if Landlord shall exercise said right of termination and at that time Tenant shall have
the right to exercise its Renewal Option to extend the Term for the Renewal Term, Tenant may
render Landlord’s notice of termination null, provided that Tenant, within thirty (30) days after
receipt of the Landlord’s termination notice, shall give the Exercise Notice to extend the Term
for the Renewal Term.




     22.04 No damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any portion of the Premises
or of the Building made pursuant to this Article and in



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accordance with this Sublease, and nothing in this Article shall limit Landlord’s other
obligations under this Sublease.




     22.05 Omitted prior to execution.



     22.06 Landlord will not carry insurance of any kind on Tenant’s Property, Roof
Installations, Alterations or Tenant’s Work, and shall not be obligated to repair any damage
thereto or replace the same. Tenant shall be obligated to carry insurance on Tenant’s Property,
Roof Installations, Alterations and Tenant’s Work as provided in Article 11 above.



     22.07 The provisions of this Article shall be considered an express agreement governing
any case of damage or destruction of the Premises 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 an
express agreement, and any other Requirement of like import, now or hereafter in force, shall have
no application in such case.



ARTICLE 23

EMINENT DOMAIN




     23.01 If the whole of the Building or Premises shall be lawfully taken by condemnation or
in any other manner for any public or quasi-public use or purpose, this Sublease and the term and
estate hereby granted shall forthwith terminate as of the date of vesting of title in such taking
(which date is hereinafter also referred to as the “date of the taking”), and the rents shall be
prorated and adjusted as of such date.



     23.02 If only a part of the Building shall be so taken, this Sublease shall be unaffected
by such taking, except that Tenant may elect to terminate this Sublease in the event of a partial
taking if (i) the taking is for more than 10% of the RSF of the Premises and the remaining area of
the Premises shall not, in Tenant’s good faith judgment, be reasonably sufficient for Tenant to
continue normal operation of its business at the Premises, (ii) the Premises is inaccessible and
comparable substitute access cannot be provided or (iii) all or any portion of the SOC is taken and
no reasonable substitute is available. Tenant shall give notice of such election to Landlord not
later than thirty (30) days after notice of such taking is given by Landlord to Tenant. Upon the
giving of such notice by Tenant this Sublease shall terminate on the date of such taking and the
rents shall be prorated as of such termination date. Upon such partial taking and this Sublease
continuing in force as to any part of the Premises, the rents apportioned to the part taken shall
be prorated and adjusted as of the date of taking and from such date the Base Rent for the Premises
and Additional Rent payable pursuant to Article 5 shall be appropriately adjusted according to the
RSF remaining.



     23.03 Landlord shall be entitled to receive the entire award in any proceeding with
respect to any taking provided for in this Article without deduction therefrom for any estate
vested in Tenant by this Sublease and Tenant shall receive no part of such award, except as
hereinafter expressly provided in this Article. Tenant hereby expressly assigns to Landlord all of
its right, title and interest in or to every such award. Notwithstanding anything herein to the
contrary, Tenant may, at its sole cost and expense, make a claim with the condemning authority for
Tenant’s moving expenses,



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the value of Tenant’s Property, Tenant’s furniture, fixtures, and equipment and Tenant’s
Alterations.




     23.04 If the temporary use or occupancy of all or any part of the Premises shall be
lawfully taken by condemnation or in any other manner for any public or quasi-public use or purpose
during the Term, Tenant shall be entitled, except as hereinafter set forth, to receive that portion
of the award for such taking which represents compensation for the use and occupancy of the
Premises and, if so awarded, for the taking of Tenant’s Property and for moving expenses. This
Sublease shall be and remain unaffected by such taking and Tenant shall continue to be responsible
for all of its obligations hereunder insofar as such obligations are not affected by such taking
and shall continue to pay in full, the Base Rent and Additional Rent when due. If the period of
temporary use or occupancy shall extend beyond the Expiration Date, that part of the award which
represents compensation for the use or occupancy of the Premises (or a part thereof) shall be
divided between Landlord and Tenant so that Tenant shall receive so much thereof as represents the
period prior to the Expiration Date and Landlord shall receive so much thereof as represents the
period subsequent to the Expiration Date. All moneys received by Tenant as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the rents hereunder
have been paid by Tenant shall be received, held and applied by Tenant as a trust fund for payment
of the rents falling due hereunder.



     23.05 In the event of any taking of less than the whole of the Building which does not
result in a termination of this Sublease, or in the event of a taking for a temporary use or
occupancy of all or any part of the Premises which does not extend beyond the Expiration Date,
Landlord, at its expense, shall proceed with reasonable diligence to repair, alter and restore the
remaining parts of the Building and the Premises to substantially a Building Standard condition to
the extent that the same may be feasible and so as to constitute a complete and tenantable Building
and Premises; provided, however, that Landlord shall not be required to make (a) any repairs or
restoration that are the obligation of Tenant or any other person to make (other than Landlord’s
employees, agents or contractors), (b) repairs to leasehold improvements and alterations in other
leasable areas of the Building, and (c) provided further that Landlord shall not be required to
repair, replace or move any of Tenant’s Property or Roof Installations nor to repair or restore any
Tenant’s Work or Alterations, except, with regard to clause (a) and clause (c), if the award paid
to Landlord includes compensation for the items described in clauses (a) and/or (c) above, then
upon receipt of such award Landlord shall remit the portion of the net proceeds received by
Landlord allocated to such items to be used for Tenant’s restoration obligations under this
Article. In furtherance of the foregoing, Landlord shall not be obligated to make any repairs
which are the obligation of the Existing Lessor to make, but Landlord shall use good faith diligent
efforts to cause the Existing Lessor to make any repairs which under the Existing Superior Lease
are the obligation of the Existing Lessor to make, including if reasonably required, an action for
specific performance against the Existing Lessor to cause such compliance with the Existing
Superior Lease.



     23.06 Omitted prior to execution.



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



ARTICLE 24

SURRENDER; HOLDOVER




     24.01 On the last day of the Term, or upon any earlier termination of this Sublease, or
upon any re-entry by Landlord upon the Premises, Tenant shall quit and surrender the Premises to
Landlord broom clean and in good order, condition and repair, except for ordinary wear and tear and
damage by casualty or condemnation, and Tenant shall have the obligation to remove property to the
extent required under Article 14 and the other applicable provisions of this Sublease and/or by
applicable Legal Requirements and shall repair all damage to the Premises and the Building caused
by such removal.



     24.02 (a) If Tenant or any Tenant Party shall remain in possession or occupancy of any
portion of the Premises, or otherwise hold over, after the expiration of the Term, and if Landlord
shall then not proceed to remove Tenant from the Premises in the manner permitted by law (or shall
not have given written notice to Tenant that Tenant must vacate the Premises) irrespective of
whether or not Landlord accepts rent from Tenant for a period beyond the last day of the Term, the
parties hereby agree that Tenant’s occupancy of the Premises after the expiration of the Term shall
be under a month-to-month tenancy commencing on the first day after the expiration of the Term,
which tenancy shall be upon all of the terms set forth in this Sublease except Tenant shall pay on
the first day of first month of the hold over period, as Base Rent, an amount equal to [***]% of
one-twelfth of the Base Rent payable by Tenant during the last year of the Term (i.e., the year
immediately prior to the holdover period) for the entire Premises, without taking into account any
abatements thereof under Articles 22 or 23 hereof or otherwise, plus, as Additional Rent, [***]% of
all other rents (including Tax Payment, Expense Payment and all other items of Additional Rent)
payable under this Sublease, (i) on the first day of the second month of such holdover period, as
Base Rent, an amount equal to [***]% of one-twelfth of the Base Rent payable by Tenant during the
last year of the Term for the entire Premises, without taking into account any abatements thereof
under Articles 22 or 23 hereof or otherwise, plus, as Additional Rent, [***]% of all other rents
(including Tax Payment, Expense Payment and all other items of Additional Rent) payable under this
Sublease, and (ii) on the first day of each and every month thereafter, as Base Rent, an amount
equal to [***]% of one-twelfth of the Base Rent payable by Tenant during the last year of the Term
(i.e., the year immediately prior to the holdover period) for the entire Premises, without taking
into account any abatements thereof under Articles 22 or 23 hereof or otherwise, plus, as
Additional Rent, [***]% of all other rents (including Tax Payment, Expense Payment and all other
items of Additional Rent) payable under this Sublease, it being understood and





 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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agreed that if at
time during such holdover periods Tenant is the only occupant of the
Building, for the purposes of calculating the Additional Rent payable pursuant to the
preceding clauses (i), (ii) and (iii), Tenant’s Proportionate Share shall be [***]%. It is further
stipulated and agreed that if Landlord shall, at any time after the expiration of the initial Term
(including any renewal terms pursuant to Article 40 hereof) or after the expiration of any term
created thereafter pursuant to this Article, proceed to remove Tenant from the Premises as a
holdover, the rent for the use and occupancy of the Premises during any holdover period shall be
the greater of (x) the applicable rents described in clauses (i), (ii) and (iii) above, determined
as if such holdover began on the date succeeding the last day of the initial Term (including any
renewal terms pursuant to Article 40 hereof) and not the date succeeding the last day of any
month-to-month tenancy created by this Article, and (y) the fair market rental value of the
Premises for such month. In addition to the foregoing, Landlord shall be entitled to recover from
Tenant all costs, reasonable and actual out-of-pocket expenses, losses and damages arising from
such holdover, including all reasonable attorneys’ fees and disbursements and court costs incurred
or paid by Landlord. In no event, however, shall Tenant be liable for any consequential or
punitive damages suffered by Landlord, except, subject to the provisions of Section 40.01(d), that
any costs or damages incurred by Landlord pursuant to the terms of the Existing Superior Lease due
to Tenant’s holdover (including a holdover of the Renewal Surrender Premises after the expiration
of the initial Term) shall not be deemed consequential or punitive, and shall be recoverable
against Tenant hereunder, regardless of whether such costs or damages pursuant to the terms of the
Existing Superior Lease (collectively, the “Existing Superior Lease Holdover Damages” ) are in
respect of the entire premises demised under the Existing Superior Premises, and not just the
Premises, provided, however, that Landlord shall not be entitled to make a claim for the Existing
Superior Lease Holdover Damages unless Tenant remains in possession of the Premises (or any portion
thereof) for more than thirty (30) days after the expiration of the Term (without taking into
account any month-to-month tenancy that may be created under this Section 24.02), except that,
subject to the provisions of Section 40.01(d) below, such thirty (30) day period shall not apply to
a holdover of any portion of the Renewal Surrender Premises after the expiration of the initial
Term.




          (b) Notwithstanding anything to the contrary contained in this Sublease, the acceptance of
any rent paid by Tenant pursuant to subsection (a) above shall not preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding or from exercising any other
right or remedy under this Sublease, at law or in equity, and the preceding sentence shall be
deemed to be an “agreement expressly providing otherwise” within the meaning of Section 232-c of
the Real Property Law of the State of New York.



          (c) All damages to Landlord by reason of holding over by Tenant (or by any Tenant Party)
may be the subject of a separate action and need not be asserted by





 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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Landlord in any summary
proceedings against Tenant. Tenant acknowledges that
possession of the entire Premises must be surrendered to Landlord at the expiration or sooner
termination of the Term.




ARTICLE 25

CONDITIONS OF LIMITATION




     25.01 To the extent permitted by applicable Legal Requirements, this Sublease and the term
and estate hereby granted are subject to the limitation that whenever Tenant shall make an
assignment of all or substantially all of the property of Tenant for the benefit of creditors, or
shall file a voluntary petition under any bankruptcy or insolvency law, or an involuntary petition
alleging an act of bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed against Tenant under the reorganization
provisions of the United States Bankruptcy Act or under the provisions of any law of like import,
or whenever a petition shall be filed by Tenant under the arrangement provisions of the United
States Bankruptcy Act or under the provisions of any law of like import, or whenever a permanent
receiver of Tenant or of or for the property of Tenant shall be appointed, then, Landlord, (a) at
any time after receipt of notice of the occurrence of any such event, or (b) if such event occurs
without the acquiescence of Tenant, at any time after the event continues unstayed for ninety (90)
days, Landlord may give Tenant a notice of intention to end the Term at the expiration of five (5)
days from the date of service of such notice of intention, and upon the expiration of said five (5)
day period this Sublease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 27.



     25.02 This Sublease and the term and estate hereby granted are subject to the further
limitation that:



          (a) if there is a failure to pay when due any Base Rent, any Recurring Additional Rent or
any Additional Rent payable pursuant to Article 16 hereof, and (i) the payment in question is not
paid in full within five (5) Business Days after Tenant is given a notice specifying such default
(such notice being a “First Default Notice”), and (ii) the payment in question is not paid in full
within five (5) Business Days after Tenant is given a second (2nd) notice after the
expiration of the first five (5) Business Day period, specifying such default (such notice being a
“Second Default Notice”), it being understood and agreed that if two (2) First Default Notices are
given within a twelve (12) month period and within twelve (12) months after the giving of the
first (1st) of such First Default Notices there are one (1) or more failures to pay when due any
Base Rent, any Recurring Additional Rent or any Additional Rent payable pursuant to Article 16
hereof, a Second Default Notice shall not be required to be given to Tenant in respect of such
failures and clause (ii) above shall not be applicable to such failures. The Second Default
Notice shall contain substantially the following statement in bold and CAPITAL letters: “THIS IS A
SECOND NOTICE UNDER SECTION 25.02(a) OF



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THE SUBLEASE THAT TENANT IS IN DEFAULT FOR FAILURE TO PAY
BASE RENT, RECURRING ADDITIONAL RENT OR ADDITIONAL RENT UNDER THE
SUBLEASE. TENANT HAS FIVE BUSINESS DAYS TO PAY THE OVERDUE RENT”; or




          (b) if there is a failure to pay when due any Additional Rent (other than the Additional
Rent described in subsection (a) above) or other payment payable by Tenant pursuant to any
provision of this Sublease (other than the Additional Rent described in subsection (a) above), and
the payment in question is not paid in full within ten (10) Business Days after Tenant is given a
notice specifying such default. Such notice shall contain substantially the following statement
in bold and CAPITAL letters: “THIS IS A NOTICE OF DEFAULT FOR FAILURE TO PAY ADDITIONAL RENT
PURSUANT TO SECTION 25.02 OF THE SUBLEASE. TENANT HAS TEN BUSINESS DAYS TO PAY THE OVERDUE
ADDITIONAL RENT”; or




          (c) if there is a failure to observe, perform or comply with any term, covenant or
condition contained in Section 13.06 or Article 33 of this Sublease on Tenant’s part to observe,
perform or comply with, whether by action or inaction, and such default continues and is not cured
by Tenant within ten (10) Business Days after Tenant is given a notice specifying such default; or




          (d) if there is a failure to observe, perform or comply with any term, covenant or
condition contained in Article 19 of this Sublease on Tenant’s part to observe, perform or comply
with, whether by action or inaction, and such default continues and is not cured by Tenant within
five (5) Business Days after Tenant is given a notice specifying such default; or




          (e) if (i) Tenant fails to provide or keep in force the insurance required by this
Sublease, at the times and for the durations specified in this Sublease, or (ii) an Insurance
Cancellation Notice is given to Landlord (whether or not the effective date of the cancellation or
modification referred to in such Insurance Cancellation Notice of the insurance coverage that
Tenant is obligated to provide and keep in full force and effect has occurred), and Landlord has
not received binding certificates evidencing such insurance, all in the form and substance
required by this Sublease, together with evidence of payment for such policies, within fifteen
(15) days after notice is given to Tenant of such failure; or




          (f) if any event shall occur or any contingency shall arise whereby this Sublease or the
estate hereby granted or the unexpired balance of the Term would, by operation of law or
otherwise, devolve upon or pass to any person other than Tenant, except as expressly permitted by
Article 9, and the estate created hereby is not unconditionally and irrevocably re-acquired
within thirty (30) days after Tenant is given notice thereof; or




          (g) if the Premises shall become vacant (and Tenant, at its sole cost and expense, fails
to secure and protect the portions of the Premises so vacated



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during such vacating), deserted or
abandoned and Tenant fails to cure such condition within thirty (30) days after Tenant is given
notice by Landlord; or




          (h) (i) if there is a failure to observe, perform or comply with any term, covenant or
condition contained in this Sublease on Tenant’s part to observe, perform or comply with (other
than those terms, covenants and conditions contained in the provisions of this Sublease set forth
in subsections (a), (b), (c), (d) and (e) above, and excluding those events described in
subsections (f) and (g) above), whether by action or inaction, and such default continues and is
not cured in full by Tenant within thirty (30) days after Tenant is given a written notice
specifying such default, or (ii) in the case of a default which cannot with due diligence be cured
within a period of thirty (30) days, where the continuance of such default for more than thirty
(30) days will not (A) subject Landlord to the risk of civil or criminal liability or default
under, or termination of, any superior lease or default under, or foreclosure of, any superior
mortgage, (B) subject the Real Property or any part thereof to being condemned or vacated, or (C)
subject the Real Property or any part thereof to any lien or encumbrance or subject the
certificate of occupancy for the Building to suspension or revocation, if Tenant shall not, (x)
within thirty (30) days after Tenant is given a notice specifying such default, give Landlord
notice of Tenant’s intention to duly institute all steps necessary to cure such default (which
notice shall include a reasonably detailed description of such steps), (y) duly institute within
said thirty (30) day period, and thereafter diligently prosecute to completion, the cure of such
default, and/or (z) complete such cure within such time after the date of the giving of such
notice to Tenant as should have been necessary to complete such cure had Tenant so duly instituted
such steps and thereafter diligently prosecuted to completion such cure, using commercially
reasonable efforts; or




          (i) if there is a default under any term, covenant or condition of the Existing Superior
Lease, or Existing Lessor claims a default thereunder, which is solely or primarily due to the
actions, or failures to act when required to do so, of Tenant or any Tenant Party, and such
default is not cured after the expiration of any applicable cure period set forth in the Existing
Superior Lease, Tenant agreeing that if Existing Lessor shall notify Landlord or Tenant, Landlord
shall notify Tenant, that any action or failure to act of Tenant constitutes a default under the
Existing Superior Lease, Tenant shall cure such default within the time frames set forth within,
and otherwise pursuant to the terms of, the Existing Superior Lease),



then in any of said cases set forth in the foregoing subsections (a), (b), (c) (d), (e), (f), (g),
(h) and (i), each of which is an Event of Default, or upon the occurrence of any other Event of
Default, Landlord may give to Tenant a notice of intention to end the Term, and on the tenth
(10th) day after the date on which Landlord gives such notice to Tenant, this Sublease
and the term and estate hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if such tenth (10th) day were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 27.




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The foregoing notwithstanding, all notice periods set forth in Sections 25.02(a) through (i) above
shall be reduced (but not increased), to the extent necessary so as to make such periods at least
one (1) day shorter with respect to monetary defaults, or eight (8) days shorter with respect to
all other defaults, than the corresponding notice periods
provided for under the Existing Superior Lease to the extent such Event of Default by Tenant
hereunder shall constitute an Event of Default under the Existing Superior Lease. Landlord shall
provide to Tenant, promptly after receipt of the same, any default notice received by Landlord from
the Existing Superior Lessor.




ARTICLE 26

RE-ENTRY BY LANDLORD




     26.01 If Tenant shall default in the payment of any installment of Base Rent or of any
Additional Rent, on any date upon which the same is due or payable, and if such default shall
continue for three (3) Business Days after Landlord shall have given to Tenant notice specifying
such default or if this Sublease shall expire as in Article 25 provided or if an Event of Default
shall have occurred, Landlord or Landlord’s agents and employees may immediately or at any time
thereafter re-enter the Premises, or any part thereof, in the name of the whole, either by summary
dispossess proceedings or by any suitable action or proceeding at law, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold and enjoy the Premises again as and of its first
estate and interest therein. The word re-enter, as herein used, is not restricted to its technical
legal meaning. In the event of any termination of this Sublease under the provisions of Article 25
or if Landlord shall re-enter the Premises under the provisions of this Article or in the event of
the termination of this Sublease, or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of an Event of Default or a default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Base Rent and
Additional Rent payable by Tenant to Landlord up to the time of such termination of this Sublease,
or of such recovery of possession of the Premises by Landlord, as the case may be, and shall also
pay to Landlord damages as provided in Article 27.



     26.02 In the event of a default or threatened default by Tenant or any Tenant Party of any
of Tenant’s obligations under this Sublease, Landlord shall also have the right of injunction. The
special remedies to which Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may lawfully be entitled at
any time and Landlord may invoke any remedy allowed at law or in equity as if specific remedies
were not provided for herein.



     26.03 If this Sublease shall terminate under the provisions of Article 25, or if Landlord
shall re-enter the Premises under the provisions of this Article, or in the event of the
termination of this Sublease, or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of an Event of Default or a default
hereunder on the part of Tenant, Landlord shall be entitled to retain all moneys, if any, paid by
Tenant to Landlord, whether as advance rent, security or



162









 







otherwise, but such moneys shall be
credited by Landlord against any Base Rent or Additional Rent due from Tenant at the time of such
termination or re-entry or, at Landlord’s option, against any damages payable by Tenant under
Article 27 or pursuant to law.



ARTICLE 27

DAMAGES




     27.01 If this Sublease is terminated under the provisions of Article 25, or if Landlord
shall re-enter the Premises under the provisions of Article 26, or in the event of the termination
of this Sublease, or of re-entry, by or under any summary dispossess or other proceeding or action
or any provision of law by reason of an Event of Default or a default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, all amounts then owed by Tenant, plus the
reasonable and actual out-of-pocket third party expenses incurred or paid by Landlord in
terminating this Sublease or in re-entering the Premises and in securing possession thereof, plus
the reasonable and actual out-of-pocket expenses incurred or paid by Landlord to relet the Premises
or portions thereof, including altering and preparing the Premises (or such portions) for new
tenants, brokers’ commissions, and all other expenses, plus, at the election of Landlord, either:



          (a) sums equal to the Base Rent and the Additional Rent payable hereunder which would
have been payable by Tenant had this Sublease not so terminated, or had Landlord not so re-entered
the Premises, payable upon the due dates therefor specified herein following such termination or
such re-entry and until the Expiration Date, provided, however, that if Landlord shall relet the
Premises during said period, Landlord shall credit Tenant with the rents received by Landlord from
such reletting, such rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the damages and all other costs described in the
introductory sentence of this Section 27.01 (including the costs of terminating, re-entering and
reletting the Premises); it being understood that any such reletting may be for a period shorter
or longer than the remaining Term; but in no event shall Tenant be entitled to receive any excess
of such rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this subsection to a credit in respect of
any rents from a reletting, except to the extent that such rents are actually received by Landlord
(the amount of such Base Rent and Additional Rent that would have been so payable, less such
credit, being hereinafter referred to as the “Deficiency”). If the Premises or any part thereof
should be relet in combination with other space, then proper apportionment on a square foot basis
(for equivalent space) shall be made of the rent received from such reletting and of the expenses
of reletting. If the Premises or any part thereof be relet by Landlord for the unexpired portion
of the Term, or any part thereof, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent reserved upon such reletting shall, prima facie, be the
fair and reasonable rental value for the Premises, or part thereof, so relet during the term of
the reletting; and





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          (b) whether or not Landlord shall have collected any monthly Deficiency as aforesaid, a
sum which at the time of such termination of this Sublease or at the time of any such re-entry by
Landlord, as the case may be, represents the then value of the excess, if any, discounted to
present value at the Prime Rate in effect at that time, of:




               (i) the aggregate of the Base Rent and the Additional Rent payable hereunder which would
have been payable by Tenant (conclusively presuming the Additional Rent to be the same as was
payable for the year immediately preceding such termination) for the period commencing with such
earlier termination of this Sublease or the date of any such re-entry, as the case may be, and
ending with the Expiration Date, had this Sublease not so terminated or had Landlord not so
re-entered the Premises; over



               (ii) the aggregate of the Base Rent and the Additional Rent payable hereunder which would
have been payable by Tenant (conclusively presuming the Additional Rent to be the same as was
payable for the year immediately preceding such termination) for the period commencing with such
earlier termination of this Sublease or the date of any such re-entry, as the case may be, and
ending with the Expiration Date, had this Sublease not so terminated or had Landlord not so
re-entered the Premises,


it being agreed that Landlord may elect the remedy described in subsection (a) above and then elect
the remedy described in subsection (b) above.




     27.02 Suit or suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained herein shall be deemed
to require Landlord to postpone suit until the date when the Term would have expired if it had not
been so terminated under the provisions of Article 25, or under any provision of law, or had
Landlord not re- entered the Premises. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason of any Event of
Default or default hereunder on the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of Landlord to prove for and obtain as liquidated damages by reason of
the termination of this Sublease or re-entry on the Premises after an Event of Default or for the
default by Tenant under this Sublease, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in which, such damages are to
be proved whether or not such amount be greater, equal to, or less than any of the sums referred to
in Section 27.01, provided that under no circumstances shall Tenant be liable under this Section
27.02 for indirect, consequential, special or punitive damages.



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ARTICLE 28

WAIVER




     28.01 Tenant, for Tenant, and on behalf of any and all persons claiming through or under
Tenant, including creditors of all kinds, does hereby waive and surrender all right and privilege
which they or any of them might have under or by reason of any Legal Requirement, to redeem the
Premises or to have a continuance of this Sublease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this Sublease or after
the termination of this Sublease as herein provided.



     28.02 In the event that Tenant is in arrears in payment of Base Rent or Additional Rent
hereunder, Tenant waives Tenant’s right, if any, to designate the items against which any payments
made by Tenant are to be credited, and Tenant agrees that Landlord may apply any payments made by
Tenant to any items of rent then owed to Landlord under this Sublease as Landlord sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited.



     28.03 LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS SUBLEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, THE USE OR OCCUPANCY OF
THE PREMISES, INCLUDING ANY CLAIM OF INJURY OR DAMAGE, OR ANY EMERGENCY OR OTHER STATUTORY REMEDY
WITH RESPECT THERETO. IN THE EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDING OR ACTION FOR
NON-PAYMENT OF RENT, TENANT COVENANTS AND AGREES THAT IT WILL NOT INTERPOSE, BY CONSOLIDATION OF
ACTIONS OR OTHERWISE, ANY COUNTERCLAIM OR OTHER CLAIM SEEKING AFFIRMATIVE RELIEF OF ANY NATURE OR
DESCRIPTION IN ANY SUCH PROCEEDING OR ACTION, EXCEPT A MANDATORY COUNTERCLAIM OR DEFENSE THAT WOULD
BE LOST IF NOT SO INTERPOSED.



     28.04 The provisions of Articles 16, 17 and 18 shall be considered expressed agreements
governing the services to be furnished by Landlord, and Tenant agrees that any Requirements, now or
hereafter in force, shall have no application in connection with any enlargement of Landlord’s
obligations with respect to such services unless Tenant agrees, in writing, to pay to Landlord, as
Additional Rent, Landlord’s reasonable charges for any additional services provided. The foregoing
provisions of this Section shall not affect Landlord’s express obligations under Articles 10 and 15
hereof.



     28.05 In the event the Base Rent or any Additional Rent shall become uncollectible by
virtue of any Legal Requirement, Tenant shall remain liable for the maximum amount of rents that is
lawfully payable, and Tenant shall enter into such agreement or agreements and take such other
action (without additional expense to Tenant) as Landlord may reasonably request (to the extent
legally permissible), to



165









 







permit Landlord to collect the maximum Base Rent and Additional Rent which
may, from time to time during the continuance of such legal rent restriction, be legally
permissible, but not in excess of the amounts of Base Rent or Additional Rent payable under this
Sublease. Upon the termination of such legal rent restriction, (a) the Base Rent and Additional
Rent, after such termination, shall become payable under this Sublease in the amount of the Base
Rent and Additional Rent set forth in this Sublease for the period following such termination and
(b) Tenant shall pay to Landlord, to the extent legally permissible, an amount equal to (i) the
Base Rent and Additional Rent which would have been paid pursuant to this Sublease, but for such
rent restriction, less (ii) the Base Rent and Additional Rent paid by Tenant to Landlord during the
period that such rent restriction was in effect.



ARTICLE 29

NO OTHER WAIVERS OR MODIFICATIONS




     29.01 The failure of either party to insist in any one or more instances upon the strict
performance of any one or more of the obligations of this Sublease, or to exercise any election
herein contained, shall not be construed as a waiver or relinquishment for the future of the
performance of such one or more obligations of this Sublease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with respect to any
subsequent default, act or omission. No agreement hereafter made between Landlord and Tenant shall
be effective to change, modify, waive, release, discharge, terminate or effect an abandonment of
this Sublease, in whole or in part, unless such agreement is in writing, refers expressly to this
Sublease and is signed by the party against whom enforcement of the change, modification, waiver,
release, discharge or termination or effectuation of the abandonment is sought.



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



          (a) no agreement to accept a surrender of all or any part of the Premises shall be valid
unless in writing and signed by Landlord. The delivery of keys to an employee of Landlord or of
its agent shall not operate as a termination of this Sublease or a surrender of the Premises. If
Tenant shall at any time request Landlord to sublet the Premises for Tenant’s account, Landlord or
its agent is authorized to receive said keys for such purposes without releasing Tenant from any
of its obligations under this Sublease, and Tenant hereby releases Landlord from any liability for
loss or damage to any of Tenant’s property in connection with such subletting.




          (b) the receipt by Landlord or Tenant of rent or other sums with knowledge of
non-compliance with this Sublease by the other party shall not be deemed a waiver of such
non-compliance;




          (c) no payment by or receipt by Landlord or Tenant of a lesser amount than the full
amount due hereunder shall be deemed to be other than a payment on account of the earliest amount
due, nor shall any endorsement or



166









 






statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Landlord or Tenant may accept such check or
payment without prejudice to Landlord’s or Tenant’s respective right to recover the balance owing
and pursue any other remedy in this Sublease or at law provided.




ARTICLE 30

CURING TENANT’S DEFAULTS, ADDITIONAL RENT




     30.01 (a) If Tenant shall default in the performance of any of Tenant’s obligations
under this Sublease, Landlord, without thereby waiving such default, may (but shall not be
obligated to) perform such obligation or otherwise cure such default for the account and at the
expense of Tenant, without (in a case of emergency, in the case
where the Term has ended or in the case of any of the events described in Section 25.01
hereof) any requirement to give Tenant notice of Landlord’s intention to perform such obligation or
otherwise cure such default or to give Tenant an opportunity to cure such default, and in any other
case, only if Landlord gives Tenant notice of such default and such default continues after the
expiration of the later of (i) three (3) Business Days after the date Landlord gives Tenant such,
and (ii) the applicable grace period provided in Section 25.02 or elsewhere in this Sublease for
cure of such default.



          (b) If Tenant shall fail to pay in full any Base Rent or Additional Rent within ten (10)
days after the date it is due under this Sublease, then (i) Tenant shall pay to Landlord as
Additional Rent, upon Landlord’s demand therefor, a late charge equal to three (3%) percent of the
amount of the payment that is not paid when so first due (provided, however, if Tenant shall fail
to pay in full any Base Rent or Additional Rent within such ten (10) day period only once or twice
within any twelve (12) month period, said late charge shall not be payable with respect to such
late payments, and if Tenant shall fail to pay in full any Base Rent or Additional Rent within
such ten (10) day period more than twice within any twelve (12) month period, said late charge
shall not be payable with respect to the first two of such late payments within such twelve (12)
month period, but shall be payable with respect to all other such late payments within such twelve
(12) month period), and (ii) in addition to such late charge, Tenant shall pay to Landlord as
Additional Rent, upon Landlord’s demand therefor, interest on the amount of the payment that is
not paid when so first due at a rate per annum equal to the lesser of (A) two (2%) percent over
the Prime Rate, and (B) the maximum rate of interest that then may be charged to parties of the
same legal capacity as Tenant, which interest shall accrue and shall be computed from and after
the date on which any such payment was first due under this Sublease. Nothing herein contained
shall be intended to violate any applicable Requirement and in all instances all such late charges
and rates of interest shall be automatically reduced to any maximum applicable legal charge or
rate. The provisions of this Section are in addition to all other rights and remedies available
to Landlord for nonpayment of Base Rent or Additional Rent.




     30.02 Bills for any expenses incurred by Landlord in connection with any such performance
described in Section 30.01 above by Landlord for the account of Tenant,



167









 







and bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including reasonable counsel fees,
involved in collecting or endeavoring to collect the Base Rent or Additional Rent or any part
thereof (in the case where Tenant is in default of such obligation) or (in the case where Tenant is
in default of any of its obligations under this Sublease) enforcing or endeavoring to enforce any
rights against Tenant, under or in connection with this Sublease, or pursuant to law, including any
such cost, expense and disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished, or rendered, by
Landlord or at its instance to Tenant, may be sent by Landlord to Tenant monthly, or immediately,
at Landlord’s option, and, shall be due and payable by Tenant in accordance with the terms of such
bills, but in no event earlier than fifteen (15) Business Days after Landlord gives such bills to
Tenant.



ARTICLE 31

BROKER




     31.01 Tenant covenants, warrants and represents that it had no conversations or other
communications with any broker, finder or consultant, except Peter G. Riguardi as President of, and
Ken Siegel as Managing Director of, Jones Lang LaSalle — New York Region, representing Tenant, and
Lloyd Destanick, as Senior Vice President of Jones Lang LaSalle — New York Region, representing
Landlord (Jones Lang LaSalle — New York Region being herein referred to as the “Broker”), in
connection with the leasing of the Premises from Landlord and that, to Tenant’s knowledge, except
for the Broker, there were no brokers, finders or consultants instrumental in consummating this
Sublease.



     31.02 Landlord warrants and represents that it had no conversations or other
communications with any broker, finder or consultant (except the Broker) in connection with the
leasing of the Premises to Tenant and that, to Landlord’s best knowledge, except for the Broker,
there were no brokers, finders or consultants instrumental in consummating this Sublease, but that
Cushman & Wakefield, Inc. (“C&W” ), in its capacity as Landlord’s managing agent and/or leasing
agent for the Building, may be entitled to a commission or other fee pursuant to its Agreement for
Brokerage Services with Landlord.



     31.03 Landlord agrees to pay Broker any brokerage commission due to the Broker in respect
of this Sublease, pursuant to a separate agreement between Landlord and Broker, except that
pursuant to a separate agreement between Tenant and Broker, Tenant shall pay to Broker, in addition
to the amounts payable by Landlord to Broker, a commission in the amount of $[***] in respect of
this Sublease, and if Tenant fails to pay all or any portion of said $[***] to Broker, Landlord
may, but shall not be obligated to, pay all or any portion of the unpaid portion thereof to Broker
on Tenant’s behalf, and deduct the amount so paid by Landlord to Broker from the Tenant Allowance.
In





 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




168









 









addition, Landlord agrees to pay C&W any commission or other fee due C&W pursuant to its
Agreement for Brokerage Services with Landlord.




     31.04 Independent of the Agreement for Brokerage Services between Landlord and C&W, Tenant
has advised Landlord that C&W has made a demand on Tenant for the payment of a brokerage
commission or other remuneration from Tenant on account of this Sublease and Tenant has rejected
such demand. Tenant hereby waives and releases Landlord from, and shall not seek from Landlord,
any of Landlord’s Affiliates or Broker, by contribution, indemnification, direct or indirect claim,
cross-claim, counterclaim, or otherwise, any and all costs, expenses, commissions, fees, other
compensation or damages paid, payable or incurred by Tenant (including all legal, litigation and
courts costs, expenses and disbursements incurred, paid or payable by Tenant or for which Tenant is
liable) as a result of any and all claims, actions or proceedings either made or brought by C&W against Tenant or any of Tenant’s Affiliates. In
the event that C&W makes a claim or initiates litigation against Tenant and/or Landlord, each of
Tenant and Landlord shall be responsible for their own legal fees. In addition, Tenant shall
indemnify and hold harmless Landlord from and against all costs, expenses and damages paid or
incurred by Landlord (including all legal, litigation and courts costs, expenses and disbursements
incurred or paid by Landlord or for which Landlord is liable) as a result of any and all claims,
actions or proceedings either made or brought by any brokers, finders or consultants (other than
C&W, pursuant to this Section 31.04, and the Broker, except for the $[***] commission described in
Section 31.03 above) who claim to have dealt with Tenant or any person (other than C&W) claiming to
have been retained by Tenant to locate space in the New York City for lease or other occupancy by
Tenant or any other person, regardless of whether such person was actually retained by Tenant or
whether such person was in any way involved with this Sublease or the leasing of space in the
Building), or arising out of negotiations, conversations or other communications had by Tenant with
such other brokers, finders or consultants or arising out of such other brokers, finders or
consultants having shown the Premises to the Tenant. In the event that any lien is filed by C&W
and Tenant is disputing the underlying claim made by C&W, Tenant shall have no obligation to remove
such lien by bonding or otherwise, provided that (x) Tenant keeps Landlord advised of the status of
such dispute and the basis therefor, (y) Tenant has the lien removed of record promptly after the
date that the dispute is settled, and (z) such lien is not required to be removed under or by the
Existing Superior Lease, any other superior lease, any superior mortgage, any other agreement by
which Landlord is bound, and the failure to remove such lien would not otherwise adversely affect
Landlord, the lessor under the Existing Superior Lease or any other superior lease, the Building or
Landlord’s or such lessor’s interest therein; it being understood and agreed that if the Existing
Lessor requires such lien to be removed, Tenant shall remove same of record within twenty-five (25)
days after Landlord’s or Existing Lessor’s request for such removal.






 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




169









 










     31.05 With respect to the demand described in the first sentence of Section 31.04 above,
Landlord hereby waives and releases Tenant from, and shall not seek from Tenant or any of Tenant’s
Affiliates, by contribution, indemnification, direct or indirect claim, cross-claim, counterclaim,
or otherwise, any and all costs, expenses, commissions, fees, other compensation or damages paid,
payable or incurred by Landlord (including all legal, litigation and courts costs, expenses and
disbursements incurred, paid or payable by Landlord or for which Landlord is liable) as a result of
any and all claims, actions or proceedings either made or brought by C&W against Landlord or any of
Landlord’s Affiliates. In addition, Landlord shall indemnify and hold harmless Tenant from and
against all costs, expenses and damages paid or incurred by Tenant (including all legal, litigation
and courts costs, expenses and disbursements incurred or paid by Tenant or for which Tenant is
liable) as a result of any and all claims, actions or proceedings either made or brought by any
brokers, finders or consultants) other than
the Broker and C&W, who claim to have dealt with Landlord in connection with the leasing of
space in the Building to Tenant, or arising out of negotiations, conversations or other
communications had by Landlord with such other brokers, finders or consultants in connection with
the leasing of space in the Building to Tenant. Notwithstanding anything contained in this
Sublease to the contrary, the indemnification and hold harmless contained in this Section 31.05
shall not apply to claims made by Broker in connection with Tenant’s failure to pay the $[***]
commission described in Section 31.03 above or to any claims made by C&W (other than a claim made
by C&W in connection with Landlord’s failure to pay C&W any commission or other fee due C&W
pursuant to its Agreement for Brokerage Services with Landlord).



ARTICLE 32

NOTICES




     32.01 Except as otherwise expressly permitted in this Sublease, all notices, demands,
approvals, consents, requests and other communications (collectively, “Notices”) which under the
terms of this Sublease, or under or pursuant to any Requirement, must or may be given or made by
the parties hereto, must be in writing (unless expressly stated to the contrary elsewhere in this
Sublease), and must be given or made either by sending the Notice by (i) hand delivery, (ii)
registered or certified mail of the United States of America, return receipt requested, or (iii) a
reputable nationally-recognized overnight commercial courier service (“next business day delivery”)
which provides for delivery with receipt guaranteed, in either case addressed to each party as
follows:



	 	 	 

	If to Landlord:

	 	MetLife Lease Administration
	 

	 	C/o Jones Lang LaSalle Americas, Inc.
	 

	 	501 Grant Street, Suite 925
	 

	 	Pittsburgh, PA 15259
	 

	 	Attn: Facilities Lease Administration








 




			
	[***] 	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




170









 










	 	 	 

	with copies to:

	 	Metropolitan Life Insurance Company
	 

	 	9797 Springboro Pike
	 

	 	Dayton, OH 45448
	 

	 	Attn: VP, Corporate Real Estate
	 
	 	 
	 

	 	Metropolitan Life Insurance Company
	 

	 	1 MetLife Plaza
	 

	 	27-01 Queens Plaza North
	 

	 	Long Island City, NY 11101
	 

	 	Attn: Chief Counsel, General Corporate Law





with copies (excluding attachments consisting of construction drawings, bid documents, change
orders, technical specifications, floor layouts, architectural or engineering documents, and the
like) to:




	 	 	 

	 

	 	Greenberg Traurig, LLP
	 

	 	200 Park Avenue
	 

	 	New York, New York 10166
	 

	 	Attention: Daniel Ansell, Esq. and Keith E. Reich, Esq.
	 
	 	 
	and if to Tenant:

	 	JetBlue Airways Corporation
	 

	 	118-29 Queens Boulevard
	 

	 	Forest Hills, New York 11375
	 

	 	Attn: Chief Financial Officer
	 
	 	 
	 

	 	JetBlue Airways Corporation
	 

	 	118-29 Queens Boulevard
	 

	 	Forest Hills, New York 11375
	 

	 	Attn: Vice President of Corporate Real Estate Facilities
	 

	 	Facsimile: 718 709 3602
	 
	 	 
	 

	 	JetBlue Airways Corporation
	 

	 	118-29 Queens Boulevard
	 

	 	Forest Hills, New York 11375
	 

	 	Attn: General Counsel
	 

	 	Facsimile: 718 709 3631
	 
	 	 
	And if a notice of default,
a copy to:

	 	Holland & Knight LLP
31 West 52nd Street
	 

	 	New York, New York 10019
	 

	 	Attn: Martin P. Miner, Esq.
	 

	 	Facsimile: 212 385 9010
	 

	 	Email Address: Martin.Miner@hklaw.com






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     32.02 (a) All Notices shall be deemed to have been made or given (i) if delivered by
hand as provided for in this Article, on the date receipt thereof is acknowledged by the party to
whom the Notice is being given (including an employee or agent of such party or the date on which
delivery is refused), (ii) if mailed as provided for in this Article, on the date which is three
(3) Business Days after mailing or (iii) if sent by commercial courier as provided for in this
Article, on the date which is one (1) Business Day after the date the same was accepted by the
commercial courier for delivery. Either party may designate by a Notice given in the manner herein
specified a new or other address to which Notices shall thereafter be so given or made.



              (b) Notwithstanding the foregoing, all Base Rent and Additional Rent statements, bills and
invoices may be given by hand-delivery, facsimile machine or by
e-mail, in all cases to the attention of JetBlue Airways, Account Payable, 6322 South, 3000
East, Suite G10, Salt Lake City, UT 84121, Facsimile 801-365-2589, Email Address
nonpo-payables@jetblue.com, provided that each such statement, bill or invoice is followed within
one (1) Business Day thereafter by notice given in accordance with clauses (ii) or (iii) above.
Tenant hereby acknowledges that no statement, bill or invoice shall be required for the payment of
Base Rent or for the payment of Recurring Additional Rent (after, with respect to Recurring
Additional Rent, the first notice that identifies the item of Additional Rent as “Recurring
Additional Rent” or otherwise identifies the item of Additional Rent as being payable in the same
amount on a regular basis (e.g., monthly) for a period of at least twelve (12) months), regardless
of whether Tenant is given, or had ever been given, a statement, bill or invoice for Base Rent or
Recurring Additional Rent.



              (c) Notwithstanding the foregoing, all emergency repair notices may be given by
hand-delivery, facsimile machine or by e-mail (provided that e-mail shall only be additive and not
primary), in all cases for after hour emergencies, to the attention of the JetBlue 24 hour building
control desk, Facsimile 347-545-5137, e-mail address: BlueBCS@jetblue.com, telephone numbers
347-545-3700 or 646-669-2935 and to Support Center Facilities Management, e-mail address:
bluefacsupportcenters@jetblue.com, and emergency repair notices given during business hours shall
be given to the Facilities Manager, e-mail address: bluefacsupportcenters@jetblue.com and to the
Facilities Director, e-mail address: BlueBCS@jetblue.com, telephone numbers 347-545-3700 or
646-669-2935, provided that such notice of an emergency repair is followed within one (1) Business
Day thereafter by notice given in accordance with clauses (ii) or (iii) above, and shall be deemed
given upon receipt.



              (d) Notwithstanding the foregoing, any notice that this Sublease permits to be given
orally shall be given to the Facilities Manager and to the Facilities Director, provided that such
oral notice is followed within one (1) Business Day thereafter by notice given in accordance with
clauses (i) or (ii) above.



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ARTICLE 33

ESTOPPEL CERTIFICATE




     33.01 Within ten (10) Business Days after either party’s request, the other party shall
execute and deliver to the requesting party a statement (i) certifying that this Sublease is
unmodified and in full force and effect (or, if there have been modifications, that the same is in
full force and effect as modified and stating the modifications) and whether any options granted to
Tenant pursuant to the provisions of this Sublease have been exercised, (ii) setting forth and
certifying the Commencement Date, the Expiration Date and the Base Rent, (iii) certifying the dates
to which the Base Rent and Additional Rent have been paid and the amounts thereof, (iv) stating
whether or not, to the knowledge of the signer, the other party is in default in the performance of
any of its obligations under this Sublease, and if so, specifying each such default of which the
signer may have knowledge, (v) stating, to the best of the party’s knowledge, whether Tenant has
any rights to offsets or abatement of rent, (vi) stating whether Tenant has
prepaid any rent for more than one month in advance, and (vii) certifying, to the best of the
party’s knowledge, such other information as the requesting party reasonably requests, it being
intended that any such statement delivered pursuant hereto may be relied upon by others with whom
the party requesting such certificate may be dealing and their respective successors and/or
assigns, but that such reliance shall be limited to the party giving such statement being estopped
from contradicting any of the statements made therein.



ARTICLE 34

ARBITRATION




     34.01 (a) No dispute relating to this Sublease or the relationship of Landlord and
Tenant under this Sublease shall be resolved by arbitration unless this Sublease expressly provides
for such dispute to be resolved by arbitration. If a dispute arises out of (i) any or all matters
relating to or arising out of construction, plans and options, as provided by Sections 1.11, 3.02,
4.02, 4.03, 5.10, 11.06, 12.01, 14.02, 14.03, 14.05, 16.05, 16.06, 18.09, Article 23, 40.01(c),
42.01, 42.02, 42.03, 42.04, 44.06, 47.01, 47.04, 48.01, 48.02, 48.03, 48.04, 48.07, 49.03, and
49.04 herein (“Technical Disputes”), or (ii) Tenant’s request to assign or sublet the
Premises pursuant to Sections 9.05, 9.10 and 23.07 herein (“A/S Disputes”), or (iii)
billing and computational disputes relating to or arising out of such matters as set forth in
Sections 1.05, 9.05, 9.10 and 23.07 (“Billing Disputes” and, generally with Technical
Disputes and A/S Disputes, “Disputes”), such Dispute will be resolved in accordance with
this Section 34.01:



          (b) Attached as Exhibit R is a list of approved arbitrators as agreed to by Landlord and
Tenant (each an “Approved Arbitrator”). The parties have classified the Approved
Arbitrators by subject matter (Technical Disputes, A/S Disputes or Billing Disputes), and each
Approved Arbitrator so classified shall only hear Disputes arising from such subject matter.
Arbitration under this Section 34.01 shall be before a single Approved Arbitrator in New York, New
York, and shall be conducted in accordance




173









 







with the then prevailing Construction Industry
Arbitration Rules of the American Arbitration Association (or any organization successor thereto)
in New York, New York (the “AAA”) for Technical Disputes and the AAA Commercial
Arbitration Rules for A/S Disputes and Billing Disputes, and, for all Disputes, the laws of the
State of New York. The arbitration shall not be administered by the AAA.




          (c) Either Landlord or Tenant may, by notice to the other, require that a Dispute be
presented for resolution to the first available Approved Arbitrator set forth on Exhibit R. In
the event the first named Approved Arbitrator listed on the Exhibit is not available or is
unwilling to serve, the Approved Arbitrator next set forth on the list shall be engaged, and so
on, until arriving at an available Approved Arbitrator (once selected, generally, the
“Arbitrator”).




          (d) The Decision of the Arbitrator (the “Decision”) shall be in writing and be
final and conclusive on the parties and counterpart copies thereof shall be delivered to each of
the parties. The Arbitrator may, in the Arbitrator’s discretion, grant
the parties the right to conduct discovery to the extent determined by the Arbitrator.
Landlord or Tenant may enter judgment on the Decision in any court of competent jurisdiction. The
parties shall comply with the Decision without delay.




          (e) Landlord and Tenant shall sign all documents and do all other things necessary to
submit any such matter to such arbitration and further shall, and hereby do, waive any and all
rights they or either of them may at any time have to revoke their agreement hereunder to submit
to such arbitration and to abide by the Decision rendered thereunder. This arbitration procedure
shall be the exclusive remedy under this Sublease as to the Disputes specifically listed in the
first paragraph of this Section 34.01, and neither Landlord nor Tenant shall have any right to
seek any injunctive or other mandatory relief from any court in connection therewith, other than
to confirm or enforce any award made hereunder.




          (f) The expenses of arbitration shall be shared equally by Landlord and Tenant but each
party shall be responsible for the out-of-pocket fees and disbursements of its own attorneys and
the expenses of its own proof.




          (g) Approved Arbitrators may resign at any time or be replaced by agreement between
Landlord and Tenant; provided, however, that once an arbitration has commenced, a selected
Arbitrator may not be replaced or disqualified by Landlord or Tenant unless a previously
undisclosed conflict is identified which, in either party’s reasonable judgment, interferes with
such Arbitrator’s neutrality as to either party. If at any time any of the Approved Arbitrators
retires, is disqualified by Landlord or Tenant for a legitimate reason reasonably determined by
Landlord or Tenant, resigns, or is selected to be replaced, Landlord and Tenant shall agree on a
replacement Approved Arbitrator within five (5) Business Days after notice thereof. If Landlord
and Tenant fail to so agree, either may apply to the AAA to appoint a replacement Approved
Arbitrator. All newly chosen Approved Arbitrators shall be placed at the bottom most position of
the applicable subject matter classification on the Exhibit R list.





174









 








          (h) If at any time there are two (2) or fewer Approved Arbitrators in a certain subject
matter classification, the parties shall endeavor to add at least two (2) new Approved Arbitrators
to such subject matter classification. If such cannot be accomplished in thirty (30) days, then
either party may apply to the AAA for the appointment of such additional Approved Arbitrators.




          (i) Landlord and Tenant shall hold harmless the Approved Arbitrators for any damages,
including reasonable attorneys’ fees, resulting from any Dispute submitted to arbitration pursuant
to the provisions hereof.




          (j) In rendering a determination, the Arbitrator shall not add to or subtract from or
otherwise modify the provisions of this Section or this Sublease.




     34.02 The rules and procedures set forth in the foregoing Section 34.01 shall apply only
to Disputes relating to or arising out of those sections of this Sublease specifically listed in
the first paragraph of said Section 34.01.



ARTICLE 35

NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW, CONSENTS




     35.01 Tenant expressly acknowledges and agrees that Landlord has not made and is not
making, and Tenant, in executing and delivering this Sublease, is not relying upon, any warranties,
representations, promises or statements, except to the extent that the same are expressly set forth
in this Sublease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this Sublease and shall expressly refer to this
Sublease. This Sublease and said other written agreement(s) made concurrently herewith are
hereinafter referred to as the “lease documents.” It is understood and agreed that all
understandings and agreements heretofore had between the parties are merged in the lease documents,
which alone fully and completely express their agreements and that the same are entered into after
full investigation, neither party relying upon any statement or representation not embodied in the
lease documents, made by the other.



     35.02 If any of the provisions of this Sublease, or the application thereof to any person
or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this
Sublease, or the application of such provision or 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
every provision of this Sublease shall be valid and enforceable to the fullest extent permitted by
law.



     35.03 This Sublease shall be governed in all respects by the laws of the State of New York
applicable to agreements made and wholly executed therein without reference to conflicts of laws
principles.



     35.04 If Tenant shall request Landlord’s consent or approval pursuant to any of the
provisions of this Sublease or otherwise, and Landlord shall fail or refuse to give, or



175









 




shall delay
in giving, such consent or approval, Tenant shall in no event make, or be entitled to make, any
claim for damages (nor shall Tenant assert, or be entitled to assert, any such claim by way of
defense, set-off, or counterclaim) based upon any claim or assertion by Tenant that Landlord
unreasonably withheld or delayed its consent or approval, and Tenant hereby waives any and all
rights that it may have, from whatever source derived, to make or assert any such claim. Tenant’s
sole remedy for any such failure, refusal, or delay shall be an action for a declaratory judgment,
specific performance, or injunction, and such remedies shall be available only in those instances
where Landlord has expressly agreed in writing not to unreasonably withhold or delay its consent or
approval or where, as a matter of law, Landlord may not unreasonably withhold or delay the same.
In addition, whenever in this Sublease Landlord is required to be reasonable in the granting of any
consent or approval or otherwise, Landlord shall be deemed to have been reasonable in the refusal
to give its consent or approval or otherwise if: (a) Landlord is not permitted to do so under the
terms of any superior lease or superior mortgage or (b) the consent or approval of any superior
lessor or holder of superior mortgagee is required and has been denied or not given.




     35.05 Submission by Landlord of this Sublease to Tenant shall confer no rights nor impose
any obligations on either party unless and until both Landlord and Tenant shall have executed this
Sublease and duplicate originals thereof shall have been delivered to the respective parties.



     35.06 If there shall be more than one person named as Tenant herein, then all such persons
shall be deemed to be joint tenants in the leasehold estate demised hereby, with joint and several
liability hereunder.



     35.07 Without the other party’s prior written consent, neither party may record this
Sublease or a memorandum hereof.



ARTICLE 36

PARTIES BOUND




     36.01 The obligations of this Sublease shall bind and benefit the successors and assigns
of the parties with the same effect as if mentioned in each instance where a party is named or
referred to, except that no violation of the provisions of Article 9 shall operate to vest any
rights in any successor or assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.



     36.02 WITH RESPECT TO THE SATISFACTION OF THE REMEDIES OF TENANT, ALL OTHER TENANT PARTIES
AND ALL OTHER PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, FOR THE COLLECTION OF A JUDGMENT, AWARD
OR DAMAGES (OR OTHER JUDICIAL OR ADMINISTRATIVE PROCESS OR ARBITRATION PROCEEDING) AGAINST LANDLORD
IN THE EVENT OF EITHER ANY DEFAULT BY LANDLORD UNDER THIS SUBLEASE, ANY AGREEMENT THAT FURTHER
SUBLEASES THE PREMISES OR ANY PORTION THEREOF, OR OTHERWISE IN RESPECT OF, OR APPURTENANT TO, THIS



176









 




SUBLEASE, THE PREMISES (OR ANY PORTION THEREOF) OR THE REAL PROPERTY, LANDLORD’S AGGREGATE
LIABILITY FOR ANY AND ALL CLAIMS, ACTIONS AND JUDGMENTS SHALL NOT EXCEED $[***]. NO PARTNER,
MEMBER, OFFICER OR DIRECTOR OF LANDLORD, DISCLOSED OR UNDISCLOSED, SHALL BE SUBJECT TO LEVY,
EXECUTION OR OTHER ENFORCEMENT PROCEDURE FOR THE SATISFACTION OF TENANT’S REMEDIES UNDER OR WITH
RESPECT TO THIS SUBLEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, OR THE USE AND
OCCUPANCY OF THE PREMISES BY TENANT OR BY ANY TENANT PARTY OR OTHERWISE IN RESPECT OF, OR
APPURTENANT TO, THIS SUBLEASE, THE PREMISES (OR ANY PORTION THEREOF) OR THE REAL PROPERTY.
LANDLORD SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OF BUSINESS OR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES UNDER OR WITH RESPECT TO THIS SUBLEASE, THE RELATIONSHIP OF LANDLORD
AND
TENANT HEREUNDER, OR THE USE AND OCCUPANCY OF THE PREMISES (OR ANY PORTION THEREOF) BY TENANT
OR BY ANY TENANT PARTY OR OTHERWISE IN RESPECT OF, OR APPURTENANT TO, THIS SUBLEASE, THE PREMISES
OR THE REAL PROPERTY.




ARTICLE 37

CERTAIN DEFINITIONS AND CONSTRUCTION




     37.01 For the purposes of this Sublease and all agreements supplemental to this Sublease,
unless otherwise stated herein the capitalized terms used herein shall have the meanings set forth
in Exhibit H annexed hereto or as otherwise defined in this Sublease.



     37.02 The various terms which are in quotation marks, bolded or underlined and defined in
other Articles of this Sublease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and such Exhibits for all purposes of this Sublease and all
agreements supplemental thereto.



     37.03 The captions and headings in this Sublease are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of this Sublease or
the intent of any provision hereof.



ARTICLE 38

ADJACENT EXCAVATION AND CONSTRUCTION; SHORING; VAULTS




     38.01 If an excavation or other substructure work shall be made upon land adjacent to the
Premises, or shall be authorized to be made, Tenant shall 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 shall be necessary to preserve the wall





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




177









 









of or the Building from injury or damage and
to support the same by proper foundations without any claim for damages or indemnity against
Landlord, or diminution or abatement of rent, provided, however, Landlord shall minimize any
disruption to the conduct of Tenant’s business in the Premises.




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



ARTICLE 39

JETBLUE COMPETITOR RESTRICTIONS




     39.01 For the purposes of this Article, “Noncompete Requirements” mean that (i) this
Sublease is then in full force and effect, (ii) the Named Tenant or another JetBlue Tenant is the
Tenant under this Sublease, and (iii) the premises demised under this Sublease consists of not less
than 92,640 RSF of the Building above the ground floor, and the Named Tenant or another JetBlue
Tenant is using and occupying not less than 92,640 RSF of the Building above the ground floor, in
accordance with, and subject to, the applicable provisions of this Sublease. For the purposes of
satisfying the Noncompete Requirements, the premises demised under this Sublease shall not include
any portion of the Storage Space.



     39.02 Provided that the Noncompete Requirements are satisfied, then, subject to the rights
of tenants in the Building (other than Landlord) under leases, subleases and other occupancy
agreements in existence as of the Effective Date, and the renewals and extensions of the terms
thereof, Landlord will not enter into a sublease, license agreement or other occupancy agreement
(or consent to an assignment, sub-sublease, license or sublicense of a subtenant’s sublease, to the
extent that Landlord may withhold such consent under the sublease or other agreement in question
and under applicable Legal Requirements) with a “Tenant Competitor Entity” or grant any signage
rights in or on the Building (other than on the Building’s directory) to a Tenant Competitor
Entity. For purposes of this Article 39, a “Tenant Competitor Entity” shall mean, as of the
effective date of the sublease, license agreement or other occupancy agreement, any of the ten (10)
airlines identified by the names, or commonly referred to as, AirTran, American, Delta, Southwest,
Spirit, US Airways, Continental, Virgin Group, Republic Holdings or United, or any Affiliate of the
foregoing ten (10) airlines which is an



178









 




airline or shares the name (or a derivative of the name) of
any of said airlines. Tenant may replace any of the foregoing named Tenant Competitor Entitles
with another airline upon notice to Landlord (which notice shall not be given more frequently than
two (2) times in any 12-month period, except that if Landlord is already in negotiations with such
replacement entity at the time of such notice, Landlord shall have one hundred thirty-five (135)
days from receipt of such notice to execute such sublease (or to consent to an assignment,
sub-sublease, license or sublicense to such entity) with such entity, before such replacement
entity would be deemed a Tenant Competitor Entity).




     39.03 The restrictions set forth in Section 39.02 above shall not apply during any time
that any of the Noncompete Requirements are not satisfied, so that during such time that any of the
Noncompete Requirements are not satisfied, Landlord and/or any other tenant of the Building shall
be permitted to sublease, license agreement or other occupancy agreement to a Tenant Competitor
Entity, and if after such sublease, license agreement or other occupancy agreement, all of the
Noncompete Requirements are once again are satisfied, such prior sublease, license agreement or
other occupancy agreement may commence or continue, as the case may be, shall not be a default by
Landlord under this Sublease, shall not affect any of Tenant’s obligations or liabilities, and
shall not impose upon Landlord any obligation or liability whatsoever, and Tenant
shall have no right to enforce the provisions of Section 39.02 above with respect to such
prior sublease, license agreement or other occupancy agreement.



ARTICLE 40

RENEWAL OPTION




     40.01 (a) Tenant shall have the option (the “Renewal Option”) to renew the initial
Term (but not the Renewal Term) for the Renewal Premises (as hereinafter defined), subject to the
terms below, for one renewal term of five (5) years (the “Renewal Term”) commencing on the day
after the expiration of the initial Term (the “Renewal Term Commencement Date”) and ending on the
date (the “Renewal Term Expiration Date”) immediately preceding the fifth (5th)
anniversary of the Renewal Term Commencement Date or on such earlier date upon which the Renewal
Term may expire or be cancelled or terminated pursuant to any of the conditions or covenants of
this Sublease or pursuant to any Legal Requirement. Tenant shall have, and may exercise, the
Renewal Option, and the Renewal Term shall commence, only if (i) Tenant notifies Landlord (the
“Exercise Notice”) of Tenant’s exercise of the Renewal Option not later than July 31, 2021, (ii)
this Sublease shall be in full force and effect on the date that Tenant exercises the Renewal
Option, (iii) at the time of the exercise of the Renewal Option no Event of Default based on a
monetary default or a material non-monetary default shall have occurred and be continuing
hereunder, (iv) the Named Tenant, its “Affiliates” (as such term is defined in the Existing
Superior Lease) or its successor by merger, consolidation or sale of assets, on the date Tenant
exercises the Renewal Option and on the Renewal Term Commencement Date, occupies two or more full
Base Floors, or the equivalent RSF of space in the Building above the ground floor thereof,
excluding the Storage Space (but, in either case, this requirement shall be deemed met if the
occupancy is less by not more than 25,000 RSF), (v) on the date that Tenant



179









 




exercises the Renewal
Option, no portion of the Building is subject to a sublease or other occupancy agreement pursuant
to which any portion of the Renewal Premises will be sublet or otherwise occupied by a third-party
(other than to [JetBlue Tenants], Affiliated Persons and/or pursuant to Sections 2.12(b) and/or
9.19 hereof) during any portion of the Renewal Term, and [(vi) all of the conditions set forth in
the Third Amendment of the Existing Superior Lease with respect to the renewal of the term thereof
are satisfied. TIME IS OF THE ESSENCE with respect to the giving of the Exercise Notice. The
Renewal Term shall be upon all of the agreements, terms, covenants and conditions of this Sublease,
except that (v) Tenant shall have no further right to renew the Term, (w) there shall be no [***],
(x) there shall be no Tenant Allowance, (y) Tenant shall accept the Renewal Premises in its As
Is-Where Is condition, except that for any portion of the Renewal Premises that is not a part of
the Premises on the last day of the initial Term, such portion(s) of the Renewal Premises shall
also be delivered to Tenant on the Renewal Term Commencement Date vacant, free of tenancies and in
broom clean condition, and (z) the Base Rent and Additional Rent, on a per RSF basis, payable for
the Renewal Premises for the Renewal Term will
[***]. Landlord shall permit Tenant to participate in any rent and any other negotiation with
the Existing Lessor or its representatives under the Existing Superior Lease which relates to the
Renewal Term. If the Renewal Premises constitutes a majority of the RSF being renewed pursuant to
the Existing Superior Lease, then Landlord shall not agree to the “Base Rent” and “Additional Rent”
payable under the Existing Superior Lease for the Renewal Term that are subject to dispute or the
agreement of the parties pursuant to the Existing Superior Lease without Tenant’s prior written
approval and if Tenant does not approve the proposed “Base Rent” and “Additional Rent” payable
under the Existing Superior Lease for the Renewal Term, Landlord shall arbitrate same, with
Tenant’s participation, in accordance with, and subject to, the applicable provisions of the
Existing Superior Lease. Also if the Renewal Premises constitutes a majority of the RSF being
renewed pursuant to the Existing Superior Lease, Landlord shall not reach any settlement of the
matters being arbitrated without Tenant’s prior written approval, it being understood and agreed
that with respect to any matters that Landlord, as the tenant under the Existing Superior Lease, is
not permitted to dispute (including the determination by the arbitrator(s) of the “Base Rent” and
“Additional Rent” payable under the Existing Superior Lease), Tenant shall have no right of
approval and no right to dispute.




          (b) Provided Tenant gives to Landlord and the Existing Lessor notice (the “Amenities
Request Notice” ) between September 1, 2020 and December 31, 2020, both dates inclusive and TIME
BEING OF THE ESSENCE, which contains substantially the following statement in bold and CAPITAL
letters:


in the Amenities Request Notice to Landlord:






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






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“NO LATER THAN MAY 30, 2021, PLEASE ADVISE TENANT PURSUANT TO SECTION 40.01 OF THE SUBLEASE AS TO
WHETHER OR NOT YOU INTEND TO CONTINUE TO OPERATE THE CAFETERIA, THE FITNESS CENTER AND/OR THE
CONFERENCE CENTER DURING THE RENEWAL TERM,”



in the Amenities Request Notice to the Existing Lessor, a copy of which shall contemporaneously be
given to Landlord:



“NO LATER THAN THE DATE WHICH IS 120 DAYS AFTER THE GIVING OF THIS AMENITIES REQUEST NOTICE, PLEASE
ADVISE SUBTENANT PURSUANT TO SECTION ___ OF THE THIRD AMENDMENT OF LEASE BETWEEN BRAUSE PLAZA NORTH
LLC, AS LANDLORD, AND METROPOLITAN LIFE INSURANCE COMPANY, AS TENANT, AS TO WHETHER OR NOT YOU
INTEND TO OPERATE THE CAFETERIA, THE FITNESS CENTER AND/OR THE CONFERENCE CENTER DURING THE RENEWAL
TERM OF THE SUBLEASE BETWEEN METROPOLITAN LIFE INSURANCE COMPANY AND JETBLUE AIRWAYS CORPORATION,”



Landlord shall, no later than May 30, 2021, TIME BEING OF THE ESSENCE, notify Tenant as to whether
Landlord intends to continue to operate the Cafeteria, the Fitness Center and/or the Conference
Space as a conference center during the Renewal Term. Landlord’s failure to so respond to the
Amenities Request Notice by May 30, 2021 shall be deemed Landlord’s notification to Tenant that
Landlord does not intend to continue to operate any of such Building Amenities during the Renewal
Term. If Landlord notifies (or is deemed to have notified) Tenant that Landlord does not intend to
continue to operate one (1) or more of such Building Amenities during the Renewal Term, and
Existing Lessor notifies (or, pursuant to the Third Amendment of the Existing Superior Lease, is
deemed to have notified) Tenant that Existing Lessor does not intend to operate during the Renewal
Term one (1) or more of the same Building Amenities that Landlord does not intend to continue to
operate, then, in the Exercise Notice, Tenant may include in the Renewal Premises any such spaces
or, in the case of the Cafeteria Space, a portion of such space, that Landlord and Existing Lessor
do not intend to continue to operate, or operate, as the case may be, as a Building Amenity,
provided that, with respect to the Cafeteria, such space shall include the kitchen and server and
all or a portion of the then existing seating area, and with respect to the Fitness Center and the
Conference Center, such space must be the entire FC Space and the entire CC Space, respectively.




          (c) (i) For the purposes of this Article, “Renewal Premises” mean, subject to Tenant
satisfying the conditions and other requirements of this subsection (c) and subsection (b) above,
the entire Premises demised to Tenant under this Sublease on the date that Tenant exercises the
Renewal Option, except that if the entire Premises demised to Tenant under this Sublease on the
date that Tenant exercises the Renewal Option consists of less than 278,544 RSF of space in the
Building above the ground floor thereof (i.e., the equivalent of the RSF of the entire fifth
(5th), sixth (6th) and seventh (7th) floors of the Building),
excluding the Storage Space, Tenant may in the Exercise Notice (but subject to the provisions of
this subsection (c)),



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increase the Renewal Premises to include additional space in the Building
(other than the Storage Space, the RP Cafeteria Space, the FC Space and the CC Space), which
additional space shall be selected by Tenant (subject to the
provisions of this subsection (c)) and identified in the Exercise Notice, so that the entire Renewal Premises (excluding the RP
Cafeteria Space, the FC Space and the CC Space) consists of not more than 278,544 RSF, in the
aggregate; provided, however, if the entire Premises demised to Tenant under this Sublease on the
date that Tenant exercises the Renewal Option consists of less than 185,572 RSF of space in the
Building above the ground floor thereof (i.e., the equivalent of the RSF of the entire sixth
(6th) and seventh (7th) floors of the Building), excluding the Storage
Space, Tenant must in the Exercise Notice, for the Exercise Notice to be valid (but subject to the
provisions of this subsection (c)) increase the Renewal Premises to include additional space in
the Building (other than the Storage Space, the RP Cafeteria Space, the FC Space and the CC
Space), so that the entire Renewal Premises consists of not less than 185,572 RSF, in the
aggregate, and not more than 278,544 RSF, in the aggregate. The additional space described in the
preceding sentence must be, in addition to satisfying all of the other conditions and requirements
set forth
in this subsection (c), space located on the fourth (4th), fifth (5th),
sixth (6th) and/or seventh (7th) floors of the Building that is contiguous
to space that is demised to Tenant under this Sublease on the date that Tenant exercises the
Renewal Option.




               (ii) Subject to the provisions of this subsection (c) and subsection (b) above, if the entire
Premises demised to Tenant under this Sublease on the date that Tenant exercises the Renewal Option
consists of more than 278,544 RSF, in the aggregate of space in the Building above the ground
floor thereof, excluding the Storage Space, Tenant may in the Exercise Notice (but subject to the
provisions of this subsection (c)) reduce the Renewal Premises (excluding the RP Cafeteria Space,
the FC Space and the CC Space), to not less than 185,572 RSF, in the aggregate. Subject to the
provisions of this subsection (c), the space to be eliminated from the Premises to achieve Renewal
Premises of not less than 185,572 RSF (which space, for the Exercise Notice to be effective, must
be set forth in the Exercise Notice) shall be eliminated: first, from the floors above the seventh
(7th) floor of the Building, starting with the highest floor above the seventh
(7th) floor, and then from any floors so long as the Renewal Premises satisfies the
other conditions and requirements set forth in this subsection (c).



               (iii) Notwithstanding anything contained herein to the contrary, unless Landlord otherwise
agrees in writing or as part of the selection to be made by Landlord pursuant to subsection (i)
above, the Renewal Premises must satisfy the following conditions, and Tenant shall comply with the
following conditions in selecting the Renewal Premises, including additional or substitute space
for the Renewal Premises, and in eliminating space from the Renewal Premises, notwithstanding the
fact that the result of applying such conditions may be Renewal Premises consisting more or less
than the RSF desired by Tenant and/or Renewal Premises (or portions thereof) not located in the
most desirable locations in the Building:



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                    (A) The Renewal Premises shall consist of at least two (2) full floors in the Building that
are contiguous to each other and all floors on which any portion of the Renewal Premises are
located must be contiguous to each other (excluding the RP Cafeteria Space, the FC Space and the CC
Space);



                    (B) The Renewal Premises shall consist of no more than one (1) Partial Floor space, which
Partial Floor space shall be on the highest or lowest floor of the Renewal Premises (excluding the
RP Cafeteria Space, the FC Space and the CC Space), with the balance of such Partial Floor
constituting not less than 15,000 RSF and being a Rentable Block;



                    (C) The Renewal Premises must consist of the sixth (6th) and seventh
(7th) floors of the Building, unless, as the result of the exercise by Landlord of
Landlord’s Option pursuant to Section 9.02(c) hereof, one (1) or more portions of the sixth
(6th) or seventh (7th) floor of the Building is not a part of the Premises
demised to Tenant under this Sublease on the date that Tenant exercises the Renewal Option,
provided, however, that subject to the other conditions set forth in this subsection (iii) and the
other provisions of this subsection (c), (A) Tenant can substitute the entire fifth
(5th) floor of the Building for the entire (7th) floor of the Building,
if, on the date that Tenant exercises the Renewal Option, the Premises demised to Tenant under this
Sublease includes at least a portion of the fifth (5th) floor of the Building, or (B)
Tenant can substitute the entire fifth (5th) floor and fourth (4th) floors of
the Building for the entire (7th) and sixth (6th) floors of the Building, if,
on the date that Tenant exercises the Renewal Option, the Premises demised to Tenant under this
Sublease includes at least a portion of the fifth (5th) floor and a portion of the
fourth (4th) floor of the Building;



                    (D) The Renewal Premises shall not consist of any space on a given floor of the Building if,
on the date that Tenant exercises the Renewal Option, the Premises demised to Tenant under this
Sublease does not include at least a portion of the floor in question, unless required to satisfy
the contiguity requirements set forth in this subsection (c);



                    (E) Intentionally omitted;



                    (F) Intentionally omitted;



                    (G) If the Renewal Premises desired by Tenant is more than 185,572 RSF, but less than 278,544
RSF, in the aggregate, the Renewal Premises must be at least 195,572 (i.e., the equivalent of the
RSF of the sixth (6th) and seventh (7th) floors of the Building, plus 10,000
RSF);



                    (H) If the Renewal Premises desired by Tenant is more than 278,544 RSF, in the aggregate, then
the RSF of the Renewal Premises must be the equivalent of entire Base Floors, plus at least fifty
(50%) percent of another Base Floor (for example, the equivalent RSF of the entire fifth
(5th), sixth (6th) and seventh (7th) floors of the Building, plus
fifty (50%) percent of the fourth (4th) floor of the Building, or the equivalent RSF of
the entire fourth (4th), fifth (5th), sixth (6th) and seventh
(7th)



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floors of the Building, plus fifty (50%) percent of the third (3rd)
floor of the Building, which fifty (50%) percent requirement shall be reduced as necessary to
comply with the condition set forth in subsection (J) below;




                    (I) If the entire Premises demised to Tenant under this Sublease on the date that Tenant
exercises the Renewal Option consists of less than 278,544 RSF, in the aggregate of space in the
Building above the ground floor thereof, excluding the Storage Space, the Renewal Premises shall
not consist of more than 278,544 RSF, in the aggregate, excluding the RP Cafeteria Space, the FC
Space and the CC Space; and



                    (J) Under no circumstance shall the Renewal Premises exceed 303,356 RSF.



               (iv) By notice given to Tenant within sixty (60) days after Landlord’s receipt of the
Exercise Notice, Landlord may consolidate the Renewal Premises by substituting Partial Floor spaces
of the Building not selected by Tenant as Renewal Premises for Partial Floor spaces of the Building
selected by Tenant, to result in, to the
extent commercially practicable, achieving the requirements of the Renewal Premises consisting
of Full Floor spaces and not more than one (1) Partial Floor space, as more particularly provided
in subsection (iii) above, except that Landlord shall not relocate the SOC pursuant to this
subsection (iv) without Tenant’s written consent.



               (v) Under no circumstances shall the Renewal Premises include any portion of the Storage
Space.



               (vi) For any Partial Floor space leased by Tenant as part of the Renewal Premises, the Demising
Work, if any, required to be performed on the Partial Floor in question shall be performed by
Landlord by the Renewal Premises Commencement Date, and, within thirty (30) days after Landlord’s
demand therefor, Tenant shall reimburse Landlord fifty (50%) percent of the cost and expense
incurred by Landlord to perform such Demising Work, as evidenced by reasonably detailed invoices
and/or receipts delivered to Tenant, if such Partial Floor space results from Landlord exercising
its consolidation rights pursuant to subsection (iv) above, or 100% of the cost and expense
incurred by Landlord to perform such Demising Work, as evidenced by reasonably detailed invoices
and/or receipts delivered to Tenant, if such Partial Floor space results from any other reason.



               (vii) Landlord and Tenant acknowledge and agree that their respective rights and obligations
under this Article 40 are subject to the relocation rights of the Existing Lessor under the
Existing Superior Lease.



               (viii) Any dispute between Landlord and Tenant concerning any aspect of Renewal Premises shall
be resolved by either party submitting such dispute to arbitration as provided in Article 34.



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          (d) If Tenant is required to consolidate the Renewal Premises pursuant to the foregoing
provisions of Section 40.01(c) and the space into which Tenant shall relocate in order to
consolidate is not part of the Premises, then Landlord shall deliver such relocation space to
Tenant in the condition required pursuant to clause “(y)” of Section 40.01(a) above on or before
March 31, 2023 in order to provide Tenant with not less than ninety (90) days before the Expiration
Date to complete such relocation and consolidation. Tenant shall complete such consolidation at
Tenant’s expense. If Landlord does not deliver such relocation space to Tenant on or before March
31, 2023, TIME BEING OF THE ESSENCE, and Tenant does not complete the consolidation of its space by
the Expiration Date, then Tenant shall not be in default hereunder and shall have no liability,
whether hereunder, under the Existing Superior Lease, including for Existing Superior Lease
Holdover Damages, or at law or in equity, for any holdover after the Expiration Date for the number
of days that Landlord did not deliver possession of the relocation space to Tenant after March 31,
2023 and time periods under Section 24.02(a) shall be tolled by the number of days that Landlord
did not deliver possession of the relocation space to Tenant after March 31, 2023. Landlord shall
indemnify and hold harmless Tenant against all liability, loss or damage (including, without
limitation,
reasonable attorneys’ fees) that Tenant shall suffer by reason of Landlord’s failure to comply
with the provisions of this Section 40.01(d).



     40.02 (a) The Renewal Option is personal only to the Tenant under this Sublease that is a
JetBlue Tenant, and may not be exercised by, or assigned to, any other Tenant under this Sublease
or any other person. If the Renewal Premises includes more than three (3) full floors of the
Building, and, as of the Renewal Term Commencement Date, Tenant does not have the Acceptable Credit
Rating, then Landlord may require Tenant to deliver a letter of credit as a security deposit in
accordance with Article 6 of this Sublease in an amount (the “Security Deposit Amount”) [***],
within thirty (30) days after Landlord’s demand therefor. The failure of Tenant to deliver such
letter of credit within such thirty (30) day period shall be deemed a default by Tenant in the
payment of Additional Rent under this Sublease, entitling Landlord to exercise any or all of its
rights and remedies under this Sublease, at law and in equity.



          (b) If on each of the second (2nd) and third (3rd) anniversaries of the
Renewal Term Commencement Date, (x) this Sublease is in full force and effect, and (y) Tenant is
not in default in its obligation to pay any Base Rent or Additional Rent or, after the giving of
any required notice and the expiration of any applicable cure period, to observe, perform or comply
with any other term, covenant or condition in this Sublease on Tenant’s part to observe, perform or
comply with, then Tenant may, at any time after the second (2nd) anniversary of the
Renewal Term Commencement Date, request Landlord to reduce the Security Deposit Amount to an amount
equal to two-thirds (2/3) of the original Security Deposit Amount; or at any time after the third
(3rd) anniversary of the Renewal Term Commencement Date, request Landlord to reduce the
then Security





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




185









 









Deposit Amount to an amount equal to one-third (1/3) of the original Security Deposit
Amount; in which event, provided that at the time of such request this Sublease is in full force
and effect and the conditions in clause (y) above have been satisfied, and the amount of security
has not theretofore been drawn upon or otherwise reduced in any manner other than pursuant to this
subsection, the Security Deposit Amount shall be reduced to the applicable amount, and Landlord
shall either return to Tenant from the security deposit being held by Landlord under Article 6 the
difference between the amount of the security deposit being so held by Landlord and the applicable
reduced amount, or, if such security is in the form of a Letter of Credit, Landlord shall consent
in writing to, and, at no cost to Landlord, (A) accept from the Issuing Bank, an amendment to the
Letter of Credit which reduces the amount thereof to the applicable reduced amount but which does
not otherwise amend or modify same, and (B) if requested by the Issuing Bank, execute and deliver
to the Issuing Bank such instruments required by the Issuing Bank to effectuate such reduction.
Notwithstanding the foregoing, if at the time Tenant would otherwise be entitled to the reduction
of the Security Deposit Amount pursuant to this subsection, but for the fact that at such time
Tenant is in default under this Sublease, Tenant shall become entitled to, and Landlord shall honor
Tenant’s
request for, such reduction of the Security Deposit Amount pursuant to this subsection when
such default is cured, provided that this Sublease is then in full force and effect and the other
conditions to such reduction (and Tenant’s right to request same) remain satisfied.




     40.03 Upon the commencement of the Renewal Term, (1) the Renewal Term shall be added to and
become part of the Term, (2) any reference to “this Sublease”, to the “Term”, the “term of this
Sublease” or any similar expression shall be deemed to include the Renewal Term, (3) the Renewal
Term Expiration Date shall become the Expiration Date, and (4) “Premises” shall mean the “Renewal
Premises,” Tenant hereby agreeing to surrender to Landlord on the last day of the initial Term that
portion of the Premises demised to Tenant under this Sublease as of the last day of the initial
Term that is not part of the Renewal Premises (such portion of the Premises being herein referred
to as the “Renewal Surrender Premises”), in the condition and in the manner provided in this
Sublease for the surrender of the Premises to Landlord on the Expiration Date. In addition, the
provisions of Sections 16.13 and 17.05(c) shall apply and Tenant shall pay to Landlord, as
Additional Rent, within thirty (30) days after Landlord’s demand therefor, the reasonable
out-of-pocket costs incurred by Landlord for Demising Work to separate the Renewal Premises from
the Renewal Surrender Premises (except that Tenant shall not be obligated to pay for any such work
in excess of Building Standard work performed by Landlord on other Partial Floors in the Building).
Subject to the provisions of Section 40.01(d), the failure of Tenant to quit and surrender to
Landlord the Renewal Surrender Premises on or before the last day of the initial Term in the
condition and in the manner provided in this Sublease for the surrender of the Premises to Landlord
on the Expiration Date shall be a default under this Sublease, entitling Landlord to exercise any
or all of its rights and remedies hereunder, and available at law and in equity (subject to the
limitations on Tenant’s liabilities expressly provided for in this Sublease), other than
terminating this Sublease with respect to the Renewal Premises. In addition, subject to the
provisions of Section



186









 




40.01(d), Landlord may exercise any or all of Landlord’s rights and remedies
under Section 24.02 of this Sublease as if, for the purposes of said Section 24.02, the Renewal
Surrender Premises were the Premises. Furthermore, in the event of such failure, for the purposes
of said Section 24.02, the “Base Rent and Additional Rent payable by Tenant during the last year of
the Term,” as applied to the Renewal Surrender Premises, shall mean the amounts of the Base Rent
and Additional Rent, on a per RSF basis, payable under this Sublease for the Renewal Surrender
Premises during the year immediately prior to the Expiration Date. Any termination, cancellation
or surrender of the entire interest of Tenant under this Sublease at any time during the Term shall
terminate any right of renewal of Tenant hereunder. In the event that the Existing Lessor requires
a wall in the lobby of the Building facing Queens Plaza North to be returned to the Existing Lessor
upon commencement of the Renewal Term, then Landlord will return to the Existing Lessor the West
wall of the Queens Plaza North lobby.




ARTICLE 41

ROOF RIGHTS




     41.01 Landlord hereby grants to Tenant an exclusive license (through the end of the initial
Term, but subject to Tenant’s rights under the Third Amendment of the Existing Superior Lease
during the Renewal Term, if any, with respect to the matters set forth in this Article 41), subject
to and in accordance with the provisions of this Article 41, (a) (i) to use a portion of the roof
above the 13th floor of the Building, as shown on Exhibit M and a portion of the Infill
Building mechanical penthouse portion of the Building, as shown on Exhibit M (collectively, the
“Antenna Roof Area”), solely to install, maintain, replace and operate, in accordance with, and
subject to, the applicable provisions of this Sublease and at Tenant’s sole cost and expense, up to
six (6) telecommunications antennas and/or satellite dishes and related equipment, mountings and
support structures (together with all associated lines, wiring and cabling, collectively, the
“Antenna”), (ii) to use a portion of the roof above the 7th floor of the Building, as
shown on Exhibit M (the “Rooftop Sign Area”), solely to install, maintain, replace and operate, in
accordance with, and subject to, the applicable provisions of this Sublease and at Tenant’s sole
cost and expense, the Rooftop Sign, (iii) to use a portion of the roof above the 7th
floor of the Building, as shown on Exhibit M (the “Generator Roof Area”), solely to install,
maintain, replace and operate, in accordance with, and subject to, the applicable provisions of
this Sublease and at Tenant’s sole cost and expense, Tenant’s Generator Equipment, and (iv) to use
a portion of the roof above the 7th floor of the Building, as shown on Exhibit M (the
“HVAC Roof Area”), solely to install, maintain, replace and operate, in accordance with, and
subject to, the applicable provisions of this Sublease and at Tenant’s sole cost and expense, the
New Supplemental HVAC Units (the Antenna, the Rooftop Sign (together with the Rooftop Sign Supports
(as such term is defined in Section 45.03(a) hereof), Tenant’s Generator Equipment and those
components of the New Supplemental HVAC units that are to be installed on the HVAC Roof Area, being
sometimes collectively referred to as the “Roof Installations,” and each of the Tenant Roof Area,
the Rooftop Sign Area, the Generator Roof Area and the HVAC Roof Area is herein individually
referred to as a



187









 




“Roof Area,” and collectively as the “Roof Areas”); and (b) to run lines from the
Roof Installations, at Tenant’s sole cost and expense, through such Tenant’s Conduits to the
Premises as shall be reasonably required in connection with the operation of the Roof
Installations, provided, however, that the locations of the various Roof Installations and their
manner of installation and use shall not adversely affect (x) the occupancy of other tenants (or
the use by other tenants of any portion of the roof of the Building if such roof installations were
made prior to Tenant’s installations), (y) Landlord’s use or operation of the Building, the common
areas of the Building or premises leased to, or available for lease to, other tenants or (z) the
proper functioning of the mechanical, electrical, plumbing, fire safety, and heating, ventilating
and air conditioning systems of the Building (in each case of (x) through (z), as determined by
Landlord in its reasonable discretion), it being understood and agreed that the location of the
Rooftop Sign shall be deemed not to violate this proviso. In
connection with enforcing its rights under clause “(z)” of the preceding sentence, if after
the installation of any Roof Installation, Landlord is required, in Landlord’s reasonable
determination, by Requirements or by good building management practices, to modify any of the
systems referred to in said clause “(z),” Landlord shall use commercially reasonable efforts to
modify the system in question in such a manner such that Tenant shall not be in violation of said
clause “(z),” provided that, other than a de minimis amount, Landlord shall not be obligated to
incur any additional cost or expense in connection with using such commercially reasonable efforts,
unless Tenant pays such additional cost and expense. Landlord assumes no responsibility either for
or in connection with the installation, maintenance, or operation of the Roof Installations or for
the safeguarding thereof, nor shall Landlord be under any other obligation or liability of any kind
whatsoever in connection with this Article (except, subject to the provisions of Section 11.03
hereof, in connection with the negligence or willful misconduct of Landlord or a Landlord Party),
provided, however, Landlord shall maintain the roof in a manner that will not unreasonably
interfere with Tenant’s equipment, shall not interfere with the Roof Installations and shall take
commercially reasonable precautions to prevent all occupants of the Building and others from
gaining access to or interfering with the Roof Installations. All costs of any studies and/or
examinations performed in connection with the determination of the location(s) of the Roof
Installations (other than the Rooftop Sign) shall be the sole responsibility of Tenant, except that
if Landlord relocates any of the Roof Installations pursuant to the provisions of Section 41.16
hereof, any such studies and/or examinations desired by Landlord shall be requested and paid for by
Landlord.




     41.02 Tenant’s use of the roof of the Building and the Roof Areas shall in no event interfere
with the ability of Landlord to service or replace any equipment located on any area on the roof of
the Building other than the Roof Areas (all such other areas being hereinafter referred to as
“Landlord’s Roof Area”) or in any other portion of the Building, it being agreed that Landlord may
permit the use of Landlord’s Roof Area by Landlord and/or by any other person for any use,
including the installation of other antennae, generators, HVAC equipment and related equipment and
support structures, provided the same does not interfere with the use and operation of Tenant’s
equipment, other than to a de minimis extent. Landlord’s use of Landlord’s Roof Area shall not
interfere with the ability of Tenant to service or replace any Roof Installations, except in



188









 




the case of an emergency or in the case where such use is to comply with applicable Legal Requirements
and there is no commercially reasonable alternative that would not so interfere with the ability of
Tenant to service or replace any Roof Installations. In the case of an emergency or in the case
where Landlord’s use of Landlord’s Roof Area is to comply with Legal Requirements and there is no
alternative that would not so interfere with the ability of Tenant to service or replace any Roof
Installations, Landlord shall nevertheless provide a means for Tenant to be able to service and
replace any Roof Installations.




     41.03 Landlord’s consent to the installation and operation of the Roof Installations (which
consent shall be granted, withheld and/or conditioned in accordance with Article 13 and the other
applicable provisions of this Sublease, treating the Roof
Installations as a Structural Alteration, provided, however, that Landlord conceptually,
subject to any approval required under the Existing Superior Lease, agrees that Tenant may install
Roof Installations) shall not mean or imply that any Roof Installations or their locations, method
of installation, appearance, safety or operation complies with applicable Requirements, and
Landlord shall be under no duty to permit Tenant to install any item of Roof Installations if the
same is prohibited by any of the same. Tenant shall comply with all applicable Requirements with
respect to the Roof Installations. Tenant shall obtain and maintain, at Tenant’s sole cost and
expense, all approvals, licenses and permits required for the installation, maintenance,
replacement and operation of the Roof Installations, provided, however that Landlord, at Tenant’s
sole cost and expense, shall cooperate with Tenant to secure and maintain any required approvals,
licenses and permits, without any representation or warranty on the part of the Landlord as to
whether such approvals, licenses or permits can be obtained or maintained, and Tenant’s inability
to obtain such approvals, licenses or permits shall not relieve or release Tenant from any of its
obligations or liabilities under this Sublease, constitute an actual or constructive eviction, or
impose any liability upon Landlord. Landlord makes no representations or warranties as to the
permissibility of any of the Roof Installations under applicable Requirements or the suitability of
the roof of the Building for the installation thereof. Within thirty (30) days after request by
Landlord, Tenant shall deliver to Landlord copies of any non-confidential filings or statements
which Tenant may be required to make, from time to time, with any federal, state or city agency
with respect to the use of the all Roof Installations (which non-confidential filings and
statements shall include confidential filing and statements in respect of which Landlord may be
given access if Landlord executes a non-disclosure or confidentiality agreement, provided, Landlord
executes and delivers such non-disclosure or confidentiality agreement).



     41.04 Tenant shall ensure that its use of the roofs of the Building and the Roof Areas does
not impair beyond a de minimis extent any other parties’ transmission and reception via its
respective antenna and support equipment, to the extent such equipment was installed prior to the
installation of the Roof Installations in question and, at no cost to Tenant, Landlord shall cause
the relocation or repositioning of the antenna and support equipment of any other party that is
installed after the installation of Tenant’s antenna and support equipment, if and to the extent
the antenna and support



189









 




equipment of such other party impairs beyond a de minimis extent Tenant’s
transmissions and reception via its antenna and support equipment. As a precondition to
installation of all Roof Installations, Tenant at its expense shall cause an electromagnetic
interference (a/k/a EMI) test to be performed to ensure that the Roof Installations do not
interfere with any other antenna or other equipment then installed and operational on the roof and
Landlord shall cause, at no cost to Tenant any party who thereafter installs any antenna on the
roof to perform such electromagnetic interference test with respect to the Roof Installations.




     41.05 For the sole purpose of installing, servicing, maintaining or repairing each item of
Roof Installations, Tenant and its properly identified contractors, agents and employees shall have
access to the roof of the Building at its sole cost, risk and liability
at reasonable times upon reasonable notice to Landlord or at regularly scheduled times of
which Landlord has theretofore been notified, in accordance with the applicable terms of this
Sublease and any other reasonable requirements imposed by Landlord. To the extent the maintenance,
repair, operation, or use of any item of Roof Installations unreasonably interferes with the rights
of Landlord (including, without limitation, Landlord’s right to use Landlord’s Roof Area) or other
tenants in the Building beyond a de minimis extent or, if after the installation of the Roof
Installations in question, other tenants’ construction, installation, maintenance, repair,
operation or use of their antenna shall interfere with the Roof Installations in question, Tenant
shall reasonably cooperate with Landlord or such other tenants in eliminating such interference;
provided, that the cost of remedying such interference shall be borne by the party which is causing
such interference, unless such party was using the roof in the manner causing such interference
prior in time to the use of the equipment causing such interference by the subsequent party, in
which case the cost of remedying such interference shall be borne by such subsequent party. In the
event that any of the Roof Installations has to be relocated or repositioned pursuant to this
Section 41.05, such work shall be performed promptly by Tenant, at its sole cost and expense, at a
time reasonably designated by Tenant to minimize disruption to Tenant’s operations, and if Tenant
fails to so promptly relocate or reposition any of its Roof Installations pursuant to this Section
41.05, Landlord may, but shall not be obligated to, relocate or reposition the Roof Installations
in question, and Tenant shall reimburse Landlord for the reasonable and actual costs paid or
incurred by Landlord to perform such work within thirty (30) days after Landlord’s request
therefor, which request shall be accompanied by a reasonably detailed description of the work in
question and reasonable evidence of the costs thereof. Nothing contained herein shall prevent or
limit Tenant’s right to service and maintain its equipment in accordance with, and subject to, the
provisions of this Sublease and nothing contained in this Section 41.05 shall obligate Tenant to
relocate the Rooftop Sign from its Roof Area.



     41.06 Tenant shall (to the extent not theretofore covered by the insurance policies then
maintained by Tenant) secure and keep in full force and effect, from and after the time Tenant
begins construction and installation of each item of Roof Installations, such supplementary
insurance with respect to such item of Roof Installations as Landlord may reasonably require.



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     41.07 Tenant shall not place any equipment, property or persons on the Roof Areas or the roofs
of the Building in excess of the weight reasonably approved by Landlord. If Landlord’s structural
engineer deems it reasonably necessary that there be structural reinforcement of the roofs or other
structural requirements in connection with the installation of any item of Roof Installations,
Tenant at its expense shall perform such work (using a contractor(s) selected by Tenant and
reasonably approved by Landlord and Existing Lessor, after Tenant delivers to Landlord final plans
and specifications with respect thereto and with respect to the installation of the item of Roof
Installations in question. Tenant shall not install any item of Roof Installations prior to the
completion of any such structural reinforcement or other structural requirements.



     41.08 The installation of each item of Roof Installations, and the performance of all other
work and of the repairs, provided for in this Article to be performed by or on behalf of Tenant,
shall be performed by Tenant upon and subject to the terms and conditions of Article 13 of this
Sublease and the other applicable provisions of this Sublease (including, without limitation, the
furnishing by Tenant to Landlord for its review and approval of complete and dimensioned
architectural plans), and in no event may Tenant’s installation of any item of Roof Installations
or the performance of any other work or any of the repairs, provided for in this Sublease to be
performed by or on behalf of Tenant, void or have any adverse affect upon any roof warranty for the
Building. (For the purposes of clarification, and not limitation, if the installation or method of
installation or repair would, in Landlord’s reasonable determination, void or have any adverse
affect upon any roof warranty for the Building, such installation or method of installation or
repair shall not be permitted, regardless of whether any alternative installation or method of
installation or repair is more expensive or whether there is no alternative installation or method
of installation that would not void or have any adverse affect upon any roof warranty for the
Building.) Whenever Tenant and its properly identified contractors, agents and employees are
afforded access to the roofs of the Building, Tenant shall properly safeguard persons and property
on such roofs. Tenant and its properly identified contractors, agents and employees shall not
store any materials whatsoever on the Roof Area or the roofs of the Building, and Tenant shall be
responsible for cleaning and removing any materials left on the Roof Area or on the roofs by Tenant
or Tenant’s invitees. Tenant shall not leave any tools and/or materials lying loose on the roofs
and Tenant and its employees shall remove all such tools and/or materials and close the entrance
doors to the roofs when leaving the roofs. Tenant acknowledges that (i) Landlord may, at its
reasonable discretion, deny access to the Roof Area to anyone lacking appropriate credentials and
(ii) Landlord shall not be obligated to provide any security for the Roof Area or any of Tenant’s
equipment on the roofs. Landlord shall have the right at any time and at its expense, without any
liability to Tenant, at reasonable times on reasonable prior notice to Tenant and with reasonable
opportunity for Tenant to have a representative present, to inspect and examine the Roof
Installations, and Tenant shall cooperate with Landlord in demonstrating or testing the same.
Landlord (if in Landlord’s reasonable determination it is required for security and safety of the
Building) shall have the right to require, as a condition to the access to the roof by Tenant (or
its employee, contractor or other representative) at all times be accompanied by a representative
of Landlord, whom



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Landlord shall make available upon prior reasonable notice (except that (i) such
accompaniment shall be required in the case of an emergency only if practicable, and (ii) such
accompaniment shall not be required for such access, at any given time, by up to ten (10) of
Tenant’s employees who are approved for such access by Tenant, provided the names of such approved
employees are on a written list (or updated thereof) prepared by Tenant and received by Landlord at
least five (5) Business Days prior to the date of any desired access).




     41.09 Tenant shall be responsible for all reasonable out-of-pocket third party costs and
expenses actually incurred by Landlord (without duplication) with respect to any repairs,
maintenance and/or replacement of the roofs of the Building (including any
leaks or damage caused thereby) or any other part of the Building which are caused by any act
or omission of Tenant, or its agents, invitees, employees or contractors or anyone acting for or on
behalf of any of them in connection with Tenant’s use of the roofs for the construction,
installation, maintenance, repair, operation, and use or removal of any item of Roof Installations.
Tenant shall take appropriate precautions to protect the roofs and the other portions of the
Building from damage arising out of any use of the Roof Area or access to any other portion of the
roofs of the Building in accordance with this Article or any other provision of this Sublease.
Except in such instances where Landlord has reasonably determined allowing Tenant to repair such
damage will void or have any adverse affect upon any roof warranty for the Building or have any
other adverse affect on the Building or Landlord’s interest therein, Landlord shall notify Tenant
of such damage and allow Tenant a reasonable period of time to repair such damage, failing which
Landlord may make (or have made) the repair in question at Tenant’s cost and expense as
hereinbefore provided. Otherwise, Landlord shall, to the extent it is obligated to do so under the
Existing Superior Lease, be responsible for and shall maintain the roofs of the Building and shall
enforce the provisions of the Existing Superior Lease with respect to the Existing Lessor’s
obligations thereunder to maintain the roofs of the Building. To the extent Landlord is the
landlord or sublandlord, as the case may be, thereunder, Landlord shall enforce the roof rights
provisions in other leases or subleases for space in the Building that provide roof rights to the
tenants or subtenants, as the case may be, under such leases or subleases, as the case may be, and
shall require such other tenants or subtenants, as the case may be, to abide by the provisions of
their leases or subleases, as the case may be, concerning the maintenance of the roofs and the
maintenance and operation of their equipment on the roofs.



     41.10 The rights granted in this Article 41 are given in connection with, and as part of, the
rights created under this Sublease and are not separately transferable or assignable from this
Sublease, it being agreed that no party other than Tenant and/or its Related Entities and/or an
assignee of Tenant’s interest in this Sublease and/or a permitted subtenant of all or any portion
of the Premises may use or install equipment in the Roof Area in accordance with the terms of this
Article 41, subject to any additional restrictions, limitations and prohibitions set forth in
Articles 16, 17 and 45 hereof. Tenant (and any assignee of Tenant’s interest in this Sublease
and/or a subtenant of all or any portion of the Premises) shall use the Roof Installations solely
in connection with



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the use permitted under this Sublease. With respect to the Antenna, the
transmission or receipt of signals by or for any other person or entity (other than in connection
with the operation of Tenant’s airline and other than by or for a permitted assignee or subtenant)
shall constitute a prohibited use of the Antenna and a default under this Sublease. Other than in
connection with the operation of Tenant’s airline and businesses related thereto or the business of
a permitted assignee or subtenant, Tenant shall not sell any services arising out of the use of any
of the Roof Installations to any other tenant or occupant of the Building or the general public.



     41.11 Intentionally omitted.



     41.12 Except with respect to the Rooftop Sign Supports, which is governed by the Third
Amendment of the Existing Superior Lease, the license granted pursuant to this Article 41 shall
terminate upon the expiration or sooner termination of the Term of this Sublease, but in no event
shall extend beyond the initial Term, subject to Tenant’s rights under the Third Amendment of the
Existing Superior Lease during the Renewal Term, if any, with respect to the matters set forth in
this Article 41. Notwithstanding anything herein to the contrary, and except with respect to the
Rooftop Sign Supports, which is governed by the Third Amendment of the Existing Superior Lease,
upon or prior to the expiration or sooner termination of the license granted pursuant to this
Article 41, Tenant shall, at Tenant’s sole cost and expense, remove all Roof Installations from
Building, including any wiring and cabling installed in connection with the Roof Installations, and
repair any damage caused by such removal, provided, however, that to the extent extending such
obligation to remove and repair beyond the expiration or sooner termination of said license is not
a default under and does not otherwise violate the provisions of the Existing Superior Lease, the
time period to so remove and repair the Roof Installations shall be extended for the shorter of (a)
one (1) year after the expiration or sooner termination of said license, and (b) the date beyond
which not so removing the Roof Installations and repairing such damage is a default under, or
otherwise violates, the provisions of the Existing Superior Lease.



     41.13 Except for the use of riser space approved by Landlord, in no event shall Tenant run any
lines from the Roof Installations to any location other than space leased by Tenant in the
Building. No Signs, whether temporary or permanent, shall be affixed, installed or attached to any
of the Roof Installations (other than the Rooftop Sign) and/or the Roof Area other than those
required by applicable Legal Requirements or to assure the proper usage of the Roof Installations
and safety of the workers maintaining the Roof Installations. No such Sign required by applicable
Legal Requirements or to assure the proper usage of the Roof Installations or the safety of the
workers maintaining the Roof Installations shall be illuminated, unless required by applicable
Legal Requirements. All such Signs, if any required by applicable Legal Requirements or to assure
the proper usage of the Roof installations or safety of the workers maintaining the Roof
Installations and the location thereof, shall first be approved in writing by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.



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     41.14 At Tenant’s sole cost and expense, and in accordance with, and subject to, the
applicable provisions of this Sublease, Tenant shall bring to the applicable Roof Areas from the
Premises any electric power required to use and operate the Roof Installations and the Roof Areas,
and the usage and demand of such electric power shall be measured by the Tenant’s submeter(s) and
shall be paid for in accordance with the provisions of Article 16 hereof.



     41.15 Tenant’s use of the Roof Areas and installation, maintenance, operation and use of the
Roof Installations are at Tenant’s sole risk. Tenant agrees to take the Roof Areas in their “as
is” condition. Tenant shall not look to Landlord or Landlord’s agents to supply or provide any
material or property in connection with the Roof Areas.
Tenant shall take good care of the Roof Areas and make all repairs thereto as and when needed
to preserve it in the condition in which it was delivered to Tenant, reasonable wear and tear and
damage by casualty or condemnation excepted.



     41.16 Notwithstanding anything to the contrary contained in this Article 41, Landlord may from
time to time, at Landlord’s cost (except as otherwise provided in this Section), require Tenant to
relocate any item of Roof Installations (other than the Rooftop Sign) to other locations on the
roofs of the Building designated by Landlord in its reasonable judgment, provided that with respect
to a relocation of the Antenna, the lines of sight and transmission and reception qualities shall
not be adversely affected beyond a de minimis extent by such relocation. After Landlord gives
Tenant notice requiring Tenant to relocate such Roof Installations, Tenant shall diligently proceed
to relocate the Roof Installations and shall complete such relocation in a time period to be agreed
upon between Landlord and Tenant or otherwise in a reasonable period of time given the scope of the
work involved and taking into consideration that Tenant needs adequate time to conduct parallel
testing of the Rooftop Installations and to avoid any disruption of Tenant’s business beyond a de
minimis extent. Tenant shall perform such relocation and cooperate in all reasonable respects with
Landlord without out-of-pocket third party cost to Tenant in any such relocation of the Roof
Installations, provided that Tenant shall comply with all other terms and provisions of this
Article 41. Landlord shall not be liable for any interruption in the use of the Roof Installations
during any period of relocation. Tenant (with Landlord’s cooperation) shall promptly apply for any
approval, license or permit required in connection with such relocation. All costs incurred in
connection with the application for such approval(s), license(s) and permit(s) shall be the
responsibility of Landlord. Tenant at its expense shall promptly maintain during the remainder of
the Term any such approval, license or permit required in connection with such relocation. Upon
such relocation, the substitute roof area shall thereafter be deemed the applicable “Roof Area”
hereunder and the portion of the original “Roof Area” from which the item of Roof Installations is
removed for relocation shall no longer constitute Roof Area, except that the obligation of Tenant
to perform and/or pay for any maintenance or repairs in respect of the portion(s) of the Roof Area
in question prior to such relocation shall survive such relocation for one (1) year.



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ARTICLE 42

CONTRACTION, EXPANSION;
5TH FLOOR CONTRACTION AND PARTIAL SURRENDER OPTIONS




     42.01 (a) Post-Execution Contraction Option. In addition to the Partial Surrender
Option (as such term is defined in Section 42.04 hereof), Tenant shall have the one-time option
(the “Contraction Option”) to reduce the premises demised to Tenant under this Sublease by the
Contraction Space (as hereinafter defined), effective on the date (the “Contraction Effective
Date”) which is the date Landlord receives the Contraction Exercise Notice (as hereinafter
defined), which Contraction Option shall be exercised only by Tenant giving to Landlord notice
thereof (the “Contraction Exercise Notice”) on or before the date (the “Contraction Notice
Date”) which is 210 days after the Effective Date, TIME BEING OF THE ESSENCE, which
Contraction Exercise Notice may be rescinded, but only as expressly permitted in Section 42.02(b)
below.



          (b) Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not
have the Contraction Option, and the Contraction Option shall be null and void and of no force or
effect, if (i) Tenant gives any Acceptance Notice (as such term is defined in Section 44.01
hereof) or the Expansion Exercise Notice (as such term is defined in Section 42.02 hereof) on or
before the date that Tenant gives the Contraction Exercise Notice, or (ii) Tenant gives the
Contraction Exercise Notice to Landlord after the Contraction Notice Date.




          (c) For the purposes of this Sublease, “Contraction Space” shall mean the entire
5th Floor Premises (as same may have theretofore been reduced pursuant to Section 42.03
hereof).




          (d) On the Contraction Effective Date, all of Tenant’s rights, title and interest in and to
the Contraction Space shall end, and Tenant’s subleasehold estate in the Contraction Space created
by this Sublease shall terminate and expire.




          (e) All of Tenant’s obligations and liabilities under this Sublease with respect to the
Contraction Space which accrue or arise or relate to matters occurring on or before the
Contraction Effective Date shall survive the Contraction Effective Date.




          (f) Tenant hereby covenants, represents and warrants to Landlord that as of the Contraction
Effective Date the Contraction Space shall be free of all tenants, subtenants and other occupants
and all leases and subleases, and there shall be no other persons or entities claiming, or who or
which may claim, any rights of possession, occupancy or use of the Contraction Space or any
portions thereof.




          (g) If Tenant gives the Contraction Exercise Notice in the manner set forth in Section
42.01(a), then, subject to the provisions of Section 42.01(b) above:




               (i) Effective from and after the date next succeeding the Contraction Effective Date, there
shall be no “5th Floor Premises”, the terms “Office



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Space” and “Premises,” as such terms
are used in this Sublease, shall exclude the Contraction Space, the floor plan set forth on Exhibit
B-1 hereto shall be deemed amended accordingly, and the RSF of the Office Space and the Premises
shall be reduced by the RSF of the Contraction Space;




               (ii) Effective from and after the date next succeeding the Contraction Effective Date, the
Base Rent payable by Tenant pursuant to Section 1.04(a) of this Sublease shall be decreased by
Contraction Space Base Rent (as hereinafter defined);



               (iii) Effective from and after the date next succeeding the Contraction Effective Date, this
Sublease shall be amended by decreasing the “Tenant’s Proportionate Share” by subtracting therefrom
the fraction, expressed as a percentage, the numerator of which is [***] and the denominator of
which is [***];



               (iv) Effective on the date Tenant gives the Contraction Exercise Notice, the Base Tenant
Allowance (with a corresponding reduction in the Tenant Allowance) shall be reduced by $[***],
multiplied by the RSF of the Contraction Space, and the Additional 5th Floor Tenant
Allowance (with a corresponding reduction in the Tenant Allowance) shall be eliminated;



               (v) Intentionally omitted; and



               (vi) The provisions of Section 17.05(c) hereof shall apply.



          (h) If Tenant exercises the Contraction Option, then the Renewal Option shall not be
applicable to the Contraction Space (unless Tenant again leases the Contraction Space pursuant to
any of the provisions of this Sublease or by mutual agreement of Landlord and Tenant).




          (i) For the purposes of this Article, “Contraction Space Base Rent” means, during the First
Rent Period, the product of $[***] per annum, multiplied by the RSF of the Contraction Space, and,
during the Second Rent Period, the product of $[***] per annum, multiplied by the RSF of the
Contraction Space.




     42.02 (a) Post-Execution Expansion Option. In addition to the Supplemental Space
Option (as such term is defined in Section 47.01 hereof), Tenant shall have the one-time option
(the “Expansion Option”) to increase the premises demised to Tenant under this Sublease by the
Expansion Space (as hereinafter defined), effective on the date (the “Expansion Effective Date”)
which is the date Landlord receives the Expansion Exercise Notice (as hereinafter defined), which
Expansion Option shall be exercised only by Tenant giving to Landlord notice thereof (the
“Expansion Exercise Notice”) on or before the date (the “Expansion Notice





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




196









 









Date”) which is 210 days
after the Effective Date, TIME BEING OF THE ESSENCE. Any notice given by Tenant which purportedly
exercises the Expansion Option but which does not set forth the Expansion Space, shall not be
effective as an Expansion Exercise Notice, it being understood and agreed that if the Expansion
Space in respect of which Tenant desires to exercise the Expansion Option, when combined with all
other portions of the fifth (5th) floor of the Building then leased to Tenant pursuant
to other provisions of this Sublease or to be leased to Tenant as a
result of Tenant having exercised an Acceptance Notice (such other portions of the fifth
(5th)
floor of the Building being herein referred to as the “Excluded 5th
Floor Portions”), is not the entire fifth (5th) floor of the Building (such Expansion
Space being herein referred to as “Partial Floor Expansion Space” or “PF Expansion Space”), the
notice given by Tenant which purportedly exercises the Expansion Option must include a reasonably
detailed floor plan of the fifth (5th) floor of the Building, indicating in reasonable
detail the location of the proposed Expansion Space, but shall not be deemed ineffective because
Landlord does not initially approve the space in question as provided in subsection (c) below or,
in the case where the RSF of the Expansion Space is not set forth in this Sublease, because
Landlord and Tenant cannot agree upon the RSF of the proposed Expansion Space, including whether
the RSF of the proposed Expansion Space is less than 15,000 RSF of contiguous space on the fifth
(5th) floor of the Building or whether the balance of the fifth (5th) floor
of the Building consists of not less than 15,000 RSF, as more particularly provided in clause “(B)”
of Section 42.02(c). Notwithstanding the foregoing, any notice given by Tenant which purportedly
exercises the Expansion Option for the PF Expansion Space, but which does not contain substantially
the following statement in bold and CAPITAL letters shall not be effective as an Expansion Exercise
Notice: “THIS IS THE EXPANSION EXERCISE NOTICE WITH RESPECT TO THE PARTIAL FLOOR EXPANSION SPACE
DESCRIBED IN CLAUSE “(B)” OF SUBSECTION 42.02(c) OF THE SUBLEASE. IF LANDLORD FAILS TO REJECT SUCH
EXPANSION SPACE, AS DESCRIBED IN THIS EXPANSION EXERCISE NOTICE, WITHIN TEN (10) BUSINESS DAYS
AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED SUCH EXPANSION
SPACE.” Notwithstanding the foregoing, if the Expansion Exercise Notice includes an irrevocable
request to rescind the Contraction Exercise Notice (as more particularly described in subsection
42.02(b) below), then the “Expansion Effective Date” shall be delayed to either (1) the date on
which Landlord notifies Tenant that the conditions in clauses “(y)” and “(z)” of subsection
42.02(b) below are satisfied, or (2) if within the ten (10) Business Day period after Landlord
receives the Expansion Exercise Notice, Landlord fails to reject such rescission (as more
particularly provided in said subsection 42.02(b)), the date which is the last day of said ten (10)
Business Day period; and if the Expansion Exercise Notice is in respect of PF Expansion Space, and
Landlord has not theretofore approved such Expansion Space, then the “Expansion Effective Date”
shall be delayed (or further delayed, as the case may be) to either (i) the date on which, pursuant
to said subsection 42.02(c), Landlord gives Tenant notice that it has approved the Expansion Space
or the Expansion Space is deemed approved, or (ii) if neither of the dates described in clause
“(i)” occur, the date on which the dispute as to
whether both the Expansion Space and the balance
of the space on the floor on which the Expansion Space is located shall each constitute




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one or more
Rentable Blocks is resolved pursuant to mutual agreement of Landlord and Tenant or pursuant to
arbitration, as provided for in said subsection 42.02(c). For the purposes of this Sublease, a
“Rentable Block” means a contiguous block of space which, taking into account its size, location
and configuration, can be separately and independently leased in accordance with all Requirements,
with reasonable access to and from any common areas on the floor on which such space is located.




          (b) Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not have
the Expansion Option, and the Expansion Option shall be null and void and of no force or effect,
if (i) Tenant gives the Contraction Exercise Notice on or (except as hereinafter expressly
provided) before the date that Tenant gives the Expansion Exercise Notice, (ii) Tenant gives the
Expansion Exercise Notice to Landlord after the Expansion Notice Date, or (iii) on the date Tenant
gives to Landlord the Expansion Exercise Notice, (A) this Sublease is not in full force and effect,
or (B) an Event of Default exists. Notwithstanding anything contained in clause “(i)” above to the
contrary, if (x) Tenant has given the Contraction Exercise Notice, (y) as of the date Tenant gives
to Landlord the Expansion Exercise Notice, Landlord has not leased any portion of the Contraction
Space and has not negotiated all of the material terms of a lease for any portion of the
Contraction Space, and (z) as of the date Tenant gives to Landlord the Expansion Exercise Notice,
Landlord has neither commenced, nor committed to expend non-refundable monies for, the Demising
Work in respect of the Contraction Space and the rescission of the Contraction Exercise Notice will
not otherwise adversely affect Landlord in more than a de minimis manner, then in the Expansion
Exercise Notice Tenant may irrevocably request Landlord to rescind the Contraction Exercise Notice
by providing in the Expansion Exercise Notice substantially the following statement in bold and
CAPITAL letters: “PURSUANT TO SECTION 42.02(b) OF THE SUBLEASE, TENANT HEREBY IRREVOCABLY REQUESTS
LANDLORD TO RESCIND THE CONTRACTION EXERCISE NOTICE GIVEN BY TENANT ON ______________ [TENANT TO
INSERT THE APPROPRIATE DATE]. IF LANDLORD FAILS TO REJECT SUCH RESCISSION, WITHIN TEN (10)
BUSINESS DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE ACCEPTED SUCH
RESCISSION.” If Tenant so irrevocably requests Landlord to rescind the Contraction Exercise Notice,
then, within ten (10) Business Days after Landlord receives the Expansion Exercise Notice, Landlord
shall notify Tenant as to whether or not the conditions in clauses “(y)” and “(z)” above are
satisfied. If Landlord notifies Tenant that the conditions in clauses “(y)” and “(z)” above are
satisfied, or, if within ten (10) Business Days after Landlord receives the Expansion Exercise
Notice, Landlord fails to reject such rescission (it being understood and agreed that the only
basis for Landlord to reject such rescission is if the conditions in both clauses “(y)” and “(z)”
above are not satisfied, the determination of which shall be made by Landlord in good faith, but
otherwise in Landlord’s sole and absolute judgment), then (1) the Contraction Exercise Notice and
the Contraction Option in respect thereof shall be irrevocably rescinded ab initio as if Tenant had
not exercised the Contraction Option, (2) all of Tenant’s obligations with respect to the
Contraction Space shall be reinstated retroactive to the Contraction Effective Date, (3) within
thirty (30) days after Landlord’s demand therefor, Tenant shall pay to Landlord all Base Rent



198









 




and Additional Rent that would have been payable in respect of the Contraction Space, but for the
exercise of the Contraction Option, and (4) for the purposes of clause “(i)” above, Tenant shall
not be deemed to have given the Contraction Exercise Notice before the date that Tenant gives the
Expansion Exercise Notice, but all of the other conditions to the exercise of the Expansion Option
shall not be affected. If, within ten (10) Business Days after Landlord receives the Expansion
Exercise Notice, Landlord notifies Tenant that the conditions in both clauses “(y)” and “(z)” above
are not satisfied,
then the rescission of the Contraction Exercise Notice shall not be effective and the
Expansion Option shall be null and void.




          (c) For the purposes of this Sublease, “Expansion Space” shall mean space, as selected by
Tenant and approved by Landlord (which approval shall only be required, pursuant to this
subsection (c), for PF Expansion Space), consisting of either (A) the balance of the fifth
(5th) floor of the Building (i.e., the entire 5th floor of the Building,
excluding the Excluded 5th Floor Portions, but including the WN Space (as defined in
Section 44.02(a) hereof)), or (B) PF Expansion Space of not less than 15,000 RSF of contiguous
space on the fifth (5th) floor of the Building that is contiguous to the Excluded
5th Floor Portions, provided that, with respect to the space described in this clause
“(B),” the balance of the fifth (5th) floor of the Building (excluding the Excluded
5th Floor Portions) consists of not less than 15,000 RSF and such space and such
balance of the 5th floor of the Building have a commercially reasonable configuration
such that both the Expansion Space and the balance of the space on the 5th floor of the
Building (excluding the Excluded 5th Floor Portions) shall each constitute one or more
Rentable Blocks, and provided further that, with respect to the space described in this clause
“(B),” Tenant may not include any of the WN Space. With respect to PF Expansion Space, if
Landlord fails to reject the Expansion Space described in the Expansion Exercise Notice within ten
(10) Business Days after its receipt of the Expansion Exercise Notice, then Landlord shall be
deemed to have approved such Expansion Space, or if Landlord rejects the Expansion Exercise Notice
as not being effective or if Landlord rejects the Expansion Space described in the Expansion
Exercise Notice within such ten (10) Business Day period, then such dispute shall be determined by
arbitration in accordance with the provisions of Article 34 hereof, it being understood and agreed
that (x) the only basis for Landlord’s rejection of the Expansion Space described in the Expansion
Exercise Notice is that Landlord has determined that (1) the Expansion Space in question or the
balance of the space on the 5th floor of the Building (excluding the Excluded
5th Floor Portions), or both, does/do not each constitute one or more Rentable Blocks,
or (2) the proposed Expansion Space is not contiguous to the Excluded 5th Floor
Portions or is less than 15,000 RSF of contiguous space on the fifth (5th) floor of the
Building, or (3) the balance of the fifth (5th) floor of the Building consists of not
less than 15,000 RSF (which determinations shall be set forth in reasonable detail in Landlord’s
notice of rejection, together with an alternative recommendation and, if applicable, whether a
portion of the Expansion Space proposed by Tenant is acceptable to Landlord and describe such
acceptable portion), (y) the only issues to be determined by such arbitration shall be whether
Landlord’s rejection of the Expansion Exercise Notice is effective based on the factors described
in clause “(x),” and if either Landlord or




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Tenant request, the RSF of the final Expansion Space,
and (z) until such dispute is resolved either by mutual agreement of Landlord and Tenant or
pursuant to such arbitration the proposed Expansion Space shall not be added to the premises
demised under this Sublease and Landlord shall not lease the proposed Expansion Space to any other
person, unless such lease is subject to Tenant’s rights to the Expansion Space pursuant to this
Section. With respect to PF Expansion Space, and without extending the Expansion Notice Date,
prior to the giving of the Expansion Exercise
Notice, Tenant may submit to Landlord a reasonably detailed floor plan of the entire floor on
which such proposed Expansion Space is located, indicating in reasonable detail the location of
the proposed Expansion Space, and promptly after Tenant submits such floor plan Landlord shall
either approve or reject such proposed Expansion Space. If Landlord approves such proposed
Expansion Space and Tenant thereafter gives the Expansion Exercise Notice in respect of the same
Expansion Space, then Landlord’s approval of such Expansion Space shall be deemed given. If the
Expansion Space is not the entire fifth (5th) floor of the Building, and Tenant is not
leasing the balance of the fifth (5th) floor of the Building, then Landlord shall, at
Landlord’s sole cost, perform any necessary Demising Work on the 5th floor of the
Building with respect to the leasing by Tenant of the Expansion Space. Notwithstanding the
foregoing, if Tenant has selected the Expansion Space described in clause “(A)” above, then, by
notice to Tenant given within thirty (30) days after Landlord’s receipt of the Expansion Exercise
Notice, TIME BEING OF THE ESSENCE, Landlord may substitute for all (but not a portion) of the WN
Space portion of the Expansion Space, space selected by Landlord on the fourth (4th)
floor of the Building comprising approximately the same number of RSF as the WN Space, which space
on the fourth (4th) floor of the Building shall be delivered in accordance with the
provisions of Section 42.02(d) below. If Landlord gives such notice to Tenant, then for all
purposes of this Sublease the portion of the fourth (4th) floor of the Building so
selected by Landlord shall be a part of the Expansion Space. If the Expansion Space includes a
portion, but is not the entire, fifth (5th) floor of the Building and/or includes a
portion, but not the entire, fourth (4th) floor of the Building, and Tenant is not
leasing the balance of the floor in question, then Landlord shall, at Landlord’s sole cost,
perform any necessary Demising Work on the floor(s) in question on which the Expansion Space is
located.




          (d) Demising Work for the Expansion Space shall be performed by Landlord and, subject to the
provisions of Section 4.02, the Expansion Space shall be delivered in the same condition as the
balance of the Premises is being delivered to Tenant on the Commencement Date.




          (e) If Tenant gives the Expansion Exercise Notice in the manner set forth in Section
42.02(a), then, subject to the provisions of Section 42.02(b) above:




               (i) Effective from and after the Expansion Effective Date, the terms “5th Floor
Premises,” “Office Space,” and “Premises,” as such terms are used in this Sublease, shall include
the Expansion Space, the floor plan set forth on Exhibit B-1 hereto shall be deemed amended
accordingly, and the RSF of the 5th Floor Premises,



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the Office Space and the Premises
shall be increased by the RSF of the Expansion Space;




               (ii) Effective from and after the Expansion Effective Date, the Base Rent payable by Tenant
pursuant to Section 1.04(a) of this Sublease shall be increased by Expansion Space Base Rent (as
hereinafter defined);



               (iii) Effective from and after the Expansion Effective Date, this Sublease shall be amended by
increasing the “Tenant’s Proportionate Share” by adding thereto the fraction, expressed as a
percentage, the numerator of which is [***] and the denominator of which is [***];



               (iv) Effective on the Expansion Effective Date, the Base Tenant Allowance (with a
corresponding increase in the Tenant Allowance) shall be increased by $[***], multiplied by the RSF
of the Expansion Space; and



               (v) The provisions of Section 17.05(c) hereof shall apply.



          (f) For the purposes of this Article, “Expansion Space Base Rent” means, during the First
Rent Period, the product of $[***] per annum, multiplied by the RSF of the Expansion Space, and,
during the Second Rent Period, the product of $[***] per annum, multiplied by the RSF of the
Expansion Space.




     42.03 (a) Post-Execution 5th Floor Contraction Option. In addition to the Contraction
Option, Tenant shall have the one-time option (the “5th Floor Contraction Option”) to reduce the
premises demised to Tenant under this Sublease by the 5th Floor Contraction Space (as hereinafter
defined), effective on the date (the “5th Floor Contraction Effective Date”) which is the date
Landlord receives the 5th Floor Contraction Exercise Notice (as hereinafter defined), which 5th
Floor Contraction Option shall be exercised only by Tenant giving to Landlord notice thereof (the
“5th Floor Contraction Exercise Notice”) on or before January 2, 2011 (the “5th Floor Contraction
Notice Date”), TIME BEING OF THE ESSENCE.



          (b) Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not
have the 5th Floor Contraction Option, and the 5th Floor Contraction Option shall be null and void
and of no force or effect, if (i) Tenant gives the 5th Floor Contraction Exercise Notice to
Landlord after the 5th Floor Contraction Notice Date, (ii) Tenant has theretofore given the
Contraction Exercise Notice (and the Contraction Exercise Notice has not been rescinded pursuant
to Section 42.02(b) hereof), or (iii) Tenant has commenced any Alterations in or to any portion of
the 5th Floor Contraction Space.






 




			
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separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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          (c) For the purposes of this Sublease, “5th Floor Contraction Space” shall mean the portion
of the 5th floor of the Building, substantially where shown in cross-hatching on the
floor plan annexed hereto as Exhibit B-1.




          (d) On the 5th Floor Contraction Effective Date, all of Tenant’s rights, title and interest
in and to the 5th Floor Contraction Space shall end, and Tenant’s subleasehold estate in the 5th
Floor Contraction Space created by this Sublease shall terminate and expire.




          (e) All of Tenant’s obligations and liabilities under this Sublease with respect to the 5th
Floor Contraction Space which accrue or arise or relate to matters occurring on or before the 5th
Floor Contraction Effective Date shall survive the 5th Floor Contraction Effective Date.




          (f) Tenant hereby covenants, represents and warrants to Landlord that as of the 5th Floor
Contraction Effective Date the 5th Floor Contraction Space shall be free of all tenants,
subtenants and other occupants and all leases and subleases, and there shall be no other persons
or entities claiming, or who or which may claim, any rights of possession, occupancy or use of the
5th Floor Contraction Space or any portions thereof.




          (g) If Tenant gives the Contraction Exercise Notice in the manner set forth in Section
42.03(a), then, subject to the provisions of Section 42.03(b) above:




               (i) Effective from and after the date next succeeding the 5th Floor Contraction Effective
Date, the terms “5th Floor Premises,” “Office Space” and “Premises,” as such terms are
used in this Sublease, shall exclude the 5th Floor Contraction Space, the floor plan set forth on
Exhibit B-1 hereto shall be deemed amended accordingly, and the RSF of the 5th Floor
Premises, the Office Space and the Premises shall be reduced by the RSF of the 5th Floor
Contraction Space;



               (ii) Effective from and after the date next succeeding the 5th Floor Contraction Effective
Date, the Base Rent payable by Tenant pursuant to Section 1.04(a) of this Sublease shall be
decreased by 5th Floor Contraction Space Base Rent (as hereinafter defined);



               (iii) Effective from and after the date next succeeding the 5th Floor Contraction Effective
Date, this Sublease shall be amended by decreasing the “Tenant’s Proportionate Share” by
subtracting therefrom the fraction, expressed as a percentage, the numerator of which is [***] and
the denominator of which is [***];



               (iv) Effective on the date Tenant gives the 5th Floor Contraction Exercise Notice,
the Base Tenant Allowance shall be reduced by $[***], multiplied by the





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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RSF of the 5th Floor
Contraction Space (i.e., $[***]), and the Additional 5th Floor Tenant
Allowance shall be reduced by $[***], multiplied by the RSF of the 5th Floor
Contraction Space (i.e., $[***]), with a corresponding $[***] reduction in the Tenant Allowance;




               (v) Intentionally omitted; and



               (vi) The provisions of Section 17.05(c) hereof shall apply, i.e., the Maximum Supplemental
HVAC Capacity shall be reduced by 2 tons.



          (h) If Tenant exercises the 5th Floor Contraction Option, then the Renewal Option shall not
be applicable to the 5th Floor Contraction Space (unless Tenant again leases the 5th Floor
Contraction Space pursuant to any of the provisions of this Sublease or by mutual agreement of
Landlord and Tenant).




          (i) For the purposes of this Article, “5th Floor Contraction Space Base Rent” means, during
the First Rent Period, the product of $[***] per annum, multiplied by the RSF of the 5th Floor
Contraction Space (i.e., $[***] per annum), and, during the Second Rent Period, the product of
$[***] per annum, multiplied by the RSF of the 5th Floor Contraction Space (i.e., $[***] per
annum).



     42.04 (a) Mid-Term Contraction Option. In addition to the Contraction Option and the
5th Floor Contraction Option, Tenant shall have the one-time option (the “Partial
Surrender Option”) to surrender to Landlord the Surrender Space (as hereinafter defined), effective
on the date (the “Partial Surrender Effective Date”) which is the fifth (5th)
anniversary of the Commencement Date, which Partial Surrender Option shall be exercised only by
Tenant giving to Landlord notice thereof (the “Partial Surrender Exercise Notice”) on or before the
date (the “Partial Surrender Notice Date”) which is the fourth (4th) anniversary of the
Commencement Date, TIME BEING OF THE ESSENCE, and by paying to Landlord, by wire transfer or by
unendorsed bank or certified check (subject to collection), fifty (50%) percent of the Surrender
Payment (as hereinafter defined), either together with the giving of the Partial Surrender Exercise
Notice, by wire transfer or by unendorsed bank or certified check (subject to collection), on or
before the later of (x) the date on which Tenant gives the Partial Surrender Exercise Notice, and
(y) the date which is thirty (30) days after Landlord gives Tenant notice of the amount of the
Surrender Payment, TIME BEING OF THE ESSENCE. Any notice given by Tenant which purportedly
exercises the Partial Surrender Option shall not be effective as a Partial Surrender Exercise
Notice (i) if fifty (50%) percent of the Surrender Payment is not paid to Landlord by the later of
(x) the date on which Tenant gives such notice to Landlord, and (y) the date which is thirty (30)
days after Landlord gives Tenant notice of the amount of the Surrender Payment, in both cases, in
the form described above, or (ii) if it does not set forth the Surrender Space, it being understood
and agreed that the notice given by Tenant which purportedly exercises the Partial Surrender
Option must include a reasonably detailed floor plan of the entire floor on





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




203









 









which such proposed
Surrender Space is located, indicating in reasonable detail the location of the proposed Surrender
Space, but shall not be deemed ineffective because Landlord does not initially approve the space in
question as provided in subsection (c) below or, in the case where the RSF of the Surrender Space
is not set forth in this Sublease, because Landlord and Tenant cannot agree upon the RSF of the
proposed Surrender Space, including whether the RSF of the proposed Surrender Space exceeds 31,661
RSF (or, if Tenant has exercised the 5th Floor Contraction Option, exceeds 24,894 RSF)
of contiguous space on the lowest floor(s) of the premises then demised to Tenant under this
Sublease, as more particularly provided in Section 42.03(c). Notwithstanding the foregoing, any
notice given by Tenant which purportedly exercises the Partial Surrender Option, but which does not
contain substantially the following statement in bold and CAPITAL letters shall not be effective as
a Partial Surrender Exercise Notice: “THIS IS THE PARTIAL SURRENDER EXERCISE NOTICE WITH RESPECT
TO THE SURRENDER SPACE DESCRIBED IN SUBSECTION 42.04(c) OF THE SUBLEASE. IF LANDLORD FAILS TO
REJECT SUCH SURRENDER SPACE, AS DESCRIBED IN THIS PARTIAL SURRENDER EXERCISE NOTICE, WITHIN TEN
(10) BUSINESS DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED
SUCH SURRENDER SPACE.” Notwithstanding the foregoing, if Landlord has not theretofore approved
such Surrender Space, and by the Partial Surrender Effective Date described above the Surrender
Space has not been finally determined, then the “Partial Surrender Effective Date” shall be delayed
to (i) the date on which, pursuant to said subsection 42.04(c), Landlord gives Tenant notice that
it has approved the Surrender Space or the Surrender Space is deemed approved, or (ii) if the date
described in clause “(i)” does not occur, the date on which the dispute as to whether both the
Surrender Space and the balance of the space on the floor on which the Surrender Space is located
shall each constitute one or more Rentable Blocks is resolved pursuant to mutual of Landlord and
Tenant or pursuant to arbitration, as provided for in said subsection 42.04(c). The fifty (50%)
percent balance of the Surrender Payment shall be paid by Tenant to Landlord, as Additional Rent,
on or before the Partial Surrender Effective Date.




          (b) Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not
have the Partial Surrender Option, and the Partial Surrender Option shall be null and void and of
no force or effect, if (i) Tenant gives the Additional Space Exercise Notice on or before the
date that Tenant gives the Partial Surrender Exercise Notice, or (ii) Tenant gives the Partial
Surrender Exercise Notice to Landlord after the Partial Surrender Notice Date.




          (c) For the purposes of this Sublease, “Surrender Space” shall mean space, as selected by
Tenant and approved by Landlord (which approval shall only be required, pursuant to this
subsection (c), if the proposed Surrender Space is not all of the space leased by Tenant on the
floor in question), consisting of no more than 31,661 RSF (or, if Tenant has exercised the
5th Floor Contraction Option, no more than 24,894 RSF) of contiguous space on the
lowest floor of the premises then demised to Tenant under this Sublease (it being understood
and agreed that if the then lowest floor of the premises then demised to Tenant under this
Sublease comprises




204









 







less than 31,661 RSF (or, if Tenant has exercised the 5th Floor
Contraction Option, less than 24,894 RSF) of contiguous space, and the Surrender Space selected by
Tenant includes all of the space on such lowest floor, then the Surrender Space may, at Tenant’s
election, include contiguous space on the next lowest floor of the premises then demised to Tenant
under this Sublease of up to the difference between 31,661 RSF (or, if Tenant has exercised the
5th Floor Contraction Option, of up to the difference between 24,894 RSF) and the RSF
of the Surrender Space on such lowest floor), provided such space(s) and the balance of the space
on the floor(s) of the Building on which such space(s) is/are located have a commercially
reasonable configuration such that both the Surrender Space and the balance of the space(s) on
such floor(s) shall each constitute one or more Rentable Blocks. If Landlord fails to reject the
Surrender Space described in the Partial Surrender Exercise Notice within ten (10) Business Days
after its receipt of the Partial Surrender Exercise Notice, then Landlord shall be deemed to have
approved such Surrender Space, or if Landlord rejects the Partial Surrender Exercise Notice as not
being effective or if Landlord rejects the Surrender Space described in the Partial Surrender
Exercise Notice within such ten (10) Business Day period, then such dispute shall be determined by
arbitration in accordance with the provisions of Article 34 hereof, it being understood and agreed
that (x) the only basis for Landlord’s rejection of the Surrender Space described in the Partial
Surrender Exercise Notice is that Landlord has determined that either the Surrender Space in
question or the balance of the space on the floor(s) on which the Surrender Space is located, or
both does/do not each constitute one or more Rentable Blocks or Landlord has determined that
proposed Surrender Space exceeds 31,661 RSF (or, if Tenant has exercised the 5th Floor
Contraction Option, exceeds 24,894 RSF) RSF of contiguous space on the lowest floor(s) of the
premises then demised to Tenant under this Sublease (which determinations shall be set forth in
reasonable detail in Landlord’s notice of rejection, together with an alternative recommendation
and, if applicable, whether a portion of the Surrender Space proposed by Tenant is acceptable to
Landlord and describe such acceptable portion), (y) the only issues to be determined by such
arbitration shall be whether Landlord’s rejection of the Partial Surrender Exercise Notice is
effective based on the factors described in clause “(x),” and (z) until such dispute is resolved
either by mutual agreement of Landlord and Tenant or pursuant to such arbitration the proposed
Surrender Space shall remain a part of the premises demised under this Sublease. Notwithstanding
the foregoing, in the event that a dispute is resolved through arbitration and the arbitrator’s
decision favors the Tenant, then the parties shall adjust rent retroactively to the date of the
original Partial Surrender Effective Date. Without extending the Partial Surrender Notice Date,
prior to the giving of the Partial Surrender Exercise Notice, Tenant may submit to Landlord a
reasonably detailed floor plan of the entire floor on which such proposed Surrender Space is
located, indicating in reasonable detail the location of the proposed Surrender Space, and
promptly after Tenant submits such floor plan Landlord shall either approve or reject such
proposed Surrender Space. If Landlord approves such proposed Surrender Space and Tenant
thereafter gives the Partial Surrender Exercise Notice in respect of the same Surrender
Space, then Landlord’s approval of such Surrender Space shall be deemed given.




205









 








          (d) For the purposes of this Sublease, “Surrender Payment” shall mean an amount, to be
calculated by Landlord, subject to verification by Tenant, equal to the sum of (i) three (3)
months of the Base Rent for the Surrender Space on a per RSF basis, in effect as of the Partial
Surrender Effective Date (without taking into account any abatements, credits or offsets pursuant
to Articles 22, 23 or otherwise), (ii) the unamortized brokerage commissions paid by Landlord to
the Broker applicable to the Surrender Space, (iii) the unamortized cost of the Base Tenant
Allowance and, if applicable, the Additional 5th Floor Tenant Allowance applicable to
the Surrender Space paid by Landlord to Tenant (in cash or as a rent credit), and (iv) the
unamortized cost of the [***] applicable to the Surrender Space, all on a per RSF basis as of the
Partial Surrender Effective Date, with amortization to be calculated over the initial Term of this
Sublease using an agreed upon [***]% per annum interest factor. An example of the calculation of
the Surrender Payment for a Surrender Space containing 25,000 RSF and a Partial Surrender
Effective Date that occurs on the 5th anniversary of the Commencement Date is annexed
as Exhibit S. Without extending the Partial Surrender Notice Date, promptly after Tenant’s
request given to Landlord at any time after the date that is one hundred eighty (180) days
following [***], Landlord shall notify Tenant of the amount of the Surrender Payment. Any dispute
concerning the amount of the Surrender Payment shall be determined by arbitration in accordance
with the provisions of Article 34. Until such dispute is resolved either by mutual agreement of
Landlord and Tenant or pursuant to arbitration, Tenant shall pay the Surrender Payment as
calculated by Landlord and if the dispute is resolved in favor of Tenant, then the parties shall
adjust the Surrender Payment.




          (e) On the Partial Surrender Effective Date, all of Tenant’s rights, title and interest in
and to the Surrender Space shall end, and Tenant’s subleasehold estate in the Surrender Space
created by this Sublease shall terminate and expire, as if, with respect to the Surrender Space
only, the Partial Surrender Effective Date were the Expiration Date.




          (f) On or before the Partial Surrender Effective Date, Tenant shall quit and surrender to
Landlord the Surrender Space in the condition and in the manner provided in this Sublease for the
surrender of the Premises to Landlord on the Expiration Date. The failure of Tenant to quit and
surrender to Landlord the Surrender Space in the condition and in the manner provided in this
Sublease for the surrender of the Demised Premises to Landlord on the Expiration Date on or before
the Partial Surrender Effective Date shall be a default under this Sublease, entitling Landlord to
exercise any or all of its rights and remedies hereunder, and available at law and in equity,
other than terminating this Sublease with respect to the remaining portion of the
Premises. In addition, Landlord may exercise any or all of Landlord’s rights and remedies
under Section 24.02 of this Sublease as if, for the purposes of said Section 24.02, the Surrender
Space were the Premises. Furthermore, for the purposes of said Section 24.02, the Base Rent and
Additional Rent payable by Tenant during the last






 




			
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separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




206









 









year of the Term,” as applied to the Surrender
Space, shall mean the amounts of the Base Rent and Additional Rent that would have been payable
but for the surrender of the Surrender Space (i.e., the amounts by which the Base Rent and
Additional Rent are being reduced pursuant to subsections (j)(ii) and (l) below).




          (g) If the Surrender Space is not an entire floor of the Building, then Landlord, at Tenant’s
cost and expense, shall perform such Demising Work on the floor of the Building on which the
Surrender Space is located, as may be reasonably required by Landlord. In such event, Tenant
shall pay Landlord the costs and expenses reasonably incurred by Landlord to perform such Demising
Work (including architect fees, permit fees and construction costs) within thirty (30) days after
Landlord’s demand therefor accompanied by a reasonably detailed statement thereof. Any dispute
concerning the performance of Demising Work or the cost thereof shall be determined by arbitration
in accordance with the provisions of Article 34.




          (h) All of Landlord’s and Tenant’s obligations and liabilities under this Sublease with
respect to the Surrender Space which accrue or arise or relate to matters occurring on or before
the Partial Surrender Effective Date shall survive the Partial Surrender Effective Date. In
addition, Tenant shall remain obligated to comply with all of the terms, covenants and conditions
of this Sublease with respect to the Surrender Space on Tenant’s part to observe, perform and
comply with, through and including the date (the “Surrender Date”) on which Tenant actually quits
and surrenders to Landlord the Surrender Space in the condition and manner hereinbefore provided,
and all of Tenant’s obligations and liabilities under this Sublease with respect to the Surrender
Space which accrue or arise or relate to matters occurring on or before the Surrender Date shall
survive the Surrender Date. Nothing contained in this Article shall be deemed to extend the
Partial Surrender Effective Date or otherwise permit Tenant to hold-over its occupancy or
possession of any portion of the Surrender Space beyond the Partial Surrender Effective Date.




          (i) Tenant hereby covenants, represents and warrants to Landlord that as of the Partial
Surrender Effective Date the Surrender Space shall be free of all tenants, subtenants and other
occupants and all leases and subleases, and there shall be no other persons or entities claiming,
or who or which may claim, any rights of possession, occupancy or use of the Surrender Space or
any portions thereof.




          (j) If Tenant gives the Partial Surrender Exercise Notice in the manner set forth in Section
42.04(a), then, subject to the provisions of Section 42.04(b) above:




               (i) Effective from and after the date next succeeding the Partial Surrender Effective Date,
the terms “5th Floor Premises” (to the extent the Surrender Space comprises all or a
portion of the 5th Floor Premises), “Office Space” and
“Premises,” as such terms are used in this Sublease, shall exclude the Surrender Space, the
floor plans set forth in the exhibits to this Sublease shall be deemed amended accordingly, and the
RSF of the 5th Floor Premises (to the extent the



207









 




Surrender Space comprises all or a
portion of the 5th Floor Premises), the Office Space and the Premises shall be reduced
by the RSF of the Surrender Space;




               (ii) Effective from and after the date next succeeding the Partial Surrender Effective Date,
the Base Rent payable by Tenant pursuant to Section 1.04(a) of this Sublease shall be decreased by
Surrender Space Base Rent (as hereinafter defined); and



               (iii) Effective from and after the date next succeeding the Partial Surrender Effective Date,
this Sublease shall be amended by decreasing the “Tenant’s Proportionate Share” by subtracting
therefrom the fraction, expressed as a percentage, the numerator of which is [***] and the
denominator of which is [***];



               (iv) Intentionally omitted;



               (v) The provisions of Section 16.13 hereof shall apply; and



               (vi) The provisions of Section 17.05(c) hereof shall apply.



          (k) If Tenant exercises the Partial Surrender Option, then neither the Renewal Option nor the
ROFO Option shall be applicable to the Surrender Space (unless, with respect to the Renewal Option
only, Tenant again leases the Surrender Space pursuant to any of the provisions of this Sublease
(including Section 40.01 hereof) or by mutual agreement of Landlord and Tenant).




          (l) For the purposes of this Article, “Surrender Space Base Rent” means, during the First
Rent Period, the product of $[***] per annum, multiplied by the RSF of the Surrender Space, and,
during the Second Rent Period, the product of $[***] per annum, multiplied by the RSF of the
Surrender Space.




ARTICLE 43

EXISTING SUPERIOR LEASE




     43.01 Landlord represents and warrants to Tenant that (a) a true, accurate and complete copy
of the Existing Superior Lease is attached hereto as Exhibit T, (b) Landlord is the “Tenant” (as
defined in the Existing Superior Lease) under the Existing Superior Lease, (c) as of the Effective
Date, the Existing Superior Lease is in full force and effect, (d) as of the Effective Date, to the
best of Landlord’s knowledge, Landlord is
not in default in the payment of any rent or other sums due under the Existing Superior
Lease, (e) as of the Effective Date, (A) Landlord has not received any notice of default under the
Existing Superior Lease which remains uncured as of the Effective Date, and (B) to the best of
Landlord’s knowledge, the Existing Lessor is not in default thereunder, (f) Landlord has recorded a
memorandum of the Existing Superior





 




			
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Lease, and (g) Landlord has a recorded subordination,
non-disturbance and attornment agreement with the fee mortgagee (or its predecessor-in-interest),
except with respect to the Third Amendment of the Existing Superior Lease, Landlord hereby agreeing
to request an amendment to the existing subordination, non-disturbance and attornment agreement
with the existing fee mortgagee and, if same is received by Landlord, to use commercially
reasonable efforts to have same recorded.




     43.02 Landlord shall not voluntarily terminate the Existing Superior Lease, in whole or in
part with respect to any space in the Building that Tenant subleases or has a right to sublease
pursuant to this Sublease, except as permitted under this Sublease or the Existing Superior Lease
in the event of casualty or condemnation. Landlord agrees not to amend the Existing Superior
Lease, or consent to any amendment thereof (except for any amendment that is required by the terms
of the Existing Superior Lease as of the effective date of the Third Amendment of the Existing
Superior Lease), in any manner that will, except to a de minimis extent, increase the obligations
of Tenant under this Sublease or diminish the rights of Tenant under this Sublease or otherwise
adversely affect Tenant or that conflicts with the express provisions of this Sublease. Landlord
shall endeavor to provide Tenant with a copy of any amendment of the Existing Superior Lease both
prior to and after execution thereof by Landlord (in such event, Landlord may redact confidential
financial and other terms from any such copy of the amendment provided to Tenant which redacted
provisions do not affect Tenant). Attached hereto as part of Exhibit T is the Third Amendment to
the Existing Superior Lease.



     43.03 Landlord shall make all payments and perform all of its obligations under the Existing
Superior Lease as and when such payment and performance is due and shall not cause a default
thereunder that adversely affects Tenant’s rights under this Sublease or its business operation in
the Premises. Landlord shall, in good faith, use commercially reasonable efforts to (i) cause
Existing Lessor to perform all of its obligations under the Existing Superior Lease as and when
such performance is due if the failure to perform such obligations will adversely affect Tenant’s
rights under this Sublease or its business operation in the Premises and (ii) obtain Existing
Lessor’s consent or approval whenever required by the Existing Superior Lease (unless Existing
Lessor declines as may be permitted pursuant to the Existing Superior Lease).



     43.04 In the event Existing Lessor’s cooperation is necessary in connection with Tenant’s
obtaining any permits or otherwise completing any Alteration, occupying the Premises or conducting
Tenant’s business in the Premises, Landlord shall use commercially reasonable efforts to cause
Existing Lessor to so cooperate.



     43.05 (a) Landlord and Tenant acknowledge and agree that pursuant to Section 34.1(d) of the
Existing Superior Lease, if Landlord, as the tenant under the Existing Superior Lease, exercises
its right under the Existing Superior Lease to extend the term thereof for less than all of the
Building, the Existing Superior Lease requires an amendment to the Existing Superior Lease (a
“Multi-Tenant Amendment” ), as more particularly provided in said Section 34.1(d), including an
amendment that reflects a



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multi-tenanted building as provided in Exhibit I to the Existing Superior
Lease, and that if Landlord exercises its right under the Existing Superior Lease to extend the
term thereof for less than all of the Building, Landlord may not, during the Renewal Term, if any,
have the right or ability to control certain aspects of the operation and management of the
Building or the Real Property (including matters relating to services to be provided to Tenant and
the Renewal Premises, work that may be performed outside of the Renewal Premises, and repair,
restoration and maintenance obligations to the Renewal Premises and the Building). If Landlord
exercises its right under the Existing Superior Lease to extend the term thereof for less than all
of the Building, Landlord shall permit Tenant, at its sole cost and expense, (i) to participate in
the negotiation of the Multi-Tenant Amendment with the Existing Lessor or its representatives with
respect to those matters of the Multi-Tenant Amendment that would likely affect Tenant’s use and
occupancy of the Renewal Premises, including matters relating to services, work that may be
performed outside of the Renewal Premises, and repair, restoration and maintenance obligations (to
the extent such matters are not addressed in the Third Amendment of the Existing Superior Lease),
and (ii) if there is a dispute between the Existing Lessor and Landlord with respect to said
Exhibit I, to participate in the arbitration of such dispute, in accordance with, and subject to,
the applicable provisions of the Existing Superior Lease. Without affecting Tenant’s rights under
Section 43.06 below, it shall not be a default by Landlord under this Sublease if Landlord cannot
perform an obligation under this Sublease by virtue of the Building becoming a multi-tenanted
Building and being controlled, operated and managed by the Existing Lessor. Nothing set forth in
this Section 43.05 or in the Multi-Tenant Amendment shall relieve Landlord of its obligation to
enforce the provisions of the Existing Superior Lease on behalf of Tenant as provided herein.




          (b) If the Renewal Premises constitutes a majority of the RSF being renewed pursuant to the
Existing Superior Lease and the balance of the RSF being renewed pursuant to the Existing Superior
Lease is less than the equivalent of two (2) entire Base Floors, then Landlord shall not agree to
the Multi-Tenant Amendment without Tenant’s prior written approval, which approval shall not be
unreasonably withheld, conditioned of delayed, and if Tenant does not approve the proposed
Multi-Tenant Amendment, Landlord shall arbitrate same, with Tenant’s participation, in accordance
with, and subject to, the applicable provisions of the Existing Superior Lease. Also if the
Renewal Premises constitutes a majority of the RSF being renewed pursuant to the Existing Superior
Lease and the balance of the RSF being renewed pursuant to the Existing Superior Lease is less than
the equivalent of two (2) entire Base Floors, Landlord shall not reach any settlement of the
matters being arbitrated without Tenant’s prior written approval, which approval shall not be
unreasonably withheld, conditioned of delayed, it being understood and agreed that with respect to
any matters that Landlord, as the tenant under the Existing Superior Lease, is not permitted
to dispute, Tenant, in both the negotiation of the Multi-Tenant Amendment and in such arbitration,
shall have no right of approval and no right to dispute.



     43.06 If Existing Lessor shall default in any of its obligations to Landlord with respect to
the Premises, which default actually adversely affects Tenant’s ability to



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conduct its business
operations within the Premises or otherwise adversely affect Tenant’s enjoyment the Premises and
the appurtenances demised to Tenant hereunder (an “Existing Lessor Default”), and Landlord seeks to
enforce its rights against Existing Lessor regarding such Existing Lessor Default, then Landlord
shall inform Tenant thereof and keep Tenant reasonably apprised of such enforcement. In no event
shall Landlord have any obligation to bring any action or proceeding or to take any steps to
enforce Landlord’s rights against Existing Lessor. If, however, within ten (10) Business Days
after receiving written request from Tenant of an Existing Lessor Default, Landlord shall fail or
refuse to (a) take appropriate action as determined in Landlord’s reasonable discretion for the
enforcement of Landlord’s rights against Existing Lessor in respect of such Existing Lessor Default
within a reasonable period of time considering the nature of such Existing Lessor Default, or (b)
provide to Tenant a reasonable good-faith explanation for why Landlord does not believe the
enforcement of such rights against Existing Lessor would be an appropriate course of action, Tenant
shall then have the right to take such action in Tenant’s own name, and for that purpose and only
to such extent all of the rights of Landlord under the Existing Superior Lease hereby are conferred
upon and assigned to Tenant, and Tenant is subrogated hereby to such rights to the extent that the
same shall apply to the Premises. Tenant hereby agrees that Tenant shall indemnify and hold
Landlord harmless from and against all liability, loss, damage or expense, including, without
limitation, reasonable attorney’s fees and expenses, which Landlord shall suffer or incur by reason
of any action taken by Tenant against Existing Lessor under this Section 43.06 other than
Landlord’s fees to monitor or participate in such litigation. If any such action against Existing
Lessor in Tenant’s name shall be barred by reason of lack of privity, nonassignability or
otherwise, Tenant may take such action in Landlord’s name provided Tenant has obtained the prior
written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed, and provided that Tenant is identified to the maximum extent possible in any pleadings as
the real party in interest and Tenant hereby agrees, that Tenant shall indemnify and hold Landlord
harmless from and against all liability, loss, damage or expense, including, without limitation,
reasonable attorneys’ fees and expenses, which Landlord shall suffer or incur by reason of any
action taken by Tenant against Existing Lessor under this Section 43.06. Landlord agrees, without
cost to Landlord, to cooperate with Tenant in any reasonable manner requested by Tenant in
connection with an action or proceeding by Tenant against Existing Superior Lease in respect of the
Premises.




     43.07 Notwithstanding anything contained in this Sublease to the contrary, with respect to all
provisions of the Third Amendment of the Existing Superior Lease which give to Tenant certain
rights and benefits during the Renewal Term and impose upon Landlord any obligations, including
payment and indemnification obligations, with
respect to such rights and/or benefits, Tenant shall observe, perform and comply with the
obligations in question. including, but not limited to, with regard to the “Equipment” (as defined
in Section 8 of the Third Amendment of the Existing Superior Lease) and the “Building Fuel Tanks”
(as defined in Section 9(e) of the Third Amendment of the Existing Superior Lease). To the extent
the Existing Lessor will accept payment or performance of such obligations directly from Tenant,
Tenant shall make the payment in



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question or perform the obligation in question directly to the
Existing Lessor, otherwise Tenant shall reimburse Landlord for the payment or performance in
question to the extent such obligations are or were those of Tenant. Any right, benefit or
obligation relating to Landlord’s occupancy (or any sublessee or licensee of Landlord) shall remain
Landlord’s right, benefit or obligation. For the purposes of clarification, provisions of the
Third Amendment of the Existing Superior Lease which give to Tenant certain rights and benefits
shall include provisions that give Landlord such rights in the proportion to which such rights are
passed through to Tenant under this Sublease, and the obligations under the Third Amendment of the
Existing Superior Lease, which, pursuant to this Section, are Tenant’s obligation to observe,
perform or comply with, shall include obligations that are, pursuant to the Third Amendment of the
Existing Superior Lease, the joint and/or several obligation of Landlord and Tenant or only the
Landlord’s obligation thereunder.




ARTICLE 44

RIGHT OF FIRST OFFER




     44.01 Exercise of Right. If at any time prior to the last 36 months of the Term (as the same
may be extended) all or any portion of the rentable area of any space on floors 3 through 9 that is
contiguous to a floor or space that Tenant then subleases and that is not subject to this Sublease
(each such space being hereinafter referred to as an “ROFO Space”) is, or Landlord reasonably
believes the same is to become, Available (as hereinafter defined) and Landlord proposes to lease
such ROFO Space, Landlord shall deliver notice thereof to Tenant (an “ROFO Notice”) setting forth a
description of the ROFO Space in question, the rentable square footage of such ROFO Space,
Landlord’s determination of the ROFO Space Fair Market Value (as hereinafter defined) for such ROFO
Space (subject to Section 44.07 if the Acceptance Notice is given during the first 18 months of the
Term) and the date Landlord reasonably anticipates that such ROFO Space will become Available (the
“Anticipated ROFO Space Commencement Date”). The Anticipated ROFO Space Commencement Date set
forth in the ROFO Notice shall not be more than twelve (12) months and not less than three (3)
months after the date of the ROFO Notice if the ROFO Space is less than 50,000 RSF. The
Anticipated ROFO Space Commencement Date set forth in the ROFO Notice shall not be more than two
(2) years and not less than six (6) months after the date of the ROFO Notice if the ROFO Space is
50,000 RSF or more. Provided that all of the conditions precedent set forth in this Article 44
are satisfied by Tenant, Tenant shall have the option (an “ROFO Option”), exercisable by Tenant
delivering irrevocable notice to Landlord (an “Acceptance Notice”) to lease the ROFO Space
described
in the related ROFO Notice upon the terms and conditions set forth in this Article 44. If
Tenant elects to accept, Tenant shall deliver the Acceptance Notice to Landlord within ten (10)
Business Days after Tenant receives the ROFO Notice if the ROFO Space is less than 50,000 RSF and
shall deliver the Acceptance Notice to Landlord within thirty (30) days after Tenant receives the
ROFO Notice if the ROFO Space is 50,000 RSF or more. Notwithstanding the foregoing, if a tenant in
ROFO Space defaults under its lease and vacates, thereby giving Landlord unanticipated ROFO Space,
then the Anticipated ROFO Space Commencement Date, as designated by Landlord, shall not be less
than



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ninety (90) days after the date of the ROFO Notice and, if Tenant elects to exercise its
option, Tenant shall deliver the Acceptance Notice to Landlord within thirty (30) days after Tenant
receives the ROFO Notice. A ROFO Option may be exercised only with respect to all of the ROFO
Space that is the subject of an applicable ROFO Notice. If Tenant fails to timely give an
Acceptance Notice with respect to any ROFO Space, Tenant shall be deemed to have rejected
Landlord’s offer to lease the applicable ROFO Space and Landlord shall have no further obligation
and Tenant shall have no further rights for a period of one year thereafter with respect to that
particular ROFO Space during the Term.




     44.02 Definitions.



          (a) “Available” shall mean that at the time in question (i) no person or entity leases or
occupies the ROFO Space that is the subject of a ROFO Notice, whether pursuant to a lease or other
agreement, and (ii) no person or entity holds any option or right to lease or occupy such ROFO
Space, or to renew its lease or right of occupancy thereof. So long as a tenant or other occupant
leases or occupies a portion of the applicable ROFO Space, Landlord shall be free to extend any
such tenancy or occupancy, whether or not pursuant to a lease or other agreement, and such space
shall not be deemed to be Available. In no event shall Landlord be liable to Tenant for any
failure by any then existing tenant or occupant to vacate any of the ROFO Space, subject to
Section 44.05 below. From and after the date hereof, Landlord shall not grant any rights to any
tenant or other occupant of the Building with respect to any ROFO Space unless such rights are
subordinate to the rights granted Tenant hereunder, except to tenants and other occupants leasing
or occupying the applicable ROFO Space as of the date hereof or to new tenants or occupants of a
portion of the ROFO Space after Landlord shall have duly offered such portion of the ROFO Space to
Tenant pursuant to this Article 44. The ROFO Option shall not apply to (i) the portion of the
5th floor of the Building (such portion, the “WN Space” ) to be leased (or subleased)
to Gannaway Web Holdings LLC (d/b/a WorldNow) (or its successors, assigns, affiliates or
subsidiaries), including all extensions and renewals of such lease (or sublease), until such time
as the WN Space next becomes free of occupancy and rights of occupancy by Gannaway Web Holdings
LLC (d/b/a WorldNow) (and its successors, assigns, affiliates and subsidiaries), (ii) any space to
be used as relocation space for Gannaway Web Holdings LLC (d/b/a WorldNow) (or its successors,
assigns, affiliates or subsidiaries) or any other tenant or other occupant of the Building
(including all extensions and renewals of the term of the lease (or sublease) for such relocated
space), where such relocation is occurring to
allow Landlord to deliver to Tenant any Expansion Space, Supplemental Space or Additional
Space pursuant to the provisions of Section 42.02, Article 47 or Article 48 hereof (such
relocation space for Gannaway Web Holdings LLC (d/b/a WorldNow) (or its successors, assigns,
affiliates or subsidiaries) being herein referred to as the “WorldNow Relocation Space” ), until
such time as the relocation space in question next becomes free of occupancy and rights of
occupancy by Gannaway Web Holdings LLC (d/b/a WorldNow) (and its successors, assigns, affiliates
and subsidiaries) and by such other relocated tenant or other occupant of the Building (and such
other relocated tenant’s or




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other occupant’s successors, assigns, affiliates and subsidiaries), as
the case may be, or (iii) any space being used or to be used by Landlord or any of its affiliates.
The ROFO Option shall not apply to the first letting of each portion of the Contraction Space or
the 5th Floor Contraction Space after the exercise of the Contraction Option or the
5th Floor Contraction Option, respectively (or to any renewals or extensions of such
lettings, regardless of whether such renewals or extensions are pursuant to options or rights
granted to the tenants thereof) and the ROFO Option shall not apply to any letting of any portion
of the Surrender Space after the exercise of the Partial Surrender Option.




          (b) “ROFO Space Fair Market Value,” with respect to each ROFO Space, shall mean the fair
market annual rental value of such ROFO Space at the commencement of the leasing of such ROFO
Space for a term commencing on the applicable ROFO Space Commencement Date (as hereinafter
defined) and ending on the Expiration Date, as determined by Landlord based on comparable space in
the Building and other Class A office buildings located in Long Island City, Queens, New York,
including all of Landlord’s services provided for in this Sublease and with (i) such ROFO Space
considered as vacant and in the “as is” condition which same shall be in on the applicable ROFO
Space Commencement Date, (ii) the Base Tax Year being the Tax Year in which the applicable ROFO
Space Commencement Date occurs (subject to the provisions of Section 44.07) and (iii) the Base
Expense Year being the Comparison Year in which the applicable ROFO Space Commencement Date occurs
(subject to the provisions of Section 44.07). The calculation of ROFO Space Fair Market Value
shall also take into account any other relevant factors.




     44.03 Conditions to Exercise. Tenant shall have no right to exercise a ROFO Option unless all
of the following conditions have been satisfied on the date the applicable Acceptance Notice is
delivered to Landlord:



          (a) No Event of Default shall have occurred and be continuing; and




          (b) The tenant named herein (i.e., JetBlue Airways Corporation) shall not have assigned this
Sublease except to a JetBlue Tenant and JetBlue Tenant(s) shall be in occupancy of at least 90,000
RSF of the Premises.




     44.04 Incorporation of ROFO Space. Effective as of the date on which Landlord delivers vacant
possession of a ROFO Space to Tenant (with respect to each
such ROFO Space, the “ROFO Space Commencement Date”):



          (a) Base Rent for such ROFO Space shall be the ROFO Space Fair Market Value as determined in
accordance with this Article 44, subject to the provisions of Section 44.07.




          (b) Tenant shall pay Tenant’s Tax Payment and Tenant’s Operating Payment with respect to such
ROFO Space in accordance with the provisions of Article 5, except that (i) the Base Tax Year shall
be the Tax Year in which the applicable ROFO Space Commencement Date occurs (subject to Section
44.07 if the




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Acceptance Notice is given in the first 18 months of the Term), (ii) the Base Expense
Year shall be the Expense Year in which the applicable ROFO Space Commencement Date occurs
(subject to Section 44.07 if the
Acceptance Notice is given in the first 18 months of the Term),
and (iii) the RSF of the Premises shall be increased by the rentable square footage of such ROFO
Space set forth in the applicable ROFO Notice, and such RSF and the related Tenant’s Proportionate
Share shall be determined in the same manner as the RSF for the Premises initially subleased
hereunder and Tenant’s Proportionate Share were determined;




          (c) The RSF of the ROFO Space shall be as set forth in the applicable ROFO Notice (which the
parties agree shall be the rentable square footage of such ROFO Space for all purposes of this
Sublease) provided that such RSF was determined in the same manner as the RSF for the Premises
initially subleased hereunder was determined) and Tenant’s Proportionate Share shall be
appropriately adjusted;




          (d) Except as provided in subsections (h) and (i) below, the applicable ROFO Space shall be
delivered in its “as is” condition, and Landlord shall not be obligated to perform any work with
respect thereto or make any contribution to Tenant to prepare such ROFO Space for Tenant’s
occupancy;




          (e) Intentionally Deleted; and




          (f) The applicable ROFO Space shall be added to and be deemed to be a part of the Premises
for all purposes of this Sublease (except as otherwise provided in this Section 44).




          (g) If Tenant shall not lease the entirety of a floor of the Building, then upon the exercise
of a ROFO Option and if Tenant shall thereafter lease the remainder of such floor hereunder, the
Premises shall, from and after Tenant’s leasing of the remainder of such floor, include the common
corridors and lavatories on such floor (except for the 8th floor);




          (h) Landlord to perform the applicable Demising Work; and




          (i) The provisions of Section 17.05(c) hereof shall apply.




     44.05 Possession. Except as otherwise expressly provided in this Section 44.05, in no event
shall Landlord be obligated to incur any fee, cost, expense or obligation, nor to prosecute any
legal action or proceeding, in connection with the delivery of any ROFO Space to Tenant nor shall
Tenant’s obligations under this Sublease with respect to the Premises or such ROFO Space be
affected thereby. Landlord shall not be subject to any liability and this Sublease shall not be
impaired if Landlord shall be unable to deliver possession of any ROFO Space to Tenant on any
particular date. Landlord agrees that it shall not waive any rights it may have against any person
or entity holding over in the ROFO Space, without any obligation to enforce any such rights. In
the event that any then existing tenant or occupant fails to vacate



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any of the ROFO Space that is
the subject of an Acceptance Notice on or before the Anticipated ROFO Space Commencement Date and
such failure shall continue for more than thirty (30) days thereafter, then Landlord agrees to use
commercially reasonable efforts to cause such existing tenant or occupant to vacate the ROFO Space
in question including the institution and prosecution of appropriate eviction proceedings. In the
event that Landlord fails to deliver possession of any ROFO Space that is the subject of an
Acceptance Notice within six (6) months following the Anticipated ROFO Space Commencement Date,
then Tenant shall have the right to terminate its Acceptance Notice with respect to such ROFO Space
by giving Landlord thirty (30) days written notice thereof, which termination notice must be given
prior to the date upon which Landlord delivers possession of such ROFO Space to Tenant; provided,
however, if Landlord shall deliver possession of such ROFO Space to Tenant on or before the
expiration of such thirty (30) day period, then Tenant’s termination of its Acceptance Notice shall
be null and void and of no force or effect whatsoever.




     44.06 Arbitration. If Tenant disputes Landlord’s determination of the ROFO Space Fair Market
Value for any ROFO Space pursuant to Section 44.01, Tenant shall give notice to Landlord of such
dispute within thirty (30) days after delivery of the ROFO Notice, and such dispute shall be
determined by arbitration in accordance with the then prevailing Expedited Procedures of the
Arbitration Rules for the Real Estate Industry of the American Arbitration Association or its
successor for arbitration of commercial disputes, except that the rules shall be modified as
follows:



          (a) In its demand for arbitration Tenant shall specify the name and address of the person to
act as the arbitrator on Tenant’s behalf. The arbitrator shall be a real estate broker with at
least 10 years full-time commercial brokerage experience who is familiar with the fair market
value of first-class office space in the vicinity of the Building. Failure on the part of Tenant
to make the timely demand for such arbitration shall constitute a waiver of the right thereto and
the Base Rent in respect of the ROFO Space in question shall be as set forth in the ROFO Notice
applicable thereto. Within 10 Business Days after the service of the demand for arbitration,
Landlord shall give notice to Tenant specifying the name and address of the person designated by
Landlord to act as arbitrator on its behalf, which arbitrator shall be similarly qualified. If
Landlord fails to notify Tenant of the appointment of its arbitrator within such 10 Business Day
period, and such failure continues for 3 Business Days after Tenant delivers a second notice to
Landlord, then the arbitrator
appointed by Tenant shall be the arbitrator to determine the ROFO Space Fair Market Value for
the ROFO Space in question.




          (b) If two arbitrators are chosen pursuant to Section 44.06(a), the arbitrators so chosen
shall meet within 10 Business Days after the second arbitrator is appointed and shall seek to
reach agreement on the ROFO Fair Market Value of the applicable ROFO Space. If within 20 Business
Days after the second arbitrator is appointed the two arbitrators are unable to reach agreement on
such ROFO Space Fair Market Value then the two arbitrators shall appoint a third arbitrator, who
shall be a competent and impartial person with qualifications similar to those required of the




216









 







first two arbitrators pursuant to Section 44.06(a). If they are unable to agree upon such
appointment within 5 Business Days after expiration of such 20 Business Day period, the third
arbitrator shall be selected by the parties themselves. If the parties do not agree on the third
arbitrator within 5 Business Days after expiration of the foregoing 5 Business Day period, then
either party, on behalf of both, may request appointment of such a qualified person by the then
president of the Real Estate Board of New York. The third arbitrator shall decide the dispute, if
it has not been previously resolved, by following the procedures set forth in Section 44.06(c).
Each party shall pay the fees and expenses of its respective arbitrator and both shall share the
fees and expenses of the third arbitrator. Attorneys’ fees and expenses of counsel and of
witnesses for the respective parties shall be paid by the respective party engaging such counsel
or calling such witnesses.




          (c) The ROFO Space Fair Market Value of the applicable ROFO Space shall be fixed by the third
arbitrator in accordance with the following procedures. Concurrently with the appointment of the
third arbitrator, each of the arbitrators selected by the parties shall state, in writing, his or
her determination of the ROFO Space Fair Market Value in respect of the applicable ROFO Space
supported by the reasons therefor. The third arbitrator shall have the right to consult experts
and competent authorities for factual information or evidence pertaining to a determination of
such ROFO Space Fair Market Value, but any such determination shall be made in the presence of
both parties with full right on their part to cross-examine. The third arbitrator shall conduct
such hearings and investigations as he or she deem appropriate and shall, within 30 days after
being appointed, select which of the two proposed determinations most closely approximates his or
her determination of such ROFO Space Fair Market Value. The third arbitrator shall have no right
to propose a middle ground or any modification of either of the two proposed determinations. The
determination the third arbitrator chooses as that most closely approximating his or her
determination of the ROFO Space Fair Market Value in respect of the applicable ROFO Space shall
constitute his or her decision and shall be final and binding upon the parties. The third
arbitrator shall render the decision in writing with counterpart copies to each party. The third
arbitrator shall have no power to add to or modify the provisions of this Sublease. Promptly
following receipt of the third arbitrator’s decision, the parties shall enter into an amendment to
this Sublease evidencing the ROFO of the Premises and confirming the Base Rent for the ROFO Space
in question, but the
failure of the parties to do so shall not affect the effectiveness of the third arbitrator’s
determination.




          (d) In the event of a failure, refusal or inability of any arbitrator to act, his or her
successor shall be appointed by him or her, but in the case of the third arbitrator, his or her
successor shall be appointed in the same manner as that set forth herein with respect to the
appointment of the original third arbitrator.




     44.07 Agreement of Terms. Notwithstanding the foregoing provisions of this Article 44 to the
contrary: (i) if the Acceptance Notice is given in the first 18 months of the Term, then the Base
Rent, Additional Rent, Base Expense Year and the Base Tax



217









 




Year shall be the same as provided in
this Sublease for the initial Premises, the [***] shall be applicable to the ROFO Space on a
prorated basis taking into account the later commencement date with respect to the ROFO Space and
the Base Tenant Allowance shall be prorated based on the then unexpired Term (it being understood
and agreed that there shall be no Additional 5th Floor Tenant Allowance or Supplemental
Tenant Allowance applicable to any ROFO Space); (ii) the ROFO Option shall not apply to the Renewal
Term except if Tenant exercises its Renewal Option prior to the last three (3) years of the initial
Term, in which case the ROFO Option may be exercised in all but the last three (3) years of the
Renewal Term (with the understanding that during the Renewal Term the ROFO Option shall only apply
to space that Landlord is then leasing under the Existing Superior Lease; and (iii) in accordance
with Article 40 hereof, the Base Rent and Additional Rent payable for any ROFO Space during the
Renewal Term shall be equal to the Base Rent and Additional Rent applicable to the ROFO Space, on a
per RSF basis, payable under the Existing Superior Lease for the Renewal Term. Landlord and
Tenant, at either party’s request, shall promptly execute and exchange an appropriate agreement
evidencing the leasing of each ROFO Space and the terms thereof in a form reasonably satisfactory
to both parties, but no such agreement shall be necessary in order to make the provisions hereof
effective. It shall be an Event of Default if any portion of ROFO Space is subleased during the
one (1) year period commencing on the corresponding ROFO Space Commencement Date.




ARTICLE 45

SIGNAGE; SECURITY DESK




     45.01 For the purposes of this Article, “Signage Requirements” means that (a) this Sublease is
then in full force and effect, (b) the Named Tenant or another JetBlue Tenant is the Tenant under
this Sublease, and (c) the premises demised under this Sublease consists of not less than 22,361
RSF of the Building above the ground floor, and the Named Tenant or another JetBlue Tenant is using
and occupying not less than 22,361 RSF of the Building above the ground floor, in accordance with,
and subject to, the applicable provisions of this Sublease, provided, however, that the requirement
set forth in this clause “(c)” shall not apply to the Tenant’s
right, pursuant to Section 45.03 hereof, to install the Rooftop Sign or Rooftop Sign Supports.
For the purposes of satisfying the Signage Requirements, the premises demised under this Sublease
shall not include any portion of the Storage Space.



     45.02 (a) For as long as all of the Signage Requirements remain satisfied, Tenant, at Tenant’s
sole cost and expense, may, from and after the Commencement Date, through the end of the initial
Term (subject to Tenant’s rights under the Third Amendment of the Existing Superior Lease during
the Renewal Term, if any, with respect to the matters set forth in this Section 45.02), (x)
station, from time to time, one individual (who is either an employee of Tenant or an independent
contractor engaged by Tenant) at the Building security desk located at each of the Queens Plaza
North and





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




218









 









27th Street Building lobbies (each such Building security desk being herein
referred to as a “Building Security Desk,” and collectively, as the “Building Security Desks”), at
such location at the Building Security Desks as reasonably designated from time to time by
Landlord, to greet and/or sign in Tenant’s employees and guests and (y) install (in accordance
with, and subject to, the applicable provisions of this Sublease) and operate during the initial
Term (subject to Tenant’s rights under the Third Amendment of the Existing Superior Lease during
the Renewal Term, if any, with respect to the matters set forth in this Section 45.02) a JetBlue
entry badge reader on one (1) existing turnstile in each of the two (2) ground floor lobbies of the
Building, together with identification signage on such existing turnstiles, it being understood and
agreed that the turnstiles on which Tenant installs such badge reader shall be for the
non-exclusive use of Tenant’s employees. In addition, Tenant, at Tenant’s sole cost and expense,
may, subject to, and to the extent permitted by, all applicable Requirements, and subject to the
reasonable rules and regulations of Landlord, at its sole cost and expense, provide its own
security to the Premises, provided that, except for the individuals stationed by Tenant at the
Building Security Desks, all security personnel operate within the Premises only.




          (b) The individuals stationed by Tenant at the Building Security Desks (such individuals,
together with such other security personnel provided by Tenant, being herein referred to as
“Tenant’s Security Personnel”) shall at all times (i) comply with all applicable Requirements and
all reasonable rules and regulations established from time to time by Landlord, (ii) be neatly
attired and otherwise behave in a manner consistent with the operation of a first-class office
building, (iii) not interfere with the operation or management of the Building, including the
performance by the security personnel of Landlord or Landlord’s managing agent stationed at the
Building Security Desks, and (iv) not direct the activities of anyone or anything not directly
related to access to and from the Premises, it being understood and agreed that duties of Tenant’s
Security Personnel shall be subject to Tenant’s obligations and Landlord’s rights and remedies
under this Sublease, at law and in equity, and that in the event of a conflict between the
instructions, directives or orders of Tenant’s Security Personnel and the instructions, directives
or orders of Landlord’s employees, agents or other representatives, the instructions, directives
or orders of Landlord’s employees, agents or other representatives shall control. The security
personnel stationed by Landlord at the
Building Security Desks shall meet the requirements set forth in clauses (i) and (ii) above.




     45.03 (a) For as long as all of the Signage Requirements remain satisfied, Tenant, at Tenant’s
sole cost and expense (except as otherwise expressly provided in this Section 45.03), may install
(and replace from time to time), in accordance with, and subject to, Article 13 and the other
applicable provisions of this Sublease, but only to the extent permitted by the Existing Superior
Lease, including limitations set forth in the
Existing Superior Lease as to the number of Tenant’s Signs (or consented to in writing by the
Existing Lessor) and applicable Legal Requirements, and maintain during the initial Term (subject
to Tenant’s rights under the Third Amendment of the Existing Superior Lease during the Renewal
Term, if any, with respect to the matters set forth in



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this Section 45.03) the following signs, it
being understood and agreed that, except for the Rooftop Sign and the Rooftop Sign Supports, no
Tenant’s Sign shall be installed prior to the Commencement Date, unless Landlord otherwise
expressly agrees in writing after the Effective Date:




               (i) Two (2) or more Signs (collectively, the “Lobby Signs”) approved by Landlord (which
approval shall not be unreasonably withheld or delayed), one or more of which is to be installed in
a portion of the East wall of the ground floor/Queens Plaza lobby of the Building indicated on
Exhibit W hereto, Landlord hereby approving the Lobby Signs described in said Exhibit W or Lobby
Signs substantially similar to the Lobby Signs described in said Exhibit W and one of which is to
be installed on a portion of the North wall of the ground floor/Queens Plaza lobby of the Building
as indicated on Exhibit W, it being understood and agreed that the Lobby Sign on said North wall
may not be the only Sign on said North wall;



               (ii) One (1) Sign (the “Interior Lobby Sign”) approved by Landlord (which approval shall not
be unreasonably withheld or delayed), to be installed on the wall in the ground
floor/27th Street lobby of the Building indicated on Exhibit X hereto, Landlord hereby
approving the Interior Lobby Sign described in said Exhibit X or an Interior Lobby Sign
substantially similar to the Interior Lobby Sign described in said Exhibit X;



               (iii) one (1) Sign (the “Rooftop Sign”) approved by Landlord (which approval shall not be
unreasonably withheld or delayed), to be installed on the roof of the Building in the Rooftop Sign
Area, together with related equipment, mountings, support structures and associated lines, wiring
and cabling (collectively, the “Rooftop Sign Supports”), Landlord hereby approving of the Rooftop
Sign described in Exhibit Y, as selected by Tenant, subject to such revisions that are required by
the applicable Governmental Authorities and approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed;



               (iv) a total of four (4) plaques (each, a “Building Entry Plaque”) approved by Landlord (which
approval shall not be
unreasonably withheld, conditioned or delayed), to be installed on the exterior façade of the
Building to the left and to the right of Building’s main entrance on Queens Plaza and the
Building’s entrance on 27th Street, in all cases in the location of (and replacement
for) the existing Building entry plaques (or in such other locations as reasonably designated by
Landlord in consultation with Tenant), Landlord hereby approving the Building Entry Plaques
described in Exhibit Z or Building Entry Plaques substantially similar to the Building Entry
Plaques described in said Exhibit Z, it being understood and agreed that Landlord may require the
Building Entry Plaques to be designed and installed as modifications or replacements of existing
plaques and that the Building Entry Plaques may include the name and/or logo of any of the tenants
of the Building whose name and/or logo is, on the Effective Date, included in an existing building
entry plaque, as well as the name and/or logo of one (1) or more other tenants or other occupants
of the Building from time to time that are leasing or occupying at least 92,000 RSF. Promptly



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after notice from Tenant to Landlord, but in no event prior to the Commencement Date, Landlord
shall have the Building Entry Plaques fabricated and installed, and Tenant shall reimburse
Landlord, as Additional Rent, fifty (50%) percent of the reasonable and actual out-of-pocket
third-party costs paid by Landlord to fabricate and install the Building Entry Plaques within
thirty (30) days after Landlord’s request therefor, which request shall be accompanied by a
reasonably detailed description of the work in question and reasonable evidence supporting the
costs thereof actually paid by Landlord therefor;




               (v) two (2) plaques (each, a “Directional Plaque”) approved by Landlord (which approval shall
not be unreasonably withheld, conditioned or delayed), to be installed on the exterior façade of
the Building, one (1) on the 28th Street/Queens Plaza corner of the Building and one (1)
on the 27th Street/Queens Plaza corner of the Building, in both cases in the location of
(and replacement for) the existing Building directional plaques (or in such other locations as
reasonably designated by Landlord in consultation with Tenant), Landlord hereby approving the
Directional Plaques described in Exhibit AA hereto or a Directional Plaque substantially similar to
the Directional Plaques described in said Exhibit AA, it being understood and agreed that Landlord
may require the Directional Plaques to be designed and installed as modifications or replacements
of existing plaques and that the Directional Plaques may include the name and/or logo of any of the
tenants of the Building whose name and/or logo is, on the Effective Date, included in an existing
directional plaque, as well as the name and/or logo of one (1) or more other tenants or other
occupants of the Building from time to time that are leasing or occupying at least 92,000 RSF.
Promptly after notice from Tenant to Landlord, but in no event prior to the Commencement Date,
Landlord shall have the Directional Plaques fabricated and installed, and Tenant shall reimburse
Landlord, as Additional Rent, fifty (50%) percent of the reasonable and actual out-of-pocket
third-party costs paid by Landlord to fabricate and install the Directional Plaques within thirty
(30) days after Landlord’s request therefor, which request shall be accompanied by a reasonably
detailed description of the work in question and reasonable evidence supporting the costs thereof
actually paid by Landlord therefor; and



               (vi) one (1) plaque, image or perforated film (the “Exterior Façade Sign”) approved by
Landlord (which approval shall not be unreasonably withheld, conditioned or delayed), to be
installed on the exterior façade of the Building above the entrance door to the Queens Plaza lobby
of the Building, in a location reasonably designated by Landlord in consultation with Tenant,
Landlord hereby approving the Exterior Façade Sign described in Exhibit BB or a Exterior Façade
Sign substantially similar to the Exterior Façade Sign described in said Exhibit BB, it being
understood and agreed that the Exterior Façade Sign shall be permitted only for as long as the
Rooftop Sign is not permitted by the Governmental Authorities having jurisdiction over the Rooftop
Sign and no Rooftop Sign or other Sign in the Rooftop Sign Area is actually being maintained by or
on behalf of Tenant or any other Tenant Party, and it being further understood and agreed that
during the initial Term (for so long as the Signage Requirements (without taking into account the
Rooftop Sign and Rooftop Sign



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Supports exception) are satisfied), Landlord shall not permit any
other tenant or other occupant to install a sign on the exterior façade of the Building above the
entrance door to the Queens Plaza lobby of the Building, other than as may be required by
applicable Requirements. The Exterior Façade Sign shall not reduce the level of natural light
admitted to the Queens Plaza lobby through the window above the entrance door except to a de
minimis extent; and




               (vii) At all times during the Term, in the event that Landlord has plaques, signs, displays or
other branding in common areas within the Building, including in the space devoted to Building
Amenities, excluding the walls on which the Lobby Signs are located, the wall on which the Interior
Lobby Sign is located and excluding any exterior signs on roofs (it being intended that the Rooftop
Sign is the sole exterior sign on or near a roof of the Building), there shall be parity in terms
of the number, size and visibility of such plaques, signs, displays or other branding between or
among Tenant, Landlord and any other tenants that have rented the same or greater RSF of space in
the Building who are granted the right to install plaques, signs, displays or other branding.



          (b) The Lobby Signs, the Interior Lobby Sign, the Rooftop Sign, the Building Entry Plaques,
the Directional Plaque, and the Exterior Façade Sign (collectively, “Tenant’s Signs”) may only
contain the name and/or logo of the Tenant under this Sublease, which is consistent with the
branding utilized by such Tenant in its national branding campaigns at the time in question. To
the extent not indicated in the above referenced Exhibits, or to the extent the final Tenant’s
Sign is not substantially similar to the corresponding Tenant’s Sign described in said Exhibits,
the location, size and dimensions and all other aspects of each Tenant’s Sign (including the
aesthetics, lettering, colors, materials, method of attachment and other physical aspects thereof)
shall be subject to Landlord’s prior approval, such approval not to be unreasonably withheld,
conditioned or delayed; provided, however, Landlord shall not be obligated to be reasonable with
respect to approval of any Tenant’s Sign (other than the Rooftop Sign) that is moving, mechanical,
flashing, neon, illuminated or has animated components. Notwithstanding anything contained in
this Sublease to the contrary, at no time shall Tenant be
permitted to maintain any Tenant Sign of an entity that is not an airline, notwithstanding
the fact that the Signage Requirements are satisfied.




          (c) Nothing contained in this Sublease shall be deemed to constitute a warranty or
representation by Landlord that the any portion of the Building (interior or exterior) may
lawfully be used to install or maintain any of the Tenant’s Signs, or that any portion of the
Building is suitable for the installation or maintenance of any of the Tenant’s Signs, Tenant
hereby acknowledging that neither Landlord, nor any person acting on behalf of Landlord, has made
any representations or warranties as to whether any portion of the Building may be so used or
whether any portion of the Building is suitable for such use.




          (d) If any license, permit, consent or approval is at any time required for the installation,
maintenance or repair of the Tenant’s Signs, Tenant shall duly




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procure such licenses, permits,
consents and approvals (collectively, the “Sign Permits”), prior to such installation (if so
required), submit the Sign Permits to Landlord, maintain the Sign Permits, and comply with, and
cause the compliance with, the terms and conditions of the Sign Permits, all at Tenant’s sole cost
and expense. To the extent Landlord’s cooperation is reasonably required to obtain any Sign
Permit, Landlord agrees to cooperate reasonably with Tenant (at no cost to Landlord) in connection
with Tenant obtaining such Sign Permit(s) (including, if necessary, the execution of any
applications or other documents required therefor), provided that in Landlord’s reasonable
judgment, such cooperation by Landlord is not reasonably likely in Landlord’s reasonable opinion
to subject Landlord (or any person claiming by, through or under Landlord) to any civil or
criminal liability, including civil or criminal fines or penalties for executing a false
statement.




          (e) Tenant shall comply with, and cause the compliance with, all Requirements applicable to
the Tenant’s Signs, including the installation, maintenance and repair thereof. If, and to the
extent, that applicable Requirements now or at any time hereafter do not permit the installation
or maintenance of any of the Tenant’s Signs, Tenant shall not be permitted to install or maintain
any such prohibited sign(s).




          (f) Tenant, at Tenant’s sole cost and expense, shall maintain the Tenant’s Signs (or cause
the Tenant’s Signs to be maintained) in good order and condition, reasonable wear and tear
excepted, and make all necessary repairs thereto and replacements thereof. Any replacement or
material modification by Tenant or any other Tenant Party of Tenant’s Signs shall be governed by
the provisions of this Article, as if such replacement or modification were a proposed new sign,
provided, however, except to the extent any circumstances or factors have changed from the date of
the original installation of the Tenant’s Signs, and provided Tenant gives Landlord at least ten
(10) Business Days prior notice of the proposed replacement or modification, Landlord’s approval
of the replacement or modification shall not be required to the extent the replacement or
modification is substantially the same as the sign being replaced, as the case may be.




          (g) To the extent that any insurance premium payable by Landlord is increased as a result of
the installation or maintenance of the Tenant’s Signs, Tenant shall pay to Landlord, as Additional
Rent, the amount of such increase(s) within thirty (30) days after Landlord’s demand therefor from
time to time.




          (h) Tenant shall not directly or indirectly, by operation of law, or otherwise, assign,
transfer or sublicense its right to install or maintain the Tenant’s Signs, provided, however,
that this subsection shall not prohibit Tenant from contracting with third-parties for the
installation, maintenance and removal of Tenant’s Signs on Tenant’s behalf.




          (i) Neither Landlord, nor any of its agents or employees, shall be liable for any damage to,
or theft of, the Tenant’s Signs, nor for any injury or damage to




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persons in connection with,
resulting from, or relating to, the installation or maintenance of the Tenant’s Signs.




          (j) If, pursuant to the Existing Superior Lease, Tenant is obligated to install the Rooftop
Sign, Tenant shall so install the Rooftop Sign, at its sole cost and expense, in accordance with,
and subject, to the applicable provisions of this Sublease and the Existing Superior Lease.




          (k) Subject to the provisions of the Third Amendment of the Existing Superior Lease, on or
prior to earliest of (i) the last day of the Term (as same may be renewed), (ii) the last day that
all of the Signage Requirements are satisfied, and (iii) the last day that Tenant is permitted to
install and maintain the Tenant’s Signs pursuant to this Section, Tenant shall, at its sole cost
and expense, remove the Tenant’s Signs, repair all damage to the Building resulting from such
removal, and restore those portions of the Building affected by the installation, maintenance,
operation and/or removal of the Tenant’s Signs.




     45.04 Landlord, at its cost and expense, and in coordination and consultation with Tenant,
shall be permitted, with no liability to Tenant, to remove temporarily any Tenant’s Sign in order
to allow the maintenance of, and/or the making of any and all repairs, replacements, changes,
modifications, improvements, decorations or substitutions to, any portion of the Building, except
that if the need for such maintenance and/or repairs results primarily from the installation or
presence of a Tenant’s Sign, such removal, maintenance and repair, and the re-installation
described in the next sentence, shall be made or performed by Landlord, at Tenant’s sole cost and
expense. Landlord shall, as soon as reasonably practicable, at Landlord expense (except as
otherwise expressly provided in the preceding sentence), re-install such signage, and if such
signage shall be removed for an extended period of time, Tenant, at its sole cost and expense,
shall be permitted to install temporary signage in lieu of the removed signage, subject to
Landlord’s prior reasonable consent, Tenant hereby agreeing to remove such temporary signage when
Landlord notifies Tenant that Landlord is ready to re-install such signage.



     45.05 Tenant shall have the following rights during the initial Term and (subject to the
provisions of the Third Amendment of the Existing Superior Lease with respect to the matters set
forth in this Section 45.05) during the Renewal Term, if any, with respect to signage and branding,
subject to Article 13 and the other applicable provisions of this Sublease, (i) so long as Tenant
leases an entire floor of the Building (other than the 8th floor of the Building), then
Tenant may brand and decorate the elevator lobbies on such floors with its corporate logo, colors
and identification, (ii) so long as Tenant leases all of the 8th floor of the Building
or all of the 8th floor of the Building less the Malcolm Pirnie Space, then Tenant may
install a corporate identification Sign in the elevator lobby and in the common corridor leading to
its premises on the 8th floor of the Building, subject in all instances to the
provisions of this Sublease concerning the approval of plans and specifications, the performance of
Alterations and the installation of Signs, (iii) so long as Tenant leases at least 30,990 RSF on
the 5th floor of the Building, then Tenant shall



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have the right to install in the
northern most elevator lobby on the fifth (5th) floor of the Building a corporate
identification Sign on the east wall, which Sign may be as large as the corporate identification
Signs on floors that Tenant entirely leases and may decorate said east wall with a color scheme
consistent with Tenant’s brand and otherwise reasonably acceptable to Landlord, (iv) Landlord shall
install a Building-standard directory, in the southern most elevator lobby on the fifth
(5th) floor of the Building, that shall list Tenant’s name for so long as Tenant
occupies the minimum RSF required hereunder on such fifth (5th) floor, and (v) on floors
of the Building on which the Premises are situated that are not covered in clause (i), (ii), (iii)
or (iv) above, “entry suite” signage that depicts the name and logo of Tenant or any Related Entity
of Tenant that is then occupying space on the floor of the Building in question, in the elevator
lobbies on the floors in which the Premises are situated and/or adjacent to the doors to the
Premises, provided Tenant, at its sole cost and expense clean and maintain such signage in good
order and condition. All aspects of such signage, including the aesthetics (e.g., the lettering
(including the size thereof) and colors) as well as the materials, location, method of attachment
and other physical aspects of such signage) shall be subject to Landlord’s prior approval, such
approval not to be unreasonably withheld or delayed; provided, however, that for the installation
of any such signage on any floor of the Building which is entirely leased by Tenant Landlord’s
approval of such aesthetics (as opposed to all aspects of such signage, including the materials,
location, method of attachment and other physical aspects of such signage) shall not be required.
Subject to the provisions of the Third Amendment of the Existing Superior Lease, Tenant, at its
sole cost and expense, shall remove all such signage on or prior to the earlier of (a) the last day
of the Term with respect to the floor of the Building in question (as such Term may be renewed),
and (b) the date that Tenant is no longer occupying such floor, and shall repair any damage to the
Building that may result from such removal and restore such portions of the Building to the
condition same were in prior to such installation.




     45.06 Except as expressly provided in this Article, neither Tenant nor any other Tenant Party
shall be permitted to install or maintain any Signs in any portion of the Building.



ARTICLE 46

INTENTIONALLY OMITTED




ARTICLE 47

SUPPLEMENTAL SPACE OPTION



     47.01 (a) One Year From Commencement Option. In addition to the Expansion Space
Option, but provided that the Supplemental Space Requirements (as such term is defined in Section
47.01(c) hereof) are satisfied on the date Tenant gives to Landlord the Supplemental Space Exercise
Notice (as hereinafter defined), Tenant shall have the one-time option (the “Supplemental Space
Option”) to lease the Supplemental Space (as hereinafter defined) from Landlord, for the period
commencing on the Supplemental Space Commencement Date (as hereinafter defined), and expiring



225









 




on the Expiration Date. The Supplemental Space Option shall be exercised only by Tenant giving to
Landlord notice thereof (the “Supplemental Space Exercise Notice”) on or before date (the
“Supplemental Space Notice Date”) which is the later of (A) August 1, 2012, and (B) thirteen (13)
months after the Commencement Date, TIME BEING OF THE ESSENCE. Any notice given by Tenant which
purportedly exercises the Supplemental Space Option but which does not set forth the Supplemental
Space, shall not be effective as a Supplemental Space Exercise Notice, it being understood and
agreed that if the Supplemental Space in respect of which Tenant desires to exercise the
Supplemental Space Option, when combined with the then Excluded 5th Floor Portions (as
such term is defined in Section 42.02(a)) and, if applicable, all other portions of the fourth
(4th) floor of the Building then leased to Tenant pursuant to other provisions of this
Sublease or to be leased to Tenant as a result of Tenant having exercised an Acceptance Notice
(such other portions of the fourth (4th) floor of the Building being herein referred to
as the “Excluded 4th Floor Portions” ), is not the entire fifth (5th) floor
or fourth (4th) floor, as the case may be, of the Building (such Supplemental Space
being herein referred to as “Partial Floor Supplemental Space” or “PF Supplemental Space” ), the
notice given by Tenant which purportedly exercises the Supplemental Space Option must include a
reasonably detailed floor plan of the entire floor(s) on which such proposed Supplemental Space is
located, indicating in reasonable detail the location of the proposed Supplemental Space, but shall
not be deemed ineffective because Landlord does not initially approve the space in question as
provided in subsection (b) or (c) below, as the case may be (it being understood and agreed that
Landlord shall have the right to approve only PF Supplemental Space), or, in the case where the RSF
of the Supplemental Space is not set forth in this Sublease, because Landlord and Tenant cannot
agree upon the RSF of the Supplemental Space or whether the proposed PF Supplemental Space
satisfies the requirements of “Supplemental Space” that are set forth in the definition of
“Supplemental Space” set forth in Section 47.01(c) hereof. If Landlord rejects the Supplemental
Space Exercise Notice as being ineffective, the issue shall be determined by arbitration in
accordance with the provisions of Article 34. Notwithstanding the foregoing, any notice given by
Tenant which purportedly exercises the Supplemental Space Option for PF Supplemental Space,
but which does not contain substantially the following statement in bold and CAPITAL letters shall
not be effective as a Supplemental Space Exercise Notice: “THIS IS THE SUPPLEMENTAL SPACE EXERCISE
NOTICE WITH RESPECT TO THE PARTIAL FLOOR SUPPLEMENTAL SPACE DESCRIBED IN SUBSECTION 47.01(c) -
TENANT TO INSERT THE APPROPRIATE SUBSECTION] OF THE SUBLEASE. IF LANDLORD FAILS TO REJECT SUCH
SUPPLEMENTAL SPACE, AS DESCRIBED IN THIS SUPPLEMENTAL SPACE EXERCISE NOTICE, WITHIN TEN (10)
BUSINESS DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED SUCH
SUPPLEMENTAL SPACE.” Notwithstanding the foregoing, if the Supplemental Space Exercise Notice is
in respect of PF Supplemental Space, and Landlord has not theretofore approved such Supplemental
Space, and by the Supplemental Space Commencement Date described in Section 47.01(e) below the
Supplemental Space has not been finally determined, then the “Supplemental Space Commencement Date”
shall be delayed to either (i) the date on which, pursuant to subsection 47.01(d) below, Landlord
gives Tenant notice




226









 







that it has approved the Supplemental Space or the Supplemental Space is deemed
approved, or (ii) if neither of the dates described in clause “(i)” occur, the date on which the
dispute as to whether both the Supplemental Space and the balance of the space on the floor on
which the Supplemental Space is located shall each constitute one or more Rentable Blocks is
resolved pursuant to mutual of Landlord and Tenant or pursuant to arbitration, as provided for in
said subsection 47.01(d).




          (b) Intentionally omitted




          (c) For the purposes of this Sublease, “Supplemental Space” shall mean up to 92,932 RSF of
space, as selected by Tenant and approved by Landlord (which approval shall only be required,
pursuant to this subsection (c), for PF Supplemental Space), consisting of not less than 15,000
RSF of contiguous space on the fifth (5th) floor of the Building that is contiguous to
the Excluded 5th Floor Portions, provided that, if the space selected on the fifth
(5th) floor of the Building is not the balance of the fifth (5th) floor of
the Building (excluding the Excluded 5th Floor Portions), such balance of the fifth
(5th) floor of the Building consists of not less than 15,000 RSF and such space and
such balance of the 5th floor of the Building (excluding the Excluded 5th
Floor Portions) have a commercially reasonable configuration such that both the Supplemental Space
and the balance of the space on the 5th floor of the Building (excluding the Excluded
5th Floor Portions) shall each constitute one or more Rentable Blocks, and provided
further that, if Tenant has included all or a portion of the WN Space in the Supplemental Space,
the Supplemental Space selected by Tenant also includes the entire balance of the space on the
5th floor of the Building, whether or not there are other tenants or occupants then in
possession of space on the 5th floor of the Building (excluding solely the Excluded
5th Floor Portions and, if Tenant has not selected the entire WN Space, excluding the
portion of the WN Space not selected by Tenant), except that the foregoing proviso shall not apply
if the Supplemental Space selected by Tenant
includes all of the WN Space and all of the 5th Floor Contraction Space (if Tenant
thereto exercised the 5th Floor Contraction Option). If the Supplemental Space
selected by Tenant pursuant to the preceding sentence consists of the entire fifth
(5th) floor of the Building (excluding the Excluded 5th Floor Portions), but
is less than 92,932 RSF, or if the entire fifth (5th) floor of the Building is then
leased to Tenant pursuant to other provisions of this Sublease or to be leased to Tenant as a
result of Tenant having exercised an Acceptance Notice), then, at Tenant’s option, the
Supplemental Space may include so much of the fourth (4th) floor of the Building which,
when combined with the Supplemental Space, if any, on the fifth (5th) floor of the
Building, consists of up to 92,932 RSF, in the aggregate, provided that the proposed Supplemental
Space is not less than 25,000 RSF of contiguous space on the fourth (4th) floor of the
Building if there is no Excluded 4th Floor Portions (or is not less than 15,000 RSF of
contiguous space on the fourth (4th) floor of the Building if there is Excluded
4th Floor Portions), as the case may be, provided further that, if the Supplemental
Space so selected by Tenant on the fourth (4th) floor of the Building is not the entire
fourth (4th) floor of the Building, the balance of the fourth (4th) floor of
the Building consists of not less than 15,000 RSF and the Supplemental Space and such balance of
the fourth (4th) floor of the Building have a commercially reasonable




227









 







configuration such that both the Supplemental Space on the fourth (4th) floor of the Building and the
balance of the space on the fourth (4th) floor of the Building shall each constitute
one or more Rentable Blocks. Notwithstanding the foregoing, if Tenant has included a portion of
the fourth (4th) floor of the Building in the Supplemental Space, then, by notice to
Tenant given within thirty (30) days after Landlord’s receipt of the Supplemental Space Exercise
Notice, Landlord may substitute for all of such fourth (4th) floor portion of the
Supplemental Space, space selected by Landlord on the eighth (8th) floor of the
Building comprising approximately the same number of RSF as the fourth (4th) floor
portion of the Supplemental Space selected by Tenant. If Landlord gives such notice to Tenant,
then for all purposes of this Sublease the portion of the eighth (8th) floor of the
Building so selected by Landlord shall be a part of the Supplemental Space. If the Supplemental
Space includes a portion, but is not the entire, fifth (5th) floor of the Building
and/or includes a portion, but not the entire, fourth (4th) floor of the Building,
and/or includes a portion, but not the entire, eighth (8th) floor of the Building, and
Tenant is not leasing the balance of the floor in question, then Landlord shall, at Landlord’s
sole cost, perform any necessary Demising Work on the floor(s) in question on which the
Supplemental Space is located. Notwithstanding anything contained in this subsection (c) to the
contrary, if Tenant has theretofore given the Expansion Exercise Notice, then the “92,932 RSF”
amount set forth in this subsection (c) shall be reduced by the RSF of the Expansion Space leased
by Tenant pursuant to Section 42.02 hereof, regardless of whether or not any or all of such
Expansion Space is demised to Tenant at the time Tenant gives the Supplemental Space Exercise
Notice to Landlord.




          (d) With respect to PF Supplemental Space, if Landlord fails to reject the Supplemental Space
described in the Supplemental Space Exercise Notice within ten (10) Business Days after its
receipt of the Supplemental Space Exercise Notice, then Landlord shall be deemed to have approved
such Supplemental Space, or if Landlord
rejects the Supplemental Space described in the Supplemental Space Exercise Notice within
such ten (10) Business Day period, then such dispute shall be determined by arbitration in
accordance with the provisions of Article 34 hereof, it being understood and agreed that (x) the
only basis for Landlord’s rejection of the Supplemental Space described in the Supplemental Space
Exercise Notice is that Landlord has determined that (1) the Supplemental Space in question or the
balance of the space on the floor(s) on which the Supplemental Space is/are located (excluding the
Excluded 5th Floor Portions and/or the Excluded 4th Floor Portions, as the
case may be), or both does/do not each constitute one or more Rentable Blocks, (2) the proposed
Supplemental Space is not contiguous to the Excluded 5th Floor Portions and/or the
Excluded 4th Floor Portions, as the case may be, or is less than 15,000 RSF of
contiguous space on the fifth (5th) floor of the Building or is less than 25,000 RSF of
contiguous space on the fourth (4th) floor of the Building if there is no Excluded
4th Floor Portions (or is less than 15,000 RSF of contiguous space on the fourth
(4th) floor of the Building if there is Excluded 4th Floor Portions), as the
case may be, or (3) the balance of the fifth (5th) floor and/or fourth (4th)
floor, as the case may be, of the Building consists of not less than 15,000 RSF, or (4) if Tenant
has included all or a portion of the WN Space in the Supplemental Space, the Supplemental Space




228









 







selected by Tenant does not also include the entire balance of the space on the 5th
floor of the Building (excluding the Excluded 5th Floor Portions and the portion of the
WN Space not selected by Tenant) (which determinations shall be set forth in reasonable detail in
Landlord’s notice of rejection, together with an alternative recommendation and, if applicable,
whether a portion of the Supplemental Space proposed by Tenant is acceptable to Landlord and
describe such acceptable portion), (y) the only issues to be determined by such arbitration shall
be whether or not Landlord’s rejection of the Supplemental Space Exercise Notice is effective
based on the factors described in clause “(x),” and, if either Landlord or Tenant request, the RSF
of the final Supplemental Space, and (z) until such dispute is resolved either by mutual agreement
of Landlord and Tenant or pursuant to such arbitration Landlord shall not lease the proposed
Supplemental Space to any other person. With respect to PF Supplemental Space, and without
extending the Supplemental Space Notice Date, prior to the giving of the Supplemental Space
Exercise Notice, Tenant may submit to Landlord a reasonably detailed floor plan of the entire
floor(s) on which such proposed Supplemental Space is/are located, indicating in reasonable detail
the location of the proposed Supplemental Space, and promptly after Tenant submits such floor
plan(s) Landlord shall either approve or reject such proposed Supplemental Space. If Landlord
approves such proposed Supplemental Space and Tenant thereafter gives the Supplemental Space
Exercise Notice in respect of the same Supplemental Space, then Landlord’s approval of such
Supplemental Space shall be deemed given, subject to Landlord’s right, as provided in Section
47.01(c) above, to substitute a portion of the eighth (8th) floor of the Building for
Supplemental Space on the fourth (4th) floor of the Building.




          (e) For the purposes of this Sublease, and subject to the provisions of Section 47.01(a)
above, “Supplemental Space Commencement Date” shall mean, subject to the provisions of Section
3.01 hereof, the date designated by Landlord in a notice to
Tenant given within thirty (30) days after Landlord’s receipt of the Supplemental Space
Exercise Notice, which Supplemental Space Commencement Date shall be no earlier than sixty (60)
days after Landlord’s receipt of the Supplemental Space Exercise Notice and no later than one
hundred eighty (180) days after Landlord’s receipt of the Supplemental Space Exercise Notice, but
in no event prior to the later of the (1) Commencement Date, and (2) the date which is 210 days
after the Effective Date. If the Supplemental Space Commencement Date does not occur pursuant to
the provisions of Section 3.01 by the date (the “Supplemental Space Outside Date”) which is six
(6) months after the date so designated by Landlord, and if no notice is given by Landlord, then
the Supplemental Space Outside Date shall be six (6) months after the date of Tenant’s
Supplemental Space Exercise Notice, and provided neither Tenant, nor any other Tenant Party
occupies the Supplemental Space on or before the Supplemental Space Outside Date, then Tenant
shall have the one time right to terminate its obligation to lease the Supplemental Space by
giving Landlord notice (the “Supplemental Space Termination Notice”) of the exercise of such right
no later than thirty (30) days after the Supplemental Space Outside Date, TIME BEING OF THE
ESSENCE. If the Supplemental Space Commencement Date has not occurred by the date Tenant gives
the Supplemental





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Space Termination Notice to Landlord and if Tenant gives to Landlord the
Supplemental Space Termination Notice in the time period and in the manner hereinbefore provided,
then, provided neither Tenant, nor any other Tenant Party has occupied the Supplemental Space, on
the date which is five (5) days after Landlord receives the Supplemental Space Termination Notice:
(A) Tenant’s obligation to lease the Supplemental Space and this Article shall be deemed null and
void; and (B) Landlord and Tenant shall be released and relieved from all of their respective
obligations and liability solely with respect to the Supplemental Space. If the Supplemental
Space Commencement Date occurs prior to the date, if any, Tenant gives the Supplemental Space
Termination Notice to Landlord, or if Tenant fails to give to Landlord the Supplemental Space
Termination Notice in the time period or in the manner hereinbefore provided, or if Tenant or any
other Tenant Party has occupied the Supplemental Space, Tenant shall have no right to terminate
its obligation to lease the Supplemental Space and any notice given by Tenant purporting to
exercise its rights pursuant to this subsection (e) to terminate Tenant’s obligation to lease the
Supplemental Space, shall be null and void. Tenant’s giving of the Supplemental Space Termination
Notice shall in no way modify or amend any of Tenant’s other obligations under this Sublease. In
addition, if the Supplemental Space Commencement Date does not occur pursuant to the provisions of
Section 3.01 by the date which is one (1) year after the date so designated by Landlord, or if
Landlord fails to timely designate a date, then on the date that is one (1) year after the date of
the Supplemental Space Exercise Notice, and Tenant’s obligation to lease the Supplemental Space
has not theretofore been terminated pursuant to the preceding sentences of this subsection (e),
then Tenant’s right to lease the Supplemental Space shall be terminated at the expiration of such
one (1) year period, TIME BEING OF THE ESSENCE, in which event (x) Tenant’s obligation to lease
the Supplemental Space and this Article shall be deemed null and void; and (b) Landlord and Tenant
shall be
released and relieved from all of their respective obligations and liability solely with
respect to the Supplemental Space, but such termination shall in no way modify or amend any of
Tenant’s other obligations under this Sublease.




          (f) For the purposes of this Article, “Supplemental Space Requirements” means that (i) this
Sublease is then in full force and effect, (ii) no Event of Default exists, (iii) Tenant has not
theretofore given the Contraction Notice, and (iv) a JetBlue Tenant (as such term is defined in
Section 9.11(g) hereof) is the Tenant under this Sublease.




     47.02 Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not
have the Supplemental Space Option if on the date Tenant gives to Landlord the Supplemental Space
Exercise Notice, the Supplemental Space Requirements are not satisfied.



     47.03 In addition to the provisions of Section 47.02 above, and notwithstanding anything
contained in this Sublease to the contrary, the Supplemental Space Option shall be deemed revoked,
null and void, and of no further force or effect, and the Supplemental Space Exercise Notice (or
purported Supplemental Space Exercise



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Notice) given in connection with Tenant’s attempt to exercise
the Supplemental Space Option shall be ineffective and void ab initio as an Supplemental Space
Exercise Notice, (a) if Tenant fails to give the Supplemental Space Exercise Notice to Landlord on
or before the Supplemental Space Notice Date (TIME BEING OF THE ESSENCE) materially in the manner
hereinbefore provided, or (b) if the notice given to Landlord amends, modifies or supplements (or
attempts or purports to amend, modify or supplement) any of the Supplemental Space Terms (as
hereinafter defined), including the location of the Supplemental Space, or (c) if on the date
Tenant gives the Supplemental Space Exercise Notice to Landlord, the Supplemental Space
Requirements are not satisfied, or (d) at the election of Landlord, by notice to Tenant, if the
guarantors under any guaranty in respect of this Sublease or the Premises fail to duly execute,
acknowledge and deliver to Landlord within ten (10) days after Landlord’s request therefor (if
Landlord so requests), a ratification of such guaranty, prepared by Landlord, which confirms that
such guaranty includes and covers the Supplemental Space and is otherwise in full force and effect,
it being agreed that the failure of Landlord to so request or the failure of any such guarantors to
so execute, acknowledge or deliver such ratification, shall not be deemed a waiver by Landlord of
any of such guarantors’ obligations or liabilities under such guaranties.




     47.04 If Tenant gives the Supplemental Space Exercise Notice to Landlord on or before the
Supplemental Space Notice Date, TIME BEING OF THE ESSENCE, and in the manner set forth in Section
47.01 above, then, subject to the provisions of Sections 47.02 and 47.03 above, as of the date
Landlord receives the Supplemental Space Exercise Notice, this Sublease shall be amended upon the
following terms and conditions (the “Supplemental Space Terms”):



          (a) Effective from and after the Supplemental Space Commencement Date, the terms “Office
Space” and “Premises,” as such terms are used in this Sublease, shall include the Supplemental
Space and the floor plans set forth in the exhibits to this Sublease shall be amended by adding
thereto the floor plan of the Supplemental Space, and the RSF of the Office Space and Premises
shall be increased by RSF of the Supplemental Space;




          (b) Effective from and after the [***], the Base Rent payable by Tenant pursuant to Section
1.04(a) of this Sublease shall be increased by the Supplemental Space Base Rent (as hereinafter
defined);




          (c) “[***]” shall mean the Supplemental Space Commencement Date, extended by one (1) day for
each day of the “[***],” which is defined as [***];




          (d) Effective from and after [***], this Sublease shall be amended by increasing the
“Tenant’s Proportionate Share” by adding thereto the fraction,






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




231









 









expressed as a percentage, the
numerator of which is [***] and the denominator of which is [***];




          (e) Subject to the provisions of Section 3.01 hereof, Landlord shall deliver, and Tenant
shall accept, possession and occupancy of the Supplemental Space on the Supplemental Space
Commencement Date in their then “AS-IS” condition and state of repair, subject to any and all
apparent defects therein (except (i) latent or hidden defects which were not reasonably
identifiable by Tenant prior to delivery of the Supplemental Space of which Tenant gives Landlord
notice within one (1) year following the date upon which possession of any such portion of the
Supplemental Space was delivered to Tenant), (ii) the performance by Landlord of the applicable
Demising Work, if any, and (iii) the Supplemental Space being in broom clean condition and free of
tenancies and occupancies. NEITHER LANDLORD, NOR ANY OF LANDLORD’S AGENTS, HAS MADE OR MAKES, ANY
WARRANTY, REPRESENTATION, COVENANT OR PROMISE, EXPRESS OR IMPLIED, IN RESPECT OF THE SUPPLEMENTAL
SPACE OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE OR OTHERWISE AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT. Tenant’s
failure, refusal or inability to open for business in the Supplemental Space, however, shall not
be deemed evidence that the Supplemental Space were not in good or satisfactory condition. Any
dispute concerning the delivery of possession of the Supplemental Space and the condition
thereof shall be determined by arbitration in accordance with the provisions of Article 34 hereof.




          (f) Landlord shall have no obligation to perform any work, supply any materials or incur any
cost (other than the Supplemental Space Tenant Allowance) in preparing the Supplemental Space for
Tenant’s occupancy, except that Landlord shall perform the Demising Work, if applicable, as
provided in Section 47.01(c), and shall deliver to Tenant a Form ACP-5 (or equivalent) applicable
to the Supplemental Space. Any installations, materials and work which may be undertaken by or
for the account of Tenant to equip, decorate and furnish the Supplemental Space for Tenant’s
initial occupancy thereof (hereinafter referred to as “Supplemental Space Tenant’s Work”) shall be
performed by Tenant, at Tenant’s sole cost and expense in accordance with the terms, covenants and
conditions set forth in this Sublease, including, without limitation, Article 13. As part of
Supplemental Space Tenant’s Work, Tenant agrees to perform the work described in Sections 10.04,
10.05 and 10.06 above. After the sooner of actual knowledge or Landlord’s receipt of written
notice from Tenant or from a Governmental Authority, Landlord shall promptly remedy any code
violations or conditions not caused by Tenant or any Tenant Party that would delay or prohibit the
issuance of a building permit for Supplemental Space Tenant’s Work;






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




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          (g) Effective on the Supplemental Space Commencement Date, Section 4.03 of this Sublease
shall apply to the Supplemental Space Tenant’s Work, with the following modification:




               (i) The term “Tenant’s Work” shall be deemed to refer to only the Supplemental Space Tenant’s
Work;



               (ii) The term “Tenant Allowance” shall be deemed to refer to the “Supplemental Space Tenant
Allowance,” which is defined as the product of (i) $[***], multiplied by (ii) the RSF of the
Supplemental Space, multiplied by (iii) the fraction, the numerator of which is number of days
during the period commencing on the Supplemental Space Commencement Date and ending on the last day
of the initial Term, and the denominator of which is the total number of days during the initial
Term, assuming the initial Term ends on June 1, 2023, and there shall be no Additional
5th Floor Tenant Allowance or Supplemental Tenant Allowance applicable to the
Supplemental Space;



               (iii) The term “Premises” shall be deemed to refer to the Supplemental Space;



               (iv) The term “[***]” shall be deemed to refer to [***]; and



          (h) The provisions of Section 16.13 hereof shall apply;




          (i) The provisions of Section 17.05(c) hereof shall apply;




          (j) Sections 4.01 and 4.02 of this Sublease shall not apply to the Supplemental Space.




     47.05 For the purposes of this Article, “Supplemental Space Base Rent” means, during the First
Rent Period, the product of $[***] per annum, multiplied by the RSF of the Supplemental Space, and,
during the Second Rent Period, the product of $[***] per annum, multiplied by the RSF of the
Supplemental Space.



     47.06 Intentionally omitted.



     47.07 If for any reason, the Supplemental Space Option is not exercised in accordance with,
and subject to, the applicable provisions of this Article, or is waived, rejected or revoked or
deemed waived, rejected or revoked, Landlord may, but shall not be obligated, at any time or from
time to time, to lease, license or otherwise permit the use of, all or any portions of the
Supplemental Space upon any terms and conditions that are acceptable to Landlord, subject to
Tenant’s other rights under Articles 44 and 48 of this Sublease.





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




233









 










ARTICLE 48

ADDITIONAL SPACE OPTION




     48.01 (a) Mid-Term Additional Space Option. Provided that the Additional Space
Requirements (as such term is defined in Section 48.01(f) hereof) are satisfied on the date Tenant
gives to Landlord the Additional Space Exercise Notice (as hereinafter defined), Tenant shall have
the one-time option (the “Additional Space Option”) to lease the Additional Space (as hereinafter
defined) from Landlord, for the period commencing on the Additional Space Commencement Date (as
hereinafter defined), and expiring on the Expiration Date. The Additional Space Option shall be
exercised only by Tenant giving to Landlord notice thereof (the “Additional Space Exercise Notice”)
on or before the date (the “Additional Space Notice Date”) which is twelve (12) months prior to the
Additional Space Commencement Date, TIME BEING OF THE ESSENCE. Any notice given by Tenant which
purportedly exercises the Additional Space Option but which does not set forth the Additional
Space, shall not be effective as an Additional Space Exercise Notice, it being understood and
agreed that if the Additional Space in respect of which Tenant desires to exercise the Additional
Space Option, when combined with the then Excluded 5th Floor Portions (as such term is
defined in Section 42.02(a)) and, if applicable, the Excluded 4th Floor Portions, is not
the entire fifth (5th) floor or fourth (4th) floor, as the case may be, of
the Building (such Additional Space being herein referred to as “Partial Floor Additional Space”
or “PF Additional Space” ), the notice given by Tenant which
purportedly exercises the Additional Space Option must include a reasonably detailed floor
plan of the entire floor(s) on which such proposed Additional Space is located, indicating in
reasonable detail the location of the proposed Additional Space, but shall not be deemed
ineffective because Landlord does not initially approve the space in question as provided in
subsection (b) or (c) below, as the case may be (it being understood and agreed that Landlord shall
have the right to approve only PF Additional Space), or, in the case where the RSF of the
Additional Space is not set forth in this Sublease, because Landlord and Tenant cannot agree upon
the RSF of the Additional Space or whether the proposed PF Additional Space satisfies the
requirements of “Additional Space” that are set forth in the definition of “Additional Space” set
forth in Section 48.01(b) or 48.01(c) hereof, as the case may be. If Landlord rejects the
Additional Space Exercise Notice as being ineffective, the issue shall be determined by arbitration
in accordance with the provisions of Article 34. Notwithstanding the foregoing, any notice given
by Tenant which purportedly exercises the Additional Space Option for PF Additional Space, but
which does not contain substantially the following statement in bold and CAPITAL letters shall not
be effective as an Additional Space Exercise Notice: “THIS IS THE ADDITIONAL SPACE EXERCISE NOTICE
WITH RESPECT TO THE PARTIAL FLOOR ADDITIONAL SPACE DESCRIBED IN SUBSECTION 48.01[(b) or (c)] -
TENANT TO INSERT THE APPROPRIATE SUBSECTION] OF THE SUBLEASE. IF LANDLORD FAILS TO REJECT SUCH
ADDITIONAL SPACE, AS DESCRIBED IN THIS ADDITIONAL SPACE EXERCISE NOTICE, WITHIN TEN (10) BUSINESS
DAYS AFTER ITS RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED SUCH
ADDITIONAL SPACE.” Notwithstanding the foregoing, if the Additional Space Exercise Notice is in
respect of



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PF Additional Space, and Landlord has not theretofore approved such Additional Space,
and by the Additional Space Commencement Date described in Section 48.01(e) below the Additional
Space has not been finally determined, then the “Additional Space Commencement Date” shall be
delayed to either (i) the date on which, pursuant to subsection 48.01(d) below, Landlord gives
Tenant notice that it has approved the Additional Space or the Additional Space is deemed approved,
or (ii) if neither of the dates described in clause “(i)” occur, the date on which the dispute as
to whether both the Additional Space and the balance of the space on the floor on which the
Additional Space is located shall each constitute one or more Rentable Blocks is resolved pursuant
to mutual of Landlord and Tenant or pursuant to arbitration, as provided for in said subsection
48.01(d).




          (b) For the purposes of this Sublease, “Additional Space” shall mean up to 92,932 RSF of
space (subject to the last sentence of this subsection (b)), as selected by Tenant and approved by
Landlord (which approval shall only be required, pursuant to this subsection (c), for PF
Additional Space), consisting of not less than 15,000 RSF of contiguous space on the fifth
(5th) floor of the Building that is contiguous to the Excluded 5th Floor
Portions, provided that, if the space selected on the fifth (5th) floor of the Building
is not the balance of the fifth (5th) floor of the Building (excluding the Excluded
5th Floor Portions), such balance of the fifth (5th) floor of the Building
consists of not less than 15,000 RSF
and such space and such balance of the 5th floor of the Building (excluding the
Excluded 5th Floor Portions) have a commercially reasonable configuration such that
both the Additional Space and the balance of the space on the 5th floor of the Building
(excluding the Excluded 5th Floor Portions) shall each constitute one or more Rentable
Blocks. If the Additional Space selected by Tenant pursuant to the preceding sentence consists of
the entire fifth (5th) floor of the Building (excluding the Excluded 5th
Floor Portions), but is less than 92,932 RSF (subject to the last sentence of this subsection
(c)), or if the entire fifth (5th) floor of the Building is then leased to Tenant
pursuant to other provisions of this Sublease or to be leased to Tenant as a result of Tenant
having exercised an Acceptance Notice), then, at Tenant’s option, the Additional Space may include
so much of the fourth (4th) floor of the Building which, when combined with the
Additional Space, if any, on the fifth (5th) floor of the Building, consists of up to
92,932 RSF (subject to the last sentence of this subsection (c)), in the aggregate, provided that
the proposed Additional Space is not less than 25,000 RSF of contiguous space on the fourth
(4th) floor of the Building if there is no Excluded 4th Floor Portions (or
is not less than 15,000 RSF of contiguous space on the fourth (4th) floor of the
Building if there is Excluded 4th Floor Portions), as the case may be, provided further
that, if the Additional Space so selected by Tenant on the fourth (4th) floor of the
Building is not the entire fourth (4th) floor of the Building, the balance of the
fourth (4th) floor of the Building consists of not less than 15,000 RSF and the
Additional Space and such balance of the fourth (4th) floor of the Building have a
commercially reasonable configuration such that both the Additional Space on the fourth
(4th) floor of the Building and the balance of the space on the fourth (4th)
floor of the Building shall each constitute one or more Rentable Blocks. Notwithstanding the
foregoing, if Tenant has included a portion of the fourth (4th) floor of the Building
in the Additional Space, then, by notice to Tenant given within thirty (30) days after




235









 







Landlord’s
receipt of the Additional Space Exercise Notice, TIME BEING OF THE ESSENCE, Landlord may
substitute for all of such fourth (4th) floor portion of the Additional Space, space
selected by Landlord on the eighth (8th) floor of the Building comprising approximately
the same number of RSF as the fourth (4th) floor portion of the Additional Space
selected by Tenant, which space on the eighth (8th) floor of the Building shall be
delivered on the Additional Space Commencement Date in accordance with the provisions of Section
48.04(e). If Landlord gives such notice to Tenant, then for all purposes of this Sublease the
portion of the eighth (8th) floor of the Building so selected by Landlord shall be a
part of the Additional Space. If the Additional Space includes a portion, but is not the entire,
fifth (5th) floor of the Building and/or includes a portion, but not the entire, fourth
(4th) floor of the Building, and/or includes a portion, but not the entire, eighth
(8th) floor of the Building, and Tenant is not leasing the balance of the floor in
question, then Landlord shall, at Landlord’s sole cost, perform any necessary Demising Work on the
floor(s) in question on which the Additional Space is located. Notwithstanding anything contained
in this subsection (b) to the contrary, if Tenant has theretofore given the Expansion Exercise
Notice and/or the Supplemental Space Exercise Notice, then the “92,932 RSF” amount set forth in
this subsection (b) shall be reduced by the sum of the RSF of the Expansion Space and Supplemental
Space leased by Tenant pursuant to Sections 42.02 and 47.01(c) hereof, regardless of whether or
not any or all of such Expansion Space and/or
Supplemental Space is demised to Tenant at the time Tenant gives the Additional Space
Exercise Notice to Landlord, it being understood and agreed that if the sum of the RSF of the
Expansion Space and Supplemental Space leased by Tenant pursuant to Sections 42.02 and 47.01(c)
hereof was approximately 92,932 (or more) of RSF, the provisions of subsection (c) below shall
apply.




          (c) If Tenant has theretofore given the Expansion Exercise Notice and/or the Supplemental
Space Exercise Notice, and the sum of the RSF of the Expansion Space and Supplemental Space leased
by Tenant pursuant to Sections 42.02 and 47.01(c) hereof was approximately 92,932 (or more) of
RSF, then, for the purposes of this Sublease, “Additional Space” shall mean space, as selected by
Tenant and approved by Landlord (which approval shall only be required, pursuant to this
subsection (c), for PF Additional Space), consisting of not less than 15,000 RSF of contiguous
space on the fourth (4th) floor of the Building that is contiguous to the Excluded
4th Floor Portions (if any), but excluding any WorldNow Relocation Space (as such term
is defined in Section 44.02(a) hereof) located on the fourth (4th) floor of the
Building), provided that, if the space selected on the fourth (4th) floor of the
Building is not the entire fourth (4th) floor of the Building (excluding all Excluded
4th Floor Portions, if any, and any WorldNow Relocation Space located on the fourth
(4th) floor of the Building), the balance of the fourth (4th) floor of the
Building (excluding all Excluded 4th Floor Portions, if any, and any WorldNow
Relocation Space located on the fourth (4th) floor of the Building) consists of not
less than 15,000 RSF and the space selected on the fourth (4th) of the Building and
such balance of the fifth (5th) floor of the Building (excluding all Excluded
4th Floor Portions, if any, and any WorldNow Relocation Space located on the fourth
(4th) floor of the Building) have a commercially reasonable configuration such that
both the Additional Space and the balance of the space on the




236









 







4th floor of the Building
(excluding all Excluded 4th Floor Portions, if any, and any WorldNow Relocation Space
located on the fourth (4th) floor of the Building) shall each constitute one or more
Rentable Blocks. If the Additional Space includes a portion, but is not the entire, fourth
(4th) floor of the Building, and Tenant is not leasing the balance of the fourth
(4th) floor of the Building (excluding any WorldNow Relocation Space located on the
fourth (4th) floor of the Building), then Landlord shall, at Landlord’s sole cost,
perform any necessary Demising Work on the fourth (4th) floor of the Building.




          (d) With respect to PF Additional Space, if Landlord fails to reject the Additional Space
described in the Additional Space Exercise Notice within ten (10) Business Days after its receipt
of the Additional Space Exercise Notice, TIME BEING OF THE ESSENCE, then Landlord shall be deemed
to have approved such Additional Space, or if Landlord rejects the Additional Space described in
the Additional Space Exercise Notice within such ten (10) Business Day period, then such dispute
shall be determined by arbitration in accordance with the provisions of Article 34 hereof, it
being understood and agreed that (x) the only basis for Landlord’s rejection of the Additional
Space described in the Additional Space Exercise Notice is that Landlord has determined that (1)
the Additional Space in question or the balance of the space on the floor(s) on which the
Additional Space is/are located (excluding the Excluded 5th
Floor Portions and/or the Excluded 4th Floor Portions, as the case may be), or
both does/do not each constitute one or more Rentable Blocks, (2) the proposed Additional Space is
not contiguous to the Excluded 5th Floor Portions and/or the Excluded 4th
Floor Portions, as the case may be, or is less than 15,000 RSF of contiguous space on the fifth
(5th) floor of the Building or is less than 25,000 RSF of contiguous space on the
fourth (4th) floor of the Building if there is no Excluded 4th Floor
Portions (or is less than 15,000 RSF of contiguous space on the fourth (4th) floor of
the Building if there is Excluded 4th Floor Portions), as the case may be, or (3) the
balance of the fifth (5th) floor and/or fourth (4th) floor, as the case may
be, of the Building consists of not less than 15,000 RSF (which determinations shall be set forth
in reasonable detail in Landlord’s notice of rejection, together with an alternative
recommendation and, if applicable, whether a portion of the Additional Space proposed by Tenant is
acceptable to Landlord and describe such acceptable portion), (y) the only issues to be determined
by such arbitration shall be whether or not Landlord’s rejection of the Additional Space Exercise
Notice is effective based on the factors described in clause “(x),” and, if either Landlord or
Tenant request, the RSF of the final Additional Space, and (z) until such dispute is resolved
either by mutual agreement of Landlord and Tenant or pursuant to such arbitration Landlord shall
not lease the proposed Additional Space to any other person. With respect to PF Additional Space,
and without extending the Additional Space Notice Date, prior to the giving of the Additional
Space Exercise Notice, Tenant may submit to Landlord a reasonably detailed floor plan of the
entire floor(s) on which such proposed Additional Space is/are located, indicating in reasonable
detail the location of the proposed Additional Space, and promptly after Tenant submits such floor
plan(s) Landlord shall either approve or reject such proposed Additional Space. If Landlord
approves such proposed Additional Space and Tenant thereafter gives the Additional Space Exercise
Notice in respect of the same Additional Space, then Landlord’s approval of such Additional Space
shall be deemed




237









 







given, subject to Landlord’s right, as provided in Section 48.01(c) above, to
substitute a portion of the eighth (8th) floor of the Building for Additional Space on
the fourth (4th) floor of the Building.




          (e) For the purposes of this Sublease, and subject to the provisions of Section 48.01(a)
above, “Additional Space Commencement Date” shall mean, subject to the provisions of Section 3.01
hereof, any date selected by Tenant, provided such date is set forth in the Additional Space
Exercise Notice and is no earlier than the fourth (4th) anniversary, and no later than
the sixth (6th) anniversary of the Commencement Date. If the Additional Space
Commencement Date does not occur pursuant to the provisions of Section 3.01 by the date (the
“Additional Space Outside Date”) which is six (6) months after the date so selected by Tenant, and
provided neither Tenant, nor any other Tenant Party occupies the Additional Space on or before the
Additional Space Outside Date, then Tenant shall have the one time right to terminate its
obligation to lease the Additional Space by giving Landlord notice (the “Additional Space
Termination Notice”) of the exercise of such right no later than thirty (30) days after the
Additional Space Outside Date, TIME BEING OF THE ESSENCE. If the Additional Space Commencement
Date has not occurred by the date Tenant gives the Additional Space Termination Notice to Landlord
and if Tenant gives to Landlord the Additional Space Termination Notice in the time period and in
the manner hereinbefore provided, then, provided neither Tenant, nor any other Tenant Party has
occupied the Additional Space, on the date which is five (5) days after Landlord receives the
Additional Space Termination Notice: (A) Tenant’s obligation to lease the Additional Space and
this Article shall be deemed null and void; and (B) Landlord and Tenant shall be released and
relieved from all of their respective obligations and liability solely with respect to the
Additional Space. If the Additional Space Commencement Date occurs prior to the date, if any,
Tenant gives the Additional Space Termination Notice to Landlord, or if Tenant fails to give to
Landlord the Additional Space Termination Notice in the time period or in the manner hereinbefore
provided, or if Tenant or any other Tenant Party has occupied the Additional Space, Tenant shall
have no right to terminate its obligation to lease the Additional Space and any notice given by
Tenant purporting to exercise its rights pursuant to this subsection (e) to terminate Tenant’s
obligation to lease the Additional Space, shall be null and void. Tenant’s giving of the
Additional Space Termination Notice shall in no way modify or amend any of Tenant’s other
obligations under this Sublease. In addition, if the Additional Space Commencement Date does not
occur pursuant to the provisions of Section 3.01 by the date which is one (1) year after the date
so selected by Tenant, and Tenant’s obligation to lease the Additional Space has not theretofore
been terminated pursuant to the preceding sentences of this subsection (e), then Tenant’s right to
lease the Additional Space shall be terminated at the expiration of such one (1) year period, TIME
BEING OF THE ESSENCE, in which event (x) Tenant’s obligation to lease the Additional Space and
this Article shall be deemed null and void; and (b) Landlord and Tenant shall be released and
relieved from all of their respective obligations and liability solely with respect to the
Additional Space, but such termination shall in no way modify or amend any of Tenant’s other
obligations under this Sublease.




238









 








          (f) For the purposes of this Article, “Additional Space Requirements” means that (i) this
Sublease is then in full force and effect, (ii) no Event of Default exists, (iii) a JetBlue
Tenant is the Tenant under this Sublease, (iv) Tenant has not theretofore given, and is not giving
contemporaneous with the giving of the Additional Space Exercise Notice, the Partial Surrender
Exercise Notice, and (v) Tenant has not theretofore given the Supplemental Space Exercise Notice
in respect of the entire 92,932 RSF of Supplemental Space described in Section 47.01(c) hereof.




     48.02 Notwithstanding anything contained in this Sublease to the contrary, Tenant shall not
have the Additional Space Option if on the date Tenant gives to Landlord the Additional Space
Exercise Notice, the Additional Space Requirements are not satisfied.



     48.03 In addition to the provisions of Section 48.02 above, and notwithstanding anything
contained in this Sublease to the contrary, the Additional Space Option shall be deemed revoked,
null and void, and of no further force or effect, and the Additional
Space Exercise Notice (or purported Additional Space Exercise Notice) given in connection with
Tenant’s attempt to exercise the Additional Space Option shall be ineffective and void ab initio as
an Additional Space Exercise Notice, (a) if Tenant fails to give the Additional Space Exercise
Notice to Landlord on or before the Additional Space Notice Date (TIME BEING OF THE ESSENCE)
materially in the manner hereinbefore provided, or (b) if the notice given to Landlord amends,
modifies or supplements (or attempts or purports to amend, modify or supplement) any of the
Additional Space Terms (as hereinafter defined), including the location of the Additional Space, or
(c) if on the date Tenant gives the Additional Space Exercise Notice to Landlord, the Additional
Space Requirements are not satisfied, or (d) at the election of Landlord, by notice to Tenant, if
the guarantors under any guaranty in respect of this Sublease or the Premises fail to duly execute,
acknowledge and deliver to Landlord within ten (10) days after Landlord’s request therefor (if
Landlord so requests), a ratification of such guaranty, prepared by Landlord, which confirms that
such guaranty includes and covers the Additional Space and is otherwise in full force and effect,
it being agreed that the failure of Landlord to so request or the failure of any such guarantors to
so execute, acknowledge or deliver such ratification, shall not be deemed a waiver by Landlord of
any of such guarantors’ obligations or liabilities under such guaranties.



     48.04 If Tenant gives the Additional Space Exercise Notice to Landlord on or before the
Additional Space Notice Date, TIME BEING OF THE ESSENCE, and in the manner set forth in Section
48.01 above, then, subject to the provisions of Sections 48.02 and 48.03 above, as of the date
Landlord receives the Additional Space Exercise Notice, this Sublease shall be amended upon the
following terms and conditions (the “Additional Space Terms”):



          (a) Effective from and after the Additional Space Commencement Date, the terms “Office Space”
and “Premises,” as such terms are used in this Sublease, shall include the Additional Space and
the floor plans set forth in the exhibits




239









 







to this Sublease shall be amended by adding thereto the
floor plan of the Additional Space, and the RSF of the Office Space and the Premises shall be
increased by the RSF of the Additional Space;




          (b) Effective from and after the [***], the Base Rent payable by Tenant pursuant to Section
1.04(a) of this Sublease shall be increased by the Additional Space Base Rent (as hereinafter
defined);




          (c) “[***]” shall mean the Additional Space Commencement Date, extended by one (1) day for
each day of the “[***],” which is defined as [***];




          (d) Effective from and after [***], this Sublease shall be amended by increasing the
“Tenant’s Proportionate Share” by adding thereto the fraction, expressed as a percentage, the
numerator of which is [***] and the denominator of which is [***];




          (e) Subject to the provisions of Section 3.01 hereof, Landlord shall deliver, and Tenant
shall accept, possession and occupancy of the Additional Space on the Additional Space
Commencement Date in their then “AS-IS” condition and state of repair, subject to any and all
apparent defects therein (except (i) latent or hidden defects which were not reasonably
identifiable by Tenant prior to delivery of the Additional Space of which Tenant gives Landlord
notice within one (1) year following the date upon which possession of any such portion of the
Additional Space was delivered to Tenant), (ii) the performance by Landlord of the applicable
Demising Work, if any, and (iii) the Additional Space being in broom clean condition and free of
tenancies and occupancies. NEITHER LANDLORD, NOR ANY OF LANDLORD’S AGENTS, HAS MADE OR MAKES, ANY
WARRANTY, REPRESENTATION, COVENANT OR PROMISE, EXPRESS OR IMPLIED, IN RESPECT OF THE ADDITIONAL
SPACE OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE OR OTHERWISE AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY TENANT. Tenant’s
failure, refusal or inability to open for business in the Additional Space, however, shall not be
deemed evidence that the Additional Space were not in good or satisfactory condition. Any dispute
concerning the delivery of possession of the Additional Space and the condition thereof shall be
determined by arbitration in accordance with the provisions of Article 34 hereof.




          (f) Landlord shall have no obligation to perform any work, supply any materials or incur any
cost (other than the Additional Space Tenant Allowance) in preparing the Additional Space for
Tenant’s occupancy, except that Landlord shall perform the Demising Work, if applicable, as
provided in Section 48.01(b) or (c), as the case may be, and shall deliver to Tenant a Form ACP-5
(or equivalent) applicable to






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




240









 









the Additional Space. Any installations, materials and work which
may be undertaken by or for the account of Tenant to equip, decorate and furnish the Additional
Space for Tenant’s initial occupancy thereof (hereinafter referred to as “Additional Space
Tenant’s Work”) shall be performed by Tenant, at Tenant’s sole cost and expense in accordance with
the terms, covenants and conditions set forth in this Sublease, including, without limitation,
Article 13. As part of Additional Space Tenant’s Work, Tenant agrees to perform the work
described in Sections 10.04, 10.05 and 10.06 above. After the sooner of actual knowledge or
Landlord’s receipt of written notice from Tenant or from a Governmental Authority, Landlord shall
promptly remedy any code violations or conditions not caused by Tenant or any Tenant Party that
would delay or prohibit the issuance of a building permit for Additional Space Tenant’s Work;




          (g) Effective on the Additional Space Commencement Date, Section 4.03 of this Sublease shall
apply to the Additional Space Tenant’s Work, with the following modification:




               (i) The term “Tenant’s Work” shall be deemed to refer to only the Additional Space Tenant’s
Work;



               (ii) The term “Tenant Allowance” shall be deemed to refer to the “Additional Space Tenant
Allowance,” which is defined as the product of (i) $[***], multiplied by (ii) the RSF of the
Additional Space, multiplied by (iii) the fraction, the numerator of which is number of days during
the period commencing on the Additional Space Commencement Date and ending on the last day of the
initial Term, and the denominator of which is the total number of days during the initial Term,
assuming the initial Term ends on June 1, 2023, and there shall be no Additional 5th
Floor Tenant Allowance or Additional Tenant Allowance applicable to the Additional Space;



               (iii) The term “Premises” shall be deemed to refer to the Additional Space;



               (iv) The term “[***]” shall be deemed to refer to [***]; and



          (h) The provisions of Section 16.13 hereof shall apply;




          (i) The provisions of Section 17.05(c) hereof shall apply;




          (j) Sections 4.01 and 4.02 of this Sublease shall not apply to the Additional Space.




     48.05 For the purposes of this Article, “Additional Space Base Rent” means, during the First
Rent Period, the product of $[***] per annum, multiplied by the RSF of





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




241









 









the Additional Space, and,
during the Second Rent Period, the product of $[***] per annum, multiplied by the RSF of the
Additional Space.




     48.06 Intentionally omitted.



     48.07 If for any reason, the Additional Space Option is not exercised in accordance with, and
subject to, the applicable provisions of this Article, or is waived, rejected or revoked or deemed
waived, rejected or revoked, Landlord may, but shall not be obligated to, at any time or from time
to time, after the conclusion of any arbitration
concerning the Additional Space Option and the exercise thereof, lease, license or otherwise
permit the use of, all or any portions of the Additional Space upon any terms and conditions that
are acceptable to Landlord.



ARTICLE 49

SELF-HELP




     49.01 For the purposes of this Article, a “Required Obligation” means an obligation of
Landlord (other than the performance of Landlord’s Work) which is expressly provided for in this
Sublease (and not an obligation of the Existing Lessor under the Existing Superior Lease) and
which, if not being performed, actually, materially and adversely interferes with the conduct of
Tenant’s business in the Premises, provided such business is expressly permitted by this Sublease.
If Landlord fails to perform a Required Obligation and such failure is not a result of an
Unavoidable Delay (as such term is defined in Section 21.03 hereof) or any act or omission of
Tenant or of any other Tenant Party, then, at Tenant’s election (but without any obligation to do
so), but subject to the provisions of the Existing Superior Lease and the provisions of Article 52
hereof, Tenant may perform such Required Obligations (at Tenant’s sole risk) for the account of
Landlord, if, and only if, (a) Tenant has made a good faith determination that if it does not then
act, Tenant will suffer adverse consequences, (b)Tenant shall not be in default (after being given
notice of default) of its obligation to pay any Base Rent or any Additional Rent payable pursuant
to Article 5 hereof and no Event of Default then exists, (c) the performance of the Required
Obligation shall not in any way involve or affect any structural components of the Building or any
portion of the Building outside the Premises or any of the Building’s mechanical, electrical,
plumbing or other systems (other than in an incidental manner and without harm to the Building wide
systems generally) unless Landlord and its related entities or affiliates occupy less than 90,000
RSF in the Building (exclusive of unrelated subtenants and space used for Building Amenities), in
which case Tenant shall have the right to perform a Required Obligation involving or affecting the
structural components of the Building or any portion of the Building outside of the Premises or any
of the Building’s mechanical, electrical, plumbing or other systems, (d) Tenant shall have notified
Landlord in writing of the need for the Required Obligation to be performed (such notice being
herein referred to as the “Self-Help Notice”), (e) Landlord shall have failed to perform the
Required Obligations





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




242









 









in question within two (2) Business Days (or less in an emergency) after
Landlord receives the Self-Help Notice from Tenant, (f) the Required Obligation is not prohibited
by the provisions of the Existing Superior Lease, and (g) the Required Obligation is performed by
Tenant in accordance with, and subject to, all of the provisions of this Sublease applicable to
Tenant’s other repair obligations hereunder, except for any obligation of Tenant to obtain
Landlord’s consent. Tenant’s right to perform a Required Obligation in accordance with, and
subject to, the provisions of this Article is herein referred to as “Tenant’s Self-Help Right.”
For the purposes of illustration, but not limitation, good faith reasons for not being able to
complete or perform a Required Obligation within such two (2) Business Day period shall be the
failure by another tenant or other occupant of the Building to observe, perform or
comply with an obligation under its lease, sublease or other occupancy agreement, or
Landlord’s inability to gain access to such other tenant’s or occupant’s space in the Building.
For the purposes of this Article, an “Emergency Condition” means an imminent risk of material
damage to Tenant’s business fixtures or inventory or injury to Tenant’s business customers or
employees.




     49.02 (a) If Tenant performs a Required Obligation in accordance with, and subject to, the
provisions of Section 49.01 above, then, subject to the provisions of Section 49.03 below, Landlord
shall pay to Tenant the cost (the “Self-Help Reimbursement Cost”), to the extent reasonably paid by
Tenant, of performing such Required Obligations for the account of Landlord within thirty (30) days
after Landlord receives Tenant’s demand therefor, which demand (the “Self-Help Reimbursement
Notice”) shall describe, in reasonable detail, the items which comprise the Self-Help Reimbursement
Cost, and shall be accompanied by receipted bills, invoices and such other information or documents
reasonably required by Landlord to verify the Self-Help Reimbursement Cost. If Landlord fails to
pay the Self-Help Reimbursement Cost within said thirty (30) day period, then the next succeeding
monthly installments of Base Rent payable under this Sublease shall be reduced by the then
outstanding balance of the Self-Help Reimbursement Cost. The amount by which the Base Rent may be
reduced pursuant to this Section is herein referred to as the “Self-Help Reduction Amount.”



          (b) Tenant shall, within ten (10) days after Landlord’s request therefor, submit to Landlord
bills, invoices, receipts and any other information or documentation reasonably required by
Landlord to verify the Self-Help Reimbursement Cost and the information contained in the Self-Help
Reimbursement Notice.




     49.03 (a) Within the two (2) Business Day period after Landlord receives the Self-Help Notice
from Tenant, Landlord may dispute Tenant’s determination that the obligation in question is a
Required Obligation or that Tenant is otherwise entitled to perform the obligation in question, by
giving Tenant notice of such dispute within such two (2) Business Day period. If Landlord disputes
such determination of Tenant and, subject to Landlord’s rights and remedies under this Sublease, at
law and in equity, Tenant performs the obligation in question, Tenant hereby acknowledges that if
such dispute is resolved by arbitration as hereinafter provided, it may be determined that the
obligation in question was not a Required Obligation or that Tenant was not otherwise



243









 




entitled to perform the obligation in question, and, therefore, is not entitled to be reimbursed therefor as
hereinbefore provided. If such dispute is not resolved by Landlord and Tenant within ten (10) days
after Landlord gives such notice of dispute to Tenant, such dispute shall be determined by
arbitration in accordance with the provisions of Article 34 hereof. If such dispute is resolved by
arbitration and it is determined that the obligation was a Required Obligation and that Tenant was
entitled to perform the obligation in question, Landlord shall pay to Tenant the Self-Help
Reimbursement Cost as provided, and in the manner set forth, in Section 49.02 above.




          (b) In addition to Landlord’s right to dispute Tenant’s determination that the obligation in
question is a Required Obligation or that Tenant is otherwise entitled to perform the obligation
in question, and regardless of whether Landlord so disputes such determination, if Tenant performs
an obligation in respect of which Landlord receives a Self-Help Reimbursement Notice, then within
the ten (10) day period commencing on the later of (i) the date on which Landlord receives the
Self-Help Reimbursement Notice, and (ii) the date on which Landlord receives the bills, invoices,
receipts and other information or documentation reasonably required by Landlord as hereinbefore
provided, Landlord may dispute the correctness of the Self-Help Reimbursement Notice and the
amount of the Self-Help Reimbursement Cost set forth therein, specifying (to the extent known to
Landlord) the particular respects in which such Self-Help Reimbursement Notice is incorrect. If
Landlord and Tenant fail to settle such dispute within thirty (30) days after Landlord so notifies
Tenant, such dispute shall be determined by arbitration pursuant to Article 34 hereof, provided,
however, if the dispute (if any) as to Tenant’s determination that the obligation in question is a
Required Obligation or that Tenant is otherwise entitled to perform the obligation in question is
to be resolved by arbitration, then the dispute as to the Self-Help Reimbursement Notice shall be
resolved in the same arbitration. If any dispute regarding the correctness of the Self-Help
Reimbursement Notice or the amount of the Self-Help Reimbursement Cost set forth therein is
submitted to arbitration (and, if there was a dispute regarding the same, it is determined that
(1) the obligation was a Required Obligation and (2) that Tenant was entitled to perform the
obligation in question), Landlord shall pay to Tenant the Self-Help Reimbursement Cost as
determined in such arbitration proceeding to be owing to Tenant, if any, in the manner set forth
in Section 49.02 above.




     49.04 Pending the resolutions of any of the disputes described in Section 49.03(a) or (b)
above by agreement between Landlord and Tenant or by arbitration as aforesaid, Landlord shall not
be obligated to pay to Tenant any portion of the Self-Help Reimbursement Cost that Landlord has
reasonably and in good faith disputed, and Tenant shall not be entitled to reduce the Base Rent
with respect thereto. If as a result of such arbitration it is determined that the portion of the
Self-Help Reimbursement Cost paid by

Landlord (or being paid by Landlord in the form of a Base Rent
reduction) is less than the amount owed by Landlord, then the underpayment shall, at Landlord’s
option, be paid to Tenant within thirty (30) days after the arbitration decision is rendered and
received by Landlord, or be added to the Base Rent reduction. If as a result of such arbitration
it is determined that the portion of the Self-Help Reimbursement Cost paid by



244









 




 Landlord (or being
paid by Landlord in the form of a Base Rent reduction) is more than the amount owed by Landlord,
then the overpayment to the extent paid by Landlord shall be refunded by Tenant to Landlord within
thirty (30) days after the arbitration decision is rendered and received by Tenant. To the extent
such overpayment has not yet been paid by Landlord, the Base Rent reduction shall be reduced by
such overpayment.




ARTICLE 50



Omitted prior to execution.




ARTICLE 51

LANDLORD COOPERATION




     51.01 If requested by Tenant, and provided this Sublease is in full force and effect, Landlord
shall, at no cost to Landlord, reasonably cooperate with Tenant in connection with Tenant’s attempt
to (a) obtain an agreement from the lessor under the Existing Superior Lease to grant to Tenant, at
Tenant’s sole cost and expense, (i) the right to use the approximate 2,500 square foot vacant lot
known as 27-18 41st Avenue, Long Island City, New York (Block 416, Lot 33) for parking
by Tenant, and (ii) the right to use up to 38 parking spaces (approximately 23 of which may be
24-hour spaces and the rest available from approximately 7PM to 7AM) in the existing parking lot
immediately behind the Building, and (b) obtain an agreement from the lessor under the Existing
Superior Lease and from the City of New York (and the other applicable Governmental Authorities),
to permit a curb side bus stop on the 27th Street side of the Building, to accommodate
Tenant’s shuttle bus.



     51.02 Nothing contained in this Article or elsewhere in this Sublease shall be deemed to
constitute a warranty or representation by Landlord that Tenant will be able to obtain, in whole or
in part, any of the agreements or rights described in Section 51.01 above, Tenant hereby
acknowledging that Landlord has made no such representation or warranty, and Tenant’s inability or
failure to obtain, in whole or in part, any of such agreements shall not relieve or release Tenant
from any of its obligations or liabilities under this Sublease, constitute an actual or
constructive eviction, or impose any liability upon Landlord.



     51.03 Notwithstanding anything contained in this Article to the contrary, Tenant shall not
execute or deliver any of the agreements described in Section 51.01 above unless, not less than
thirty (30) days prior to such execution, Tenant has delivered to Landlord a true, accurate an
complete copy thereof, and, if any of the agreements or rights described in Section 51.01 would
result in Landlord being obligated to make any payments (herein referred to as “Cooperation
Payments”), then Tenant shall not execute or deliver any such agreements any all parties thereto
agree therein that Landlord shall not be obligated to pay any such Cooperation Payments or any
other payments Landlord would otherwise be obligated to make resulting therefrom, unless Tenant has
provided reasonably acceptable security for such payment.



245









 





ARTICLE 52

LABOR HARMONY




     52.01 For the purposes of this Article, “Landlord Parties” shall mean the Landlord Indemnitees
and the contractors, subcontractors, construction managers, service providers and vendors of any
Landlord Indemnitee.



     52.02 With respect to the performance of any construction, installation, maintenance, or
repair of the Premises or other portion of the Building by Tenant or any Tenant Party (including,
without limitation, Tenant’s Work and any Alteration), or the use, occupancy or conduct of business
by Tenant or any Tenant Party in the Premises or any other portion of the Building:



          (a) Neither Tenant nor any Tenant Party shall take any action that would or does (i)
constitute or cause a violation of the union contracts or other labor agreements, if any, affecting
any portion of the Real Property, to which Landlord or any Landlord Party is a party or by which
Landlord or any Landlord Party is bound, or (ii) adversely affect or interfere with the management
or operation of the Building or with the use or occupancy of any portion of the Building by persons
lawfully in or upon the Building because Tenant or any Tenant Party has engaged in conduct in
violation of any then existing union contracts, labor agreements or laws affecting the Premises or
the Building. Tenant further covenants and agrees that it shall not interfere with, or permit any
Tenant Party to interfere with, the business of Landlord or the business, use or occupancy of any
other tenant or occupant in the Building or with the rights and privileges of any person(s)
lawfully in the Building.



          (b) In the event of the failure of Tenant to comply with the provisions of Section 52.02(a)
above (except in the case of picketing by a Tenant Party or other person against Tenant not arising
out of the performance by Tenant or Tenant Party of any construction, installation, maintenance or
repair of the Premises or other portion of the Building and unrelated to the operation of the
Building, in which case Tenant’s obligations shall be limited to those expressly set forth in
Section 52.02(c) below), Tenant shall: (i) promptly upon notice from Landlord, use commercially
reasonable efforts to cooperate with Landlord to rectify such condition, up to and including
ceasing the manner of exercise of such right giving rise to such condition, if reasonably deemed
necessary by Landlord, and (ii) indemnify and hold harmless Landlord against all liability, loss or
damage (including, without limitation, reasonable attorneys’ fees and audit costs) that Landlord
shall suffer by reason of Tenant’s failure to comply with the provisions of Section 52.02(a) above.
Landlord shall not exercise its right to terminate this Sublease as a result of Tenant’s breach of
the provisions of Section 52.02(a) above, provided that: (x) such breach was not intentional, and
(y) Tenant acts with continued diligence to rectify such condition under this Section 52.02(b) or
Section 52.02(c) below, as applicable, promptly upon notice thereof from Landlord.



          (c)

    In the event that any picketing shall occur at or adjacent to the Real Property as a
result of the failure of Tenant to comply with the provisions of Section 52.02(a) above or
otherwise against Tenant or any Tenant Party by any





246









 










person for any reason whatsoever and in
addition to, and without limiting, all other rights and remedies of Landlord, Tenant shall: (i)
reimburse Landlord for any additional or overtime security and barricade charges incurred by
Landlord as a result thereof within ten (10) Business Days after Tenant’s receipt of Landlord’s
invoice; (ii) to the extent permitted by Legal Requirements promptly upon notice from Landlord
apply for a permit or emergency court order to prohibit such picketing to occur at or adjacent to
the Real Property and to relocate such picketing to another location if such picketing will
continue for more than one day.




     IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Sublease as of the date first
above written.



	 	 	 	 	 
	 	LANDLORD:



METROPOLITAN LIFE INSURANCE COMPANY

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TENANT:



JETBLUE AIRWAYS CORPORATION

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




247











 





 



EXHIBIT A

DESCRIPTION OF LAND

 





The “Land” defined and described in the Existing Superior Lease.






 









 








 



EXHIBIT B-1

FLOOR PLANS OF THE 5TH FLOOR

 






 









 








 



EXHIBIT B-2

FLOOR PLANS OF THE 6TH FLOOR

 






 









 








 



EXHIBIT B-3

FLOOR PLANS OF THE 7TH FLOOR

 














 









 








 



EXHIBIT B-4

STORAGE SPACE — LOWER LEVEL

 











 









 








 



EXHIBIT B-5

STORAGE SPACE — 2ND FLOOR

 












 









 








 



EXHIBIT B-6

INITIAL SOC

 











 









 








 



EXHIBIT C

PROHIBITED USES

 







	1.	 	Any use which would violate any provision of the Existing Superior Lease, including, without
limitation, the uses prohibited by Article 4 and Section 7.6(e) thereof.
	 
	2.	 	Any retail use or purpose, it being agreed that for the purposes of this Sublease, the term
“retail” shall refer to a business whose primary patronage are off the street customers,
exclusive of employees of Tenant, visiting the Premises in person;
	 
	3.	 	Primarily (as opposed to incidentally) as a call center or telephone answering service;
	 
	4.	 	Fundraising or solicitation from the Premises by means of telephone “bank”;
	 
	5.	 	An employment agency, search firm or similar enterprise whose primary patronage are off the
street customers visiting the Premises in person for non-executive positions;
	 
	6.	 	Classrooms or a school, teaching center, learning center, studying center or vocational
training center (this shall not prohibit the training of Tenant’s own employees);
	 
	7.	 	Athletic facilities including a tanning, exercise and/or racquet club or spa, gymnasium or
other sports or recreational activity facility other than a fitness center in the FC Space if
the FC Space shall become a part of the Premises;
	 
	8.	 	An auction house or the conduct of a public auction of any kind, other than over the internet
or other comparable means;
	 
	9.	 	A sales or rental office whose primary patronage are off the street customers visiting the
Premises in person;
	 
	10.	 	The business of photographic, multilith or multigraph reproductions or offset printing;
except to the extent ancillary to Tenant’s business;
	 
	11.	 	A restaurant, bar, grocery store, fruit and vegetable store, supermarket, delicatessen,
convenience store, bakery or any other establishment that sells or serves food or beverages
for on-premises or off-premises consumption, other than to Tenant’s employees in such areas
expressly designated in this Sublease for such purpose;




 









 






	12.	 	A diagnostic or treatment medical, dental, psychiatric, psychological or veterinary center or
office, or for the practice of medicine, dentistry, psychiatry, psychology or veterinary
medicine or for the performance of any procedures (surgical other or otherwise) or for the
treatment of patients;
	 
	13.	 	Medical, dental, psychiatric, psychological, veterinary or scientific laboratories;
	 
	14.	 	A narcotics, alcohol or substance abuse rehabilitation clinic or for the treatment of any
narcotic addiction, alcoholism or substance abuse, except counseling to the extent ancillary
to Tenant’s services for its employees;
	 
	15.	 	A mental health clinic, a sex therapy clinic, a public health clinic, a parenting, fertility
or abortion clinic, or any similar clinic or center, except counseling to the extent ancillary
to Tenant’s services for its employees;
	 
	16.	 	A messenger service, except to the extent ancillary to Tenant’s business;
	 
	17.	 	A day care center, except only for use by Tenant’s employees;
	 
	18.	 	Gambling or gaming, including, without limitation, an Off-Track betting, sports gambling,
casino gambling or similar establishment, carnival or amusement park;
	 
	19.	 	Residential uses including hotels, motels, living quarters, apartments and lodging rooms;
	 
	20.	 	Manufacturing;
	 
	21.	 	Printing or electronic data processing except for the operation of normal business office
equipment for Tenant’s own requirements in connection with the Permitted Use;
	 
	22.	 	Office, store, reading room, headquarters, center or other facility devoted or opposed to the
promotion, advancement, representation, purpose or benefit of: (a) any political party,
political movement or political candidate, (b) any religion, religious group or religious
denomination, or (c) any domestic or foreign government;
	 
	23.	 	Public stenographer/public typist or telephone or secretarial services, except to the extent
ancillary to Tenant’s business;
	 
	24.	 	Public utility company if the use by the public utility company involves off the street
customers visiting the Premises in person;
	 
	25.	 	Check cashing or the sale of travelers’ checks and/or foreign exchange and/or a safe deposit
business, except to the extent ancillary to Tenant’s business or located in the Amenities
floor Space;
	 
	26.	 	Tax exempt or charitable, educational, religious, union or other not-for-profit uses as a
primary use or religious use;




 









 






	27.	 	Any use that is unlawful or illegal in the Building;
	 
	28.	 	Any use which in Landlord’s reasonable opinion is likely to (a) cause damage to any portion
of the Building, (b) materially impair the appearance of the Building, (c) materially disturb
or inconvenience other tenants or occupants of the Building; (d) constitute a material
nuisance as defined in law, public or private; (e) discharge objectionable smoke, fumes,
vapors or odors; (f) materially impair or interfere with any of the Building services, systems
or equipment; (g) result in protests or civil disorder or commotions at, or other disruptions
of the normal business activities in, the Building; or (h) be hazardous; or
	 
	29.	 	Any use which, in Landlord’s reasonable opinion, is likely to emit noises or sounds that are
reasonably objectionable due to intermittence, beat, frequency, shrillness or loudness other
than Roof Installations.




 









 











 



EXHIBIT D

LIST OF CONTRACTORS, CONSTRUCTION MANAGERS, MECHANICS AND

SUBCONTRACTORS APPROVED BY LANDLORD

 





[***]






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.






 











 





 



EXHIBIT E

FORM OF SUBTENANT SNDA

 






     THIS SUBORDINATION, NONDISTURBANCE, RECOGNITION AND ATTORNMENT AGREEMENT (this “Agreement”)
made as of __________ ___, 20__, by and among METROPOLITAN LIFE INSURANCE COMPANY (“Landlord”), a
New York corporation having an office at 27-01 Queens Plaza North, Long Island City, New York
11101, and JETBLUE AIRWAYS CORPORATION (“Tenant”), a Delaware corporation having an office at 27-01
Queens Plaza North, Long Island City, New York 11101, and ______________________ a ____________
(“Subtenant”), a __________ _________________ having an office at _______________________—______.



Statement of Facts:




     By lease dated _________ ____, 2010 (the “Lease”), Landlord leased to Tenant portions of the
building (the “Building”) located at 27-01 Queens Plaza North, Long Island City, New York (such
portions of the Building being hereinafter referred to as the “Premises”).



     By sublease dated __________ ____, ____ (the “Sublease”), Tenant sublet to Subtenant the
__________ floor[s] portion of the Premises (such __________ floor[s] portion of the Premises being
hereinafter referred to as the “Sublet Premises”).



     As more particularly provided in Section 9.15 of the Lease, Landlord has agreed to execute and
deliver this Agreement.



     NOW, THEREFORE, in consideration of the execution of this Agreement by the parties, Landlord,
Tenant and Subtenant hereby agree as follows:



     1. Capitalized Terms.



          All terms not defined in this Agreement shall have the meaning ascribed to such terms in the
Lease.




     2. Subordination.



          The Sublease, all of the terms, covenants and provisions thereof, and all of Subtenant’s
rights, title, remedies, options and interests thereunder is, and shall at all times continue to
be, subject and subordinate in each and every respect to the Lease, to all of the terms, covenants,
conditions and provisions thereof, to all renewals, extensions, modifications, amendments,
supplements and replacements thereof, and to
all instruments, agreements, liens and encumbrances to which the Lease is now or from time to
time hereafter subject or subordinate. The provisions of this Paragraph shall be




 









 








self-operative
and no further instrument shall be required; however, within ten (10) days after Landlord’s request
therefor from time to time, Subtenant shall execute, acknowledge and deliver to Landlord any
certificate or other instrument which Landlord may reasonably request to confirm such subordination
by Subtenant.




     3. Non-disturbance.



          (a) If (i) the term of the Lease ends as a result of one (1) or more defaults (each, a
“Tenant Default”) under any of the terms, covenants or conditions in the Lease on the part of the
“Tenant” thereunder to observe, perform or comply with, (ii) no Tenant Default was caused by the
act or omission of Subtenant or of any person or entity claiming by, through or under Subtenant,
(iii) on the date (the “Termination Date”) that the term of the Lease so ends, the Sublease is in
full force and effect, and there are no defaults under any of the terms, covenants or conditions in
the Sublease, in this Agreement, or in Landlord’s written consent to the Sublease, on the part of
Subtenant to observe, perform or comply with which remain uncured after the giving of any notice
expressly required under the Sublease, this Agreement or said consent, and after the expiration of
any cure period expressly permitted under the Sublease, this Agreement or said consent, (iv) on the
Termination Date, Subtenant is not a debtor or debtor-in-possession in any voluntary or involuntary
action or proceeding under the present or any future Federal bankruptcy code or any other present
or future applicable Federal, State or other bankruptcy or insolvency statute or law, seeking or
consenting to, or acquiescing in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief, and no trustee, receiver, custodian, assignee,
sequestrator, liquidator or other similar official of Subtenant, or of any interest in Subtenant,
or of all or substantially all of its properties, or of its interest in the Sublet Premises,
exists, (v) Subtenant cures all Relevant Defaults (as such term is defined in Paragraph 3(c)
below), if any, and (vi) either (A) on the Termination Date (1) Subtenant has at least the Required
Subtenant Net Worth (as such term is defined in Section 9.15 of the Lease), (2) Subtenant has had
at least the Required Subtenant Net Worth for at least the three (3) years immediately preceding
the Termination Date, and (3) reasonably adequate proof thereof shall have been furnished to
Landlord, or (B) on or before the Termination Date, there shall have been deposited with Landlord
(either by the Subtenant or transferred by Tenant) a security deposit equal to not less than [***]
(the conditions described in the preceding clauses (i) through (vi) being herein referred to as the
“Attornment Conditions”), then (x) Landlord shall not terminate the Sublease or name or join the
Subtenant as a party defendant in any action or proceeding in connection with the enforcement of
the Landlord’s rights under the Lease which may be instituted or taken by the Landlord under the
Lease by reason of any Tenant Default, unless, and only to the extent, such naming or joinder is
necessary to enforcement of such rights and then only for such purpose and not for the purpose of
terminating the Sublease, (y) Landlord shall not disturb the subleasehold estate created by the Sublease, or
the possession and use of the Sublet Premises in accordance with the






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 







terms of the Sublease and this
Agreement, by reason of the subordination of the Sublease to the Lease, or the enforcement of the
Landlord’s rights and remedies in connection with the Tenant Default, and (z) Subtenant shall
attorn and be bound to Landlord, and Landlord shall be bound to, and accept the attornment of,
Subtenant, in each case, under all of the terms, covenants and conditions of the Sublease for the
balance of the term thereof, with the same force and effect as if the Landlord were the
[sublandlord] under the Sublease, subject to the provisions of Paragraph 4 below. Subtenant waives
the provisions of any statute or rule of law now or hereafter in effect that may give or purport to
give it any right or election to terminate or otherwise adversely affect the Sublease or the
obligations of Subtenant thereunder by reason of any termination of the Lease.




          (b) Intentionally omitted.




          (c) For purposes of this Paragraph, a “Relevant Default” shall mean a default under any of
the non-monetary terms, covenants or conditions in the Lease on the part of the “Tenant” thereunder
to observe, perform or comply with, with respect to, or which affect, the Sublet Premises (other
than those non-monetary defaults which can neither be cured with the payment of money, nor cured by
Subtenant having possession of, and access to, the Sublet Premises). “Relevant Defaults” include,
but are not limited to, defaults under Articles 10, 11, 13, 15, 16, 17, 18 and 19 of the Lease, but
only to the extent such non-monetary terms, covenants or conditions are with respect to, or affect,
the Sublet Premises. If Subtenant is given notice of one (1) or more Relevant Defaults, Subtenant
shall cure all such Relevant Defaults within the applicable cure periods set forth in Section 25.02
of the Lease. The failure to so cure all such Relevant Defaults shall be a default under this
Agreement that is not subject to any additional notice or cure periods, and shall entitle Landlord
to terminate the Sublease and to exercise any or all of its other remedies under the Sublease (as
modified pursuant to Paragraph 4 below), at law and in equity. In addition, if any Relevant
Default was caused by the act or omission of Subtenant or of any person or entity claiming by,
through or under Subtenant, including, but not limited to, a default under any of the terms,
covenants or conditions in the Sublease or in this Agreement on the part of Subtenant to observe,
perform or comply with, then Landlord shall not be bound by, and shall have no obligation under,
the provisions of clause (x), (y) or (z) of Paragraph 3(a) above, or the provisions of Paragraph 4
below.




          (d) Nothing contained in this Agreement shall be deemed to restrict or limit in any way
Landlord’s rights or remedies against Tenant or limit in any way Tenant’s obligations or
liabilities.




     4. Attornment.



          (a) If all of the Attornment Conditions occur and/or are satisfied, then from and after
the date next succeeding the Termination Date, (x) Subtenant shall attorn and be bound to Landlord,
and Landlord shall be bound to, and accept the attornment of, Subtenant, in each case, under all of the then executory terms, covenants and conditions
of the Sublease for the balance of the term thereof remaining, with the same






 









 







force and effect as if Landlord were the [sublandlord] under the Sublease, and (y) the Sublease shall continue in full
force as a direct lease between Subtenant and Landlord upon all of the then executory terms,
covenants and conditions of the Sublease for the balance of the term thereof remaining, except that
Landlord shall not be:




               (i) liable for any previous act or omission of Tenant (or its predecessor in interest)
under the Sublease;



               (ii) subject to any credits, offsets, claims, counterclaims, demands or defenses which
Subtenant may have against Tenant (or its predecessors in interest);



               (iii) bound by any previous modification or amendment of the Sublease or by any previous
prepayment of more than one (1) month’s rent, additional rent or other charges, unless such
modification, amendment or prepayment shall have been expressly approved in writing by Landlord,
which approval to a modification or amendment of the Sublease shall not be unreasonably withheld or
delayed (A) to the extent Landlord would have been obligated to have been reasonable with respect
to the approval of the original Sublease had the modification or amendment in question been a part
thereof, and (B) the modification or amendment in question is submitted to Landlord for its
approval prior to the effective date thereof;



               (iv) bound by any covenant to undertake or complete any construction of the Sublet
Premises or any portion thereof or to perform any other work that Tenant is obligated to perform or
to pay for or reimburse the Subtenant for any costs incurred in connection with any construction or
work except to the extent required to be performed by Landlord under the Lease;



               (v) required to account for any security deposit of the Subtenant other than any security
deposit actually delivered to Landlord;



               (vi) liable for the obligations of Tenant under the Sublease for any period of time other
than such period as Landlord holds such interest;



               (vii) responsible for any monies owing by Tenant to the credit of Subtenant;



               (viii) bound by any obligation to make any payment to Subtenant or grant or be subject to
any credits;



               (ix) bound by any obligation to provide any service or furnish any utility that Landlord
is not obligated to provide or furnish under the Lease to the portion of the Sublet Premises; or



               (x) bound by any obligation to restore the Building, the Sublet Premises or any furniture,
fixtures, equipment or property therein in the event of a fire,
other casualty or condemnation of the Building or the Sublet Premises or any portion thereof,
except as expressly set forth in the Lease.



 









 






          (b) The Sublease shall be deemed modified by the provisions of Landlord’s written consent
thereto. In addition, from and after the date (the “Attornment Effective Date”) that the Sublease
becomes a direct lease between Landlord and Subtenant, as more particularly set forth in clause (y)
of Paragraph 4(a) above, the Sublease shall be deemed modified to incorporate the provisions of
Paragraph 4(a) above, and to incorporate the following:




               (i) If, in Landlord’s sole and absolute judgment, (x) any of the terms, covenants or
conditions of the Lease are more favorable to Landlord than a corresponding provision of the
Sublease, then the term, covenant or condition of the Lease that is more favorable to Landlord
shall be deemed incorporated into the Sublease and shall supersede the corresponding provision of
the Sublease; (y) a provision of the Lease which is favorable to Landlord is omitted from the
Sublease, then such favorable provision shall be deemed incorporated into the Sublease, or (z) any
provision of the Sublease (A) increases Landlord’s obligations or liabilities beyond those which
are set forth in the Lease as same relate to the Sublet Premises, (B) decreases Landlord’s rights
or remedies below those which are set forth in the Lease as same relate to the Sublet Premises, (C)
increases Subtenant’s right or remedies beyond those which are set forth in the Lease for the
benefit of Tenant, or (D) decreases Subtenant’s obligations or liabilities below those which are
set forth in the Lease for Tenant, then the provision of the Lease that is favorable or more
favorable to Landlord shall be deemed incorporated into the Sublease and shall supersede any
corresponding or inconsistent provision of the Sublease;



               (ii) In furtherance of subparagraph (i) above, if at any time or from time to time, from
and after the Attornment Effective Date, the rent, additional rent and other charges payable under
the Sublease, in the aggregate, shall be less, in the aggregate, than the sum of the Base Rent,
Additional Rent and other charges that would have been payable for the corresponding period under
the Lease and for the corresponding portion of the Premises determined on a per rentable square
foot basis based on the rentable area of the Sublet Premises as compared to the rentable area of
the Premises (as reasonably determined by Landlord) had the Lease not been terminated (such sum
being herein referred to as the “Lease Rent”), then, in such event, the rent, additional rent and
other charges payable under the Sublease shall be deemed to be increased, without any further
action, to the Lease Rent for the corresponding period under the Lease had the Lease not been
terminated, regardless of whether such deficiency is attributable to any [***] expressly provided
for in the Sublease;



               (iii) Subtenant shall pay the Annual Condenser Water Charge, if any, set forth in the
Lease, in accordance with, and subject to, the applicable provisions of the Lease; provided,
however, that if the Sublet Premises is not the entire Premises, the Annual Condenser Water Charge,
if any, shall be prorated based on tonnage of the





 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 









____________ AC Units, if any, that service the
Sublet Premises. If Landlord and Subtenant cannot agree on such pro-ration, such dispute shall be
resolved by arbitration pursuant to the provisions of Article 34 of the Lease, as if, for the
purposes of said Article 34, Subtenant were the Tenant;




               (iv) Intentionally omitted;



               (v) The consent or approval of Landlord shall be required under the Sublease with respect
to any circumstances which would have required the consent or approval of Landlord under the Lease,
subject to and in accordance with the provisions of the Lease; and



               (vi) WITH RESPECT TO THE SATISFACTION OF SUBTENANT’S REMEDIES FOR THE COLLECTION OF A
JUDGMENT, AWARD OR DAMAGES (OR OTHER JUDICIAL OR ADMINISTRATIVE PROCESS OR ARBITRATION PROCEEDING)
AGAINST LANDLORD IN THE EVENT OF EITHER ANY DEFAULT BY LANDLORD UNDER, THIS AGREEMENT, THE SUBLEASE
(AS MODIFIED BY THIS PARAGRAPH 4), OR OTHERWISE IN RESPECT OF, OR APPURTENANT TO, THIS AGREEMENT,
THE SUBLEASE (AS MODIFIED BY THIS PARAGRAPH 4), THE SUBLET PREMISES OR THE REAL PROPERTY,
LANDLORD’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, ACTIONS AND JUDGMENTS SHALL BE AS SET FORTH
IN SECTION 36.02 OF THE LEASE. NO PARTNER, MEMBER, OFFICER OR DIRECTOR OF LANDLORD, DISCLOSED OR
UNDISCLOSED), SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER ENFORCEMENT PROCEDURE FOR THE
SATISFACTION OF SUBTENANT’S REMEDIES UNDER OR WITH RESPECT TO THIS AGREEMENT, THE SUBLEASE (AS
MODIFIED BY THIS PARAGRAPH 4), THE RELATIONSHIP OF LANDLORD AND SUBTENANT THEREUNDER, OR THE USE
AND OCCUPANCY OF THE SUBLET PREMISES BY SUBTENANT OR BY ANY PERSON OR ENTITY CLAIMING BY, THROUGH
OR UNDER SUBTENANT OR OTHERWISE IN RESPECT OF, OR APPURTENANT TO, THIS AGREEMENT, THE SUBLEASE (AS
MODIFIED BY THIS PARAGRAPH 4), THE SUBLET PREMISES OR THE REAL PROPERTY. LANDLORD SHALL IN NO
EVENT BE LIABLE FOR ANY LOSS OF BUSINESS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES UNDER OR WITH RESPECT TO THIS AGREEMENT, THE SUBLEASE (AS MODIFIED BY THIS PARAGRAPH 4),
THE RELATIONSHIP OF LANDLORD AND SUBTENANT THEREUNDER, OR THE USE AND OCCUPANCY OF THE SUBLET
PREMISES BY SUBTENANT OR BY ANY PERSON OR ENTITY CLAIMING BY, THROUGH OR UNDER SUBTENANT OR
OTHERWISE IN RESPECT OF, OR APPURTENANT TO, THIS AGREEMENT, THE SUBLEASE (AS MODIFIED BY THIS
PARAGRAPH 4), THE SUBLET PREMISES OR THE REAL PROPERTY.



          (c) The provisions of this Paragraph shall be self-operative and no further instrument
shall be required; however, within ten (10) days after Landlord’s request therefor from time to
time, Subtenant shall execute, acknowledge and deliver to Landlord any certificate or other
instrument which Landlord may reasonably request to confirm such attornment by Subtenant.




 









 








     5. Covenants of Subtenant.



          (a) Subtenant agrees for the benefit of Landlord that Subtenant will not:





          (i) Pay any rent, additional rent or other charges more than one (1) month in
advance of accrual; or




          (ii) Modify or amend the Sublease without Landlord’s prior written
consent.



          (b) If any act or omission of Tenant would give Subtenant the right, immediately or after
notice or lapse of a period of time or both, to cancel or terminate the Sublease or to claim a
partial or total eviction or constructive eviction, Subtenant shall not exercise such right (a)
until it has given written notice of such act or omission to Landlord, and (b) until the expiration
of thirty (30) days after notice of such default is given to such Landlord, provided however, if
such default is not capable of cure within said thirty (30) day period then, in such event, until a
reasonable period of time shall have elapsed following the giving of notice of such default.
Landlord shall have the right, but not the obligation, to cure such act or omission, and the
failure, refusal or inability of Landlord or Tenant to cure such act or omission shall not impose
upon Landlord any obligation or liability whatsoever.




          (c) All claims, demands or causes of action which Subtenant may have against any prior
sublandlord under the Sublease (including, but not limited to, Tenant) under any provisions of, or
with respect to, the Sublease, or on account of any matter, condition or circumstance arising out
of the relationship of sublandlord and subtenant under the Sublease, Subtenant’s occupancy of the
Sublet Premises or Tenant’s prior ownership thereof, shall be enforceable solely against such prior
sublandlord personally to the extent provided in the Sublease and Landlord shall not be subject to
any such claim, demand or cause of action against such prior sublandlord.




     6. Payment to Landlord.



          After notice is given to Subtenant by Landlord that, pursuant to the Lease, the rent,
additional rent and other charges payable under the Sublease shall be paid to Landlord, Subtenant
shall pay to Landlord, or in accordance with the directions of Landlord, all rent, additional rent
and other charges payable under the Sublease, and Tenant hereby expressly authorizes Subtenant to
make such payments to Landlord (or Landlord’s designee) and hereby fully releases and discharges
Subtenant of, and from any liability to Tenant on account of any such payments, which payments to
the extent made by Subtenant, shall be deemed to be payment under the Lease in satisfaction of
Tenant’s obligation under the Lease with respect to such payment.




     7. Representations and Warranties.



          Tenant and Subtenant jointly and severally represent and warrant to Landlord that:




 









 









          (a) The Sublease is in full force and effect and has not been modified [except as follows:
_____________]; and




          (b) No rent, additional rent or other charges under the Sublease have been paid more than
one (1) month in advance of accrual.




     8. Successors and Assigns.



          The provisions of this Agreement shall inure to the benefit of and shall be binding upon
Subtenant, Tenant and Landlord and their respective heirs, personal representatives, successors and
assigns, with the same effect as if mentioned in each instance where a party is named or referred
to; provided, however, the obligations and liabilities of Landlord under this Agreement shall not
be binding upon Landlord herein named with respect to any period subsequent to the transfer of its
interest in the Building as owner or lessee thereof and in the event of such transfer said
obligations shall thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Building and such transferee shall be deemed to have assumed
such obligations as if assumed in writing, but only with respect to the period ending with a
subsequent transfer within the meaning of this Paragraph. Nothing contained in this Agreement
shall be deemed Landlord’s consent to an assignment of Subtenant’s interest in the Sublease, to the
transfer of any interest in Subtenant, or to the further subletting of the Sublet Premises or any
portion thereof.




     9. Acknowledgment and Agreement by Tenant.



          Tenant, as sublandlord under the Sublease and tenant under the Lease, acknowledges and agrees
that:




          (a) This Agreement does not:




               (i) constitute a waiver or modification by Landlord of any of its rights under the Lease;
and



               (ii) in any way release Tenant from its obligations to comply with the terms, provisions,
conditions, covenants, agreements and clauses of either the Lease or the Sublease;



          (b) The provisions of the Lease remain in full force and effect in accordance with its
terms; and




          (c) Landlord has no obligation to Subtenant under the Lease, nor shall Landlord incur any
liability to Subtenant with respect to any warranties of any nature whatsoever contained in the
Lease, whether pursuant to the Lease or otherwise,
including, but not limited to, any warranties respecting use, compliance with zoning, Tenant’s
title, Tenant’s authority, habitability, fitness for purpose or possession.





 









 






     10. Estoppel.




          Within ten (10) days after Landlord’s request, Tenant and Subtenant shall execute and deliver
to Landlord a statement (a) certifying that the Sublease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and effect as modified and
stating the modifications) and whether any options granted to Subtenant pursuant to the provisions
of the Sublease have been exercised, (b) setting forth and certifying the commencement date and the
expiration date of the term of the Sublease and the amount of base, minimum or fixed rent and the
additional rent payable thereunder, the (c) certifying the dates to which the rent, additional rent
and other charges payable under the Sublease have been paid and the amounts thereof, (d) stating
whether or not, to the best knowledge of the signer of the statement, either Tenant or Subtenant is
in default in performance of any of its obligations under the Sublease, (e) stating whether
Subtenant has any rights to offsets or abatement of rent, (f) stating whether Subtenant has paid
any rent, additional rent or other charges more than one (1) month in advance of accrual, and (g)
certifying such other information relating to the Sublease, the Sublet Premises or this Agreement
as Landlord reasonably requests, it being intended that any such statement delivered pursuant
hereto may be relied upon by others with whom Landlord may be dealing and their respective
successors and/or assigns.




     11. Notices.



          (a) Except as otherwise expressly permitted in this Agreement, all notices, demands,
approvals, consents, requests and other communications (collectively, “Notices”) which under the
terms of this Agreement must or may be given or made by the parties hereto, must be in writing
(whether or not so stated elsewhere in this Agreement and whether or not the term “Notice” is used
to describe any such notice, demand, approval, consent, request or other communication), and must
be given or made either by sending the Notice by (i) hand delivery or (ii) an overnight commercial
courier service (“next business day delivery”) which provides for delivery with receipt guaranteed,
in either case addressed to each party as follows:




	 	 	 

	If to Landlord:
	 	at the address set forth on the first page of this
	 
	 	Agreement, Attention:                                         
	 
	 	 
	With a copy to:
	 	Greenberg Traurig, LLP
	 
	 	200 Park Avenue
	 
	 	New York, New York  10166
	 
	 	Attention:                     , Esq., and
	 
	 	 
	If to Tenant:
	 	                                        
	 
	 	                                        
	 
	 	                                        
	 
	 	Attention:                      
	 
	 	 
	With a copy to:
	 	                                        
	 
	 	                                        
	 
	 	                                        
	 
	 	Attention:                      






 









 






	 	 	 

	If to Subtenant:
	 	                                        
	 
	 	                                        
	 
	 	                                        
	 
	 	Attention:                    
	 
	 	 
	With a copy to:
	 	                                        
	 
	 	                                        
	 
	 	                                        
	 
	 	Attention:                    






          (b) All Notices shall be deemed to have been made or given (i) if delivered by hand as
provided for in this Paragraph, on the date receipt thereof is acknowledged by the party to whom
the Notice is being given (including an employee or agent of such party), or (ii) if sent by
commercial courier as provided for in this Paragraph, on the date which is one (1) Business Day (as
defined in the Lease) after accepted by the commercial courier for delivery. Either party may
designate by a Notice given in the manner herein specified a new or other address to which Notices
shall thereafter be so given or made.




     12. Miscellaneous.



          (a) This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute and be construed as one and the same
instrument.




          (b) The reasonable cost of attorneys’ fees and disbursements for any legal action or
arbitration between or among the parties arising out of any dispute or litigation relating to
enforcement of this Agreement shall be borne by the party or parties against whom a final,
unappealable, decision is rendered.




          (c) This Agreement shall be deemed to be an agreement entered into pursuant to the laws of
the State of New York and shall in all respects be governed, construed, applied and enforced in
accordance with the laws of the State of New York that are applicable to agreements made and to be
performed in that state, without giving effect to the principles of conflict of laws except section
5-1401 of the New York General Obligations Law.




          (d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD, TENANT AND SUBTENANT HEREBY
IRREVOCABLY WAIVE ALL RIGHTS OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER MATTER ARISING HEREUNDER.




          (e) All actions and proceeding with respect to this Agreement or any other matter arising
hereunder, and all actions and proceedings for enforcement of any




 









 







judgment or order in respect of
this Agreement or any other matter arising hereunder may be brought in the courts of the State of
New York or of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, Tenant and Subtenant hereby accept for themselves and in
respect of their property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. Landlord, Tenant and Subtenant hereby
irrevocably waive any objection which they may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection with this Agreement or any
other matter arising hereunder brought in the courts referred to above and hereby further
irrevocably waive and agree not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.




          (f) Nothing in this Agreement or otherwise shall affect the right of Landlord, Tenant or
Subtenant to serve process in any manner permitted by law or limit the right of Landlord, Tenant,
Subtenant or any of its successors or assigns to commence actions, bring proceedings or enforce
judgments or orders against Landlord, Tenant or Subtenant in the courts of any jurisdiction or
jurisdictions.




          (g) This Agreement sets forth the entire agreement between the parties regarding the
matters described herein, superseding all prior agreements and understandings, written and oral,
regarding such matters. This Agreement shall not be canceled, modified or amended orally or in any
manner other than by an agreement in writing signed by the parties hereto or their respective
successors or assigns.




          (h) The captions and headings in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of this Agreement
or the intent of any provision hereof.




          (i) Landlord, Tenant and Subtenant each represent and warrant to the other that it has not
relied upon any representation or warranty, express or implied, in entering into this Agreement,
except those which are set forth herein.




          (j) If any of the provisions of this Agreement, or its application to any situation, shall
be invalid or unenforceable to any extent, the remainder of this Agreement, or the application
thereof to situations other than that as to which it is invalid or unenforceable, shall not be
affected thereby, and every provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.




          (k) Submission by Landlord of the within Agreement for execution by Tenant and Subtenant
shall confer no rights nor impose any obligation on Landlord unless and until Landlord, Tenant and
Subtenant shall have executed this Agreement
and duplicate originals thereof shall have been delivered by Landlord, Tenant and Subtenant to
each other.




 









 








          (l) The Statement of Facts first set forth in this Agreement and any exhibits and
schedules attached hereto are incorporated into this Agreement and are, and shall for all purposes
be deemed to be, a part of this Agreement.




          (m) Tenant hereby agrees to pay the reasonable legal fees and expenses incurred by
Landlord in connection with the preparation of this Agreement.




     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first above written.



	 	 	 	 	 
	 	LANDLORD:
 	 
	 
	 	 	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TENANT:
 	 
	 
	 	 	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SUBTENANT:
 	 
	 
	 	 	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



 



EXHIBIT F

RULES AND REGULATIONS

 







     (2) Intentionally omitted.



     (3) The rights of each tenant in the entrances, corridors and elevators servicing the
Building are limited to ingress and egress from such tenant’s premises for the tenant and its
employees, licensees and invitees, and no tenant shall use, or permit the use of, the entrances,
corridors or elevators for any other purpose. No tenant shall invite to the tenant’s premises, or
permit the visit of, persons in such numbers or under such conditions as to interfere with the use
and enjoyment of any of the plazas, entrances, corridors, elevators and other facilities of the
Building by any other tenants. Fire exits and stairways are for emergency use only, and they shall
not be used for any other purpose by the tenants, their employees, licensees or invitees, except as
specifically permitted in the Sublease including, without limitation, to the extent permitted by
Legal Requirements, Tenant may use fire stairs to go between floors. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, elevators, fire exits or stairways of the Building. No showcases or other articles
shall be put in front of or affixed to any part of the exterior of the Building, nor placed in the
halls, corridors or vestibules. Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities furnished for the common
use of the tenants, in such manner as it deems best for the benefit of the tenants generally,
provided, however, Landlord shall operate all public portions, public facilities and common areas
in a manner commensurate with other multi-tenant first-class office building in New York City.
Nothing herein shall limit Tenant’s right to use the plaza area on the 8th floor for
meetings and receptions in accordance with the express provisions of the Sublease.



     (4) Landlord may refuse admission to the Building to any person not known to the attendant
in charge or not having a pass issued by Landlord or the tenant whose premises are to be entered or
not otherwise properly identified or registered, and may require all persons admitted to or leaving
the Building to register and provide appropriate identification. Tenant shall be responsible for
all persons for whom it issues any such pass or who it so registers and shall be liable to Landlord
for all acts or omissions of such persons. Any person whose presence in the Building at any time
shall, in the reasonable judgment of Landlord, be prejudicial to the safety, or (except for
full-time employees of Tenant), the character, the reputation or the interests of the Building or
of its tenants, may be denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other similar commotion which may result in imminent injury to
persons or material property damage, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of the tenants and
protection of property in the



 









 




Building. Landlord reserves the right to inspect all packages and other objects to be brought
into the Building and to exclude from the Building all packages and other objects which violate any
of these Rules and Regulations or this Sublease. Landlord may require any person leaving the
Building with any package or other object to exhibit a pass, listing such package or other object,
from the tenant from whose premises the package or object is being removed, but the establishment
and enforcement of such requirement shall not impose any responsibility on Landlord for the
protection of any tenant against the removal of property from the premises of such tenant.
Landlord shall, in no way, be liable to any tenant for damages or loss arising from the admission,
exclusion or ejection of any person to or from the tenant’s premises or the Building under the
provisions of this rule. Canvassing, soliciting or peddling in the Building is prohibited and each
tenant shall cooperate to prevent the same.




     (5) No tenant shall obtain or accept for use in its premises ice, (except as provided in
pantries, in permitted vending machines and except further for catered events), beverage (except as
provided in pantries, permitted vending machines and except further for catered events), towel,
barbering, boot blacking, floor polishing, lighting maintenance, cleaning or other similar services
from any persons (other than Tenant’s employees or employees of Tenant Parties) not authorized,
designated or approved by Landlord in writing to furnish such services. Such services shall be
furnished only at such hours, in such places within the tenant’s premises and under such reasonable
regulations as may be determined by Landlord from time to time.



     (6) No lettering, sign, advertisement, notice or object shall be displayed outside the
tenant’s premises (including in or on the exterior windows or doors), or on the outside of any
tenant’s premises, or at any point inside any tenant’s premises where the same might be visible
outside of such premises, except that the name of the tenant may be displayed on the entrance door
of the tenant’s premises, and in the elevator lobbies of the floors which are occupied entirely by
any tenant, subject to the approval of Landlord as to the size, colors, dimensions, materials,
finishes and method of attachment of such display. Listing of the name of the tenant on the
directory boards in the Building shall be done by Landlord at its expense; any other listings shall
be in the discretion of Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the reasonable expense incurred
in such removal to the tenant violating this rule. In the event of any conflict between this rule
and the provisions of Section 45 of the Sublease, the provisions of Section 45 of the Sublease
shall control.



     (7) No awnings or other projections shall be attached to the outside walls, windows or any
other portion of the Building. All curtains, blinds, shades or screens must be of a quality, type,
design and color, and attached in the manner approved by Landlord, which approval shall not be
unreasonably withheld. Linoleum, tile or other floor coverings shall be laid in a tenant’s
premises only in a manner approved by Landlord which approval shall be granted in accordance with
Article 13 of the Sublease.



     (8) The sashes, sash doors, skylights, windows and doors that reflect or admit light and
air into the tenant’s premises or into the halls, passageways or other public



 









 




places in the Building shall not be covered or obstructed by any tenant (except for Building
standard window shades or window shades approved by Landlord), nor shall any bottles, parcels or
other articles be placed on the window sills or on the peripheral air conditioning or heating
enclosures, if any. All windows of the tenant’s premises shall remain closed at all times.




     (9) No bicycles, vehicles or animals of any kind shall be brought into or kept in or about
the tenant’s premises or the Building, except for guide and other service dogs or other animals to
assist the disabled and any bicycle storage area provided in the Storage Space or in the Bicycle
Space.



     (10) The moving, removal, or the carrying in or out of any safes, freight, furniture,
packages, boxes, crates or any other object or matter of any description must take place during
such hours and in such elevators, in such manner as Landlord or its agent may reasonably determine
from time to time, and upon previous notice to Landlord. All persons employed to move any of the
foregoing shall be reasonably acceptable to Landlord and, if so required by applicable
Requirements, shall hold a Master Rigger’s license. Freight, furniture, business equipment,
merchandise and bulky matter of any description shall be delivered to and removed from the premises
only in the freight elevators and through the service entrances and corridors, and only during
hours and in a manner reasonably approved by Landlord. Arrangements will be made by Landlord with
any tenant for moving large quantities of furniture and equipment into or out of the Building.



     (11) If a tenant’s premises is or becomes infested with rats, mice, insects and other
vermin as a result of the use or any misuse or neglect by tenant, a subtenant or any of their
respective agents, employees, visitors or licensees, such tenant shall at its expense cause the
same to be exterminated from time to time to the reasonable satisfaction of Landlord and shall
employ such exterminators and such exterminating company or companies as shall reasonably be
designated by Landlord or, if none is so designated, as reasonably approved by Landlord. The
presence of vermin shall not be presumptive that Tenant caused such condition.



     (12) No dangerous, inflammable, hazardous, combustible or explosive substance or material,
including gases and liquids, shall be brought into the Building by any tenant, or any tenant’s
contractors, employees or agents, or with the permission of any tenant.



     (13) No tenant shall occupy or permit any portion of its premises to be occupied as an
office for a public stenographer or public typist, or for the possession, storage, manufacture, or
sale of liquor, narcotics, dope, tobacco in any form, or as a barber, beauty or manicure shop, or
as a school (except for corporate training by Tenant for its employees). No tenant shall use, or
permit its premises or any part thereof to be used, for manufacturing, or the sale at retail or
auction of merchandise, goods or property of any kind.



     (14) Omitted prior to execution.



 









 





     (15) No acids, vapors, paper towels or other materials shall be discharged or permitted to
be discharged into the waste lines, vents or flues of the Building which may damage them. The water
and wash closets and other plumbing fixtures in or serving any tenant’s premises shall not be used
for any purpose other than the purposes for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant who, or whose
servants, employees, agents, visitors or licensees shall have, caused the same.



     (16) Additional locks or bolts of any kind which shall not be operable by the Grand Master
Key for the Building shall not be placed upon any of the doors or windows by any tenant, nor shall
any changes be made in locks or the mechanism thereof which shall make such locks inoperable by
said Grand Master Key. Additional keys for a tenant’s premises and toilet rooms shall be procured
only from Landlord who may make a reasonable charge therefor. Each tenant shall, upon the
termination of its tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of the loss of any
keys furnished by Landlord, such tenant shall pay to Landlord the cost thereof.



     (17) Omitted prior to execution.



     (18) Hand trucks not equipped with rubber tires and side guards shall not be used within
the Building.



     (19) All windows in each tenant’s premises shall be kept closed and all blinds therein, if
any, above the ground floor shall be lowered when and as reasonably required because of the
position of the sun, during the operation of the Building air-conditioning system to cool or
ventilate the tenant’s premises. If Landlord shall elect to install any energy saving film on the
windows of the Premises or to install energy saving windows in place of the present windows, tenant
shall cooperate with the reasonable requirements of Landlord in connection with such installation
and thereafter the maintenance and replacement of the film and/or windows and permit Landlord to
have access to the tenant’s premises at reasonable times to perform such work.



     (20) Landlord, its contractors, and their respective employees shall have the right to
use, without charge therefor, all light, power and water in the premises of any tenant while
cleaning or making repairs or alterations in the premises of such tenant.



     (21) No premises of any tenant shall be used for lodging of sleeping or for any illegal
purpose.



     (22) The requirements of tenants will be attended to only upon application at the office
of the Building or pursuant to the requirements of the Sublease. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under special instructions
from Landlord.



 









 





     (23) To the extent there is a conflict between the provisions contained in this Exhibit
and the other provisions of this Sublease, the other provisions of the Sublease shall govern and
control.



     (24) The Landlord reserves the right to rescind, alter or waive any rule or regulation at
any time prescribed for the Building when, in its reasonable judgment, it deems it necessary,
desirable or proper for its best interest and for the best interests of the tenants, and no
alteration or waiver of any rule or regulation in favor of one tenant shall operate as an
alteration or waiver in favor of any other tenant. The Landlord shall not be responsible to any
tenant for the non-observance or violation by any other tenant of any of the rules and regulations
at any time prescribed for the Building, provided, however, Landlord shall not discriminate in
enforcing any of the rules and regulations. Notwithstanding the foregoing, Tenant shall have the
right to approve any rescission, alteration or waiver of any rule or regulation or addition of new
rules and regulations if such change adversely and materially affects Tenant’s operations in the
Premises for the Permitted Uses, which approval shall not be unreasonably withheld or delayed.



 









 





 



EXHIBIT G

CLEANING SPECIFICATIONS

 






METLIFE * 27-01 QUEENS PLAZA NORTH * LONG ISLAND CITY * NY * 11101

***TT CLEANING SPECIFICATIONS***



I. Tenant office and meeting room areas:





	 	A.	 	Nightly –
	 
	 	 	 	Sweep and/or mop all hard floor surfaces (stone, terrazzo, vinyl, wood, rubber,
ceramic tile, granite paver, etc) uncarpeted raised floors and other types of
unwaxed flooring. Sweep and dust mop all interior wood floor surfaces.
	 
	 	 	 	Vacuum all rugs and carpeted areas (including carpet on raised floors). Sweep or
vacuum all internal stairwells.
	 
	 	 	 	Dust, wipe clean and sanitize all telephones.
	 
	 	 	 	Remove all gum and foreign matter in plain sight.
	 
	 	 	 	Empty and clean all waste receptacles and remove wastepaper and waste materials to
designated areas. This includes both non-recyclable and recyclable trash bins.
	 
	 	 	 	Supply and install all waste receptacle liners if required.
	 
	 	 	 	Wash clean, sanitize and polish dry all water fountains and water coolers, emptying
all water reservoirs.
	 
	 	 	 	All cleaning tasks shall be scheduled so that a minimum number of lights are to be
left on. Upon completion of cleaning, all lights are to be turned off. All
entrance doors are to be kept locked during the entire operation.
	 
	 	B.	 	Weekly –
	 
	 	 	 	Wash and polish all glass tabletops and plastic desks.
	 
	 	 	 	Wash and clean all vinyl cove base and terrazzo floor base.
	 
	 	 	 	Spray and buff all waxed floor surfaces including all resilient stone, terrazzo and
composition flooring.




 









 






	 	 	 	Damp dust all interiors of waste basket receptacles and wash when necessary.
	 
	 	 	 	Perform spot cleaning on carpet and rugs as needed.
	 
	 	C.	 	Monthly
	 
	 	 	 	Strip, wax and wash all waxed floor surfaces including all resilient stone, terrazzo
and composition flooring.
	 
	 	 	 	Spot clean all partitions and glass door panels within arms reach.
	 
	 	 	 	Clean tracks and saddles of elevators.
	 
	 	 	 	Dust all door louvers, bucks and other ventilating louvers within reach.
	 
	 	D.	 	Quarterly
	 
	 	 	 	High dust all hard to reach areas not reached in nightly cleaning including all
picture frames, charts, graphs, similar wall hangings, walls, doors, partitions,
electrical and light fixtures, vents, louvers, ducts, and sprinklers.
	 
	 	 	 	Damp wash and dry thoroughly all air conditioning louvers, grills, etc. not reached
in nightly cleaning.
	 
	 	 	 	Clean and dust all wood wall surfaces with untreated dry cloth in designated areas.
	 
	 	 	 	Buff all wooden floors using approved solutions.
	 
	 	 	 	Bonnet clean carpets and rugs.






	II.	 	Base Building Common areas






	 	A.	 	Nightly
	 
	 	 	 	Sweep and mop lobby flooring
	 
	 	 	 	Clean all door saddles in lobbies
	 
	 	 	 	Empty, clean and sanitize all wastebaskets, cigarette urns and refuse receptacles
	 
	 	 	 	Wipe clean all metal railings.
	 
	 	 	 	Spot clean and vacuum all walk-off mats
	 
	 	 	 	Mop floors and bins in wet rubbish areas.




 









 






	 	 	 	Keep wastepaper, cardboard rubbish, etc stored in appropriate receptacles or
assigned rooms.
	 
	 	 	 	Clean floors, walls, doors, etc. as necessary.
	 
	 	B.	 	Quarterly –
	 
	 	 	 	Dust all speaker/strobes, exit lights and light fixtures
	 
	 	 	 	Dust walls, manual pull stations, door handles, etc.
	 
	 	 	 	Machine wash, power scrub and refinish main lobby floors.






	III.	 	Passenger Elevators and Freight Elevator lobbies






	 	A.	 	Nightly
	 
	 	 	 	Wipe down with a lint free cloth (wash if necessary) elevator doors and frames.
Vacuum and polish all saddles and bottom tracks.
	 
	 	 	 	Dust double doors and frames (both sides).
	 
	 	 	 	Remove all finger marks from light switches and surrounding surfaces.
	 
	 	 	 	Sweep and damp mop the floor.
	 
	 	 	 	Vacuum carpeted elevator lobbies
	 
	 	 	 	Spot clean glass doors to remove smudge marks
	 
	 	 	 	Dust and wipe down inside walls of elevator cabs.






	IV.	 	Exit Stairs – roof to grade






	 	A.	 	Monthly
	 
	 	 	 	Dust all light fixtures (tops/lenses)
	 
	 	 	 	Sweep and damp mop all landings, stairwells and stair treads.
	 
	 	 	 	Remove all debris roofs to grade.
	 
	 	 	 	Dust all exposed structural members, pipes and valves and fire extinguishing
equipment.




 









 












	V.	 	Lavatories






	 	A.	 	Nightly
	 
	 	 	 	Restock all lavatories with supplies, including paper towels, toilet tissue, toilet
seat covers, and hand soap, as required.
	 
	 	 	 	Restock all sanitary napkin and tampon dispensers as required.
	 
	 	 	 	Wash and polish all mirrors, dispensers, toilets, toilet seats (both sides), urinals
and sinks with non-abrasive disinfectant cleaner.
	 
	 	 	 	Remove all stains and scale from toilets, urinals and sinks as required.
	 
	 	 	 	Mop all restroom floors with disinfectant germicidal solution.
	 
	 	 	 	Empty and sanitize all waste, sanitary napkin and tampon receptacles.
	 
	 	 	 	Remove all restroom trash to designated areas. Supply and install plastic liners as
necessary.
	 
	 	 	 	Spot clean fingerprints, marks and graffiti from walls, partitions, glass, aluminum
and light switches.
	 
	 	 	 	Check for lights burned out or not working properly and report them to the
supervisor. Plumbing problem i.e. dripping faucets and mechanical deficiencies
should also be reported. Supervisor is to advise of needed repairs.
	 
	 	 	 	Partition tops and edges, air conditioning diffusers and return air grilles, and
lighting fixtures dusted.
	 
	 	 	 	Wipe and wash down all tiles walls and metal partitions. Partitions should be left
clean and unstreaked.
	 
	 	B.	 	Monthly –
	 
	 	 	 	Dust high reach areas including but not limited to, structural ledges, mirror tops.
	 
	 	 	 	Clean all ventilating grills
	 
	 	 	 	Dust all doors, doorjambs and louvers.
	 
	 	 	 	Scrub floors and ceramic wall tiles.




 









 












	VI.	 	Window Cleaning






	 	A.	 	Clean exterior and interior perimeter windows 2 times per year.




 









 











 



EXHIBIT H

DEFINITIONS

 






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




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




          (c) The term obligations of this Sublease, and words of like import, shall mean
the covenants to pay rent and Additional Rent under this Sublease and all of the other covenants
and conditions contained in this Sublease. Any provision in this Sublease that one party or the
other or both shall do or not do or shall cause or permit or not cause or permit a particular act,
condition, or circumstance shall be deemed to mean that such party so covenants or both parties so
covenant, as the case may be. In addition, all of the covenants of Tenant under this Sublease,
whether expressed or implied, shall be deemed and construed to be “conditions” as well as
“covenants” as though the words specifically expressing or implying covenants and conditions were
used in each separate instance.




          (d) The term Tenant’s obligations hereunder, and words of like import, and the
term Landlord’s obligations hereunder, and words of like import, shall mean the
obligations of this Sublease which are to be performed or observed by Tenant, or by Landlord, as
the case may be. Reference to performance of either party’s obligations under this Sublease shall
be construed as “performance and observance”.




          (e) Reference in this Sublease to Tenant being or not being in default hereunder
or in default under this Sublease, or words of like import, shall mean that Tenant is in or
is not in, as the case may be, default in the observance or performance of, or compliance with, one
or more of the terms, covenants, obligations or conditions on Tenant’s part to observe, perform or
comply with under this Sublease, or that a condition of the character described in Section 25.01 ,
or that an Event of Default, has occurred and continues.




          (f) References in this Sublease to Landlord having no liability to Tenant or to
any other person or being without liability to Tenant or to any other person, or words of
like import, (x) shall mean that neither Tenant nor any other Tenant Party is entitled to terminate
this Sublease, or to claim actual or constructive eviction, partial or total, or to receive any
abatement or diminution of rent, or to claim or receive damages of any kind (including
consequential damages) or to be relieved in any manner of any of its other obligations hereunder,
or to be compensated for loss or injury suffered or to enforce any other kind of liability
whatsoever against Landlord under or with respect to






 









 







this Sublease or with respect to Tenant’s use or occupancy of the Premises, and (y) the term
“Landlord” shall include all Landlord Indemnitees.




          (g) The term “Legal Requirements” shall mean all present and future laws, ordinances,
requirements, orders, directives, rules, resolutions, codes, and regulations of all Governmental
Authorities having jurisdiction over the Building.




          (h) The term “Insurance Requirements” shall mean all present and future rules,
regulations, orders and other requirements of the New York Board of Fire Underwriters, the New York
Fire Insurance Rating Organization and all other similar organizations performing the same or
similar functions and having jurisdiction of the Building and/or the Premises, and all
requirements, obligations and conditions imposed by the carrier of Landlord’s property damage
policy for the Building.




          (i) The term “Requirements” shall mean, collectively, Legal Requirements and Insurance
Requirements.




          (j) The term “Governmental Authority (Authorities)” shall mean all governmental, public
and quasi-public authorities, including the United States of America, the State of New York, the
City of New York and all subdivisions thereof, including all executive, legislative and judicial
bodies, agencies, departments, commissions, boards, bureaus and instrumentalities of any of the
foregoing, now existing or hereafter created.




          (k) The term repair shall be deemed to include restoration and replacement as may
be necessary to achieve and/or maintain good working order and condition.




          (l) Reference to termination of this Sublease includes expiration or earlier
termination of the Term or cancellation of this Sublease pursuant to any of the provisions of this
Sublease or to law. Upon a termination of this Sublease, the term and estate granted by this
Sublease shall end at 11:59 P.M. of the date of termination as if such date were the date of
expiration of the Term. All obligations and liabilities of Tenant to Landlord, and Landlord to
Tenant, which accrued before the expiration or other termination of this Sublease, and all such
obligations and liabilities which by their nature or under the circumstances can only be, or by the
provisions of this Sublease may be, performed after such expiration or other termination, shall
survive the expiration or other termination of this Sublease, subject (as if this Sublease had not
been terminated) to all of the limitations on Landlord’s and Tenant’s obligations and liabilities
provided for in this Sublease. Without limiting the generality of the foregoing, the rights and
obligations of Landlord and Tenant with respect to any indemnity under this Sublease, and with
respect to any rent and any other amounts payable under this Sublease, shall survive the expiration
or other termination of this Sublease.




          (m) The term in full force and effect when herein used in reference to this
Sublease as a condition to the existence or exercise of a right on the part of Tenant shall be
construed in each instance as including the further condition that at the time in






 









 







question no default on the part of Tenant exists, and no event has occurred which has
continued to exist for such period of time (after the notice, if any, required by this Sublease),
as would entitle Landlord to terminate this Sublease or to dispossess Tenant




          (n) The term Tenant shall mean Tenant herein named or any assignee or other
successor in interest (immediate or remote) of Tenant herein named, while such Tenant or such
assignee or other successor in interest, as the case may be, is in possession of the Premises as
owner of Tenant’s estate and interest granted by this Sublease.




          (o) The term Tenant Party shall mean and include Tenant and all persons claiming
by, through and under Tenant, including subtenants, licensees and concessionaires of any portion of
the Premises, and the employees, invitees, customers, patrons, agents and contractors of Tenant or
of any such subtenants, licensees or concessionaires.




          (p) The term Prime Rate shall mean, on any particular date, a rate per annum equal
to the rate of interest published in The Wall Street Journal as the “prime rate,” as in effect on
such day, with any change in the “Prime Rate” resulting from a change in said prime rate to be
effective as of the date of the relevant change in said prime rate; provided, however, that if more
than one prime rate is published in The Wall Street Journal for a day, the average of the prime
rates shall be used; provided, further, however, that the prime rate (or the average of the prime
rates) will be rounded up to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the
next higher 1/16 of 1%. In the event that The Wall Street Journal ceases or temporarily interrupts
publication (or publication of a “prime rate”), then the Prime Rate shall mean the daily average
prime rate published in another business newspaper, or business section of a newspaper, of national
standing reasonably chosen by Landlord. If The Wall Street Journal resumes publication, the
substitute index will immediately be replaced by the prime rate published in The Wall Street
Journal.




          (q) The term Event of Default shall mean a default under any of the terms,
covenants or conditions of this Sublease on Tenant’s part to observe, perform or comply with, that
remains or remained uncured after the giving of any required notice to Tenant and the expiration of
any applicable cure period, or any of the events described in Section 25.01 of this Sublease, or
any other event or occurrence designated in this Sublease as an “Event of Default.”




          (r) The term Business Days shall mean Mondays through Fridays, except such days as
are observed by the State or Federal government as legal holidays and those days designated as
holidays by the applicable building service union employees contract.




          (s) 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.







 









 








          (t) 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.




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




          (v) The terms person and persons, as used in this Sublease, shall mean and
include natural persons, firms, corporations, partnerships, joint ventures, limited liability
partnerships, limited liability companies, associations and any other private or public entities,
including any government or political subdivision or agency, department or instrumentality thereof.




          (w) The terms hereby, hereof, herein, hereto,
hereunder and any similar terms in this Sublease shall be deemed to refer to this Sublease
in its entirety and not solely to the particular clause of this Sublease in which such term is
used.




          (x) The term “GAAP” shall mean generally accepted accounting principles,
consistently applied, in the United States of America as of the date of the applicable financial
report.




          (y) The term “Building Standard” shall mean such materials, equipment, fixtures
and specifications as Landlord may reasonably elect to use from time to time as a part of its
standard construction substantially throughout the Building, provided that such Building Standard
is comparable to other multi-tenant first-class office buildings in New York City.




          (z) The term “Lease Year” shall mean each twelve (12) month period beginning on the [***]
and each anniversary thereof, provided such [***] is on the first day of a month. If [***] falls
on a day other than the first day of a month, then the first Lease Year shall begin on the first
day of the calendar month next following [***]. If [***] falls on a day other than the first day
of a month, then the first Lease Year shall include the period of time from [***] up to the first
day of the next calendar month.




          (aa) The term “Sign” shall mean any sign, billboard, flag, banner, paper, plaque, placard,
window sticker, decal, light, television screen, monitor, menu box or other advertising symbol or
object, irrespective of whether same be temporary or permanent, or neon, lighted or flashing, or
mechanical, stationary or electronic, which displays any words, pictures, logos, moving images,
numbers or other messages.




          (bb) An “Affiliate” of a person shall mean an entity which directly or indirectly
controls, is controlled by or is under common control with such person, where






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 









“control” means (i) ownership, directly or indirectly, of at least 50% of the outstanding
voting capital stock of a corporation or more than 50% of the beneficial interests of any other
entity or (ii) the ability effectively to control or direct the business decisions of such
corporation or entity.




 









 








 



EXHIBIT I

RENTABLE SQUARE FEET AND USEABLE AREA

 






MetLife

Long Island City

REBNY Area Calculation




27-01 Bridge Plaza North: USF and RSF Measurements




	 	 	 	 	 
	 	 	 	 	Rentable Area
	 	 	 	 	25% Loss-Factor
	 	 	 	 	1.33333
	Floor Name	 	REBNY Usable	 	add-on
	13th Floor
	 	15,607	 	20,809
	12th Floor
	 	15,616	 	20,821
	11th Floor
	 	15,616	 	20,821
	10th Floor
	 	15,616	 	20,821
	09th Floor
	 	15,616	 	20,821
	08th Floor
	 	18,609	 	24,812
	07th Floor
	 	69,480	 	92,640
	06th Floor
	 	69,699	 	92,932
	05th Floor
	 	69,699	 	92,932
	04th Floor
	 	69,729	 	92,972
	03rd Floor
	 	69,729	 	92,972
	02nd Floor
	 	34,971	 	46,628
	01st Floor
	 	 	 	0
	Basement
	 	51,949	 	69,265
	 
	 	 
	Total:
	 	531,936	 	709,248
	 
	 	 





 









 






 



EXHIBIT J

REAL ESTATE BOARD OF NEW YORK

RECOMMENDED METHOD OF FLOOR MEASUREMENT

 







 









 








	 	 	 

	[REBNY Logo]

	 	2010 DIARY AND MANUAL






RECOMMENDED METHOD OF FLOOR MEASUREMENT

FOR OFFICE BUILDINGS

Effective January 1, 1987, revised December, 2003




     In order to facilitate a comparison of the cost of space among buildings, the Real Estate
Board of New York, Inc. recommends that owners use a standard definition of usable area and that
they clearly explain how rentable area is calculated based upon such usable area. Architectural
plans and calculations should be made available to the tenant if requested.



     The Real Estate Board of New York, Inc. recommends the following definitions and methods as
the Standard Method of Floor Measurements in office buildings. Any Board member who advertises
office space for rent is expected to follow these guidelines in determining any rentable area count
mentioned in the advertisement.



RENTABLE AREA:




     Because of dissimilarities among buildings, calculations of rentable area may vary. If
requested, owners should disclose to prospective tenants the loss factor used for spaces under
consideration.



USABLE AREA, SINGLE TENANT FLOORS:




     Measure the floor to the outside surface of the building. Subtract from this area the
following, including the nominal four inch enclosing walls:




	 	•	 	Public elevator shafts and elevator machines and their enclosing walls
	 
	 	•	 	Public stairs and their enclosing walls
	 
	 	•	 	heating, ventilating, and air-conditioning facilities (including pipes, ducts and
shafts) and their enclosing walls, unless such equipment, mechanical room space, or
shafts serve the floor in question
	 
	 	•	 	Fire towers and fire tower courts and their enclosing walls
	 
	 	•	 	Main telephone equipment rooms and main electric switchgear rooms, except that
telephone equipment, and electric switchgear rooms serving the floor exclusively shall
not be subtracted





USABLE AREA, MULTIPLE TENANT FLOOR:





	 	•	 	First, calculate the usable area as if for a single tenant floor
	 
	 	•	 	Then deduct corridor areas, including toilets, supply room, etc., but do not deduct
the enclosing walls of such corridor
	 
	 	•	 	Measure the net usable area of each space on the floor by measuring each enclosing
wall which is a building exterior wall to the outside surface of the exterior wall, or
to the outside surface of the glass as the case may be.




 









 






	 	 	 	Measure demising walls to the center and walls which abut corridors to the corridor side
of the finished surface of the corridor wall.
	 
	 	•	 	To determine the usable area on a multiple tenant floor, apportion the corridor area
to each space by multiplying the corridor area by a fraction whose numerator is the net
usable area of the space and whose denominator is the total of the net usable areas of
all the spaces on the floor, and add the result to the net usable area of the space.





BELOW GRADE CELLAR AND SUB-CELLAR SPACE:




     To determine the usable area of below grade, cellar and sub-cellar areas, follow the same
procedures as are appropriate for single or multiple tenant floors except that the following
additional areas should be deducted from usable area:




	 	•	 	Machine rooms and pump rooms and their enclosing walls
	 
	 	•	 	Electric switchgear rooms and then enclosing walls
	 
	 	•	 	Telephone equipment rooms and their enclosing walls
	 
	 	•	 	All space devoted to servicing the operation of the building, i.e., cleaning
contrators , storage, building maintenance shop, building engineer’s office, etc.





RECOMMENDED METHOD OF FLOOR MEASUREMENT FOR STORES:




     1. The rentable area of a store shall be computed by measuring from the building line in the
case of street frontages, and from the in side surface of the outer building walls to the finished
surface of the corridor side of the corridor partition and from the center of the partitions that
separate the premises from adjoining rentable area.



     2. No deductions shall be made for column and projections necessary to the building.



     3. Rentable area of a store shall include all area within the outside walls, less the
following, with their enclosing walls, if serving more than one tenant: building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical ducts.



     4. The following area shall be included in rentable area, if such areas exclusively serve a
store, together with their enclosing walls: private stairs, private elevators, toilets, air
conditioning facilities, janitors’ closets, slop sinks, electrical closets and telephone closets.
When air conditioning facilities serve more than one tenant area, they shall be apportioned in the
same manner as that used for single tenancy floors.



     5. Where a store fronts on a plaza or arcade which is intended for use by the general public
and is not for the exclusive use of the store tenant, its customers, etc., the area of the plaza or
arcade shall not be included in determining the rentable area of the store.



 









 





 



EXHIBIT K

HVAC PERFORMANCE SPECIFICATIONS

 






Heating Ventilation and Air Conditioning Performance Specifications:



The air conditioning system shall provide inside conditions of not more than 75oF +/- 2oF dry bulb
and 50% relative humidity provided that outside conditions are not more than 95oF dry bulb and 75oF
wet bulb.



The system shall be capable of delivering not less than 0.2 CFM of fresh air per usable square
foot, maintaining a minimum indoor temperature of 70oF dry bulb when temperature outside is 0oF.



All the forgoing performance criteria are based upon an occupancy that does not exceed the current
NYC DOB Certificate of Occupancy for JetBlue proportionate share of each floor’s occupancy in the
Premises:




5th Floor: 31,330 RSF of 92,932 RSF: 33.71% * C of O 5th Floor Occupancy=211 persons



6th Floor: 637 persons (full floor tenancy)



7th Floor: 631 persons (full floor tenancy)



and a combined lighting and standard electric demand load of not to exceed 5.0 watts per
square foot of usable floor area in the Premises.



The air conditioning unit fan systems on each floor shall be capable of delivering supply air at a
temperature of not greater than 56oF at the duct leaving the mechanical room wall at a static
pressure of 1.0 inches water column at the discharge duct.



Noise levels due to the local air conditioning unit shall not exceed NC-42 (with acoustical ceiling
installed) within 10 feet from the mechanical equipment room wall and shall not exceed NC-35 beyond
10 feet from the equipment room wall.






 









 








 



EXHIBIT L

NEGATIVE COVENANTS IN OTHER LEASES

 





None.





 











 





 



EXHIBIT M

PLACEMENT OF TENANT GENERATOR EQUIPMENT




 






Lower Roof Mechanical Equipment and Sign






 









 








In-Fill Building Roof

Antenna & Equipment Location










 









 








 




EXHIBIT N

LOCATION OF CONNECTION FOR PORTABLE GENERATOR




 











 









 








 






EXHIBIT O

AFTER HOURS RATES FOR HVAC




 





Overtime HVAC charges to run the mammoth units and associated equipment (including but not limited
to cooling towers, pump, controls, boiler...) shall be:





	 	•	 	$ [***]/Hour/Unit




Initial premise will be served by 7 Mammoth Unit: entire 7th floor: 3 Units, entire
6th Floor: 3 Units, entire 5th floor: 1 Unit



If an operating engineer is required by municipal regulation or law there will be an additional
charge of :





	 	•	 	$ [***]/hour for the first unit only.




If an operating engineer is required there will be a continuous 4 hour minimum run time.
It is understood that the system may be zoned by unit and JetBlue may request (1) to (7) units to
be run at any given time, at the unit rated listed above; however, tenant can not expect HVAC
performance spec for an entire floor unless all that floors units are requested to run



Landlord and/or landlords managing agent will require notice of overtime HVAC services by 12 PM
(noon) on business day(s) prior to the request



These rates are subject to increases by changes (a) in negotiated union labor rates; however,
JetBlue will never be assessed greater than [***] of the listed hourly rate for an engineer and/or
(b) a percent increase in actual cost increase using 2012 as a base year.






 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 










 






EXHIBIT P

OMITTED PRIOR TO EXECUTION




 







 













 





 






EXHIBIT Q

PRICE LIST FOR CONFERENCE CENTER AND ROOF DECK




 






27-01 Queens Plaza North

Tenant Services


All rates are defined per hour. Charges will be calculated based on hours of service needed to
complete task.



Four (4) hour minimum charge on weekends and holidays.




	 	 	 

	Engineer per hour (ST) 

Engineer per hour (OT)

	 	[***]
	 
	 	 
	Handyman per hour (ST) 

Handyman per hour (OT)

	 	[***]
	 
	 	 
	Porter per hour (ST) 

Porter per hour (OT)

	 	[***]
	 
	 	 
	Fire Safety Director (OT)

	 	[***]
	 
	 	 
	Smoke Detector shut down 

Sprinkler Drain Down 

Fire watch

	 	[***]
	 
	 	 
	OT HVAC 

OT freight

	 	Outlined in Exhibit O.

$[***] per hour (per lease)
	 
	 	 
	Please note:

	 	•    Rates to not include any applicable taxes

	 
	 

	 	•    Rates do not include any materials

	 
	 

	 	•    Outside vendor charges and material charges are subject to [***], with applicable taxes. Rates for outside vendors will be charged based on the rates charged by the vendor 

	 
	 

	 	•    Rates are subject to change at any time based on market and union labor rates increases









 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 










	 	 	 	 	 	 	 
	Conference Center	 	Half Day	 	Full Day	 	Evening
	Room Rental Rates	 	4 hrs — am or pm	 	8 am to 5 pm	 	6 pm to 10 pm
	 
	Room D (22 person cap)
	 	[***]	 	[***]	 	[***]
	Room E (18 person cap)
	 	[***]	 	[***]	 	[***]
	Room F (VTC) (16 person cap)
	 	[***]	 	[***]	 	[***]
	Queensboro Room (100 cap)
	 	[***]	 	[***]	 	[***]
	Rooftop (100 cap)
	 	[***]	 	[***]	 	[***]








 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 










 






EXHIBIT R

APPROVED ARBITRATORS




 






Joshua Stein

59 East 54th Street, Suite 22

New York, New York 10022

(212) 688-3300

joshua@joshuastein.com




David E. Montgomery

Schnader Harrison Segal & Lewis LLP

140 Broadway Suite 3100

New York, NY 10005-1101

(212) 973-8075

dmontgomery@schnader.com




 









 





 






EXHIBIT S

EXAMPLE OF SURRENDER PAYMENT




 





JetBlue Surrender Payment Example



As per Article 42.04 (d)...All fees associated with what is applicable to the Surrender Space. For
illustrative purpose, 25,000 rsf is used in this example:





	 	1)	 	Unamortized cost of TI Allowance
	 
	 	2)	 	Unamortized Brokerage Commissions
	 
	 	3)	 	Unamortized Free Rent
	 
	 	4)	 	Interest rate factor @ [***]%.
	 
	 	5)	 	3 Month Rent penalty






Term: July 1, 2011 — 6/1/2023



	 	 	 	 	 
	Surrender Payment	 
	Unamortized Costs
	 	$	[***]	 
	3 Months of Rent
	 	$	[***]	 
	TOTAL
	 	$	[***]	 






	 	 	 	 	 	 	 	 	 

	RSF:
	 	 	25,000	 	 	 	 	 
	Start (month):
	 	 	1	 	 	 	 	 
	End (month):
	 	 	143	 	 	 	 	 
	Surrender Effective Date (month):
	 	 	60	 	 	 	 	 
	Base Rent (psf):
	 	$	[***]	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	TI Allowance
	 	$	[***]	 	 	$[***]  psf	 	 
	Commission
	 	$	[***]	1	 	$[***] psf	 	 
	[***]
	 	$	[***]	 	 	[***]	 	 
	TOTAL
	 	$	[***]	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Rate:
	 	 	[***]	%	 	 	 	 








 




			
	1	 	Commission calculated at [***].
	 
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 









Amortization Schedule @ [***]%




	 	 	 	 	 	 	 	 	 
	Month	 	Payment	 	Principal	 	Interest	 	Balance
	 
	1
	 	[***]	 	[***]	 	[***]	 	[***]
	2
	 	 	 	 	 	 	 	 
	3
	 	 	 	 	 	 	 	 
	4
	 	 	 	 	 	 	 	 
	5
	 	 	 	 	 	 	 	 
	6
	 	 	 	 	 	 	 	 
	7
	 	 	 	 	 	 	 	 
	8
	 	 	 	 	 	 	 	 
	9
	 	 	 	 	 	 	 	 
	10
	 	 	 	 	 	 	 	 
	11
	 	 	 	 	 	 	 	 
	12
	 	 	 	 	 	 	 	 
	13
	 	 	 	 	 	 	 	 
	14
	 	 	 	 	 	 	 	 
	15
	 	 	 	 	 	 	 	 
	16
	 	 	 	 	 	 	 	 
	17
	 	 	 	 	 	 	 	 
	18
	 	 	 	 	 	 	 	 
	19
	 	 	 	 	 	 	 	 
	20
	 	 	 	 	 	 	 	 
	21
	 	 	 	 	 	 	 	 
	22
	 	 	 	 	 	 	 	 
	23
	 	 	 	 	 	 	 	 
	24
	 	 	 	 	 	 	 	 
	25
	 	 	 	 	 	 	 	 
	26
	 	 	 	 	 	 	 	 
	27
	 	 	 	 	 	 	 	 
	28
	 	 	 	 	 	 	 	 
	29
	 	 	 	 	 	 	 	 
	30
	 	 	 	 	 	 	 	 
	31
	 	 	 	 	 	 	 	 
	32
	 	 	 	 	 	 	 	 
	33
	 	 	 	 	 	 	 	 
	34
	 	 	 	 	 	 	 	 
	35
	 	 	 	 	 	 	 	 
	36
	 	 	 	 	 	 	 	 
	37
	 	 	 	 	 	 	 	 
	38
	 	 	 	 	 	 	 	 
	39
	 	 	 	 	 	 	 	 
	40
	 	 	 	 	 	 	 	 
	41
	 	 	 	 	 	 	 	 
	42
	 	 	 	 	 	 	 	 
	43
	 	 	 	 	 	 	 	 
	44
	 	 	 	 	 	 	 	 
	45
	 	 	 	 	 	 	 	 
	46
	 	 	 	 	 	 	 	 
	47
	 	 	 	 	 	 	 	 
	48
	 	 	 	 	 	 	 	 
	49
	 	 	 	 	 	 	 	 
	50
	 	 	 	 	 	 	 	 
	51
	 	 	 	 	 	 	 	 
	52
	 	 	 	 	 	 	 	 








 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 









Amortization Schedule @ [***]%




	 	 	 	 	 	 	 	 	 
	Month	 	Payment	 	Principal	 	Interest	 	Balance
	 
	53
	 	[***]	 	[***]	 	[***]	 	[***]
	54
	 	 	 	 	 	 	 	 
	55
	 	 	 	 	 	 	 	 
	56
	 	 	 	 	 	 	 	 
	57
	 	 	 	 	 	 	 	 
	58
	 	 	 	 	 	 	 	 
	59
	 	 	 	 	 	 	 	 
	60
	 	 	 	 	 	 	 	 
	61
	 	 	 	 	 	 	 	 
	62
	 	 	 	 	 	 	 	 
	63
	 	 	 	 	 	 	 	 
	64
	 	 	 	 	 	 	 	 
	65
	 	 	 	 	 	 	 	 
	66
	 	 	 	 	 	 	 	 
	67
	 	 	 	 	 	 	 	 
	68
	 	 	 	 	 	 	 	 
	69
	 	 	 	 	 	 	 	 
	70
	 	 	 	 	 	 	 	 
	71
	 	 	 	 	 	 	 	 
	72
	 	 	 	 	 	 	 	 
	73
	 	 	 	 	 	 	 	 
	74
	 	 	 	 	 	 	 	 
	75
	 	 	 	 	 	 	 	 
	76
	 	 	 	 	 	 	 	 
	77
	 	 	 	 	 	 	 	 
	78
	 	 	 	 	 	 	 	 
	79
	 	 	 	 	 	 	 	 
	80
	 	 	 	 	 	 	 	 
	81
	 	 	 	 	 	 	 	 
	82
	 	 	 	 	 	 	 	 
	83
	 	 	 	 	 	 	 	 
	84
	 	 	 	 	 	 	 	 
	85
	 	 	 	 	 	 	 	 
	86
	 	 	 	 	 	 	 	 
	87
	 	 	 	 	 	 	 	 
	88
	 	 	 	 	 	 	 	 
	89
	 	 	 	 	 	 	 	 
	90
	 	 	 	 	 	 	 	 
	91
	 	 	 	 	 	 	 	 
	92
	 	 	 	 	 	 	 	 
	93
	 	 	 	 	 	 	 	 
	94
	 	 	 	 	 	 	 	 
	95
	 	 	 	 	 	 	 	 
	96
	 	 	 	 	 	 	 	 
	97
	 	 	 	 	 	 	 	 
	98
	 	 	 	 	 	 	 	 
	99
	 	 	 	 	 	 	 	 
	100
	 	 	 	 	 	 	 	 
	101
	 	 	 	 	 	 	 	 
	102
	 	 	 	 	 	 	 	 
	103
	 	 	 	 	 	 	 	 
	104
	 	 	 	 	 	 	 	 








 




			
	[***]	 	Represents material which has been redacted and filed
separately with the Commission pursuant to a request for confidential treatment
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.




 









 









Amortization Schedule @ [***]%




	 	 	 	 	 	 	 	 	 
	Month	 	Payment	 	Principal	 	Interest	 	Balance
	 
	105
	 	 	 	 	 	 	 	 
	106
	 	 	 	 	 	 	 	 
	107
	 	 	 	 	 	 	 	 
	108
	 	 	 	 	 	 	 	 
	109
	 	 	 	 	 	 	 	 
	110
	 	 	 	 	 	 	 	 
	111
	 	 	 	 	 	 	 	 
	112
	 	 	 	 	 	 	 	 
	113
	 	 	 	 	 	 	 	 
	114
	 	 	 	 	 	 	 	 
	115
	 	 	 	 	 	 	 	 
	116
	 	 	 	 	 	 	 	 
	117
	 	 	 	 	 	 	 	 
	118
	 	 	 	 	 	 	 	 
	119
	 	 	 	 	 	 	 	 
	120
	 	 	 	 	 	 	 	 
	121
	 	 	 	 	 	 	 	 
	122
	 	 	 	 	 	 	 	 
	123
	 	 	 	 	 	 	 	 
	124
	 	 	 	 	 	 	 	 
	125
	 	 	 	 	 	 	 	 
	126
	 	 	 	 	 	 	 	 
	127
	 	 	 	 	 	 	 	 
	128
	 	 	 	 	 	 	 	 
	129
	 	 	 	 	 	 	 	 
	130
	 	 	 	 	 	 	 	 
	131
	 	 	 	 	 	 	 	 
	132
	 	 	 	 	 	 	 	 
	133
	 	 	 	 	 	 	 	 
	134
	 	 	 	 	 	 	 	 
	135
	 	 	 	 	 	 	 	 
	136
	 	 	 	 	 	 	 	 
	137
	 	 	 	 	 	 	 	 
	138
	 	 	 	 	 	 	 	 
	139
	 	 	 	 	 	 	 	 
	140
	 	 	 	 	 	 	 	 
	141
	 	 	 	 	 	 	 	 
	142
	 	 	 	 	 	 	 	 
	143
	 	 	 	 	 	 	 	 










 











 





 






EXHIBIT T

EXISTING SUPERIOR LEASE




 






Net Lease




Brause Plaza LLC



Owner



and



Metropolitan Life Insurance Company



Tenant



Premises



27-01 Bridge Plaza North

Long Island City, New York



Dated: May 10, 2001



See the attached disk.







 









 





Table of Contents




	 	 	 	 	 
	Article	 	Page
	Article 1: Demise; Term
	 	 	1	 
	Article 2: Rent
	 	 	1	 
	Article 3: Real Estate Taxes
	 	 	2	 
	Article 4: Permitted Uses
	 	 	8	 
	Article 5: Owner’s Work
	 	 	8	 
	Article 6: Tenant’s Work
	 	 	20	 
	Article 7: Assignment and Subletting
	 	 	30	 
	Article 8: Subordination
	 	 	37	 
	Article 9: Repairs and Maintenance
	 	 	39	 
	Article 10: Services and Utilities
	 	 	41	 
	Article 11: Requirements
	 	 	42	 
	Article 12: Insurance
	 	 	44	 
	Article 13: Damage by Fire or other Casualty
	 	 	49	 
	Article 14: Taking
	 	 	51	 
	Article 15: Events of Default and Remedies
	 	 	54	 
	Article 16: Notices
	 	 	58	 
	Article 17: Inspections by Owner
	 	 	58	 
	Article 18: Liability
	 	 	59	 
	Article 19: Indemnification
	 	 	60	 
	Article 20: Environmental Hazards
	 	 	63	 
	Article 21: Right to Cure Defaults; Offsets
	 	 	67	 
	Article 22: Certificates
	 	 	68	 
	Article 23: Consents and Approvals
	 	 	69	 
	Article 24: Surrender at End of Term
	 	 	69	 
	Article 25: Quiet Enjoyment
	 	 	71	 
	Article 26: General Arbitration
	 	 	72	 
	Article 27: Discharge of Liens
	 	 	72	 
	Article 28: Representations and Warranties
	 	 	73	 
	Article 29: Development Rights
	 	 	74	 
	Article 30: Incentives
	 	 	74	 
	Article 31: Parking
	 	 	75	 
	Article 32: Tenant’s Right to Purchase
	 	 	76	 
	Article 33: Tenant’s Right to Expand
	 	 	79	 
	Article 34: Tenant’s Right to Extend the Term
	 	 	83	 
	Article 35: Building Name; Signage
	 	 	85	 
	Article 36: Miscellaneous
	 	 	86	 






-i-









 





Exhibits




	 	 	 

	Exhibit A

	 	Defined Terms
	Exhibit B

	 	Cellar Portion of the Initial Premises
	Exhibit C

	 	The Land; Tax Lot 10; Owner’s
other properties in the Square Block; and the Expansion Land
	Exhibit D

	 	Owner’s Plans (including a
reference to the specifications book, the HVAC specifications and the
elevator performance specifications; and Memorandum dated May 4, 2001)
	Exhibit E

	 	Not used
	Exhibit F

	 	Title Matters
	Exhibit G

	 	Owner’s Work Schedule (with the Cellar Plan)
	Exhibit H

	 	Construction Arbitration Arbitrators
	Exhibit I

	 	Multi-tenant Lease Provisions
	Exhibit J

	 	Tenant’s Initial Work Contractors and Subcontractors
	Exhibit K

	 	Land for Parking
	Exhibit L

	 	Senior Interest Holder Nondisturbance Agreements
	Exhibit M

	 	Sublease Nondisturbance Agreement
	Exhibit N

	 	1987 Recommended Method of Floor Measurement
	Exhibit O

	 	Certain Addition Conditions and Specifications






Open




-ii-









 





Net Lease




          Net Lease dated May 10, 2001, between Brause Plaza LLC, a New York limited liability company
having an office in care of Brause Realty Inc., 52 Vanderbilt Avenue, New York, NY 10017-3888, and
Metropolitan Life Insurance Company, a New York corporation having an office at One Madison Avenue,
New York, New York 10010. The capitalized terms used in this Lease are defined in Exhibit A
to this Lease or in the Sections referred to in Exhibit A.




Article 1:
Demise; Term




     Section 1.1. (a) Owner leases to Tenant, and Tenant leases from Owner, the Premises, for
the Term, upon and subject to the provisions of this Lease, subject only to the Title Matters.



          (b) Except as otherwise expressly provided in this Lease, this Lease shall not terminate, the
obligations of Owner or Tenant under this Lease shall not be affected, and the Rent shall not be
reduced, for any reason.




Article 2: Rent




     Section 2.1. Tenant shall pay to Owner all Base Rent, without notice or demand (except as
otherwise expressly set forth in this Lease), in advance, in equal monthly installments, on the
first day of each calendar month during the Term. All Rent shall be paid (a) by good checks drawn
on a bank that is a member of the New York Clearing House Association L.L.C. (or any successor body
of similar function) and in currency that at the time of payment is legal tender for public and
private debts in the United States of America, to Owner at the address of Owner set forth in this
Lease or to such other address or Person as Owner shall direct by notice to Tenant received not
less than forty-five (45) days prior to its effectiveness, or (b) at the election of Owner, by wire
transfer of immediately available funds to a Person designated by Owner by notice to Tenant
received not less than ninety (90) Business Days prior to its effectiveness. Tenant shall not be
obligated to make any one payment by more than one (1) check or wire transfer. All Additional Rent
shall be payable within twenty (20) Business Days after receipt by Tenant of demand therefor,
unless other payment dates are expressly provided in this Lease. Except as expressly set forth in
this Lease, Base Rent shall be apportioned as of the Base Rent Commencement Date and Expiration of
the Term.



     Section 2.2. Except as expressly set forth in this Lease (a) Base Rent shall be absolutely net
to Owner, without any reduction, and (b) Tenant shall pay all costs, expenses and charges of every
kind relating to the Premises without any reduction; provided, however, Tenant shall not be
required to pay any debt service on any indebtedness of Owner or any Owner Party, or any lien
caused by Owner or any Owner Party, which is not the express obligation of Tenant under this Lease.
In the event of any Event of Default in the payment of Rent, Owner shall have



 









 




all the rights and remedies provided for in this Lease or by law or equity in the case of the
nonpayment of Base Rent.




Article 3: Real Estate Taxes




     Section 3.1. Tenant’s Payments. Except to the extent otherwise set forth in this
Article, Tenant shall pay directly to the applicable Governmental Authority all Real Estate Taxes,
and any installments thereof, attributable to any portion of the Term occurring after the Base Tax
Year before the date any fine, penalty or interest becomes due for the non-payment thereof.
However, if pursuant to any Requirement, at the taxpayer’s option, any Real Estate Tax may be paid
in installments (whether or not interest shall accrue on the unpaid balance of such Real Estate
Tax), Tenant may exércise the option to pay the Real Estate Tax in such installments and shall be
responsible for the payment of any such installments which are payable during the Term, with
interest, if any. All installments payable after the Term shall be prorated between Owner and
Tenant in accordance with this Lease. Tenant shall not be required to pay any municipal, state or
federal income, receipts, franchise or similar tax imposed upon Owner whether based upon the income
or capital of Owner, or any municipal, state or federal inheritance, estate, succession or gift
taxes of Owner (unless otherwise deemed to be a Real Estate Tax pursuant to the express provisions
of this Lease).



     Section 3.2. Proof of Payments. Tenant shall furnish Owner, within forty-five (45)
days after the date when a Real Estate Tax is due and payable under this Lease by Tenant, a copy of
a canceled check or other proof reasonably satisfactory to Owner and the Senior Interest Holders,
evidencing the payment of the Real Estate Tax. Tenant’s failure to do so shall not be a Default,
provided Tenant shall do so within twenty (20) Business Days following the request of Owner (which
request shall not be made prior to the date Tenant is required by this Lease to pay the Real Estate
Tax in question).



     Section 3.3. Owner’s Payments. (a) Owner shall pay directly to the applicable
Governmental Authority all Real Estate Taxes, and any installments thereof, applicable to the
Premises attributable to the Base Tax Year and any portion of the Term occurring prior to the Base
Tax Year, and all Real Estate Taxes, and any installments thereof, applicable to any land or
buildings which are part of the same tax lot as the Premises and not
then included in the Premises,
before the date any fine, penalty or interest becomes due for the non-payment thereof. However, if
pursuant to any Requirement, at the taxpayer’s option, any such Real Estate Tax may be paid in
installments (whether or not interest shall accrue on the unpaid balance of such Real Estate Tax),
Owner may exercise the option to pay such Real Estate Tax in such installments (other than Base
Taxes, unless Tenant is then paying the Real Estate Taxes for which it is responsible in such
installments) and shall be responsible for the payment of any such installments which are payable
during the Term, with interest, if any. Owner shall furnish Tenant a copy of a canceled check or
other proof reasonably satisfactory to Tenant, evidencing the payment of such Real Estate Taxes.
Owner’s failure to do so shall not be an Owner Default, provided Owner shall do so within twenty
(20) Business Days following the request of Tenant



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(which request shall not be made prior to the date Owner is required by this Lease to pay
the Real Estate Tax in question).




          (b) On or before the 10th Business Day prior to the date Tenant is required to pay a Real
Estate Tax pursuant to this Article, Owner shall pay to Tenant an amount equal to the Base Taxes
and any Real Estate Taxes attributable to any portion of the tax lot of which the Premises are a
part which is not then included in the Premises (or the applicable installment thereof). In lieu of
those payments, Owner may give notice to Tenant not less than twenty (20) Business Days before any
Real Estate Taxes are due and payable by Tenant pursuant to this Lease to pay the Real Estate Taxes
otherwise payable by Owner, in which event Tenant shall pay those Real Estate Taxes and offset the
amount thereof against the next Base Rent, with interest at the Late Charge Rate from the date paid
to the date offset.




     Section 3.4. Allocation; Proration. (a) The Premises are presently part of a tax lot
which includes other land and buildings owned or controlled by Owner, as shown on Exhibit C
to this Lease. Owner shall use commercially reasonable efforts, at Owner’s expense, to cause
the Premises to be designated and taxed as a separate tax lot. Tenant shall, at Owner’s expense,
reasonably cooperate with Owner with respect thereto. If Owner is for any reason unable to obtain
such designation, it shall not be an Owner Default, Owner shall have no liability as a result
thereof, there shall be no reduction of the Rent and this Lease shall remain in full force and
effect according to its terms. Until the date, if any, the Premises are designated and taxed as a
separate tax lot, the Real Estate Taxes attributable to the Premises shall be determined as
follows: (i) the total assessed value of all of the buildings within the tax lot shall be
multiplied by the applicable tax rate and that amount shall be multiplied by a fraction, the
numerator of which is the total square footage of the Building (which Owner and Tenant agree is, on
the date of  this Lease [*****] square feet) and the denominator of which is the total square footage of all of the
buildings within the tax lot (which Owner and Tenant agree is, on the date of this Lease [*****] square
feet; and, therefore, on the date of this Lease, the applicable percentage [*****]; (ii) the total assessed
value of all of the land within the tax lot shall be multiplied by the applicable tax rate, and
that amount shall be multiplied by a fraction, the numerator of which is the total square
footage of the Land (which Owner and Tenant agree is, on the date of this Lease, [*****] square feet) and
the denominator of which is the total square footage of all of the land within the tax lot (which
Owner and Tenant agree is, on the date of this Lease  [*****] square  feet; and, therefore, on the date of this
Lease, the applicable percentage [*****]; and (iii) the result of (i) and (ii) shall be aggregated and that aggregated
amount shall be the Real Estate Taxes attributable to the Premises. Any dispute under this
paragraph shall be resolved by General Arbitration.



          (b) If the Base Tax Year shall end on a date other than the last day of a fiscal tax year or
if a fiscal tax year shall end after the Expiration of the Term, the Real Estate Taxes for that
fiscal tax year shall be apportioned between Owner and Tenant so that Tenant shall pay only that
portion of such Real Estate Tax after the Base Tax Year or which relates to the period within the
Term (and is in excess of the Base Taxes).




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     Section 3.5. Refunds. If there shall be any refunds or rebates on account of any
Real Estate Taxes paid by Owner or Tenant, such refund or rebate, net of any costs incurred to
obtain same, shall belong to the party responsible for the Real Estate Tax or, for any fiscal tax
year in which both Owner and Tenant are responsible for portions of the Real Estate Tax, shall be
apportioned between Owner and Tenant according to the respective responsibilities of Owner and
Tenant for Real Estate Taxes for the applicable period. Subject to the provisions of this Article,
any such refunds or rebates belonging to Owner or Tenant which shall be received by the other shall
be held in trust for the benefit of, and paid to Owner or Tenant, as the case may be, within ten
(10) Business Days following receipt.



     Section 3.6. Reductions. (a) Owner, at Owner’s expense, shall have the right to
contest the validity, in whole or in part, of any Real Estate Taxes relating to all or any part of
the Base Tax Year or any tax fiscal tax year prior thereto by appropriate proceedings diligently
conducted in good faith, in accordance with the applicable Requirements (which proceeding must
include all Real Estate Taxes for the entire tax lot of which the Premises are a part), but only
after payment of such Real Estate Taxes unless such payment would operate as a bar to such contest
or interfere materially with the prosecution thereof, in which event Owner may defer payment of
such Real Estate Taxes during the pendency of such proceedings if neither the Premises, nor any
part thereof, would by reason of such postponement or deferment be in danger of being forfeited.
Owner shall not, in connection with any such proceeding, artificially reduce the Base Taxes by
increasing Real Estate Taxes attributable to other property owned or controlled by Owner.



          (b) Tenant, at Tenants’ expense, shall have the right to contest the validity, in whole or in
part, of any Real Estate Taxes relating to any fiscal tax year during the Term commencing after the
Base Tax Year by appropriate proceedings diligently conducted in good faith, in accordance with the
applicable Requirements (which proceeding must include all Real Estate Taxes for the entire tax lot
of which the Premises are a part), but only after payment of such Real Estate Taxes unless such
payment would operate as a bar to such contest or interfere materially with the prosecution
thereof, in which event Tenant may defer payment of such Real Estate Taxes during the pendency of
such proceedings if neither the Premises, nor any part thereof, would by reason of such
postponement or deferment be in danger of being forfeited. Any attorney or consultant representing
Tenant in connection with any such proceeding shall be reasonably satisfactory to Owner. If Tenant
elects to exercise such right, Owner shall reasonably cooperate with Tenant in connection
therewith, at no expense or liability to Owner. Owner shall not be required to join in any such
proceedings unless any Requirement shall require that such proceedings be brought by or in the name
of Owner, in which event Owner shall join in such proceedings or permit the same to be brought in
its name, provided such joinder shall not subject Owner to any cost, expense or liability (unless
Tenant agrees in writing to pay such cost, expense or liability). Tenant shall indemnify, defend
and hold harmless Owner and all Owner Parties from and against any such cost, expense or liability,
and any obligations and liabilities, arising from any such proceeding. Upon the request of Owner or
Owner’s designee (which shall not be made before Owner or Tenant receives notice of the assessed
valuation of the Premises for the





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fiscal tax year in question and which shall include a statement in all capital letters stating in
substance that Tenant’s failure to respond within fifteen (15) Business Days shall permit Owner to
commence a proceeding), Tenant shall, within fifteen (15) Business Days after receipt of any such
request, inform Owner if Tenant has or intends to commence a Real Estate Tax proceeding for the
fiscal tax year in question. If Tenant declines to commence a proceeding or fails to respond within
that fifteen (15) Business Day period, Owner shall have the right, at Owner’s expense, to commence
such proceeding for the fiscal tax year in question, subject to and in accordance with paragraph
(a) of this Section. Owner shall have the right, at Owner’s election and expense, to participate in
any proceeding brought by Tenant pursuant to this Section during the last three (3) fiscal tax
years of the Term.




     Section 3.7. ICIP Program; Real Estate Tax Credits. (a) Owner represents to Tenant
that Owner has filed a preliminary application for exemption from Real Estate Tax payments for the
Premises in connection with Owner’s Work with the New York City Department of Finance pursuant to
the ICIP Program and that Owner has delivered to Tenant a copy of that preliminary application.
Tenant, at Tenant’s expense, shall (i) include Tenant’s Initial Work in the final application under
the ICIP Program (and, to the extent necessary, all future filings and submissions with respect to
the ICIP Program shall cover both Owner’s Work and Tenant’s Initial Work) and (ii) otherwise timely
comply with the provisions of the ICIP Law. Owner and Tenant shall reasonably cooperate with each
other (including, without limitation Tenant’s use of Owner’s consultants and Owner’s execution and
delivery to Tenant of any required filings prepared by Tenant), at Tenant’s expense, in compliance
with the ICIP Program, to obtain and maintain the benefits of the ICIP Program. Tenant acknowledges
that its obligations under this Article may be greater if Owner and Tenant fail to obtain or loses
the benefits of the ICIP Program, and agrees that if Owner and Tenant fail to obtain or loses such
benefits (A) Owner shall have no liability to Tenant, and Tenant shall have no liability to Owner,
in that connection, (B) this Lease shall remain in full force and effect and (C) Tenant shall not
be entitled to any abatement or diminution of Rent.



          (b) Tenant shall have the right, at Tenant’s expense, as Owner’s designated representative, to
apply for additional benefits under the ICIP Law, additional abatements of Real Estate Taxes and
Incentives. Owner shall reasonably cooperate with Tenant in connection therewith provided Owner
shall not be required to incur any expense, obligation or liability. If Tenant shall fail to obtain
or shall lose any such benefits, abatements or Incentives, Tenant shall not be entitled to any
abatement or diminution of Rent, this Lease shall remain in full force and effect according to its
terms and Owner (except to the extent caused by an Owner Default) shall have no liability as a
result thereof. If Tenant shall apply for and receive any abatement (real estate tax or otherwise)
or Incentives for the Premises (including, without limitation, benefits derived from Title 4-A, as
defined below, or energy benefits under the Energy Cost Savings Program or through Con Edison’s
Business Incentive Rate), subject to Article 30, Tenant shall be entitled to 100% of the benefits
resulting from such application (but nothing contained herein shall be deemed to give to Tenant,
and Owner shall retain the benefit of, any other benefits obtained by Owner at Owner’s expense for
capital expenditures). If such benefits, abatements or




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Incentives to which Tenant is entitled are in the form of a refund payable to Owner, Owner shall
endorse over, or otherwise pay, to Tenant such refund, upon Owner’s receipt of such refund. In
connection with Tenant’s right under this paragraph, Owner and Tenant agree as follows:




               (i) on the date of this Lease, Tenant’s percentage occupancy of the Premises is 100%;



               (ii) an application for abatement of Real Estate Taxes pursuant to Real Property Tax Law
Chapter 50-a, Article 4, Title 4-A (“Title 4-A”) may be made for the Premises by Tenant at Tenant’s
expense;



               (iii) the Rent payable by Tenant attributable to Real Estate Taxes shall reflect any
abatement of Real Estate Taxes payable by Tenant under this Lease granted pursuant to Title 4-A
for the Premises;



               (iv) since the Term exceeds ten (10) years, at least twenty-five dollars ($25.00) per square
foot must be spent on the improvements to the Premises;



               (v) all abatements granted with respect to the Premises pursuant to Title 4-A shall be revoked
if during the benefit period Real Estate Taxes or water or sewer charges or other lienable charges
are unpaid for more than one year, unless such delinquent amounts are paid as provided in
subdivision four hundred ninety-nine-ff of Title 4-A;



               (vi) Tenant shall report to the Department of Finance the number of workers permanently
engaged in employment in the Premises, the nature of each worker’s employment and the New York City
residency of each worker; and



               (vii) Tenant shall provide access to the Premises by employees and agents of the Department of
Finance at all reasonable times at the request of that Department.



          (c) In addition, to the extent Owner receives any other credit against Real Estate Taxes
payable by Tenant pursuant to this Lease, all (or, if applicable, a proportionate share) of such
credits shall inure to the benefit of Tenant. Owner and Tenant shall reasonably cooperate with each
other to obtain any such credits. The reasonable third party expense of obtaining any such credits
(to the extent of the credits made available to Tenant) shall be reimbursed by Tenant to Owner
within twenty (20) Business Days following Tenant’s receipt of Owner’s invoice.




     Section 3.8. Real Estate Tax and Insurance Deposits. (a) Upon not less than ten (10)
Business Days prior notice received from any Senior Interest Holder or, if Tenant has not
previously received a notice from a Senior Interest Holder, after the occurrence of a Material
Event of Default (provided Owner gives Tenant notice of Owner’s election to collect deposits under
this Section within 180 days following the Material Event of Default in question), Tenant



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shall, on account of each installment of Real Estate Taxes payable by Tenant under this Lease,
deposit with Owner or a Senior Interest Holder on the first day of each calendar month during the
remainder of the Term, subject to the termination of the requirement to make such deposits as
provided in this Section, an amount equal to one-twelfth (1/12) of the amount by which the Real
Estate Taxes payable by Tenant under this Lease for the then applicable fiscal tax year exceed the
Base Taxes so as to enable Owner or a Senior Interest Holder to accumulate funds for the payment of
each installment thereof by the date Tenant would otherwise be required to pay same pursuant to
this Lease. If and to the extent necessary, Tenant shall, upon request of Owner or a Senior
Interest Holder, make an advance deposit (together with the first monthly deposit) in order to
accumulate the funds necessary to satisfy such obligations as they become due.




          (b) All moneys deposited for Real Estate Taxes pursuant to the provisions of this Section
shall be placed in a noninterest bearing account if held by a Senior Interest Holder or an interest
bearing account if held by Owner (in which event Owner shall be entitled to retain interest equal
to 1% per annum (or greater if permitted by law) as an administrative fee) in an Institutional
Lender (which may be a Senior Interest Holder), to be used by Owner or a Senior Interest Holder to
pay the Real Estate Taxes for which such amounts were deposited. Tenant shall, within ten (10)
Business Days after receipt of request from Owner or a Senior Interest Holder, deliver to Owner or
a Senior Interest Holder copies of all applicable bills and invoices with respect to such Real
Estate Taxes. Owner or a Senior Interest Holder shall apply the amounts deposited to any such Real
Estate Taxes, not later than the last day on which any such Real Estate Taxes may be paid without
any fine, penalty or interest. Except as set forth in this paragraph, any interest earned on any
deposit shall be retained as part of the deposit. Any excess amounts held by Owner or a Senior
Interest Holder shall be applied to the next due deposits under this Section.




          (c) If, after the date on which Tenant commences making the deposits on account of Real Estate
Taxes pursuant to this Section, the actual amount of Real Estate Taxes on account of which Tenant
is making such deposits is increased, Tenant shall, within ten (10) Business Days of receipt of
notice of such increase, increase the amount of such monthly deposits so that the amount of such
deposits, when added to the amount of Base Taxes to be paid by Owner, shall be sufficient to pay
Real Estate Taxes, before the last day that such Real Estate Taxes shall be due and payable in
accordance with this Article.




          (d) If Owner transfers all or substantially all of the Premises, Owner or a Senior Interest
Holder shall pay to the transferee the sums held by Owner or (if the interest of the Senior
Interest Holder is then terminated) a Senior Interest Holder under this Section, and the transferee
shall assume the obligations of Owner under this Section. Upon such transfer and notice thereof to
Tenant, Tenant shall look solely to the transferee with respect thereto. The provisions of this
Section shall apply to each transfer of such deposits.




          (e) Subject to the provisions of this Lease, if this Lease shall expire or earlier terminate
(other than as a result of an Event of Default), all amounts then held by Owner or a




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Senior Interest Holder shall be applied by Owner or a Senior Interest Holder on account of any and
all unpaid Rent then due by Tenant under this Lease and the balance, if any, remaining thereafter
shall be returned to Tenant, within twenty (20) Business Days thereafter.




          (f) If, after becoming obligated to make the deposits required under this Section as a result
of a Material Event of Default, the Default underlying the Material Event of Default shall have
been cured and no Material Event of Default shall have occurred for twelve (12) consecutive
calendar months after such cure, then, subject to all of the provisions of this Section (including
the reinstatement of Tenant’s obligation to make such deposits if a Material Event of Default
occurs thereafter), Tenant shall no longer be obligated to make such deposits.




Article 4: Permitted Uses




     Section 4.1. Tenant shall use the Premises for the Permitted Uses, and for no other
purpose. Upon the request of Tenant, Owner, at no expense to Owner, shall reasonably cooperate with
Tenant in connection with amendments to the certificate of occupancy for the Premises which are
consistent with the provisions of this Lease.



     Section 4.2. Tenant shall not use or occupy the Premises, and neither permit nor suffer the
Premises or any part thereof to be used or occupied in violation of any provision of this Lease or
any Requirement, or in such manner (other than general office use) as may make void or voidable any
insurance then in force with respect to the Premises. Tenant shall, at Tenant’s expense, obtain and
keep in full force and effect all permits, licenses, or other authorizations required in connection
with the Premises, any activity relating to the Premises, or any part of the Premises (except for
any certificates required to be obtained by Owner as expressly set forth in Article 5). Tenant
shall indemnify, defend and hold harmless Owner and all Owner Parties from and against all claims,
liabilities, damages, losses, costs and expenses (including, without limitation, reasonable counsel
fees) in connection therewith.



Article 5: Owner’s Work




     Section 5.1.
Performance; Delays; Liquidated Damages. (a) Owner shall, at Owner’s
expense, perform Owner’s Work, in a good and workerlike manner substantially in accordance with
Owner’s Plans and Owner’s Work Schedule, all applicable Requirements and the provisions of this
Lease. Owner may change Owner’s Plans and the details of Owner’s Work Schedule (but not the dates
set forth therein), without Tenant’s consent, if such changes do not (i) change the scope of
Owner’s Work, the facade of the Building, any finishes or the lead paint procedures set forth in
paragraph 4 of Owner’s Work Schedule or (ii) otherwise adversely affect Tenant. Owner shall give
Tenant prompt notice (in advance, if reasonably practicable) of any such change which may be made
by Owner without Tenant’s consent. Tenant’s consent to any changes of the finishes shall not be
unreasonably withheld. After the Substantial Completion of Owner’s Work, Owner shall have no
further obligation to alter, improve, decorate or otherwise



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prepare the Premises for Tenant’s occupancy or to incur any expense in connection therewith,
except as otherwise expressly set forth in this Lease.




          (b) If and to the extent Tenant is delayed in occupying the Initial Premises for the conduct
of Tenant’s normal business operations beyond [*****], as the result of Owner failing to (i) substantially
complete the portions of Owner’s Work with respect to the Initial Premises set forth on Owner’s
Work Schedule on or before the dates set forth on Owner’s Work Schedule, (ii) accomplish the
Substantial Completion of Owner’s Initial Premises Work on or before the Anticipated Initial
Premises Substantial Completion Date, or (iii) file any required forms or applications with, or to
have any required inspections of the Building by, any Governmental Authority, and such delay has
caused Tenant’s failure to give to Credit Suisse First Boston (USA), Inc. (“CSFB”) possession of
certain space at One Madison Avenue, New York, New York by November 1, 2001 as required pursuant to
the CSFB Lease, Owner shall pay to Tenant (or, at Owner’s option, allow Tenant an offset against
the next Base Rent, with interest at the Late Charge Rate from November 1, 2001 until the date of
the offset) within twenty (20) Business Days following Tenant’s notice to Owner that pursuant to
the CSFB Lease CSFB is entitled to a deferral of the rent payable by CSFB under the CSFB Lease as
the result of Owner’s failure causing Tenant’s failure to give to CSFB possession of that space as
required by the CSFB Lease, for each day of delay in Tenant’s occupancy caused by Owner’s failure,
an amount equal [*****] day which number shall be prorated if possession of portions of the CSFB space
required to be given to CSFB by November 1, 2001 are given to CSFB by November 1, 2001. For the
purposes of determining the number of days of such delay (1) any delay in Tenant’s occupancy caused
by Owner’s failure referred to in clauses (i), (ii) or (iii) shall be limited to the lesser of the
number of days of delay caused by that failure or the number of days by which Owner failed to meet
the required dates or failed to make such filings or arrange for such inspections and (2) the
number of days of delay in Tenant’s occupancy caused by Owner’s failure shall be reduced by the
number of days the delay is caused by (A) Tenant Delays, or (B) Unavoidable Delays (except that the
first fifteen (15) days of Unavoidable Delays shall not be deemed Unavoidable Delays for the
purpose of this calculation), or (C) any Construction Arbitration relating to Owner’s Work or
Tenant’s Initial Work or any matter affecting Owner’s Work or Tenant’s Initial Work, with respect
to which Owner shall be the Prevailing Party. The payments, if any, provided for in this Section
are in lieu of any other damages in connection with any delay in Tenant’s occupying the Initial
Premises or Owner failing to substantially complete all or any portion of Owner’s Work with respect
to the Initial Premises by any date set forth in this Lease or to make such filings or arrange for
such inspection, or otherwise, or any other rights or remedies of Tenant in connection therewith,
except as otherwise expressly provided in this Lease. Owner shall have the right, at Owner’s
expense, to cause Tenant to use overtime labor in connection with Tenant’s Initial Work in order to
mitigate any delays.




          (c) In addition to the foregoing, if and to the extent Tenant is delayed in occupying the
Balance Space for the conduct of Tenant’s normal business operations beyond August 1, 2002 as
the result of Owner failing to (i) substantially complete the portions of




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Owner’s Work with respect to the Balance Space set forth on Owner’s Work Schedule, (ii) accomplish
the Substantial Completion of Owner’s Work on or before October 1, 2001, or (iii) file any required
forms or applications with, or to have any required inspections of the Building by, any
Governmental Authority, and such delay has caused Tenant’s failure to give to CSFB possession of
certain space at One Madison Avenue, New York, New York, by August 1, 2002 as required pursuant to
the CSFB Lease, Owner shall pay to Tenant (or, at Owner’s option, allow Tenant an offset against
the next Base Rent, with interest at the Late Charge Rate from August 1, 2002 until the date of the
offset) within twenty (20) Business Days following Tenant’s notice to Owner that pursuant to the
CSFB Lease CSFB is entitled to a deferral of the rent payable by CSFB under the CSFB Lease as the
result of Owner’s failure causing Tenant’s failure to give to CSFB possession of that space as
required by the CSFB Lease, for each day of delay in Tenant’s occupancy of the Balance Space caused
by Owner’s failure, an amount equal to [*****] day which number shall be prorated if possession of portions
of the CSFB space required to be given to CSFB by July 1, 2002 are given to CSFB by August 1, 2002.
For the purposes of determining the number of days of such delay, (1) any delay in Tenant’s
occupancy caused by Owner’s failure referred to in clause (i), (ii), (iii) shall be limited to the
lesser of the number of days of delay caused by that failure or the number of days by which Owner
failed to meet the required dates or failed to make such filings or arrange for such inspections
and (2) the number of days of such delay in Tenant’s occupancy caused by Owner’s failure shall be
reduced by the number of days the delay is caused by (A) Tenant Delays, or (B) Unavoidable Delays
(except that the aggregate of the first fifteen (15) days of Unavoidable Delays under paragraph (b)
of this Section and this paragraph shall not be deemed Unavoidable Delays for the purpose of this
calculation), or (C) any Construction Arbitration relating to Owner’s Work or Tenant’s Initial Work
or any matter affecting Owner’s Work or Tenant’s Initial Work, with respect to which Owner shall be
the Prevailing Party. The payments, if any, provided for in this Section are in lieu of any other
damages in connection with any delay in Tenant’s occupying the balance of the Premises or Owner
failing to substantially complete all or any portion of Owner’s Work with respect to the balance of
the Premises by any date set forth in this Lease or to make such filings or arrange for such
inspection, or otherwise, or any other rights or remedies of Tenant in connection therewith, except
as otherwise expressly provided in this Lease. Owner shall have the right, at Owner’s sole cost and
expense, to cause Tenant to use overtime labor in connection with Tenant’s Initial Work in order to
mitigate delays.




          (d) Tenant shall use commercially reasonable efforts to minimize the amounts payable by Owner
pursuant to this Section, to the extent commercially reasonable, by giving possession of space at
One Madison Avenue, New York, New York, to CSFB in stages to the extent permitted by the CSFB
Lease.




     Section 5.2. Progress Reports. (a) During Owner’s Work, Owner or Owner’s construction
manager shall (notwithstanding Article 16) submit to Robert Israel of Advocate Consulting Group,
158 West 29th Street, 6th Floor, New York, New York 10001 and Michael Viggiano of Tenant (at
Tenant’s address set forth above) copies of monthly written progress reports from Owner’s
construction manager. Owner shall use commercially reasonable efforts to



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require Owner’s construction manager to provide such progress reports; provided, however, any
time schedule and progress reports shall be provided to Tenant for informational purposes only and
shall not constitute a representation or covenant by Owner with respect to the commencement, the
progress or completion of Owner’s Work and Owner shall not be liable for any failure of Owner’s
construction manager to timely provide any such progress reports.




          (b) Provided that all those Persons inspecting the Premises or any portions thereof are
accompanied by a representative of Owner and shall abide by Owner’s reasonable rules and
regulations with respect to access to the Premises, Owner shall permit a reasonable inspection of
the Premises by Tenant or by Tenant’s Architect or consultants during Business Hours on Business
Days, upon reasonable prior notice from Tenant to Owner which may be oral. Such access by Tenant
shall be at the sole risk of Tenant and notwithstanding the foregoing, under no circumstances
whatsoever shall Tenant’s right of inspection delay the performance of Owner’s Work (and any such
delay shall be a Tenant Delay).




          (c) Tenant shall have the right, at its expense, to maintain its field personnel or
consultants at the Premises to observe Owner’s construction methods and techniques and Tenant shall
be entitled to have its field personnel or other designees attend Owner’s weekly job or safety
meetings, at which Owner or Owner’s construction manager shall advise Tenant as to the progress of
Owner’s Work. No such observation or attendance by Tenant’s personnel or designees shall impose
upon Tenant responsibility for any failure by Owner to observe any Requirement or safety practices
in connection with such construction, or constitute an acceptance of any work which does not comply
in all respects with the provisions of this Lease. Tenant’s personnel shall not delay the
performance of Owner’s Work (and any such delay shall be a Tenant Delay).




     Section 5.3. Temporary Certificate of Occupancy; Owner’s Work following Substantial
Completion of Owner’s Initial Premises Work. (a) Owner and Tenant shall cooperate with each
other in good faith in order that Owner’s Work shall be coordinated with Tenant’s Work in
accordance with good construction practice (but without causing any delay in the performance of
Owner’s Work, subject, however, to the notice requirements set forth in Section 5.6), and shall
pursue a “parallel track” filing in order to expedite obtaining the temporary certificates of
occupancy for the Building core and shell and for the Premises. Owner shall give Tenant three (3)
Business Days’ notice of the date Owner anticipates Owner shall be prepared to file for a temporary
certificate of occupancy for the Building core and shell. If Tenant shall not be prepared to file
for a temporary certificate of occupancy for the Premises or an amendment to the temporary
certificate of occupancy for the Building core and shell at the time Owner is prepared to make
Owner’s filing, Owner shall have the right to proceed with Owner’s filing unless within that three
(3) Business Day period Tenant notifies Owner that Owner should not make that filing until Tenant
is prepared to make Tenant’s filing, in which event to the extent any delay is caused by Owner not
making Owner’s filing on the date Owner was prepared to do so shall be a Tenant Delay. Owner and
Tenant shall contract separately for, but utilize the services of, the same code and Fire
Department expeditors for all such work



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(which code expeditor shall be C. Rizzo and Associate and which Fire Department expeditor shall be
John Mitchell). The expeditors shall coordinate the interface between Owner and Owner’s consultants
and Tenant and Tenant’s consultants in connection with the submission, processing and obtaining of
the temporary certificates of occupancy. Owner and Tenant will each be individually responsible to
promptly perform all necessary remedial work for any of their respective work after inspection in
order to obtain its temporary certificate of occupancy (or amendment, as the case may be).




          (b) After the Initial Premises Substantial Completion Date, Owner shall have the right to
perform and complete Owner’s Work in the Premises subject to and in accordance with the applicable
provisions of this Lease and the performance of Owner’s Work shall not affect the occurrence of the
Substantial Completion of Owner’s Initial Premises Work. In connection with Owner’s Work, Owner
shall exercise reasonable diligence so as to minimize the interference with the performance of
Tenant’s Initial Work and with the normal conduct of business therein, and in connection with
Tenant’s Initial Work, Tenant shall exercise reasonable diligence so as to minimize the
interference with the performance of Owner’s Work, but in no event shall same delay the performance
of Owner’s Work (subject, however, to the notice requirements set forth in Section 5.6). Owner
shall not, at any time, directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer in the Premises, whether in connection with any Owner’s Work or otherwise, if
such employment would cause any conflict with other contractors, mechanics or laborers engaged in
the construction, maintenance or operation of the Building by Owner, Tenant or others. In the event
of any such conflict, Owner, promptly after demand of Tenant, shall cause all contractors,
mechanics or laborers causing such interference or conflict to cease working until such
interference or conflict is resolved. Notwithstanding anything to the contrary contained in this
Lease, to the extent that the performance of Owner’s Work requires Tenant to employ at the Premises
and in connection with Tenant’s Initial Work union personnel, including, without limitation, one or
more teamsters and master mechanics that Tenant would not have otherwise employed at the Premises,
and as a direct result thereof, causes Tenant to incur costs which Tenant would otherwise not have
incurred, then, Owner shall pay such costs to Tenant, within twenty (20) Business Days after
receipt of an invoice in reasonable detail. If a Master Mechanic is required to be employed in
connection with Owner’s Work or Tenant’s Initial Work, the cost of the Master Mechanic shall be
paid by Owner and Tenant in proportion to the number of operating engineers employed by each of
Owner and Tenant.




     Section 5.4. Notice of Substantial Completion. Owner shall deliver notice to Tenant of
Owner’s determination of the substantial completion of each portion of Owner’s Work shown on
Owner’s Work Schedule (but Owner shall not send that notice with respect to any two portions less
than five (5) Business Days apart unless the dates scheduled for substantial completion of those
portions as set forth in Owner’s Work Schedule are within five (5) Business Days of each other),
the Substantial Completion of Owner’s Initial Premises Work, (at or after the Substantial
Completion of Owner’s Initial Premises Work) the substantial completion in its entirety of each of
the three portions of the Balance Space, and the Substantial Completion of



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Owner’s Work. TENANT SHALL HAVE THE RIGHT TO INSPECT OWNER’S WORK AND TO DISPUTE ANY SUCH
DETERMINATION OF OWNER BY NOTICE GIVEN WITHIN FIVE (5) BUSINESS DAYS AFTER THE RECEIPT OF OWNER’S
NOTICE, WHICH NOTICE SHALL SET FORTH (IN REASONABLE DETAIL) THE ITEMS OF OWNER’S WORK WHICH  TENANT
 DISPUTES HAVE BEEN SUBSTANTIALLY COMPLETED. If Owner’s determination is disputed by Tenant, and it
is finally determined by agreement or Construction Arbitration that Owner’s determination was
incorrect, then the number of Business Days between two (2) Business Days after Tenant’s receipt of
Owner’s notice of determination and the Business Day on which Owner received Tenant’s notice of
dispute (including that Business Day) shall be deemed days of Tenant Delay (but this sentence shall
only apply to the first notice of Owner’s determination with respect to any particular portion of
Owner’s Work). For example, assuming all of the days in this example are Business Days, if Owner’s
notice of the Substantial Completion of Owner’s Initial Premises Work is received by Tenant on
September 1, Owner receives Tenant’s notice of dispute on September 5 and Construction Arbitration
determines that Owner’s Initial Premises Work was not substantially complete on the date set forth
in Owner’s notice, then September 4 and September 5 are deemed days of Tenant Delay (and the
immediately preceding sentence shall not apply to any subsequent notice from Owner to Tenant of the
Substantial Completion of Owner’s Initial Premises Work). If Owner and Tenant cannot resolve the
dispute within two (2) Business Days following Owner’s receipt of Tenant’s notice, the dispute
shall be settled by Construction Arbitration. Pending the outcome of any Construction Arbitration,
Owner’s determination shall control, without prejudice to Tenant’s position, and Tenant shall pay
Base Rent and Additional Rent as provided in this Lease based upon such Owner’s determination. If,
as a result of the determination of the Construction Arbitration, it is determined that Owner’s
determination was incorrect, Owner shall, within twenty (20) Business Days after the Construction
Arbitration, pay to Tenant the amount of Tenant’s overpayment of Base Rent and Additional Rent, if
any with interest at the Late Charge Rate, and to the extent then determined, any payments under
Section 5.1. Tenant shall use reasonable efforts to promptly notify Owner if Tenant becomes aware
of any failure by Owner to file any required forms or applications with, or to have any required
inspection of the Building by, any Governmental Authority, but Tenant’s failure to do so shall not
be a Default, give rise to any liability on Tenant’s part, or relieve Owner from the consequences
of any such failure as expressly set forth in this Lease.




     Section 5.5. Punch List Work. (a) On or before the 10th Business Day following the
final determination of the substantial completion of each portion of Owner’s Work shown on Owner’s
Work Schedule, the Initial Premises Substantial Completion Date, the substantial completion in its
entirety of each of the three portions of the Balance Space or the Substantial Completion Date,
Owner shall give Tenant a notice for Tenant’s approval containing a punch list of the minor and
insubstantial details of construction or mechanical adjustments which remain to be performed with
respect to Owner’s Work in question, the noncompliance of which shall not interfere (other than to
a de minimis extent) with the performance of Tenant’s Initial Work in and to the space in
question using good construction and scheduling practices (time being of the essence). Tenant shall
not unreasonably withhold its approval of any punch list. Tenant shall



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notify Owner of any approval or disapproval (which disapproval shall set forth such objections in
reasonable detail) within ten (10) Business Days after a punch list is given to Tenant. If Tenant
fails to notify Owner of any such objections (setting forth the reasons therefor in reasonable
detail) within such ten (10) Business Day period, the same shall be deemed approved.




          (b) Notwithstanding anything to the contrary set forth in this Lease, in no event shall Owner
be obligated to repair any damage to Owner’s Work to the extent caused by Tenant or any Tenant
Party.




          (c) Upon the approval or the deemed approval of a punch list, final
 completion of the applicable Owner’s Work in accordance with Owner’s Plans shall be deemed
effected, except for the punch list work, latent defects (i.e., defects which cannot readily be
discovered despite inspection) and Owner’s Work which cannot be tested due to seasonal factors
(i.e., air-conditioning in the winter time). The foregoing shall not relieve Owner of the
obligation to repair any damage to Owner’s Work caused by Owner or any Owner Party in connection
with the performance of the punch list work.




          (d) Owner shall, at Owner’s expense (i) cause its contractors to commence and complete the
punch list work, as soon as reasonably practicable but in any event within 90 days after the
determination of the final punch list (subject to Tenant Delays and Unavoidable Delays), (ii)
obtain a permanent certificate of occupancy for the Building as soon as reasonably practicable and
(iii) extend the temporary certificate of occupancy for the Premises until such time as Owner
obtains a permanent certificate of occupancy for the Premises. If Owner is unable to obtain a
permanent certificate of occupancy for the Building or extend the temporary certificate of
occupancy for the Premises and such inability is due to Tenant’s failure to perform any Tenant’s
Work in accordance with applicable Requirements, Tenant’s Plans or this Lease, and Owner notifies
Tenant thereof (which notice shall describe in reasonable detail Tenant’s Work to be done and
reasonably substantiate the reasons for same), Tenant, at Tenant’s expense, shall perform that
Tenant’s Work. Tenant shall cause Tenant’s contractor to commence that work as soon as commercially
practicable under the circumstances and promptly and diligently to complete the work that is set
forth in the notice within thirty (30) days following delivery of Owner’s notice to Tenant, subject
to Owner Delays and Unavoidable Delays or, if work cannot with due diligence be completed or
remedied within a period of thirty (30) days, cause Tenant’s contractor to promptly commence within
such thirty (30) day period, and thereafter diligently prosecute to completion, steps necessary to
substantially complete or remedy such work. Nothing contained in this subparagraph is intended to
modify any other obligation of Tenant, or any other right or remedy of Owner, expressly set forth
in this Lease. Notwithstanding anything to the contrary contained in this paragraph, Tenant shall
not be obligated to remedy or cause to be remedied any noncomplying Tenant’s Work to the extent
necessitated by or resulting from an act or omission of Owner or any Owner Party. Owner shall have
no obligation or liability if the temporary certificate of occupancy for the Premises cannot be
extended until any work required to be performed by Tenant is performed or as the result of
Unavoidable Delays (and this Lease shall remain in full force and effect in accordance with its
terms). Owner’s contractors shall have




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the right to enter the Premises for purposes of performing the punch list work, and Owner shall
have no liability to Tenant, nor shall Tenant’s covenants and obligations under this Lease be
reduced or abated by reason of any inconvenience, annoyance, interruption or injury to business or
the performance of Tenant’s Initial Work arising from the performing of such work, provided that,
except in emergencies and except if same shall delay Owner’s Work (subject, however, to the notice
requirements of Section 5.6), Owner shall cause its contractors to take all reasonable steps
(without overtime or premium labor, unless paid by Tenant) to minimize interference with the
performance of Tenant’s Initial Work and with the normal conduct of Tenant’s business in the
Premises. Owner shall have no liability to Tenant and Tenant shall not be entitled to any abatement
of Rent as the result of any delay in obtaining a permanent certificate of occupancy for the
Building provided Owner is diligently pursing the obtaining of a permanent certificate of occupancy
for the Building (subject to Tenant Delays and Unavoidable Delays). If Tenant reasonably determines
that Owner is not diligently pursuing the obtaining of a permanent certificate of occupancy, Tenant
may, upon twenty (20) Business Days notice (or on two (2) Business Days notice if Tenant reasonably
determines that as a result of the failure to obtain a permanent certificate of occupancy for the
Building Tenant is in imminent danger of being prohibited from occupying the Premises), exercise
Tenant’s right pursuant to Article 21 to obtain the permanent certificate of occupancy for the
Building, subject to Owner’s right to dispute Tenant’s notice within five (5) Business Days
following Tenant’s notice.




          (e) Owner shall deliver to Tenant a complete set of “as built” plans in Auto CADD (version 14,
or the then current version; or such other electronic method as is requested by Tenant, if Owner is
then using that method) with respect to Owner’s Work as soon as practicable after the Substantial
Completion of Owner’s Work and completion of the punch list work with respect to the entire
Premises (as such date shall be extended due to Tenant Delays and Unavoidable Delays), provided
Tenant executes and delivers to the preparer of those plans a release with respect to Tenant’s use
of those plans.




     Section 5.6. Tenant Delay of Substantial Completion. (a) If Substantial Completion of
Owner’s Initial Premises Work, the substantial completion of any portion of Owner’s Work shown on
Owner’s Work Schedule, the substantial completion in its entirety of any of the three portions of
the Balance Space or Substantial Completion of Owner’s Work is delayed as the result of a Tenant
Delay, then, in each such case, (1) the Substantial Completion of Owner’s Initial Premises Work,
the substantial completion of any such portion, the Substantial Completion of Owner’s Work (and the
Initial Premises Substantial Completion Date and the Substantial Completion Date, as the case may
be) shall be deemed to have occurred on the date it would have occurred but for such delay, (2)
such delay shall not result in the delay or extension of the Base Rent Commencement Date or
Tenant’s obligation to commence the payment of Rent under this Lease, and (3) Tenant shall
reimburse Owner for all reasonable actual out-of-pocket increases in the cost of Owner’s Work as a
result of any such Tenant Delay within twenty (20) Business Days after rendition of a bill therefor
together with documentation reasonably evidencing such work and the cost thereof. Owner shall
notify Tenant of any Tenant Delay within five (5) Business Days after the commencement of the
Tenant Delay in question. If



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Owner fails to do so, then the Tenant Delay in question shall remain a Tenant Delay but the Tenant
Delay in question shall be reduced by the number of days between the 5th Business Day following the
commencement of the Tenant Delay in question and the date of Tenant’s receipt of Owner’s notice of
that Tenant Delay (including that day). For example, assuming all of the days in this example are
Business Days, if a Tenant Delay commences on September 1, Tenant receives Owner’s notice of
Tenant’s Delay on September 9 and the Tenant Delay ends on September 11, then the Tenant Delay
shall be 10 days but shall be deemed reduced by three days. Delays and partial delays described in
this Section shall be aggregated to determine the cumulative days of delay, based on an eight (8)
hour work day, and any delays which are concurrent shall not be aggregated for purposes of this
Section. The foregoing shall be in addition to, and not in limitation of, any other rights that
Owner may have under this Lease or at law or in equity.




          (b) Except as otherwise expressly set forth in this Lease, Owner shall have no liability to
Tenant by reason of any delay in the substantial completion of any portion of Owner’s Work, the
Substantial Completion of Owner’s Initial Premises Work or the Substantial Completion of Owner’s
Work and this Section shall be deemed to be an express provision to the contrary of Section 223-a
of the Real Property Law of the State of New York and any other law of like import now or hereafter
in force.




     Section 5.7. Services and Utilities during Owner’s Work. Owner shall pay as the same
become due all charges for the consumption of all utilities used in connection with the performance
of Owner’s Work. Tenant shall pay directly to Owner, within twenty (20) Business Days after
rendition of a bill therefor, all costs for the consumption of all utilities used in connection
with the performance of Tenant’s Initial Work and for any additional risers required in connection
with Tenant’s Work (at Owner’s reasonably estimated cost therefor with respect to utilities, with
no “mark-up”). Notwithstanding the occurrence of the Base Rent Commencement Date, Owner shall have
the right to obtain utilities at the Premises, at Owner’s expense, necessary for the performance of
Owner’s Work (and any additional risers required solely in connection with Owner’s Work shall be
furnished at Owner’s expense) and Tenant, at no expense to Tenant, shall reasonably cooperate with
Owner in connection with same. If Tenant shall request Owner to provide one or more security guards
for the Premises during the performance of Owner’s Work, Owner shall do so, at Tenant’s expense,
but Owner shall not be responsible for the performance of the security guard or liable for any
losses, damages or accidents because Owner provided any such security guards except as otherwise
expressly provided in this Lease, and Tenant shall not be entitled to any reduction or abatement of
Rent in connection therewith. At Tenant’s request, to the extent feasible, one of the security
guards shall also serve as a fire watch and, if not feasible, Owner shall, at Tenant’s expense,
hire a fire watch.



     Section 5.8. Warranties. Upon completion of Owner’s Work, Owner shall assign to
Tenant, at no expense to Tenant, all warranties described in Owner’s Plans (including, without
limitation, the specifications referred to in Exhibit D to this Lease), plus any other
warranties obtained by Owner from contractors and subcontractors performing Owner’s Work, except
with



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respect to any warranties which relate to items which Owner is responsible to replace pursuant to
the terms of this Lease. If any such warranty is not assignable (or, as provided in this Section,
is not assigned), and Tenant is responsible for repairing or maintaining any item covered by that
warranty, Owner shall use commercially reasonable efforts, at Tenant’s request and at Tenant’s
expense, to enforce such warranty.




     Section 5.9. Construction Shanties. Tenant shall permit Owner to use a portion of the
second floor of the Premises (or any portion of any floor to which same are moved pursuant to this
Section) for the temporary installation, operation and maintenance of construction shanties without
the same (a) affecting the occurrence of the Substantial Completion of Owner’s Initial Premises
Work or the Substantial Completion of Owner’s Work, (b) constituting a basis for failure of Tenant
to take possession of the Initial Premises, (c) constituting constructive eviction, or (d) giving
rise to a claim for Rent abatement or loss of Rent value or any other claim with respect thereto
because of the presence of the shanties. Owner shall (1) bear all costs and expenses for the
installation, operation, maintenance and removal of its shanties (except if and to the extent
caused by the negligence or intentionally wrongful acts of omissions of Tenant or any Tenant
Party), (2) bear all costs and expenses to repair damage to and restore the Premises resulting from
its shanties (except if and to the extent caused by the negligence or intentionally wrongful acts
or omissions of Tenant or any Tenant Party), (3) not permit its shanties to interfere with the
performance of Tenant’s Initial Work or the use of the Premises by Tenant or any Subtenant in more
than a de minimis degree (except to the extent interference is caused solely by the physical
presence of the shanties) and (4) remove its shanties, at Owner’s expense, not later than the
Substantial Completion Date. Tenant shall have the right, on reasonable prior notice to Owner, to
cause Owner, at Owner’s expense, to move Owner’s shanties not more than twice to not less than
8,000 contiguous useable square feet on the Ground Floor or any floor above the Ground Floor (but
not on the roof). Tenant shall use commercially reasonable efforts to limit the number of times
Owner is required to move Owner’s shanties.



     Section 5.10. Sidewalk Bridge. Owner shall have the right to maintain the existing
sidewalk bridge on the exterior of the Building without the same (a) affecting the occurrence of
the Substantial Completion of Owner’s Initial Premises Work or Substantial Completion of Owner’s
Work, (b) constituting a basis for failure of Tenant to take possession of the Initial Premises,
(c) constituting constructive eviction, or (d) giving rise to a claim for Rent abatement or loss or
Rent value or any other claim with respect thereto because of the presence of the sidewalk bridge.
Notwithstanding the foregoing, Owner shall (1) bear all costs and expenses of installing,
maintaining in good condition and removing the sidewalk bridge (except if and to the extent caused
by the negligence or intentionally wrongful acts of omissions of Tenant or any Tenant Party), (2)
bear all costs and expenses to repair damage to and restore the Premises resulting from the
sidewalk bridge (except if and to the extent caused by the negligence or intentionally wrongful
acts or omissions of Tenant or any Tenant Party), (3) not permit the sidewalk bridge to interfere
with the performance of Tenant’s Initial Work or the use of the Premises by Tenant or any Subtenant
in more than a de minimis degree (except to the extent interference is caused solely by the
physical presence of the sidewalk bridge), and (4) remove the



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sidewalk bridge, at Owner’s expense, not later than the date which is five (5) Business Days after
the Substantial Completion of Owner’s Work.




     Section 5.11. Owner’s Insurance. (a) From and after the Commencement Date to and
including the completion of Owner’s Work, Owner, at its expense, shall carry, the following
insurance:



               (i) Builder’s Risk Insurance (standard “All Risk” or equivalent
coverage), in the amount of not less than one hundred percent (100%) of the replacement cost of
Owner’s Work then completed (exclusive of Tenant’s Initial Work and Tenant’s Property), including
flood coverage at limits of liability that are economically available; and, if applicable, boiler
and machinery coverage written on a completed value (non-reporting) basis. Such insurance policy
shall contain an endorsement waiving subrogation against Tenant; and



               (ii) commercial general liability insurance insuring all Owner
contractors, subcontractors and construction manager in amounts comparable with amounts carried by
persons undertaking similar work in the New York area, naming Tenant and Owner as an additional
insured (any Owner contractor or subcontractor undertaking foundation, excavation or demolition
work shall secure an endorsement on its policy to the effect that such operations are covered and
that the “XCU Exclusions” have been deleted); and statutory workers’ compensation insurance and
Employers Liability and New York State Disability Benefits Insurance in statutory amounts covering
all Owner contractors and subcontractors with respect to all of their employees.



          (b) All Owner insurance required by this Section shall be issued by insurance companies
licensed or authorized to do business in the State of New York, having at least a rating of “A-” or
better and a financial class of at least “VII” or better (or the then equivalent of such ratings)
as rated by A.M. Best’s Insurance Guide (or any successor publication of comparable standing).




     Section 5.12. Disputes. Any dispute under this Article shall be resolved by
Construction Arbitration.



     Section 5.13. Construction Arbitration. (a) In any case where this Lease expressly
provides for the resolution of a dispute by Construction Arbitration, either Owner or Tenant may,
by notice to the other, require that the dispute in question be presented for resolution to the
first available arbitrator set forth on Exhibit H to this Lease. In the event the first
named arbitrator listed on that Exhibit is not available or is unwilling to serve, the arbitrator
next set forth on the list shall be engaged, and so on, until arriving at an available arbitrator.



          (b) The parties shall make whatever presentations they wish and present whatever evidence they
wish to the arbitrator with respect to the dispute in question, including whether or not such
dispute is subject to the dispute resolution mechanism of this Section, within




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five (5) Business Days of receipt of an arbitration notice. Within three (3) Business Days
thereafter, the arbitrator shall attempt to cause Owner and Tenant to agree on a resolution to the
dispute and, failing that, the arbitrator shall make a decision in writing. The expenses of
arbitration shall be shared equally by Owner and Tenant but each party shall be responsible for the
fees and disbursements of its own attorneys and the expenses of its own proof; provided, however,
the Prevailing Party’s reasonable costs and expenses (including attorneys’ fees and disbursements)
shall be paid or reimbursed by the unsuccessful party. Owner and Tenant shall sign all documents
and to do all other things necessary to submit any such matter to such arbitration and further
shall, and hereby do, waive any and all rights they or either of them may at any time have to
revoke their agreement hereunder to submit to such arbitration and to abide by the decision
rendered thereunder. This arbitration procedure shall be the exclusive remedy under this Lease as
to disputes to be resolved by Construction Arbitration and neither Owner nor Tenant shall have any
right to seek any injunctive or other mandatory relief in connection therewith.




          (c) If at any time any of the named arbitrators, retires, is disqualified by Owner or Tenant
for a legitimate reason reasonably determined by Owner or Tenant, or elects to withdraw from the
list, Owner and Tenant shall agree on a replacement arbitrator within five (5) Business Days after
notice thereof. If Owner and Tenant fail to so agree, either may apply to the President of the Real
Estate Board of New York, Inc. to appoint a replacement arbitrator. All newly chosen arbitrators
shall be placed at the bottom most position of the list. Owner and Tenant shall hold harmless the
arbitrators for any damages resulting from any dispute submitted to arbitration pursuant to the
provisions hereof.




          (d) In rendering a determination, the arbitrator shall not add to or subtract from or
otherwise modify the provisions of this Section or this Lease. The determination of the arbitrator
shall be in writing and be final and conclusive on the parties and counterpart copies thereof shall
be delivered to each of the parties. Owner or Tenant may enter judgment on the determination of the
arbitrator in any court of competent jurisdiction.




     Section 5.14. Mortgagee Confirmation. Tenant acknowledges that in connection with the
financing of Owner’s Work the Mortgagees with respect thereto may require that Owner obtain a
written agreement executed and acknowledged by Tenant confirming (i) the Commencement Date, (ii)
the Fixed Expiration Date, (iii) the Rent Commencement Date, (iv) the Base Rent payable under this
Lease, after consideration of all abatements to which Tenant is entitled to under this Lease, (v)
the Initial Premises Substantial Completion Date, (vi) the Substantial Completion Date, and (vii)
any other information under this Lease. Tenant therefore agrees that Tenant shall, within fifteen
(15) Business Days after the receipt of an agreement confirming all or any of that information,
execute, acknowledge and return the same to Owner to the extent, in Tenant’s reasonable opinion,
the information set forth has been determined in accordance with the applicable provisions of this
Lease; provided, however, Tenant shall not be obligated to execute, acknowledge and return the same
to Owner if Tenant, within such fifteen



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(15) Business Day period, shall have given notice (in reasonable detail) to Owner that it disputes
any of the information set forth in such agreement.




     Section 5.15 Elevators; Additional Elevators. All of the passenger and service
elevators which are part of Owner’s Work, as shown on Owner’s Plans, shall service the Ground Floor
through and including the 6th floor and two of those passenger elevators and the service elevator
shall also service the cellar. Tenant shall have the right, at Tenant’s expense (as Tenant’s Work),
during the initial (not extended) Term, but after the Substantial Completion Date, to install two
additional passenger elevators and one additional service elevator in the existing passenger
elevator bank, or the existing service elevator bank, as the case may be, as shown on Owner’s
Plans, serving the same floors as the balance of the passenger elevators and the existing service
elevator, as the case may be (which additional elevators shall not be deemed Designated Restricted
Work). Notwithstanding the foregoing, if in connection with Tenant’s exercise of its right to
expand the Premises pursuant to Article 33 Tenant requests that Owner install the additional
elevators which were not installed by Tenant pursuant to the preceding sentence, Owner shall
install such additional elevators, at Owner’s expense.



     Section 5.16 Tenant’s Right to Complete Owner’s Work. If Tenant shall exercise
Tenant’s rights pursuant to Article 21 with respect to Owner’s Work, or any portion thereof, Tenant
may use Owner’s construction manager and/or subcontractors or Tenant’s construction manager,
general contractor and/or subcontractors. Owner shall provide in the agreement with Owner’s
construction manager and in each material subcontract that Tenant shall have that right. Owner has
delivered to Tenant a copy of Owner’s agreement with Owner’s construction manager and shall make
available to Tenant at Owner’s office for inspection and copying each major subcontract.



Article 6: Tenant’s Work




     Section 6.1. Tenant’s Work — General. (a) Tenant shall have the right, if there
is then no Material Event of Default, to perform any Tenant’s Work without Owner’s consent except
(a) Tenant’s Initial Work and (b) Tenant’s Restricted Work. Owner shall not unreasonably withhold
its approval of any Tenant’s Restricted Work or any modification thereof (the approval of Tenant’s
Initial Work is governed by Section 6.2). Owner shall respond to any request for approval
of any Tenant’s Restricted Work, and whether any of Tenant’s Restricted Work must, subject to
Owner’s rights pursuant to Article 24, be removed by Tenant, at Tenant’s expense, upon the
expiration or earlier termination of this Lease (“Designated Restricted Work”) within fifteen (15)
Business Days after receipt of a request from Tenant (accompanied by the information required to
render its approval described below). If Owner fails to respond within such fifteen (15) Business
Day period, Owner shall be deemed to have approved such Tenant’s Restricted Work and to have
designated no portion of same as Designated Restricted Work. Any disapproval by Owner shall be
accompanied by a list of specific objections. As soon as reasonably practicable after Tenant
receives Owner’s specific objections to Tenant’s Restricted Work, Tenant shall revise, or cause to
be revised, Tenant’s Plans with respect to such Tenant’s



-20-









 





Restricted Work to reasonably address such objections and shall deliver the revised Tenant’s Plans
to Owner. Owner shall approve or disapprove the revised Tenant’s Plans (which approval shall not be
unreasonably withheld) as soon as reasonably practicable and in any event within seven (7) Business
Days after receipt by Owner of the revised Tenant’s Plans. Any disapproval shall be accompanied by
a list of specific objections, but (i) Owner’s right to raise objections shall be limited to the
revisions made to the initial submission of Tenant’s Plans in order to address Owner’s prior
objections, and (ii) Owner’s failure to approve or disapprove of the revisions within such seven
(7) Business Day period shall be deemed approval of such revisions. Owner’s approval of Tenant’s
Work shall not be deemed to be any representation as to the adequacy of the plans or the compliance
thereof with any Requirements or the coordination thereof with Owner’s Work. Tenant shall not
commence any Tenant’s Work if there is then a Material Event of Default. Tenant shall pay the
reasonable actual out-of-pocket costs incurred by Owner in connection with the review and approval
of Tenant’s Restricted Work (other than Tenant’s Initial Work), including, without limitation,
Owner’s review and approval of the plans and specifications therefor.




          (b) All Tenant’s Work, once commenced, shall be completed promptly in a good and workerlike
manner and substantially in accordance with the approved plans and specifications therefor (if
applicable) and, in all events, all applicable Requirements. At least fifteen (15) Business Days
before Tenant’s commencement of any proposed Tenant’s Work (other than Tenant’s Initial Work),
Tenant shall use reasonable efforts to, and with respect to Tenant’s Restricted Work, Tenant shall
at the time of Tenant’s request for Owner’s approval, provide Owner with each of the following
items (unless otherwise provided in this Lease; and if Tenant shall not do so, it shall do so
within twenty (20) Business Days following Owner’s request):




               (i) complete plans and specifications for such Tenant’s Work prepared by Tenant’s Architect;
provided, however, that this clause shall not apply in the case of Tenant’s De Minimis Work;



               (ii) for Tenant’s Initial Work and Tenant’s Restricted Work only, a copy of the agreement with
Tenant’s construction manager or general contractor, in either case providing for the completion of
such Tenant’s Work in accordance with the plans and specifications (which contract shall expressly
provide that Owner shall have the benefits of that contract if Owner exercises Owner’s right under
Article 21); provided, however, that this clause shall not apply in the case of Tenant’s De Minimis
Work;



          (c) Tenant shall not commence any Tenant’s Work until (i) Tenant shall have obtained and
delivered to Owner copies of all necessary permits, consents, certificates and approvals of all
Governmental Authorities with regard to the particular phase of the work to be performed; provided,
however, until the Substantial Completion Date all filings with Governmental Authorities to obtain
such permits, consents, certificates and approvals shall be made, at Tenant’s expense, by a Person
designated by Owner and (ii) Tenant shall have delivered




-21-









 







to Owner certified copies, certificates or memoranda of the policies of insurance required to be
carried by Tenant pursuant to this Lease (but if Tenant shall fail to make the deliveries required
by this clause (ii) with respect to Tenant’s Work which is not Tenant’s Initial Work or Tenant’s
Restricted Work, Tenant may commence Tenant’s Work, but Tenant shall make those deliveries within
twenty (20) Business Days following Owner’s request). Owner shall cooperate in all reasonable
respects with Tenant in obtaining the permits, consents, certificates and approvals required by
this Section and shall sign any application made by Tenant, provided that the facts set forth
therein are accurate and Owner’s signature is necessary to obtain such permits, consents,
certificates and approvals. Tenant shall reimburse Owner within twenty (20) Business Days after
Owner’s demand for any reasonable actual out-of-pocket third party costs and expenses incurred by
Owner in obtaining the permits, consents, certificates and approvals required by this Section.
Tenant shall indemnify, defend and hold harmless Owner and all Owner Parties from all loss, cost,
liability or expense, including reasonable attorneys’ fees arising from or relating to resulting
from any misrepresentation contained in any application prepared by Tenant and signed by Owner.




          (d) All Tenant’s Restricted Work shall be carried out by contractors, subcontractors and
engineers approved by Owner, which approval shall not be unreasonably withheld; provided further,
however, if Owner fails to respond to Tenant’s request for such approval within five (5) Business
Days after receipt by Owner of notification to Owner of the identify of any such contractors,
subcontractors or engineers, Owner shall be deemed to have approved such selection by Tenant.




          (e) All Tenant’s Work (but not Tenant’s Property), once placed in the Premises, shall be the
property of Owner and may not be removed by Tenant except as expressly set forth in this Lease.




          (f) Upon substantial completion of the Tenant’s Initial Work and the substantial completion of
any subsequent Tenant’s Work (other than Tenant’s De Minimis Work), Tenant shall use reasonable
efforts to furnish Owner with the following (and if Tenant shall not do so, Tenant shall do so
within twenty (20) Business Days following Owner’s request):




               (i) with respect to Tenant’s Initial Work and Tenant’s Restricted Work only, a certification
of Tenant’s Architect (certified to Owner) that such Person has examined the applicable plans and
specifications (which shall include Tenant’s Plans in the case of Tenant’s Initial Work), if
applicable, and that, in its professional judgment, Tenant’s Work has been substantially completed
materially in accordance with the plans and specifications applicable thereto (except for minor or
insubstantial details of construction, mechanical adjustments or decoration, the non-completion of
which does not interfere with the use of the Building) and, as constructed, Tenant’s Work complies
with all Requirements;



               (ii) in the case of Tenant’s Initial Work, and in the case of any subsequent
Tenant’s Work for which same is required, a copy or copies of the temporary




-22-











 




certificate(s) of occupancy for the Building or such other space issued by the New York City
Department of Buildings and a copy or copies of the permanent certificate(s) of occupancy upon the
final completion of such work issued by the New York City Department of Buildings;




               (iii) lien waivers from all contractors, subcontractors or materialmen
and evidence reasonably satisfactory to Owner that there are no outstanding violations issued or
noted and no liens against the Premises as a result of or in connection with such Tenant’s Work;
and



               (iv) a complete set of “as built” plans in Auto CADD form (Version 14 or the then current
version; or such other electronic method as is requested by Owner, if Tenant is then using that
method) if Tenant prepares same for itself (otherwise, Tenant shall deliver to Owner the relevant
field notes and plans), provided Owner executes and delivers to the preparer of those plans a
release with respect to Owner’s use of those plans. Owner shall have an unrestricted non-exclusive
license to use such “as built” plans, or field notes and plans, for any purpose relating to the
Premises without paying any additional cost or compensation therefor, which license shall be
subject to the rights of the parties preparing such plans and survey under copyright and other
applicable laws.



          (g) Owner reserves the right, at its expense, to maintain its field personnel or
consultants at the Premises to observe Tenant’s construction methods and techniques and Owner shall
be entitled to have its field personnel or other designees attend Tenant’s job or safety meetings.
No such observation or attendance by Owner’s personnel or designees shall impose upon Owner
responsibility for any failure by Tenant to observe any Requirements or safety practices in
connection with such construction, or constitute an acceptance of any work which does not comply in
all respects with the provisions of this Lease. Owner’s personnel shall not unreasonably interfere
in the performance of Tenant’s Work.




          (h) Tenant shall cause all of its contractors to add Owner and all Owner Parties as
additional insureds on all insurance required in connection with Tenant’s Work.




          (i) During the performance of Tenant’s Work, in addition to all other insurance
required to be maintained by Tenant, Tenant shall, at its expense, maintain (a) Builder’s Risk
Insurance (standard “All Risk” or equivalent coverage), in the amount of not less than one hundred
percent (100%) of the replacement cost of Tenant’s Work, including flood coverage (to the extent
such coverage can be obtained at commercially reasonable rates in the City of New York); and, if
applicable, boiler and machinery coverage written on a completed value (non-reporting) basis; and
(b) (i) commercial general liability insurance insuring all contractors, subcontractors and
construction managers in amounts comparable with amounts carried by Persons undertaking similar
work in the New York metropolitan area, naming Tenant, Owner and any Owner Party designated by
Owner as an additional insured (any contractor or subcontractor undertaking foundation, excavation
or demolition work shall secure an endorsement on its policy to the effect that such operations are
covered and that the “XCU




-23-









 




Exclusions” or such other exclusions as are then customarily included in policies carried by
Persons undertaking similar work in the New York metropolitan area have been deleted), and (ii)
statutory workers’ compensation insurance and Employers Liability and New York State Disability
Benefits Insurance in statutory amounts covering all contractors and subcontractors with respect to
all of their employees.




     Section 6.2.
Tenant’s Initial Work. (a) (i) Tenant shall, at Tenant’s expense
(subject to the Construction Agreement dated the date of this Lease between Owner and Tenant),
perform Tenant’s Initial Work, in a good and workerlike manner in accordance with Tenant’s Plans,
and the applicable provisions of this Lease (including, without limitation, this Article), using
the contractors and subcontractors listed on Exhibit J to this Lease (or other contractors
or subcontractors reasonably approved by Owner, which shall be deemed
approved if Owner fails to respond to a request for approval within ten
(10) Business Days), and shall use due diligence to
complete Tenant’s Initial Work expeditiously. Tenant has
delivered to Owner Tenant’s projected
construction schedule for the Tenant’s Initial Work, which schedule shall be updated and provided
to Owner from time to time, as same is revised, but (notwithstanding any provision of this Section
to the contrary) such schedule is provided to Owner for informational purposes only and shall not
constitute a representation by Tenant with respect to any of the information contained therein.
Tenant shall use commercially reasonable efforts to require all of Tenant’s contractors to give
Owner prompt notice of any inconsistencies between Owner’s Work actually performed and Owner’s Work
as described in Owner’s Plans, promptly after Tenant or any of Tenant’s contractors become aware of
same.



               (ii) Subject to and in accordance with the provisions of this Section, Owner has, as of
the date of this Lease, permitted Tenant (and its contractors, subcontractors, materialmen,
architects and decorators) to commence, and shall permit them to continue to perform, Tenant’s
Initial Work. Owner shall, at Owner’s expense (except as expressly provided in this Lease), provide
the service elevator (until the Hoist is operating), loading accessibility, electricity (120/208
volt) in the cellar of the Building (which service may be brought to other areas of the Building by
Tenant, at Tenant’s expense, subject to the provisions of this Lease) and domestic cold water in
the cellar of the Building (which service may be brought to other areas of the Building by Tenant,
at Tenant’s expense, subject to the provisions of this Lease), for Tenant’s temporary use, for the
performance of Tenant’s Initial Work. Tenant shall pay directly to Owner, within twenty (20)
Business Days after rendition of a bill therefor, all costs and expenses for the consumption of
such electricity and domestic water (but with respect to domestic water, only to the extent Owner
must maintain domestic water personnel in the Building beyond 2:30 p.m. on Business Days), and for
additional risers required in connection with Tenant’s Initial Work. Tenant shall not be charged
for use of the elevators, except to the extent of Owner’s cost of any required operators, unless
used after normal construction hours, which are Business Days 7:00 a.m. to 11:30 a.m. and 12:30
p.m. to 4:00 p.m. Owner’s charges shall be Owner’s reasonable actual cost therefor (or reasonably
estimated cost for electric and domestic water), with no “mark-up”. In connection with such access
and with the performance of such Tenant’s Initial Work, Tenant agrees that (1) Tenant shall comply
promptly with all reasonable procedures and



-24-









 




regulations prescribed by Owner from time to time for coordinating such work and activities with
Owner’s Work (provided same shall not delay Tenant’s Initial Work unless such procedure or
regulation is required so as not to delay Owner’s Work), (2) such access shall be at the sole risk
of Tenant (except if and to the extent caused by the negligence or intentionally wrongful acts or
omissions of Owner or any Owner Party and not covered under the insurance carried by Owner or
Tenant, or which should have been carried by Owner or Tenant under this Lease), (3) prior to
access, Tenant shall deliver to Owner all of the policies of insurance required by this Lease, and
(4) Tenant shall not perform any of Tenant’s Initial Work, or employ or permit the employment of
any contractor, mechanic or laborer, if that work or the use of such contractor, mechanic or
laborer would (A) in Owner’s reasonable opinion, create any difficulty, strike or jurisdictional
dispute with other contractors, mechanics or laborers employed by or on behalf of Owner, or (B)
delay any of Owner’s Work. If Tenant fails to comply with the provisions of this Section within
twenty-four (24) hours after receipt of notice from Owner, then, in addition to all other rights
and remedies under this Lease, Owner may by notice require Tenant to cease the performance of
Tenant’s Initial Work until Tenant has complied with such provisions. Tenant shall not be charged
for the use of the freight elevator during Business Hours on Business Days.




          (b) Tenant shall not commence Tenant’s Initial Work until Tenant, at Tenant’s expense,
shall prepare and submit Tenant’s Plans (which may be submitted in stages) to Owner for Owner’s
review and approval. Owner hereby approves, in concept, Tenant’s schematic plans for Tenant’s
Initial Work dated April 24,2001, prepared by HLW, previously delivered by Tenant to Owner, subject
to final approval by Owner of Tenant’s Plans as provided in this Lease. Owner shall not
unreasonably withhold its approval of Tenant’s Plans. Owner shall approve or disapprove Tenant’s
Plans as soon as reasonably practicable and, in any event, within ten (10) Business Days after
receipt by Owner of Tenant’s Plans (or each stage thereof), and shall, within an additional ten
(10) Business Days after said ten (10) Business Days, designate any item of Tenant’s Initial Work
which Owner believes is Tenant’s Restricted Work and which, subject to the provisions of Article
24, Owner designates as Designated Restricted Work. Any disapproval by Owner shall be accompanied
by a list of specific objections. Owner’s failure to approve or disapprove Tenant’s Plans (or the
stage in question) within such ten (10) Business Day period, or to designate any Designated
Restricted Work within such additional ten (10) Business Day period, shall be deemed approval of
Tenant’s Plans (or the stage in question), and that Owner has not designated any Designated
Restricted Work. As soon as reasonably practicable after Tenant receives Owner’s specific
objections to Tenant’s Plans (or the stage in question), Tenant shall revise, or cause to be
revised, Tenant’s Plans to reasonably address such objections and shall deliver the revised
Tenant’s Plans to Owner. Owner shall approve or disapprove the revised Tenant’s Plans (which
approval shall not be unreasonably withheld) as soon as reasonably practicable and in any event
within seven (7) Business Days after receipt by Owner of the revised Tenant’s Plans. Any
disapproval shall be accompanied by a list of specific objections, but (i) Owner’s right to raise
objections shall be limited to the revisions made to the initial submission of Tenant’s Plans in
order to address Owner’s prior objections, and (ii) Owner’s failure to approve or disapprove of the
revisions within such seven (7) Business Day period shall be deemed approval of such revisions. Any
dispute between Tenant and Owner as to whether







-25-









 







Owner unreasonably disapproved Tenant’s Plans or a revised submission thereof, or with respect to
the designation of Designated Restricted Work, shall be resolved by Construction Arbitration.
Owner’s review of any plans, including, without limitation, Tenant’s Plans, shall be at no expense
to Tenant and shall be for the benefit of Owner only and any approval thereof shall not be deemed
to be a representation as to the adequacy of the plans or the compliance thereof with any
Requirements or the coordination thereof with Owner’s Work.




          (c) Tenant’s Work and Tenant’s Plans shall comply with all applicable Requirements. It shall
be Tenant’s responsibility to assure such compliance. Owner’s approval of Tenant’s Plans shall not
be, nor shall it be construed as being, or relied upon as, a determination that Tenant’s Plans
comply with all applicable Requirements.




          (d) Tenant shall not, at any time, directly or indirectly employ, or permit the employment of,
any contractor, mechanic or laborer in the Premises, whether in connection with any Tenant’s Work
or otherwise, if such employment would cause any conflict with other contractors, mechanics or
laborers engaged in the construction, maintenance or operation of the Building by Owner, Tenant or
others. In the event of any such conflict, Tenant, promptly after demand of Owner, shall cause all
contractors, mechanics or laborers causing such interference or conflict to cease working until
such interference or conflict is resolved. Notwithstanding anything to the contrary contained in
this Lease, to the extent that the performance of Tenant’s Initial Work requires Owner to employ at
the Premises and in connection with Owner’s Work union personnel, including, without limitation,
one or more teamsters and master mechanics that Owner would not have otherwise employed at the
Premises, and as a direct result thereof, causes Owner to incur costs which Owner would otherwise
not have incurred, then, Tenant shall pay such costs to Owner, within twenty (20) Business Days
after receipt of an invoice in reasonable detail. If a Master Mechanic is required to be employed
in connection with Owner’s Work or Tenant’s Initial Work, the cost of the Master Mechanic shall be
paid by Owner and Tenant in proportion to the number of operating engineers employed by each of
Owner and Tenant.




          (e) (i) Promptly following the substantial completion of Tenant’s Initial Work, Tenant,
at its expense, shall take all necessary action on its part to apply for, diligently prosecute and
obtain (to the extent required by any Governmental Authority) a temporary certificate of occupancy
for the Premises (or an amendment to the temporary certificate of occupancy for the Building core
and shell to include the Premises), and shall furnish Owner with a copy thereof.




               (ii) If there is then no Material Event of Default, Owner shall, from
time to time, at no expense to Owner, execute, acknowledge or deliver to Tenant any document or
instrument reasonably requested by Tenant to obtain the temporary certificate of occupancy for the
Premises (or said amendment), provided that (1) the execution, acknowledgment or delivery of any
such document or instrument shall not be prohibited by or otherwise in violation of any
Requirement, (2) neither Owner nor any Owner Party would be, by reason thereof, subject to any
actual or threatened sanctions or penalties or liability and (3) such document or instrument



-26-









 




shall be otherwise in form and substance reasonably satisfactory to Owner. Tenant shall indemnify,
defend and hold harmless Owner and all Owner Parties from and against any cost, expense or
liability which shall arise by reason of Owner’s execution of any such documents or instruments,
except to the extent that Owner makes a knowingly false or misleading statement therein.




               (iii) If Tenant is unable to obtain a temporary certificate of occupancy for the Premises
(or said amendment) and such inability is due to Owner’s failure to perform Owner’s Work in
accordance with applicable Requirements or Owner’s Plans and Tenant notifies Owner thereof of the
inability of Tenant to obtain a temporary certificate of occupancy for the Premises as a result
thereof (which notice shall describe in reasonable detail the noncomplying Owner’s Work and
reasonably substantiate the reasons for same), Owner, at its expense, shall perform that Owner’s
Work. Owner shall cause Owner’s contractor to commence that work as soon as commercially
practicable under the circumstances and promptly and diligently to complete the work that is set
forth in the notice within thirty (30) days following delivery of Tenant’s notice to Owner, subject
to Tenant Delays and Unavoidable Delays or, if work cannot with due diligence be completed or
remedied within a period of thirty (30) days, cause Owner’s contractor to promptly commence within
such thirty (30) day period, and thereafter diligently prosecute to completion, steps necessary to
substantially complete or remedy such work. Nothing contained in this subparagraph is intended to
modify any other obligation of Owner, or any other right or remedy of Tenant, expressly set forth
in this Lease. Notwithstanding anything to the contrary contained herein, Owner shall not be
obligated to perform or cause to be performed any noncomplying Owner’s Work to the extent
necessitated by or resulting from an act or omission of Tenant or any Tenant Party.



          (f) (i) Tenant shall erect, or cause to be erected, on or before May 23, 2001, and
shall repair, maintain and remove same, at Tenant’s expense, one hoist (the “Hoist”) consisting of
two cars, one for construction personnel and one for material, on the 27th Street side of the
Building, in the position, and in the manner, agreed upon by Owner and Tenant prior to the date of
this Lease. The Hoist shall have the ability to serve each floor of the Building including, without
limitation, the roof level, above the Ground Floor and will be used by both Owner and Tenant as
provided in this paragraph. Tenant shall remove the Hoist, at its expense, when the progress of the
Tenant’s Initial Work dictates, as determined by Tenant in its discretion, provided that the core
and shell elevators servicing the Building and which form a part of Owner’s Work shall have been
installed and are operational and Owner has received all temporary approvals from the applicable
Governmental Authorities necessary for the operation of the elevators. All repairs to the Building
or Owner’s Work caused by the Hoist, including without limitation, any removal, storage and
reinstallation of windows or repair of the facade to the condition on the date of this Lease
(except if caused by Owner or any Owner Party) shall be performed by Tenant, at its expense, as
Tenant’s Work, in accordance with the applicable provisions of this Lease. The installation and
operation of the Hoist by Tenant shall not (1) affect the occurrence of the Substantial Completion
of Owner’s Initial Premises Work or the Substantial Completion of Owner’s Work, (2) constitute a
basis for failure of Tenant to take




-27-









 




occupancy of the Initial Premises, (3) constitute constructive eviction, or (4) give rise to
a claim for Rent abatement or loss of Rent value or any other claim with respect thereto because of
the presence or operation of the Hoist. Owner shall have no responsibility whatsoever with respect
to the operation of the Hoist or the installation or removal thereof, other than as expressly
provided herein. Except as otherwise expressly provided in this Lease, and except in connection
with the use of the Hoist by Owner or any Owner Party, Tenant shall (A) bear all costs and expenses
for the installation, operation, maintenance and removal of the Hoist, (B) bear all costs and
expenses to repair damage to and restore the Building resulting from the Hoist (other than by the
use thereof by Owner or any Owner Party or otherwise caused by the acts of Owner or any Owner
Party), and (C) not permit the Hoist to delay the performance of Owner’s Initial Work (except to
the extent any delay is caused solely by the physical presence of the Hoist). Notwithstanding the
foregoing, Owner shall, within 10 Business Days following receipt of Tenant’s reasonably detailed
invoice and back-up, reimburse Tenant [*****] of the reasonable costs incurred in erecting, dismantling,
maintaining and renting the Hoist (including, without limitation, any required window removal,
storage and reinstallation costs and facade repair costs unless caused by Tenant or any Tenant’s
Party). Notwithstanding the foregoing, Tenant shall reimburse to Owner, within twenty (20) Business
Days following Owner’s request and the delivery of reasonable supporting documentation, for the
first [*****] of reasonable out-of-pocket expenses incurred by Owner to hoist steel and other equipment by
a means other than the Hoist as the result of the insufficient capacity of the Hoist.




               (ii) Subject to this paragraph, Owner’s contractors, subcontractors and materialmen
performing Owner’s Work may use the Hoist on an exclusive basis under Tenant’s direction for up to
four (4) hours per day (two (2) hours in the morning and two (2) hours in the afternoon) during
normal construction hours (Business Days 7:00 a.m. to 11:30 a.m. and 12:30 p.m. to 4:00 p.m.)
without charge. Should they require use of the Hoist during other hours, Tenant shall make the
Hoist reasonably available, provided that Owner shall pay to Tenant, within ten (10) Business Days
after receipt of an invoice, the Hoist Hourly Rate or 50% of the Hoist Hourly Rate to the extent
the Hoist is being used on an overtime basis by Owner and Tenant at the same time. The use of the
Hoist shall be at the sole risk of Tenant (unless caused by Owner or any Owner Party and the damage
exceeds any insurance coverage) and shall be subject to such rules and regulations as Tenant may
reasonably impose. Tenant’s contractors shall oversee the general coordination of the Hoist. Owner
and Tenant shall each have access to the Hoist on an equitable and reasonable basis, but Owner
shall have the right to reserve the Hoist, on not less than twenty-four (24) hours’ prior notice,
for two hours each morning and two hours each afternoon. If Owner shall not reserve the Hoist
during those hours, Tenant shall have the use of the Hoist during those hours.



     Section 6.3.
Tenant’s Allowance. (a) If (i) there is then no Material Event of
Default, (ii) Tenant’s Initial Work has been substantially completed in accordance with this Lease
(including, without limitation Section 6.2), (iii) Tenant has delivered all items required to be
delivered upon substantial completion of Tenant’s Initial Work (including, without limitation, the
items set forth in Section 6.2) and (iv) Tenant has delivered proof reasonably satisfactory
to



-28-









 




Owner that Tenant has paid for Tenant’s Initial Work not less than Tenant’s Allowance, Owner shall,
within twenty (20) Business Days thereafter pay to Tenant the lesser of (x) Tenant’s Allowance or
(y) the sums for which Tenant has delivered such proof.




          (b) If (i) there is then no Material Event of Default, (ii) Tenant’s Initial Work has
been completed substantially in accordance with this Lease (including, without limitation,
Section 6.2), (iii) Tenant has delivered all items required to be delivered upon
substantial completion of Tenant’s Initial Work (including, without limitation, the items set forth
in Section 6.2), and (iv) Tenant has delivered proof reasonably satisfactory to Owner that
Tenant has paid for the items for which Tenant is to be given an allowance pursuant to Exhibit
G not less than the amounts of such allowances, Owner shall, within twenty (20) Business Days
thereafter pay to Tenant the lesser of (x) the allowances expressly set forth in Exhibit G
or (y) the sums proven by Tenant to have been paid for the items covered by those allowances.




     Section 6.4. Federal Rehabilitation Tax Credits. Owner and Tenant have entered into
a separate agreement dated the date of this Lease, relating to Federal Rehabilitation Tax Credits.



     Section 6.5.
Roof Structure. (a) Tenant’s Work may include the installation on the
roof of the Building, without additional charge, of any structure
(not exceeding [*****] square feet plus
any additional square footage of Development Rights obtained by Tenant pursuant to this Section) or
any satellite dishes, antennas, communication or other equipment or signage used in connection with
the operation of the Building. If, however, those installations reduce the square footage of
Development Rights for the Premises or any other property owned or controlled by Owner within the
Square Block, Tenant shall pay Owner an annual amount equal to
[*****] for each square foot of such
reduction, in equal monthly installments, on the first day of each month, commencing on the date of
reduction, increased on each anniversary date of the commencement of that payment to an amount
equal to the payment for the preceding 12 month period plus
[*****] of that payment. In addition, Tenant
shall, throughout the Term, pay any expenses resulting from the installation of such structure or
equipment, including, without limitation, but without duplication, Real Estate Taxes and insurance
premiums or costs. In connection with any such installation, Owner shall allow Tenant, at Tenant’s
expense, to extend and upgrade any Building mechanical, electrical and plumbing services (including
the sprinkler and fire alarm systems) necessary to support and operate any such installations. The
annual amount payable by Tenant under this Section shall be reduced to the extent any such
structure has been removed from the roof and the applicable Development Rights have been restored.



          (b) Notwithstanding the foregoing, to the extent Tenant shall, at its expense, increase
the Development Rights for the Premises or any other property owned or controlled by Owner within
the Square Block, above the upzoning pending on the date of this Lease (which Development Rights
are on the date of this Lease [*****] square feet without the pending
upzoning and [*****] square feet including
the pending upzoning) or above any additional upzoning not obtained through Tenant’s efforts,
without adversely impacting that upzoning, then




-29-









 




there shall be no payment under this Section for the portion of the structure covered by
such increased Development Rights.




          (c) If Tenant shall, at its expense, increase the Development Rights for the Building above
the upzoning pending on the date of this Lease or above any
additional upzoning [*****]




          (d) If Owner utilizes such Development Right, Owner shall give Tenant notice of Owner’s
determination of the fair market value of the utilized Development Rights. If Tenant disputes
Owner’s determination, Tenant shall give notice to Owner of the dispute within fifteen (15)
Business Days after receipt of Owner’s notice stating Tenant’s determination of the fair market
value (time being of the essence). If Tenant shall not submit that notice, then the fair market
value shall [*****]




     Section 6.6. Disputes. Any dispute under this Article shall, unless otherwise
expressly provided in this Article, be resolved by Construction Arbitration.



Article 7: Assignment and Subletting




     Section 7.1. Owner’s Consent not Required (a) Tenant shall have the right,
subject to the applicable provisions of this Article, if there is then no Material Event of
Default, without the consent of Owner, to enter into an Assignment or Sublease with any Person
provided that (i) the Person is not then a debtor or debtor-in-possession in a voluntary or
involuntary bankruptcy



-30-









 




proceeding, and (ii) with respect to an Assignment, the Person assumes all of Tenant’s
obligations under this Lease thereafter arising.




          (b) Tenant shall notify Owner of an Assignment or Major Sublease within thirty (30) days after
the effective date of such Assignment or Major Sublease, but failure to give such notice shall not
invalidate the Assignment or Major Sublease.




          (c) Any Tenant notice of an Assignment or Major Sublease shall contain the identity of the
Person in question, and such other reasonably detailed information concerning the nature of the
business of, the ownership interests in and the financial status of, that Person that is in the
possession of Tenant and is not the subject of any confidentiality or nondisclosure agreement by
which Tenant is bound.




          (d) Tenant shall deliver to Owner, or shall cause to be delivered to Owner, within thirty (30)
days after the effective date of an Assignment or the commencement date of a Major Sublease (i) in
the case of an Assignment, a fully executed instrument of assignment and a fully executed
instrument of assumption by the Assignee of Tenant’s obligations under this Lease arising from and
after the effective date of the Assignment, or (ii) in the case of a Major Sublease, a fully
executed Major Sublease.




          (e) An Assignment, a Sublease, the collection of Rent by Owner from any Person other than
Tenant, or any application of any such Rent shall not, in any circumstances, relieve Tenant of its
obligations under this Lease, and Tenant shall remain fully liable for the payment of the Rent due
and to become due hereunder and for the performance of all of Tenant’s obligations under this
Lease. All acts and omissions of any Assignee or Subtenant or anyone claiming under or through
Tenant or any Assignee or Subtenant which shall be in violation of any of Tenant’s obligations of
this Lease shall be deemed to be a violation by Tenant.




          (f) Any Subtenant or Assignee may further sublet the Premises or any portion thereof or assign
its interest in this Lease subject to and in accordance with all of the provisions of this Lease.




          (g) If there is an Assignment or Sublease in violation of the provisions of this Article, it
shall be void and of no force and effect against Owner; provided, however, that Owner may collect
an amount equal to the then Base Rent plus any other item of Rent from the Person in question as a
fee for its use and occupancy of the Premises, and shall apply the net amount collected to the Base
Rent and other items of Rent. No such Assignment or Sublease in violation of the provisions of this
Article, nor any such collection or application of Rent or fee for use and occupancy, shall be
deemed a waiver by Owner of any provision of this Lease or the acceptance by Owner of the Person in
question.




          (h) After an Event of Default, Owner may collect rent and all other sums due under any
Sublease and apply the net amount collected to the Rent. No such collection shall be,




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or shall be deemed to be, a waiver of any provision of this Lease nor the recognition by Owner of
any Subtenant as a direct tenant of Owner nor a release of Tenant from performance by Tenant of its
obligations under this Lease.




     Section 7.2. Sublease Requirements. (a) Each Sublease shall provide that:



          (i) It is subordinate and subject to this Lease;




          (ii) Except for security deposits and any other amounts deposited with Tenant in
connection with the payment of insurance premiums, real property taxes and assessments and other
similar charges or expenses, Subtenant shall not pay rent or other sums payable under the Sublease
to Tenant for more than one (1) month in advance;




          (iii) At Owner’s option, on the termination of this Lease pursuant to an Event of Default
or otherwise, the Subtenant shall attorn to, or shall enter into a direct lease on the terms of its
Sublease with, Owner for the balance of the unexpired term of the Sublease, provided, that,
notwithstanding anything to the contrary contained in the Sublease, Owner shall not be: (1) liable
for any previous act or omission of Tenant, as sublandlord under the Sublease unless such act
continues as a default under the Sublease after the Subtenant’s attornment to Owner and is the
obligation of the sublandlord under the Sublease; (2) responsible for any monies owing by Tenant to
the credit of Subtenant, except to the extent that Owner is in possession of, or has control over,
such monies; (3) subject to any offsets, claims, counterclaims, demands or defenses which Subtenant
may have against Tenant; (4) bound by any payments of rent which Subtenant might have made for more
than one (1) month in advance to Tenant; (5) bound by any covenant in the Sublease to either (A)
undertake or complete any construction of, in or about the Premises (or any part thereof), (B)
undertake or complete any construction of, in or about the space demised by such Sublease (or any
part thereof), or (C) provide any money, by way of an allowance to Subtenant or otherwise, to or
for any such construction; (6) required to account for any security or other deposit hereunder,
other any such deposit actually delivered to, or collected by, Owner; (7) bound by any amendment or
other modification of the Sublease which was entered into in violation of this Lease; or (8)
required to remove any Person occupying the space demised by the Sublease (or any part thereof)
unless Owner shall have caused the space demised by such Sublease to be occupied by a Person other
than the Subtenant;




          (iv) The fixed expiration date thereunder shall not extend beyond the Fixed Expiration
Date; and




          (v) The Subtenant shall maintain the insurance required to be maintained by the
Subtenant by Article 12.




          (b) Tenant shall not, without Owner’s consent, amend any Sublease in a manner which
would cause such Sublease (as amended) to violate the provisions of this Article.








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          (c) Tenant shall use reasonable efforts to deliver to Owner, or shall cause to be
delivered to Owner, within ten (10) Business Days after the full execution and delivery thereof
(but in any event, within twenty (20) Business Days following Owner’s request), a copy of any
executed Sublease or any material amendment thereto.




     Section 7.3. Owner and Tenant Prohibitions (a) Notwithstanding anything to the
contrary contained in this Lease, prior to the Substantial Completion of Owner’s Work, Owner shall
not assign, sell, transfer or otherwise dispose of, this Lease (or any portion thereof) or its
interest in the Premises (or any portion thereof), or enter into a Superior Lease, except to or
with an Affiliate of Owner, a Senior Interest Holder or any Agency or other Governmental Authority
in connection with any real estate, sales tax or other benefits. Any assignment, sale, transfer,
other disposition or Superior Lease in violation of this paragraph shall be null and void.



          (b) Notwithstanding anything to the contrary contained in this Lease, prior to the
Substantial Completion of Owner’s Work, Tenant shall not assign, sell, transfer or otherwise
dispose of, this Lease (or any portion thereof) or its interest in the Premises (or any portion
thereof) or enter into a Major Sublease, except to or with an Affiliate of Tenant. Any assignment,
sale, transfer, other disposition or Major Sublease in violation of this paragraph shall be null
and void.




     Section 7.4. Sublease Nondisturbance Agreements (a) Tenant, from time to time,
may request, by notice to Owner, that Owner grant non-disturbance protection to a Subtenant (other
than an Affiliate of Tenant) under a particular Sublease, which notice shall be accompanied by a
copy of the fully executed Sublease in question.



          (b) Owner, subject to and in the manner provided in this Section, shall enter
into a subordination, non-disturbance and attornment agreement substantially in the form of
Exhibit M to this Lease with the Subtenant under the Sublease described in Tenant’s
notice, provided, that:




               (i) the Sublease is in form and substance reasonably satisfactory to
Owner; provided, however, a Major Sublease which is on substantially the same terms (with a Rent
not less than the Rent set forth in this Lease), provisions and conditions as are contained in this
Lease (or which provides that it shall be upon the same terms, provisions and conditions if Owner
succeeds to Tenant’s interest) shall be deemed satisfactory to Owner;



               (ii) the annual fixed or base rent which is payable by the Subtenant under the Sublease,
including the renewal and extension terms thereof (determined without regard to any abatement,
concession, credit or offset which may be applicable) is equal to or greater than the Base Rent and
Additional Rent (determined on a per rentable square foot basis) which is payable under this Lease
(or, if less, the Subtenant shall agree to, and the Sublease provides that the Subtenant shall, pay
same at the rate of the Base Rent and Additional Rent



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payable hereunder applicable on a pro-rata basis if Owner succeeds to the interest of Tenant),
including the renewal and extension terms contained in this Lease;




               (iii) the Sublease shall demise not less than one full floor of the Building;



               (iv) the Sublease shall have a term which is not less than ten (10) years or for the
remainder of the Term, less one day, if the remaining Term is less than 10 years (it being
understood that for the criteria set forth in this clause to be met, such criteria must be met
without taking into account any renewal or extension of rights contained in such Sublease); and



               (v) the Subtenant or any guarantor of all of the Subtenant’s obligations under the Sublease
shall be a creditworthy entity with sufficient assets to satisfy its obligations under such
Sublease (and Owner shall have been provided with reasonably satisfactory proof thereof), and such
Sublease or guaranty shall not provide for the Subtenant or the guarantor to be relieved of
liability upon an assignment of the Subtenant’s interest in such Sublease.



          (c) If (i) Owner receives a notice from Tenant under this Section, and (ii) Owner reasonably
believes the foregoing criteria are satisfied then (1) Owner, within thirty (30) Business Days
after its receipt of the notice, shall prepare and deliver to Tenant an agreement (unexecuted)
between Owner and such Subtenant substantially in the form attached to this Lease as Exhibit
M, and (2) Owner, promptly after it shall receive back such agreement fully executed by the
Subtenant and payment of the reasonable actual out-of-pocket costs incurred by Owner in connection
with the review of the Sublease and the preparation and execution of the agreement, shall execute
and return the same to Tenant (for delivery to the Subtenant); provided, however, that Owner shall
have no obligations under this Section if there is then a Material Event of Default.




          (d) Any dispute under this Section shall be resolved by General Arbitration.




     Section 7.5. Sublease Profit. In connection with any Assignment or Sublease to a
Person other than an Affiliate of Tenant or a Subtenant described in Section 7.6(d)(ii), Tenant
shall pay to Owner (as set forth in this Section) an amount [*****] of the Profit. The
term “Profit” shall mean the excess, if any, of (a) the rentals actually received by Tenant under
any Sublease or the consideration actually received by Tenant under any Assignment (it being
understood that the rentals actually received under any Sublease or the consideration actually
received under any Assignment shall include sums paid for the sale or rental of Tenant’s fixtures,
leasehold improvements, equipment, furniture or other personal property, less (i) in the case of
the sale thereof, the then net unamortized or undepreciated cost thereof determined on the basis of
GAAP, and (ii) in the case of the rental thereof, the then net unamortized cost thereof, amortized
over the useful life of such item(s), and any other consideration actually received by Tenant under
any Sublease or Assignment, other than payments in the nature of reimbursements for amounts payable
to third parties such as indemnity payments) (the “Total Income”) over (b)



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the sum (the “Total Cost”) of (1) in connection with a Sublease, the Base Rent paid by Tenant to
Owner with respect to the space sublet, and the pro rata amount of all sums paid by Tenant pursuant
to Sections 3.1 and 12.2(b), each of the foregoing as prorated on a rentable square foot basis to
the portion of the Premises so sublet, (2) Tenant’s Transaction Costs (as hereinafter defined) and
(3) any Net Loss (as hereinafter defined). The term “Tenant’s Transaction Costs” shall mean and
include all actual reasonable costs and expenses incurred by Tenant consistent with the then market
requirements in effectuating the Sublease or Assignment, including, without limitation, reasonable
marketing expenses, real estate transfer taxes, sales taxes and taxes of like import imposed in
connection with the transaction, brokerage commissions, attorney’s fees and disbursements,
remodeling and redecorating costs, rent paid during any free-rent periods and takeover costs and
expenses. In computing Profits, the Total Income, as and when received by Tenant, shall first be
offset against Tenant’s Transaction Costs, as and when incurred or paid by Tenant on the basis
hereinafter provided, until Tenant has recovered Tenant’s Total Transaction Costs. The Total
Income, as and when received, less such Total Cost as may be paid or incurred by Tenant on the
basis herein provided shall constitute Profit. If in any month one or more Subleases then in
existence shall result in a net loss to Tenant with respect to such Sublease (i.e., the total of
the items included in clauses (1) and (2) of this Section with respect to any such Sublease exceeds
the Total Income received under the terms thereof) for that month, such net loss (a “Net Loss”)
shall reduce the aggregate Profit for that month under any other then existing Subleases. In no
event shall (x) Owner be required to refund or credit to Tenant any sums previously paid or
determined to be owing to Owner or (y) any Net Loss from a previous Sublease or for any other month
be applied to the Profit under any then existing Subleases or for any other month. There shall be
no duplication of offsets against Total Income. Any payment due to Owner under this Section for any
month shall be made once each year within thirty (30) days following the end of the calendar year
in which that month occurred.




     Section 7.6 Recapture. (a) Subject to the provisions of this Section, if
Tenant shall at any time or times during the Term desire to sublet any space on the Ground Floor
for retail purposes, Tenant shall give notice thereof to Owner, which notice shall include a
description of the space, the proposed sublease term and, if known, the proposed use. Owner shall
have the right, within 60 days following receipt of Tenant’s notice, to recapture that space (but
only for the proposed sublease term if that term ends prior to the last Lease Year of the Term).



          (b) If Owner exercises its option to recapture the space, then (i) this Lease
shall expire with respect to such space on the date the proposed sublease was to commence, (ii)
from and after such date, the Base Rent and all Additional Rent shall be adjusted, based upon the
proportion that the rentable area of the Premises remaining bears to the total rentable area of the
Premises, (iii) Tenant shall pay to Owner the reasonable actual costs incurred by Owner in
physically separating such space from the balance of the Premises and in complying with any
Requirements relating to such separation, (iv) Owner shall have the right to use a reasonably
equitable portion of the roof (except for signs), shaft space, mechanical space and riser space, to
the extent reasonably necessary or desirable in connection with the recaptured space, (v) any
retail use of that space shall be subject to Tenant’s consent, which shall not be unreasonably




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withheld if the use complies with the Retail Standards (as defined below), and there shall be no
roll-down security gates used (unless Tenant has allowed other occupants on the Ground Floor to use
same), (vi) Owner shall pay to Tenant its prorated share of utility costs and Real Estate Taxes for
the Building, if any and (vii) if the recapture is not for the entire Term, at the end of the
recapture term (1) the full Base Rent and Additional Rent shall be reinstated and (2) Owner or the
occupant shall restore the space in question to substantially its condition immediately prior to
the recapture, reasonable wear and tear, and damage by fire or other casualty, excepted.




          (c) If Owner fails to exercise its option (i) the Sublease shall be subject to all of the
provisions of this Article, (ii) any retail use of such space shall be subject to Owner’s consent,
which shall not be unreasonably withheld if the use complies with the Retail Standards and (iii) if
Tenant fails to execute and deliver a Sublease within 270 days after the end of said 60- day period
Tenant shall again comply with the provisions of this Section before subletting any part of the
ground floor for retail purposes.




          (d) Owner’s right of recapture and the Retail Standards shall not apply to (i) a Sublease to
an Affiliate of Tenant or (ii) a Sublease to any other Person if the Person services only the
occupants and guests of the occupants of the Building. If, however, Tenant desires that the
Subtenant described in clause (ii) be permitted to service others, Tenant shall make that request
of Owner (which request cannot be made prior to the first annual anniversary of the date the
Subtenant opened its business in the Ground Floor for the purpose of servicing only the occupants
and guests of the occupants of the Building), and Owner shall have the right to approve the
request, which approval shall not be unreasonably withheld. If Owner shall not approve the request,
then the Subtenant may not service others than the occupants and guests of the occupants of the
Building. If Owner shall approve the request, then the Retail Standards shall apply to that
Sublease and Owner shall be paid with respect to the Sublease in question any sums thereafter due
pursuant to Section 7.5.




          (e) The term “Retail Standards” shall mean that such space shall not be used for (i) a
governmental or quasi-governmental use, as offices of a foreign country, employment agency or
center, a school, medical or psychiatric offices or medical care clinic, nightclub or fraternal
organization, manufacturing, repair or warehouse center, office or other facility of any
charitable, religious, union or other not-for-profit organization, testing, training or classroom
facility, medical, chemical or biological laboratory, bar, restaurant or other establishment for
preparation or sale of any food or beverage (unless Tenant was intending to place such an
establishment in a space which is recaptured by Owner pursuant to this Section, in which event
Owner may place a similar establishment in that space), a convenience store, check cashing
facility, bank, insurance company, brokerage company, financial services company, pool hall or
skating rink, funeral parlor, massage parlor, pornography or adult book or video store, amusement
center or game room, theater or cinema auditorium, hotel or lodging facility, auction house, flea
market, rifle range, gambling facility or casino or OTB, “head shop,” pawn shop, dry cleaners,
photo processors (unless same is ancillary to an occupant’s, primary business not prohibited by
this paragraph), or video arcade or other video game retailer (unless same is




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ancillary to an occupant’s, primary business not prohibited by this paragraph), a non-name
brand outlet, warehouse, close-out, bargain or any other form of “deep discount” store, and (ii)
any business which is then generally recognized in the marketplace as a competitor of Tenant named
herein or its Affiliates (unless that business was not prohibited by this paragraph and was in the
Building prior to Tenant named herein or its Affiliates entering that business). The provisions of
this paragraph shall not apply to Owner’s use of any recaptured space at such time as Tenant has
subleased all or substantially all of the Premises to not less than three subtenants that are not
Affiliates of Tenant.




Article 8: Subordination




     Section 8.1. Subordination; Nondisturbance. This Lease shall be subject
and subordinate to each and every Mortgage and Superior Lease, provided the Senior Interest Holder
has delivered to Tenant a subordination, nondisturbance and attornment agreement, in recordable
form, in substantially the form attached to this Lease as Exhibit L (which shall provide,
among other things, for insurance proceeds to be available to repair the Building core and shell in
accordance with this Lease). Provided that the agreement has been executed and delivered to Tenant,
this clause shall be self-operative and no further instrument of subordination shall be required
from Tenant to make the interest of any Senior Interest Holder superior to the interest of Tenant
hereunder; however, Tenant shall execute and deliver promptly an instrument, in recordable form,
that Owner or any Senior Interest Holder reasonably may request to evidence and confirm such
subordination. If any Senior Interest Holder shall request reasonable modifications of this Lease
or the agreement attached to this Lease as Exhibit L that do not, other than to a de
minimis degree, affect or diminish Tenant’s rights or remedies, Tenant, at no expense to
Tenant, shall execute and deliver to Owner an agreement which provides for any such modification
(or permit such modifications to the agreement attached to this Lease as Exhibit L). A requirement
that Tenant give a duplicate notice of any default on the part of Owner to any Senior Interest
Holder shall not be deemed to increase the obligations of Tenant under this Lease or that the cure
periods of the Senior Interest Holder extend for a reasonable period beyond Owner’s cure periods
under this Lease shall not be deemed to affect or diminish Tenant’s rights or remedies.



     Section 8.2. Attornment. If at any time prior to the Expiration of the Term, any
Senior Interest Holder comes into possession of the Premises, Tenant shall attorn to the Senior
Interest Holder acquiring the interest of Owner upon the then executory terms and conditions of
this Lease, subject to the provisions of this Article, for the remainder of the Term, provided that
such Senior Interest Holder shall then be entitled to possession of the Premises and provided
further that such Senior Interest Holder, or anyone claiming by, through or under same, shall not
be (and any agreement executed and delivered to Tenant pursuant to this Article shall so provide):



               (i) (other than as otherwise expressly provided in an agreement executed and delivered to
Tenant pursuant to this Article) liable for any act or omission of any



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prior Owner (including, without limitation, the then defaulting Owner) unless such act
continues as a default hereunder after Tenant’s attornment, but in no event shall there be
liability to complete Owner’s Work or Owner’s Addition Work (as defined in Article 33), although
Tenant shall have Tenant’s other rights and remedies with respect to the failure of Owner to
complete Owner’s Work or Owner’s Addition Work; or




               (ii) subject to any defense or offsets which Tenant may have against
any prior Owner (including, without limitation, the then defaulting Owner) (except the Tenant
Allowance and as otherwise expressly set forth in this Lease); or



               (iii) bound by any payment of Rent which Tenant may have made to
any prior Owner (including, without limitation, the then defaulting Owner) more than thirty (30)
days in advance of the date upon which such payment was due (except as expressly set forth in
Article 3 or as agreed to by the Senior Interest Holder or Successor Owner in writing); or



               (iv) bound by any amendment of this Lease made without its consent or Section 32.2.



          (b) The Senior Interest Holder or Person shall accept Tenant’s attornment and shall recognize
Tenant as Tenant under this Lease, subject to the terms hereinabove set forth. The Senior Interest
Holder or Person, subject to the limitations set forth in this Section, shall be deemed to assume
performance of and compliance with, all of the terms, covenants and conditions of this Lease from
and after the date of the attornment until such time as the interest of the Senior Interest Holder
or Person shall be transferred to a new Owner.




          (c) The provisions of this Section shall inure to the benefit of, and bind, each and every
Senior Interest Holder, shall be self-operative, and no further instrument shall be required to
give effect to said provisions. Tenant, however, within thirty (30) days after demand, shall
execute, from time to time, instruments, in recordable form, in confirmation of the foregoing
provisions of this Section, reasonably satisfactory to all of the parties thereto, acknowledging
such attornment, at no cost or expense to Tenant.




     Section 8.3. Senior Interest Holder’s Cure Right. Except as may otherwise be
expressly provided in an agreement executed and delivered to Tenant pursuant to this Article, if
any act or omission of Owner would give Tenant the right, immediately or after lapse of a period of
time, to terminate this Lease or to claim a partial or total eviction, Tenant shall not exercise
such right (a) until it has given written notice of such act or omission to Owner and each Senior
Interest Holder whose name and address shall previously have been furnished to Tenant, and (b)
until thirty (30) days following the end of the period to which Owner would be entitled under this
Lease or otherwise, after similar notice, to effect the remedy of such act or omission shall have
elapsed following the giving of such notice and following the time when such Senior Interest Holder
shall have become entitled under such Senior Interest to remedy the same, provided such



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Senior Interest Holder shall with due diligence give Tenant notice of intention to, and
commence and continue to, remedy such act or omission.




Article 9: Repairs and Maintenance




     Section 9.1. Tenant’s Obligations. From and after the Initial Premises
Substantial Completion Date with respect to the Initial Premises and from and after the Substantial
Completion Date with respect to the entirety of each of the three portions of the Balance Space,
except to the extent Owner is required to do so pursuant to the express provisions of this Lease,
Tenant shall (a) take good care of the Premises, (b) keep and maintain the Premises in good and
safe order and condition, (c) keep clean and free from dirt, snow, ice, rubbish and illegal
obstructions, the sidewalks, grounds, curbs or any other space, in front of the Premises, and (d)
subject to the provisions of this Article, make all repairs therein and thereon, interior and
exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen,
necessary to keep the Premises and such other areas in good and safe order and condition (subject
to normal wear and tear) in a manner consistent with comparable properties in Manhattan (but in any
event, at least equal in quality and class to the original work), however the necessity or
desirability therefor may occur (except if and to the extent caused by the negligence or
intentionally wrongful acts or omissions of Owner or any Owner Party and not covered under the
insurance carried by Tenant, or which should have been carried by Tenant pursuant to this Lease).
Tenant shall neither commit nor suffer, and shall use all reasonable precaution to prevent, waste,
damage or injury to the Premises. All repairs shall be made in compliance with, and subject to any
limitations of, any applicable Requirements. As used in this Article, the term “repairs” shall
include all necessary replacements, removals, alterations, and additions (other than those which
are Owner’s responsibility pursuant to the express provisions of this Lease).



     Section 9.2. Owner’s Responsibility. Notwithstanding the foregoing, Owner
shall, at Owner’s expense (a) repair (in accordance with all applicable Requirements) any latent,
construction or design defects (except for normal maintenance and wear and tear) in Owner’s Work
(including, without limitation, the failure of any Base Building System to perform to the
specifications set forth in Owner’s Plans, including, without limitation, the specifications
referred to in Exhibit D to this Lease, unless such failure is caused by the acts or
omissions of Tenant or any Tenant Party) which develop or are discovered before the end of the
first Lease Year after the Initial Premises Substantial Completion Date with respect to the Initial
Premises and the end of the first Lease Year after the substantial completion in its entirety of
each portion of the Balance Space with respect to that portion (and, in accordance with, and
subject to, the other provisions of this Lease, Tenant shall, at its expense, make any and all
repairs of any nature whatsoever as provided herein thereafter; except that, with respect to latent
defects only, Owner shall pay for the physical repair of such latent defect, but not any
consequential damages related thereto discovered after such date to the extent the cost of
repairing any such defect exceeds  [*****] to adjustment on the first day of each May during the Term by the
CPI
Adjustment) and (b) replace any structural element of the Building, including, without limitation,
the curtain wall, concrete frame, steel reinforcement, footings, foundations, columns, beams,



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floors, core walls, roof, and sidewalks (if the entirety of any sidewalk on any side of the
Building must be replaced), or any part of a Base Building System, which is then customarily
replaced rather than repaired in accordance with sound practices; provided, however, if and to the
extent Tenant or any Tenant Party shall (i) cause any warranty or guaranty for or associated with a
particular item of Owner’s Work which Tenant has received a copy of to be terminated (if the
warranty would otherwise have been in effect and would have covered the cost of the replacement),
(ii) cause the need for such replacement due to Tenant’s negligent or willful acts, or (iii) cause
a replacement prior to the end of the normal useful life of any part of the Base Building System
(as such useful life is determined by GAAP) resulting from Tenant’s using any part of the Base
Building System during non-Business Hours or on non-Business Days (but for the purposes of this
Section only, Business Hours shall also include Saturdays from 8:00 a.m. to 1:00 p.m.), Tenant
shall reimburse Owner for the reasonable cost thereof, except Tenant shall only be responsible for
a portion of the reasonable cost of any replacement of a part of the Base Building System prior to
the end of its normal useful life resulting from Tenant’s using such Base Building System during
non-Business Hours or on non-Business Days equal to (1) that cost multiplied by the percentage
reduction in the normal useful life of the item being replaced caused by such use, multiplied by a
fraction, the numerator which is the number of days from the date the replacement is completed to
and including the Fixed Expiration Date and the denominator of which is the total number of days in
the Term (and if the Term is thereafter extended, such payment shall be readjusted at the
commencement of the extended term). Tenant shall during the Term maintain at the Building a log of
Tenant’s use of any part of the Base Building System during non-Business Hours or on non-Business
Days, showing each such use and the length of such use, which log shall be available to Owner for
inspection and copying. Tenant shall promptly notify Owner of any need for any work required under
this Section. Owner or its agents or designees shall have the right upon not less than forty-eight
(48) hours’ prior notice (except in the event of an emergency in which case no prior notice shall
be necessary, except for such notice that would be reasonable under the circumstances) to Tenant or
any authorized employee of Tenant at the Premises to enter the Premises at reasonable times during
or (at Owner’s option) after Business Hours, for performing the work. A representative of Tenant
shall be permitted to accompany Owner or its agents or designees during the performance of the
work. Owner shall be allowed to take all material into and upon the Premises (and store same within
the Premises) if reasonably required for the performance of the work required under this Section,
without the same constituting an eviction of Tenant in whole or in part, and the Rent shall in no
event abate as the result of, or while Owner is performing, the work, by reason of loss or
interruption of the business of Tenant. Owner agrees that with respect to any entry into the
Premises that it may make under the provisions of this Lease and in performing work under this
Section, Owner shall use commercially reasonable efforts (without the use of overtime or premium
labor, unless Tenant agrees to pay for same) to minimize interference with the normal conduct of
business therein. Notwithstanding the foregoing, if (A) Owner is performing any work in the
Premises pursuant to this Section, (B) such work was not required as the result of the matters
referred to in clause (ii) or clause (iii) of this Section, and (C) the performance of the work
requires Tenant to (and Tenant does) vacate
in excess of 50% of any floor of the Premises (because
Tenant is not able to conduct Tenant’s normal business in that area as a result of the








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work), for more than ten (10) consecutive Business Days (or more than 15 Business Days in any
period of 30 Business Days), then the Base Rent shall abate proportionately according to the space
which is affected by the work and which is required to be vacated as of the commencement of that
ten (10) Business Day period (or that 15 Business Day period) through the day preceding the day
which is the earliest of the date the work is substantially completed, the date Tenant is able to
conduct Tenant’s normal business in that area even though the work is not substantially completed
or the date Tenant conducts normal business in any part of that area. The abatement set forth in
the preceding sentence shall be Tenant’s sole remedy in connection with the requirement that Tenant
vacate any such area.




     Section 9.3. Maintenance Contracts. Tenant, at its expense, shall maintain
customarily maintained maintenance contracts covering the Building, the Base Building Equipment,
the Base Building System, Owner’s Work, Tenant’s Work and Tenant’s Property which would be
customarily covered by prudent owners of comparable buildings in Manhattan. The maintenance
contract and maintenance contractor for any Base Building System or Base Building Equipment shall
be reasonably acceptable to Owner.



     Section 9.4. Removal of Base Building Equipment. Tenant shall not, without the
prior consent of Owner, which consent shall not be unreasonably withheld, remove or dispose of any
Base Building Equipment unless such Base Building Equipment (a) is promptly replaced by Base
Building Equipment of at least equal utility and quality, or (b) is removed for repairs, cleaning
or other servicing, provided Tenant reinstalls such Base Building Equipment on or in the Premises
with reasonable diligence, except, however, that Tenant shall not be required to replace any Base
Building Equipment which has become obsolete or that performed a function that has become obsolete,
unnecessary or undesirable in connection with the operation of the Premises and Tenant shall not be
required to replace any Base Building Equipment which forms a part of Owner’s Work the
non-replacement of which has been approved in advance in writing by Owner. Tenant shall not remove
or dispose of any Base Building Equipment (other than Tenant’s Property) unless and until Owner
shall have received prior written notice in reasonable detail describing any such Base Building
Equipment. If Owner disputes Tenant’s judgment pursuant to this Section, the dispute shall be
submitted to Construction Arbitration. Tenant shall repair all damage to the Building caused by its
removal of Base Building Equipment and Tenant’s Property and shall reimburse Owner for all
reasonable costs and expenses incurred by Owner in repairing such damage as a result of Tenant’s
failure to make such repairs.



     Section 9.5. Disputes. Any dispute under this Article shall be
resolved by Construction Arbitration.



Article 10: Services and Utilities




     Section 10.1. Tenant’s Responsibility. Except as otherwise expressly set
forth in this Lease, Owner shall not be required to supply to Tenant or the Premises any
electricity, water, security, heating, ventilating, air conditioning, cleaning or other services or
utilities and shall not



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have any duty or obligation to make any alteration, change, improvement, replacement or repair to
the Building, and (except as otherwise expressly set forth in this Lease) Tenant assumes the full
and sole responsibility for the condition, operation, security, alteration, change, improvement,
repair, maintenance and management of the Premises, the Base Building Systems and the Base Building
Equipment. Owner shall, from time to time, at no expense to Owner, within the ten (10) Business
Days following Tenant’s request, execute, acknowledge and/or deliver to Tenant any document or
instrument reasonably requested by Tenant to obtain additional electric service to the Building and
to change electric service providers provided that (a) the execution, acknowledgment or delivery of
any such document or instrument shall not be prohibited by or otherwise in violation of any
Requirement, (b) neither Owner nor any Owner Party would be, by reason thereof, subject to any
actual or threatened sanctions or penalties or liability, and (c) such document or instrument shall
be otherwise in form and substance, and the service provider shall be, reasonably satisfactory to
Owner. Subject to the provisions of this Lease, Tenant shall have the right to distribute within
the Premises electric service for the Premises, as Tenant shall determine. Tenant shall indemnify,
defend and hold harmless Owner and all Owner Parties from and against any cost, expense or
liability of any nature whatsoever which shall arise by reason of Owner’s execution of any such
documents or instruments, except to the extent that Owner makes a knowingly false or misleading
statement therein. Tenant shall not clean nor require, permit, suffer nor allow any window in the
Building to be cleaned from the outside in violation of Section 202 of the Labor Law or of the
rules of the Industrial Board or any other Governmental Authority.




     Section 10.2. Fire Stairs. If permitted by all applicable Requirements, Tenant
shall have the right to use the fire stairs connecting the Premises for access to all of the floors
included in the Premises serviced by those stairs.



     Section 10.3. Operation of the Building. Subject to the provisions of this Lease,
Tenant shall be responsible for, and shall control, the operation of and security for the (a)
Initial Premises following the Initial Premises Substantial Completion Date and (b) the entirety of
each of the three portions of the Balance Space following the Substantial Completion Date with
respect to the entirety of each such portion (but nothing contained herein shall be deemed to
impose on Owner any obligation or liability which is not expressly set forth in this Lease).



Article 11: Requirements




     Section 11.1.
Tenant’s Responsibility and Right to Contest. (a) Subject to the
provisions of this Lease, in connection with any Tenant’s Work, maintenance, management, use and
operation of the Premises and Tenant’s performance of its obligations hereunder or otherwise,
Tenant shall, at its expense (as if it were part of Tenant’s Work) promptly comply with (or
promptly cause compliance with) all Requirements (other than any Owner Requirement), without regard
to the nature of the work required to be done, whether extraordinary or ordinary, and whether
requiring the removal of any encroachment, or affecting the maintenance, use or occupancy of the
Premises, or involving or requiring any structural



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changes or additions in or to the Premises, and regardless of whether such changes or additions are
required by reason of any particular use to which the Premises, or any part thereof, may be put.
Tenant shall pay, within twenty (20) Business Days after demand therefor, all the costs, expenses,
fines, penalties and damages that may be imposed upon Owner by reason of or arising out of Tenant’s
failure to comply with the provisions of this Section.




          (b) Upon not less than ten (10) Business Days notice to Owner, if there is then no
Material Event of Default, Tenant shall have the right to contest the validity of any Requirement
or the application thereof (other than Owner Requirements). During such contest, compliance with
any such contested Requirement may be deferred by Tenant, provided that: (i) Owner shall not be
subject to criminal penalty or to prosecution for a crime, or any criminal fine or charge, or any
other expense, obligation or liability, nor shall the Land or Building or any part thereof be
subject to being condemned, vacated, lost or forfeited by reason of noncompliance or otherwise by
reason of such contest; (ii) such noncompliance or contest shall not constitute or result in any
breach of Owner’s obligations under any Mortgage or Superior Lease as to which Tenant has been
given written notice and copies of the relevant documentation, or if any Senior Interest Holder
shall condition such noncompliance or contest upon the taking of action or furnishing of security
by Owner and such actions or security are then customary practices among Institutional Lenders,
such action shall be taken and such security shall be furnished at the expense of Tenant; and (iii)
neither such noncompliance or contest nor the continuation thereof shall adversely affect Owner’s
or Tenant’s ability to obtain any permit required in connection with Owner’s Work or Tenant’s
Initial Work. Any such proceeding instituted by Tenant shall be commenced promptly after Tenant
makes its election to contest such Requirement and shall be prosecuted with diligence to final
adjudication, settlement, compliance or other mutually (unless same has no adverse effect on Owner
or the Premises) acceptable disposition of the Requirement so contested acceptable to Tenant.




          Section 11.2 Owner’s Responsibility and Right to Contest. Owner shall be
responsible, at its expense, for compliance with Owner Requirements, except that with respect to
any Owner Requirements described in clause (b) of the definition of Owner’s Requirements set forth
in Exhibit A to this Lease, Tenant shall, within twenty (20) Business Days following
Owner’s request, reimburse to Owner a portion of the reasonable cost of complying with that
Requirement equal to those costs multiplied by a fraction, the numerator of which is the number of
days from the day compliance is completed to and including the Fixed Expiration Date, and the
denominator of which is the number of days in the useful life of the capital item in question (as
such useful life is determined by GAAP). If Tenant thereafter exercises its right to extend the
Term, Tenant’s payment shall be adjusted at the commencement of the extended term.




          (b) Owner shall have the right to contest the validity of any Owner Requirement or the
application or the enforcement thereof provided that the deferment of compliance with any such
contested Owner Requirement shall not subject Tenant to criminal penalty or prosecution for a crime
or any criminal fine or charge or adversely affect the performance of any Tenant’s Work or Tenant’s
use of the Premises for the normal conduct of its business in the Premises







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except by a de minimis amount. During such contest, compliance with any such contested
Owner Requirement may be deferred by Owner on the condition that, before instituting any such
proceeding, if enforcement of such Owner Requirement is not stayed by such contest, Owner shall
furnish the applicable Governmental Authorities with any required surety company bond, cash
deposit, letter of credit or other security, securing compliance with the contested Owner
Requirement and payment of all interest, penalties, fines, civil liabilities, fees and expenses in
connection therewith. Any such proceeding instituted by Owner shall be commenced promptly after
Owner makes its election to contest such Owner Requirement and shall be prosecuted with diligence
to final adjudication, settlement, compliance or other mutually (unless same has no adverse effect
on Tenant) acceptable disposition of the Owner Requirement so contested acceptable to Owner.




     Section 11.3. Disputes. Any dispute under this Article shall be resolved
by Construction Arbitration.



Article 12: Insurance




     Section 12.1. Tenant’s Responsibility. Tenant, at its expense, shall
carry the following insurance during the Term:



          (a) (i) Insurance on Tenant’s Work under an “All Risk” policy or its
equivalent with replacement cost valuation and a stipulated (agreed) value endorsement in an amount
equal to not less than one hundred percent (100%) of the full replacement cost of Tenant’s Work
(i.e., the current cost, including all hard and soft costs, of rebuilding Tenant’s Work, without
regard to depreciation) and shall include coverage for (1) any equipment and property utilized
during the course of construction, (2) damage due to water and sprinkler leakage, collapse and
flood (to the extent such coverage can be obtained at commercially reasonable rates in the City of
New York) and (3) if applicable, boiler and machinery coverage (which shall be written with limits
of coverage of not less than the then replacement value per occurrence). In addition, Tenant shall
insure Tenant’s Property and all property of others within Tenant’s care, custody and control.




               (ii) All Subleases must require the Subtenant to carry property
insurance on all of its equipment and property for the full replacement value of said equipment and
property, with an endorsement to their property insurance policies pursuant to which the insurance
company waives its subrogation rights as to Tenant, the Tenant Parties, Owner and the Owner
Parties. Tenant shall deliver to Owner evidence of insurance supplied by the Subtenants within ten
(10) Business Days after the effective date of a Sublease. Each Sublease shall provide that, to the
extent permitted by applicable Requirements, the Subtenant shall have no claims of any nature
whatsoever against Owner or any Owner Party for any damage to its equipment or property from any
cause covered by insurance, including the negligence of Owner or any Owner Party, and that the
Subtenant’s insurance shall be its sole recourse with respect to any damage thereto.



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          (b) (i) Commercial General Liability Insurance, with a contractual liability endorsement which
shall specifically cover the indemnity obligations of Tenant set forth in this Lease, protecting
against liability for personal injury, including bodily injury, death and property damage, written
on an occurrence basis with respect to the Premises and all operations related thereto, whether
conducted on or off the Premises. Such insurance shall be written for
$1,000,000 per occurrence and general aggregate; and an umbrella liability insurance with limits of
liability of not less than $100,000,000 per occurrence and general aggregate.




               (ii) All Subleases must require the Subtenant to carry liability
insurance naming Tenant and Owner, as additional insureds, with limits reasonably prudent under the
circumstances. Tenant shall deliver to Owner evidence of insurance supplied by the Subtenants
within ten (10) Business Days after the effective date of a Sublease. Each Sublease shall provide
that, to the extent permitted by applicable Requirements, the Subtenant shall have no claims of any
nature whatsoever against Owner or any Owner Party for any damage to its equipment or property from
any cause covered by insurance, including the negligence of Owner or any Owner Party, and that the
Subtenant’s insurance shall be its sole recourse with respect to any damage thereto.



          (c) Statutory Workers’ Compensation Insurance Employers Liability and New York State
Disability Benefits Insurance in statutorily required amounts covering Tenant with respect to all
persons employed by Tenant at the Premises.




          (d) Promptly after Owner’s reasonable detailed request, such other insurance in such amounts
against such other insurable hazards, as from time to time are commonly insured against by tenants
in the case of buildings containing business operations of a size, nature and character and in a
location similar to the size, nature, character and location of the business operations being
conducted by Tenant at the Building. In the event of any dispute between Owner and Tenant with
respect to such other insurance (including the amounts thereof), such dispute shall be resolved by
General Arbitration.




     Section 12.2.
Owner’s Responsibility; Tenant’s Reimbursement. (a) Owner shall
carry insurance coverage on the core and shell of the Building, all Base Building Equipment, all
Base Building Systems and Owner’s Work under an “All Risk” policy or its equivalent with
replacement cost valuation and a stipulated (agreed) value endorsement in an amount equal to not
less than one hundred percent (100%) of the full replacement cost of Owner’s Work (i.e., the
current cost of rebuilding Owner’s Work, without regard to depreciation, which amount shall be
determined exclusive of foundations and footings) and shall include coverage for (i) any equipment
and property utilized during the course of construction, (ii) damage due to water and sprinkler
leakage, collapse and flood (to the extent such coverage can be obtained at commercially reasonable
rates in the City of New York), (iii) if applicable, boiler and machinery coverage, which shall be
written with limits of coverage of not less than the then replacement value per occurrence, and
(iv) rental insurance, in customary form, insuring the full payment of



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Rent under this Lease for a period of not less than twelve (12) months, which rental insurance
shall provide for monthly payments of any loss to Owner.




          (b) Tenant shall reimburse to Owner, or at Owner’s option, pay directly,
from time to time during the Term, any increase in the premiums and other costs for the insurance
carried by Owner under this Section (prorated for any partial year during the Term) over the
premiums and other costs for such insurance during the 12-month period commencing on the earlier of
the date which is three months following Substantial Completion of Owner’s Work or the date Tenant
first occupies all or substantially all of the Premises for the normal conduct of Tenant’s
business, or caused by Tenant’s Work or any other act or omission of Tenant or any Tenant Party,
within twenty (20) Business Days following Tenant’s receipt from Owner of a copy of the invoices of
Owner’s insurer showing the premiums and other costs for the base period and the increased
insurance premiums and other costs.




     Section 12.3. Limit Increases. The limits of insurance required pursuant to this
Lease shall be subject to review by Owner (but in any event not more frequently than every five (5)
years) and, to the extent that the amount of such insurance is less than the amount normally and
customarily carried by a prudent tenant of similar (as to size and quality and use) buildings and
located in the vicinity of the Building, Tenant shall carry or cause to be carried such additional
amounts as is then normal and customary. In no event shall the provisions of this Section relieve
Tenant of its obligation to carry All Risk insurance as provided in this Lease. In no event,
however, shall Tenant be required to carry All Risk insurance in an amount which is greater than
replacement value. Any dispute as to the increased limits of insurance under this Section shall be
resolved by General Arbitration, but Tenant shall maintain insurance for the disputed policy limit
during the pendency of any such arbitration and if Tenant prevails in such arbitration, Owner
shall, within ten (10) Business Days after the conclusion of such proceeding, reimburse Tenant for
the actual out-of-pocket net increased costs incurred by Tenant in maintaining such disputed
insurance coverage.



     Section 12.4.
General Requirements. (a) Owner (or, at Owner’s option, a Senior
Interest Holder) shall be the loss payee, and shall adjust losses under, all policies of
insurance carried by Owner. Tenant shall be the loss payee, and shall adjust losses under, all
policies of insurance carried by Tenant.



          (b) Owner and Tenant shall reasonably cooperate in connection with the collection of any
insurance moneys that may be due in the event of loss and shall execute and deliver such proofs of
loss and other instruments which may be reasonably required in that connection.




          (c) All insurance required to be maintained by Owner or Tenant pursuant to any provision of
this Lease shall be in such form and shall be issued by such insurance companies licensed or
authorized to do business in the State of New York as are reasonably acceptable to the other party.
Any insurance company having a rating of “A-” or better and a





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financial class of “VII” or better (or the then equivalent of such ratings) as rated by A.M. Best’s
Insurance Guide (or any successor publication of comparable standing) shall be deemed acceptable to
Owner and Tenant. All policies referred to in this Lease shall be obtained for periods of not less
than one (1) year.




          (d) On or prior to the Commencement Date, Owner and Tenant shall deliver to the other proof of
payment of the premium in full in advance for a period of one (1) year (or the then remaining term
of the applicable insurance). A certified copy, signed by an authorized representative of the
insurer, of each policy maintained by Owner or Tenant shall be delivered to all persons required to
be insured thereby or named therein as provided hereunder, promptly after its receipt by Owner or
Tenant from the insurance company or companies, except that if any insurance carried by Owner or
Tenant is effected by one or more blanket policies, then, with respect to such insurance, certified
abstracted policies relating to the Real Property shall be delivered to the insured parties.
Certified copies of new or renewal policies replacing any policies expiring during the Term shall
be delivered within sixty (60) days following the date same are received; provided, however, that
evidence of renewal policies, in binder form, shall be delivered to the insured parties prior to
the expiration dates of any such expiring policies, together with proof of payment of the premiums
in full in advance for a period of one (1) year or as soon thereafter as a bill is rendered by the
applicable insurance company (unless such premiums are then being deposited by Tenant with Owner or
a Senior Interest Holder in accordance with this Lease). Owner and Tenant may pay the premiums for
any of the insurance required hereunder to the carrier in installments in accordance with the
provisions of the applicable policies, provided that Owner and Tenant pay all such installments in
full not later than thirty (30) days prior to the respective due dates for such installments and
provide proof to the insured parties or Tenant, as the case may be, of payment of such installments
by such dates.




          (e) Tenant shall not carry separate property insurance, concurrent in form, or contributing in
the event of loss, with that required by this Lease unless Owner and all Senior Interest Holders
are named as insured parties or the Senior Interest Holders are named under a standard New York
form of mortgagee endorsement or its equivalent, with loss payable as provided in this Lease, as
its interest may appear. Tenant shall promptly notify the insured parties of the carrying of such
separate insurance and shall cause certified copies of such policies or certified copies of
abstracts of such policies, as the case may be, together with proof of payment of all premiums (or
required installment payments on account of such premiums) to be delivered to the insured parties
in accordance with the provisions of this Article.




          (f) Tenant shall not violate or permit to be violated any of the conditions, provisions or
requirements of any insurance policy required to be maintained by Owner or Tenant hereunder and
Tenant shall perform and satisfy or cause to be performed and satisfied the conditions, provisions
and requirements of the policies so that, at all times, companies reasonably acceptable to Owner
shall be providing the insurance required by this Article. Notwithstanding the foregoing, Tenant
shall be entitled, at its expense, to contest the conditions, provisions and requirements of any
insurance company providing the insurance carried, or




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caused to be carried, by Tenant hereunder, provided that such contest shall not constitute a breach
of any such policies and that, at all times during the Term, the insurance required by this Article
shall be in full force and effect in accordance with the provisions of this Article despite
Tenant’s contesting of any such conditions, provisions or requirements and, in such event, Tenant
shall not be in default hereunder by reason of its contest of such conditions, provisions or
requirements.




          (g) Each policy of insurance required to be carried pursuant to the
provisions of this Lease shall contain (i) a provision that no act or omission or negligence or
intentionally wrongful acts or omissions of any Person shall affect or limit the obligation of the
insurance company to pay the amount otherwise payable under the policy, (ii) an agreement by the
insurer that such policy shall not be canceled, modified or denied renewal without at least thirty
(30) days prior written notice to all insured or additional insured parties, and (iii) a waiver of
subrogation by the insurer of any right to recover the amount of any loss resulting from the
negligence of Owner or any Owner Party or Tenant or any Tenant Party, as the case may be.




          (h) (i) Tenant hereby releases Owner (and the Senior Interest Holders) with
respect to any claim (including a claim for negligence) which Tenant might have against Owner (or
the Senior Interest Holders) for any loss, damage or destruction occurring during the Term, if, and
to the extent, such loss, damage or destruction is, or under this Article is required to be,
insured under a policy or policies maintained, or required to be maintained, by Tenant containing a
waiver of subrogation. Tenant is not required to maintain any insurance under this Lease except as
required by this Lease.




               (ii) Owner hereby releases Tenant with respect to any claim (including a claim for
negligence) which Owner might have against Tenant for any loss, damage or destruction occurring
during the Term if, and to the extent such loss, damage or destruction is, or under this Article is
required to be, insured under a policy or policies maintained, or required to be maintained, by
Owner, containing a waiver of subrogation. Owner is not required to maintain any insurance under
this Lease except as required by this Lease.



          (i) All property and liability insurance policies required to be maintained by
Tenant under this Article shall, unless expressly provided otherwise, be carried in the name of
Tenant and with respect to liability insurance only shall name Owner and each Senior Interest
Holder or other Owner Party designated by notice of Owner to Tenant as additional insureds thereon
as their respective interests may appear. Each Senior Interest Holder so named as an additional
insured shall be named under a standard New York form of mortgagee endorsement or its equivalent,
if and to the extent applicable.




          (j) The insurance required to be carried by Owner and Tenant pursuant to
the provisions of this Lease may, at the option of Owner or Tenant, as the case may be, be effected
by blanket or umbrella policies issued to Owner or any Affiliate of Owner, or Tenant or any
Affiliate of Tenant, as the case may be, provided such policies otherwise comply with the








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provisions of this Lease and allocate to the Premises the specified coverage, including, without
limitation, the specified coverage for all insureds required to be named as insured hereunder,
without possibility of reduction or co-insurance by reason of, or damage to, any other premises
named therein, and if the insurance required by this Lease shall be effected by any such blanket or
umbrella policies, Tenant shall furnish to Owner and the insured parties, or Owner shall furnish to
Tenant, certified copies of such policies as provided in this Article, together with schedules
annexed thereto, setting forth the amount of insurance applicable to the Real Property and proof of
payment of the premiums in full in advance for a period of one (1) year for all required coverages
from time to time.




          (k) Any deductible applicable to any insurance maintained by Owner or Tenant under
this Lease shall be commercially reasonable. Each party shall be responsible for its own
deductibles and self-insurance retentions.




     Section 12.5 Disputes. Any dispute under this Article shall be resolved by
General Arbitration.



Article 13: Damage by Fire or other Casualty




     Section 13.1. Notice. Tenant shall notify Owner promptly after Tenant
obtains knowledge that the Building has been damaged by fire or other casualty.



     Section 13.2.
Repairs. (a) Subject to the provisions of this Lease, if the
Building is damaged by fire or other casualty, Owner shall first repair the core and shell of the
Building and Owner’s Work, and Tenant shall then repair Tenant’s Work and Tenant’s Property,
subject to and in accordance with the provisions of this Lease to as nearly as is practicable the
condition thereof as existed immediately prior to the fire or other casualty, subject to such
changes as shall be necessitated by Requirements and changed circumstances, whether or not (i) such
damage has been insured or was insurable, (ii) Owner or Tenant is entitled to receive any insurance
proceeds, or (iii) the insurance proceeds are sufficient to pay in full the cost of the repair.



          (b) Subject to Unavoidable Delays and (with respect to Tenant’s repairs) delays attributable
to Owner’s performance of its repair work and Owner’s review and approval (to the extent required)
of Tenant’s Plans, architects, contractors and subcontractors, Owner and Tenant shall commence the
repairs for which they are responsible as soon as reasonably practicable (or on such earlier date
as such work may be required to be commenced by reason of an emergency) and, at all times from and
after such commencement, shall diligently prosecute such repairs to completion, in accordance with
the applicable provisions of this Lease.




          (c) Any insurance proceeds remaining after the completion of a repair in accordance with
this Article shall be retained by Owner or Tenant, as the case may be.





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     Section 13.3. Effect on Lease. (a) Except as set forth in this Section, this
Lease shall not terminate, nor shall this Lease be forfeited or affected in any manner, nor shall
there be a reduction or abatement of Rent by reason of any damage to, or total, substantial or
partial destruction of, the Building, or by reason of the untenantability of the Building or any
part thereof. If more than 50% in the aggregate of the Building core and shell and Base Building
Systems is damaged by fire or other casualty and as a result Tenant cannot, in Tenant’s reasonable
judgment, conduct its business in the Premises and does not conduct its business in the Premises,
then Rent shall abate for the entire Premises for the period from the date of the casualty until
the date which is the earlier of 120 days after substantial completion of the repairs to the
Premises required to be performed by Owner or the date Tenant occupies the Premises, or any part
thereof (in which event Rent shall be abated in proportion to the portion of the Premises which
Tenant shall not occupy), for the normal conduct of Tenant’s business. In all other cases of damage
from fire or other casualty to the Building core and shell or Base Building Systems, Rent shall
abate in proportion to the portion of the Premises which is untenantable as the result of the fire
or other casualty and shall commence upon the date which is the earlier of 120 days after
substantial completion of the repairs to that portion required to be performed by Owner or the date
Tenant occupies that portion for the normal conduct of Tenant’s business. If the Building core and
shell and Base Building Systems are damaged by fire or other casualty (i) within the last two (2)
years of the Term, and the estimate to repair same prepared by Owner’s Architect or general
contractor exceeds fifty percent (50%) of the replacement cost thereof or (ii) at any time and (x)
more than 50% in the aggregate of the Building core and shell and Base Building Systems is damaged
and (y) the estimated time to substantially complete the repair prepared by Owner’s Architect or
general contractor exceeds 30 months from the date of the casualty (any dispute with respect to
either of those estimates shall be resolved by General Arbitration), or (iii) if Tenant waives
Tenant’s right under Section 33.1, at any time prior to the date Tenant has exercised any of
Tenant’s rights under Section 33.2 and (x) more than 75% in the aggregate of the Building core and
shell and Base Building Systems is damaged, (y) the Building cannot be restored to substantially
the same size as immediately prior to the fire or other casualty solely as the result of the
upzoning proposed as of the date of this Lease not being enacted and (z) Owner shall not then be
able to transfer Development Rights from any property then owned or controlled by Owner within the
Square Block in order to permit the Building to be restored to substantially the same size as
immediately prior to the fire or other casualty (which Owner shall do, without expense to Tenant,
if Owner is able to do so), Owner and, if there is then no Material Event of Default, Tenant, shall
each have the option of terminating this Lease by notice given to the other within twenty (20)
Business Days after delivery of the estimate referred to in clause (i) or clause (ii), as the case
may be, by Owner to Tenant (or the final determination of the estimate by General Arbitration), or
twenty (20) Business Days after the fire or other casualty with respect to clause (iii), or twenty
(20) Business Days after the curing of such Material Event of Default, as the case may be, in which
event, this Lease shall terminate on the date selected by Owner or Tenant, as the case may be,
which shall not be later than 30 days after the giving of the notice. Notwithstanding the
foregoing, Owner shall not have the right to terminate this Lease with respect to a casualty
referred to in clause (i) if within fifteen (15) Business Days after receipt of Owner’s termination
notice, Tenant delivers to Owner notice of Tenant’s exercise of its right to



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extend the Term pursuant to this Lease. If Owner or Tenant elects to terminate this Lease in
accordance with this Section (1) neither Owner nor Tenant shall be under any duty to make repairs
under this Article (except if and to the extent required by any Requirements or an emergency), (2)
the Rent shall be apportioned as of the date this Lease terminates and (3) Tenant shall pay to
Owner a sum determined by multiplying the aggregate of Tenant’s Allowance and the allowances
provided to Tenant pursuant to Exhibit G attached to this Lease by a fraction, the
numerator of which is the number of days from the date of the termination to the Fixed Expiration
Date (as if Tenant had then exercised Tenant’s extension right pursuant to Article 34) and the
denominator of which is the number of days in the Term (as if Tenant had then exercised Tenant’s
extension right pursuant to Article 34).




          (b) Tenant waives all rights under any present or future law or statute to quit
or surrender the Premises or any part thereof by reason of any fire or other casualty. It is the
intention of Owner and Tenant that the provisions of this Article is an “express agreement to the
contrary” as provided in Section 227 of the Real Property Law of the State of New York.




Article 14: Taking




     Section 14.1. Taking of All or Substantially All of the Premises. (a) If there is
a Taking of all or Substantially All of the Premises, this Lease shall terminate on the Taking Date
and the Rent shall be apportioned and paid to the Taking Date.



          (b) If there is a Taking of all or Substantially All of the Premises, the entire
award paid in connection with such Taking shall be apportioned as follows:




          (i) first, there shall be paid out of the award, to the party incurring the same,
any and all reasonable fees and expenses incurred in collecting the award;




          (ii) second, there shall be paid to the Mortgagees, if any, in the order of the
priority of their liens, so much of the balance of the award as shall equal the amounts then
secured by such Mortgages (including outstanding principal, accrued but unpaid interest and any
other amounts secured) as of the Taking Date;




          (iii) third, there shall be paid to Owner so much of the award as shall equal the Land
Value as of the Taking Date; and




          (iv) fourth, there shall be paid, pari passu, (1) to Owner, so much of the balance of
the award equal to the value of the Building core and shell and Owner’s Work (and any replacements
thereof, additions thereto or substitutions therefor), as of the Taking Date, and (2) to Tenant, so
much of the balance of the award equal to the value of Tenant’s Work (and any replacements thereof,
additions thereto or substitutions therefor) as of the Taking Date, in the aggregate, except that
if there then exists an Event of Default then from the amounts payable to





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Tenant pursuant to clause (2) there shall be deducted and paid to Owner an amount sufficient to
cure the Default underlying the Event of Default.




     Section 14.2. Tenant’s Claim. Tenant shall have the right to claim separately
against the applicable Governmental Authority for the value of Tenant’s Property and moving costs,
provided such claim shall not diminish the aggregate award(s) payable on the basis of, or
attributable to, a Taking in respect of the whole or any portion of the Real Property or the
Premises. In no event shall Tenant have the right to make a claim for the value of Tenant’s
leasehold interest under this Lease.



     Section 14.3. Partial Taking. (a) If there is a Taking of less than Substantially
All of the Premises, this Lease shall continue for the remainder of the Term without diminution of
any of Tenant’s obligations hereunder, except that Base Rent shall be reduced from and after the
Taking Date by an amount representing the part of Base Rent allocable to the rentable area of the
portion or portions of the Building so taken.



          (b) If there is a Taking under this Section, Owner shall, after settlement of the award, and
subject to Unavoidable Delays, in accordance with the provisions of this Lease, restore the
Building core and shell and Owner’s Work with respect to the remaining portion of the Building not
so taken so that the Building shall be a complete building, consisting of a rentable,
self-contained architectural unit in good condition and repair and, to the extent practicable, in
substantial conformity with Owner’s Plans, subject to such changes as shall be necessitated by
Requirements, but Owner shall not be required to incur costs in excess of the award or awards
received by Owner. Owner shall not be obligated to restore any portion of Tenant’s Work or to pay
any portion of the costs or expenses thereof, except that any award remaining after Owner pays the
costs of obtaining the award and completes its work shall be paid to Tenant to the extent of the
cost of making any necessary repairs to Tenant’s Work (as reasonably evidenced by Tenant).




          (c) In the event of any Taking under this Section, the entire award shall be paid to Owner,
subject to the provisions of this Section.




     Section 14.4. Temporary Taking. If there is a temporary Taking for the use of all
or any portion of the Premises, Tenant shall give Owner prompt notice thereof. The Term shall not
be reduced or affected in any way by reason of such temporary Taking and Tenant shall continue to
pay the Rent without reduction or abatement (except as set forth in this Section). All of the award
shall be paid to Owner and (i) to the extent of the Rent, applied to the Rent and (ii) to the
extent of such costs, applied to Tenant’s Work required by the following sentence. If a temporary
Taking results in changes or alterations in Tenant’s Work that would necessitate an expenditure to
restore Tenant’s Work to its former condition, then Tenant shall restore Tenant’s Work in the same
manner, and subject to the same terms and conditions, as if such restoration was Tenant’s Work.
Notwithstanding the foregoing, if such restoration is with respect to the Building core and shell
or Owner’s Work (or any portion thereof) or any replacements thereof,



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additions thereto or substitutions therefor, the award shall first be applied by Owner to such
restoration by Owner, and then as otherwise provided in this Section.




     Section 14.5. Other Taking. In case of any Governmental Action not resulting in a
Taking but creating a right to compensation therefor to the extent allocable to the Premises, such
as the changing of the grade of any street upon which the Premises abuts, then this Lease shall
continue in full force and effect without reduction or abatement of Rent. From the amount of such
compensation actually received by Owner, Owner shall be entitled to retain all of the costs and
expenses reasonably incurred or paid by Owner in collecting such compensation. The net amount of
such compensation (after deducting such costs and expenses), multiplied by a fraction, the
numerator of which is the number of days during the period commencing on the earliest date of such
Governmental Action and ending on the Fixed Expiration Date, and the denominator of which is the
number of days during the period commencing on the Base Rent Commencement Date and ending on the
Fixed Expiration Date, shall be paid to Tenant, and the balance of the net amount of such
compensation shall be paid to Owner.



     Section 14.6. Taking — Generally. (a) Each of the parties, at their own cost
and expense, shall execute documents that are reasonably required to facilitate collection
of any awards made (or to be made) in connection with any Taking.



          (b) Owner shall not settle or compromise any Taking or other Governmental Action creating a
right to compensation in respect of the Premises or any portion thereof or interest therein, or
enter into a sale of all or a portion of the Premises or any portion thereof or interest therein in
lieu of condemnation without the consent of Tenant, which consent (with respect to such settlement
or compromise only) shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant’s
consent shall not be required if there is then a Material Event of Default.




          (c) In the event of a negotiated sale of all or a portion of the Premises in lieu of a Taking
the proceeds shall be distributed as provided in case of a Taking of all or substantially all of
the Premises, or a partial Taking, as the case may be.




          (d) It is the intention of Owner and Tenant that the provisions of this Article shall
constitute an “express agreement to the contrary” as provided in Section 227 of the Real Property
Law of the State of New York and shall govern and control in lieu thereof.




          (e) If Owner or Tenant shall receive notice of any proposed or pending Taking affecting
the Premises, the party receiving such notice shall promptly notify the other party of the
receipt and contents thereof.




     Section 14.7. Disputes. Any dispute under this Article shall be resolved by
General Arbitration.



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Article 15: Events of Default and Remedies




     Section 15.1. Events of Default. Each of the following events shall be an
“Event of Default”:



          (a) Tenant shall fail to pay any Rent when due and such failure shall continue for a
period of ten (10) days after notice thereof by Owner to Tenant;




          (b) Tenant shall fail to observe or perform any of Tenant’s other obligations under this Lease
and such failure shall continue for a period of thirty (30) days after notice thereof by Owner to
Tenant specifying such failure (unless the remedying of such default cannot, by its nature,
reasonably be observed or performed within such thirty (30) day period, in which case no Event of
Default shall be deemed to exist as long as Tenant shall have commenced curing the same within the
thirty (30) day period and shall diligently and continuously prosecute the same to completion;
provided, however, that such extension of time shall not be effective if Owner or any Senior
Interest Holder would thereby become subject to any criminal liability;




          (c) to the extent permitted by law, Tenant shall admit, in writing, that it is generally
unable to pay its debts as such become due;




          (d) to the extent permitted by law, Tenant shall make an assignment of its property for the
benefit of creditors; or




          (e) to the extent permitted by law, (i) Tenant shall file a voluntary Petition under Title 11
of the United States Code or such petition shall be filed against Tenant and (with respect to a
petition filed against Tenant) an order which is beyond any other appeal for relief shall be
entered, or (ii) Tenant shall file a petition or an answer seeking or consenting to, or acquiescing
in, any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief, under the present or any future Federal bankruptcy code or any other present or future
applicable Federal, State or other bankruptcy or insolvency statute or law, or (iii) shall seek, or
consent to, or acquiesce in, or suffer the appointment of, any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Tenant, of all or substantially all
of its properties, or of the Premises or any interest of Tenant therein, or (iv) Tenant shall take
any action in furtherance of any action described in this Section; or




          (f) to the extent permitted by law, within ninety (90) days after the commencement of a
proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future Federal bankruptcy code
or any other present or future applicable Federal, State or other bankruptcy or insolvency statute
or law, such proceeding shall not be dismissed, or, within one hundred twenty (120) days after the
appointment, without the consent or acquiescence of Tenant, of any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Tenant, or of all or any
substantial part of its properties, or of the Premises or any interest of




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Tenant therein, such appointment shall not be vacated or stayed on appeal or otherwise, or if,
within one hundred twenty (120) days after the expiration of any such stay, such appointment
shall not be vacated; or




          (g) if a levy under execution or attachment shall be made against the
Premises or any part thereof, the income therefrom, this Lease or the leasehold estate created
hereby and such execution or attachment shall not be vacated or removed by court order, bonding or
otherwise within a period of one hundred twenty (120) days.




          Section 15.2.
Remedies; Termination. (a) If an Event of Default occurs and Owner,
at any time thereafter, at its option, gives Tenant notice stating that this Lease and the Term
shall terminate on the date specified in such notice as a result of such Event of Default, which
date shall not be less than twenty (20) days after the giving of such notice of termination, then
this Lease and the Term and all rights of Tenant under this Lease shall terminate as if the date
specified in the notice were the Fixed Expiration Date, and Tenant shall quit and surrender the
Premises forthwith, but Tenant shall remain liable for damages or otherwise as provided in this
Lease.




          (b) If this Lease is terminated as provided in this Article, Owner may, at any time after the
date specified in the termination notice delivered to Tenant, without further notice, re-enter and
repossess the Premises and may dispossess Tenant by summary proceedings or other judicial
proceeding.




          (c) If this Lease shall be terminated as provided in this Article, all rights to any plans and
specifications prepared with respect to the Building shall be assigned to Owner and Owner may
complete all Tenant’s Work required to be performed by Tenant hereunder and may repair and alter
any portion(s) of the Premises in such manner as Owner may deem necessary or advisable without
relieving Tenant of any liability under this Lease or otherwise affecting any such liability, or
let or relet the Premises or any portion thereof for the whole or any part of the remainder of the
Term or for a longer period, in Owner’s name or as agent of Tenant, and out of any rent and other
sums collected or received as a result of such reletting Owner shall (i) first, pay to itself the
reasonable cost and expense of terminating what would otherwise have constituted the unexpired
portion of the Term, retaking, repossessing, repairing, altering or entering, completing
construction of any portion(s) of the Premises and the cost and expense of removing all persons and
property therefrom, including in such costs, brokerage commissions and reasonable attorneys’ fees
and disbursements; (ii) second, pay to itself the cost and expense sustained in securing any new
tenants and other occupants, including in such costs, brokerage commissions, legal expenses and
reasonable attorneys’ fees and disbursements and other expenses of preparing any portion(s) of the
Premises and, to the extent that Owner shall maintain and operate any portion(s) of the Premises,
the cost and expense of operating and maintaining same; and (iii) third, pay to itself any balance
remaining on account of the liability of Tenant to Owner. Owner in no way shall be responsible or
liable for any failure to relet any portion(s) of the Premises or for any failure to collect any
rent due on any such reletting, and no





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such failure to relet or to collect rent shall operate to relieve Tenant of any liability under
this Lease or to otherwise affect any such liability; and Tenant shall pay to Owner, in addition to
any other amounts payable under this Lease by reason of Tenant’s default hereunder, at the election
of Owner, either





     (1) all Rent payable under this Lease by Tenant to Owner to the date upon which the
Term shall have been terminated and Tenant shall remain liable for Rent thereafter falling
due on the respective dates when such Rent would have been payable but for the termination
of this Lease less the aggregate of (A) the net proceeds actually received by Owner
of any re-letting plus (B) the net proceeds received by Owner from Subtenants, or




     (2) an amount equal to the difference, discounted to a present value at the annual rate
of 8%, between:



               (A) the aggregate of all Rent reserved hereunder for the then unexpired portion of the Term;
and



               (B) the aggregate fair market rental value of the Premises for the same period.



          (d) Nothing herein shall obligate or be construed to obligate Owner to terminate this Lease in
connection with any Default or otherwise affect the exercise of any remedies by Owner, and Tenant
agrees that if Owner does not elect to terminate this Lease on account of a Default in accordance
with the provisions of this Article, Tenant shall continue to be obligated to pay Rent to Owner in
accordance with the terms of this Lease without any limitation as provided above.




          (e) If there shall be a Default or an Owner Default, and if in connection with the enforcement
of the non-defaulting party’s rights or remedies, such non-defaulting party shall properly and
reasonably incur fees and expenses for services rendered (including, without limitation, reasonable
attorneys’ fees and disbursements) then such fees and expenses shall, if said non-defaulting party
shall prevail in litigation, be immediately reimbursed by the defaulting party on demand.




          (f) No receipt of moneys by Owner from Tenant after the termination of this Lease shall
reinstate, continue or extend the Term or affect any notice theretofore given to Tenant, or operate
as a waiver of the right of Owner to enforce the payment of Rent payable by Tenant hereunder or
thereafter falling due, or operate as a waiver of the right of Owner to recover possession of the
Premises by proper remedy. After the service of notice to terminate this Lease or the commencement
of any suit or summary proceedings or after a final order or judgment for the possession of the
Premises, Owner may demand, receive and collect any moneys due or thereafter falling due without in
any manner affecting the notice, proceeding, order, suit or judgment, all such moneys collected
being deemed payments on account of the use and




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occupation of the Premises or, at the election of Owner, on account of Tenant’s liability
hereunder.




          (g) Tenant hereby expressly waives, to the extent permitted by law, the service of any
notice of intention to re-enter provided for in any statute, or of the institution of legal
proceedings in connection therewith and Tenant, for and on behalf of itself and all Persons
claiming through or under Tenant, also waives any and all rights (a) of redemption provided by any
law or statute now in force or hereafter enacted or otherwise, or (b) of re-entry, or (c) of
repossession or (d) to restore the operation of this Lease, if Tenant is dispossessed by a final,
non-appealable judgment or by warrant of a court or judge or in case of re-entry or repossession by
Owner or in case of any expiration or termination of this Lease. The terms “enter”, “re-enter”,
“entry” or “re-entry”, as used in this Lease, are not restricted to their technical legal meanings.




          (h) No failure by Owner to insist upon Tenant’s performance of any covenant, agreement,
term or condition of this Lease or to exercise any right or remedy available to Owner by reason of
a Default or Event of Default, and no payment or acceptance of full or partial Rent during the
continuance of any Default or Event of Default, shall constitute a waiver of any such Default or
Event of Default or of such covenant, agreement, term or condition. No failure by Tenant to insist
upon Owner’s performance of any covenant, agreement, term or condition of this Lease or to exercise
any right or remedy available to Tenant by reason of an Owner Default shall constitute a waiver of
any such default or of such covenant, agreement, term or condition. No covenant, agreement, term or
condition of this Lease to be performed or complied with by either party, and no Default or Owner
Default shall be waived, altered or modified by the other party, except by a written instrument
executed by the other party. No waiver of any Default or Owner Default shall affect or alter this
Lease, but each and every covenant, agreement, term and condition of this Lease shall continue in
full force and effect with respect to any other then existing or subsequent Default or Owner
Default.




          (i) Except as otherwise expressly provided in this Lease, in the event of a Default,
Owner shall be entitled to enjoin the Default and shall have the right to invoke any rights and
remedies allowed at law or in equity or by statute or otherwise, other remedies that may be
available to Owner notwithstanding. Except as otherwise expressly provided in this Lease, in the
event of an Owner Default under this Lease, Tenant shall be entitled to enjoin any such default and
shall have the right to invoke any rights and remedies allowed at law or in equity or by statute or
otherwise, other remedies that may be available to Tenant notwithstanding. Except as otherwise
expressly provided in this Lease, each right and remedy of Owner or Tenant provided for in this
Lease shall be cumulative and shall be in addition to every other right or remedy provided for in
this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by Owner or Tenant of any one or more of the rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by Owner or Tenant of any or all
other rights or remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise.




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          (j) Notwithstanding anything to the contrary contained in this Lease, Owner and Tenant
each hereby expressly waive the right to any consequential damages awarded in or as the result of
any proceeding alleging the failure of Owner or Tenant, as the case may be, to observe and perform
any of the covenants, agreements, terms and conditions contained in this Lease or otherwise to be
performed by Owner or Tenant, respectively.




     Section 15.3. Late Charges. If any payment of Rent is not paid by the 10th day
after the date on which it becomes due pursuant to this Lease, interest on the sum so overdue,
calculated at the Late Charge Rate from the date such payment first becomes due to the date on
which actual payment of the sum is received by Owner, shall become due and payable to Owner.



Article 16: Notices




     Section 16.1. Any notice or other communication under this Lease shall be in writing and
shall be effective if sent as set forth below and on the date received or refused:



          (a) If by Owner, by certified mail, postage prepaid, return receipt requested, or by Federal
Express or other reputable national overnight courier service (next business day delivery), or by
messenger, addressed to Tenant, Attention: Vice President, Facilities and Services with copies
thereof to (i) Tenant, Attention: Law Department Chief Counsel, REI and (ii) Kronish, Lieb, Weiner
& Hellman LLP, 1114 Avenue of the Americas, New York, NY
10036-7798, Attention: Mark Lipschutz, Esq., or to such other addresses or Persons as Tenant
may from time to time designate by notice given to Owner in such manner at least fifteen (15)
days prior to such address being effective.




          (b) If by Tenant, by certified mail, postage prepaid, return receipt requested, or by Federal
Express or other reputable national overnight courier service (next business day delivery), or by
messenger, addressed to Owner, Attention: David Brause, with copies thereof to Morgan, Lewis &
Bockius LLP, 101 Park Avenue, New York, NY 10178, Attention: Mitchell N. Baron, Esq. or to such
other addresses or Persons as Owner may from time to time designate by notice given to Tenant in
such manner at least fifteen (15) days prior to such address being effective.




Article 17: Inspections by Owner




     Section 17.1. Provided that all Persons inspecting or otherwise entering the Premises
shall abide by Tenant’s reasonable rules and regulations with respect to access to the Premises,
Tenant shall permit Owner and any Owner Party to enter the Premises for the purposes provided for
in this Lease, and, in addition, Tenant shall permit an inspection of the Premises by Owner or by
any Owner Party, and by prospective purchasers or mortgagees of the fee interest in the Premises
during Business Hours on Business Days, throughout the Term upon not less than three (3) Business
Days prior written notice from Owner to Tenant, except in the case of an emergency, in which case
no notice shall be required (except for such notice that would be




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reasonable under the circumstances) and the Business Hour and Business Day restriction shall
not apply. During the two years next preceding the Fixed Expiration Date, Tenant shall also permit,
upon reasonable prior notice and during Business Hours on Business Days, inspection of the Premises
by prospective tenants. Owner shall, to the extent Tenant makes a representative available for such
purposes, be accompanied by a representative of Tenant. The inspections conducted by Owner under
this Section shall be conducted in a manner so as to minimize interference with the normal business
operations being conducted at the Premises.




Article 18: Liability




     Section 18.1. Owner’s Liability. (a) Owner shall not be liable for any
injury or damage to Tenant or to any Person happening on, in or about the Premises or its
appurtenances, nor for any injury or damage to the Premises or to any property belonging to Tenant
or to any other Person, including, without limitation, any such injury or damage caused by fire, by
breakage, or by the use, misuse or abuse of any portion of the Building or that may arise from any
other cause whatsoever (except if and to the extent caused by the negligence or intentionally
wrongful acts or omissions of Owner or any Owner Party and not covered under the insurance carried
by Tenant or any Subtenant, or which should have been carried by Tenant or the Subtenants pursuant
to this Lease).



          (b) Owner’s liability under this Lease is limited to Owner’s interest in the
Premises (including undistributed rents and sales and refinancing proceeds, and undistributed and
unused insurance proceeds received by Owner with respect to a fire or other casualty and
condemnation awards). Neither Owner nor any of the directors, officers, employees, shareholders,
partners, members, principals, agents or servants of Owner shall have any personal liability under
this Lease, and any liability hereunder shall be limited to Tenant’s right to realize against
Owner’s interest in the Premises (including undistributed rents and sales and refinancing proceeds,
and undistributed and unused insurance proceeds received by Owner with respect to a fire or other
casualty and condemnation awards). No other property or assets of Owner or any property of the
directors, officers, employees, shareholders, partners, members, principals, agents or servants of
Owner shall be subject to levy, execution or other enforcement procedure for the satisfaction of
Tenant’s remedies hereunder. The provisions of this Section shall survive the Expiration of the
Term.




     Section 18.2 Tenant’s Liability. No director, officer, employee, shareholder,
partner (except for the general partners of Tenant that is a partnership), member, principal,
agent, employee or servant of or in Tenant or of or in any of the direct or indirect constituent
entities that comprise Tenant shall have any liability (personal or otherwise) under this Lease or
in respect of the Premises, and no property or assets of such directors, officers, employees,
shareholders, partners, members, principals, agents, employees or servants shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Owner’s remedies hereunder
(except for their interest in the partnership, joint venture or limited liability company that is
Tenant and except for partnership, joint venture and limited liability company property of



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Tenant). If Tenant is a partnership then the liability of the general partner of Tenant shall
be limited to the Person that is such general partner, but not any director, officer, employee,
shareholder, partner, member, principal, agent, employee or servant of or in such general partner
or of any of the direct or indirect constituent entities that comprise such general partner.




Article 19: Indemnification




     Section 19.1. Tenant Indemnification. (a) To the fullest extent permitted by
law, Tenant shall indemnify, defend and hold harmless Owner and all Owner Parties from and against
any and all liabilities, suits, obligations, fines, damages, penalties, claims, costs, charges and
expenses, including, without limitation, reasonable architects’ and attorneys’ fees and
disbursements, that are imposed upon or incurred by or asserted against any of the them due to or
arising out of the following (except if and to the extent caused by an Owner Default and except if
and to the extent caused by the negligence or intentionally wrongful acts or omissions of Owner or
any Owner Party and not covered under the insurance carried by Tenant or any Subtenant, which
should have been carried by Tenant or the Subtenant pursuant to this Lease and except as otherwise
expressly provided in this Lease):



               (i) injury to any Person (including, without limitation, death at any
time resulting therefrom) or damage to any Person or property occurring in, on, or about (x) the
Initial Premises or any part thereof at any time during the Term from and after the Initial
Premises Substantial Completion Date, and (y) the Balance Space or any part thereof, or in, on or
about any street, alley, sidewalk, curb, vault, passageway or space comprising a part thereof or
adjacent thereto at any time during the Term after the relevant Substantial Completion Date;



               (ii) any work or thing done in, on or about the Premises or any part thereof during the
Term, by Tenant or any Tenant Party, including, without limitation, any Tenant’s Work;



               (iii) any use, possession, occupation, alteration, repair, condition,
operation, maintenance or management of (x) the Initial Premises or any part thereof at any time
during the Term from and after the Initial Premises Substantial Completion Date, and (y) the
Balance Space or any part thereof or in, on or about any street, alley, sidewalk, curb, vault,
passageway or space comprising a part thereof or adjacent thereto at any time during the Term after
the relevant Substantial Completion Date;



               (iv) any negligence or intentionally wrongful acts or omissions on the part of Tenant or
any Tenant Party or from any Default;



               (v) any liability which may be asserted against Owner or any Owner Party (or any lien or
claim which may be alleged to have arisen against or on or about the Premises) under any
Requirements with respect to which Tenant is obligated to comply pursuant to the provisions of this
Lease; and/or



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               (vi) any contest permitted to be undertaken by Tenant pursuant to the provisions of this
Lease.



          (b) If any claim, action or proceeding is made or brought against Owner or any Owner
Party which is covered by a Tenant indemnity under this Lease, then upon demand by Owner, Tenant
shall either resist, defend or satisfy such claim, action or proceeding in such indemnitee’s name,
by the attorneys for, or approved by, Tenant’s insurance carrier (if such claim, action or
proceeding is covered by insurance) or by such other attorneys as Tenant shall select and Owner
shall approve, such approval not to be unreasonably withheld. Owner shall cooperate in all
reasonable respects with Tenant in the defense of such matter, at Tenant’s sole cost and expense.
The foregoing notwithstanding and so long as such action does not limit or render void any
liability of any insurer of Owner or Tenant hereunder in respect to the claim or matter in
question, Owner or any Owner Party may engage its own attorneys to defend it, or to assist it in
such indemnitee’s defense of such claim, action or proceeding, as the case may be, the costs and
expenses of which shall be paid by it. Owner and any Owner Party shall not enter into any agreement
or settlement with respect to such matters while Tenant is defending such actions, without Tenant’s
prior written approval, which approval, if the Tenant named herein or its Affiliate is not then
Tenant, shall not be unreasonably withheld. Any such agreement or settlement without Tenant’s
approval shall release Tenant from its obligation to indemnify any such Indemnitee with respect to
such matter.




     Section 19.2 Owner Indemnification. (a) To the fullest extent permitted by law,
Owner shall indemnify, defend and hold harmless Tenant and all Tenant Parties from and against any
and all liabilities, suits, obligations, fines, damages, penalties, claims, costs, charges and
expenses, including, without limitation, reasonable architects’ and attorneys’ fees and
disbursements, that may be imposed upon or incurred by or asserted against Tenant or any Tenant
Party due to or arising out of the following (except if and to the extent caused by a Default and
except if and to the extent caused by the negligence or intentionally wrongful acts or omissions of
Tenant or any Tenant Party and not covered under the insurance carried by Owner, which should have
been carried by Owner pursuant to this Lease and except as otherwise expressly provided in this
Lease):



               (i) injury to any Person (including, without limitation, death at any time resulting
therefrom) or damage to any Person or property occurring in, on, or about any portion of the
Premises recaptured by Owner or any part thereof, or in, on or about any portion of the Square
Block adjacent to the Premises not included in the Premises at any time during the Term;



               (ii) injury to any Person (including, without limitation, death at any
time resulting therefrom) or damage to any Person or property occurring in, on, or about (x) the
Initial Premises or any part thereof at any time during the Term prior to the Initial Premises
Substantial Completion Date, and (y) the Balance Space or any part thereof or in, on or about any



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street, alley, sidewalk, curb, vault, passageway or space comprising a part thereof or adjacent
thereto at any time during the Term prior to the relevant Substantial Completion Date;




               (iii) any work or thing done in, on or about the Premises or any part thereof, by Owner or
any Owner party, including without limitation, any Owner’s Work;



               (iv) any use, possession, occupation, alteration, repair, condition,
operation, maintenance or management of any portion of the Premises recaptured by Owner or any
part thereof or of any portion of the Square Block adjacent to the Premises not included in the
Premises by Owner or any Owner Party;



               (v) any use, possession, occupation, alteration, repair, condition,
operation, maintenance or management by Owner or any Owner Party of (x) the Initial Premises or any
part thereof at any time during the Term prior to the Initial Premises Substantial Completion Date,
and (y) the Balance Space or any part thereof or in, on or about any street, alley, sidewalk, curb,
vault, passageway or space comprising a part thereof or adjacent thereto at any time during the
Term prior to the relevant Substantial Completion Date;



               (vi) any negligence or intentionally wrongful acts or omissions on the part of Owner or
any Owner Party;



               (vii) any liability which may be asserted against Tenant or any Tenant Party (or any lien
or claim which may be alleged to have arisen against or on or about the Premises) under any Owner
Requirements; and/or



               (viii) any contest permitted to be undertaken by Owner pursuant to the provisions of this
Lease.



          (b) If any claim, action or proceeding is made or brought against Tenant or any Tenant
Party which is covered by an Owner indemnity under this Lease then upon demand by Tenant, Owner
shall either resist, defend or satisfy such claim, action or proceeding in the name of Tenant or
the Tenant Party in question, by the attorneys for, or approved by, Owner’s insurance carrier (if
such claim, action or proceeding is covered by insurance) or by such other attorneys as Owner shall
select and Tenant shall approve, such approval not to be unreasonably withheld. Tenant shall
cooperate in all reasonable respects with Owner in the defense of such matter, at Owner’s sole cost
and expense. The foregoing notwithstanding and so long as such action does not limit or render void
any liability of any insurer of Owner or Tenant hereunder in respect to the claim or matter in
question, Tenant or the Tenant Party in question may engage its own attorneys to defend it, or to
assist it in its defense of such claim, action or proceeding, as the case may be, the costs and
expenses of which shall be paid by it. Neither Tenant nor any Tenant Party shall enter into any
agreement or settlement with respect to such matters while Owner is defending such actions, without
Owner’s prior written approval, which approval, if the Tenant named herein or its Affiliate is then
Tenant, shall not be unreasonably withheld. Any such




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agreement or settlement without Owner’s approval shall release Owner from its obligation to
indemnify with respect to such matter.




     Section 19.3 General. (a) The obligations of Tenant and Owner under this Article
shall not be affected in any way by the absence of insurance coverage, or by the failure or refusal
of any insurance carrier to perform an obligation on its part under insurance policies affecting
the Premises.



          (b) The provisions of this Article shall survive the Expiration of the Term.




Article 20: Environmental Hazards




     Section 20.1. Tenant Obligations. (a) Tenant shall not:



          (i) cause or permit the presence, use, generation, manufacture, production, processing,
installation, release, discharge, storage, treatment, handling, or disposal of any Hazardous
Materials (excluding the safe and lawful use, generation, manufacture, production, processing,
installation, release, discharge, storage, treatment, handling, or disposal of Hazardous Materials
subject to and in accordance with all applicable Requirements, customarily used in the operation
and maintenance of comparable buildings in New York City or for normal commercial purposes in
connection with the Permitted Uses) on or under the Premises; or




          (ii) cause or permit the transportation to, from or across the Premises of any Hazardous
Material (excluding the safe and lawful use and storage of permitted Hazardous Materials);




          (iii) cause or exacerbate any occurrence or condition on the Premises that is or, to
Tenant’s knowledge, may be in violation of Hazardous Materials Law.




          (b) Tenant shall take all reasonable and prudent steps (including, without limitation,
reasonable and prudent sublease or occupant provisions) to prevent its employees, agents and
contractors, and its subtenants and other occupants on the Premises, from causing, permitting or
exacerbating any activities or conditions prohibited by this Article. Tenant shall not
intentionally sublease or permit the occupancy or use of the Premises to any tenant, subtenant or
occupant that, in the ordinary course of its business, would cause, permit or exacerbate any
activities or conditions prohibited by this Article, and all subleases entered into by Tenant shall
provide that subtenants shall not cause, permit or exacerbate any activities or conditions
prohibited by this Article.




          (c) Tenant shall promptly notify Owner in writing of: (i) the occurrence of any activity or
condition prohibited by this Article on the Premises of which Tenant shall have actual knowledge;
(ii) Tenant’s actual knowledge of the presence on or under any adjoining property of any Hazardous
Materials (other than permitted Hazardous Materials) which can





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reasonably be expected to have a material adverse impact on the Premises or the value of the
Premises, any occurrence or condition on the Premises or any adjoining real property that would
likely cause any restrictions on the ownership, occupancy, transferability or use of the Premises
under Hazardous Materials Law; (iii) receipt by Tenant of any claim, citation, notice of any
pending or threatened suits, proceedings, orders, inquiries or opinions involving the Premises from
any Governmental Authority having jurisdiction which alleges the violation of any Hazardous
Materials Law; or (iv) any claim made or threatened by any third party against Tenant, Owner or the
Premises relating to loss or injury resulting from any Hazardous Materials at the Premises. Any
such notice by Tenant shall not relieve Tenant of, or result in a waiver of, any obligation of
Tenant under this Article. Tenant shall cooperate with any inquiry from a Governmental Authority,
and shall comply with any governmental or judicial order which arises from any alleged activities
or conditions prohibited by this Article, which cooperation and compliance shall be at Tenant’s
expense if such alleged activities or conditions have been caused by Tenant or any Tenant Party or
at Owner’s expense if such alleged activities or conditions have been caused by Owner or any Owner
Party or existed prior to the Initial Premises Substantial Completion Date (with respect to the
Initial Premises) or the relevant Substantial Completion Date (with respect to the Balance Space).




          (d) Tenant shall (i) pay, as additional rent, within twenty (20) Business Days after
demand, the reasonable actual out-of-pocket costs and expenses of any environmental audits, studies
or investigations (including, without limitation, advice of legal counsel) which Owner incurs with
respect to the Premises but only after the discovery on the Premises of any activities or
conditions prohibited by this Article, and only after it is finally determined that the activities
or conditions prohibited by this Article in question did not exist prior to the Initial Premises
Substantial Completion Date (with respect to the Initial Premises) or the relevant Substantial
Completion Date (with respect to the Balance Space) and were not caused by Owner or any Owner
Party, and (ii) remove from the Premises or remediate in compliance with all Hazardous Materials
Laws any Hazardous Materials (other than Hazardous Materials which exist on or under the Premises
prior to the Initial Premises Substantial Completion Date, with respect to the Initial Premises, or
the relevant Substantial Completion Date, with respect to the Balance Space) which exist as a
result of activities or conditions prohibited by this Article (and not caused by or on behalf of
Owner or any Owner Party or, unless caused by Tenant or a Tenant Party, by migration from off the
Premises) in a manner in which a prudent owner of comparable properties in New York City would so
remove or remediate, following a determination in any such environmental audits, studies or
investigations that there exist any activities or conditions prohibited by this Article on or under
the Premises. After the discovery on or under the Premises of any activities or conditions
prohibited by this Article, Tenant authorizes Owner and its employees, agents and contractors, upon
not less than five (5) Business Days prior notice to Tenant (except in the case of an emergency as
reasonably determined by Owner, where reasonable notice (but not less than one (1) Business Days
prior notice) shall be required), to enter onto the Premises for the purpose of conducting such
environmental audits, studies and investigations. Any such costs and expenses incurred by Owner
(including, without limitation, reasonable fees and expenses of attorneys and consultants, whether
incurred in connection with




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judicial or administrative process or otherwise) to the extent that same are due as provided in
this Section and which Tenant fails to pay when due shall become immediately due and payable and
shall become additional rent. Any costs which are required to be reimbursed by Owner to Tenant
pursuant to the provisions of this Article which are not paid within twenty (20) Business Days
after Owner’s receipt of Tenant’s written demand therefor accompanied by any required statements,
information, documents or other back-up materials, shall bear interest from and after the
expiration of such twenty (20) Business Day period at the Late Charge Rate.




          (e) Tenant shall indemnify, defend and hold harmless Owner and all Owner Parties from
and against all proceedings (including, without limitation, Hazardous Material Governmental
Actions), claims, damages, penalties, costs and expenses (including without limitation reasonable
fees and expenses of attorneys and expert witnesses, investigatory fees, and cleanup and
remediation expenses, whether or not incurred within the context of the judicial process), arising
directly or indirectly, other than as a result of a breach of any representation of Owner set forth
in this Article, from (i) any breach of any warranty or obligation of Tenant contained in this
Article, or (ii) the existence of any activities or conditions prohibited by this Article on or
under the Premises which shall have been caused by Tenant or any Tenant Party.




          Section 20.2 Owner Responsibility. (a) Owner shall indemnify, defend and hold
harmless Tenant and all Tenant Parties from and against all proceedings (including, without
limitation, Hazardous Material Governmental Actions), claims, damages, penalties, costs and
expenses (including, without limitation, reasonable fees and expenses of attorneys and expert
witnesses, investigatory fees, and cleanup and remediation expenses, whether or not incurred within
the context of the judicial process), arising directly or indirectly from (i) any breach of any
representation, warranty or obligation of Owner contained in this Article, (ii) the existence of
any activities or conditions prohibited by this Article on or under the Premises prior to the
Initial Premises Substantial Completion Date (with respect to the Initial Premises) or the relevant
Substantial Completion Date (with respect to the Balance Space), (iii) any activities or conditions
prohibited by this Article on or under the Premises which shall have been caused by Owner or any
Owner Party, (iv) the migration of Hazardous Materials which migrate unto the Premises from off the
Premises (and which was not caused by Tenant or any Tenant Party) and (v) the tanks referred to in
paragraph (c) of this Section.




          (b) Owner shall (i) pay within twenty (20) Business Days after written demand, the
reasonable actual out-of-pocket costs and expenses of any environmental audits, studies or
investigations (including, without limitation, advice of legal counsel) which Tenant incurs with
respect to the Premises but only after the discovery on the Premises of any activities or
conditions prohibited by this Article, and only after it is finally determined that the activities
or conditions prohibited by this Article in question existed prior to Tenant’s initial entry in the
Premises for Tenant’s Work or otherwise or were caused by Owner or any Owner Party, and (ii) remove
from the Premises or remediate if required by any, and in compliance with all, Hazardous Materials
Laws any Hazardous Materials that existed on or under the Premises prior to Tenant’s initial entry
in the Premises for Tenant’s Work or otherwise or were used, generated,





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manufactured, produced, processed, installed, released, discharged, stored, treated, handled or
disposed of by Owner or any Owner Party, or which migrated onto the Premises from off the Premises
(which was not caused by Tenant or any Tenant Party) or which relate to the tanks referred to in
paragraph (c) of this Section, in a manner in which a prudent owner of comparable properties in New
York City would so remove or remediate, following a determination in any such environmental audits,
studies or investigations that there exist any activities or conditions prohibited by this Article
on or under the Premises with respect to which Owner is obligated to remove or remediate pursuant
to this Section. Notwithstanding any provision in this Section to the contrary, if Owner shall
default in the performance of its obligations under Section and such default shall continue for a
period in excess of five (5) Business Days after notice from Tenant specifying such default, or if
such default is of a nature which reasonably requires more than five (5) Business Days to cure and
Owner fails to commence the cure of such default within such five (5) Business Day period and
thereafter to diligently pursue such cure to completion, then Tenant may (but shall not be
obligated to), without any obligation and without waiving such default, perform the obligations of
Owner specified in such notice and, upon completion of such cure, Tenant shall submit invoices to
Owner for the reasonable actual out-of-pocket costs paid by Tenant in connection therewith and
Owner shall reimburse Tenant therefor, with interest at the Late Charge Rate from the date of
payment by Tenant until the date such costs are reimbursed to Tenant, within twenty (20) Business
Days of receipt by Owner of such invoices.




          (c) Owner hereby represents and warrants to Tenant that (a) to its knowledge, there are
no pending or threatened in writing actions or proceedings to which Owner is a party in respect of
Hazardous Materials Laws affecting the Premises, (b) it has not received any written notice from
any Governmental Authority of any pending or threatened proceedings, investigations, audits or
violations with respect to any Hazardous Materials Laws in respect of the Premises, (c) except as
expressly set forth of this Lease, it has no knowledge of the existence of any Hazardous Materials
(including permitted Hazardous Materials) on or under the Premises (except that Owner does have
notice that approximately three gas tanks were or may be located under a portion of the tax lot of
which the Premises is a part, and if those tanks have not been removed, Owner shall, at its
expense, in accordance with all applicable Requirements, remove them as soon as practicable but not
later than October 1, 2001, subject to Tenant Delays and Unavoidable Delays and, as soon thereafter
as is practicable, deliver to Tenant a final soil report) and (d) prior to Tenant’s access, Owner
has delivered to Tenant an ACP-5 Form for the Premises. Except as expressly set forth in this
Section, Owner makes no representation or warranty as to the existence of activities or conditions
prohibited by this Article on or under the Premises.




          Section 20.3 Dispute; Survival. Any dispute under this Article shall be resolved
by General Arbitration. The provisions of this Article shall survive the Expiration of the Term.





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Article 21:
Right to Cure Defaults; Offsets




     Section 21.1. Owner’s Rights. If Tenant shall be in Default under this Lease,
Owner may remedy the Default for the account of Tenant (a) immediately and without notice in case
of emergency, or (b) in any other case, if Tenant shall fail to remedy the Default after Owner
shall have notified Tenant of the such Default and the applicable grace period (if any) for curing
such Default shall have expired.



     Section 21.2. Tenant’s Rights. If Owner shall default under this Lease or any Mortgage
or Superior Lease, Tenant may remedy the default for the account of Owner (a) immediately and
without notice in the case of an emergency, (b) with respect to a Mortgage or Superior Lease, if
Owner shall fail to remedy the default for five (5) days after Tenant’s notice to Owner that Tenant
shall remedy such default, or (c) in any other case, if Owner shall fail to remedy the default for
twenty (20) Business Days (in the case of the failure to pay Tenant a sum of money) or thirty (30)
days (in the case of any other Owner Default) in both cases after Tenant shall have notified Owner
of the default, or if the default is not the failure to pay a sum of money and is not reasonably
capable of cure within thirty (30) days then if Owner shall fail to commence to remedy the default
within thirty (30) days after Tenant’s notice and thereafter diligently pursue the curing of the
default. Notwithstanding the foregoing, with respect to Owner’s failure to (i) pay Base Taxes or
any other Real Estate Taxes required to be paid by Owner, the twenty (20) Business Day period in
clause (b) shall be five (5) Business Days or (ii) substantially complete any portion of Owner’s
Work by the dates set forth in Owner’s Work Schedule (subject to extension due to Tenant Delays and
Unavoidable Delays), Tenant shall have the right to exercise Tenant’s right under this Section (1)
on the later of ten (10) Business Days after the date in question or three (3) Business Days after
Tenant’s notice to Owner of the failure or (2) if Owner’s failure is due to Owner’s inability to
pay for Owner’s Work, on ten (10) days notice to Owner. If Tenant shall exercise Tenant’s right to
complete any portion of Owner’s Work, then Owner shall not be required to pay any amounts pursuant
to Section 5.1 which would have accrued as a result of that failure following the date
Owner would have substantially completed that portion of Owner’s Work but for Tenant exercising
Tenant’s right (and any dispute with respect to that date shall be resolved by Construction
Arbitration).



     Section 21.3. Reimbursements. Any reasonable out-of-pocket expenses paid by Owner or
Tenant in the exercise of its rights under this Article shall be paid to the other within twenty
(20) Business Days after demand accompanied by a statement, in reasonable detail, setting forth
such reasonable out-of-pocket expenses, and evidence of payment, together with interest at the Late
Charge Rate from the date the expenses were paid to the date reimbursed.



     Section 21.4. Tenant’s Offsets. If Owner is required pursuant to the express
provisions of this Lease to make any payment to Tenant or permit Tenant any offset against Base
Rent, the payment or offset shall not be made or permitted if there is then a Material Event of
Default, but shall be made or permitted within twenty (20) Business Days following the curing of
the Material Event of Default (less any reasonable costs incurred by Owner in connection with the



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Material
Event of Default). If Owner (or, pursuant to Section 3.7, a Senior Interest
Holder) shall be required to make any payment to or for the benefit of Tenant under this Lease and
shall fail to do so following twenty (20) Business Days notice of the failure by Tenant to Owner,
Tenant may offset the payment against the next Base Rent due under this Lease which is not subject
to an offset pursuant to this Lease, with interest at the Late Charge Rate from the date first due
until offset.




     Section 21.5. No Waiver. (a) Owner’s payment or performance pursuant to the
provisions of this Article shall not be, nor be deemed to be (i) a waiver or release of the Default
or Event of Default with respect thereto (or any past or future Default or Event of Default) or of
Owner’s right to terminate this Lease, or (ii) Owner’s assumption of Tenant’s obligations to pay or
perform any of Tenant’s past, present or future obligations hereunder.



          (b) Tenant’s payment or performance pursuant to the provisions of this Article shall not
be, nor be deemed to be (i) a waiver or release of any Owner Default (or any past or future Owner
Default) or (ii) Tenant’s assumption of Owner’s obligations to pay or perform any of Owner’s past,
present or future obligations hereunder.




Article 22: Certificates




     Section 22.1. Tenant Certificate. Tenant shall, without charge at any time and
from time to time, within thirty (30) days after notice by Owner, execute, acknowledge and deliver
to Owner or any other Person specified by Owner (including prospective purchasers of the Premises
and Senior Interest Holders) a statement (which may be relied upon by such Person) certifying, to
the extent accurate (a) that this Lease is unmodified and in full force and effect (or if there are
modifications, that this Lease, as modified, is in full force and effect and stating such
modifications), (b) the date to which each item of Rent payable by Tenant hereunder has been paid,
(c) whether Tenant has given Owner written notice of any event that, with the giving of notice or
the passage of time, or both, would constitute an Owner Default and (d) stating such other
information with respect to this Lease as Owner may reasonably request.



     Section 22.2. Owner Certificate. Owner shall, without charge at any time and from
time to time, within thirty (30) days after notice by Tenant, execute, acknowledge and deliver to
Tenant, or such other Person specified by Tenant, a statement (which may be relied upon by such
Person) certifying (a) that this Lease is unmodified and in full force and effect (or if there are
modifications, that this Lease, as modified, is in full force and effect and stating such
modifications), (b) the date to which each item of Rent payable by Tenant hereunder has been
received, (c) whether an Event of Default has occurred or whether Owner has given Tenant written
notice of any event that, with the giving of notice or the passage of time, or both, would
constitute an Event of Default and (d) as to such other information with respect to this Lease as
Tenant may reasonably request.



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     Section 22.3. General. If the party delivering a certificate described in this Article
shall be other than an individual, the instrument shall be signed by a person authorized to execute
on behalf of said party and the delivery of such instrument shall be a representation by such party
to such effect by Owner or Tenant, as the case may be. Any such certificate may be relied upon by
any prospective purchaser of the interest of Owner or Tenant hereunder or by any Person to whom
such certificate is addressed.



Article 23: Consents and Approvals




     Section 23.1. All consents and approvals which may be given under this Lease shall, as a
condition of their effectiveness, be in writing. The granting of any consent or approval by a party
to perform any act requiring consent or approval under the terms of this Lease, or the failure on
the part of a party to object to any such action taken without the required consent or approval,
shall not be deemed a waiver by the party whose consent was required of its right to require such
consent or approval for any further similar act.



     Section 23.2. If it is provided that a particular consent or approval by Owner or Tenant is
not to be unreasonably withheld, such consent or approval also shall not be unreasonably delayed or
conditioned. The foregoing sentence shall not be construed to limit any time period expressly
provided in this Lease for either Owner or Tenant to give its consent or approval.



     Section 23.3. Wherever in this Lease Owner’s or Tenant’s consent or approval is required, if
Owner or Tenant shall delay, condition or refuse such consent or approval, Tenant and Owner shall
in no event be entitled to make any claim for money damages, nor shall Tenant or Owner claim any
money damages by way of set-off, counterclaim or defense, based upon any claim or assertion by
Tenant or Owner that Owner or Tenant has unreasonably withheld, delayed or conditioned its consent
or approval, but Owner’s and Tenant’s sole remedy shall be (a) arbitration where specifically
provided for in this Lease, or (b) an action or proceeding to enforce any such provision, or for
specific performance, injunction or declaratory judgment.



Article 24: Surrender at End of Term




     Section 24.1. Removal and Restoration. (a) Upon the Expiration of the Term (or
upon any earlier termination of this Lease), Tenant, without any payment or allowance whatsoever by
Owner, shall surrender the Premises to Owner, in accordance with this Lease, in compliance with all
Requirements (other than Owner Requirements), in good order, condition and repair, reasonable wear
and tear and damage by fire or other casualty excepted, and broom clean, free and clear of (i) all
Subleases, (ii) liens and encumbrances caused by Tenant or any Tenant Party and (iii) Tenant’s
Property. Tenant shall also, unless Owner otherwise notifies Tenant 90 days prior to the Fixed
Expiration Date or within a reasonable time following the earlier expiration of this Lease that any
such removal or restoration shall not be performed, remove and restore all Tenant’s Work (unless
such Tenant’s Work is normal office installations) and all Designated Restricted Work and repair
all damage resulting from the installation or




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removal of Tenant’s Property or such Tenant’s Work or Designated Restricted Work. Tenant hereby
waives any notice now or hereafter required by law with respect to vacating the Premises on the
Expiration of the Term. Tenant agrees to reasonably cooperate with Owner and its representatives,
at Owner’s expense, to effectuate a smooth transition of the operation and maintenance of the
Premises. Such cooperation shall include, without limitation, transfers of all keys, existing
maintenance contracts and warranties, and expected operation and maintenance requirements. Any
charges under any maintenance contracts which Owner elects to assume shall be apportioned between
Owner and Tenant as of the Fixed Expiration Date or earlier termination date. All Tenant’s Work
(which is required to be removed by Tenant), Designated Restricted Work and Tenant’s Property not
removed by Tenant by the last day of the Term shall be deemed abandoned in place by Tenant and
shall become the property of Owner. Tenant shall pay or reimburse Owner for any reasonable actual
out-of-pocket costs incurred by Owner (1) in connection with the removal or disposal of such
relinquished property (less the actual salvage value thereof paid to Owner), or (2) in connection
with repairs which were Tenant’s obligation, which obligations shall survive the expiration or
termination of this Lease. Any dispute under this Section shall be resolved by General Arbitration.




     Section 24.2 Holding Over. (a) Tenant acknowledges that possession of the Premises
must be surrendered to Owner on the Expiration of the Term. The parties agree that the damage to
Owner resulting from any failure by Tenant to timely surrender possession of the Premises as
aforesaid will be extremely substantial, will exceed the amount of the monthly installments of the
Base Rent and Additional Rent theretofore payable under this Lease, and will be impossible to
measure accurately. Tenant therefore agrees that if possession of the Premises is not surrendered
to Owner on or before the Expiration of the Term, in addition to any other rights or remedies Owner
may have under this Lease, Tenant shall pay to Owner as final and liquidated damages on account of
use and occupancy of the Premises for each month and for each portion of any month during which
Tenant holds over in the Premises after the Expiration of the Term in lieu of the Rent otherwise
payable under this Lease, a sum equal to the aggregate of (A) all Additional Rent then payable
under this Lease (as if it were in full force and effect), plus (B) the greater of (i) the then
Fair Market Rent (as determined pursuant to this Section) and (ii) the following multiples of the
Base Rent for the last month of the Term: 1.25 for the first 30 days, 1.5 for the next 150 days
and 2.0 thereafter. Nothing herein contained shall be deemed to permit Tenant to retain possession
of the Premises without written consent of Owner after the Expiration of the Term or to limit in
any manner Owner’s right to regain possession of the Premises through summary proceedings, or
otherwise, and no acceptance by Owner of payments from Tenant after the Expiration of the Term
shall be deemed to be other than on account of the amount to be paid by Tenant in accordance with
the provisions of this Section.



          (b) The Fair Market Rent shall be the base rent which an unrelated third party would pay
for the Premises for a 10-year lease and otherwise on the terms of this Lease as changed by this
Section (including, without limitation, no Owner’s Work, no Tenant’s Allowance, no concession and
no brokerage commission payable by Owner). Owner shall give notice to Tenant of Owner’s
determination of the Fair Market Rent. If Tenant disputes Owner’s





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determination, Tenant shall give notice to Owner of the dispute within thirty (30) days after
receipt of Owner’s notice stating Tenant’s determination of the Fair Market Rent. If Tenant shall
not submit that notice, then the Fair Market Rent shall be Owner’s determination of the Fair Market
Rent. If Tenant shall submit that notice, Owner and Tenant shall, within ten (10) days following
Tenant’s notice, designate one independent arbitrator to determine the annual Fair Market Rent. The
arbitrator must be a person having not less than fifteen (15) years’ experience as a commercial
leasing broker in Manhattan, with significant experience in Long Island City. If they fail to
designate an arbitrator within ten (10) days, the arbitrator shall be designated by the President
of the Real Estate Board of New York, Inc. at the request of either Owner or Tenant. The arbitrator
shall determine the Fair Market Rent by selecting either the Fair Market Rent submitted by Owner or
the Fair Market Rent submitted by Tenant, whichever Fair Market Rent the arbitrator determines is
closer to the Fair Market Rent. The determination of the arbitrator shall be binding and conclusive
upon Owner and Tenant, and shall be requested within (thirty) 30 days. The costs and expenses of
the arbitrator shall be paid by Tenant. Each party shall pay the costs and expenses of its own
attorneys and experts and of presenting its evidence. Until the dispute shall be resolved, Tenant
shall pay the Fair Market Rent based upon Owner’s determination (if it is higher than said
multiples), and within thirty (30) days following resolution of the dispute any adjustment shall be
refunded by Owner to Tenant retroactive to the expiration of the Term.




     Section 24.3 Deliveries. Upon the Expiration of the Term (or upon any earlier
termination of this Lease), Tenant shall deliver to Owner, to the extent in Owner’s possession or
control and not previously delivered to Owner, all service and maintenance contracts then affecting
the Premises, all plans and specifications relating to the Premises, true and complete maintenance
records for the Premises, all original (or, if unavailable, copies of) licenses and permits then
pertaining to the Premises, permanent or temporary certificates of occupancy then in effect for the
Building, and all warranties and guarantees then in effect which Tenant has received in connection
with any work or services performed or Base Building Equipment installed in the Building or any
other property remaining in the Premises, together with a duly executed assignment thereof to
Owner, and any and all other documents of every kind and nature whatsoever in Tenant’s possession
relating to the operation of the Premises.



     Section 24.4 Survival. The provisions of this Article shall survive the Expiration
of the Term.



Article 25: Quiet Enjoyment




     Section 25.1. Owner covenants that, as long as no Event of Default exists and is continuing,
Tenant and all Persons claiming by, through or under Tenant, shall and may (subject to the terms
and conditions of this Lease) peaceably and quietly have, hold and enjoy the Premises for the Term
without molestation or disturbance by or from Owner or any Person claiming by, through or under
Owner, including, without limitation, Senior Interest Holders.



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Article 26: General Arbitration




     Section 26.1. In such cases where this Lease provides for the resolution of a dispute by
General Arbitration, and only in such cases, the party desiring arbitration shall give notice to
that effect to the other party, specifying the dispute to be arbitrated, and within ten (10)
Business Days thereafter the dispute shall be submitted for arbitration. The arbitration shall be
administered by the American Arbitration Association in the City of New York, by one arbitrator,
and, to the extent applicable and consistent with this Section, under the then Expedited Procedures
provisions of its Commercial Arbitration Rules. The charges and expenses of the American
Arbitration Association and the arbitrator shall be shared equally by Owner and Tenant and each
party shall be responsible for the fees and disbursements of its own attorneys and the expenses of
its own proof; provided, however, the Prevailing Party’s reasonable costs and expenses (including
attorneys’ fees and disbursements) shall be paid or reimbursed by the other party. Owner and Tenant
shall sign all documents and do all other things necessary to submit any such matter to General
Arbitration, and hereby, waive any and all rights they or either of them may at any time have to
revoke their agreement to submit to General Arbitration. General Arbitration shall be the exclusive
remedy under this Lease for disputes to be resolved by General Arbitration and neither Owner nor
Tenant shall have any right to seek any injunctive or other relief in connection with those
disputes. The arbitrator shall not add to or subtract from or otherwise modify the provisions of
this Article or this Lease. The determination of the arbitrator shall be final and conclusive on
the parties. Either Owner or Tenant may enter judgment on the determination of the arbitrator in
any court of competent jurisdiction.



Article 27: Discharge of Liens




     Section 27.1. Except to the extent created or caused to be created by Owner or any Owner
Party, if any mechanic’s, laborer’s, vendor’s, materialman’s or similar statutory lien, or any
other lien, is filed against any interest in the Premises, Tenant shall, within forty-five (45)
days after Tenant receives notice of the filing of such lien cause it to be bonded or discharged or
record by payment, deposit, order of a court of competent jurisdiction, or otherwise.



     Section 27.2. Except to the extent created or caused to be created by Tenant or any Tenant
Party, if any mechanic’s, laborer’s, vendor’s, materialman’s or similar statutory lien, or any
other lien, is filed against any interest in the Premises, Owner shall, within forty-five (45) days
after Owner receives notice of the filing of such lien cause it to be bonded or discharged of
record by payment, deposit, order of a court of competent jurisdiction, or otherwise.



     Section 27.3. Nothing contained in this Lease shall be deemed or construed to constitute the
consent or request of Owner, express or implied, by implication or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any labor or the furnishing of any
materials for any specific improvement of, alteration to, or repair of, the Premises or any part
thereof on behalf of Owner, nor as giving Tenant any right, power or authority to contract on
behalf of Owner for, or permit the rendering, on behalf of Owner of, any



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services or the furnishing of materials that would give rise to the filing of any lien, mortgage or
other encumbrance against the Premises or any part thereof or against any assets of Owner.




Article 28: Representations and Warranties




     Section 28.1. Owner Representations. (a) Owner represents that it has not dealt with
any broker, finder or like entity in connection with this Lease or the transactions contemplated
hereby other than the Broker, whose commission shall be paid by Owner pursuant to a separate
written agreement. If any claim is made by any broker or finder for a brokerage commission or fee
in connection with this Lease or the transactions contemplated hereby, Owner will indemnify, defend
and hold harmless Tenant from any and all liabilities and expenses, including reasonable attorneys’
fees and disbursements in connection therewith resulting from a misrepresentation of the matters
set forth in this Section. The provisions of this Section shall survive the Expiration of the Term.



          (b) Owner represents that (i) it is duly formed and validly existing, (ii) the execution,
delivery and performance by Owner of this Lease has been duly authorized by all necessary action,
and is the valid agreement of Owner, enforceable in accordance with its terms, and (iii) on the
date of this Lease, Owner owns or controls the property within the Square Block indicated on
Exhibit C.




          (c) Tenant confirms that, except for the representations expressly contained in this Lease
(including the Exhibits to this Lease), (a) no representations, statements, or warranties, express
or implied, have been made by, or on behalf of, Owner with respect to the Premises or the
transaction contemplated by this Lease, the physical condition thereof, the zoning or other laws,
regulations, rules and orders applicable thereto or the use that may be made of the Premises, and
(b) Tenant has relied on no such representations, statements or warranties.




     Section 28.2. Tenant Representations. (a) Tenant represents that it has not dealt with
any broker, finder or like entity in connection with this Lease or the transactions contemplated
hereby, other than the Broker. If any claim is made by any other broker or finder who claims to
have dealt with Tenant in connection with this Lease or the transactions contemplated hereby, for a
brokerage commission or fee in connection with this Lease or the transactions contemplated hereby,
Tenant will indemnify, defend and hold harmless Owner from any and all liabilities and expenses,
including reasonable attorneys’ fees and disbursements in connection therewith resulting from a
misrepresentation of the matters set forth in this Section. The provisions of this Section shall
survive the Expiration of the Term.



          (b) Tenant represents that (i) it is duly formed and validly existing and (ii) the
execution, delivery and performance by Tenant of this Lease has been duly authorized by all
necessary action and is the valid agreement of Tenant, enforceable in accordance with its terms.





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Article 29: Development Rights




     Section 29.1.
Except as otherwise expressly provided in Section 6.4, Tenant
agrees that (a) any and all zoning, development or air rights in respect to (or which may be
appurtenant or attributable to) the Premises (collectively, “Development Rights”) are not leased to
Tenant and shall be deemed excluded from the Premises, (b) Owner may sell or encumber the
Development Rights or any part thereof, (c) Owner may merge the Land with any other zoning lot, and
(d) Owner may grant easements for light and air with respect to or affecting the Premises, all
without Tenant’s consent, approval or waiver. Except as expressly provided in this Lease, Tenant
shall not have any interests in or right to dispose of any Development Rights. Tenant shall execute
and deliver to Owner within 10 Business Days of Owner’s request, a statement confirming the
aforesaid or any documents reasonably required in order to document the foregoing.



Article 30: Incentives




     Section 30.1. Tenant and Owner acknowledge that (a) Owner has obtained a conditional
approval for up to [*****] Incentives which, as the result of this Lease, may not be
available to Owner and (b) Tenant intends to apply for certain additional Incentives. Owner shall
reasonably cooperate with Tenant, at no expense to Owner or any Owner Parties, in connection with
Tenant’s application for the Incentives from the Agencies, including any reasonable modifications
to this Lease requested by an Agency in connection with the Incentives that do not, other than by a
de minimis degree, increase Owner’s obligations under this Lease or affect or diminish the
rights or remedies of Owner or any Owner Party under this Lease. Any Incentives obtained by Tenant
shall be at Tenant’s expense and shall belong to Tenant. Any Incentives obtained by Owner shall be
at Owner’s expenses and shall, except as expressly provided in this Lease, belong to Owner. Any
Incentives in excess of [*****] (whether obtained by Owner or
Tenant) shall belong to Tenant. To the extent the amount of Incentives made available to Owner
by the Agencies is less than [*****] Tenant shall reimburse to Owner as Owner pays same,
within 10 Business Days following Owner’s request, all sales and mortgage taxes paid by Owner
between the amount of the Incentives actually made available to Owner by the Agencies, if any, and
[*****] Tenant hereby acknowledges that except as provided in this Section, Owner shall have no obligation
to incur any obligation or liability to Tenant or the Agencies in connection with Tenant’s
Incentives.



     Section 30.2. Owner shall execute such documents as are reasonably necessary for the Agency
to have sufficient interest in the Premises to deliver the Incentives to Owner and to issue a sales
tax exemption letter to Owner relating to the exemption from sales tax of Owner’s Work. Owner shall
use commercially reasonable efforts to (a) comply with the requirements of the sales tax letter and
the related documents, including, without limitation, maintaining a register of the sales tax
exemption taken by the use of the sales tax exemption letter and either incorporating the requisite
provisions which are contained in the sales tax exemption letter into each contract entered into by
Owner in connection with Owner’s Work or informing the contractors of those provisions, (b) cause
its contractors and vendors in connection with Owner’s Work to utilize the



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sales tax exemption letter to the fullest extent possible (but not with respect to any items
covered or which may be covered by a certificate of capital improvements) and (c) report the sales
tax savings pursuant to the sales tax exemption letter to Tenant periodically and to the Agency as
required by the sales tax exemption letter, but Owner’s failure to do so shall not be an Owner
Default, give rise to any liability by Owner or allow Tenant any reduction or abatement of Rent.




     Section 30.3. Owner shall advise Tenant prior to the delivery of a mortgage on the Owner’s
interest in the Premises so that Owner or Tenant may obtain mortgage recording tax exemption on
such mortgage. Owner and Tenant shall, without obligation, liability or expense, cooperate with
each other and the Agency in obtaining such mortgage tax exemption, and the amount of such
exemption shall be deemed to be made available to Owner for the purpose of Article 30.1.



     Section 30.4. In order to obtain sales and use tax exemptions, subject to and in accordance
with this Lease, as if same was a Major Sublease, Tenant may sublet the Premises to an Agency and,
if it does, that Agency shall sublease the Premises to Tenant.



     Section 30.5. In order to obtain exemption from real estate taxation and to qualify pursuant
to an Agency’s payment in-lieu-of-tax (“PILOT”) program, Owner shall convey fee title to-the Land
and the Building to an Agency. The deed to the Agency shall provide that title shall revert back to
Owner upon termination of this Lease for any reason and the Agency shall enter into a lease with
Owner for the Land and the Building in form and substance reasonably satisfactory with Owner, which
shall not require Owner to incur any obligations or liabilities which are not Tenant’s obligations
under this Lease. Owner shall reasonably cooperate with Tenant, at Tenant’s expense, in connection
with said PILOT program, including executing such documents and agreements as may be required in
connection therewith, but Owner shall not be required to incur any obligation or liability. All
reasonable out of pocket expenses incurred by Owner in connection with said conveyance and lease,
including, without limitation, reasonable attorneys fees, shall be paid by Tenant.



Article 31: Parking




     Section 31.1. (a) Owner shall make available to Tenant during the Term the land shown
hatched on Exhibit K to this Lease (or, if Tenant shall renew the Term as provided in this
Lease for less than all of the Building, Tenant shall have the right to only Tenant’s proportionate
share of that land) for Tenant’s exclusive use for parking for Tenant, Tenant’s Affiliates,
Subtenants and visitors of any of the foregoing, at a charge [*****] month per car space which can be
placed on that land (which, as of the date of this Lease, shall be deemed to be approximately 28
spaces), plus a monthly charge [*****] each car stacker space placed on that land by Tenant, which
charges shall increase on each anniversary of the first day of the month in which occurs the
Initial Premises Substantial Completion Date to an amount equal the parking charge for the prior
12-month period [*****] that charge. Tenant shall pay such charges on the first day of each month during
the Term. Tenant acknowledges that (1) Owner shall have no responsibility



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for, and shall not be responsible to take any action whatsoever in respect of, other persons who
may park on that land or interfere with Tenant’s use of that land unless any such person is Owner
or any Owner Party, (2) Owner provides no security or other services to or for that land, (3) Owner
shall have no responsibility for any occurrence on that land including, without limitation, any
damage to Tenant’s vehicles unless caused by Owner or any Owner Party, (4) Tenant shall be
responsible for that land (but not the payment of any Real Estate Taxes attributable to that land),
and this Lease shall apply to that land, as if it were part of the Premises (except Tenant shall
perform no Tenant’s Work with respect to that land), and (5) Tenant shall accept the land in its
“AS IS” condition, except that Owner shall, at Owner’s expense, prior to charging Tenant for any
such parking space, place a surface on that land suitable for parking, as reasonably determined by
Owner, which may be crushed stone or other surface. In no event shall Owner arrange for the towing
of any cars parked on such land. Tenant shall comply, and cause any Tenant Party to comply, with
all reasonable rules and regulations established by Owner, including, without limitation, any
sticker or other identification system, whether now or hereafter in effect.




          (b) Tenant shall have the right, by notice to Owner on or before the 90th day following the
date of this Agreement and prior to the end of each Lease Year, to remove portions of the land from
this Article (subject to Owner’s reasonable approval of the location of the land removed) for the
period prior to the Base Rent Commencement Date with respect to the Initial Premises or for the
following Lease Year, as the case maybe, or, if then available (and subject to the provisions of
this Article), increase the land for the following Lease Year (but not land other than the land
originally shown as Tenant’s parking on Exhibit K).




          (c) If for any reason Owner improves or desires to improve any land covered by this Article,
Owner shall have the right to eliminate that land from this Article without replacement, unless
replacement land is then available which is owned or controlled by Owner within the Square Block.




          (d) Any dispute under this Article shall be resolved by General Arbitration.




Article 32: Tenant’s Right to Purchase




     Section 32.1. Tenant’s Right of First Offer. (a) If (i) there is then no Material
Event of Default, (ii) this Lease is otherwise in full force and effect, (iii) Tenant named herein
(or an Affiliate of that Tenant) is the tenant under this Lease and is occupying not less than [*****]
rentable square feet of the Building (not recaptured by Owner pursuant to this Lease and
disregarding any Major Sublease referred to in Section 30.4), and (iv) Tenant’s right under this
Article with respect to the Offered Property (as defined below) in question has not been terminated
pursuant to any express provision set forth in this Lease, if at any time during the Term Owner
desires to sell (1) the Land and/or Building (or any part thereof but not any unused Development
Rights applicable thereto), (2) any real property owned or controlled by Owner within the Square
Block (or any part thereof but not any unused Development Rights applicable



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thereto) or (3) all or substantially all of the ownership interests in Owner (collectively, the
“Offered Property”), to an unrelated third party, Owner shall give notice thereof to Tenant, which
notice shall include an offer by Owner to Tenant for Tenant to purchase the Offered Property
pursuant to the economic terms set forth in Owner’s notice. Tenant shall have the right, to be
exercised by notice by Tenant to Owner within 60 days following receipt of Owner’s notice (time
being of the essence), to purchase the Offered Property on the terms set forth in Owner’s notice
and on such other reasonable terms which ordinarily apply to similar transactions.




          (b) If Tenant shall not timely exercise Tenant’s right under this Article (i) Tenant
shall confirm same to Owner, in writing, within ten (10) Business Days after Owner’s request, and
shall no longer have any rights under this Article with respect to the Offered Property in question
and (ii) Owner may sell the Offered Property to any third party on any terms desired by Owner, but
if the net effective purchase price to be charged to said third party is less than 90 percent of
the net effective purchase price set forth in Owner’s notice delivered to Tenant, or if Owner has
not entered into a contract to sell the Offered Property within 270 days following the end of the
60-day period set forth in paragraph (a) of this Section, Owner must, if Tenant is then pursuant to
the terms of this Lease entitled to exercise any of such rights (1) first offer to sell the Offered
Property to Tenant on the terms offered to said third party, or (2) if a contract was not entered
into within said 270 days, first offer to sell the Offered Property to Tenant as provided in this
Section before selling the Offered Property to any unrelated third party. If Tenant shall timely
exercise Tenant’s rights under this Section, Owner shall sell to Tenant, and Tenant shall purchase
from Owner, the Offered Property in accordance with this Section. If the Land or the Building (or
any part thereof), any real property owned or controlled by Owner within the Square Block (or any
part thereof) or all or substantially all of the ownership interests in Owner is conveyed to an
Affiliate of Owner prior to same becoming an Offered Property under this Section 32.1, then that
Affiliate shall be required to comply with this Section.




     Section 32.2. Tenant’s Right to Purchase a Noncontrolling Interest in the Building.
(a) If (i) there is not then a Material Event of Default, (ii) this Lease is otherwise in full
force and effect, (iii) Tenant named herein (or an Affiliate of that Tenant) is the tenant under
this Lease and is occupying not less than [*****] table square feet of the Building (not recaptured by
Owner pursuant to this Lease and disregarding any Major Sublease referred to in Section 30.4), and
(iv) the aggregate of (1) the rentable square feet leased by Tenant pursuant to Article 33 and (2)
the buildable square footage of any land (other than the land originally included in the Premises)
within the Square Block purchased from Owner by Tenant pursuant to this Article, equals or exceeds [*****]
 square feet, Tenant or an Affiliate of Tenant shall have the right, to be exercised by notice
given by Tenant to Owner at any time between the dates which are the 10th and 15th anniversaries of
the Base Rent Commencement Date with respect to the Initial Premises (time being of the essence),
to purchase for an all cash purchase price, [*****] ownership interest in the Building (and not in any
other property owned or controlled by Owner within the Square Block) for the price an unrelated
third party would pay for [*****] controlling ownership interest in Building.



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          (b) If Tenant shall timely exercise Tenant’s right under this Section (i) Owner shall sell to
Tenant or Tenant’s Affiliate, and Tenant or Tenant’s Affiliate shall purchase from Owner, on the
first business day which is thirty (30) days following the determination of the price for the
interest pursuant to this Section, for all cash, [*****] ownership interest in the Building (which purchase
price shall belong solely to the then members of Owner and not Tenant or Tenant’s Affiliate), and
(ii) Owner’s operating agreement shall be amended, if necessary, to provide that (1) all decisions
shall be made by the Person or Persons who controlled Owner prior to the closing under this Section
(including, without limitation, sale and refinancing and the requirement of all owners to
contribute prorata additional capital required in connection with Owner or its property; but any
decision (A) to admit new members, or to modify the operating agreement, so as to dilute the
percentage ownership of Tenant or Tenant’s Affiliate, unless such dilution is the result of a
default by Tenant or Tenant’s Affiliate under the operating agreement, or (B) to engage in any
business other than the ownership of the Premises and any other property within the Square Block,
shall require the consent of Tenant or Tenant’s Affiliate; and Owner shall not be operated in any
manner which discriminates against Tenant nor Tenant’s Affiliate in favor of any other member of
Owner), (2) Tenant or Tenant’s Affiliate and, as a group, the owners who owned the Building
immediately prior to Tenant’s purchase under this Section, shall each have a right of first offer
in its favor if the other desires to sell its interest in the Building to an unrelated third party
and (3) if the interest of Tenant or Tenant’s Affiliate is sold to such owners or in connection
with any other sale of the interests or assets of Owner, the interest of Tenant or Tenant’s
Affiliate shall be valued at the same noncontrolling discount as was applied
to its purchase of the noncontrolling interest.




          (c) If Tenant timely exercises Tenant’s right under this Section, on or about the 15th day
following Owner’s receipt of Tenant’s notice, Owner shall give notice to Tenant of Owner’s
determination of the price for the interest. If Tenant disputes Owner’s determination, Tenant shall
give notice to Owner of the dispute within fifteen (15) days after receipt of Owner’s notice
stating Tenant’s determination of the price (time being of the essence). If Tenant shall not submit
that notice, then the price shall be Owner’s determination of the price. If Tenant shall submit
that notice, Owner and Tenant shall, within ten (10) days following Tenant’s notice, designate one
independent arbitrator to determine the price. The arbitrator must be a person having not less than
fifteen (15) years’ experience as a commercial sales broker in Manhattan, with significant
experience in Long Island City, specializing in transactions such as the transaction described in
this Section. If they fail to designate an arbitrator within ten (10) days, the arbitrator shall be
designated by the President of the Real Estate Board of New York, Inc. at the request of either
Owner or Tenant. The arbitrator shall determine the price by selecting either the price submitted
by Owner or the price submitted by Tenant, whichever price the arbitrator determines is closer to
the arbitrator’s determination of the price. The determination of the arbitrator shall be binding
and conclusive upon Owner and Tenant. The determination of the arbitrator shall be requested within
thirty (30) days. The costs and expenses of the arbitrator shall be paid 50 percent by Owner and 50
percent by Tenant. Each party shall pay the costs and expenses of its own attorneys and experts and
of presenting its evidence.





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     Section 32.3. Tenant’s rights under this Article shall only apply to, and may only be
exercised by, Tenant named herein or its Affiliate.



     Section 32.4. Except as provided in this Article, any dispute under this Article shall be
resolved by General Arbitration.



Article 33: Tenant’s Right to Expand




     Section 33.1. Tenant’s Right. (a) Subject to the provisions of this Section, Owner
shall include in the Premises all (but not part) of the additional square footage which pursuant to
the Zoning Resolution and the pending upzoning referred to in this Lease can be added to the
Expansion Land by constructing the core and shell, and Base Building Systems, of an addition to the
Building (together with the Expansion Land shown on Exhibit C to this Lease, but not including any
Tenant’s Work, the “Addition”) on the Expansion Land (“Owner Addition Work”) using all of the
available Development Rights and the pending upzoning referred to in this Lease applicable to the
Premises and any land owned or controlled by Owner within the Square Block (and for such purpose
Owner shall demolish any buildings on the Expansion Land but shall not demolish any buildings not
on the Expansion Land which are on any other land owned or controlled by Owner within the Square
Block). In connection with the Addition, Owner shall, as soon as practicable following the date of
this Lease, transfer any required Development Rights to the Expansion Land.



          (b) During the period of 60 days following the date of this Lease, Owner and Tenant shall, in
good faith (i) cooperate with each other (taking into account that Tenant desires to occupy the
Addition by October 1, 2003) to develop detailed specifications for the overall size of the
Addition and for Owner’s Addition Work, which specifications shall be consistent in all respects
with Owner’s Work (including, without limitation, all finishes, Base Building Systems, Base
Building Equipment, the façade and all structural elements), Owner’s Plans, the primary use of the
Addition as office space in accordance with this Lease, the conditions and specifications for the
Addition attached to this Lease as Exhibit O (and if those conditions and specifications
are inconsistent with Owner’s Work, those conditions and specifications shall control) and
otherwise reasonably acceptable to Owner and Tenant, and (ii) plan the expeditious vacating of the
buildings on the Expansion Land. Notwithstanding the foregoing, Owner shall construct the Addition
as a free-standing building separate from the Building (with a separate entrance and core) provided
that the filings with respect thereto comply with the alteration requirements of the applicable
Governmental Authority (if required) and the floors of the Addition are open and match with the
floors of the Building.




          (c) On or before the date which is 65 days following the date of this Lease, Owner shall
deliver to Tenant all of the following (“Owner’s Determinations”): (i) Owner’s desired Base Rent
for the Addition on a “gross” basis with respect to Real Estate Taxes (with the base year for Real
Estate Taxes being the first 12 full calendar months following the Substantial Completion of the
Addition) and a “net” basis with respect to Owner’s insurance premiums and




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all other operating expenses, which Base Rent shall not exceed $33.00 per rentable square foot of
the Addition with fixed increases of the Base Rent every five years (commencing on the Substantial
Completion of the Addition) not exceeding $3.50 per rentable square foot of the Addition, (ii)
Owner’s date for enclosing the Addition and providing Tenant with access to the Addition for the
commencement of Tenant’s Work, which date shall not be later than June 1, 2003, subject to Tenant
Delays, Unavoidable Delays (which, for the purposes of this Section shall include, without
limitation, delays related to the vacating of the four existing tenants, and any subtenants, of the
buildings required to be demolished in connection with the Addition) and Construction Arbitration
delays as provided in Article 5, (iii) Owner’s date for the Substantial Completion of Owner’s
Addition Work (as Substantial Completion of Owner’s Work is defined in this Lease with respect to
the Balance Space), which date shall not be later than December 31, 2003, subject to the delays
referred to in clause (ii), and (iv) Owner’s schedule for the development of Owner’s Plans for the
Owner’s Addition Work, which shall include Tenant’s response times for its approval or disapproval
consistent with Section 6.2(b).




          (d) On or before the date which is 10 days following the date Tenant receives Owner’s
Determinations, Tenant shall give notice to Owner as to whether (i) Tenant accepts all of Owner’s
Determinations (Tenant not having the right to accept only a portion of Owner’s Determinations) or
(ii) Tenant waives Tenant’s right to expand as set forth in this Section.




          (e) If Tenant waives Tenant’s right to expand as set forth in this Section (i) Tenant shall no
longer have the right to expand under this Section and (ii) Owner and Tenant shall, within twenty
(20) Business Days following receipt from the other of a reasonably detailed list with supporting
back-up documentation, reimburse the other 50% of all reasonable out-of-pocket costs incurred by
the other in connection with the other’s efforts under this Section, including without limitation,
the costs of transferring the required Development Rights to the Expansion Land, and the reasonable
fees of its construction manager, architects, attorneys, accountants and other professionals (but
not its overhead or the time of its employees).




          (f) If Tenant shall not waive Tenant’s right to expand as set forth in this Section and the
pending upzoning shall not then be effective, then unless Owner and Tenant agree otherwise, Owner
and Tenant shall take no further action under this Section and all dates in Owner’s Determinations
shall be extended until the pending upzoning is effective, at which time the remaining provisions
of this Section shall apply. If the pending upzoning is not effective by December 31, 2001, this
Section shall be deemed null and void and of no further force and effect, Tenant shall have no
right to expand pursuant to this Section, and the provisions of paragraph (e) of this Section shall
apply.




          (g) If Tenant shall not waive Tenant’s right to expand as set forth in this Section and the
pending upzoning is then or (prior to December 31, 2001) becomes effective, the Addition shall then
be included in the Premises on the same terms and conditions as are set forth in this Lease (and
Owner and Tenant shall as soon as practicable enter into an amendment of this Lease incorporating
the details of Owner’s Addition Work and the other aspects of this Section),




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except (i) the Base Rent for the Addition shall be the Base Rent set forth in Owner’s
Determinations (but Tenant shall have the right, at any time prior to the Substantial Completion of
Owner’s Addition Work, to waive Tenant’s free rent period for the Addition and/or Tenant’s Addition
Allowance (as defined below), in which event the Rent shall be reduced accordingly), (ii) the Rent
for the Addition shall commence 120 days after the Substantial Completion of Owner’s Addition Work,
which may be performed in full contiguous floor stages (either top down or bottom up), in which
event the Rent for any such full floor shall commence 120 days after substantial completion of that
floor, (iii) Owner shall prepare plans (“Owner’s Addition Plans”) for Owner’s Addition Work,
consistent with the specifications developed by Owner and Tenant pursuant to this Section, for
Tenant’s approval, pursuant to the schedule set forth in Owner’s Determinations, (iv) Owner shall
perform Owner’s Addition Work in accordance with Owner’s Addition Plans, (v) Owner shall provide
Tenant with access to, and shall substantially complete Owner’s Addition Work, on or before the
dates (as same may be extended pursuant to paragraph (f) of this Section) set forth in Owner’s
Determinations (and shall use commercially reasonable efforts, without delaying Owner’s Addition
Work, or increasing the cost thereof, to provide Tenant with the earliest possible occupancy of the
Addition), subject to the delays referred to in paragraph (c)(ii) of this Section (and shall,
during construction, minimize interfering with the conduct of Tenant’s business in the Premises),
(vi) Owner and Tenant shall cooperate with each other, at Tenant’s expense with respect to Orkin
Exterminating (including, without limitation, any payments required to be made to Orkin
Exterminating, which payments in excess of $75,000 shall be subject to Tenant’s approval), to
vacate the buildings which must be vacated in connection with the Addition at the earliest possible
date (and Owner shall make reasonable efforts to cause the buildings to be vacated and, to the
extent commercially reasonable, shall perform Owner’s Addition Work pending the vacating of the
buildings), and (vii) the provisions of Section 19.2 shall apply to the Addition prior to the
Substantial Completion of Owner’s Addition Work and the provisions of Section 19.1 shall apply to
the Addition from and after the Substantial Completion of Owner’s Addition Work. As soon as
practicable following Tenant’s determination not to waive Tenant’s right to expand, Owner shall
vacate and demolish any buildings which are required to be vacated and demolished and commence, and
thereafter diligently pursue, Owner’s Addition Work. Owner’s Addition Work shall be performed as if
it were Owner’s Work and all of the provisions of Article 5 shall apply, to the extent applicable,
but the time frames for Substantial Completion of Owner’s Addition Work, other specific dates,
Exhibit G, and payments for delays shall not apply. Tenant’s Work to initially prepare the Addition
for Tenant’s occupancy shall be performed as if it were Tenant’s Initial Work and all of the
provisions of Article 6 shall apply, to the extent applicable, including, without limitation, the
payment to Tenant of an allowance (“Tenant’s Addition Allowance”) equal to $30.00 per rentable
square foot of the Addition, which shall be paid in accordance with Section 6.3(a), and the right
of Tenant, in accordance with this Lease as if it were Tenant Initial Work, to the extent of
available Development Rights, to place a structure on the roof of the Addition, but the balance of
Section 6.3 and Section 6.4 shall not apply. Tenant shall, in addition to the signage rights under
Section 35, but subject to the provisions thereof, have the same signage rights with respect to the
Addition as it does with respect to the Premises.





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          (h) If Owner shall not provide Tenant with access to the Addition by the required date
or Substantially Complete Owner’s Addition Work by the required date, subject to extension pursuant
to paragraph (f) of this Section and the delays referred to in paragraph (c)(ii) of this Section,
Tenant shall, as Tenant’s sole remedy, be permitted an offset against the Base Rent for the
Addition (following any free rent period) in an amount equal to the number of days by which Owner
failed to meet those dates, multiplied by (i) for the first 90 days of such failure, an amount
equal to 50% of the per diem Base Rent for the Addition and (ii) thereafter, an amount equal to the
per diem Base Rent for the Addition.




          (i) As soon as practicable, Owner and Tenant shall execute, acknowledge and deliver an
amendment of this Lease prepared by Owner and reasonably acceptable to Tenant confirming the terms
on which the Addition is included in the Premises, including, without limitation, confirming the
rentable square feet of the Addition, which shall be based upon a measurement of the usable area of
the Addition in accordance with the Real Estate Board of New York, Inc.’s 1987 Recommended Method
of Floor Measurement for Office Buildings (a copy of which is attached to this Lease as Exhibit
N) assuming a 19% loss factor (and for below grade space, the measurement shall be based on the
same method but there shall be no loss factor applicable to Below Grade, Cellar and Sub-Cellar
Space).




     Section 33.2 Tenant’s Right of First Offer. (a) If (i) there is then no Material
Event of Default, (ii) this Lease is otherwise in full force and effect, (iii) Tenant named herein
(or an Affiliate of that Tenant) is the tenant under this Lease and is occupying not less than
300,000 rentable square feet in the Building (not recaptured by Owner pursuant to this Lease and
disregarding any Major Sublease referred to in Section 30.4), (iv) Tenant’s right under this
Article has not been terminated pursuant to any express provision set forth in this Lease, and (v)
on the estimated date of substantial completion of construction under this Section (as reasonably
determined by Owner’s construction manager or general contractor), the remaining Term shall be 10
years or more (including the extended term if Tenant has then duly exercised, or simultaneously
with Tenant’s exercise of Tenant’s right under this Section duly exercises, Tenant’s right to
extend the Term as provided in this Lease), if at any time during the Term Owner desires to lease
all or any part of any office space erected or to be erected by Owner on any property owned or
controlled by Owner within the Square Block (collectively, the “Leased Property”) to an unrelated
third party, Owner shall give notice thereof to Tenant, which notice shall include an offer by
Owner to Tenant for Tenant to lease the Leased Property at the rent and other terms set forth in
Owner’s notice, and otherwise on the terms of this Lease (including, without limitation, the Fixed
Expiration Date). Tenant shall have the right, to be exercised by Tenant’s notice to Owner within
60 days following receipt of Owner’s notice (time being of the essence), to lease the Leased
Property. Tenant’s right under this Article shall not apply to the use, leasing or development of
any portion of said property for any purpose other than offices, and if Owner shall desire to do so
Tenant shall not have any right with respect thereto pursuant to this Article, and Tenant’s rights
under Article 32 shall not apply to that portion of said property.



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          (b) If Tenant shall not timely exercise Tenant’s right under this Section (i)
Tenant shall confirm same to Owner, in writing, within ten (10) Business Days after Owner’s
request, and shall no longer have any rights under this Article with respect to the Leased Property
in question, (ii) the construction shall not tie into any portion of the Building occupied by
Tenant or Tenant’s Affiliates and (iii) Owner may lease the Leased Property to any third party on
any terms desired by Owner, but if the net effective rent to be charged to said third party is less
than 90 percent of the net effective rent set forth in Owner’s notice delivered to Tenant, or if
Owner has not entered into a lease for the Leased Property within 270 days following the end of the
60 day period set forth in paragraph (a) of this Section, Owner must (1) first offer to lease the
Leased Property to Tenant on the terms offered to said third party (and otherwise on the terms of
this Lease, including, without limitation, the Fixed Expiration Date) or (2) if a lease is not
entered into within said 270 days, first offer to lease the Leased Property to Tenant as provided
in this Section before leasing the Leased Property to any unrelated third party. If Tenant shall
timely exercise Tenant’s right to lease the Leased Property, Owner shall lease to Tenant, and
Tenant shall lease from Owner, the Leased Property in accordance with this Section. If any real
property owned or controlled by Owner within the Square Block (or any part thereof) is conveyed to
an Affiliate of Owner prior to same becoming a Leased Property under this Section 33.2, then that
Affiliate shall be required to comply with this Section.




     Section 33.3 No Liability. Except for the negligence or willful acts of Owner or any
Owner Party, Owner shall have no obligation or liability to Tenant, and there shall be no abatement
of Rent, in connection with any inconvenience or annoyance caused by any construction pursuant to
this Article, except that Owner shall use reasonable efforts to minimize any inconvenience or
annoyance.



     Section 33.4 Tenant’s rights under this Article shall only apply to, and may only be
exercised by, Tenant named herein or its Affiliate.



     Section 33.5 Disputes. Any dispute under Section 33.1 shall be resolved by
Construction Arbitration and any dispute under Section 33.2 shall be resolved by General
Arbitration.



Article 34: Tenant’s Right to Extend the Term




     Section 34.1. Extension Right. (a) If (i) there is no Material Event of Default on
the date Tenant exercises Tenant’s right under this Section and on the date the extended term
commences, (ii) this Lease is otherwise in full force and effect, and (iii) Tenant (or an Affiliate
of Tenant) is occupying not less than 180,000 rentable square feet of the Building (not recaptured
by Owner pursuant to this Lease and disregarding any Major Sublease referred to in Section 30.4)
plus 50% of the space referred to in clauses (2) and (3) of this paragraph on the date Tenant
exercises Tenant’s right under this Section and the date the extended term commences, Tenant shall
have the right to extend the Term for a period of 10 years, commencing on the day immediately
following the Fixed Expiration Date, with respect to not less than all of the



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following: (1) three full, contiguous floors (a floor to include any extensions of a floor
resulting from an expansion of the Building pursuant to this Lease) above the cellar, (2) all space
constructed by Tenant on the roof of the Building and (3) all space constructed by or for Tenant
within the Square Block (but not on the Expansion Land) pursuant to this Lease, but Tenant shall
not have the right to include (A) any partial floors (except the cellar, but only Tenant’s
proportionate share of the cellar based on the rentable square feet covered by Tenant’s exercise),
(B) any Potential Common Areas (unless Tenant’s exercise covers all of the Building not recaptured
by Owner pursuant to this Lease), or (C) any space previously recaptured by Owner for the balance
of the Term pursuant to this Lease. The extended term shall be on the same terms as this Lease,
except that (x) the annual Base Rent shall be the annual Fair Market Base Rent determined pursuant
to this Section, and (y) Tenant shall have no further right to extend the Term.




          (b) The annual Fair Market Base Rent shall be the annual base rent which an unrelated
third party would pay for the Premises (to the extent covered by Tenant’s exercise) for a 10-year
lease commencing on the Fixed Expiration Date (but determined on or about the 180th day before the
Fixed Expiration Date) and otherwise on the terms of this Lease as changed by this Section
(including, without limitation, no Owner’s Work, no Tenant’s Allowance, and no concession or
lease-up time, but including any brokerage commission payable by Owner). If Tenant timely exercises
Tenant’s right under this Section, on the date and at the location mutually agreed upon by Owner
and Tenant (which location shall be in Manhattan and which date shall be on or about the 180th day
before the Fixed Expiration Date, or the first Business Day thereafter), Owner and Tenant shall
meet and at that meeting shall simultaneously exchange their respective determinations of the
annual Fair Market Base Rent. If either party shall not submit that determination at that meeting,
then the annual Base Rent for the extended term shall be the other party’s determination of the
annual Fair Market Base Rent. If Owner and Tenant cannot agree on the annual Fair Market Fixed Rent
within ten (10) days following the exchange of the determinations, Owner and Tenant shall, within
ten (10) days following the exchange, designate one independent arbitrator to determine the annual
Fair Market Base Rent. The arbitrator must be a person having not less than 15 years’ experience as
a commercial leasing broker in Manhattan, with significant experience in Long Island City. If they
fail to designate an arbitrator within ten (10) days, the arbitrator shall be designated by the
President of the Real Estate Board of New York, Inc. at the request of either Owner or Tenant. The
arbitrator shall determine the annual Fair Market Base Rent by selecting either the annual Fair
Market Base Rent submitted by Owner to Tenant or the annual Fair Market Base Rent submitted by
Tenant to Owner pursuant to this Section, whichever annual Fair Market Base Rent the arbitrator
determines is closer to the annual Fair Market Base Rent. The determination of the arbitrator shall
be binding and conclusive upon Owner and Tenant, and shall be requested within thirty (30) days.
The costs and expenses of the arbitrator shall be paid 50 percent by Owner and 50 percent by
Tenant. Each party shall pay the costs and expenses of its own attorneys and experts and of
presenting its evidence. If the dispute shall not be resolved prior to the Fixed Expiration Date,
then pending the resolution of the dispute, Tenant shall pay the Base Rent based upon Owner’s
determination of the annual Fair Market Base Rent, and within thirty (30) days following





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resolution of the dispute any adjustment shall be refunded by Owner to Tenant retroactive to
the first day of the extended term. Except for the change, if any, of the annual Base Rent, and the
changes set forth in this Section, no other term of this Lease shall change.




          (c) Tenant’s right under this Section must be exercised by Tenant giving Owner notice of such
exercise (and designating the space for which the Term is extended) on or before the date which is
eighteen (18) months before the Fixed Expiration Date (time being of the essence).




          (d) If Tenant shall timely exercise Tenant’s right under this Section (i) the Term shall be
deemed extended for the extended term without any other or further document being required, except
to confirm the Base Rent and, if Tenant’s exercise is for less then all of the Building, to amend
this Lease so that (1) Tenant’s right to use the roof, shaft space, mechanical space and riser
space shall not be exclusive and shall not exceed Tenant’s prorata portion thereof based on the
rentable square feet covered by Tenant’s exercise, and (2) the Lease shall be amended so that it is
a lease which reflects a multi-tenanted building as provided in Exhibit I to this Lease.




Article 35: Building Name; Signage




     Section 35.1. (a) Provided (i) there is not then a Material Event of Default, (ii) this Lease
is otherwise in full force and effect, and (iii) Tenant named herein (or an Affiliate of that
Tenant) is the tenant under this Lease, (1) the Building may be known as the “MetLife Building” or
the name of any Affiliate of Tenant named herein or any successor to Tenant named herein or its
Affiliate by merger, consolidation or sale of assets, or any derivations of such name, and (2)
Tenant shall have the right, at its expense, in accordance with all of the provisions of this
Lease, including, without limitation, Tenant’s Work provisions, to place not more than two signs
containing that name and/or the logo of that Tenant or Affiliate on the exterior walls of the
Building, not more than two such signs on the roof of the Building and not more than two such signs
on the lobby walls of the Building, subject to Owner’s approval, which shall not be unreasonably
withheld. Any other tenant or subtenant of the Building shall have only the right to be listed on
the lobby directory, unless the tenant or subtenant is on the Ground Floor, in which event the
tenant or subtenant may place one tasteful identification sign on its storefront (and may maintain
other tasteful window displays), subject to Owner’s and Tenant’s reasonable approval. Owner and its
managing agent may also have normal identification signs on and in the Building, the locations and
size of which shall be subject to Tenant’s reasonable approval. Upon the expiration or sooner
termination of this Lease or when Tenant’s name and roof sign rights are terminated as provided in
this Section, Tenant shall remove all, or the relevant, signs and repair any damage to the Building
as a result of installation or removal. Nothing contained herein shall give Owner any interest in
or right to Tenant’s name, but Owner and Tenant may refer to the Building name and use the
Building’s likeness in advertising and other promotional materials concerning its business or the
business of its Affiliates (but with respect to Owner and Owner’s Affiliates, only their business
related to real estate). If Tenant shall renew the Term for less than








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all of the Building pursuant to Tenant’s right set forth in this Lease, Tenant shall no longer have
the right to name the Building or to maintain roof signs. If any other tenant and its Affiliates
shall lease more space in the Building than Tenant and its Affiliates, Tenant and its Affiliates
shall no longer have the right to have signs on the exterior walls or in the lobby of the Building
(other than directory listings) and Owner may only then give that tenant or any of its Affiliates
the right to have signs on the exterior walls of the Building, the roof of the Building and the
walls of the lobby of the Building (in which event the restrictions on Owner’s use of the Building
name or likeness set forth in this Section shall be null and void and of no further force or
effect).




          (b) Any dispute under this Section shall be resolved by General Arbitration.




Article 36:
Miscellaneous




     Section 36.1.
Captions; Table of Contents; Bold Lettering. The captions, Table of
Contents and any bold lettering in this Lease are for convenience of reference only, and in no way
define, limit or describe the scope or intent of this Lease or in any way affect this Lease.



     Section 36.2. Reference to Owner and Tenant. If two or more Persons constitute either
Owner or Tenant, the word “Owner” or the word “Tenant” shall be construed to be the singular or
plural, masculine, feminine or neuter gender as the context in which they were used shall require
and the use herein of the words “successors and assigns” or “successors or assigns” of Owner or
Tenant shall be deemed to include the heirs, legal representatives and assigns of any individual
Owner or Tenant.



     Section 36.3. Relationship of Owner and Tenant. This Lease is not to be construed to
create a partnership or joint venture between the parties, it being the intention of the parties
hereto only to create an owner and tenant relationship. None of Owner and to the best of Owner’s
knowledge, any general partner, director, stockholder, member or officer of Owner, any Affiliate of
Owner or any general partner, director, stockholder, member of officer of such Affiliate is (a) a
director or officer of Tenant, (b) a parent, son or daughter of a director or officer of Tenant, or
a descendent of any of them, (c) a stepparent, adopted child, stepson or stepdaughter of a director
or officer of Tenant, or (d) a spouse of a director or officer of Tenant. For the purposes of this
paragraph, an “Affiliate” of a person or entity is any of the following: (i) the spouse, parent,
descendant or sibling of such person; (ii) a trust for the exclusive benefit of such person or
entity and/or the persons within the class defined in the immediately preceding clause (i); (iii)
any charitable private foundation (but not a publicly supported charity within the meaning of
Section 170(b)(l)(a)(vi) of the Internal Revenue Code of 1986, as amended) created and controlled
by such person or entity and/or any of the person or entities described in the immediately
preceding clauses (i) and (ii); (iv) an entity whose members, general and limited partners or
shareholders, as the case may be, are such person or entity and/or members of the classes described
in the immediately preceding clauses (i) through (ii); or (v) any entity which, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, Owner or any entity described in the immediately preceding clauses (ii)



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through (iv). For this purpose, “control” means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of an entity, whether through the
ownership of voting securities, by contract or otherwise.




     Section 36.4. Person Acting on Behalf of a Party Hereunder. If more than one Person
is named as, or becomes a party hereunder, the other party may require the signatures of all such
Persons in connection with any notice to be given or action to be taken hereunder by that party.
Each Person named as a party shall be fully liable for all of such party’s obligations hereunder,
subject to the provisions of this Lease. Any notice by a party to any other party shall be given to
all Persons named as such other party.



     Section 36.5.
Remedies Cumulative. (a) Except as otherwise provided in this Lease,
each right and remedy of Owner provided for in this Lease shall be cumulative and shall be in
addition to every other right or remedy provided for in this Lease, or now or hereafter existing at
law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Owner
of any one or more of the rights or remedies provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by Owner of any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.



          (b) Except as otherwise provided in this Lease, each right and remedy of Tenant provided for
in this Lease shall be cumulative and shall be in addition to every other right or remedy provided
for in this Lease, or now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or beginning of the exercise by Tenant of any one or more of the rights or remedies
provided for in this Lease, or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Tenant of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise.




          (c) Except as otherwise specifically set forth in this Lease, Tenant’s
obligations under this Lease are separate and independent covenants, not dependent on any other
matter.




          (d) No failure by Owner or Tenant to insist upon the strict performance by the other of its
obligations under this Lease shall constitute a waiver of its right to enforce the provisions of
this Lease in any instance thereafter occurring.




     Section 36.6. Merger. There shall be no merger of this Lease with the fee estate in
the Premises, or any part thereof by reason of the same Person acquiring or holding, directly or
indirectly, this Lease and the fee estate in the Premises.



     Section 36.7. Waiver and Amendments. No provision of this Lease, and no Default by
Tenant or an Owner Default shall be changed or waived except by a written instrument signed








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by Owner and Tenant. No waiver of any Default by Tenant or any Owner Default shall affect or alter
this Lease, but each and every provisions of this Lease shall continue in full force and effect
with respect to any other then existing or subsequent Default by Tenant or any Owner Default.




     Section 36.8. Governing Law. This Lease shall be governed by, and be construed in
accordance with, the laws of the State of New York.



     Section 36.9. Successors and Assigns. This Lease shall bind and inure to the benefit
of Owner and Tenant and their respective successors and assigns (subject to the provisions of this
Lease).



     Section 36.10. Jurisdiction. Except in those cases where this Lease expressly
provides for a dispute is to be resolved by Construction Arbitration or General Arbitration, any
and all claims asserted by or against Owner or Tenant arising under this Lease or related hereto
shall be heard and determined either in the Federal Court of the United States located in the
Southern District of New York or in the courts of the State of New York located in the Borough of
Manhattan, City, County and State of New York. To effect this agreement and intent, Owner and
Tenant agree and, where appropriate, shall require each consultant to execute a separate instrument
confirming their agreement to the provisions hereof.



     Section 36.11. Invalidity of Certain Provisions. If any term or provision of this
Lease or the application thereof to any Person or circumstances shall, to any extent, be invalid
and unenforceable, the remainder of this Lease, and the application of such term or provision to
Persons or circumstances other than those as to which it is held invalid and unenforceable, shall
not be affected thereby and each term and provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law.



     Section 36.12. Financial Statements. If Tenant is not a public or other company that
reports its financial statement to the Securities and Exchange Commission or other Governmental
Authority (which makes those reports available to the public), Tenant shall furnish to Owner,
within ninety (90) days after the end of each fiscal year of Tenant, current audited financial
statements prepared by a reputable, national accounting firm in accordance with GAAP, consistently
applied.



     Section 36.13. Excavations. If an excavation shall be made upon land adjacent to or
under the Building, or shall be authorized to be made, Owner shall take all actions and perform all
work as shall be reasonably necessary to preserve the wall(s) of the Building or other structures
on the Land from injury or damage and to support the same by proper foundations and Tenant shall,
upon reasonable advance notice (except in an emergency), 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
shall be reasonably necessary to preserve the wall(s) of the Building or other structures on the
Land from injury or damage and to support the same by proper foundations without any claim for
damages or indemnity against Owner, or diminution or



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abatement of Base Rent or Additional Rent, provided that (except as provided in Article 33) Tenant
shall continue to have access to the Premises, and that such work and any permanent changes to the
Premises resulting therefrom do not (a) materially reduce, interfere with or deprive Tenant of
access to the Premises, (b) reduce the usable floor area of the Premises to the extent that the
same would materially interfere with the conduct of Tenant’s business at the Premises or (c)
materially impede the operation of Tenant’s business, but if (except as provided in Article 33) the
usable floor area of the Premises is permanently reduced by more than a minimal amount, the Base
Rent and Additional Rent shall be proportionately abated (on a per square foot basis).




     Section 36.14. Entire Agreement. This Lease, together with the exhibits in this
Lease, contains all of the promises, agreements, conditions, inducements and understandings between
Owner and Tenant concerning the Premises and there are no promises, agreements, conditions,
understandings, inducements, warranties or representations, oral or written, expressed or implied,
between them other than as expressly set forth herein and therein.



     Section 36.15. Recording. Owner and Tenant shall simultaneously with the execution
of this Lease (and, in connection with any amendments to this Lease, promptly after the execution
of any amendments hereto) execute a memorandum of this Lease, and Tenant shall cause such memoranda
to be recorded in the office of the Register of The City of New York (Queens County) promptly after
the execution and delivery of this Lease (or any such amendments) and shall pay and discharge all
costs, in connection therewith. Upon the expiration or sooner termination of this Lease, Tenant
shall, at the request of Owner, execute, acknowledge and deliver an instrument canceling any
memoranda which are recorded and all other documentation required to record same. If, after the
Expiration of the Term, Tenant fails or refuses to execute, acknowledge and deliver such instrument
of cancellation, then Tenant hereby appoints Owner as Tenant’s attorney-in-fact, coupled with an
interest, solely to execute, acknowledge and deliver such instrument of cancellation on Tenant’s
behalf.



     Section 36.16. Unavoidable Delays. If, by reason of an Unavoidable Delay, a party
shall be unable to fulfill any non-monetary obligation (i.e., any obligation other than the
obligation to pay a sum of money) under this Lease, then (except as otherwise expressly set forth
in this Lease) that party’s obligation to perform any such non-monetary obligation shall be excused
for the period during which such Unavoidable Delay prevents such performance despite that party’s
reasonably diligent efforts.



     Section 36.17. Rent Control. If the Base Rent or any Additional Rent shall be or
become uncollectible by virtue of any Requirement, Tenant shall enter into such agreements and take
such other action as Owner may reasonably request, as may be legally permissible, to permit Owner
to collect the maximum Base Rent and Additional Rent which may from time to time during the
continuance of such rent restriction be legally permissible, but not in excess of the amounts of
Base Rent and Additional Rent payable under this Lease. Upon the termination of such rent
restriction prior to the expiration of the Term (a) the Base Rent and Additional Rent,








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after such termination, shall become payable under this Lease in the amount of the Base Rent and
Additional Rent set forth and (b) Tenant shall pay to Owner, if legally permissible, an amount
equal to (i) the Base Rent and Additional Rent which would have been paid pursuant to this Lease,
but for such rent restriction, less (ii) the Base Rent and Additional Rent paid by Tenant to Owner
during the period that such rent restriction was in effect.




     Section 36.18. Managing Agent. Any bill, statement, notice or communication given by
Owner to Tenant in accordance with this Lease may be signed and delivered by the managing agent of
the Building with the same force and effect as if signed and delivered by Owner. Until Owner shall
give notice to Tenant of a change, the managing agent of the Building shall be Brause Realty Inc.



     Section 36.19. Survival. Any obligation of Owner or Tenant which by its nature or
under the circumstances can only be, or by the provisions of this Lease may be, performed after the
expiration or earlier termination of this Lease, and any liability for a payment which shall have
accrued to or with respect to any period ending at the time of such expiration or termination,
unless expressly otherwise provided in this Lease, shall survive the expiration or earlier
termination of this Lease. No delay by Owner or Tenant in rendering any bill or statement shall be
deemed a waiver or release of Tenant’s or Owner’s obligation to make the payment reflected on that
bill or statement.



     Section 36.20. Execution of Lease. Notwithstanding any provision of this Lease, or
any law or rule, to the contrary, or the execution of this Lease by Tenant, this Lease shall not
bind Owner, nor shall Tenant be permitted the benefits of this Lease, unless and until one or more
counterparts of this Lease are executed by Owner and delivered to Tenant.



     Section 36.21. Confidentiality. Owner and Tenant shall hold in confidence and shall
not disclose to third parties, and shall cause its officers, directors, employees, representatives,
brokers, attorneys and advisers to hold in confidence and not disclose to third parties, the terms
of this Lease, except to the extent same (a) must be disclosed by order of any Governmental
Authority, or pursuant to any Requirement, including, without limitation, in connection with a
public offering of securities, (b) is publicly known or becomes publicly known other than through
the acts of the disclosing party, or any of its officers, directors, employees, representatives,
brokers, attorneys or advisers, or (c) must be disclosed by Owner or Tenant in connection with any
financing or sale, any Assignment, Transfer or Sublease or any other arm’s length business
transactions.



     Section 36.22. Rules and Regulations. If Tenant shall exercise Tenant’s renewal
right pursuant to the Lease for less than all of the Building, Tenant and all Tenant Parties shall
comply with any reasonable rules or regulations promulgated by Owner which are consistent with the
provisions of this Lease.



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     Section 36.23. Arrears. If Tenant is in arrears in the payment of Base Rent or
Additional Rent, Tenant waives Tenant’s right, if any, to designate the items against which any
payments made by Tenant are to be credited, and Tenant agrees that Owner may apply any payments
made by Tenant to any items Owner sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be credited.



     Section 36.24. Presumption. This Lease shall be construed without regard to any
presumption or other rule regarding construction against the party causing this Lease to be
drafted.



     Section 36.25. Windows. If, at any time or from time to time, any windows of the
Premises are temporarily closed, blocked or darkened for any reason, or permanently closed, blocked
or darkened if required by any Requirement or due to any construction on property adjacent to the
Building by any person, including, without limitation, Owner or any person in which Owner has an
interest (a) Owner will not be liable for any loss or damage Tenant may sustain thereby, (b) Tenant
will not be entitled to any compensation therefor nor abatement of the Rent, (c) Tenant will not be
relieved from its obligations under this Lease and (d) it will not constitute an eviction or
constructive eviction of Tenant from the Premises.



     Section 36.26. Trees. Owner shall permit the City of New York to plant trees along
Queens Plaza in front of the Building, at no expense to Owner.



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     In Witness Whereof, Owner and Tenant have executed and delivered this Lease as of the date
written above.



	 	 	 	 	 
	 	Owner


Brause Plaza LLC

 	 
	 	By:  	/s/ Louis Brause
 	 
	 	 	Name:  	Louis Brause 	 
	 	 	Title:  	Member 	 
	 
	 	Tenant



Metropolitan Life Insurance Company

 	 
	 	By:  	/s/ William J. Toppeta
 	 
	 	 	Name:  	William J. Toppeta	 
	 	 	Title:  	President and Chief Administrative Officer Client Services 	 
	 
	 	
Federal Employer

Identification Number 13-5581829

 	 
	 	 	 
	 	 	 
	 	 	 
	 




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	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	 )ss.:
	 	 
	COUNTY OF NEW YORK

	 	 	)	 	 	 






          On the 10 day of May, 2001 before me, the undersigned, personally appeared Louis
Brause, personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.




	 	 	 	 	 
	 	 	 
	 	/s/ Paul E. Hanau
 	 
	 	Notary Public 	 
	 	 	 
	 





	 	 	 	 	 	 	 

	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	 ) ss.:
	 	 
	COUNTY OF NEW YORK

	 	 	)	 	 	 









PAUL E. HANAU
 Notary Public,
State of New York

Qualified in Nassau County

Certificate Filed in New York County

Commission Expires Sept. 15, 2002









          On the 10 day of May, 2001 before me, the undersigned, personally appeared
William Toppeta, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.






	 	 	 	 	 
	 	 	 
	 	/s/ Paul E. Hanau
 	 
	 	Notary Public 	 
	 	 	 
	 







PAUL E. HANAU

Notary Public, State of New York

Qualified in Nassau County

Certificate Filed in New York County

Commission Expires Sept. 15, 2002












 









 








Exhibit A




Defined Terms



          Additional Rent: All amounts payable by Tenant to Owner or otherwise pursuant to
this Lease other than Base Rent.




          Affiliate: A Person which, directly or indirectly (a) Controls, (b) is Controlled by,
or (c) is under common Control with the Person in question.




          Agencies: The New York City Industrial Development Agency, the City of New York,
Empire State Development Corporation, and/or the New York City Economic Development Corporation
and/or such other New York City or New York State agencies and entities which grant Incentives.




          Anticipated Initial Premises Substantial Completion Date: October 1,
2001.




          Assignment: The transfer of all of Tenant’s interest in this Lease or the
leasehold estate created hereby whether by operation of law or otherwise, or any transaction or
series of transactions (including, without limitation, any assignment, transfer, issuance or
redemption of any ownership interest, or any merger, consolidation or dissolution) which results in
a change of Control of Tenant or any Person or entity which directly or indirectly Controls Tenant
(but not including an issuance or a transfer of stock through the “over the counter” market or
through any recognized national stock exchange).




          Balance Space: The entire second floor of the Premises, the entire portion of the
Ground Floor not included in the Initial Premises and the entire portion of the cellar not included
in the Initial Premises.




          Base Building Equipment: The fixtures and equipment forming a part of any Base
Building System.




          Base Building Systems: Any of the following which is furnished and installed by Owner
as part of Owner’s Work: (a) the elevators of the Building; (b) the core toilets and utility
closets of the Building; and (c) the heating, air conditioning, ventilating, mechanical, condenser
water, plumbing, domestic water, sanitary, sprinkler (but not sprinkler heads or related horizontal
piping), fire control and alarm and life safety and security systems of the Building and other
systems of the Building.




          Base
Rent: (a)(i) [*****] per annum for the period commencing on the Base
Rent Commencement Date with respect to the Initial Premises,
(ii) an additional [*****] per
annum commencing on the Base Rent Commencement Date with respect to the second floor, (iii) an
additional [*****] annum commencing on Base Rent Commencement Date with respect





 









 





to the portion of the Ground Floor included in the Balance Space and (iv) an additional [*****] per
annum commencing on the Base Rent Commencement Date with respect to the portion of the cellar
included in the Balance Space (the total of which Base Rent in this clause (a) being [*****] ending on
the last day of the month immediately preceding the fifth anniversary or the initial premises
Substantial Completion Date; (b) [*****] annum for the next five Lease Years; (c) [*****] annum for the next
five Lease Years; and (d) [*****]
per annum for the last five Lease Years (and any period of less than 12 months at the end of the
initial Term).




          Base Rent Commencement Date: (a) With respect to the Initial Premises, 180 days
following the Initial Premises Substantial Completion Date (which
Base Rent attributable to the
Initial Premises shall be [*****] and (b) with respect to the entirety of each of the three
portions of the Balance Space, 180 days following the Substantial Completion of Owner’s Work with
respect to the entirety of that portion of the Balance Space.




          Base Taxes: All Real Estate Taxes attributable to the Base Tax Year, as finally
determined.




          Base Tax Year: The first twelve (12) full calendar months following the Initial
Premises Substantial Completion Date.




          Broker: Insignia/ESG, Inc.




          Building: The building, Base Building Equipment, Base Building Systems and other
improvements and appurtenances which are on the date of this Lease, or from time to time
constructed or placed, on (a) the Land or (b) within the Square Block and included in the Premises,
and all alterations, replacements, additions and substitutions (other than Tenant’s Work and
Tenant’s Property).




          Business Day: Any day other than a Saturday, Sunday or day on which banks in New York
City are authorized or obligated by law to be closed.




          Business Hours: The hours between 8:00 a.m. and 6:00 p.m. on Business Days.




          Commencement Date: The date of this Lease.




          Construction Arbitration: The arbitration procedure set forth in
Section 5.12.




          Control: The direct or indirect ownership of more than 50% of all
ownership interests in the Person in question and the power to direct or cause the direction
of the management and policy of the Person in question.




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          CPI: The Consumer Price Index for all Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor, New York, N.Y., Northeastern N.J. Area, All
Items (1982-84 = 100), or any successor index thereto, appropriately adjusted to reflect the same
elements and components as are included within the 1982-84 base year index; provided that, if there
shall be no successor index and Owner and Tenant shall fail to agree on a substitute index within
twenty (20) Business Days after the commencement of discussions between Owner and Tenant as to the
same, or if the parties shall fail to agree upon the appropriate adjustment of such successor or
substitute index within twenty (20) Business Days after the commencement of discussions between
Owner and Tenant as to the same, a substitute index or the appropriate adjustment of such successor
or substitute index, as the case may be, shall be determined by General Arbitration.




          CPI Adjustment: An increase (but not decrease) of the amount in question determined by
multiplying that amount by a fraction, the numerator of which is the CPI for the calendar month
immediately preceding the month in which the amount is to be adjusted and the denominator of which
is the CPI for April, 2001.




          CSFB Lease: Lease dated February 22, 2001, between Tenant, as landlord, and Credit
Suisse First Boston (USA), Inc., as tenant, covering the building at One Madison Avenue, New York,
New York.




          Default: Any condition or event which has occurred, or failed to occur, which,
pursuant to the express provisions of this Lease, constitutes, or would, after notice, or the lapse
of time, or both, constitute, an Event of Default.




          Designated Restricted Work: See Section 6.1.




          Development Rights: See Section 29.1




          Event of Default: Defaults described in Section 15.1.




          Expiration of the Term: The earlier to occur of (a) the Fixed Expiration Date or (b)
the last day of the Term.




          Fixed Expiration Date: The date which is the last day of the month in which occurs [*****] anniversary
of the Initial Premises Substantial Completion Date, or if the Term is extended pursuant to this
Lease, the last day of the extended term.




          GAAP: Generally accepted accounting principles.




          General Arbitration: The arbitration procedure set forth in Article 26.









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          Governmental Actions: Any claim, citation, notice of any pending or threatened
suits, proceedings, orders, inquiries or opinions involving the Premises, or any portion thereof,
from any Governmental Authority having jurisdiction.




          Governmental Authorities: The United States of America, the State of New York, the
City of New York, and any agency, department, commission, board, bureau, instrumentality or
political subdivision of any of the foregoing or any successor of the foregoing, now existing or
hereafter created, having jurisdiction over the Premises or any portion thereof.




          Ground Floor: All portions of the floor immediately above the cellar of the
Building.




          Hazardous Materials: Any petroleum and petroleum products, flammable explosives,
radioactive materials (excluding radioactive materials in smoke detectors), polychlorinated
biphenyls, lead, asbestos in any form that is or could become friable, hazardous waste, toxic or
hazardous substances or other related materials whether in the form of a chemical, element,
compound, solution, mixture or otherwise, including, without limitation, those materials defined as
“hazardous substances,”.“extremely hazardous substances,” “hazardous chemicals,” “hazardous
materials,” “toxic substances,” “solid waste,” “toxic chemicals,” “air pollutants,” “toxic
pollutants,” “hazardous wastes,” “extremely hazardous waste,” or “restricted hazardous waste” by
Hazardous Materials Law or regulated by Hazardous Materials Laws in any manner whatsoever.




          Hazardous Materials Laws: All federal, state, and local laws, ordinances and
regulations and standards, rules, policies and other binding governmental requirements now or
hereafter enacted or in force, and any court judgments applicable to Tenant or to the Premises
relating to industrial hygiene or to environmental or unsafe conditions or to human health,
including, without limitation, those relating to the generation, manufacture, storage, handling,
transportation, disposal, release, emission or discharge of Hazardous Materials, those in
connection with the construction, fuel supply, power generation and transmission, waste disposal or
any other operations or processes relating to the Premises, and those relating to the atmosphere,
soil, surface and ground water, wetlands, stream sediments and vegetation on, under, in or about
the Premises.




          Hoist: See Section 6.2.




          Hoist
Hourly Rate: [*****] hour  ([*****] hour on non-Business Days or outside of the normal
construction hours set forth in Section 6.2).




          ICIP Law: Title 2D of Article 4 of the Real Property Tax Law of the State of New York,
and Title 11, Chapter 2, Part 4 of the Administrative Code of the City of New York and the rules
and regulations promulgated thereunder, as the same may be amended or supplemented and the
requirements imposed by Executive Orders Nos. 50 (1986) and 108 (1986)




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and the regulations promulgated thereunder, as the same may be amended or supplemented and all
other applicable rules and regulations of Governmental Authorities.




          ICIP Program: The Industrial and Commercial Incentive Program.


          Incentives: Economic benefits provided by the Agencies.




          Initial Premises: Floors 3 through 6 of the Building, the lobby of the Building, the
loading docks of the Building, the portion of the cellar of the Building shown on Exhibit B
to this Lease, and any other areas of the Building reasonably necessary to access, and operate in,
the foregoing areas.




          Initial Premises Substantial Completion Date: The date on which Substantial Completion
of Owner’s Initial Premises Work has occurred.




          Institutional Lender: A savings bank; a savings and loan association; a commercial
bank or trust company; an insurance company; a pension fund; a federal, state or municipal
teachers’ or other public employees’ welfare, benefit, pension or retirement trust fund or system;
any Governmental Authority; or any entity insured by a Governmental Authority, a credit union,
trust or endowment fund; an investment banking institution; any Senior Interest Holder; any other
entity generally making loans secured by real property; or any combination of the foregoing;
provided, that each of the above entities shall qualify as an Institutional Lender only if it shall
(a) be subject to service of process within the State of New York, (b) except in the case of a
Governmental Authority, have a credit rating of A- or better as rated by Standard & Poor’s (or an
equivalent rating reasonably acceptable to Owner if Standard & Poor’s shall cease to issue such
rating or alter its method of issuing such rating).




          Land: The land shown on Exhibit C to this Lease, and any other land hereafter
included in the Premises pursuant to this Lease.




          Land Value: The general fair market value of the Land, valued as vacant and unimproved
(i.e., the price that a willing buyer would offer, and a willing seller would accept, for all of
seller’s right, title and interest in the Land assuming no condemnation or eminent domain issues
were applicable thereto), as of the Taking Date. If there is any dispute as to the Land Value, it
shall be resolved by General Arbitration.




          Late Charge Rate: The Prime Rate, plus three percent (3%) per annum;
provided, however, that the Late Charge Rate shall not exceed the maximum annual rate of
interest which may then be lawfully charged to Tenant or by Owner, as the case may be.




          Lease: This Lease and all exhibits to this Lease, and all modifications
thereof.




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          Lease Year: The period beginning on the Initial Premises Substantial Completion Date
with respect to the Initial Premises and ending on the last day of the month in which occurs the
first (1st) anniversary of such Initial Premises Substantial Completion Date, and each 12-month
period thereafter.




          Leased Property: See Section 33.2.




          Major Sublease: A Sublease of all or substantially all of the Premises where the
Subtenant shall not occupy any such portion of such subleased space.




          Major Subtenant: A Subtenant under a Major Sublease.




          Material Event of Default: An Event of Default relating to the payment of a sum of
money or any other material Event of Default.




          Mortgage: Any trust indenture or mortgage held by any Person (other than an Affiliate
of Owner) which may now or hereafter encumber Owner’s interest in the Real Property, or any portion
thereof, and all renewals, extensions, supplements, modifications, consolidations and replacements
thereof or thereto, substitution therefor, and advances made thereunder.




          Mortgagee: Any trustee, mortgagee or holder of a Mortgage (other than an
Affiliate of Owner).




          Offered Property: See Section 32.1.




          Owner: Brause Plaza LLC, provided, however, that if it or any successor transfers its
interest in the Premises, from and after the date of the transfer (which transfer shall be
evidenced by a recordable instrument) and after notice to Tenant of the transfer, the term Owner
shall be deemed to mean the transferee. All Persons which were the Owner prior to such transfer
shall be, and hereby are, entirely freed and relieved of all obligations and liabilities of Owner
under this Lease to be performed or accruing from and after the date of the transfer. It shall be
deemed without further agreement between the parties or their successors that the transferee has
assumed and agreed to perform or pay all obligations and liabilities of Owner to be performed or
accruing from the date of the transfer.




          Owner’s Architect: Gensler or any other licensed architect or architectural firm
selected by Owner or Owner’s construction manager and general contractor.




          Owner Default: Any default, following any required notice and the expiration of any
applicable cure period, by Owner under this Lease except (a) if and to the extent caused by a
Default and (b) as otherwise expressly provided in this Lease.




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          Owner’s Initial Premises Work: All of Owner’s Work which, pursuant to
Owner’s Work Schedule, is required to be completed on or before the Anticipated Initial
Premises Substantial Completion Date.




          Owner Party: (a) Any direct or indirect principal, partner, member, manager, officer,
stockholder, director, employee, agent, representative or contractor of Owner or of any principal,
partner, member, manager, officer, stockholder, director, employee, agent, representative or
contractor of any member, manager or partner of any partnership or limited liability company
constituting Owner, disclosed or undisclosed, (b) Owner’s managing agent or any other party
claiming by, through or under Owner, or any principal, stockholder, partner, member, officer,
director, employee, agent or contractor of any such party or (c) any Senior Interest Holder.




          Owner’s Plans: The plans and specifications described on Exhibit D to
this Lease, and any changes required by any Requirement or other reason beyond the reasonable
control of Owner. Owner and Tenant have each initialed two copies of Owner’s Plans.




          Owner Requirements: Any Requirement which (a) Owner is required to comply with in
connection with any obligation of Owner under this Lease or (b) is enacted or becomes applicable
after the Commencement Date and requires a replacement, rather than a repair (in accordance with
sound practices) to the Building core or shell, any Base Building System, Owner’s Work or any item
in Owner’s Work Schedule to be performed by Owner which is not caused by Tenant’s Work, any Default
or any act or omission of Tenant or any Tenant Party (including, without limitation, Tenant’s
particular manner of using the Premises).




          Owner’s Work: The work shown on Owner’s Plans




          Owner’s Work Schedule: The schedule for Owner’s Work set forth in Exhibit G to
this Lease.




          Permitted Uses: Executive and general offices (and any use ancillary thereto,
including, without limitation, a cafeteria and fitness facility for the employees of Tenant, any
Affiliate of Tenant or any Subtenant, a conference center, a medical facility and retail sales),
and any other office purpose, to the extent permitted by any applicable Requirement, but not for
the use of any Governmental Authority or any foreign government or any entity in which a foreign
government has an interest. The roof may be used for any purpose not prohibited by any applicable
Requirement, but not for the use of any Governmental Authority or any foreign government or any
entity in which a foreign government has an interest.




          Person: Any individual, corporation, partnership, limited liability company, joint
venture, estate, trust, unincorporated association, Governmental Authority, other entity or any
fiduciary acting in such capacity on behalf of any of the foregoing.




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          Potential Common Areas: Any area of the Building or Land which would (but for
this Lease) be for the common use of all tenants of the Building, including, without limitation,
the lobby, the loading docks, the sidewalks and the Building entrances, the Base Building System
mechanical rooms, meter rooms, boiler rooms, fuel oil tanks, utilities and generators.




          Premises: The Land and the Building.




          Prevailing Party: With respect to either a Construction Arbitration or a General
Arbitration (a) the party which ultimately is awarded an amount (net of any offsets or
counterclaims awarded to the other party) in excess of the last settlement offer made by the other
party, or (b) the party that made the last settlement offer, if the amount ultimately awarded (net
of any offsets or counterclaims awarded to the other party) is less than the last settlement offer
made, or (c) the party ultimately awarded an amount, regardless of the sum, if no settlement offer
was ever made by the other party, or (d) if no amount is awarded, but instead, equitable relief is
granted, the party in whose favor such equitable relief is granted.




          Prime Rate: On any particular date, a rate per annum equal to the rate of interest
published in The Wall Street Journal as the “prime rate,” as in effect on such day, with any change
in the “Prime Rate” resulting from a change in said prime rate to be effective as of the date of
the relevant change in said prime rate; provided, however, that if more than one prime rate is
published in The Wall Street Journal for a day, the highest of the prime rates shall be used. In
the event that The Wall Street Journal ceases or temporarily interrupts publication (or publication
of a “prime rate”), then the Prime Rate shall mean the daily highest prime rate published in
another business newspaper, or business section of a newspaper, of national standing selected by
Owner. If The Wall Street Journal resumes publication, the substitute index will immediately be
replaced by the prime rate (or highest prime rate, as the case may be) published in The Wall Street
Journal. Any interest payable under this Lease with reference to the Prime Rate shall be adjusted
on a daily basis, based upon the Prime Rate in effect at the time in question, and shall be
calculated on the basis of a 360-day year.




          Real Estate Taxes: All real estate taxes, assessments, special assessments, business
improvement district assessments or charges and other charges (including, without limitation, any
payments in lieu of real estate taxes) assessed, levied or imposed by any Agency or Governmental
Authority upon, or are otherwise payable with respect to, the Premises (or any portion thereof) or
any interest therein, or allocated to the Premises pursuant to this Lease, but not any mortgage
recording taxes, transfer taxes, transfer gains taxes or other similar taxes, fees or other charges
assessed, levied, imposed upon or otherwise payable with respect to the acquisition, sale,
transfer, financing or refinancing of all or any portion of the Premises, other than any such
taxes, fees or other charges imposed as a result of any acquisition, sale, transfer, financing or
refinancing by Tenant of Tenant’s leasehold estate in the Premises, or any portion thereof. If the
methods of taxation prevailing on the Commencement Date shall be altered so that in lieu of, or as
an addition to or as a substitute for, the whole or any part of any of the









-8-









 










foregoing now levied, assessed or imposed, there shall be levied, assessed or imposed a new
real estate tax, assessment, levy, imposition, license fee or charge wholly or partially as a
capital levy or otherwise on real or personal property or the rents received therefrom, then such
additional or substitute tax, assessment, levy, imposition, fee or charge shall be included.




          Rent: All Base Rent and Additional Rent.




          Requirements: (a) all laws, rules, regulations, orders, ordinances, statutes, codes,
executive orders and requirements, whether now or hereafter enacted or in force, of all
Governmental Authorities applicable to the Premises or the operation thereof or any street, road,
avenue or sidewalk comprising a part of, or in front of, the Premises or any vault in, or under the
Premises (including, without limitation, the Building Code of New York City and the laws, rules,
regulations, orders, ordinances, statutes, codes and requirements of any applicable Fire Rating
Bureau or other body exercising similar functions and any insurance company issuing insurance on
the Premises or any part thereof), and (b) any and all requirements and restrictions contained in,
or imposed by, the certificate or certificates of occupancy issued for the Building as then in
force and all other permits and licenses issued in connection with the Building.




          Senior Interest Holder: The holder of any Mortgage or the Owner under any Superior
Lease.




          Square Block: The area bounded by 27th Street, 28th Street, 41st Avenue and Queens
Plaza North (also known as Bridge Plaza North), Long Island City, New York.




          Sublease: Any sublease, occupancy, license or concession agreements affecting the
Premises or any portion thereof, including, without limitation, a Major Sublease.




          Substantial Completion Date: The date on which Substantial Completion of Owner’s Work
has occurred.




          Substantial Completion of Owner’s Initial Premises Work: The occurrence of all of the
following:





     (a) Owner’s Initial Premises Work has been completed substantially in accordance
with Owner’s Plans and all applicable Requirements and Owner and Tenant shall have received
a certificate from Owner’s Architect to that effect; it being agreed that Owner’s Initial
Premises Work (and any other portion of Owner’s Work set forth on Owner’s Work Schedule)
shall be deemed substantially complete and Substantial Completion of Owner’s Initial
Premises Work shall be deemed to have occurred, notwithstanding the fact that minor or
insubstantial details of construction or mechanical adjustment remain to be performed, the
noncompletion of which shall not interfere (other than to a de minimis extent) with the
performance of Tenant’s Initial Work in and to the








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Initial Premises using good construction scheduling practices or cannot be completed due to
Tenant’s Initial Work; and




     (b) if and to the extent applicable and necessary for Tenant’s occupancy, access or
Tenant’s Work, all sign-offs and approvals from all applicable Governmental Authorities for
Owner’s Initial Premises Work, and a temporary certificate of occupancy for the Building
core and shell, have been obtained (except for such sign-offs and approvals or such
temporary certificate of occupancy, which cannot be obtained as a result of any act or
omission of Tenant or any Tenant Party or until Tenant’s Initial Work is completed or such
other work which in good construction practices should not be completed until after Tenant’s
Initial Work is completed); and




     (c) reasonably safe, lawful and reasonable access to and from the Premises shall be
available to Tenant and all Persons claiming by, through or under Tenant.



          Substantial Completion of Owner’s Work (with respect to the entirety of each of the three
portions of the Balance Space): The occurrence of all of the following with respect to that
portion:





     (a) Owner’s Work has been completed substantially in accordance with Owner’s Plans and
all applicable Requirements and Owner and Tenant shall have received a certificate from
Owner’s Architect to that effect; it being agreed that Owner’s Work shall be deemed to have
occurred, notwithstanding the fact that minor or insubstantial details of construction or
mechanical adjustment remain to be performed with respect to Owner’s Work, the noncompletion
of which shall not interfere (other than to a de minimis extent) with the performance of
Tenant’s Initial Work using good construction scheduling practices or cannot be completed
due to Tenant’s Initial Work;




     (b) if and to the extent applicable and not obtained as part of the Substantial
Completion of Owner’s Initial Premises Work, all sign-offs and approvals from all applicable
Governmental Authorities for Owner’s Work, and a temporary certificate of occupancy for the
Building core and shell, have been obtained (except for such sign-offs and approvals or such
temporary certificate of occupancy, which cannot be obtained as a result of any act or
omission of Tenant or any Tenant Party or until Tenant’s Initial Work is completed or such
other work which in good construction practices should not be completed until after Tenant’s
Initial Work is completed).



          Substantially All of the Premises: Such portion of the Premises as, when so taken by a
Taking (assuming the damage to the Premises caused by the Taking is repaired to the extent
reasonably and commercially practicable under the circumstances), would leave a balance of the
Premises that, due either to the area so taken or the location of the part so taken in relation to
the part not so taken or the specific use of the portion of the Premises so taken and which cannot
reasonably be relocated to any remaining portion of the Premises, would not, under









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economic conditions, zoning laws and building regulations then existing (a) provide legal and
reasonable means of access to and from all remaining portions of the Premises, or (b) be a complete
building, consisting of a self-contained architectural unit, capable of being economically and
feasibly used for the use of the Building immediately prior to the Taking Date. In no event,
however, shall Substantially All of the Premises be deemed Taken if less than thirty-five (35%)
percent of the total rentable area of the Premises are taken (unless a portion of the Premises
which is critical for the Premises to be capable of being economically and feasibly used for the
use of the Building immediately prior to the Taking Date is Taken and cannot reasonably be
relocated to any remaining portion of the Premises). If more than fifty (50%) percent of the total
rentable area of the Building is taken and, in Tenant’s reasonable judgment, Tenant cannot conduct
its operation in the Premises as a result thereof, Substantially All of the Premises shall be
deemed taken. If there be any dispute as to whether or not “Substantially All of the Premises” has
been taken, the dispute shall be resolved by General Arbitration.




          Subtenant: Any subtenant, operator, licensee, franchisee, concessionaire, or
other occupant of the Premises or any portion thereof, and a Major Subtenant.




          Superior Lease: Any ground or underlying lease of the Land or the Building heretofore
or hereafter made by Owner and all extensions and modifications thereof to any Person other than an
Affiliate of Owner.




          Taking: The taking of the Premises or any portion thereof, for any public or
quasi-public purpose by any Governmental Authority by the exercise of the right of
condemnation or eminent domain or by agreement among Owner, Tenant and such Governmental
Authority.




          Taking Date: The earlier of (a) the date on which actual possession of all or
Substantially All of the Premises, or any part thereof, as the case may be, is acquired by any
Person in connection with a Taking or (b) the date on which fee title to all or Substantially All
of the Premises, or any part thereof, as the case may be, has vested in any Person pursuant to a
taking.




          Tenant: Metropolitan Life Insurance Company or the then holder of the leasehold
interest created by this Lease; provided, however, the originally named Tenant and any assignee of
this Lease shall not be released from liability hereunder in the event of any assignment of this
Lease.




          Tenant’s
Allowance: [*****]




          Tenant Delay: Any delay caused in whole or in part by (or any Unavoidable Delay or any
other delay which arises as a result of) (a) any act or omission of Tenant or any Tenant Party (but
Tenant’s compliance with the time periods set forth in this Lease shall not be deemed a Tenant
Delay), (b) any negligent or intentionally wrongful act or omission of Tenant or




-11-









 




any Tenant Party, (c) any failure of Tenant or Tenant Party to comply with any provision of this
Lease, (d) any injunction or other legal proceeding brought by an Agency or any third party in
connection with Tenant’s Incentives, or (e) any injunction or other legal proceeding brought by
Tenant in connection with this Lease (other than any General Arbitration or Construction
Arbitration). In addition, Tenant Delay shall include any other Tenant Delay referred in this
Lease, including, without limitation, Section 5.4.




          Tenant Party: (a) Any direct or indirect principal, partner, member, manager, officer,
stockholder, director, employee, agent, representative or contractor of Tenant or of any principal,
partner, member, manager, officer, stockholder, director, employee, agent, representative or
contractor of any member, manager or partner of any partnership or limited liability company
constituting Tenant, disclosed or undisclosed or (b) any Subtenant or any other party claiming by,
through or under Tenant, or any principal, stockholder, partner, member, officer, director,
employee, agent or contractor of any Subtenant or such other party.




          Tenant’s Architect [*****]
or any other licensed architect or architectural firm selected by Tenant;
provided, however, that with respect to any Tenant Work for which Owner’s approval is expressly
required under this Lease, the selection of any architect or architectural firm with respect
thereto other than HLW shall be subject to the prior approval of Owner, which approval shall not be
unreasonably withheld. If Owner fails to respond to Tenant’s request for such approval within five
(5) Business Days after receipt by Owner of notification to Owner of the identity of such licensed
architect or architectural firm, Owner shall be deemed to have approved such selection by Tenant.




          Tenant’s De Minimis Work: Any Tenant’s Work for which plans and
specifications are not required by any Requirement.




          Tenant’s Initial Work: Tenant’s Work to be performed by Tenant to prepare the Premises
for Tenant’s initial occupancy.




          Tenant’s Plans: The completed final plans and specifications prepared by
Tenant’s Architect and constituting a complete set of architectural and mechanical working
drawings in connection with Tenant’s Initial Work.




          Tenant’s Property: All equipment, furniture, trade fixtures and other personal
property of Tenant, now or hereafter at the Premises, or any portion thereof (but not any Base
Building Equipment, Base Building Systems or Owner’s Work).




          Tenant’s Restricted Work: Any Tenant’s Work that shall (a) increase or decrease the
size of the Building, (b) reduce the value of the Building, (c) affect Potential Common Areas, (d)
connect the Premises to any other real property or (e) affect in any material manner (i) the
structural elements or integrity of the Building, (ii) the Base Building Systems or







-12-









 







(iii) any portions of the Building, the replacement of which are Owner’s responsibility pursuant to
this Lease, unless that Tenant’s Work is permitted by any express provision of this Lease.




          Tenant’s Work: Any alterations, installations, improvements, additions, repairs,
replacements or other physical changes to the Premises, or any portion thereof, performed by Tenant
or a Tenant Party, including, without limitation, Tenant’s Initial Work.




          Term: The period commencing on the Commencement Date and ending on the earlier of
the Fixed Expiration Date or such earlier date upon which the Term may expire or be terminated
pursuant to this Lease or pursuant to law.




          Title Matters: The matters set forth in Exhibit F to this Lease.




          Unavoidable Delays: (a) strikes, (b) labor disturbances, (c) governmental preemption
in connection with a national emergency, (d) any action or inaction by any Agency or Governmental
Authority, (e) any failure to obtain, or interruption of, services caused by the acts or inaction
of any utility company, (f) war or other national, state or municipal emergency, (g) fire or other
casualty not caused by the party in question, (h) acts of God or the elements including, without
limitation, abnormally inclement weather for the season, (i) arbitration proceedings being
conducted in accordance with the provisions of this Lease (except as otherwise provided with
respect to Construction Arbitrator), or (j) any cause beyond a party’s reasonable control.




          Zoning Resolution: The Zoning Resolution of the City of New York (including, without
limitation, the Special Long Island City District), effective as of the Commencement Date, as
hereafter amended.





-13-











 




Exhibit B




Cellar Portion of Initial Premises



     



 









 





Exhibit C





     



 









 





Exhibit D




Owner’s Plans



 









 





RIDER “B” W/ PRELIMINARY MET LIFE CHANGES

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK



May 4, 2001




(8 pages)




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	—

	 	Cover
	 	—
	A00-01

	 	Location Map, Drawing Index, Project
Information, Graphic Symbols
	 	07/31/00
	A00-02

	 	Abbreviations & Notes
	 	07/31/00
	A00-04

	 	Finish Schedule & Plumbing Accessory
	 	12/15/00
	A00-05.1

	 	Door Schedule
	 	08/25/00
	A01-00

	 	Basement Floor Demolition
	 	04/24/01
	A01-01

	 	First Floor Demolition
	 	04/24/01
	A01-02.3

	 	Second Floor Demolition
	 	07/31/00
	A01-03.3

	 	Third Floor Demolition
	 	07/31/00
	A01-04.3

	 	Fourth Floor Demolition
	 	07/31/00
	A01-05.3

	 	Fifth Floor Demolition
	 	07/31/00
	A01-06.3

	 	Sixth Floor Demolition
	 	07/31/00
	A01-R1

	 	Roof Demolition
	 	04/24/01
	A02-00

	 	Reference Floor Plans
	 	07/31/00
	* A02-B1-P

	 	Enlarged Basement Floor Plan
	 	05/04/01
	* A02-B2-P

	 	Enlarged Basement Floor Plan
	 	05/04/01
	A02-GD

	 	Enlarged Ground Floor Plan
	 	12/15/00
	* A02-01A-P

	 	Enlarged First Floor Plan
	 	05/04/01
	* A02-01B-P

	 	Enlarged First Floor Plan
	 	05/04/01
	* A02-T1-P

	 	Enlarged Typical (2nd — 6th) Floor
Plan
	 	05/04/01
	* A02-T2-P

	 	Enlarged Typical (2nd — 6th) Floor Plan
	 	05/04/01
	* A02-R1-P

	 	Enlarged Roof Plan
	 	05/04/01
	A02-R2.1

	 	Enlarged Roof Plan
	 	07/31/00
	A02-R3.2

	 	Enlarged Roof Plan
	 	08/25/00
	A04-B1

	 	Enlarged Basement Reflected Ceiling Plan
	 	04/03/00
	A04-B2

	 	Enlarged Basement Reflected Ceiling Plan
	 	04/03/01
	* A04-GD-P

	 	Enlarged Ground Floor Reflected Ceiling Plan
	 	05/04/01
	A04-01

	 	Enlarged First Floor Reflected Ceiling Plan
	 	04/03/00
	A04-02

	 	Enlarged 1st F1 Reflected Ceiling Plan
	 	04/03/01
	A04-T1

	 	Enlarged Typical (2nd — 6th) Reflected Ceiling Plan
	 	04/03/01
	A04-T2.1

	 	Enlarged Typical (2nd — 6th) Reflected
Ceiling Plan
	 	04/03/01
	A05-01

	 	Enlarged First Floor Finish Plan
	 	12/15/00
	A05-1B

	 	First Floor Finish Plan
	 	08/18/00
	A08-01

	 	Enlarged Bathroom Elevations and Plans
	 	04/03/01
	A09-01

	 	41st Avenue & Bridge Plaza North

Elevations/Enlarged Typical Elevation
	 	07/31/00
	A09-02

	 	27th & 28th
Street Elevations
	 	07/31/00
	A09-03

	 	Enlarged Typical Window Elevation
	 	07/31/00
	A09-04

	 	Mechanical Room Elevations
	 	07/31/00
	A10-01.1

	 	Fire Stair A/B — Sections/Plans
	 	08/25/00
	A10-02

	 	Fire Stair C — Sections/Plans
	 	12/1500
	A10-03

	 	Passenger Elevators Sections/Plans
	 	12/15/00
	A10-04

	 	Service Elevator Sections/Plans
	 	07/31/00
	A10-06

	 	Awning Detail Sections/Plan
	 	08/18/00
	A11-01

	 	Interior Elevations
	 	12/15/00
	A11-02

	 	Interior Elevations
	 	08/18/00






* These
drawings include a preliminary issue of changes requested by Met Life/HLW.

They will not be implemented until Tishman determines cost and
schedule impact.








- 1 -









 








RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




May 4, 2001




ARCHITECTURAL — continued




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	A11-03

	 	Interior Elevator Cab
	 	08/18/00
	A11-04

	 	Plan, Elevations, Sections of Security Desk
	 	03/09/01
	A12-01.2

	 	Partition Type
	 	08/25/00
	A12-02

	 	Floor To Floor Transition Details
	 	07/31/00
	A12-03.1

	 	Stair Details
	 	08/25/00
	A12-04

	 	Passenger Elevator Details
	 	07/31/00
	A12-05

	 	Ceiling Details
	 	08/18/00
	A12-06

	 	Roof Details
	 	07/31/00
	A12-07

	 	Door Head, Jamb and Sill Details
	 	07/31/00
	A12-08.1

	 	Roof Details
	 	08/25/00
	A12-09

	 	Feature Stair Details
	 	12/15/00
	R-01

	 	Roof Plan
	 	05/12/00
	R-02

	 	Roof Details
	 	05/12/00
	R-03

	 	Roof Details
	 	05/12/00
	 
	 	 	 	 
	STRUCTURAL
	 	 	 	 
	 
	 	 	 	 
	S-1

	 	General Notes
	 	09/20/00
	S-2A

	 	Typical Demolition Plan
	 	01/23/01
	S-3A

	 	Roof Demolition Plan
	 	09/22/00
	S-4

	 	Typical Framing Plan
	 	07/31/00
	S-5A

	 	Part Framing Plan
	 	09/22/00
	S-6

	 	Part Framing Plan
	 	04/10/01
	S-7A

	 	Roof Framing Plan
	 	09/22/00
	S-8

	 	Typical Details & Sections
	 	01/08/01
	S-9

	 	Sections
	 	01/08/01
	S-10

	 	Mechanical Equipment Room, Elevator
Machine Room, and Bulkhead Framing Plan
	 	01/18/01
	S-11

	 	Mech. Equip. Rm. Elevator Mach. Rm.
& Bulkhead Framing Plan
	 	04/12/01
	S-12

	 	1st & Ground Floor Sections
	 	04/12/01
	S-13

	 	28th Street Con Edison Vault Plan & Sections
	 	03/13/01
	S-14

	 	Con Edison Vault Sections Details
And General Notes
	 	03/13/01
	 
	 	 	 	 
	MECHANICAL
	 	 	 	 
	 
	 	 	 	 
	M-1

	 	Schedule Sheet #2
	 	04/23/01
	M-2

	 	Basement HVAC Plan South
	 	04/23/01
	M-3

	 	Basement HVAC Plan North
	 	04/23/01
	M-4

	 	1st Floor HVAC Plan South
	 	04/23/01
	M-5

	 	1ST Floor HVAC Plan North
	 	04/23/01
	M-6

	 	2nd Floor HVAC Plan South
	 	04/23/01
	M-7

	 	2nd Floor HVAC Plan North
	 	04/23/01
	M-8

	 	Typical Floor (3rd, 4th,
5th) HVAC Plan South
	 	04/23/01
	M-9

	 	Typical Floor (3rd, 4th,
5th) HVAC Plan North
	 	04/23/01
	M-10

	 	6th Floor HVAC Plan South
	 	04/23/01
	M-11

	 	6th Floor HVAC Plan North
	 	04/23/01
	M-12

	 	Roof HVAC Plan South
	 	04/23/01






- 2 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




			
	 	 	 
	MECHANICAL — continued
	 	May 4, 2001






	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	M-13

	 	Roof HVAC Plan North
	 	04/23/01
	M-14

	 	Mechanical Room Sections Sheet #1
	 	03/09/01
	M-15

	 	Air and Water Riser Diagram
	 	04/23/01
	M-16

	 	Water Flow Diagram
	 	03/09/01
	M-17

	 	Fuel Oil Flow Diagram
	 	04/23/01
	M-18

	 	Detail Sheet #1
	 	08/29/00
	M-19

	 	Detail Sheet #2
	 	08/29/00
	M-20

	 	Detail Sheet #3
	 	08/29/00
	M-21

	 	Schedule Sheet #1
	 	04/23/01
	M-22

	 	Schedule Sheet #2
	 	03/09/01
	M-23

	 	Schedule Sheet #3
	 	03/09/01
	 
	 	 	 	 
	ELECTRICAL
	 	 	 	 
	 
	 	 	 	 
	E-1

	 	Basement — South Lighting & Power Plan
	 	04/03/01
	E-2

	 	Basement — North Lighting & Power Plan
	 	04/03/01
	E-3

	 	First Floor — South Lighting & Power Plan
	 	04/03/01
	E-4

	 	First Floor — North Lighting & Power Plan
	 	04/03/01
	E-5

	 	Typical Floor — South Lighting & Power Plan
	 	04/03/01
	E-6

	 	Typical Floor — North Lighting & Power Plan
	 	04/03/01
	E-7

	 	Roof — South Lighting & Power Plan
	 	04/03/01
	E-8

	 	Roof — North Lighting & Power Plan
	 	03/13/01
	E-9

	 	Light and Power Riser
	 	04/05/01
	E-10

	 	Riser Diagrams
	 	04/03/01
	 
	 	 	 	 
	FIRE PROECTION
	 	 	 	 
	 
	 	 	 	 
	FP-001

	 	Fire Protection Cover Sheet and Schedule
	 	10/24/00
	FP-100

	 	Basement Floor Fire Protection Plan
	 	03/09/01
	FP-101

	 	First Floor Fire Protection Plan
	 	08/29/00
	FP-102

	 	2nd Floor Fire Protection Plan
	 	03/09/01
	FP-103

	 	3rd to 5th Floor Fire
Protection Plan
	 	03/09/01
	FP-104

	 	6th Floor Fire Protection Plan
	 	03/09/01
	FP-105

	 	Roof Fire Protection Plan
	 	07/30/00
	FP-200

	 	Fire Protection Riser Diagram
	 	07/30/00
	 
	 	 	 	 
	PLUMBING
	 	 	 	 
	 
	 	 	 	 
	P-001

	 	Plumbing Cover Sheet
	 	04/23/01
	P-100

	 	Basement Floor Plumbing Plan
	 	04/23/01
	P-101

	 	First Floor Plumbing Plan
	 	04/23/01
	P-102

	 	2nd Floor Plumbing Plan
	 	07/30/00
	P-103

	 	3rd to 5th Floor Plumbing Plan
	 	03/09/01
	P-104

	 	6th Floor Plumbing Plan
	 	03/09/01
	P-105

	 	Roof Plumbing Plan
	 	07/30/00
	P-106

	 	Mechanical Room Plumbing Plan
	 	07/30/00
	P-107

	 	Toilet Details
	 	04/23/01
	P-200

	 	Sanitary & Water Riser Diagram
	 	04/23/01
	P-300

	 	Plumbing Equipment Schedule
	 	03/09/01






- 3 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




May 4, 2001




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	Civil
	 	 	 	 
	C-100

	 	List of Drawings and Notes
	 	01/17/01
	C-101

	 	Sidewalk Site/Grading Plan
	 	01/17/01
	C-102

	 	Profiles
	 	01/17/01






- 4 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK

SPECIFICATIONS




April 19, 2001




DIVISION 0 — BIDDING AND CONTRACT DOCUMENTS




	 	 	 	 	 
	SPECIFICATION NO.	 	DESCRIPTION	 	DATE
	00001

	 	Title Page
	 	8/18/00
	00003

	 	Table of Contents
	 	8/18/00
	00700

	 	General Conditions (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 1 — GENERAL REQUIREMENTS	 	 
	 
	 	 	 	 
	01100

	 	Summary (1) (2)
	 	7/31/00
	01030

	 	Alternates, Allowances and Unit Prices (2)
	 	7/31/00
	01035

	 	Modification Procedures (2)
	 	7/31/00
	01040

	 	Attic Stock (2)
	 	7/31/00
	01041

	 	Project Coordination (2)
	 	7/31/00
	01045

	 	Cutting and Patching (2)
	 	7/31/00
	01050

	 	Field Engineering (2)
	 	7/31/00
	01152

	 	Applications for Payment (2)
	 	7/31/00
	01200

	 	Project Meetings (2)
	 	7/31/00
	01315

	 	Construction Schedules (2)
	 	7/31/00
	01370

	 	Schedule of Values (2)
	 	7/31/00
	01400

	 	Quality Control & Testing (2)
	 	7/31/00
	01410

	 	Testing Laboratory Services (2)
	 	7/31/00
	01500

	 	Temporary Facilities (2)
	 	7/31/00
	01540

	 	Security (2)
	 	7/31/00
	01600

	 	Materials and Equipment (2)
	 	7/31/00
	01620

	 	Storage & Protection (2)
	 	7/31/00
	01630

	 	Product options & Substitutions (2)
	 	7/31/00
	01700

	 	Contract Closeout (2)
	 	7/31/00
	01710

	 	Cleaning (2)
	 	7/31/00
	01720

	 	Project Record Documents (2)
	 	7/31/00
	01730

	 	Operating and Maintenance Data (2)
	 	7/31/00
	01732

	 	Selective Demolition (2)
	 	7/31/00
	01740

	 	Warranties and Bonds (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 2 — SITEWORK
	 	 	 	 
	 
	 	 	 	 
	02200

	 	Earth work
	 	To Be Issued
	02500

	 	Concrete Paving (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 3 — CONCRETE
	 	 	 	 
	 
	 	 	 	 
	03320

	 	Lightweight Fill, Flashing Patching and
Leveling Compound (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 4 — MASONRY
	 	 	 	 
	 
	 	 	 	 
	04200

	 	Unit Masonry (2)
	 	7/31/00






- 5 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




April 19, 2001




DIVISION 5 — METALS




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	05400

	 	Cold Formed Metal Framing
	 	7/31/00
	05500

	 	Metal Fabrications
	 	7/31/00
	05510

	 	Metal Pan Steel Stairs
	 	7/31/00
	05585

	 	Metal and Glass Awning
	 	8/18/00
	05700

	 	Ornamental Metal
	 	8/18/00
	05800

	 	Convector Enclosures
	 	7/31/00
	 
	 	 	 	 
	DIVISION 6 — WOOD AND PLASTICS	 	 
	 
	 	 	 	 
	06100

	 	Rough Carpentry
	 	7/31/00
	06400

	 	Architectural Woodwork
	 	7/31/00
	 
	 	 	 	 
	PROJECT MANUAL FOR ROOF REMOVAL AND REPLACEMENT (BY CONSULTANT)
	 
	 	 	 	 
	01010

	 	Summary of Work (2)
	 	7/31/00
	02020

	 	Demolition (2)
	 	7/31/00
	06600

	 	Carpentry (2)
	 	7/31/00
	07536

	 	Modified Bituminous Roofing (2)
	 	7/31/00
	07620

	 	Flashing and Sheet Metal (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 7 — THERMAL AND MOISTURE PROTECTION	 	 
	 
	 	 	 	 
	07100

	 	Traffic Bearing Waterproof Finish (2)
	 	7/31/00
	07110

	 	Capillary Waterproof for Elevator Pits
	 	7/31/00
	07200

	 	Building Insulation (2)
	 	7/31/00
	07250

	 	Sprayed Fireproofing (2)
	 	7/31/00
	07260

	 	Intumescent Fireproofing (2)
	 	7/31/00
	07410

	 	Metal Panel Siding (2)
	 	7/31/00
	07700

	 	Roof Specialties and Accessories (2)
	 	7/31/00
	07900

	 	Joint Sealants (2)
	 	7/31/00
	 
	 	 	 	 
	DIVISION 8 — DOORS AND WINDOWS	 	 
	 
	 	 	 	 
	08110

	 	Hollow Metal Doors and Frames (2)
	 	7/31/00
	08330

	 	Rolling Steel Door (2)
	 	7/31/00
	08410

	 	Entrances and Glazed Frames
	 	7/31/00
	08450

	 	Tempered Glass Doors (2)
	 	7/31/00
	08470

	 	Revolving Doors and Frames
	 	7/31/00
	08700

	 	Finish Hardware (2)
	 	7/31/00
	08800

	 	Glass and Glazing (2)
	 	8/18/00






- 6 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




April 19, 2001




DIVISION 9 — FINISHES




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	09200

	 	Portland Cement Plaster Stucco
	 	7/31/00
	09234

	 	Marmorino Venetian Plaster
	 	8/18/00
	09250

	 	Gypsum Board Systems
	 	7/31/00
	09300

	 	Tile Work
	 	8/18/00
	09400

	 	Monolithic Thinset Terrazzo
	 	8/18/00
	09510

	 	Acoustical Ceilings
	 	7/31/00
	09630

	 	Interior Stonework
	 	8/18/00
	09665

	 	Sealed Concrete Topping Floor Finish
	 	8/18/00
	09680

	 	Carpeting
	 	8/18/00
	09900

	 	Painting and Finishing
	 	8/18/00
	 
	 	 	 	 
	DIVISION 10 — SPECIALTIES	 	 
	 
	 	 	 	 
	10160

	 	Toilet Partitions
	 	7/31/00
	10200

	 	Louvers and Vents
	 	7/31/00
	10520

	 	Fire Extinguishers and Cabinets
	 	7/31/00
	10800

	 	Toilet Accessories
	 	7/31/00
	 
	 	 	 	 
	DIVISION 11 — EQUIPMENT	 	 
	 
	 	 	 	 
	11160

	 	Loading Dock Equipment
	 	7/31/00
	11900

	 	Miscellaneous Equipment
	 	6/30/00
	 
	 	 	 	 
	DIVISION 14 — CONVEYING SYSTEMS	 	 
	 
	 	 	 	 
	14200

	 	Elevators General
	 	7/31/00
	14210

	 	Traction Elevators
	 	7/31/00
	14250

	 	Elevator Cars
	 	7/31/00
	14260

	 	Hoistway Entrances
	 	7/31/00
	14275

	 	Elevator Cab Finishes (2)
	 	7/31/00
	14420

	 	Wheel Chair Lift
	 	7/31/00
	 
	 	 	 	 
	MECHANICAL AND ELECTRICAL	 	 
	 
	 	 	 	 
	DIVISION 15 — MECHANICAL	 	 
	 
	 	 	 	 
	15400

	 	Plumbing Specifications
	 	6/30/00
	15600

	 	HVAC
	 	6/30/00
	15700

	 	Fire Protection
	 	6/30/00
	15950

	 	Building Automation & Temperature Controls
	 	6/30/00






- 7 -









 






RIDER “B”

LIST OF DRAWINGS & SPECIFICATIONS

BRAUSE REALTY




LONG ISLAND CITY, NEW YORK




April 19, 2001




DIVISION 16 — ELECTRICAL




	 	 	 	 	 
	DRAWING NO.	 	DESCRIPTION	 	DATE
	16400

	 	Electrical
	 	6/30/00
	16500

	 	Lighting Fixtures (2)
	 	6/30/00







- 8 -











 





HEATING, VENTILATING AND AIR

CONDITIONING PERFORMANCE CRITERIA



The air conditioning system shall be capable of providing inside conditions of not more than
75±2°F. dry bulb and 50% relative humidity provided the outside conditions are not more than 95°F.
dry bulb and 75°F. wet bulb.



The system shall be capable of delivering not less than 0.2 cfm of fresh air per usable square
foot, and of maintaining a minimum temperature of 70°F. dry bulb when the outside temperature is
0°F. dry bulb.



All of the foregoing performance criteria are based upon an occupancy of not more than one person
per 100 square feet of usable floor area in the premises, and upon a combined lighting and
standard electrical load not to exceed 5.0 watts per square foot of usable floor area in the
premises and solar and transmission loads.



The air conditioning unit fan systems on each floor shall be capable of delivering supply air at a
temperature not greater than 56°F. at the duct leaving the Mechanical Equipment Room wall at a
static pressure of 1.0 inches water column.



Noise levels due to the local floor air conditioning unit shall not exceed NC-42 (with acoustic
ceilings installed) when measured within 10 feet from the Mechanical Equipment Room wall.




 









 





ELEVATOR PERFORMANCE SPECIFICATIONS





	A.	 	SYSTEM PERFORMANCE






	 	1.	 	All Elevators






	 	a.	 	Contract Speed: Within 1% under any loading conditions; 350 fpm.
	 
	 	b.	 	Leveling: Within 1/4 inch under all loading conditions.






	 	2.	 	Passenger Elevators






	 	a.	 	Floor-to-Floor Time: Measure from start of door
closing at one floor to 3/4 open door, car level at the next floor; 9.0.
seconds for typical floor height of 12 ft.
	 
	 	b.	 	Vertical Acceleration and Deceleration: Maximum 4 ft.
per second squared. Maximum jerk; 8 ft. per second cubed.
	 
	 	c.	 	Horizontal Acceleration: Measure a full elevator trip
in both directions by a PMT recording accelerometer. Limit peak acceleration
in each plane to 18 milligees.






	B.	 	DOOR PERFORMANCE






	 	1.	 	All Elevators






	 	a.	 	Door Opening: Doors to be 3/4 open when car is leveling with the floor.
	 
	 	b.	 	Door Opening Time: From start to open to fully open;
passenger elevators, 1.5 seconds; service elevator, 3.0 seconds.
	 
	 	c.	 	Door Closing Time: From start to close to fully
closed; passenger elevators, 2.5 seconds; service elevator, 5.3 seconds.
	 
	 	d.	 	Door Nudging Time: 25 seconds.
	 
	 	e.	 	Door Closing Pressure: 30 lbs. maximum.





End Specifications




 









 





Architecture, Design & Planning Worldwide Gensler




May 4, 2001




Mr. David Brause

Vice President

Brause Realty Inc.

52 Vanderbilt Avenue

New York, NY 10017





			
	Re:	 	27-01 Bridge Plaza North

Long Island City. N.Y.





Dear David:



As per your request the following items reflect revisions that need to be made to the
construction documents, which are to be submitted by 5/18/01. We are proceeding with that
work, using the most recent construction documents. The most recent
dates are indicated
for each of the documents for your reference. Please be advised all items below are in
response and refer to the comments recently received from HLW on April 26th,
and Advocate on May 2, 2001.





	 	1.	 	Sheet # A00.04






	 	a.	 	Plumbing Accessory Schedule






	 	•	 	Flush-Metal Partition #35-Beige for floor mounted toilet partitions
	 
	 	•	 	III.W has agreed to use the floor mounted toilet
partition as per Gensler’s specifications.






	 	b.	 	Lighting Fixture Schedule (Base Building Design Standards —
Lighting prepared by JB&B dated May 4, 2001)






	 	•	 	Tishman to confirm the status of all orders to
determine if the delivery dates will affect the project schedule.
	 
	 	•	 	The owner will install requested fixtures. Tishman must
confirm the lighting order; it should not affect the project schedule.
Verify all delivery dates.
	 
	 	•	 	Gensler will change approved fixture to Legion. Tishman
to confirm ordering status and dates of delivery. MetLife to pay any
incremental cost.
	 
	 	•	 	The F4 fixture is as specified and approved. The
fixture requires (2) 26-watt lamps with 3000k as required for shallow
conditions.
	 
	 	•	 	Approved fixture ‘F5’. Fixture to have while bold baffle.
	 
	 	•	 	Fixture F6 is not used.
	 
	 	•	 	HLW has agreed to change the F7 to a track
light fixture to match the adjacent lighting. Lenses will be
adjusted to accent the wall panels.






	 	c.	 	Ceilings






	 	•	 	CLG-3: Exposed ceiling with Benjamin Moore paint (P-l) AC-41
	 
	 	•	 	CLG-4: Armstrong Ceiling Tile with silhouette
grid system 24"x 24" — MetLife to pay incremental cost.




 









 











			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 2	 	 







	 	•	 	CLG-5: Ceilings Plus perforated aluminum
panels w/1/4" round @ 1/2 straight centers/kryolite finish.






	 	d.	 	Carpet






	 	•	 	Patcraft: Flashback 02600-108

Color: Monterey Pop

Location: Passenger Elevator Cab






	 	e.	 	Ceramic Tiles






	 	•	 	CT-2: Toilet Room Walls

Color: A-02 Dark Aspen/Unglazed (2" x 2")
	 
	 	•	 	CT-3: Toilet Room Floors and Base

Color: A-27 Sand/Unglazed (2" x 2")






	 	f.	 	Glass






	 	•	 	Manufacturer: Visions
	 
	 	•	 	Style #VP40.7.1
	 
	 	•	 	Metal M-3 is not used






	 	g.	 	Paint






	 	•	 	P-1: Benjamin Moore — Color: AC-41 Acadia White/Finish: Eggshell

Location: Lobby
	 
	 	•	 	P-2: Benjamin Moore — Color: 2143-60 Moonlight White/Finish: Semi-Gloss 

Location: Doors and Frames for Restrooms
	 
	 	•	 	P-3: Benjamin Moore — Color: AC-2 Berkshire Beige/Baked Enamel

Location: Elevator Doors and Frames (Elevator Lobby)
	 
	 	•	 	P-4: Scuffmaster No: G2157174

Location: Elevator Lobby Ceiling in ground floor lobby
	 
	 	•	 	P-5: Not Used
	 
	 	•	 	P-6: Amian Group/Color: Montavano K-1765 

Location: East wall of lobby has been approved by HLW






	 	h.	 	Stone






	 	•	 	ST-1: Contact: Stone Source - Pewter

Location: Rear wall of lobby has been approved by HLW
	 
	 	•	 	ST-2: Marble/Color: Bottocino Classico/ Finish: Polished

Location: Restroom Countertops has been approved by HLW
	 
	 	•	 	ST-3: Not used
	 
	 	•	 	ST-4: Granite/Contact: Stone Source has been approved by HLW






	 	i.	 	Terrazzo






	 	•	 	TR-1: Contact: D. Magnan & Co/#6293-E 

Location: Lobby floor
	 
	 	•	 	TR-2: Contact: D. Magnan & Co/#4625-E

Location: Lobby border





 









 





			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 3	 	 







	 	j.	 	Plastic Laminate






	 	•	 	PL-1: Manufacturer: Abet Laminati/ Campione Gratuito
#1087/ Finish: Fiber 

Location: Elevator Wall Panels
	 
	 	•	 	PL-2: Manufacturer: Nevamar/ Wrought Iron #S-6-54T/
Finish: Textured 

Location: Elevator Wall Panel Reveals
	 
	 	•	 	PL-3: Manufacturer: Nevamar/ Wild Oats Matrix #6-6-ST/
Finish: Putty Textured

Location: Elevator Cab Ceiling
	 
	 	•	 	PL-4: Manufacturer: Nevamar/ Ochre Tempera/ Finish:
Textured TM-2-1T 

Location: Desk Laminate
	 
	 	•	 	PL-5: Manufacturer: Wilsonart/ Satin brush
aluminum steel #6277

Location: Front and sides
	 
	 	•	 	PL-6 Handicap accessible panel. Color to match stone counter





2. Sheet A00-05.1





	 	a.	 	Door Schedule






	 	•	 	“MP”- Metal Paint, “SS”- Stainless Steel, “AL”- Aluminum
	 
	 	•	 	Hardware sets 1,2,3, & 8 have been changed to MetLife
standard lockset Corbin Russwin MI 2000 Series with Lever LSA-
Tishman to confirm ordering status and cost.





3. Sheet # A0-01 — First Floor Demolition





	 	•	 	Column A1.1 will remain throughout building as per structural drawings.





4. Sheet # A02-B1 — Enlarged Cellar Plan





	 	•	 	There will be two locations of fully recessed “ELKAY”
drinking fountains in the basement.
	 
	 	•	 	HLW has requested there shall be no steel framing for
the proposed Southeast Lobby, provided on the Cellar level. MetLife
has agreed to build a slab level with the existing first floor to
increase ceiling height in the basement at their expense.
	 
	 	•	 	The ceiling clearance beneath loading dock area is
restricted to 7'-4" from basement slab to underside of steel
fireproofing.





5.
Sheet # A02-B2 — Enlarged Cellar Plan





	 	•	 	Fiber POE Room B-29 and AC Switchgear Room B-31A are removed.





6. Sheet A02-GD — Enlarged Ground Floor Plan





	 	•	 	HLW and Gensler to mutually agree on the location of
the security desk in the northwest corner of the lobby. HLW to review
Gensler’s security desk details.
	 
	 	•	 	The updated Ground Floor plan coordinates with the
security desk on sheet 11-04.
	 
	 	•	 	Ground floor elevation is at -7'-6"





 









 





			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 4	 	 







	 	•	 	Room 102 is the lower existing lobby on the
south/west corner and Room 143 is the proposed lobby on the south/east
corner off Bridge Plaza. They will both be removed from the drawings
as per HLW request.
	 
	 	•	 	The final lobby proposal is to remove the light box
along the cast wall, which HLW has agreed upon. Alternate light
design by JB&B of west wall subject to HLW approval.
	 
	 	•	 	MetLife has agreed to provide the new slab in the
areas between columns AA0 to B1 and 10 to K1.
	 
	 	•	 	MetLife has agreed to use the Gensler’s specified
wallcovering along the entire elevator lobby. Owner to specify
artwork along north elevator lobby wall and subject to approval by
Metlife.





7. Sheet A02-01A — Enlarged First Floor





	 	•	 	The only proposed access is along Bridge Plaza North into the Main Lobby.
	 
	 	•	 	Owner will be providing doors as per HLW’s sketch
along the egress corridor 142 and owner will reconfigure Garbage Room
137 as per HLW’s sketch with two sets of double doors from the
Garbage Room and an additional set of doors leading into the Loading
Dock. Tishman to confirm schedule and cost.
	 
	 	•	 	There will be a 5" concrete pad at column 4D above
elevation 0"-0"
	 
	 	•	 	Corridor 124 and 113 will not be provided.
	 
	 	•	 	MetLife has requested that owner shall install new
curtain walls in retail spaces on the corners along 27th
and Bridge Plaza North and 28th and Bridge Plaza North,
all at tenant’s expense. Tishman to confirm cost and scheduling
implications to indicated areas. Owner agrees to use commercially
reasonable efforts to complete the exterior work as soon as
reasonably practicable.





8. Sheet A02-01B — Enlarged First Floor





	 	•	 	No egress doors are currently provided along
28th St. MetLife has requested that owner shall install
new curtain walls (including one double door) and ramp to coordinate
with tenants requested change at proposed Cafeteria, all at tenant’s
expense. Tishman to confirm cost and scheduling implications. Owner
agrees to use commercially reasonable efforts to complete the
exterior work as soon as reasonably practicable.
	 
	 	•	 	Corridor 131 will be removed.





9. Sheet A02-T1 — Enlarged Typical Floor





	 	•	 	New purge shafts will be provided as shown on the attached floor plans.
	 
	 	•	 	The core wall between columns G4 & G5 will align with the bathroom walls.





10. Sheet # A02-T2 — Enlarged Typical Floor





	 	•	 	HLW has agreed on the three locations of fully
recessed drinking fountains as shown on the attached floor plans. Two
of the drinking fountain shall be double handicap accessible.
	 
	 	•	 	Remove Key Note 1.





 









 





			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 5	 	 






11. Sheet # A04-GD — Ground Floor Ceiling





	 	•	 	Plan has been revised to current configuration of elevator lobby





12. Sheet # A04-01 — Ground Floor Ceiling





	 	•	 	Plan has been revised to current configuration of elevator lobby





13. Sheet # A04-02 — Plan





	 	•	 	Corridor 105, Corridor 115, Corridor 125 has been removed
	 
	 	•	 	F4A fixtures were wall washers along Corridor 107
which was removed from Gensler’s scope of work. HLW is to coordinate
with their engineer and specify the Osram Sylvania fixtures requested.
	 
	 	•	 	The fluorescent uplight at the top on
the aluminum wall panel is Legion: 1520-2T8-XEBO/DIM
(See attached specifications)
	 
	 	•	 	The indirect florescent light fixture above
the ceiling shall be used as emergency lighting as per
JB&B’s approval.





14. Sheet # A05-01 — Ground Floor Finish Plan





	 	•	 	Plan has been revised to current finish schedule to be
submitted on May 18, 2001.
	 
	 	•	 	The lower ground floor Elevator Lobby 106 was renamed
to Elevator Lobby G06. The proposed wall for room G06 is
Maharam/394001 Whirlwind/007 Granitine to match adjacent elevator
walls has been approved by HLW.
	 
	 	•	 	The finishes for Elevator Lobby 106 will be in HLW’s scope of work.
	 
	 	•	 	Key Note 1 has been removed, Note 2 will be revised as
per HLW’s paint specification (still pending), Note 3 will be revised
as per Gensler’s specification, Note 4 has been revised to baked
enamel #35.





15. Sheet # A08-01 — Enlarged Bathroom





	 	•	 	American Olean ceramic tile A-27 Sand
unglazed is specified for the Elevations & Plans floor
finish.
	 
	 	•	 	Counter material is specified as a polished marble Bottocino Classico
	 
	 	•	 	Sketch CSK-22A will be provided on the detail sheet.





16.
Sheet # A09-01 —
41st Ave. & Bridge





	 	•	 	Will comply to window types ‘L’ and ‘N’ with no egress door provided.
	 
	 	•	 	Elevations: Gensler to design curtain wall system on
retail spaces along the corners of 27th and Bridge Plaza
North and 28th and Bridge Plaza North to match adjacent cast
iron spandrel at Metlife expense. Owner agrees to use commercially
reasonable efforts to complete the exterior work as soon as reasonably
practicable.





17.
Sheet # A09-02 — 27th & 28th Street





	 	•	 	Gensler to design curtain wall system to match adjacent cast
iron spandrel Elevations





 









 





			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 6	 	 







	 	•	 	At Metlife expense, Owner agrees to use commercially
reasonable efforts to complete the exterior work as soon as reasonably
practicable.
	 
	 	•	 	Note 6 to remain. New proposed windows shall match
existing bronze 5 bay window system along 27th Street.





18.
Sheet # A10-02 — Fire Stair C





	 	•	 	Section #7 of Stair ‘C’ will be updated to reflect the
5" high concrete pad on the first floor.





19. Sheet #A11-01 — Interior Elevations





	 	•	 	Metal wall panels will be changed from M-3 to M-1. All
interior elevations has been revised, see updated drawings.





20. Sheet # A11-02 Interior Elevations





	 	•	 	All corridors will be eliminated from Gensler’s construction
documents and be in HLW’s scope of work.





21. Sheet #A11-03 — Interior Elevator Cabs





	 	•	 	All interior elevations and finishes have been revised and
approved by owner and HLW.





22. Sheet # A11- 04 — Security Desk





	 	•	 	Lobby and security desk drawings will reflect updated changes as
per drawing A02-GD-P dated 5/4/01, subject to HLW’s review and
approval





23. Sheet # A12-03.1 — Stair Details





	 	•	 	All details have been updates as per NYC code requirements.
	 
	 	•	 	Details #8 has been omitted as per new lobby design.





24.
Sheet #A 12-04 — Passenger Elev. Details





	 	•	 	Passenger Elevator doors shall be baked enamel Beige # 35
as per the updated drawings.





25. Sheet # A12-05 — Passenger Elev. Details





	 	•	 	All details will be updated as per Ceiling Plus specifications in lobby
area.
	 
	 	•	 	Omit details #10 and #11 all details shall be updated
as per revised ceiling plans.





26. Sheet # A12-09 — Details





	 	•	 	Detail 01 has been revised and will reflect on the next set of
construction documents. Details 02, 04,05 have been removed.
	 
	 	•	 	Metal panel walls will be Kryolite Aluminum.





 









 





			
	 	 	 
	Mr. David Brause
	 	Gensler
	Brause Realty, Inc.	 	 
	May 4, 2001	 	 
	Page 7	 	 






If you have any questions, please call.




Sincerely,




	 	 	 

	/s/ Jacob Bousso, AIA
 

Jacob Bousso, AIA

	 	  
	Senior Associate
	 	 






cc:      Gensler Project Team




 









 





Exhibit E




Not Used




 









 





Exhibit F




Title Matters



None



 









 





Exhibit G




Owner’s Work Schedule


1. Refurbishment of all core bathrooms servicing the Premises in accordance with Owner’s Plans and
in compliance with all Requirements (including the provisions of the Americans with Disabilities
Act of 1992), including new fixtures, tiling, mirrors, hardware, partitions, ceiling, lighting and
equipment. Tenant has approved the finishes for the bathrooms based on the plans and finishes
provided to Tenant to date.




     Initial Premises: August 1, 2001 (except with respect to the cellar bathrooms which shall be
substantially completed by August 15, 2001)



     Balance Space: August 1, 2001


2. Installation of complete vertical sprinkler infrastructure, including combination
standpipe/sprinkler risers, pumps and valve connections at the core on each floor of the Premises
(as shown on Owner’s Plans) which is ready for Tenant main sprinkler loop, branch piping and
sprinkler head installation.




     Initial Premises: June 1, 2001



     Balance Space: June 1, 2001 (Owner will provide temporary sprinkler loops between 2 firestairs
and the elevator lobby on each floor in the Balance Space if Tenant’s sprinklers are not in place
by the date Tenant is prepared to file a temporary certificate of occupancy for the Initial
Premises.) In connection therewith (and subject to Section 5.7 hereof), Landlord shall, at Tenant’s
expense, hire a fire watch.


Notwithstanding the foregoing, the sprinkler system will not be operational until August 15,
2001.



3. Fireproofing of any exposed structural steel currently in place or installed by Owner.




     Initial Premises: July 1, 2001



     Balance Space: September 1, 2001



     Any steel which is subsequently installed will be fireproofed within 2 weeks thereof.


4. Demolition of all existing improvements from slab to slab in accordance with Owner’s Plans
(including leveling any portions of the floors where turntable pits are located and preparing these
areas to receive new floor finishes), demolition and removal of the existing service elevator, all
radiators, and all horizontal and vertical piping, including associated risers and




 









 





Cellar Plan for Exhibit G









 









 





Exhibit H




Construction Arbitration Arbitrators




Vince Vetrano 

Sal Italiano

Gerry Carty Taylor

Strubinger






 




			
	*	 	All can be reached through the American Arbitration Association




-8-









 










Exhibit I




Multi-tenant Lease Provisions



1. Real Estate Taxes. Tenant shall pay to Owner Tenant’s proportionate share of all
Real Estate Taxes in excess of Real Estate Taxes for a base year (which shall be the first calendar
year of the renewal term). Owner, not Tenant, shall have the first right to contest Real Estate
Taxes.



2. Taking. Tenant shall not share in any award and the other Taking provisions shall
be modified to take into account that Tenant is not the tenant of the entire Building.



3. Services. Owner shall be responsible for and control Building security, the
elevators, the common areas and any other services typically provided by owners of similar
buildings in Long Island City, New York (but not cleaning, electric or other separately metered
services). Tenant shall reimburse Owner for Tenant’s proportionate share of the costs incurred by
Owner in connection therewith, including a reasonable management fee in excess of costs incurred by
Owner during a base year (which shall be the first calendar year of the renewal term).



4. Access. Owner shall have the right to (a) place (and have access to) concealed
ducts, pipes, and conduits through the Premises and (b) alter the Building, and change the
arrangement or location of entrances, corridors, doorways, elevators, stairs, toilets, or other
public portions of the Building.



5. Miscellaneous. Other provisions normally found in leases in multi-tenanted
buildings, not inconsistent with this Lease.



6. Arbitration. Any dispute with respect to this Exhibit shall be resolved by General
Arbitration.





 









 






Rev. #2
Dated 4/26/01




Exhibit J




Tenants Initial Work Contractors and Subcontractors




METLIFE-Project Autumn

Bridge Plaza Tech Centre

Floors 2nd thru 6th

Long Island City, N.Y.




	 	 	 

	REF: E\ PROJECTS\ CGC\012431\ BID PACKAGE \ BIDLIST

	 	TENANT FIT-OUT
	 

	 	GENERAL CONSTRUCTION PACKAGE
	 
	 	 
	     SUBCONTRACTOR BID LIST
	 	 
	 
	 	 
	02220 — DEMOLITION

	 	09300 — CERAMIC / STONE
	 
	 	 
	CASALINO (WMBE)

	 	ERATH
	FORTUNE

	 	JANTILE
	GENERAL

	 	PORT MORRIS
	PATRIOT

	 	MARCELLO
	LIBERTY
	 	 
	 
	 	 
	03300/04200 — CONCRETE / MASONRY

	 	09680 — FLOORING (INSTALLATION ONLY)
	 
	 	 
	EUROTECH (WMBE)

	 	RESOURCE
	COMMODORE

	 	SHERLAND & FARRINGTON
	CIROCCO OZZIMO

	 	SOUNDTONE
	 

	 	INTEGRITY FLOORING
	 
	 	 
	05100 — STEEL

	 	09840 — FABRIC PANELS
	 
	 	 
	BURGESS

	 	DFB
	EMPIRE

	 	REGIONAL WALL
	KOENIG

	 	STRECTHWALL
	UNITED IRON

	 	MODERNFOLD
	ADF
	 	 
	 
	 	 
	06400 — MILLWORK

	 	09900 — PAINTING
	 
	 	 
	NORDIC

	 	ANTOVEL
	NJ MICA

	 	COSMOPOLITAN
	NJS

	 	HUDSON SHATZ
	GALE (WMBE)

	 	L & L PAINTING
	EMCO

	 	MID-MANHATTAN
	SOMMERVILLE (WMBE)

	 	ENVIROCHROME
	 

	 	MORSTAR (WMBE)
	 

	 	PRESTIGE (WMBE)
	 
	 	 
	07110 — ROOFING

	 	10270 — ACCESS FLOORING
	 
	 	 
	U.S.G

	 	ARI
	EAGLE-ONE

	 	HI-TECH
	NATIONAL

	 	RAISED COMPUTER
	NY YORK ROOFING
	 	 
	 
	 	 
	08100/08700 — HM / HARDWARE

	 	10615 — DEMOUNTABLE PARTITIONS
	 
	 	 
	ACME

	 	ACME WALLS
	AAA

	 	Kl
	DCI METRO

	 	CLESTRA HAUSERMANN
	WEINSTEIN
	 	 





Metlife LIC - Project Autumn // Subcontractor Bid List // Page 1



 









 





Rev. #2
Dated 4/26/01



METLIFE-Project Autumn

Bridge Plaza Tech Centre

Floors 2nd thru 6th

Long Island City, N.Y.




	 	 	 

	REF: E \ PROJECTS \ CGC \ 012431 \ BID PACKAGE \ BIDLIST

	 	TENANT FIT-OUT
	 

	 	GENERAL CONSTRUCTION PACKAGE
	 
	 	 
	     SUBCONTRACTOR BID LIST
	 	 
	 
	 	 
	08400 — ARCH’L METAL/GLASS

	 	10000 — SPECIALTIES
	 
	 	 
	A-VAL

	 	GRINGER
	JONATHAN GLASS

	 	JENTEEN (WMBE)
	JDG

	 	RAVEN
	MELTO

	 	ROYAL ROSE
	COORDINTATED METAL
	 	 
	 
	 	 
	08500 — WINDOWS

	 	10400 — SIGNAGE
	 
	 	 
	AIRMASTER

	 	COUNTY NEON
	 

	 	EAGLE MASTER SIGN
	 

	 	GDS
	 

	 	PRECISION SIGNS
	 
	 	 
	09250/09500 — DRYWALL / ACOUSTIC

	 	12490 — WINDOW TREATMENT
	 
	 	 
	CORD            US INTERIORS

	 	DFB
	COMMODORE

	 	INTERNATIONAL
	EUROTECH (WMBE)

	 	LVC
	ESS/VEE

	 	CITY VIEW
	GLENN

	 	SOLAR WINDOW TINT
	JACOBSON
	 	 
	S&H
	 	 
	TECHNO
	 	 
	 
	 	 
	15100 — PLUMBING

	 	14200/14300 — ELEVATOR/ESCALATOR
	 
	 	 
	ASHLAND

	 	DOVER
	BRESLAW

	 	SCHINDLER
	LAB

	 	KONE
	PACE

	 	OTIS
	PAR

	 	GARDEN CITY
	 
	 	 
	15300 — SPRINKLER

	 	16100 — ELECTRICAL
	 
	 	 
	ABCO

	 	C&D                            EGG (WMBE)
	BELROSE

	 	KLEINKNECHT       GMA (WMBE)
	NATIONAL

	 	UNITY
	SIRINA (WMBE)

	 	PEM
	TRIANGLE

	 	P.E. STONE
	 

	 	R.B. SAMUELS
	 

	 	FOREST





Metlife
LIC - Project Autumn // Subcontractor Bid List // Page 2

 









 





Rev. #2
Dated 4/26/01




METLIFE-Project Autumn

Bridge Plaza Tech Centre

Floors 2nd thru 6th

Long Island City, N.Y.




	 	 	 

	REF: E \ PROJECTS\ CGC \ 01243\ BID PACKAGE \ BIDLIST

	 	TENANT FIT-OUT
	 

	 	GENERAL CONSTRUCTION PACKAGE
	 
	 	 
	SUBCONTRACTOR BID LIST
	 	 
	 
	 	 
	15700 — HVAC

	 	16260 — UPS/PDU
	 
	 	 
	BP AIR

	 	DATA TEC — POWERWARE
	PENGUIN

	 	NJ STILLWELL HANSON — (LIEBERT)
	PJ

	 	MGE
	SOUND
	 	 
	REACT
	 	 
	HARBOUR
	 	 
	 
	 	 
	15800 — SHEETMETAL

	 	16500 — LIGHT FIXTURES
	 
	 	 
	AABCO            HERITAGE

	 	JDC
	CONTRACTORS

	 	SHELTON
	OMC

	 	R/L
	SPEED
	 	 
	 
	 	 
	15500 — EQUIPMENT(COMPUTER AC-UNITS)

	 	01546 — EXTERIOR HOIST
	 
	 	 
	GILBAR — (DATA AIR)

	 	ATLANTIC
	NJ STILLWELL HANSON — (LIEBERT)

	 	REGIONAL
	MW EQUIPMENT — (AIRFLOW)

	 	UNITED HOISTING
	 
	 	 
	16700 -TELECOM/DATA
	 	 
	 
	 	 
	IP BLUE
	 	 
	ADCOM
	 	 
	FOREST DATA COM
	 	 
	LINEAR
	 	 





Metlife
LIC - Project Autumn // Subcontractor Bid List // Page 3


 











 





Exhibit K




Land For Parking







 









 





Exhibit L — Mortgage




      




Subordination, Nondisturbance and Attornment Agreement



 





                    Lender



Metropolitan Life Insurance Company

                     Tenant



and



Brause Plaza LLC

                     Owner



	 	 	 	 	 

	 

	 	Section:
	 	  3
	 

	 	Block:
	 	 416
	 

	 	Lot:
	 	 [part of] 10
	 

	 	City:
	 	 New York
	 

	 	County:
	 	 Queens
	 

	 	State:
	 	 New York
	 

	 	Premises:
	 	 27-01 Bridge Plaza North
	 

	 	 	 	 Long Island City, New York 11101
	 
	 	 	 	 
	 

	 	Date:
	 	                                         ,
2001






      




Record and return by mail to:




Kronish, Lieb, Weiner & Hellman LLP

1114 Avenue of the Americas

New York, New York 10036-7798

Attention: Mark Lipschutz, Esq.




 









 





Subordination, Nondisturbance and Attornment Agreement




     This Subordination, Nondisturbance and Attornment Agreement dated
                    ,
2001 among
                                        , a
                                        (“Lender”), Metropolitan Life Insurance Company, a New
York corporation (“Tenant”), and Brause Plaza LLC, a New York limited liability company (“Owner”).



Recitals




     A. Owner is the owner of the property commonly known as 27-01 Bridge Plaza
North, Long Island City, New York, more particularly described in Exhibit A attached
to this Agreement (the “Property”).



     B. Lender has agreed to make a loan to Owner in the principal amount of $                                        (the “Loan”), to be evidenced by a promissory note
(the “Note”) and secured by a
first priority mortgage on the Property (the “Mortgage”). Owner’s interest in the Lease shall be
assigned to Lender as additional security for the Loan. The Note, the Mortgage, and all other
documents and instruments that evidence or secure the Loan, and all amendments, supplements,
renewals, replacements, consolidations, extensions and advances or readvances shall be collectively
referred in this Agreement as the “Loan Documents”.



     C. Owner
and Tenant entered into a lease dated
                                        , 2001 (the
“Lease”), under which Owner leased to Tenant [a portion of] the Property (the “Premises”).



     D. Tenant desires that Tenant’s possession of the Premises under the Lease not be
disturbed if Lender exercises Lender’s rights under the Loan Documents. Lender is willing to
agree, subject to and upon the provisions of this Agreement.



     Accordingly, in consideration of the mutual agreements contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lender to make the Loan, Lender, Owner and Tenant agree as follows:



     1. Subordination. (a) The Loan Documents shall be and remain at all times a
lien on the Property prior to the Lease, the leasehold estate created by the Lease, and all rights
of Tenant under the Lease. The Lease, the leasehold estate created by the Lease and all rights of
Tenant under the Lease, including, without limitation, any purchase options, rights of first
refusal, and rights of first offer, shall be and remain at all times subject and subordinate to the
Loan Documents, except that any insurance proceeds or condemnation awards shall be applied as
provided in the Lease.



 









 





          (b) In making disbursements under the Loan Documents, Lender has no obligation or duty
to, nor has Lender represented that it shall, see to the application of such proceeds by the person
or persons to whom they are disbursed by Lender, and any application or use of such proceeds for
purposes other than those provided for in the Loan Documents shall not defeat the subordination
made in this Agreement, in whole or in part.




     2. Nondisturbance. So long as Tenant is not in default under the Lease (beyond any
period given Tenant by the Lease to cure such default) or under this Agreement:



          (a) Tenant shall not be named or joined in any foreclosure, sale or other
proceeding to enforce the Loan Documents unless the joinder is required by law in order
to perfect such foreclosure, sale or other proceeding.




          (b) The enforcement of the Loan Documents shall not terminate the Lease or
disturb Tenant in the possession and use of the Premises.




          (c) The leasehold estate granted by the Lease shall not be affected in any
manner by any transfer of Owner’s interest in the Property by foreclosure, sale or other
action or
proceeding for the enforcement of the Loan Documents or by deed in lieu thereof (a “Transfer”)
or by any other proceeding instituted or action taken under or in connection with the Loan
Documents, or by Lender’s taking possession of the Property or the Premises in accordance with
any provision of the Loan Documents.




     3. Attornment.
If any Transfer occurs, Tenant does hereby attorn to any transferee,
including Lender, of the interest of Owner as a result of any Transfer, and its successors and
assigns (collectively, “Successor”), as the landlord under the Lease, and Tenant shall be
bound to
Successor under all of the terms, covenants, conditions and provisions of the Lease for the
balance of the Lease term, all with the same force and effect as if Successor had been the
original
owner under the Lease. This attornment shall be effective and self-operative without the
execution of any further instruments upon Successor’s succeeding to the interest of the owner
under the Lease. Notwithstanding the foregoing, Successor shall not be:



          (a) Liable for any act, omission or default of any prior owner (including the
then defaulting Owner) unless such act, omission or default continues as a default under the
Lease after Tenant’s attornment, but in no event shall there be any liability to complete
Owner’s
Work or Owner’s Addition Work, although Tenant shall have Tenant’s other rights and remedies
with respect to the failure of Owner to complete Owner’s Work or Owner’s Addition Work.




          (b) Liable for any damage or other relief attributable to any breach of any
representation or warranty contained in the Lease by Owner or any prior owner under the Lease;




          (c) Subject to any offsets or defenses which Tenant might have against Owner
or any prior owner (except as expressly provided in the Lease):




-2-









 





          (d) Bound by any prepayment of rent or additional rent which Tenant might
have paid for more than the current month to Owner or any prior landlord;




          (e) Bound by any amendment of the Lease or by any waiver or forbearance on
the part of Owner or any prior owner made or given without the written consent of Lender,




          (f) Bound to make any payment to Tenant or to perform any construction
requirements under in the Lease (but if (i) the allowances expressly provided in the Lease
shall
not be paid to Tenant or (ii) Tenant shall exercise Tenant’s rights to undertake such
construction,
Tenant shall have the right of offset expressly provided in the Lease); or




          (g) Liable to Tenant in any event for any cause whatsoever for damages or
claims in excess of Successor’s interest in the Property, it being expressly agreed that
Successor’s
liability under the Lease shall be nonrecourse and that Tenant’s sole remedy in the event it
obtains a judgment against Successor for its default under the Lease shall be to foreclose
such
judgment against Successor’s interest in the Property and not to proceed against any other
assets
of Successor.




     4. Default by Owner. (a) If Owner shall default under the Loan Documents, Owner
directs Tenant to, and Tenant agrees to, recognize the assignment of rents made by Owner to Lender
in the Loan Documents, and to pay to Lender as assignee all rents due under the Lease, commencing
upon Tenant’s receipt of written notice from Lender that Owner is in default under the Loan
Documents. Owner hereby authorizes Tenant to accept that direction from Lender and waives all
claims against Tenant for any sums so paid at Lender’s direction. Such payments of rent by Tenant
to Lender by reason of that assignment and of Owner’s default shall continue until the first to
occur of the following:



               (i) No further rent is due or payable under the Lease;



               (ii) Lender gives Tenant notice that the default of Owner under the
Loan Documents has been cured and instructs Tenant that the rents shall thereafter be payable to
Owner; or



               (iii) A Transfer occurs and Successor gives Tenant notice of the
Transfer. The Successor shall thereupon succeed to the interest of Owner as owner under the Lease,
after which time the rents and other benefits of Owner under the Lease shall be payable to
Successor.



          (b) If Owner shall default under the Loan Documents, Lender shall deliver to Tenant, in
the manner set forth in this Agreement, simultaneously with the delivery to Owner, a copy of any
notice of that default which Lender is required to give to Owner under the Loan Documents. Tenant
shall have the same period of time (that is, Owner’s time period and Tenant’s time period shall run
concurrently) as Owner has under the Loan Documents to cure the










-3-









 







default (but Tenant shall have no obligation to cure the default) and Lender shall accept Tenant’s
cure.




     5. Limitation
on Lender’s Performance. Nothing in this Agreement shall be deemed
or construed to be an agreement by Lender to perform any obligation of Owner as owner under
the Lease unless and until Lender obtains title to the Property as Successor or obtains
possession
of the Property under the terms of the Loan Documents.



     6. Notices
of Default. Tenant shall give Lender, concurrently with giving any notice
to Owner, a copy of any notice given by Tenant to Owner under the Lease, in the manner set
forth below, and no such notice given by Tenant to Owner which is not concurrently given to
Lender shall be valid or effective against Lender for any purpose.



     7. Lender’s
Right to Cure. Tenant shall not exercise any right granted Tenant under
the Lease, or which it might otherwise have under applicable law, to terminate the Lease
because
of a default of Owner under the Lease or the occurrence of any other event, without first
giving Lender prior written notice of its intent to terminate, which notice shall include a statement
of the default or event on which such intent to terminate is based. Thereafter, Tenant shall take no
action to terminate the Lease if Lender: (a) within 30 days following the end of the period to
which Owner is entitled to cure the default cures such default or event if the same can be
cured
by the payment of money; or (b) diligently commences action to obtain possession of the
Premises (including possession by receiver) and to cure such default or event in the case of a
default or event which cannot be cured by Lender without Lender having obtained possession.
Nothing in this Agreement shall, however, be construed as a promise or undertaking by Lender
to
cure any default on the part of Owner under the Lease.



     8. Right
to Enter. For the purpose of facilitating Lender’s rights hereunder, Lender
shall have, and for such purpose is hereby granted by Tenant and Owner, the right to enter
upon
the Property (including, without limitation, the Premises) for the purpose of effecting any
cure
provided for herein.



     9. Tenant’s
Covenants. Tenant shall not (without Lender’s prior written consent):



               (a) Pay any rent or additional rent more than one month in advance to any
owner under the Lease (including Owner); or



               (b) Terminate or surrender the Lease, except as expressly provided in the
Lease (subject, however, to the provisions of this Agreement); or



               (c) Enter into any amendment or other agreement relating to the Lease.



-4-









 





     10. Tenant’s
Waiver of Option Rights. In the event of a Transfer, Tenant specifically
waives any right, whether granted in the Lease or otherwise, to exercise any option which
remains unexercised at the time of the Transfer, to:



          (a) Purchase any interest in Successor; or




          (b) Expand the Premises.




     11. No
Merger. Owner, Tenant and Lender agree that unless Lender otherwise
consents in writing, Owner’s estate in and to the Property and the leasehold estate created by
the
Lease shall not merge, but shall remain separate and distinct, notwithstanding the union of
such
estates either in Owner or in Tenant or in any third party by purchase, assignment or
otherwise.



     12. Notice
of Mortgage. If the Lease entitles Tenant to notice of any mortgage, this
Agreement shall constitute such notice to Tenant with respect to the Loan Documents. Lender
shall be deemed a Senior Interest Holder and an Institutional Lender for purposes of the
Lease.



     13. Notices. All notices under this Agreement shall be in writing and shall be given
by personal delivery, overnight receipted courier, or by registered or certified United States
mail,
postage prepaid, sent to the party at its address appearing below. Notices shall be effective
upon
receipt or when proper delivery is refused. Addresses for notices may be changed by any party
by notice to all other parties given in accordance with this Section.



	 	 	 	 	 

	 

	 	To Lender:	 	 
	 
	 	 	 	 
	 

	 	With a copy to:	 	 
	 
	 	 	 	 
	 

	 	To Owner:
	 	 Brause Realty Inc.
	 

	 	 	 	 52 Vanderbilt Avenue
	 

	 	 	 	 New York, New York 10017-3888
	 
	 	 	 	 
	 

	 	With a copy to:
	 	 Morgan, Lewis & Bockius LLP
	 

	 	 	 	 101 Park Avenue
	 

	 	 	 	 New York. New York 10178-0060
	 

	 	 	 	 Attention: Mitchell N. Baron, Esq.





-5-









 






	 	 	 	 	 

	 

	 	To Tenant:
	 	  Metropolitan Life Insurance Company
	 

	 	 	 	 One Madison Avenue
	 

	 	 	 	 New York, New York 10010
	 

	 	 	 	 Attention: Vice President, Facilities and Services
	 
	 	 	 	 
	 

	 	With a copy to:
	 	 Tenant, Attention: Law Department Chief Counsel, REI
	 

	 	 	 	 and
	 

	 	 	 	 Kronish, Lieb, Weiner & Hellman LLP
	 

	 	 	 	 1114 Avenue of the Americas
	 

	 	 	 	 New York, NY 10036-7798
	 

	 	 	 	 Attention: Mark Lipschutz, Esq.





     14. No Further Subordination. Except in connection with a transfer of Owner’s
interest in the Premises to, and the leasing-back of the Premises by Owner from, an Agency (as
defined in the Lease) in connection with Incentives (as defined in the Lease), Owner and
Tenant
agree with Lender that there shall be no further subordination of the interest of Tenant under
the
Lease to any lender or to any other party without first obtaining the prior written consent of
Lender, which consent Lender may withhold, grant or condition in its sole discretion. Any
attempt to effect a further subordination of Tenant’s interest under the Lease without first
obtaining the prior written consent of Lender shall be null and void.



     15. Integration. This Agreement integrates all of the terms and conditions of the
parties’ agreement regarding the subordination of the Lease, the leasehold estate created by
the
Lease, and all rights of Tenant under the Lease, to the lien of the Loan Documents. This
Agreement supersedes and cancels all oral negotiations and prior and other writings other than
the Lease with respect to such subordination. If there is any conflict between the terms,
covenants, conditions and provisions of this Agreement and those of the Lease, the terms,
covenants, conditions and provisions of this Agreement shall prevail. This Agreement may not
be modified orally or in any other manner than by an agreement in writing signed by the
parties
hereto or their respective successors in interest. Upon full payment of the Loan, Lender shall
execute and deliver to Tenant upon request a release of this instrument (in recordable form,
if
this Agreement has been recorded).



     16. Attorney’s Fees. If any lawsuit or arbitration is commenced which arises out of
or relates to this Agreement, the prevailing party shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be reasonable attorneys’ fees in the
lawsuit or arbitration, including the allocated costs for services of in-house counsel, in
addition to costs and expenses otherwise allowed by law.



     17. Governing Law. This Agreement shall be governed by the law of the State of
New York, without regard to the choice of law rules of that State.



-6-









 





     18. Binding Effect. This Agreement shall insure to the benefit of and
be binding upon the parties hereto, and their respective successors and assigns.



     IN WITNESS WHEREOF, Owner, Tenant and Lender have caused this Agreement to be duly
executed as of the date set forth above.



	 	 	 	 	 	 	 

	 	 	Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 

	 	 	 	 

	 	 
	 	 	Print Name: 	 	 	 
	 	 	Title: 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Tenant	 	 
	 
	 	 	 	 	 	 
	 	 	Metropolitan Life Insurance Company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 
	 	 	 	 	 	 
	 	 	Print Name:	 	 	 
	 	 	Title: 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Owner	 	 
	 
	 	 	 	 	 	 
	 	 	Brause Plaza LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 
	 	 	 	 	 	 
	 	 	Print Name: 	Louis Brause	 	 
	 	 	Title:	Member	 	 






[ADD NOTARIAL ACKNOWLEDGMENTS]




-7-









 





Exhibit A




-8-









 





Exhibit L — Superior Lease




      




Subordination, Nondisturbance and Attornment Agreement



 





            
         Owner



Brause Plaza LLC

                    Sublandlord



and



Metropolitan Life Insurance Company

                    Subtenant



	 	 	 	 	 
	 

	 	Section:
	 	  3
	 

	 	Block:
	 	 416
	 

	 	Lot:
	 	 [part of] 10
	 

	 	City:
	 	 New York
	 

	 	County:
	 	 Queens
	 

	 	State:
	 	 New York
	 

	 	Premises:
	 	 27-01 Bridge Plaza North
	 

	 	 	 	 Long Island City, New York 11101
	 
	 	 	 	 
	 

	 	Date:
	 	                
                    
     , 2001






      




Record and return by mail to:




Kronish. Lieb. Weiner & Hellman LLP

1114 Avenue of the Americas

New York. New York 10036

Attention: Mark Lipschutz. Esq.




 









 





Subordination, Nondisturbance and Attornment Agreement





	 	 	     This Subordination, Nondisturbance and Attornment Agreement dated     
     
          , among           
                     
          , a            
          
          
(“Owner”), Brause Plaza LLC, a New York limited
liability company (“Sublandlord”), and Metropolitan Life Insurance Company, a New York corporation
(“Subtenant”).





Recitals




     A. Owner is the owner of the property commonly known as 27-01 Bridge Plaza
North, Long Island City, New York, more particularly described in Exhibit A attached
to this Agreement (the “Property”).



     B. Owner and Sublandlord entered into a lease dated                                        
(together with all amendments, supplements, renewals, replacements and extensions, the
“Lease”), under which Owner leased to Sublandlord the Property.



     C. Sublandlord and Subtenant entered in a sublease dated
                  
                   
    , 2001 (the “Sublease”), under which Tenant subleased to Subtenant
the Property.



     D. Subtenant desires that Subtenant’s possession of the Property under the Sublease
not be disturbed if Owner exercises Owner’s rights under the Lease. Owner is willing to agree,
subject to and upon the provisions of this Agreement.



     Accordingly, in consideration of the mutual agreements contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Owner, Tenant and Subtenant agree as follows:



     1. Subordination. The Lease shall be and remain at all times a lien on the
Property prior to the Sublease, the leasehold estate created by the Sublease, and all rights of
Subtenant under the Sublease. The Sublease, the leasehold estate created by the Sublease and all
rights of Subtenant under the Sublease, including, without limitation, any purchase options, rights
of first refusal, and rights of first offer, shall be and remain at all times subject and
subordinate to the Lease. Notwithstanding the foregoing, any insurance proceeds or condemnation
awards shall be applied as provided in the Sublease.



     2. Nondisturbance. So long as Subtenant is not in default under the Sublease
(beyond any period given Subtenant by the Sublease to cure such default) or under this Agreement,
if there occurs a termination of the Lease as the result of a default by Tenant or by reason of any
other occurrence (a “Termination”). Owner shall recognize Subtenant as the direct tenant of Owner
under the then executory terms and conditions of the Sublease.



 









 





     3. Attornment. If a Termination occurs, Subtenant does hereby attorn to Owner
as the sublandlord under the Sublease, and Subtenant shall be bound to Owner under all of the
terms, covenants, conditions and provisions of the Sublease for the balance of the Sublease term,
all with the same force and effect as if Owner had been the original sublandlord under the
Sublease. This attornment shall be effective and self-operative without the execution of any
further instruments upon Owner’s succeeding to the interest of the sublandlord under the Sublease.
Notwithstanding the foregoing, Owner shall not be:



          (a) Liable for any act, omission or default of any prior sublandlord (including
the then defaulting Sublandlord) unless such act, omission or default under the Sublease
continues as a default under the Sublease after Subtenant’s attornment, but in no event shall
there
be any liability to complete any Sublandlord’s work, although Subtenant shall have Subtenant’s
other rights and remedies with respect to the failure of Sublandlord to complete Sublandlord’s
work.




          (b) Liable for any damage or other relief attributable to any breach of any
representation or warranty contained in the Sublease by Sublandlord or any prior sublandlord
under the Sublease;




          (c) Subject to any offsets or defenses which Subtenant might have against
Sublandlord or any prior sublandlord (except as expressly provided in the Sublease):




          (d) Bound by any prepayment of rent or additional rent which Subtenant might
have paid for more than the current month to Sublandlord or any prior sublandlord;




          (e) Bound by any amendment of the Sublease or by any waiver or forbearance
on the part of Sublandlord or any prior sublandlord made or given without the written consent
of
Owner;




          (f) Bound to make any payment to Subtenant or to perform any construction
requirements under in the Sublease (but if (i) the allowances expressly provided in the
Sublease
shall not be paid to Subtenant or (ii) Subtenant shall exercise Subtenant’s rights to
undertake such
construction, Subtenant shall have the right of offset expressly provided in the Sublease); or




          (g) Liable to Subtenant in any event for any cause whatsoever for damages or
claims in excess of Owner’s interest in the Property, it being expressly agreed that Owner’s
liability under the Sublease shall be nonrecourse and that Subtenant’s sole remedy in the
event it
obtains a judgment against Owner for its default under the Sublease shall be to foreclose such
judgment against Owner’s interest in the Property and not to proceed against any other assets
of
Owner.










-2-









 





     4. Limitation on Owner’s Performance. Nothing in this Agreement shall be deemed
or construed to be an agreement by Owner to perform any obligation of Sublandlord as
sublandlord under the Sublease unless and until Owner succeeds to Sublandlord’s interest under
the Sublease.



     5. Notices
of Default. (a) Subtenant shall give Owner, concurrently with giving any
notice to Sublandlord, a copy of any notice given by Subtenant to Sublandlord under the
Sublease, in the manner set forth below, and no such notice given by Subtenant to Sublandlord
which is not concurrently given to Owner shall be valid or effective against Owner for any
purpose.



          (b) If Sublandlord shall default under the Lease, Owner shall deliver to Tenant, in the
manner set forth in this Agreement, simultaneously with the delivery to Sublandlord, a copy of any
notice of that default which Owner is required to give to Sublandlord under the Lease. Tenant shall
have the same period of time (that is, Sublandlord’s time period and Tenant’s time period shall run
concurrently) as Sublandlord has under the Lease to cure the default (but Tenant shall have no
obligation to cure the default) and Owner shall accept Tenant’s cure.




     6. Owner’s Right to Cure. Subtenant shall not exercise any right granted Subtenant
under the Sublease, or which it might otherwise have under applicable law, to terminate the
Sublease because of a default of Sublandlord under the Sublease or the occurrence of any other
event, without first giving Owner prior written notice of its intent to terminate, which
notice shall
include a statement of the default or event on which such intent to terminate is based.
Thereafter,
Subtenant shall take no action to terminate the Sublease if Owner: (a) within 30 days
following
the end of the period to which Sublandlord is entitled to cure the default cures such default
or
event if the same can be cured by the payment of money; or (b) diligently commences action to
obtain possession of the Premises (including possession by receiver) and to cure such default
or
event in the case of a default or event which cannot be cured by Owner without Owner having
obtained possession. Nothing in this Agreement shall, however, be construed as a promise or
undertaking by Owner to cure any default on the part of Sublandlord under the Sublease.



     7. Subtenant’s Covenants. Subtenant shall not (without Owner’s prior written
consent):



          (a) Pay any rent or additional rent more than one month in advance to any
sublandlord under the Sublease (including Sublandlord); or




          (b) Terminate or surrender the Sublease, except as expressly provided in the
Sublease (subject, however, to the provisions of this Agreement); or




          (c) Enter into any amendment or other agreement relating to the Sublease.




-3-









 





     8. Subtenant’s Waiver of Option Rights. In the event of a Termination, Subtenant
specifically waives any right, whether granted in the Sublease or otherwise, to exercise any
option which remains unexercised at the time of the Termination, to:



          (a) Purchase any interest in Owner; or




          (b) Expand the Property.




     9. No Merger. Owner, Subtenant and Sublandlord agree that unless Owner
otherwise consents in writing, Owner’s estate in and to the Property and the leasehold estate
created by the Sublease shall not merge, but shall remain separate and distinct,
notwithstanding
the union of such estates either in Owner or in any third party by purchase, assignment or
otherwise.



     10. Notice of Superior Lease. If the Sublease entitles Subtenant to notice of any
superior lease, this Agreement shall constitute such notice to Subtenant with respect to the
Lease.
Owner shall be deemed a Senior Interest Holder [and an Institutional Lender] for purposes of
the
Sublease.



     11. Notices. All notices under this Agreement shall be in writing and shall be given
by personal delivery, overnight receipted courier, or by registered or certified United States
mail,
postage prepaid, sent to the party at its address appearing below. Notices shall be effective
upon
receipt or when proper delivery is refused. Addresses for notices may be changed by any party
by notice to all other parties given in accordance with this Section.



	 	 	 	 	 

	 

	 	To Owner:	 	 
	 
	 	 	 	 
	 

	 	With a copy to:	 	 
	 
	 	 	 	 
	 

	 	To Sublandlord:
	 	Brause Realty Inc.
	 

	 	 	 	52 Vanderbilt Avenue
	 

	 	 	 	New York, New York 10017-3888
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Morgan, Lewis & Bockius LLP
	 

	 	 	 	101 Park Avenue
	 

	 	 	 	New York. New York 10178-0060
	 

	 	 	 	Attention: Mitchell N. Baron, Esq.






-4-









 






	 	 	 	 	 

	 

	 	To Subtenant:
	 	Metropolitan Life Insurance Company
	 

	 	 	 	One Madison Avenue
	 

	 	 	 	New York, New York 10010
	 

	 	 	 	Attention: Vice President, Facilities and Services
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Tenant, Attention: Law Department Chief Counsel, REI
	 

	 	 	 	and
	 

	 	 	 	Kronish, Lieb, Weiner & Hellman LLP
	 

	 	 	 	1114 Avenue of the Americas
	 

	 	 	 	New York, NY 10036-7798
	 

	 	 	 	Attention: Mark Lipschutz, Esq.






     12. No Further Subordination. Except in connection with a transfer of Owner’s
interest in the Premises to, and the leasing-back of the Premises by Owner from, an Agency (as
defined in the Lease) in connection with Incentives (as defined in the Lease), Sublandlord and
Subtenant agree with Owner that there shall be no further subordination of the interest of
Subtenant under the Sublease to any owner or to any other party without first obtaining the
prior
written consent of Owner, which consent Owner may withhold, grant or condition in its sole
discretion. Any attempt to effect a further subordination of Subtenant’s interest under the
Sublease without first obtaining the prior written consent of Owner shall be null and void.



     13. Integration. This Agreement integrates all of the terms and conditions of the
parties’ agreement regarding the subordination of the Sublease, the subleasehold estate
created by
the Sublease, and all rights of Subtenant under the Sublease, to the lien of the Lease. This
Agreement supersedes and cancels all oral negotiations and prior and other writings other than
the Lease with respect to such subordination. If there is any conflict between the terms,
covenants, conditions and provisions of this Agreement and those of the Sublease, the terms,
covenants, conditions and provisions of this Agreement shall prevail. This Agreement may not
be modified orally or in any other manner than by an agreement in writing signed by the
parties
hereto or their respective successors in interest.



     14. Attorney’s Fees. If any lawsuit or arbitration is commenced which arises out of
or relates to this Agreement, the prevailing party shall be entitled to recover from each
other
party such sums as the court or arbitrator may adjudge to be reasonable attorneys’ fees in the
lawsuit or arbitration, including the allocated costs for services of in-house counsel, in
addition to
costs and expenses otherwise allowed by law.



     15. Governing Law. This Agreement shall be governed by the law of the State of
New York, without regard to the choice of law rules of that State.



-5-









 





     16. Binding Effect. This Agreement shall insure to the benefit of and be
binding upon the parties hereto, and their respective successors and assigns.



     IN WITNESS WHEREOF, Owner, Sublandlord and Subtenant have caused this Agreement
to be duly executed as of the date set forth above.



	 	 	 	 	 	 	 

	 	 	Owner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 
	 	 	 	 	 	 
	 	 	Print Name: 	 	 	 
	 	 	Title: 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Sublandlord	 	 
	 
	 	 	 	 	 	 
	 	 	Brause Plaza LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 
	 	 	 	 	 	 
	 	 	Print Name:	 	 	 
	 	 	Title:	 	 	 
	 
	 	 	 	 	 	 
	 	 	Subtenant	 	 
	 
	 	 	 	 	 	 
	 	 	Metropolitan Life Insurance Company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 
	 
	 	 	 	 	 	 
	 	 	Print Name:	 	 	 
	 	 	Title:	 	 	 






[ADD NOTARIAL ACKNOWLEDGMENTS]





-6-











 





Exhibit A




The Property



-7-









 





Exhibit M




 




Subordination, Nondisturbance and Attornment Agreement


Brause Plaza LLC

                    Owner


Metropolitan Life Insurance Company

                               Sublandlord



and



 




                              Subtenant




	 	 	 

	Section:

	 	3 
	Block:

	 	416 
	Lot:

	 	[part of] 10
	City:

	 	New York
	County:

	 	Queens
	State:

	 	New York
	 
	 	 
	Premises:

	 	27-01 Bridge Plaza North
	 

	 	Long Island City. New York 11101
	 
	 	 
	Date:

	 	                                        , 2001 





 



Record and return by mail to:



Morgan. Lewis & Bockius LLP

101 Park Avenue

New York. New York 10178

Attention: Mitchell N. Baron. Esq.



 









 





Subordination, Nondisturbance and Attornment Agreement




     This Subordination, Nondisturbance and Attornment Agreement dated
                                        , 2001 among Brause Plaza LLC, a New York limited liability company
(“Owner”), Metropolitan Life Insurance Company, a New York corporation (“Sublandlord”),
and                                         , a                                   
       (“Subtenant”).



Recitals




     A. Owner is the owner of the property commonly known as 27-01 Bridge Plaza North, Long Island
City, New York, more particularly described in Exhibit A attached to this Agreement (the
“Property”).



     B. Owner
and Sublandlord entered into a lease dated
                                        , 2001 (together with all amendments, supplements, renewals, replacements and extensions, the
“Lease”), under which Owner leased to Tenant [a portion of] the Property.



     C. Sublandlord
and Subtenant entered in a sublease dated                      (the “Sublease”), under which
Tenant subleased to Subtenant a portion of the Property (the “Sublet Premises”).



     D. Subtenant desires that Subtenant’s possession of the Sublet Premises under the Sublease not
be disturbed if Owner exercises Owner’s rights under the Lease. Owner is willing to agree, subject
to and upon the provisions of this Agreement.



     Accordingly, in consideration of the mutual agreements contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Owner, Tenant and Subtenant agree as follows:



     1. Subordination. The Lease shall be and remain at all times a lien on the
Property prior to the Sublease, the leasehold estate created by the Sublease, and all rights of
Subtenant under the Sublease. The Sublease, the leasehold estate created by the Sublease and all
rights of Subtenant under the Sublease, including, without limitation, any purchase options, rights
of first refusal, and rights of first offer, shall be and remain at all times subject and
subordinate to the Lease.



     2.
Nondisturbance. So long as Subtenant is not in default under the
Sublease (beyond any period given Subtenant by the Sublease to cure such default) or under this
Agreement, if there occurs a termination of the Lease as the result of a default by Tenant or by
reason of any other occurrence (a “Termination”). Owner shall recognize Subtenant as the direct
tenant of Owner under the then executory terms and conditions of the Sublease.



 









 





     3. Attornment. If a Termination occurs, Subtenant does hereby attorn to Owner as the
sublandlord under the Sublease, and Subtenant shall be bound to Owner under all of the terms,
covenants, conditions and provisions of the Sublease for the balance of the Sublease term, all with
the same force and effect as if Owner had been the original sublandlord under the Sublease. This
attornment shall be effective and self-operative without the execution of any further instruments
upon Owner’s succeeding to the interest of the sublandlord under the Sublease. Notwithstanding the
foregoing, Owner shall not be:



          (a) Liable for any act, omission or default of any prior sublandlord (including the then
defaulting Sublandlord) unless such act, omission or default continues as a default under the
Sublease after Subtenant’s attornment, but in no event shall there be any liability to complete any
Sublandlord’s work, although Subtenant shall have Subtenant’s other rights or remedies with respect
to the failure of Sublandlord to complete Sublandlord’s work;




          (b) Liable for any damage or other relief attributable to any breach of any representation or
warranty contained in the Sublease by Sublandlord or any prior sublandlord under the Sublease;




          (c) Subject to any offsets or defenses which Subtenant might have against Sublandlord or
any prior sublandlord (except as expressly provided in the Sublease):




          (d) Bound by any prepayment of rent or additional rent which Subtenant might have paid for
more than the current month to Sublandlord or any prior sublandlord;




          (e) Bound by any amendment of the Sublease or by any waiver or forbearance on the part of
Sublandlord or any prior sublandlord made or given without the written consent of Owner;




          (f) Bound to make any payment to Subtenant or to perform any construction requirements under
in the Sublease (but if (i) the allowances expressly provided in the Sublease shall not be paid to
Subtenant or (ii) Subtenant shall exercise Subtenant’s rights to undertake such construction,
Subtenant shall have the right of offset expressly provided in the Sublease); or




          (g) Liable to Subtenant in any event for any cause whatsoever for damages or claims in excess
of Owner’s interest in the Property, it being expressly agreed that Owner’s liability under the
Sublease shall be nonrecourse and that Subtenant’s sole remedy in the event it obtains a judgment
against Owner for its default under the Sublease shall be to foreclose such judgment against
Owner’s interest in the Property and not to proceed against any other assets of Owner.




     4. Limitation
on Owner’s Performance. Nothing in this Agreement shall be deemed or
construed to be an agreement by Owner to perform any obligation of Sublandlord as



-2-









 




sublandlord under the Sublease unless and until Owner succeeds to Sublandlord’s interest under the
Sublease.




     5. Notices
of Default. Subtenant shall give Owner, concurrently with giving any notice
to Sublandlord, a copy of any notice given by Subtenant to Sublandlord under the Sublease, in the
manner set forth below, and no such notice given by Subtenant to Sublandlord which is not
concurrently given to Owner shall be valid or effective against Owner for any purpose.



     6. Owner’s
Right to Cure. Subtenant shall not exercise any right granted Subtenant
under the Sublease, or which it might otherwise have under applicable law, to terminate the
Sublease because of a default of Sublandlord under the Sublease or the occurrence of any other
event, without first giving Owner prior written notice of its intent to terminate, which notice
shall include a statement of the default or event on which such intent to terminate is based.
Thereafter, Subtenant shall take no action to terminate the Sublease if Owner: (a) within 30 days
following the end of the period to which Sublandlord is entitled to cure the default cures such
default or event if the same can be cured by the payment of money; or (b) diligently commences
action to obtain possession of the Premises (including possession by receiver) and to cure such
default or event in the case of a default or event which cannot be cured by Owner without Owner
having obtained possession. Nothing in this Agreement shall, however, be construed as a promise or
undertaking by Owner to cure any default on the part of Sublandlord under the Sublease.



     7. Subtenant’s
Covenants. Subtenant shall not (without Owner’s prior written
consent):



          (a) Pay any rent or additional rent more than one month in advance to any sublandlord
under the Sublease (including Sublandlord); or




          (b) Terminate or surrender the Sublease, except as expressly provided in the Sublease
(subject, however, to the provisions of this Agreement); or




          (c) Enter into any amendment or other agreement relating to the Sublease; or




          (d) Assign the Sublease or sublet any portion of the Sublet Premises, except as provided in
the Sublease.




     8. No
Merger. Owner, Subtenant and Sublandlord agree that unless Owner otherwise
consents in writing, Owner’s estate in and to the Sublet Premises and the leasehold estate
created by the Sublease shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Owner or in any third party by purchase,
assignment or otherwise.



-3-









 





     9. Notices. All notices under this Agreement shall be in writing and shall be given by
personal delivery, overnight receipted courier, or by registered or certified United States mail,
postage prepaid, sent to the party at its address appearing below. Notices shall be effective upon
receipt or when proper delivery is refused. Addresses for notices may be changed by any party by
notice to all other parties given in accordance with this Section.



	 	 	 

	To Owner:

	 	Brause Realty Inc.
	 

	 	52 Vanderbilt Avenue
	 

	 	New York, New York 10017-3888
	 
	 	 
	With a copy to:

	 	Morgan, Lewis & Bockius LLP
	 

	 	101 Park Avenue
	 

	 	New York, New York 10178-0060
	 

	 	Attention: Mitchell N. Baron, Esq.
	 
	 	 
	To Sublandlord:

	 	Metropolitan Life Insurance Company
	 

	 	One Madison Avenue
	 

	 	New York, New York 10010
	 

	 	Attention: Vice President, Facilities and Services
	 
	 	 
	With a copy to:

	 	Tenant, Attention: Law Department Chief Counsel, REI and
	 

	 	Kronish, Lieb, Weiner & Hellman LLP
	 

	 	1114 Avenue of the Americas New
	 

	 	York, NY 10036-7798
	 

	 	Attention: Mark Lipschutz, Esq.
	 
	 	 
	To Subtenant:
	 	 






     10. Integration. This Agreement integrates all of the terms and conditions of the
parties’ agreement regarding the subordination of the Sublease, the subleasehold estate created by
the Sublease, and all rights of Subtenant under the Sublease, to the lien of the Lease. This
Agreement supersedes and cancels all oral negotiations and prior and other writings other than the
Lease with respect to such subordination. If there is any conflict between the terms, covenants,
conditions and provisions of this Agreement and those of the Sublease, the terms, covenants,
conditions and provisions of this Agreement shall prevail. This Agreement may not be modified
orally or in any other manner than by an agreement in writing signed by the parties hereto or their
respective successors in interest.



-4-









 




     11.
Attorney’s Fees. If any lawsuit or arbitration is commenced which arises out of or
relates to this Agreement, the prevailing party shall be entitled to recover from each other party
such sums as the court or arbitrator may adjudge to be reasonable attorneys’ fees in the lawsuit or
arbitration, including the allocated costs for services of in-house counsel, in addition to costs
and expenses otherwise allowed by law.




     12. Governing Law. This Agreement shall be governed by the law of the State of New
York, without regard to the choice of law rules of that State.



     13. Binding Effect. This Agreement shall insure to the benefit of and be binding upon
the parties hereto, and their respective successors and assigns.



     IN WITNESS WHEREOF, Owner, Sublandlord and Subtenant have caused this Agreement to
be duly executed as of the date set forth above.



	 	 	 	 	 	 	 	 	 

	 	 	Owner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Brause Plaza LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Print
	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 

	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Sublandlord	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Metropolitan Life Insurance Company	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Print
	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 

	 	 
	 	 	 	 	 	 	 





-5-









 






	 	 	 	 	 	 	 	 	 

	 
	 	 	 	 	 	 	 	 
	 	 	Subtenant	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Print
	 	Name:	 	 	 	 
	 

	 	Title:
	 	 	 	 

	 	 
	 	 	 	 	 	 	 




[ADD NOTARIAL ACKNOWLEDGMENTS]





-6-









 








Exhibit N




RECOMMENDED METHOD OF FLOOR MEASUREMENT FOR STORES:





	 	1.	 	The rentable area of a store shall be computed by measuring from the building line in the
case of street frontages, and from the inside surface of the outer
building walls to the
finished surface of the corridor side of the corridor partition and from the center of
the partitions that separate the premises from adjoining rentable area.
	 
	 	2.	 	No deductions shall be made for columns and projections necessary to the building.
	 
	 	3.	 	Rentable area of a store shall include all area within the
outside walls, less the
following, with their enclosing walls, if serving more than one tenant: building
stairs, fire towers, elevator shafts, flues, vents, stacks, pipe shafts and vertical
ducts.
	 
	 	4.	 	The following area shall be included in rentable area, if such areas exclusively serve a
store, together with their enclosing walls: private stairs, private elevators, toilets, air
conditioning facilities, janitors’ closets, slop sinks, electrical closets and telephone
closets. When air conditioning facilities serve more than one tenant area, they shall be
apportioned in the same manner as that used for single tenancy floors.
	 
	 	5.	 	Where a store fronts on a plaza or arcade which is intended for use by the general public
and is not for the exclusive use of the store tenant, its customers, etc., the area of the
plaza or arcade shall not be included in determining the rentable area of the store





The Real Estate Board

of New York, Inc.




Recommended Method




of



Floor Measurement



For Office Buildings



And Stores







Effective 1/1/87


 









 





RECOMMENDED METHOD OF FLOOR MEASUREMENT

FOR OFFICE BUILDINGS

Effective January 1, 1987




     In order to facilitate a comparison of the cost of space among buildings, The Real
Estate Board of New York, Inc. recommends that owners use a standard definition of usable area and
that they clearly explain how rentable area is calculated based upon such usable area.
Architectural plans and calculations should be made available to the tenant if requested.



     The
Real Estate Board of New York, Inc. recommends the following definitions and methods as
the Standard Method of Floor Measurements in office buildings. Any Board member who advertises
office space for rent is expected to follow these guidelines in determining any rentable area
count mentioned in the advertisement.



RENTABLE AREA:




     Because of dissimilarities among buildings, calculations of rentable area may vary. If
requested, owners should disclose to prospective tenants the loss factor used for spaces under
consideration.



USABLE AREA, SINGLE TENANT FLOORS:




     Measure the floor to the outside surface of the building. Subtract from this area the
following, including the finished enclosing walls:




	 	•	 	Public elevator shafts and elevator machines and their enclosing walls.
	 
	 	•	 	Public stairs and their enclosing walls.
	 
	 	•	 	Heating, ventilating, and air-conditioning facilities (including pipes, ducts and
shafts) and their enclosing walls, unless such equipment, mechanical room space, or shafts
serve the floor in question.
	 
	 	•	 	Fire towers and fire tower courts and their enclosing walls.
	 
	 	•	 	Main telephone equipment, rooms and main electric switchgear rooms, except that
telephone equipment, and electric switchgear rooms serving the floor exclusively shall not
be subtracted.





USABLE AREA, MULTIPLE TENANT FLOOR:





	 	•	 	First, calculate the usable area as if for a single tenant floor.
	 
	 	•	 	Then deduct corridor areas, including toilets, supply room, etc., but do not deduct the
enclosing walls of such corridor.
	 
	 	•	 	Measure the net usable area of each space on the floor by measuring each enclosing wall
which is a building exterior wall to the outside surface of the
exterior wall, or to the
outside surface of the glass as the case may be. Measure demising walls to the center and
walls which abut corridors to the corridor side of the finished surface of the corridor
wall.
	 
	 	•	 	To determine the usable area on a multiple tenant floor, apportion the corridor area to
each space by multiplying the corridor area by a fraction, whose numerator is the net usable
area of the space and whose denominator is the total of the net usable areas of all the
spaces on the floor, and add the result to the net usable area of the space.





BELOW-GRADE, CELLAR AND SUB-CELLAR SPACE:



     To determine the usable area of below grade, cellar and sub-cellar areas, follow the same
procedures as are appropriate for single or multiple tenant floors except that the following
additional areas should be deducted from usable area:




	 	•	 	Machine rooms and pump rooms and their enclosing walls.
	 
	 	•	 	Electric switchgear rooms and their enclosing walls.
	 
	 	•	 	Telephone equipment rooms and their enclosing walls.
	 
	 	•	 	All space devoted to servicing the operation of the building, i.e., cleaning
contractors, storage, building maintenance shop, building engineer’s office, etc.





 









 





Exhibit O




Addition Conditions and Specifications



 









 





First Amendment of Lease




     Amendment dated August 8, 2002, between Brause Plaza North LLC, a
Delaware limited liability company having an office at 52 Vanderbilt Avenue, New York, New York
10017-3888 (“Owner”) and Metropolitan Life Insurance Company, a New York corporation having an
office at One Madison Avenue, New York, New York 10010 (“Tenant”).



Recital



     A. Owner’s predecessor in interest, Brause Plaza LLC, and Tenant entered into a lease dated
May 10, 2001 (the “Lease”), covering the Premises (as defined in the Lease) located at 27-01 Bridge
Plaza North, Long Island City, New York.



     B. Owner and Tenant desire to amend the Lease as provided in this Amendment (all
capitalized terms in this Amendment which are not defined in this Amendment shall have the
meanings set forth in the Lease).



     Accordingly, Owner and Tenant agree as follows:



     1. The Fixed Expiration Date shall be the date which is the earlier of (a) the last day of the
month in which occurs the 20th anniversary of the Substantial Completion Date under Net
Lease dated the date of this Amendment (the “27th Street Lease”), between Brause Plaza 27 LLC, as
owner, and Tenant, as tenant, covering the land and the building at 41-21 27th Street, Long Island
City, New York (the “27th Street Building”) or (b) the last day of the month in which occurs the
246th month anniversary of the Substantial Completion (as defined in the 27th Street
Lease) of Owner’s Work under (and as defined in) the 27th Street Lease with respect to the first
full floor of the 27th Street Building, or if the Term is extended pursuant to the Lease, the last
day of the extended Term.



     2. Owner and Tenant hereby confirm the following: (i) the Base Rent is
[*****] per annum from April 25, 2002 through
September 30, 2006, [*****] per annum from October
1, 2006 through September 30, 2011 [*****] per annum
from October 1, 2011 through September 30, 2016
[*****] per annum from October 1, 2016 through September 30, 2021 and [*****] per annum from
October 1, 2021 through the Fixed Expiration Date (subject to change during the extended Term if the
Term is extended pursuant to the Lease); (ii) the Initial Premises Substantial Completion Date and
the Substantial Completion Date are both October 26, 2001; (iii) the Base Rent Commencement Date for
the Premises (that is, both the Initial Premises and the Balance
Space) is April 25, 2002; (iv) the
Base Tax Year is November 1, 2001 through October 31, 2002; (v) the 12-month period referred to in
Section 12.2(b) of the Lease is January 1, 2002 through
December 31, 2002; (vi) the first Lease Year
is from October 26, 2001 through October 31, 2002, and each Lease Year thereafter is from November 1
through October 31; (vii) Owner is not responsible for the payment of any liquidated damages
pursuant to Sections 5.1(b) or 5.1(c) of the Lease and (viii) Exhibit B to this Amendment
describes the Land.



 









 





     3. Following the Substantial Completion of Owner’s Work under (and as defined in) the 27th Street
Lease, Tenant shall, at its expense, provide certain utilities and loading docks to the 27th Street
Building through the facilities and loading docks of the Building, as required by the occupants of
the 27th Street Building, subject to and in accordance with the Common Facilities Agreement dated
the date of this Amendment (the “Common Facilities Agreement”).



     4. During the performance of Owner’s Work under (and as defined in) the 27th Street Lease,
Owner shall provide to Tenant egress from the Building through the third floor of the Building.
During the performance of Owner’s Work under (and as defined in) the 27th Street Lease and Tenant’s
Initial Work under (and as defined in) the 27th Street Lease, Owner shall provide to the owner of
the 27th Street Building and to the tenant under the 27th Street Lease access to the Building and
the right to alter the Building as required in connection with that work. Although Owner’s Work
under (and as defined in) the 27th Street Lease includes the installation of an entry door from the
27th Street Building to the roof of the Building, Tenant shall not use the roof of the Building
without, at Tenant’s expense, complying with all Requirements applicable to that use.



     5. Article 3 of the Lease is amended as follows:



          (a) Section 3.3 (a) of that Article is amended by (i) deleting the words “and all Real Estate
Taxes, and any installments thereof, applicable to any land or buildings which are part of the same
tax lot as the Premises and not then included in the Premises” starting on the 4th line of that
Section and (ii) adding in the 11th line of that Section, after the word “installments”, the words
“or unless, as a result of Incentives, Tenant is not then required to pay Real Estate Taxes”.




          (b) Section 3.3(b) of that Article is amended by (i) adding in the 3rd line of that Section,
after the words “Base Taxes”, the words “or the Real Estate Taxes for the relevant tax year,
whichever is less” (ii) deleting, from the 3rd line of that Section, the word “and” and the balance
of that sentence, and (iii) adding at the end thereof, the following sentence: “In no event,
however, shall Owner be responsible for Real Estate Taxes on the Premises covered by the 27th
Street Lease”.




     6. Section 3.7 of the Lease is amended by (a) deleting the 4th and 5th sentences from
paragraph (b) of that Section and (b) changing paragraph (c) of that Section to read in its
entirety as follows: “(c) Notwithstanding any provision of this Lease to the contrary (x) Owner
shall be entitled to (i) the benefit of any reduction of the Base Taxes and the Real Estate Taxes
to an amount below the Base Taxes under the ICIP Law or the ICIP Program (whether obtained by Owner
or Tenant), (ii) retain any Incentives obtained by Owner under the Energy Cost Savings Program,
(iii) retain any Federal Rehabilitation Tax Credits except as provided in the Build-Out Agreement
dated May 10, 2001 and (iv) retain any benefit obtained by Owner, at Owner’s expense, for capital
expenditures and (y) Tenant shall be entitled to (i) the benefit of (that is, Tenant need not



2









 




reimburse Owner for) any reduction of the Real Estate Taxes (including the Base Taxes) in
connection with the PILOT Program or any other Incentives obtained by Tenant at Tenant’s expense
(other than as provided in clause (x) of this paragraph), and (ii) retain the benefits of any other
Incentives obtained by Tenant at Tenant’s expense (including, without limitation, benefits derived
from Title 4-A, or energy benefits under the Energy Cost Savings Program or through Con Edison’s
Business Incentive Rate). If any benefits to which Owner or Tenant are entitled to are in the form
of a refund, credit, abatement or exemption received by the other, the recipient shall endorse
over, or otherwise pay, to Owner or Tenant, as the case may be, such refund, credit, abatement or
exemption, as and when received.




     7. (a) As of the date of this Amendment, Owner has obtained aggregate Development Rights
for the 27th Street Building and the Premises of 545,185 square feet (the “Owner’s Available
Development Rights”) and Tenant has, at its expense, increased the Owner’s Available Development
Rights by 35,023 square feet (the “Tenant Obtained Development Rights”) (the Owner’s Available
Development Rights and the Tenant Obtained Development Rights are collectively called the “Existing
Development Rights”). Therefore, notwithstanding the provisions of Section 6.5(a), Tenant shall not
make any payment under Section 6.5(a) with respect to the portion of the roof structure covered by
(i) the Tenant Obtained Development Rights or (ii) any Development Rights obtained by Tenant, at
its expense, for the Premises or any other property owned or controlled by Owner within the Square
Block in addition to the Existing Development Rights or in addition to any upzoning not obtained
through Tenant’s efforts (but Tenant shall not be permitted to obtain those additional Development
Rights if it adversely impacts an upzoning).



          (b) If at any time during the Term Owner uses (i) the Tenant Obtained Development Rights
or (ii) any Development Rights obtained by Tenant, at its expense, in addition to the Existing
Development Rights or in addition to any upzoning not obtained through Tenant’s efforts, Owner
shall, at such time as Owner shall commence the receipt of rent for Tenant Obtained Development
Rights or such additional Development Rights, pay to Tenant 50% of the then fair market value (with
reference only to the Building, and Owner’s manner of utilizing the Development Rights) of such
Development Rights utilized by Owner.




     8. Section 5.14 of the Lease is amended by adding, at the end of that Section, the following
sentence: “If, however, Owner and Tenant agree on any such information, or if any such information
is determined pursuant to Construction Arbitration, Tenant shall execute, acknowledge and return to
Owner not later than one (1) Business Day following the date of such agreement or determination an
agreement confirming such information (the failure to do so within four (4) Business Days following
Owner’s notice to Tenant of that failure shall be deemed a Material Event of Default; Tenant not
being permitted the notice and cure period set forth in
Section 15.1(b)).”



3









 





     9. Section 7.6(d) of the Lease is amended by adding in the 3rd, 7th and 10th lines of that
Section, after the word “Building,”, the following words: “and the 27th Street Building”.



     10. Section 8.2 of the Lease is amended by (a) adding in the 2nd line of that Section, after
the words “Senior Interest Holder,” the following words: “or any Person claiming by, through or
under same (including, without limitation, a transferee of the Premises pursuant to a foreclosure,
sale or other action to enforce the rights of the Senior Interest Holder, or pursuant to a deed in
lieu of foreclosure,” (b) substituting in the 6th line of that Section, the words “such Person” for
the words “anyone claiming by, through or under same”, and (c) adding in clause (iv), at the end of
that clause, the words “or Section 37.1”.



     11. Section 9.2 of the Lease is amended by adding in the 15th line of that Section, after the
number “200,000,” the following words: “(or, if such defect affects both the Building and the 27th
Street Building, exceeds $200,000 in the aggregate for repairing such defect in both)”.



     12. Article 12 of the Lease is amended as follows:



          (a) Section 12.2(a) of that Article is amended by adding the following sentence at the end of
that Section: “Tenant shall have the right to obtain quotes for such insurance and deliver such
quotes to Owner, but Owner shall not be required to purchase such insurance from Tenant even if
Tenant’s quotes are less than any other quote obtained by Owner”.




          (b) Section 12.2(b) of that Article is amended by adding, in the 1st line of that Section,
after the word “directly”, the words “or to the Senior Interest Holder”.




     13. Section 13.2(c) of the Lease is amended by adding at the beginning of that Section the
following sentence: “Any insurance proceeds received by Owner or Tenant under this Lease shall
first be applied by Owner and Tenant, as the case may be, to pay for the repairs required to be
made by Owner or Tenant, as the case may be.”



     14. Section 13.3 (a) of the Lease is amended by (a) deleting clause (iii) and any reference in
that Section to clause (iii), and (b) adding, immediately following clause (iii), after the word
“Owner,” the words “(only if the 27th Street Lease is terminated by the tenant or the owner under
the 27th Street Lease pursuant to a provision of the 27th Street Lease similar to this Section)”.



     15. Section 14.2 of the Lease is amended by deleting from that Section the words “Real
Property or the”.



     16. Section 14.3(b) is amended by adding, at the beginning of the 3rd line, before the word
“restore”, the following words: “first apply the award to.”



4









 





     17. Section 16.1 (a)(i) of the Lease is amended by changing “REI” to “Corporate”.



     18. Section 19.1 of the Lease is amended by adding paragraph (vii) to that Section to read as
follows: “(vii) any obligations and liabilities incurred by Owner as a result of the conveyance of
the fee title to the Premises by Owner to any Agency in order for Tenant to obtain any Incentives
(and under any documents executed and delivered by Owner in connection therewith) to the extent
that Owner would not have incurred such obligations and liabilities if such conveyance had not
occurred or such documents had not been executed and delivered by Owner.”



     19. Section 21.2 of the Lease is amended by (a) adding, in the 1st line of that Section,
after the word “or”, the words “(unless the default results from Tenant’s default under this
Lease)”, (b) adding in clause (b) of that Section, after the word “default”, the first time it
appears in that clause, the words “(or if Owner fails to commence to cure the default, if
commencing to cure prevents a foreclosure of the Mortgage or a termination of the Superior Lease)”
and (c) changing, in clause (i) of that Section, the reference to “clause (b)” to “clause (c)”.



     20. Section 21.4 of the Lease is amended by (a) adding to the caption of that Section the
words “and Tenant’s Default Purchase Option”, (b) adding, at the beginning of the 1st sentence of
that Section, an “(a)”, and (c) adding to that Section the following paragraphs (b), (c) and (d):



          “(b) Notwithstanding any provision of this Lease to the contrary, in no event, including
without limitation, Owner’s failure to do or to complete Owner’s Work in accordance with this
Lease, shall Tenant have the right under this Lease to (i) any offset against the Base Rent under
the 27th Street Lease, unless (x) the 27th Street Building is owned or leased by Owner or an
Affiliate of Owner and (y) there is no Senior Interest Holder with respect to either the Building
or the 27th Street Building, (ii) file any mechanic’s lien against the 27th Street Building or
(iii) (except as expressly provided in this Lease) terminate this Lease.




          (c) If (i) Owner defaults in the payment of debt service under a Mortgage for 18 months
(whether or not consecutively) or for six months consecutively and (ii) Tenant pays that debt
service for the entire 18 or six months, then (whether or not Tenant has been reimbursed) Tenant
may, at any time thereafter, purchase the Premises for its then fair market value, as encumbered by
this Lease (less any debt service or other payments unreimbursed to Tenant). At the closing of the
purchase, Owner shall satisfy the Mortgage or, at Owner’s option, if the holder of the Mortgage
permits, convey the Premises subject to the Mortgage (in which event the payment by Tenant to Owner
shall be reduced by the unpaid principal balance of the Mortgage). If Tenant exercises Tenant’s
right under this paragraph, on or about the 15th day following Owner’s receipt of Tenant’s notice,
Owner shall give notice to Tenant of Owner’s determination of the fair market value. If Tenant
disputes Owner’s determination, Tenant shall give notice to Owner of the dispute within fifteen
(15) days after receipt of Owner’s notice stating





5









 







Tenant’s determination of the fair market value (time being of the essence). If Tenant shall not
submit that notice, then the fair market value shall be Owner’s determination of the fair market
value. If Tenant shall submit that notice, Owner and Tenant shall, within ten (10) days following
Tenant’s notice, designate one independent arbitrator to determine the fair market value. The
arbitrator must be a person having not less than fifteen (15) years’ experience as a commercial
sales broker in Manhattan, with significant experience in Long Island City, specializing in
transactions such as the transaction described in this paragraph. If they fail to designate an
arbitrator within ten (10) days, the arbitrator shall be designated by the President of the Real
Estate Board of New York, Inc. at the request of either Owner or Tenant. The arbitrator shall
determine the fair market value by selecting either the fair market value submitted by Owner or the
fair market value submitted by Tenant, whichever fair market value the arbitrator determines is
closer to the arbitrator’s determination of the fair market value. The determination of the
arbitrator shall be binding and conclusive upon Owner and Tenant. The determination of the
arbitrator shall be requested within thirty (30) days. The costs and expenses of the arbitrator
shall be paid 50 percent by Owner and 50 percent by Tenant. Each party shall pay the costs and
expenses of its own attorneys and experts and of presenting its evidence.




          (d) If (i) Owner shall default in the payment of any debt service under a Mortgage, (ii)
Tenant pays that debt service, (iii) Owner shall not reimburse Tenant as required by this Lease
and (iv) the Base Rent under this Lease has not been sufficient to reimburse Tenant as required
by this Lease, any sums remaining due to Tenant may be offset against any payment by Tenant to
Owner under Section 21.4(c) or Article 32 of this Lease.”




     21. Article 21 of this Lease is amended by adding Section 21.6 to that Article, to read as
follows: “Section 21.6 Except as expressly set forth in this Article, any dispute under this
Article shall be resolved by General Arbitration”.



     22. Section 29.1 of the Lease is amended by substituting the following: “Section 29.1 Except
as otherwise expressly provided in this Lease, Tenant agrees that (a) any and all zoning,
development or air rights in respect to (or which may be appurtenant or attributable to) the
Premises or any other property owned or controlled by Owner or an Affiliate of Owner within the
Square Block (collectively, “Development Rights”) are not leased to Tenant and shall be deemed
excluded from the Premises, (b) Owner may sell or encumber the Development Rights or any part
thereof, (c) Owner may merge the Land with any other zoning lot, and (d) Owner may grant easements
for light and air with respect to or affecting the Premises, all without the consent, approval or
waiver of Tenant or any other present or future party-in-interest (as defined in the Zoning
Resolution) claiming through Tenant. In confirmation of the provisions of this Section (i) Tenant
and any such party-in-interest hereby waive their right to execute any Declaration of Zoning Lot
Restrictions or any other document which has the effect of combining the Land with other land into
a single zoning lot (as defined in the Zoning Resolution), (ii) Tenant and any such
party-in-interest hereby subordinate their interest in the Premises to any Zoning Lot Development
or any other document which has the effect of regulating



6









 




the rights and responsibilities of all parties with an interest in any land or any zoning,
development and air rights appurtenant thereto which are incorporated into the zoning lot created
by the foregoing Declaration of Zoning Lot Restrictions, provided that such document does not
adversely affect the rights of, or increase the obligations of, Tenant or such party-in-interest
under this Lease (except to a de minimus extent), and (iii) Tenant and such
party-in-interest shall execute, acknowledge and deliver to Owner, within 10 Business Days of
Owner’s request, such other and further documents as may be reasonably required in order to give
effect to the provisions of this Section. Tenant shall take no action that results in a
party-in-interest, unless such party-in-interest, at the time of the creation of its interest,
executes, acknowledges and delivers to Owner an agreement in form and substance reasonably
acceptable to Owner confirming this Section”.




     23. Article 30 of the Lease is amended by (a) adding, in the 3rd sentence of Section
30.1, after the word “shall”, the second time it appears in that Section, the following: “(except
as specifically provided in this Lease)”, and (b) adding Section 30.6 and Section 30.7 to that
Article, to read as follows:



          Section 30.6 Tenant has informed Owner that in order to ensure that Tenant can fully utilize
the Incentives previously obtained by Tenant in the amount of [ ***** ], it may be necessary to
reconfigure the Incentives to enable sales tax abatements, real estate tax abatements, energy
savings and mortgage recording tax abatements generated from the 27th Street Building to be used
towards the Incentives (and to obtain a modification of the Incentives by the applicable Agencies).
Owner shall, at no expense to Owner, cooperate with Tenant to enable Tenant to obtain this
reconfiguration and to structure or restructure the Lease to pass the full benefit, if any, of any
sales tax, real estate tax or mortgage recording tax abatements or energy savings in the 27th
Street Building to Tenant, provided that the reconfiguration does not adversely affect Owner,
including, without limitation, interfering with any financing by Owner or (unless Tenant agrees to
fully compensate Owner for any such decrease) decreasing any Incentives or benefits of the ICIP
Program available to Owner with respect to the 27th Street Building. Owner shall also, at no
expense or liability to Owner, execute any documents requested by Tenant in connection with the
existing Incentives and cooperate with Tenant with respect thereto subject to and in accordance
with Section 3.7 of this Lease and Article 30 of this Lease. Except as specifically provided in
this Lease (a) any Incentives earned by Owner after the date hereof, in excess of the amounts
provided in Section 30.1 of this Lease and received by Owner, shall be paid to Tenant within 30
days of the receipt of such Incentives by the Owner and (b) any Incentives received by Tenant shall
be retained by Tenant.




     Section 30.7 If and to the extent that any of the Incentives obtained by Tenant in
connection with the conveyance of the fee title to the Premises by Owner to an Agency consist of
abatements of or exemptions from payments of Base Taxes or any Real Estate Taxes with respect to
any property of Owner which is not then included in the Premises (“Other Real Estate Taxes”), then
Owner shall pay to Tenant an amount equal to such abated or exempt Base Taxes or Other Real Estate
Taxes as and when Owner would have




7











 




been required to pay such amounts to the applicable Governmental Authority or Tenant under
Section 3.3 of the Lease if the conveyance had not occurred.




     24. Section 31.1
of the Lease is amended by (a) adding in the 1st line of
paragraph (a), after the word “shall”, the words “arrange with the owner of that land (the
“Parking Area Owner”) to”, (b) adding in the 2nd line of paragraph (c), after the word
“Article,”, the words “or to temporarily use any such land in connection with work within
the Square Block,” and (c) adding in the 2nd line of paragraph (c), after the word “to”,
the words “permanently or temporarily, as the case may be.” The benefits and
protections of the provisions of Section 31.1 applicable to Owner shall also be applicable
to the Parking Area Owner”.



     25. Sections 32.2(a) and (b) of the Lease are amended to read in their entirety
as follows:



          (a) “If (i) there is not then a Material Event of Default, (ii) this Lease
is otherwise in full force and effect, and (iii) Tenant named herein (or an Affiliate of that
Tenant) is the tenant under this Lease and is occupying not less than an aggregate of
525,000 rentable square feet of the Building and the Bridge Plaza Building (not
recaptured by Owner pursuant to this Lease or the 27th Street Lease and disregarding any
Major Sublease referred to in Section 30.4 of this Lease or the 27th Street Lease), Tenant
or an Affiliate of Tenant shall have the right, to be exercised by notice given by Tenant to
Owner at any time between the dates which are the 10th and 15th anniversaries of the
Base Rent Commencement Date (time being of the essence), to purchase for an all cash
purchase price a membership interest in the member of Owner, which interest shall
provide Tenant or Tenant’s Affiliate with a 33% ownership interest in the Building only
(and not in any other property owned or controlled by Owner or the member of Owner)
for the price an unrelated third party would pay for a 33% non-controlling ownership
interest in the Building. Notwithstanding the foregoing, Tenant may only exercise such
right if at the time of such exercise (x) Tenant also exercises its option to purchase a 33%
non-controlling interest in the 27th Street Building pursuant to Section 32.2 of the
27th Street Lease, (y) the 27th Street Lease has been terminated for a reason other than a
default by the tenant under the 27th Street Lease, or (z) the 27th Street Premises is owned
by a Senior Interest Holder or any Person claiming by, through or under same (including
without limitation, a transferee of the Premises pursuant to a foreclosure, sale or other
action to enforce the rights of the Senior Interest Holder, or pursuant to a deed in lieu of
foreclosure).




          (b) If Tenant shall timely exercise Tenant’s right under this Section (i)
the members of the member of Owner shall sell to Tenant or Tenant’s Affiliate, and
Tenant or Tenant’s Affiliate shall purchase from those members, on the first business day
which is thirty (30) days following the determination of the price for the interest pursuant
to this Section, for all cash, a membership interest providing Tenant or Tenant’s Affiliate
with a 33% ownership interest in the Building only (which purchase price shall belong
solely to those members and not Tenant or Tenant’s Affiliate), whereupon Tenant or
Tenant’s Affiliate shall be admitted as a member of the member of Owner and (ii) the




8









 







operating agreement of the member of Owner shall be amended, if necessary, to provide
that (1) all decisions shall be made by the Person or Persons who controlled the member of Owner
prior to the closing under this Section (including, without limitation, sale and refinancing and
the requirement of all members to contribute prorata additional capital required in connection with
the member of Owner, Owner or the Building; but any decision (A) to admit new members, or to modify
the operating agreement, so as to dilute the percentage ownership of Tenant or Tenant’s Affiliate,
unless such dilution is the result of a default by Tenant or Tenant’s Affiliate under the operating
agreement, or (B) to engage in any business other than the ownership of the member interest in
Owner, the ownership of its other existing properties within the Square Block and the ownership of
its membership interest in the owner of the 27th Street Building, and any activities incidental
thereto or (C) to allow Owner to engage in any business other than the ownership of the Premises
and any activities incidental thereto, shall require the consent of Tenant or Tenant’s Affiliate;
and Owner and its member shall not be operated in any manner which discriminates against Tenant nor
Tenant’s Affiliate in favor of any other member of Owner or its member), (2) Tenant or Tenant’s
Affiliate and, as a group, the owners who owned the interests of the member of Owner immediately
prior to Tenant’s purchase under this Section, shall each have a right of first offer in its favor
if the other desires to sell its interest in the Building to an unrelated third party and (3) if
the interest of Tenant or Tenant’s Affiliate is sold to such owners or in connection with any other
sale of the interests or assets of Owner, the interest of Tenant or Tenant’s Affiliate shall be
valued at the same noncontrolling discount as was applied to its purchase of the noncontrolling
interest. Owner shall cause the members of the member of Owner to take the actions required by this
Section.




     26. Sections 32.3 and 33.4 of the Lease are amended by adding at the end the
following words: “, which Affiliate must be wholly owned by Tenant and, to the extent
required by any Senior Interest Holder, be a bankruptcy remote single purpose entity
complying with those requirements set forth in the Mortgage encumbering the Building
on the date the Addition is Substantially Complete or such other requirements which are
not materially more onerous than those requirements.”



     27. Sections 32.2(a)(iv), 33.1 and 36.17 of the Lease are deleted from the
Lease, and the title of Article 33 is changed to read “Tenant’s Right of First Offer”.



     28. Section 35.1(a) of the Lease is amended by adding in the 3rd line of such
Section after the words “MetLife Building”, the words “, Metlife Plaza”.



     29. The term “Building” as used in Articles 32, 33 and 34 shall include both
the Building and the 27th Street Building and the reference in those Articles to “this
Lease” shall include both the Lease and the 27th Street Lease, unless the 27th Street
Lease has been terminated for a reason other than a default by the tenant under the 27th
Street Lease.



     30. Section 34.1 of the Lease is amended by (a) changing the parenthetical in
clause (1) of that Section to read as follows: “(a floor to include the same floor of the



9









 




27th Street Building”), and (b) changing the parenthetical in clause (3) of that Section
to read as follows: “(but not the 27th Street Building)”.




     31. The Lease is amended by adding to the Lease Article 37, to read as follows:



          Article 37. Owner’s Right to Sell or Lease; Consolidation of Leases.




          Section 37.1 Notwithstanding any provision of this Lease to the contrary and subject to
Section 8.2, provided there is not then a Material Event of Default, Owner shall not (a) sell,
convey or otherwise transfer the Building or any interest in the Building or Owner, (b) lease all
or substantially all of the Building, (c) pledge, mortgage or otherwise grant an encumbrance on any
direct or indirect interest in Owner, to any Person other than the 27th Street Owner, any
Mortgagee, any member of the immediate family (that is, a spouse, lineal ancestor or lineal
descendant) of Louis Brause (collectively, “Brause Family Members”), a trust for Louis Brause or
any Brause Family Member, an entity 100% owned by one or more of Louis Brause and/or any Brause
Family Member or any trust for Louis Brause or any Brause Family Member or any other Person (except
an individual) so long as after the transfer or pledge Louis Brause and/or any Brause Family Member
or any trust for Louis Brause or any Brause Family Member own 100% of the beneficial interests in
Owner., unless (i) the sale conveyance, transfer or lease is to an Agency, if required by the terms
of this Lease, or (ii) Tenant shall have purchased the 27th Street Building or an interest in the
member of the 27th Street Owner and shall have been offered and failed to exercise Tenant’s rights
to purchase the Building or any interest in the member of Owner, or (d) pledge, mortgage or
otherwise encumber the Building other than by a first mortgage lien in favor of an Institutional
Lender.




          Section 37.2 Within 90 days following the latest of (a) the Substantial Completion Date
under the 27th Street Lease (provided the letters of credit referred to in this Section have not
been presented for payment), (b) the return to the issuers and the cancellation of the letters of
credit issued by Fleet National Bank and Bayerische Landesbank, Cayman Islands Branch in favor of
the Senior Interest Holder under the 27th Street Lease without having been presented for payment
and (c) the execution and delivery of the confirmation required by Section 5.14 (provided
the letters of credit referred to in this Section have not been presented for payment), Owner and
Tenant shall execute, acknowledge, insert any missing information, deliver and record the Second
Amendment of Lease attached to this Lease as Exhibit P and the Termination of Net Lease and
Common Facilities Agreement attached to the 27th Street Lease as
Exhibit P, and any forms
required to record same. Promptly following the Substantial Completion Date under the 27th Street
Lease (provided the letters of credit referred to in this Section have not been presented for
payment) (x) Owner shall request the return to the issuers and the cancellation of said letters of
credit and (y) subject to Section 5.14, Owner and Tenant shall execute, acknowledge and
deliver the confirmation required by Section 5.14.




10









 








     32. The Lease is amended by (a) changing, in the definition of “Mortgage” in
Exhibit A to the Lease, the words “Real Property” to the word “Premises”, and (b)
adding to the Lease as Exhibit P, the Second Amendment of Lease attached to this Amendment
as Exhibit A.



     33. Owner represents that on the date of this Amendment (a) the sole member
of Owner is Brause Plaza LLC, (b) the members of Brause Plaza LLC are Brause Realty
Inc. and Louis Brause, (c) Owner or an Affiliate of Owner owns or controls the property
within the Square Block indicated on Exhibit C to the Lease and (d) the expiration
date of the letters of credit referred to in paragraph 31 of this
Amendment is December 31, 2003
(and Owner shall not agree to an extension of that expiration date
beyond June 30, 2004
without Tenant’s consent.



     34. Owner and Tenant each represent to the other that it has not dealt with any
broker, finder or like entity in connection with this Amendment or the transactions
contemplated hereby, other than the Broker, whose commission shall be paid by Owner
pursuant to a separate written agreement. If any claim is made by any broker, finder or
like entity (other than the Broker) for a brokerage commission or fee in connection with
this Amendment or the transactions contemplated hereby, who or which claims to have
dealt with either Owner or Tenant, that party shall indemnify, defend and hold harmless
the other from and against that claim and all costs, expenses and liabilities in connection
therewith, including without limitation, attorneys’ fees and disbursements.



     35. Except as amended by this Amendment, the Lease shall remain in full
force and effect according to its terms.



     In Witness Whereof, Owner and Tenant have duly executed this Amendment as of the date written
above.



	 	 	 	 	 	 	 

	 	 	Brause Plaza North LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Brause Plaza LLC, sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Louis Brause
 

Name: Louis Brause
	 	 
	 

	 	 	 	Title: Member	 	 
	 
	 	 	 	 	 	 
	 	 	Metropolitan Life Insurance Company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Viggiano
 

Name: Michael Viggiano
	 	 
	 

	 	 	 	Title: Vice President	 	 






11









 






	 	 	 

	STATE OF NEW YORK

	 	 )
	 

	 	 ) ss.:
	COUNTY OF NEW YORK

	 	 )






          On
the 8th day of August, 2002, before me, the undersigned,
personally appeared Louis Brause, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual acted, executed the
instrument.




	 	 	 	 	 

	 

	 	/s/ Mitchell N. Baron
 

Notary Public
	 	 
	 
	 	 	 	 
	 

	 	MITCHELL N. BARON	 	 
	 

	 	Notary Public, State of New York	 	 
	 

	 	No. 31-4517474	 	 
	 

	 	Qualified in New York County	 	 
	 

	 	Commission Expires March 30, 2006	 	 






	 	 	 

	STATE OF NEW YORK

	 	 )
	 

	 	 ) ss.:
	COUNTY OF NEW YORK

	 	 )






          On
the 8th day August, 2002, before me, the undersigned,
personally appeared Michael Viggiano, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in his/her capacity,
and that by his/her signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.




	 	 	 	 	 

	 

	 	/s/ Paul E. Hanau
 

Notary Public
	 	 
	 
	 	 	 	 
	 

	 	PAUL E. HANAU	 	 
	 

	 	Notary Public, State of New York	 	 
	 

	 	Qualified in Nassau County	 	 
	 

	 	Certificate filed in New York County	 	 
	 

	 	Commission Expires Sept. 15, 2002	 	 







 











 





Exhibit A




Exhibit P



Second Amendment of Lease



     Amendment dated                      , between Brause Plaza North LLC, a
Delaware limited liability company having an office at 52 Vanderbilt Avenue, New York, New York
10017-3888 (“Owner”) and Metropolitan Life Insurance Company, a New York corporation having an
office at One Madison Avenue, New York, New York 10010 (“Tenant”).



Recital




     A. Owner and Tenant entered into a Net Lease dated May 10, 2001, amended
by First Amendment of Lease dated                     , 2002 (the “First Amendment”;
collectively, the Lease”), covering the Premises located at 27-01 Bridge Plaza North, Long Island
City, New York.



     B. Tenant is the tenant under a Net Lease dated                      (the “27th
Street Lease”), covering the contiguous land (the “27th Street Land”) and building (the “27th
Street Building”) located at 41-21 27th Street, Long Island City, New York (the “27th Street
Premises”).



     C. Simultaneously with the execution and delivery of this Amendment, the 27th Street Lease is
being terminated and the 27th Street Premises are being conveyed to Owner.



     D. Owner and Tenant desire to amend the Lease to include the 27th Street Premises in the
Premises and as otherwise provided in this Amendment (all capitalized terms in this Amendment which
are not defined in this Amendment shall have the meanings set forth in the Lease).



     Accordingly, Owner and Tenant agree as follows:



          1. Effective on the date of this Amendment, except as set forth in Paragraph 2 (a) the
27th Street Premises is included in the Premises, (b) the 27th Street Land shall be deemed part of
the Land, (c) the core and shell of the 27th Street Building (which Owner and Tenant agree shall be
deemed to contain 282,082 rentable square feet), the Base Building Equipment of the 27th Street
Building and the Base Building Systems of the 27th Street Building, and all alterations,
replacements, additions and substitutions, other than Tenant’s Work with respect to
the 27th Street Premises and Tenant’s Property with respect to the 27th Street Premises, shall
be deemed part of the Building, and (d) Tenant’s Work with respect to the 27th Street Premises and
Tenant’s Property with
respect to the 27th Street Premises shall be deemed part of, respectively Tenant’s Work




[*****]





 









 







and Tenant’s Property, on the same terms and conditions as are set forth in the Lease except
as provided in this Amendment.




          2. (a) Notwithstanding the provisions of paragraph 1 of this Amendment, for purposes of
Articles 13 (Damage by Fire or Other Casualty) and 14 (Taking) of the Lease, the 27th Street
Premises shall be treated separately and independently from the balance of the Premises, so that
(i) each threshold provision of Articles 13 and 14 of the Lease that relate to the amount of
damage, the amount of any Taking, the cost or time to repair, the ability to terminate the Lease or
abate Rent shall be applied to the 27th Street Premises separately and independently from the
balance of the Premises and (ii) although Tenant’s option to terminate the Lease as provided in
Section 13.3 of the Lease shall apply separately and independently to the 27th Street Premises and
the balance of the Premises, Owner’s option to terminate the Lease as provided in Section 13.3 of
the Lease shall apply only if Tenant has, pursuant to its option set forth in Section 13.3 of the
Lease, terminated the Lease with respect to either the 27th Street Premises or the balance of the
Premises.




               (b) In addition to any other abatements permitted under the Lease (i) if more than 50% of the
facilities listed on Exhibit A to this Amendment (the “Common Facilities”) which serve the
27th Street Building but which are located in the balance of the Premises are damaged by fire or
other casualty and as a result Tenant cannot, in Tenant’s reasonable judgment, conduct its business
in the 27th Street Premises and does not conduct its business in the 27th Street Premises then Rent
shall abate for the entire 27th Street Premises for the period from the date of the fire or other
casualty until the date which is the earlier of 120 days after substantial completion of the
repairs to the Common Facilities required to be performed by Owner or the date Tenant occupies the
27th Street Premises or any part thereof (in which event Rent shall be abated in proportion to the
portion of the Premises which Tenant shall not occupy), for the normal conduct of Tenant’s business
and (ii)if a Taking affects only the Common Facilities and as a result Tenant cannot, in Tenant’s
reasonable judgment, conduct its business in any portion of the 27th Street Premises and does not
conduct its business in that portion of the 27th Street Premises, then Rent shall abate in
proportion to the portion of the 27th Street Premises which Tenant is unable to use as the result
of the Taking and shall commence upon the date which is the earlier of 120 days after substantial
completion of the repairs to the Common Facilities required to be performed by Owner or the date
Tenant occupies that portion for the normal conduct of Tenant’s business.



               (c) For purposes of Articles 13 and 14 of the Lease, the Base Rent shall be allocated to the
27th Street Premises and to the balance of the Premises as follows: the Base Rent increase
provided in paragraph 4 of this Amendment shall be allocated to the 27th Street Premises and the
balance of the Base Rent shall be allocated to the balance of the Premises.



          3. Owner and Tenant hereby confirm the following: (a) the Substantial Completion Date
with respect to the 27th Street Premises is                     , (b) the Fixed Expiration Date is                     ,




 









 




(c) the Base Tax Year for the 27th Street Premises is                      through
                     and the Base Taxes for the 27th Street Premises are all Real Estate
Taxes attributable to the 27th Street Premises for that period, as finally determined. [Insert
allocation in Section 3.4 of the 27th Street Lease, if necessary], and (d) the First
Lease Year with respect to the 27th Street Premises is from                      through
                    , and each Lease Year with respect to the 27th Street Premises
thereafter is from                      to                      (so that the 27th Street
Premises shall be treated separately from the balance of the Premises for the purposes of the
matters contained in clauses (a), (c) and (d) of this paragraph).




               4. (a) Effective on the date of this Amendment, the Base Rent
shall be increased by [*****] per annum from                      and ending on                     
$[*****] per annum from                      through                     , [*****] per annum from                     
through an [*****] annum from                     
through                      the Fixed Expiration Date.



               (b) Accordingly, the Base Rent under the Lease shall be as follows:



          5. The following paragraphs of the First Amendment (and the amendments to the Lease
reflected in those paragraphs) are hereby deleted from the Lease: 3; 9; 11; 14 (clause (b)
only); 20; 29; 30; and 31.




          6. Owner and Tenant hereby represent that (a) the Lease is unmodified and in full force and
effect and (b) as of the date of this letter, (i) neither Tenant nor Owner has given the other
written notice of any event that, with the giving of notice or the passage of time, or both, would
constitute an existing Owner Default or an existing Event of Default, as the case may be, and (ii)
neither Owner nor Tenant owes the other any sums under the Lease which are now due and payable, and
Tenant has no offsets against the Rent. [Insert any exceptions].




          7. Owner and Tenant each represent to the other that it has not dealt with any broker, finder
or like entity in connection with this Amendment or the transactions contemplated hereby, other
than the Broker, whose commission shall be paid by Owner pursuant to a separate written agreement.
If any claim is made by any broker, finder or like entity (other than the Broker) for a brokerage
commission or fee in connection with this Amendment or the transactions contemplated hereby, who or
which claims to have dealt with either Owner or Tenant, that party shall indemnify, defend and hold
harmless the other from and against that claim and all costs,
expenses and liabilities in connection therewith, including without limitation, attorneys’
fees and disbursements.




          8. Except as amended by this Amendment, the Lease shall remain in full force and effect
according to its terms.




 









 





     In Witness Whereof, Owner and Tenant have duly executed this Amendment as of the date written
above.



	 	 	 	 	 
	 	Brause Plaza North LLC


By:             Brause Plaza LLC, sole Member

 	 
	 	By:  	 	 
	 	 	Name:  	Louis Brause 	 
	 	 	Title:  	Member 	 
	 
	 	Metropolitan Life Insurance Company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 






 









 








	 	 	 	 	 

	STATE OF NEW YORK

	 	) 	 	 
	 

	 	) ss.:

	COUNTY OF NEW YORK

	 	) 	 	 






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




	 	 	 	 	 
	 	
Notary Public

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 

	STATE OF NEW YORK

	 	) 	 	 
	 

	 	) ss.:

	COUNTY OF NEW YORK

	 	) 	 	 






          On the ___day of                     , ___, before me, the undersigned,
personally appeared                                         , personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in his/her capacity,
and that by his/her signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.




	 	 	 	 	 
	 	
Notary Public

 	 
	 	 	 
	 	 	 
	 	 	 
	 




 









 





Exhibit A




The Common Facilities



Electricity with one central meter

Class E Fire Alarm System

Domestic and fire water with central meters

Fuel oil gas fired steam boiler

Central Building Management System

Two points of entry for telecommunications

Loading Docks




 









 





EXHIBIT B



ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and improvements thereon
erected, situate, lying and being in the Borough and County of Queens, City and State of New York,
bounded and described as follows:



BEGINNING at the corner formed by the intersection of the northerly line of Bridge Plaza North with
the easterly line of 27th Street;



RUNNING THENCE northerly, along the easterly line of 27th Street, 169.33 feet;



THENCE easterly, along a line forming an angle of 110 degrees 26 minutes 10 seconds on its
southerly side with the preceding course, 117.50 feet;



THENCE northerly, parallel with the easterly line of 27th Street, 161.10 feet;



THENCE easterly, at right angles to the preceding course, 90.11 feet to a point in the westerly
line of 28th Street;



THENCE southerly, along the westerly line of 28th Street, 353.05 feet to the corner formed by the
intersection of the northerly line of Bridge Plaza North with the westerly line of 28th Street;



THENCE westerly, along the northerly line of Bridge Plaza North, 201.05 feet to the point or place
of BEGINNING.





 









 








Second Amendment of Lease




     Amendment dated as of June 30, 2003, between Brause Plaza North LLC, a
Delaware limited liability company having an office at 52 Vanderbilt Avenue, New York, New
York 10017-3888 (“Owner”) and Metropolitan Life Insurance Company, a New York corporation
having an office at One Madison Avenue, New York, New York 10010
(“Tenant”).



Recital




     A. Owner and Tenant entered into a Net Lease dated May 10, 2001, amended
by First Amendment of Lease dated August 8, 2002 (the “First Amendment”;
collectively, the Lease”), covering the Premises located at 27-01 Bridge Plaza North,
Long Island City, New York.



     B. Tenant is the tenant under a Net Lease dated August 8, 2002 (the “27th Street
Lease”), covering the contiguous land (the “27th Street Land”) and building (the “27th Street Building”) located at 41-21 27th Street, Long Island City, New York (the “27th
Street Premises”).



     C. Simultaneously with the execution and delivery of this Amendment, the 27th
Street Lease is being terminated and the 27th Street Premises are being conveyed to Owner.



     D. Owner and Tenant desire to amend the Lease to include the 27th Street
Premises in the Premises and as otherwise provided in this Amendment (all capitalized terms in this Amendment which are not defined in this Amendment shall have the
meanings set forth in the Lease).



     Accordingly, Owner and Tenant agree as follows:



          1. Effective on the date of this Amendment, except as set forth in Paragraph
2 (a) the 27th Street Premises is included in the Premises, (b) the 27th Street Land shall be deemed part of the Land, (c) the core and shell of the 27th Street Building (which
Owner and Tenant agree shall be deemed to contain [*****] rentable square feet), the Base Building Equipment of the 27th Street Building and the Base Building Systems of the 27th Street Building, and all alterations, replacements, additions and
substitutions other than Tenant’s Work with respect to the 27th Street Premises and
Tenant’s Property with respect to the 27th Street Premises, shall be deemed part of
the Building, and (d) Tenant’s Work with respect to the 27th Street Premises and
Tenant’s Property with respect to the 27th Street Premises shall be deemed part of, respectively Tenant’s Work
and Tenant’s Property, on the same terms and conditions as are set forth in the Lease
except as provided in this Amendment.









 









 








          2. (a) Notwithstanding the provisions of paragraph 1 of this
Amendment, for purposes of Articles 13 (Damage by Fire or Other
Casualty) and 14
(Taking) of the Lease, the 27th Street Premises shall be treated separately and
independently from the balance of the Premises, so that (i) each threshold provision of Articles 13 and 14 of the Lease that relate to the amount of damage, the amount of any Taking, the cost
or time to repair, the ability to terminate the Lease or abate Rent shall be applied to the 27th
Street Premises separately and independently from the balance of the Premises and (ii)
although Tenant’s option to terminate the Lease as provided in Section 13.3 of the Lease shall
apply separately and independently to the 27th Street Premises and the balance of the Premises,
Owner’s option to terminate the Lease as provided in
Section 13.3 of the Lease shall apply only if Tenant has, pursuant to its option set forth in
Section 13.3 of the Lease, terminated the Lease with respect to either the 27th Street
Premises or the balance of the Premises.




               (b) In addition to any other abatements permitted under the
Lease (i) if more than 50% of the facilities listed on
Exhibit A to this Amendment (the
“Common Facilities”) which serve the 27th Street Building but which are located in the balance
of the Premises are damaged by fire or other casualty and as a result Tenant cannot, in
Tenant’s reasonable judgment, conduct its business in the 27th Street Premises and does not
conduct its business in the 27th Street Premises then Rent shall abate for the entire 27th
Street Premises for the period from the date of the fire or other casualty until the date which
is the earlier of 120 days after substantial completion of the repairs to the Common Facilities
required to be performed by Owner or the date Tenant occupies the 27th Street Premises or any
part thereof (in which event Rent shall be abated in proportion to the portion of the Premises
which Tenant shall not occupy), for the normal conduct of Tenant’s business and (ii) if a
Taking affects only the Common Facilities and as a result Tenant cannot, in Tenant’s reasonable
judgment, conduct its business in any portion of the 27th Street Premises and does not conduct
its business in that portion of the 27th Street Premises, then Rent shall abate in proportion
to the portion of the 27th Street Premises which Tenant is unable to use as the result of the
Taking and shall commence upon the date which is the earlier of 120 days after substantial
completion of the repairs to the Common Facilities required to be performed by Owner or the
date Tenant occupies that portion for the normal conduct of Tenant’s business.



               (c) For
purposes of Articles 13 and 14 of the Lease, the Base Rent
shall be allocated to the 27th Street Premises and to the balance of the Premises as
follows: the Base Rent increase provided in paragraph 4 of this Amendment shall be
allocated to the 27th Street Premises and the balance of the Base Rent shall be allocated
to the balance of the Premises.



          3. Owner and Tenant hereby confirm the following: (a) the Substantial Completion
Date with respect to the 27th Street Premises is (i) June 13,
2003, with respect to floors 3 through 6, (ii) June 20,
2003, with respect to floors 7 through 13, and (iii) June 30, 2003,
with respect to the balance of the 27th Street Premises (so that Substantial Completion Date
with respect to the entire 27th Street Premises is June 30, 2003), (b) the Fixed Expiration
Date is June 30, 2023; (c) the Base Tax Year for the 27th




 









 





Street Premises is July 1, 2003 through June 30, 2004 and the Base Taxes for
the 27th Street Premises are all Real Estate Taxes attributable to the 27th Street
Premises for that period, as finally determined, as calculated in accordance with
Section 3.4 of the 27th Street Lease, and (d) the First Lease Year with respect
to the 27th Street Premises is from
July 1, 2003 through June 30, 2004, and each Lease Year with
respect to the 27th Street Premises thereafter is from July 1 to June 30 (so
that the 27th Street Premises shall be treated separately from the balance of
the Premises for the purposes of the matters contained in clauses (a), (c) and
(d) of this paragraph).




          4. (a) Effective on the date of this Amendment, the Base Rent shall be
increased by [*****] per annum from October 11, 2003 through June 30, 2008, [*****] per
annum from October 18, 2003 through June 30, 2008 and [*****] per annum from October 28, 2003 through June 30, 20081 [*****] per annum from July 1, 2008 through June 30, 2013, [*****] per annum from July 1, 2013
through June 30, 2018, and [*****] per annum from July 1, 2018 through the Fixed
Expiration Date.




               (b) Accordingly, the Base Rent under the Lease shall be as
follows:



     [*****] per annum from April 25, 2002 through October 10, 2003;



     [*****] per annum
from October 11, 2003 through October 17, 2003;



     [*****] 6 per annum from
October 18, 2003 through October 27, 2003;



     [*****] per annum from October 28, 2003 through September 30, 2006;



     [*****] per annum from October 1, 2006 through June 30, 2008;



     [*****] per annum from July 1, 2008 through September 30, 2011;



     [*****] per annum from October 1, 2011 through June 30, 2013;



     [*****] per annum from July 1, 2013 through September 30, 2016;



     [*****] per annum from October 1, 2016 through June 30, 2018;



     [*****] per annum from July 1, 2018 through September 30, 2021; and



     [*****] per annum from October 1, 2021 through the Fixed Expiration Date.





 




			
	1	 	Due to rounding the rentable square feet of each floor of the 27th
Street Building as shown on Exhibit E to the 27th Street Lease, the sum of the
rentable square feet of those floors is five rentable square feet less than the
total, agreed upon, rentable square feet of the 27th Street Building of 282,028
rentable square
feet, as shown on Exhibit E to the 27th Street Lease. Accordingly, in order for the
calculation of the Base Rent for the 27th Street Premises to be
based upon the total, agreed upon, rentable square feet of the 27th Street Building, the rentable square feet of the 2nd floor of the 27th Street
Building is hereby increased by five rentable square feet, from 23,340 rentable
square feet to 23,345 rentable square feet.





 









 





          5. The following paragraphs of the First Amendment (and the
amendments to the Lease reflected in those paragraphs) are hereby deleted from the Lease: 3; 9; 11; 14 (clause (b) only); 20; 29; 30; and 31.




          6. Owner and Tenant hereby represent that (a) the Lease is unmodified and in full
force and effect and (b) as of the date of this letter, (i) neither Tenant nor Owner has given
the other written notice of any event that, with the giving of notice or the passage of time,
or both, would constitute an existing Owner Default or an existing Event of Default, as the case
may be, and (ii) neither Owner nor Tenant owes the other any sums under the Lease which are now
due and payable, and Tenant has no offsets against the Rent.




          7. Owner and Tenant each represent to the other that it has not dealt
with any broker, finder or like entity in connection with this Amendment or the
transactions contemplated hereby, other than the Broker, whose commission shall be paid by
Owner pursuant to a separate written agreement. If any claim is made by any broker, finder or
like entity (other than the Broker) for a brokerage commission or fee in connection with this
Amendment or the transactions contemplated hereby, who or which claims to have dealt with
either Owner or Tenant, that party shall indemnify, defend and hold harmless the other from
and against that claim and all costs, expenses and liabilities in connection therewith,
including without limitation, attorneys’ fees and disbursements.



          8. Except as amended by this Amendment, the Lease shall remain in
full force and effect according to its terms.




          9. This Amendment may be executed in any number of counterpart, each of which when so executed
and delivered shall be an original, but all of which shall together constitute one and the
same instrument.




(Signature page to follow)




 









 





     In Witness Whereof, Owner and Tenant have duly executed this Amendment as of the date written
above.



	 	 	 	 	 
	 	Brause Plaza North LLC

 	 
	 	By:  	/s/ David Brause
 	 
	 	 	Name:  	David Brause 	 
	 	 	Title:  	Vice President 	 
	 
	 	Metropolitan Life Insurance Company

 	 
	 	By:  	/s/ Michael Viggiano
 	 
	 	 	Name:  	Michael Viggiano 	 
	 	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 

	STATE OF NEW YORK

	 	) 	 	 
	 

	 	) ss.:

	COUNTY OF NEW YORK

	 	) 	 	 






          On the 25 day of June, 2003, before me, the undersigned,
personally appeared David Brause, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the
instrument.




	 	 	 	 	 
	 	/s/ Ruth Brause

 Notary Public

 
	 
	 	 	 
	 	 	 
	 	 	 
	 







RUTH BRAUSE

Notary Public, State of New York

No. 31-4643006 

Qualified in New York Country

Commission Expires March 30, 19__









	 	 	 	 	 

	STATE OF NEW YORK

	 	) 	 	 
	 

	 	) ss.:

	COUNTY OF NEW YORK

	 	) 		 







          On the 27 day of June, 2003, before me, the undersigned,
personally appeared Michael Viggiano, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in his/her capacity,
and that by his/her signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.







	 	 	 	 	 
	 	/s/ Paul E. Hanau 

Notary Public

 
	 
	 	 	 
	 	 	 
	 	 	 
	 








PAUL E. HANAU

Notary Public, State of New York

Qualified in Nassau Country

Certificate Filed in New York Country

Commission Expires Sept. 15, 2006










 











 





Third Amendment of Lease




     Amendment
dated as of September 23, 2010, between Brause Plaza North LLC., a Delaware limited
liability company having an office at 52 Vanderbilt Avenue, New York, NY 10017-3888 (“Owner”) and
Metropolitan Life Insurance Company, a New York corporation having an office at 1095 Avenue of the
Americas, New York, NY 10036-6797 (“Tenant”).



Recital




     A. Owner and Tenant entered into a Net Lease dated May 10, 2001, amended by First Amendment of
Lease dated August 8, 2002 (the “First Amendment”) and Second Amendment of Lease dated as of June
30, 2003 (collectively, the “Lease”), covering the property located at 27-01 Bridge Plaza North,
Long Island City, New York.



     B. Owner and Tenant desire to amend the Lease as provided in this Amendment (all capitalized
terms in this Amendment which are not defined in this Amendment shall have the meanings set forth
in the Lease; and any reference in this Amendment to the Lease shall be deemed to include the Lease
as amended by this Amendment).



     Accordingly, Owner and Tenant agree as provided in this Amendment.



          1. Development Rights.




               (a) Notwithstanding any provision of the Lease to the contrary, all Development Rights
applicable to the Building or the Square Block (whether or not obtained by Tenant or Owner) shall
belong to, and may be used or disposed of by, Owner only (and not by Tenant), without any payment
by Owner to Tenant, except that Owner shall not use the Development Rights to increase the height
of the Building prior to the earlier of (i) the date the Term ends or (ii) the date MetLife
occupies less than one full floor in the base of the Building (the base of the Building being
floors 2 through 7; a full floor being the floor in both the original Building and the
27th Street Building).



               (b) Section 6.5
of the Lease is hereby amended by deleting paragraphs (b), (c) and (d).



               (c) Paragraph 7 of the First Amendment is hereby deleted from the Lease.



          2. Repairs and Maintenance. Section 9.2 of the Lease is hereby amended by (a) deleting
the first two sentences, and replacing them with the following sentence: “Owner’s sole
responsibility with respect to the repair and maintenance of the Building shall be to, at Owner’s
expense, replace the following structural elements of the Building: concrete frame; steel
reinforcements; footings; foundation; load-bearing columns; and roof supports, but only if the




 









 







condition of any such element requires replacement of the entirety of any such element, rather than
repair, under sound construction practice; provided, however, that any such replacement shall be
performed by Owner at Tenant’s expense if (i) the replacement was necessitated due to the act of
Tenant or any Tenant Party or (ii) a warranty or guaranty applicable to the element to be replaced
was terminated or reduced, in whole or in part, due to the act of Tenant or any Tenant Party (but
only to the extent the warranty or guaranty would have covered the cost of the replacement)” and
(b) in the next to last sentence, changing the words “clause (ii) or clause (iii)” to “clause (i)
or clause (ii).”




          3. Incentives. Exhibit A to the Lease is hereby amended by adding at the end of the
definition of “Incentives”, the following: “including the benefits of any Industrial Commercial
Development Program and Consolidated Edison’s Business Incentive Rate Program”.




          4. Multi-Tenant Lease Provisions. Exhibit I to the Lease is hereby amended by adding
at the end, the following:




          “7. Management. Owner shall manage the Building, or have the Building managed, in a
manner comparable to buildings comparable to the Building in Long Island City.”




          “8. Cleaning. At Tenant’s request, Owner shall provide cleaning to Tenant, at Tenant’s
expense, in a manner comparable to buildings comparable to the Building in Long Island City. The
inclusion of cleaning shall be a factor in determining the Fair Market Base Rent.”




          “9.
Penthouse. Provided Tenant has regularly illuminated the
façade around the
penthouse during the initial term of the Lease, and for so long as Owner elects to continue to
illuminate that façade during the extended term, Tenant and JetBlue (as defined in Section 34.1)
shall have the non-exclusive right from time to time to request Owner to use one or more particular
colors of illumination for a period of time. If Tenant or JetBlue shall make such request, Owner
shall endeavor to accommodate the request (but Owner shall have no liability for Owner’s failure to
do so), provided that (a) if the request is made by JetBlue, there is no JetBlue Default (as
defined in Section 34.2) and the JetBlue Occupancy Requirement (as defined in Section 34.1) is met,
or if the request is made by Tenant, there is no Event of Default, (b) if overlapping requests are
made, JetBlue’s request shall take priority, (c) the change shall not be prohibited by any
Requirement, (d) Owner consents to the change, which consent shall not be unreasonably withheld and
(e) Tenant or JetBlue (whichever made the request) provides the materials and pays in advance (if
requested by Owner) or reimburses Owner for the cost of changing the colors (including labor).”




          5. Tenant’s Right of First Offer and Right to Expand. Articles 32 and 33 of the Lease
are hereby deleted from the Lease.




2









 








          6. Tenant’s Right to Extend the Term. Article 34 of the Lease is hereby
amended as follows:




               (a) Section 34.1(a) of the Lease is amended to (i) reduce the extension term from 10 years to
5 years (but the reference in Section 34.1(b) to a 10-year lease shall remain, so that the Fair
Market Base Rent for the 5-year extension term shall be based on a Fair Market Base Rent for a
10-year term) and (ii) add the following sentence at the end: “If Tenant’s Subtenant, JetBlue
Airways Corporation, its Affiliates or its successor by merger, consolidation or sale of assets
(collectively, “JetBlue”), on the date Tenant exercises Tenant’s right under this Section and on
the date the extended term commences, occupies (the “JetBlue Occupancy Requirement”) two or more
full floors in the base of the Building, or the equivalent rentable square footage in the base of
the Building (but, in either case, this requirement shall be deemed met if the occupancy is less by
not more than 25,000 rentable square feet), the requirement of Tenant’s (or its Affiliate’s)
occupancy set forth in clause (iii) of this Section shall not apply.”



               (b) Section 34.1(c) of the Lease is amended to change the notice date from 18 months before
the Fixed Expiration Date to 20 months before the Fixed Expiration Date (time being of the
essence).



               (c) Section 34.2 is hereby added to the Lease, to read as follows:



               “Section 34.2. During the extended term of this Lease, if the JetBlue Occupancy Requirement is
met and JetBlue is not then in default under its Sublease or any direct lease or other agreement
with Owner (including any amendment of this Lease in which JetBlue undertakes obligations or
liabilities in favor of Owner), following any required notice and the expiration of the applicable
cure period (a “JetBlue Default”), Owner shall not lease any space in the Building, or consent to
the sublease of any space in the Building (if denying consent shall not cause Owner to violate the
lease between Owner and the tenant requesting consent to the sublease), to any of the airlines, or,
for occupancy by an airline, to any of the entities controlling airlines (control meaning the
direct or indirect ownership of more than 50% of all classes of voting equity interests and the
ability to direct day to day operations) listed on Exhibit A to this Amendment or to any
airline or, for occupancy by an airline, to any such entity substituted by JetBlue for an airline
or entity then on the list, by notice by JetBlue to Tenant and Owner, provided that the
substitution shall not be effective, and Owner shall have the right to lease space in the Building
or consent to the sublease of space in the Building to the airline or entity set forth in JetBlue’s
notice if (a) the notice is received by Owner after the date Owner and such airline or entity sign
a letter of intent, term sheet, lease or other agreement or (b) if Owner is negotiating with any
such airline or entity on the date the notice is received by Owner and enters into a letter of
intent, term sheet, lease or other agreement with such airline or entity within 135 days following
receipt of JetBlue’s notice. Nothing contained in this Section or elsewhere in this Lease shall
prevent Owner from leasing space in the Building, or consenting to the subleasing of space in the
Building, to any competitor of Tenant or any Affiliate of Tenant.”



3









 





               (d) Section 34.3 is hereby added to the Lease, to read as follows:



               “Section 34.3.



               (a) If (i) Tenant shall duly exercise Tenant’s right to extend the Term, but shall not include
the entire 2nd floor of the Building and (ii) a cafeteria, fitness center or conference
center for Tenant’s or JetBlue’s employees is then operated
on the 2nd floor of the
Building in a location on the 2nd floor of the Building approved by Tenant and Owner,
then Tenant shall have the right to include in Tenant’s exercise notice all or any of those
portions of the 2nd floor (but if Tenant includes any portion of the cafeteria, it must
also include the existing kitchen and server areas). Owner shall, if requested by Tenant or JetBlue
on or before the date which is 150 days prior to the last date on which Tenant may exercise
Tenant’s extension right (but not sooner than the date which is 180 days prior to the last date on
which Tenant may exercise Tenant’s extension right), give notice to Tenant or JetBlue (whichever
made the request, with a copy to the other party) within 120 days following Tenant’s or JetBlue’s
request, as to whether Owner then intends, during the extended term, to operate a cafeteria,
fitness center or conference center in the Building for the tenants of the Building. If Owner fails
to respond within such 120-day period, it shall be deemed that Owner does not then intend to
operate a cafeteria, fitness center or conference center in the Building for the tenants of the
Building. Whether or not Tenant includes the cafeteria, fitness center or conference center in
Tenant’s exercise notice, or Owner states or is deemed to have stated that Owner does or does not
operate a cafeteria, fitness center or conference center in the Building for the tenants of the
Building, Owner shall have the right, at any time, to operate or cease to operate a cafeteria,
fitness center or conference center in the Building for the tenants of the Building.



               (b) In all events, if Tenant shall include only a portion of the 2nd floor in
Tenant’s exercise notice as permitted by this Section, such portion shall be configured in a manner
that is reasonably acceptable to Owner so that the balance of the
2nd floor of the
Building is leasable by Owner at market rents without discount due to the location or configuration
of the balance.



               (c) If (i) Tenant shall give notice to Owner on or before the date which is 90 days prior to
the last date Tenant may exercise Tenant’s extension right that Tenant desires Owner to enter into
a direct lease with JetBlue for a portion of the 2nd floor of the Building which may be
included in Tenant’s notice of exercise pursuant to this Section, (ii) the JetBlue Occupancy
Requirement and the Rating Requirement (as defined in Section 34.4) are then and at the
commencement of the extended term met, (iii) there is then no JetBlue Default, (iv) Owner and
JetBlue agree on the terms of the lease on or before the last date Tenant may exercise Tenant’s
extension right and (v) Tenant duly exercises Tenant’s extension right, Owner shall lease that
portion directly to JetBlue on the agreed upon terms and any purported exercise by Tenant of its
extension right for the portion leased to JetBlue shall be void.



4









 





               (d) During the extended term of this Lease, if Tenant shall not include the entire Building in
Tenant’s extension notice, but shall include the cafeteria or fitness center, Owner shall not be
required to provide cleaning service for those areas, but shall not object to Tenant’s contracting
directly with Owner’s cleaning contractor for such cleaning service.”



               (e) During the extended term of this Lease, if and for so long as Tenant or JetBlue operates
in the Building a cafeteria, fitness center or conference center (the “Building Amenities”; it
being recognized that Tenant or JetBlue may, at any time, cease operating any of the Building
Amenities, including converting that space to another Permitted Use), the other tenants of the
Building and their guests and invitees shall have the non-exclusive use of the Building Amenities,
subject in all cases to any reasonable rules and regulations of Tenant or JetBlue regarding the use
thereof by all users (which shall be enforced in a non-discriminatory manner and may include
excluding from the fitness center any person who does not satisfy reasonably established medical or
health conditions or who refuses to sign Tenant’s or JetBlue’s then waiver and release form, if
any, for use of the fitness center) and subject to Building-wide prices, except that the employees
of Tenant or JetBlue and its Affiliates (whichever operates the Building Amenities) may be given a
discount. If (i) JetBlue or Tenant maintains any of the Building Amenities, (ii) the size of that
Building Amenity is smaller than its size on the date the initial term ended and (iii) the size
does not, in JetBlue’s or Tenant’s, as the case may be, reasonable opinion, accommodate the other
tenants in the Building, then JetBlue or Tenant, as the case may be, shall not be required to offer
that Building Amenity to other tenants of the Building.



               (f) Section 34.4 is hereby added to the Lease, to read as follows:



               “Section 34.4. During the extended term of this Lease, if Tenant extends the initial
term of this Lease for less than the entire Building (other than Ground Floor space recaptured by
Owner), then if (i) the JetBlue Occupancy Requirement is met, (ii) there is then no JetBlue
Default, (iii) JetBlue has a Standard & Poor’s long term debt rating of A- or better or (if
Standard & Poor’s shall not rate the long term debt of JetBlue) the equivalent rating by Fitch (A-) or Moody’s (A) or, if neither shall rate the long term debt of JetBlue, a rating agency selected
by Landlord (the “Rating Requirement”), (iv) the space in the Building desired by JetBlue has been
made available for lease by Owner and (v) Owner and JetBlue agree on the terms of the lease, Owner
shall enter into a lease for that space, on the agreed upon terms, directly with the JetBlue.”



               (g) Section 34.5 is hereby added to the Lease, to read as follows:



               “Section 34.5. During the extended term of this Lease, if Tenant extends the initial
term of this Lease for less than the entire Building (other than Ground Floor space recaptured by
Owner), then Owner shall have the right, at Owner’s expense, to relocate Tenant, JetBlue (whether
as a Subtenant or a direct tenant) or any Subtenant, or any of their respective



5









 




Affiliates (and each sublease shall so provide), to contiguous space of substantially equal
rentable square footage (that is, contiguous full floors and a partial floor contiguous to those
floors, if needed) and, if not a full floor, substantially similar configuration anywhere in the
Building (except that Tenant and JetBlue, and their respective Affiliates, shall not be relocated
to the 2nd floor, provided, with respect to JetBlue only, if there is then no JetBlue
Default), with equivalent build-out (including wiring for telecommunications and other equipment),
services, structural support, operational capability and redundancy (including any System
Operations Center operated by JetBlue), including the payment by Owner of the reasonable cost to
relocate that Person’s property to the relocated space which Owner shall reimburse to that Person,
unless Owner elects to arrange for the relocation, in which event Owner shall pay the cost directly
(in no event, however, shall Owner have the right to arrange for the relocation of the SOC
equipment, such relocation to be performed by JetBlue at Owner’s reasonable cost). The relocation
by Owner shall be performed in a manner which minimizes disrupting the business of the relocated
Person. Prior to commencing any required build-out of the relocated space, Owner shall provide the
relocated Person with a copy of the plans and specifications for the build-out and an estimate of
the time to complete the build-out (including wiring for telecommunications and other equipment).
During performance of the build-out, Owner shall permit the relocated Person to observe and inspect
the build-out, provided the relocated Person shall not interfere with the build-out. After
substantial completion of the build-out, any punch list work shall be determined and performed
pursuant to Section 5.5 of this Lease. Any dispute regarding the build-out, services, structural
support, operational capability, redundancy, punch list work or cost shall be resolved by
Construction Arbitration. The relocated Person shall vacate its then existing space and occupy the
relocated space on all of the terms of this Lease on or before the 30th day following
Owner’s notice that the relocated space is substantially complete and, if the relocated Person is
JetBlue, provided the SOC is fully operational (which JetBlue shall arrange as soon as
practicable). If Tenant, or its Affiliate, occupies the
8th floor of the Building and
Owner desires to relocate the occupant of the
8th floor
from the 8th floor, and there is
no Event of Default, Owner may do so only if one of the following conditions are met: (i) the
replacement tenant leases rentable square footage in the Building greater than the rentable square
footage equivalent of three full base floors in the Building and the 8th floor or (ii)
the replacement tenant leases more rentable square footage in the Building than the relocated
Person (and its Affiliates) and the replacement tenant’s space (other than the 2nd floor
of the Building, if that is leased by the replacement tenant) is
contiguous with the
8th
floor. If the condition of either clause (i) or (ii) of this Section is met and Owner relocates the
occupant from the
8th
floor, at the option of Owner, the
8th floor occupant may
be relocated to a noncontiguous floor in the tower portion of the Building (the tower portion being
floors 8 through 13) or to a contiguous floor in the base of the Building.”




          7. Building Name; Signage. Section 35.1 of the Lease is hereby deleted from
the Lease and replaced with the following:




6









 








               “Section 35.1 (a) During the Term, the Building shall not be named by Owner or Tenant unless
the name is acceptable to Owner and Tenant, except that, during the initial term of this Lease and,
if Tenant extends the term for the entire Building (other than Ground Floor Space recaptured by
Owner), if (i) there is not then a Material Event of Default, (ii) this Lease is otherwise in full
force and effect and (iii) Tenant named herein (or an Affiliate of that Tenant) is the tenant under
this Lease, the Building may be known as the “MetLife Building” or the name of any Affiliate of
Tenant named herein or any successor to Tenant named herein or its Affiliate by merger,
consolidation or sale of assets, or any derivatives of such name. If, however, Tenant extends the
initial term of this Lease for less than the entire Building (other than Ground Floor space
recaptured by Owner), then during the extended term of this Lease, if any tenant of the Building
and its Affiliates lease more space in the Building then the aggregate space in the Building then
leased or subleased by Tenant, JetBlue and their respective Affiliates, Owner shall have the right,
in Owner’s sole discretion, without Tenant’s or JetBlue’s consent, to name the Building (but not
the name of Tenant, JetBlue, any of their respective Affiliates or if the JetBlue Occupancy
Requirement is then met and there is then no JetBlue Default, any airline or entity then listed on
Exhibit A.)



               (b) During the initial term of this Lease and, if Tenant extends the initial term for
the entire Building (other than Ground Floor space recaptured by Owner), the extended term (i)
Tenant shall have the right, at its expense, in accordance with all of the provisions of this
Lease, including Article 6, and subject to Owner’s approval (which shall not be unreasonably
withheld), to install the following signs containing only the name or logo of Tenant or JetBlue, or
their Affiliates (but, with respect to JetBlue’s Affiliates, only Affiliates that are airlines):
(A) two signs (collectively, the “Main Lobby Signs”)in the ground floor lobby of the Building on
the Queens Plaza North side (the “Main Lobby”), one on a portion of the eastern wall and one on a
portion of the western wall; (B) one sign (the “27th Street Lobby Sign”) in the ground
floor lobby of the Building on the 27th Street side (the “27th Street
Lobby”), on the wall; (C) one sign (the “Roof Sign”) on the 7th floor roof of the
Building, together with related equipment, mountings, support structures and associated lines,
wiring and cabling; (D) four signs (collectively, the “Building Exterior Signs”), two on the
exterior façade of the Building, one to the left and one to the right of the main entrance on the
Queens Plaza North side of the Building and two on the exterior
façade of the Building, one to the
left and one to the right of the entrance on the
27th Street side of the Building; (E)
two signs (collectively, the “Directional Signs”) on the
exterior façade of the Building, one on
the 28th Street side of the southeast corner of the Building and one on the
27th Street side of the southwest corner of the Building; and (F) one sign (the
“Alternative Sign”) on the exterior façade of the Building above the entrance door to the Main
Lobby but only for as long as the Roof Sign is not permitted by the Governmental Authorities having
jurisdiction over the Roof Sign and no Roof Sign is actually being maintained by Tenant or JetBlue
or any of their Affiliates (but the Alternative Sign shall not reduce the level of natural light
admitted to the Main Lobby through the window above the entrance door except to a de minimis
extent), (ii) any Subtenant (and, if Owner shall recapture any space on the Ground



7









 




Floor, any tenant) shall have the right to be listed on the tenant directory, if any, in the Main
Lobby and to have an identification sign on the northern wall of the Main Lobby, and if the
Subtenant or tenant is on the Ground Floor, that Subtenant or tenant may also have one tasteful
identification sign on its storefront (and may maintain other tasteful window displays), subject to
Owner’s and (with respect to any recaptured Ground Floor space) Tenant’s reasonable approval and
(iii) Owner and its managing agent may have customary identification signs on and in the Building,
the locations and sizes of which shall be subject to Tenant’s reasonable approval.




               (c) If Tenant extends the initial term of this Lease for less than the entire Building
(other than Ground Floor space recaptured by Owner) then (i) Tenant shall no longer have the right
to the Roof Sign (or the Alternative Sign), except that if JetBlue is then a Subtenant Tenant shall
retain the right to the Roof Sign (but not the Alternative Sign, even if the Roof Sign is not
permitted by the Governmental Authorities having jurisdiction over the Roof Sign, subject, however,
to clause (ii)(IV), below) and (ii) Tenant’s other sign rights set forth in Section 35.1(b) shall
continue, except that (A) Tenant shall have the right to only two Building Exterior Signs, one on
the exterior façade of the Building to the left or the right of the main entrance on the Queens
Plaza North side of the Building and one on the exterior façade of the Building to the left or the
right of the entrance on the 27th Street side of the Building (as determined by Tenant
simultaneously with the exercise of Tenant’s extension right and, if not, by Owner), (B) the
27th Street Lobby wall sign shall be shared by the tenants of the tower portion of the
Building in proportion to the rentable square footage leased by those tenants in the tower portion
of the Building, (C) Tenant shall not have the right to approve the identification sign relating to
any recaptured Ground Floor space, and (D) if any tenant of the Building or its Affiliates leases
the same or more rentable square feet in the Building than Tenant and its Affiliates actually
occupy, then (I) Tenant shall lose the right to the sign on either the eastern wall or the western
wall of the Main Lobby (as determined by Tenant simultaneously with the exercise of Tenant’s
extension right and, if not, by Owner), (II) Owner shall have the right to place the signs of that
tenant or its Affiliates on that wall and on the exterior of the Building, including directional
signs (but the right to the Roof Sign (or the Alternative Sign, if applicable) shall be governed by
clauses (i) and (ii)(IV) of this paragraph), (III) Tenant and JetBlue shall have the right, at
Tenant’s or JetBlue’s expense, to have an identification sign (reasonably approved by Owner) on the
northern wall of the Main Lobby of a size and prominence equivalent to tenants (and their
Affiliates) leasing substantially the same rentable square feet in the Building as Tenant or
JetBlue and its Affiliates (but in no event shall the tenant that replaces Tenant on the eastern
wall or the western wall of the Main Lobby have an identification sign on the northern wall larger
or more prominent than Tenant’s or JetBlue’s identification sign on the northern wall) and (IV)
Owner shall have the right to place the name or logo of that tenant and its Affiliates on the
Alternative Sign and, if the Roof Sign is then or thereafter not permitted by the Governmental
Authorities having jurisdiction over the Roof Sign, Tenant shall share equally with all such
tenants and its Affiliates the Alternative Sign, the order from the top being by



8









 




amount of square footage leased or subleased in the Building, but JetBlue shall be higher than any
tenant leasing or subleasing square footage equal to JetBlue.




               (d) Promptly following the execution and delivery by Tenant and JetBlue of a Sublease, JetBlue
shall, and Tenant shall use commercially reasonable efforts to cause JetBlue to, apply for a permit
for the Roof Sign and, to the extent permitted by any Requirement, have the application request
that the permit for that sign continue in effect for the benefit of, and be assignable to, Owner or
Owner’s designee, after Tenant or JetBlue, as the case may be, vacates the Building. If a permit
for the Roof Sign is obtained (i) neither Tenant nor JetBlue shall amend the permit or terminate,
or take any action or fail to take any action which would terminate, the permit (other than as
required by a Requirement), (ii) JetBlue shall (and Tenant shall use commercially reasonable
efforts to cause JetBlue to) promptly erect the sign and any required sign structure in a manner
reasonably acceptable to Owner and subject to all of the provisions of this Lease, including
Article 6, (iii) the sign and sign structure shall be deemed part of the Premises for all purposes
of the Lease and (iv) subject to Owner’s right to have Tenant, at Tenant’s expense, remove the sign
and the sign structure (unless the permit for the Roof Sign continues in effect for the benefit of,
and is assigned to, Owner upon the expiration or earlier termination of this Lease or the JetBlue
Sublease, in which event that sign structure shall not be removed by Tenant), at the expiration or
earlier termination of this Lease or JetBlue’s Sublease, as the case may be, the sign and the sign
structure shall, without payment by Owner to Tenant or JetBlue, become the property of Owner, shall
not be removed by Tenant or JetBlue (but Owner shall not have the right to continue to display
Tenant’s or JetBlue’s name without its consent) and shall be assigned by Tenant and JetBlue to
Owner or Owner’s designee. At the expiration of earlier termination of this Lease, or when any
signage rights are terminated, except as provided in this paragraph, Tenant shall, at its expense,
remove all (or the relevant) signs erected by Tenant or any Subtenant (including JetBlue) and
repair any damage to the Building as a result of installation or removal.



               (e) Nothing contained in this Lease shall give Owner any interest in or right to the name of
Tenant or JetBlue or any of their respective Affiliates, except that Owner may use the Building’s
likeness (including any signs) in advertising or other promotional materials concerning its or its
Affiliates business related to real estate. However, any such use which is other than using the
Building’s likeness (including the signs) to identify the Building as being developed, owned or
managed by Owner or its Affiliates, in which the name or logo of JetBlue or Tenant or their
Affiliates is identifiable, shall require the prior consent of JetBlue or Tenant, as the case may
be.”



          8.
7th
Floor Roof and Building Roof.




               (a) Subject to all of the provisions of this paragraph and the other provisions of the
Lease, during the Term, Tenant shall have the nonexclusive right, at its expense (but without
charge by Owner), to use (i) the portion of the 7th floor roof of the Building shown



9









 





on Exhibit B to this Amendment for the installation of the generator, chiller, HVAC
equipment, switchgear, floor supports and dunnage shown on Exhibit B (or similar
replacements), and (ii) the portion of the Building roof shown on Exhibit D to this
Amendment for the installation of the satellite dishes and antennae shown on Exhibit D (or
similar replacements), and the installation of risers connecting the Premises to that equipment,
provided (x) Tenant shall place those items in as tight an area as is practicable, (y) all of those
items are used in connection with the Premises or in connection with Tenant’s business or the
business of any Subtenant and (z) the items on the
7th floor roof shall be screened in a
manner reasonably acceptable to Owner to block the items on the 7th floor roof from view
if any of those items may be seen from the roof deck (collectively, the “Equipment”).




               (b) Prior to installing the Equipment, the following shall, at Tenant’s expense, be submitted
to Owner for Owner’s approval (which shall not be unreasonably withheld): (i) detailed plans and
specifications for the Equipment and its installation, and an engineer’s report on the affect the
installation and operation of the Equipment shall have on the roof or structural integrity of the
Building; and (ii) a full maintenance contract covering the Equipment, roof and parapet wall
obtained by Tenant from a maintenance company approved by Owner. Notwithstanding any provision of
the Lease to the contrary, any work or repairs performed by Tenant effecting the roof or parapet,
including the installation, repair, maintenance or removal of the Equipment, shall be performed, at
Tenant’s expense, by a contractor designated by Owner.



               (c) Owner may, at its expense, change the location of the Equipment (with minimal disruption
of service but with no interruption of the SOC and with time for permissible testing).



               (d) Tenant shall have access to the roof and during the extended term if Tenant extends the
initial term of the Lease for less than the entire Building (other than Ground Floor space
recaptured by Owner) Tenant’s access to the roof shall be in common with all others to whom Owner
gives access to the roof, but Owner shall not permit any other party access to the Equipment.



               (e) Owner, other tenants in the Building and all others to whom Owner grants such right, shall
have the right to use the roof during the extended term if Tenant extends the initial term of the
Lease for less than the entire Building (other than Ground Floor space recaptured by Owner), but
such use shall not interfere with the use of the Equipment.



               (f) Tenant shall, at its expense, maintain and make all repairs to the Equipment, maintain the
Equipment in good order and condition, comply with all Requirements with respect to the use,
furnishing, installing, maintaining and repair of the Equipment.



10









 





               (g) Tenant shall, at its expense, obtain and keep in force all required permits and
licenses, and the insurance carried by Tenant in accordance with the Lease shall cover the
Equipment.



               (h) Tenant shall (i) not overload the roof and (ii) install, mount, anchor and use the
Equipment in a manner which shall not permit the same to vibrate, and otherwise in a manner
reasonably satisfactory to Owner and its engineer (so that the Equipment shall not interfere with
any other equipment now on the roof or in the Building, and any adjustments in the future to
prevent such interference shall be promptly made by Tenant at Tenant’s expense; but if the
Equipment interferes with any other equipment placed on the roof or in the Building after the
Equipment is placed on the roof, and adjustments which do not adversely affect the Equipment or its
use may be made to prevent interference, Owner may, at Owner’s expense, make those adjustments).



               (i) Owner shall have no obligation, liability or responsibility whatsoever
with respect to the Equipment.



               (j) Tenant shall indemnify, defend and hold harmless Owner from and against any and all
claims, actions, proceedings, damages, losses, liabilities, costs and expenses (including
reasonable attorneys’ fees), and shall make all repairs to the roof, parapet and coping, in
connection with or arising out of the use, furnishing, installation, maintenance and repair of the
Equipment (and Tenant shall, at Tenant’s expense, be responsible for the repair and maintenance of
the portion of the roof, parapet and coping covered by the Equipment and the immediately
surrounding area).



               (k) On or before the last day of the Term, or the date Tenant or any Subtenant ceases
the use of any Equipment, or on the date any Governmental Authority requires the removal of the
Equipment, Tenant shall, at its expense, remove the Equipment (or the portion which is no longer
used), other than the Roof Sign or the Penthouse Sign (which shall be governed by Section 35.1 of
the Lease), resurface any affected areas of the roof, and restore the roof and the Building.



          9. JetBlue Approvals. Subject to all of the provisions of the Lease
(including Article 31.1(c) of the Lease) and, if required under the JetBlue Sublease, Tenant’s consent,
Owner hereby consents to the following during the term (or any extension) of the JetBlue
Sublease:




               (a) the signs shown on Exhibit C to this Amendment (and any changes to the Roof Sign
approved or required by an Governmental Authority), provided the size of each sign is the same or
smaller than the size on the date of this Amendment;



               (b) provided there is no JetBlue Default, the use by JetBlue without additional charge by
Owner, of the land shown hatched on Exhibit K to the Lease, or (if



11









 




applicable) Tenant’s proportionate share, for (i) a construction staging area until April 30, 2012
and (ii) a portable generator during an emergency;




               (c) the use by the Federal Aviation Administration or other Governmental Authority (including,
for these purposes only, foreign governments having jurisdiction over JetBlue), during the term of
the JetBlue Sublease, of portions of the space in the Building leased or subleased by JetBlue to
monitor and regulate the activities of JetBlue (but such use shall not be a sublease or otherwise
provide the Federal Aviation Administration or other Governmental Authority any occupancy rights);



               (d) the use by JetBlue of a portion of the space in the Building leased or subleased by
JetBlue for a 24-hour Systems Operation Center (the “SOC”) (which shall be deemed a Permitted Use);



               (e) if Tenant extends the initial term of the Lease for less than the entire Building (other
than Ground Floor space recaptured by Owner), unless (x) Owner allows JetBlue to use the existing
fuel tank and riser furnished by Barclay’s (and Tenant shall use commercially reasonable efforts to
provide Owner with control over that fuel tank or riser during the extended term) or (y) furnishes
for JetBlue another fuel tank having a capacity of not less than 4,000 gallons and a riser
connecting the tank to JetBlue’s premises, the cost of which shall be included in the Fair Market
Base Rent, provided there is no JetBlue Default and the JetBlue Occupancy Requirement is met, the
right during the extended term for JetBlue to share the usage of Owner’s two existing 8,000 gallon
fuel tanks and associated pumps and distribution equipment (the “Building Fuel Tanks”), on the
following terms: (i) Tenant or JetBlue shall reimburse to Owner from time to time, within 30 days
after Tenant’s and JetBlue’s receipt of an invoice from Owner together with reasonable supporting
documentation, 50 percent of all costs incurred with respect to the use and maintenance of the
Building Fuel Tanks, the use and maintenance of any replacements thereof (but not the cost of
replacement) and the cost to install and maintain any safety equipment and fire protection (Owner’s
share of such costs, as well as the cost to re-fuel the Building Fuel Tanks from time to time,
other than the cost of fuel reimbursed by Tenant or JetBlue pursuant to this paragraph shall be
included in operating expenses chargeable to all tenants of the Building, including Tenant); (ii)
Tenant or JetBlue shall pay for all actual fuel usage by JetBlue, as measured by the flow meters on
the piping leading to, and returning from, JetBlue’s generator equipment, at the per gallon cost
paid by Owner for the then most recent delivery of fuel to the Building, which meters shall, at
Tenant’s or JetBlue’s expense, be installed by Tenant or JetBlue at or prior to the time JetBlue
first connects the Building Fuel Tanks to JetBlue’s generator equipment, and shall thereafter be
maintained in good working order and repair by Tenant or JetBlue (and read by Owner or Owner’s
contractor, at Tenant’s or JetBlue’s expense); (iii) Owner shall install and maintain such safety
equipment and fire protection in the fuel tank storage area as required by applicable Requirements;
(iv) Owner shall endeavor to keep the Building Fuel Tanks filled to not less than 40 percent
capacity at all times, but Owner shall not be liable to Tenant or JetBlue for any failure to fill
the Building



12









 




Fuel Tanks or otherwise maintain same at a 40 percent capacity, or any other failure of either of
the Building Fuel Tanks to operate adequately; (v) subject to the preceding clause (iv), Owner
shall use commercially reasonable efforts to maintain the Building Fuel Tanks in good working order
and in compliance with applicable Requirements; (vi) Tenant and JetBlue shall jointly and severally
be responsible for all sums due Owner under this paragraph and shall jointly and severally
indemnify, defend and hold harmless Owner and Owner’s managing agent, if any, from and against all
actions, proceedings, liabilities, obligations, claims, damages, deficiencies, losses, judgments,
suits, expenses and costs (including court costs and reasonable third-party legal fees and
disbursements for which Owner is or may be liable) arising in connection with or resulting from the
improper or unlawful usage of either of the Building Fuel Tanks or any other act or omission by
Tenant or JetBlue; and (vii) JetBlue shall have the right, at Tenant’s or JetBlue’s expense, to
review, and make reasonable recommendations with respect to, the maintenance, operation and testing
procedures employed by Owner with respect to the Building Fuel Tanks and associated equipment,
including controls, pumps and meters. If additional testing of the Building Fuel Tanks and
ancillary equipment is required by JetBlue, Owner shall cooperate with JetBlue and permit JetBlue
to perform same at Tenant’s or JetBlue’s expense and with a contractor selected by JetBlue and
reasonably acceptable to Owner. Subject to the applicable provisions of the Lease, JetBlue shall
have access to the Building’s oil pump room and oil tank room solely for the purpose of (x) reading
the fuel tank gauges from time to time and inspecting the Building Fuel Tanks and the fuel
distribution equipment and systems, and (y) the Fuel Tank Self-Help (as defined below), provided
that in connection with such access JetBlue (including its employees, contractors and other
representatives) are at all times accompanied by a representative of Owner, whom Owner shall make
available upon prior reasonable notice (except that (A) such accompaniment shall be required in the
case of an emergency only if practicable and (B) such accompaniment shall not be required for such
access, at any given time, by up to five of JetBlue’s employees who are approved for such access by
Owner, provided the names of such approved employees are on a written list (or updated thereof)
prepared by JetBlue and received by Owner at least five Business Days prior to the date of any
desired access). Other than use by JetBlue and Owner (and any of its Affiliates) for its own
purposes as an occupant of the Building, the Building Fuel Tanks may be used only by the operator
of the Building in connection with the operation of the Building generally, but not the specific
requirements of a particular tenant. “Fuel Tank Self-Help,” for purposes of this subparagraph,
means that after (I) JetBlue has determined that the Building Fuel Tanks are below 80 percent of capacity,
(II) JetBlue has notified Owner of such condition, and (III) Owner has not caused the Building Fuel
Tanks to be filled to capacity within 48 hours after its receipt of such notice, then, and in such
event, JetBlue, using commercially reasonable methods, may cause the Building Fuel Tanks to be
filled to capacity. If (1) JetBlue exercises the Fuel Tank Self-Help in accordance with, and
subject to, the preceding sentence, (2) JetBlue gives to Owner a copy of the receipt from the fuel
supplier indicating, in reasonable detail, when and how much fuel oil was delivered to the Building
Fuel Tanks and the actual cost of such fuel oil paid by JetBlue, together with a demand




13









 







for Owner to reimburse to JetBlue the actual cost of such fuel oil paid by JetBlue, (3) Owner fails
to reimburse to JetBlue such actual cost within 30 days after Owner’s receipt of such receipt and
demand and (4) Tenant reimburses JetBlue, Tenant shall be entitled to offset the actual cost of the
fuel oil so paid by Tenant against Tenant’s next due bill for maintenance of the Building Fuel
Tanks;




               (f) if Tenant extends the initial term of the Lease for less than the entire Building
(other than Ground Floor space recaptured by Owner), the maintenance by JetBlue, at its expense, in
accordance with, and subject to, all applicable Requirements, the applicable provisions of the
Lease and such reasonable rules and regulations as Owner may issue, of a conduit, at Owner’s
election, either at a point ending in the loading dock or on the northern face of the Building
adjacent to the land shown hatched on Exhibit K to the Lease, in a location reasonably approved by
Owner, to connect a portable generator for emergency power to only the JetBlue premises or the
Equipment, or portions thereof (except as expressly provided below with respect to Owner’s use),
without any representation or warranty by Owner as to whether such conduit is permitted by
applicable Requirements, and JetBlue’s inability to so install the conduit or to operate the
portable generator shall not relieve or release Tenant or JetBlue from any of its obligations or
liabilities under the Lease, constitute an actual or constructive eviction, or impose any liability
on Owner. Tenant or JetBlue shall, at its sole expense, and in accordance with all applicable
Requirements, remove or cause the removal of the portable generator and the connection to the
Building promptly after the power outage has ended. Tenant shall, or cause JetBlue to, use
commercially reasonably efforts to minimize interference with the use of the loading dock and other
portions of the Building during such times as the portable generator is in use. Tenant and JetBlue
shall jointly and severally indemnify, defend and hold harmless Owner from and against all actions,
proceedings, liabilities, obligations, claims, damages, deficiencies, losses, judgments, suits,
expenses and costs (including court costs and reasonable third-party legal fees and disbursements
for which Owner is or may be liable) arising in connection with or resulting from the use of the
portable generator, other than the use by Owner as provided below. If, during such times that
JetBlue is operating the portable generator, Owner requests permission to use a portion of the
capacity of the portable generator in connection with the operation of the Building, and, in
JetBlue’s reasonable determination, there is excess capacity available for Owner’s use, Tenant
shall, or shall cause JetBlue to, make such excess capacity available for Owner’s use at a
reasonable cost to Owner. Tenant and JetBlue make no representation or warranty with respect to
such use by Owner and Owner shall indemnify, defend and hold harmless Tenant and JetBlue from and
against all actions, proceedings, liabilities, obligations, claims, damages, deficiencies, losses,
judgments, suits, expenses and costs (including court costs and reasonable third-party legal fees
and disbursements for which Tenant or JetBlue is or may be liable) arising in connection with or
resulting from the improper or unlawful use of the portable generator by Owner; and



14









 





               (g) if Tenant extends the initial term of the Lease for less than the entire Building
(other than Ground Floor space recaptured by Owner), provided the JetBlue Occupancy Requirement is
met and there is no JetBlue Default, the right of JetBlue, at JetBlue’s expense, subject to Owner’s
reasonable rules and regulations, to (i) install and maintain a JetBlue badge reader on one
existing turnstile in the Main Lobby and one existing turnstile in the 27th Street
Lobby, with identification signage, reasonably acceptable to Owner, (for so long as Owner maintains
turnstiles), which turnstiles shall not be for JetBlue’s exclusive use and (ii) station one of its
employees (or one employee of an independent contractor employed by JetBlue) at the security desk
in the Main Lobby for so long as Owner maintains a security desk.



          10. The SOC.




               (a) Although the provisions of Section 17.1 of the Lease shall apply to Owner’s access to the
SOC, except in an emergency, if practicable, upon JetBlue’s request and the advanced payment of any
additional costs to be incurred by Owner, Owner shall perform any repairs required or permitted by
Owner in the SOC after Business Hours or on days other than Business Days (but Owner shall not
perform repairs to JetBlue’s equipment in or serving the SOC). In the event of an emergency, if
practicable and JetBlue has provided Owner with an emergency telephone number, Owner shall, at or
promptly after Owner’s entry into the SOC, give JetBlue notice of Owner’s entry by calling the
emergency telephone number.



               (b) The occupancy by JetBlue of the SOC solely to parallel test or otherwise test the SOC
shall not be deemed occupancy of the Premises, or any part thereof, for the purpose of commencing
the payment of Rent under Section 13.3 of the Lease.



          11. JetBlue Incentives.




               (a) Tenant has informed Owner that, subject to the provisions of the Lease, JetBlue, at
JetBlue’s expense, intends to apply for certain Incentives, a zoning variance and a permit to
permit the Roof Sign and a decrease in electricity rates with respect to JetBlue’s occupancy of the
Building (collectively, “JetBlue Incentives”). Owner shall reasonably cooperate with JetBlue in
connection therewith (including the execution and delivery of applications or other documents
required to be executed and delivered by Owner), and shall not publicly oppose JetBlue’s
applications therefor, provided that (i) Owner shall not be required to incur any expense (unless
paid by Tenant or JetBlue to Owner in advance), obligation or liability, (ii) there is then no
JetBlue Default and (iii) the approval of any zoning variance shall not, in Owner’s reasonable
judgment, adversely affect Owner or the Building. If JetBlue shall apply for and receive any
JetBlue Incentives, and any JetBlue Incentives are paid to Owner (by refund, cost reduction or
otherwise), Owner shall endorse over, or otherwise pay, to JetBlue such JetBlue Incentives promptly
following Owner’s receipt.



               (b) In order to obtain a sales tax exemption granted by the New York City Industrial
Development Agency (the “IDA”), JetBlue shall have the right, subject to and in



15









 




accordance with the Lease, to sublease to IDA the entire space subleased by JetBlue from Tenant
provided that immediately thereafter JetBlue subsubleases that entire space from IDA (and, if
required by IDA, to record a memorandum of the subleases, provided those memoranda are removed of
record by Tenant or JetBlue, at its expense, promptly upon expiration of the subleases).




          12. JetBlue Alterations.




               (a) Subject to and in accordance with the Lease, including paragraph 8 of this Amendment,
Owner’s approval of Tenant’s Plans as provided in the Lease, the approval (and requirements) of
Owner’s structural engineer and other consultants and, if required, Tenant’s approval, Owner hereby
approves, in concept, the installation by JetBlue of the following items (all of which may remain
for so long as JetBlue occupies space in the Building): (i) the Equipment; (ii) floor
reinforcements for high density storage units; (iii) staircases between contiguous floors occupied
by JetBlue; (iv) a generator connected to the Building Fuel Tanks as provided in, and subject to,
the provisions of paragraph 9(e) of this Amendment and (v) a new or upgraded wireless network
serving the 2nd floor of the Building and the 8th floor roof deck, provided
that (A) there is then no JetBlue Default, (B) no additional oil tanks shall be installed, (C) the
wireless network shall not interfere with any other network or any other installation in the
Building and (D) all such installations shall be deemed Designated Restricted Work.



               (b) Owner agrees that JetBlue may deliver Tenant’s Plans for Tenant’s Work to be performed by
or on behalf of JetBlue directly to Owner simultaneously with JetBlue’s delivery to Tenant.



               (c) Owner approves the following contractors to perform the initial Tenant’s Work for the
JetBlue premises: Turner Construction, HLW International and Gensler; and agrees that JetBlue may
request Owner’s approval of additional contractors and subcontractors directly from Owner, provided
same have been approved by Tenant.



               (d) If at the time Tenant or JetBlue requests Owner’s approval of Tenant’s Plans for Tenant’s
Work to be performed by or on behalf of JetBlue, Tenant or JetBlue shall, in writing, request
Owner’s decision as to whether items of such Tenant’s Work specifically identified in writing by
Tenant or JetBlue and shown on Tenant’s Plans must be removed at the expiration or earlier
termination of the Lease, Owner shall provide such decision at the time Owner approves Tenant’s
Plans.



          13. 8th Floor Roof Deck. If (a) Tenant shall duly exercise Tenant’s right
to extend the Term for less than the entire Building (other than Ground Floor space recaptured by
Owner), (b) JetBlue shall duly exercise JetBlue’s right to extend JetBlue’s sublease with Tenant
and (c) Tenant, at Tenant’s expense, shall have configured, or shall then reconfigure, the
8th floor of the Building to allow public access to the 8th floor roof deck,
without allowing access to the balance of the
8th floor, in a manner reasonably
acceptable to Owner, Owner shall permit Tenant




16









 







(for as long as the Lease is in effect) and JetBlue (for as long as JetBlue leases or subleases
space in the Building) the nonexclusive right to use the 8th floor roof deck (with other
occupants of the Building and others who are given such right by Owner), subject to the provisions
of the Lease and Owner’s reasonable rules and regulations.




          14. Bus and Shuttle Service. Tenant has informed Owner that JetBlue intends to
petition the appropriate Governmental Authorities for a curb side bus
stop on the 27th
Street side of the Building for use by New York City buses and JetBlue’s airport shuttle for its
employees. Owner shall reasonably cooperate with JetBlue in connection therewith (including the
execution and delivery of applications and other documents required to be executed and delivered by
Owner), and shall not publicly oppose JetBlue’s petition therefor, provided that
(a) Owner shall not be required to incur any expense (unless paid by Tenant or JetBlue to Owner in
advance), obligation or liability, (b) there is then no JetBlue Default, (c) the location of the
bus stop is reasonably acceptable to Owner, (d) New York City buses and JetBlue’s shuttle buses are
not permitted to idle (except for a period of five minutes while it waits for, loads and unloads
passengers) or park in the bus stop or on any other portion of 27th Street, (e) the
operation of JetBlue’s shuttle buses does not interfere with the operation of or access to the
Building, (f) shuttle buses run no more frequently than hourly and (g) in Owner’s reasonable
judgment, the curb side bus stop and the operation of the New York City buses and JetBlue’s shuttle
buses shall not otherwise adversely affect Owner or the Building.




          15.
JetBlue’s Insurance. (a) Section 12.4(g)(i) of the Lease is hereby amended by
adding the following at the end thereof: “provided that if such act or omission is a material
breach of the policy of insurance, the entity committing the act or omission may be precluded from
collecting the insurance proceeds to which that entity may otherwise be entitled (if, in the case
of an omission, that entity had a duty to perform under the insurance policy in the first
instance), but such act or omission shall not preclude any other entity from collecting the
insurance proceeds to which that other entity may be entitled. The provisions of this Section
12.4(g)(i) shall not apply to property insurance policies or workers compensation insurance
policies,”




               (b) Owner acknowledges that insurance policies for JetBlue issued by insurance companies
authorized under the law of the State of New York to do business in New York State that have an
international reputation in the aviation market place as recognized insurance carriers and
suppliers of coverage to the aviation industry which are generally acceptable to commercial
aircraft lenders are acceptable to Owner under Section 12.4 or the Lease. Owner also acknowledges
that Owner shall not be named as an additional insured or loss payee on JetBlue’s insurance
policies covering JetBlue’s personal property or worker’s compensation.



17









 





               (c) Owner acknowledges that JetBlue has a [***] deductible on its property
insurance covering JetBlue’s personal property and subleasehold improvements and that such
deductible is commercially reasonable for the purpose of Section 12.4(k) of the Lease.



          16. Holdover. Provided (a) Tenant has duly exercised Tenant’s right to extend the
Term, (b) JetBlue has duly exercised JetBlue’s right to extend the term of JetBlue’s Sublease and
(c) there is no Event of Default or JetBlue Default, Tenant shall not be in default under the Lease
if at the expiration of the initial term of the Lease Tenant or JetBlue holds over for up to 30
days in any space not covered by Tenant’s extension, provided that Tenant shall pay an amount equal
to the last installment of Base Rent and Additional Rent attributable to such space during such
period.




          17. The JetBlue Sublease. The JetBlue Sublease shall be signed and delivered in escrow
pending receipt of the IDA sales tax exemption and the execution and delivery of the IDA sublease
documents (the “IDA Condition”). Tenant shall promptly give notice to Owner if the IDA Condition is
satisfied or if the JetBlue Sublease terminates. If the IDA Condition is not satisfied on or before
November 15, 2010 (as extended in writing by Tenant and JetBlue) and the JetBlue Sublease
terminates, this Amendment shall remain in full force and effect except the following shall no
longer apply: paragraph 4(9); paragraph 6(a)(ii); paragraph 6(c), except the last sentence shall
remain in effect; paragraph 6(d); the references to JetBlue in paragraph 6(e); paragraph 6(f); the
references to JetBlue and the SOC in paragraph 6(g); the references to JetBlue and Exhibit A in
paragraph 7; the references to JetBlue in paragraph 8; paragraphs 9 through 16; and Exhibits A, D
and E.




          18. Consent of Mortgagee. This Amendment is conditioned on the consent of the
Mortgagee (the “Consent”) and the execution and delivery by the Mortgagee and Tenant of an
amendment of the existing subordination, nondisturbance and attornment between Mortgagee and
Tenant, or a new subordination, nondisturbance and attornment agreement, to include this Amendment
(the “SNDA”; collectively, the “Mortgage Condition”). Promptly following the execution and delivery
of this Amendment by Owner, Tenant and JetBlue, Owner shall request the Consent and the SNDA (but
Owner shall not be obligated to take any other action, or incur any expense, liability or
obligation, to satisfy the Mortgage Condition). Owner shall promptly give notice to Tenant and
JetBlue if the Consent is obtained or denied. If the Mortgage Condition is not satisfied in form
and substance reasonably acceptable to Owner and Tenant on or before November 15, 2010 (as extended
in writing by Owner, Tenant and JetBlue) (a) Owner shall not be obligated to take any action, or
incur any expense, liability or obligation, to satisfy the Mortgage Condition and (b) this
Amendment shall be deemed null and void and of no further force or effect, and neither Owner,
Tenant or JetBlue shall have any further obligation or liability to the other. Any reasonable
out-of-pocket expense reimbursement, and any reasonable fee, imposed by the Mortgagee, and any
reasonable information requested by the Mortgagee, shall be promptly paid or furnished, as the case
may be, by Tenant.





 




			
	[***]	 	Represents  material which has been  redacted
and filed separately  with the Commission pursuant
to a request for confidential treatment  pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended. 



18









 








          19. Representations. Owner and Tenant each represent to the other that (a) the Lease
is unmodified and in full force and effect and (b) as of the date of this Amendment, neither Tenant
nor Owner (i) has given the other written notice of any event that, with the giving of notice or
the passage of time, or both, would constitute an existing Owner Default or an existing Event of
Default, as the case may be and (ii) owes the other any sums under the Lease which are now due and
payable.




          20. Broker. Owner and Tenant each represent to the other that it has not dealt with
any broker in connection with this Amendment other than Tenant’s broker, Jones Lang LaSalle
(“Tenant’s Broker”). Any commission payable to Tenant’s Broker in connection with this Amendment
shall be paid by Tenant pursuant to a separate agreement between Tenant and Tenant’s Broker. If any
claim is made by any broker or other person for a commission or other compensation in connection
with this Amendment, who claims to have dealt with Owner or Tenant, that party shall indemnify,
defend and hold harmless the other from and against that claim and all costs, expenses and
liabilities in connection therewith, including attorneys’ fees and disbursements (but any claim
against Owner by Tenant’s Broker shall be solely Tenant’s responsibility and shall be covered by
Tenant’s indemnity under this paragraph).




          21. Lease in Full Force. Except as amended by this Amendment, the Lease shall remain
in full force and effect according to its terms. Nothing contained in this Amendment shall relieve
or release Tenant from, or waive, any obligation or liability under the Lease, including
responsibility for any act or omission of JetBlue or anyone claiming under or through JetBlue which
shall be in violation of any of Tenant’s obligations under the Lease.




          22. Execution. This Amendment may be executed (a) in any number of counterparts, each
of which, when executed and delivered, shall be an original, but all of which shall together
constitute one and the same instrument and (b) by facsimile signatures.




- Balance of page blank. Signature page follows -




19









 








 






EXHIBIT A

PROHIBITED AIRLINES AND ENTITIES




 






AirTran

American

Delta

Southwest

Spirit

US Airways

Continental

Virgin Group

Republic Holdings

United




 









 





 






EXHIBIT B

7TH FLOOR ROOF PORTION AND EQUIPMENT




 











 









 








 






EXHIBIT C

APPROVED SIGNAGE




 











 









 















 









 













 









 













 









 













 









 













 









 








 






EXHIBIT D

BUILDING ROOF PORTION AND EQUIPMENT




 













 









 







The following equipment list is the Radio and Antenna Equipment (Model types and numbers are for
27-01 Queens Plaza North (LIC):





	 	•	 	1 — Wall Mount Cabinet Rack —  Hammond Mfg. Model#: SWC193520BK1 Overall Dimensions:
38.25h x 21.38w x 26.63d






	 	o	 	(***Recommend substitute with Floor Mount Rack Cabinet for Wall Mount Cabinet Rack.)






	 	•	 	3 — Comtelco VHF BS100U 130.000mhz Antennas
	 
	 	•	 	1 — Antenex YNT4503 450-470mhz 6.5db Gain Directional Antenna
	 
	 	•	 	2 — 24 inch commercial direct TV receiver dish
	 
	 	•	 	2 — Antenna Mounts for BS100U:Model# BSMNT2
	 
	 	•	 	3 — Antenna Masts: 10’ x 1 1⁄2” steel pipe.
	 
	 	•	 	6 — Universal Pipe Mount Brackets: Wireless Solutions Model#: WSUPMB
	 
	 	•	 	Roof Penetration to Wall Mount Cabinet Rack location: Passenger Elevator Machine Room —
Infill Building.






	 	o	 	4” Steel Conduit with Weather Head at Roof.
	 
	 	o	 	Ladder Rack Needed from Roof Penetration — Elevator Machine Room —
to Equipment Rack for cable management.






	 	•	 	Two Penetrations (1 Additional) at Roof with 4” Steel Conduit with Weather Heads.
	 
	 	•	 	200 pair CAT5e from Passenger Elevator Machine Room —
Infill Building to
7th
floor MDF (Avtec System Rack Location).
	 
	 	•	 	4 to 5 Additional Antenna Coaxial Cable Runs installed from Roof to Passenger Elevator
Machine Room — Infill Building for future Radio and Antenna needs.
	 
	 	•	 	Floor Mount Cabinet rack for Radio Equipment.




 









 











     In Witness Whereof, Owner and Tenant have duly executed this Amendment as of the date of this
Amendment.



	 	 	 	 	 	 	 	 	 	 	 

	JetBlue hereby agrees to the provisions of this	 	 	 	Brause Plaza North LLC	 	 
	Amendment relating to JetBlue, and any obligations	 	 	 	 	 	 	 
	or liabilities of JetBlue under those provisions.	 	 	 	By:	 	/s/ David Brause	 	 
	 

	 	 	 	 	 	 	 	 

Name: David Brause
	 	 
	 

	 	 	 	 	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	JetBlue Airways Corporation	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ David James Barger	 	 	 	Metropolitan Life Insurance Company	 	 
	 

	 	 

Name: David James Barger
	 	 	 	 	 	 	 	 
	 

	 	Title: CEO & President
	 	 	 	By:
	 	/s/ Maria Morris
 

Name: Maria Morris
	 	 
	 

	 	 	 	 	 	 	 	Title: EVP Technology & Operations	 	 







20











 








 






EXHIBIT U

OMITTED PRIOR TO EXECUTION




 








 









 








 






EXHIBIT V

SALES TAX LETTER AGREEMENT




 






JETBLUE AIRWAYS CORPORATION

27-01 QUEENS PLAZA NORTH

LONG ISLAND CITY, NEW YORK 11101




                    ,
 20      




Metropolitan Life Insurance Company

MetLife Lease Administration

c/o Jones Lang LaSalle Americas, Inc.

501 Grant Street, Suite 925

Pittsburgh, PA 15259

Attention: Facilities Lease Administration





Re: A purchase order, bill of sale, invoice, contract, lease, sublease, license or
sublicense (collectively, “Agreement”) entered into between Metropolitan Life
Insurance Company (“Vendor”) and JetBlue Airways Corporation (“Agent”), as agent for
and on behalf of the New York City Industrial Development Agency (“IDA” or “Agency”)
in connection with the construction of renovations and improvements at 27-01 Bridge
Plaza North, Long Island City, New York 11101 (“Project”) or in connection with
purchases and/or leases of (and maintenance, service or repair contracts relative
to) machinery, equipment, furniture, furnishings and other items of personal
property to be used at the Project


Gentlemen:




     In order for the Agreement set forth as or identified on Exhibit A to be exempt from
the sales and use tax levied by the State and City of New York, the Agency requires that the
language annexed as Exhibit B (“Requisite Contract Language”) be included in the Agreement.
The Agent’s exemption from the sales and use tax is subject to the terms and conditions set forth
in the Letter of Authorization for Sales Tax Exemption of the Agency annexed as Exhibit C,
and the New York State Department of Finance Form ST-60 “IDA Appointment of Project or Agent”
annexed as Exhibit D.



 









 





     Vendor and Agent hereby agree that the Requisite Contract Language is hereby incorporated by
reference into the Agreement.



	 	 	 	 	 
	 	Very truly yours,





JETBLUE AIRWAYS CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Agreed:




Metropolitan Life Insurance Company




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Cc: Metropolitan Life Insurance Company

9797 Springboro Pike

Dayton, OH 45448

Attention: VP, Corporate Real Estate






Metropolitan Life Insurance Company

1 MetLife Plaza

27-01 Queens Plaza North

Long Island City, NY 11101

Attention: Chief Counsel, General Corporate Law









 









 








EXHIBIT A TO EXHIBIT V

THE AGREEMENT









 









 









EXHIBIT B TO EXHIBIT V

REQUISITE CONTRACT LANGUAGE




[IF WITH RESPECT TO FACILITY IMPROVEMENTS]





“This [purchase order, bill of sale, invoice, contract, lease,
sublease, license or sublicense] is entered into with or presented
to [insert name and address of vendor (the “Vendor”)] by JetBlue
Airways Corporation, a Delaware corporation (the “Agent”), as agent
for and on behalf of the New York City Industrial Development Agency
(the “IDA”), in connection with, from time to time, the construction
of renovations and improvements at the Project Premises (Facility
Improvements) (as referred to in the attached Letter of
Authorization for Sales Tax Exemption) (the above being part of the
“Project”). This [purchase order, bill of sale, invoice, contract,
lease, sublease, license or sublicense] shall be exempt from the
sales and use tax levied by the State of New York and The City of
New York subject to and in accordance with the terms and conditions
set forth in the attached Letter of Authorization for Sales Tax
Exemption of the Agency, and the Agent hereby represents that this
[contract, agreement, invoice, bill or purchase order] is in
compliance with the terms of the Letter of Authorization for Sales
Tax Exemption



[OR, IF WITH RESPECT TO FACILITY EQUIPMENT]





“This [purchase order, bill of sale, invoice, contract, lease,
sublease, license or sublicense] is entered into with or presented
to [insert name and address of vendor (the “Vendor”)] by JetBlue
Airways Corporation, a Delaware corporation (collectively “Agent”),
as agent for and on behalf of the New York City Industrial
Development Agency (the “IDA”), in connection with, from time to
time, purchases and/or leases of (and maintenance, service or repair
contracts relative to) machinery, equipment, furniture, furnishings
and other items of personal property (including computer hardware
and software, but excluding ordinary office supplies such as
pencils, paper clips and paper) to be used at the Project Premises
(Facility Equipment) (as referred to in the attached Letter of
Authorization for Sales Tax Exemption) (the above being part of the
“Project”). This [purchase order, bill of sale, invoice, contract,
lease, sublease, license or sublicense] shall be exempt from the
sales and use tax levied by the State of New York and The City of
New York subject to and in accordance with the terms and conditions
set forth in the attached Letter of Authorization for Sales Tax
Exemption of the Agency, and the Agent hereby represents that this
[contract, agreement, invoice, bill or purchase order] is in
compliance with the terms of the Letter of Authorization for Sales
Tax Exemption



[AND, IN EITHER CASE, ALL OF THE FOLLOWING]





 












 






	 	 	 	The sales tax exemption provided with respect to this [purchase
order, bill of sale, invoice, contract, lease, sublease, license or
sublicense] shall only be available for the Project, and the vendor,
lessor or contractor so acknowledges and covenants.
	 
	 	 	 	This [purchase order, bill of sale, invoice, contract, lease,
sublease, license or sublicense] is non-recourse to the IDA, and the
IDA shall not be directly, indirectly or contingently liable or
obligated hereunder in any manner or to any extent whatsoever. The
IDA may assign its interest in this [purchase order, bill of sale,
invoice, contract, lease, sublease, license or sublicense] to the
Agent without the consent of any other person.
	 
	 	 	 	The [Company or Agent] has provided the Vendor with a copy of an
executed New York State Department of Finance Form ST-60 “IDA
Appointment of Project or Agent” to evidence that the Agency has
appointed the Agent as its agent. The Vendor must retain in its
records a copy of the Letter of Authorization for Sales Tax
Exemption, the completed Form ST-60 and the [contract, agreement,
invoice, bill or purchase order] as evidence that the Vendor is not
required to collect sales or use tax in connection with this
[contract, agreement, invoice, bill or purchase order].




This [contract, agreement, invoice, bill or purchase order] is nonrecourse to the Agency, and the
Agency shall not be directly or indirectly or contingently liable or obligated hereunder in any
manner or to any extent whatsoever, and the Agent shall be the sole party liable hereunder. By
execution or acceptance of this [contract, agreement, invoice, bill or purchase order], the Vendor
hereby acknowledges and agrees to the terms and conditions set forth in this paragraph.”












 









 








EXHIBIT C TO EXHIBIT V

LETTER OF AUTHORIZATION FOR

SALES TAX EXEMPTION OF THE AGENCY









 









 








EXHIBIT D TO EXHIBIT V

NEW YORK STATE DEPARTMENT OF FINANCE

FORM ST-60 “IDA APPOINTMENT OF PROJECT OR AGENT”






 









 








 






EXHIBIT W

LOBBY SIGNS




 











 









 








 






EXHIBIT X

INTERIOR LOBBY SIGN




 









 









 








 






EXHIBIT Y

ROOFTOP SIGN




 









 









 








 






EXHIBIT Z

BUILDING ENTRY PLAQUE




 









 









 








 






EXHIBIT AA

DIRECTIONAL PLAQUE




 










 









 









 






EXHIBIT BB

EXTERIOR FAÇADE SIGN




 







 









 






TABLE OF CONTENTS




	 	 	 	 	 
	CAPTION	 	PAGE	 
	Article 1 Business Terms, Premises, Term, Rents
	 	 	1	 
	Article 2 Use
	 	 	12	 
	Article 3 Failure To Give Possession
	 	 	27	 
	Article 4 Condition of Premises
	 	 	29	 
	Article 5 Adjustments Of Rent
	 	 	37	 
	Article 6 Letter Of Credit/Security Deposit
	 	 	50	 
	Article 7 Subordination, Notice To Lessors And Mortgagees
	 	 	52	 
	Article 8 Quiet Enjoyment
	 	 	56	 
	Article 9 Assignment And Subletting
	 	 	56	 
	Article 10 Compliance With Requirements
	 	 	88	 
	Article 11 Insurance
	 	 	92	 
	Article 12 Rules And Regulations
	 	 	97	 
	Article 13 Alterations
	 	 	98	 
	Article 14 Tenant’s Property
	 	 	109	 
	Article 15 Repairs And Maintenance
	 	 	111	 
	Article 16 Electricity
	 	 	114	 






 









 






	 	 	 	 	 
	CAPTION	 	PAGE	 
	Article 17 Heat, Ventilating And Air-Conditioning
	 	 	124	 
	Article 18 Landlord’s Other Services
	 	 	130	 
	Article 19 Access, Alterations In Building Facilities, Name
	 	 	144	 
	Article 20 Notice Of Accidents
	 	 	148	 
	Article 21 Non-Liability And Indemnification
	 	 	149	 
	Article 22 Destruction Or Damage
	 	 	151	 
	Article 23 Eminent Domain
	 	 	155	 
	Article 24 Surrender; Holdover
	 	 	157	 
	Article 25 Conditions Of Limitation
	 	 	159	 
	Article 26 Re-Entry By Landlord
	 	 	162	 
	Article 27 Damages
	 	 	163	 
	Article 28 Waiver
	 	 	165	 
	Article 29 No Other Waivers Or Modifications
	 	 	166	 
	Article 30 Curing Tenant’s Defaults, Additional Rent
	 	 	167	 
	Article 31 Broker
	 	 	168	 
	Article 32 Notices
	 	 	170	 
	Article 33 Estoppel Certificate
	 	 	173	 
	Article 34 Arbitration
	 	 	173	 
	Article 35 No Other Representations, Construction, Governing Law, Consents
	 	 	175	 
	Article 36 Parties Bound
	 	 	176	 
	Article 37 Certain Definitions And Construction
	 	 	177	 
	Article 38 Adjacent Excavation And Construction; Shoring; Vaults
	 	 	177	 
	Article 39 Jetblue Competitor Restrictions
	 	 	178	 
	Article 40 Renewal Option
	 	 	179	 
	Article 41 Roof Rights
	 	 	187	 






viii









 






	 	 	 	 	 
	CAPTION	 	PAGE	 
	Article 42 Contraction, Expansion; 5th Floor Contraction
And Partial Surrender Options
	 	 	195	 
	Article 43 Existing Superior Lease
	 	 	208	 
	Article 44 Right of First Offer
	 	 	212	 
	Article 45 Signage; Security Desk
	 	 	218	 
	Article 46 Intentionally Omitted
	 	 	225	 
	Article 47 Supplemental Space Option
	 	 	225	 
	Article 48 Additional Space Option
	 	 	234	 
	Article 49 Self-Help
	 	 	242	 
	Article 50
	 	 	245	 
	Article 51 Landlord Cooperation
	 	 	245	 
	Article 52 Labor Harmony
	 	 	246	 






LIST OF EXHIBITS




	 	 	 

	Exhibit A
	 	Description of Land
	Exhibit B-1
	 	Floor Plans of the 5th Floor
	Exhibit B-2
	 	Floor Plans of the 6th Floor
	Exhibit B-3
	 	Floor Plans of the 7th Floor
	Exhibit B-4
	 	Storage Space - Lower Level
	Exhibit B-5
	 	Storage Space - 2nd Floor
	Exhibit B-6
	 	Initial SOC
	Exhibit C
	 	Prohibited Uses
	Exhibit D
	 	List of Contractors, Construction Managers, Mechanics and
	 
	 	Subcontractors Approved by Landlord
	Exhibit E
	 	Form of Subtenant SNDA
	Exhibit F
	 	Rules and Regulations






ix









 






	 	 	 

	Exhibit G
	 	Cleaning Specifications
	Exhibit H
	 	Definitions
	Exhibit I
	 	Rentable Square Feet and Useable Area
	Exhibit J
	 	Real Estate Board of New York Recommended Method of Floor
	 
	 	Measurement
	Exhibit K
	 	HVAC Performance Specifications
	Exhibit L
	 	Negative Covenants in Other Leases
	Exhibit M
	 	Placement of Tenant Generator Equipment
	Exhibit N
	 	Location of Connection for Portable Generator
	Exhibit O
	 	After-Hours Rates for HVAC
	Exhibit P
	 	Omitted Prior to Execution
	Exhibit Q
	 	Price List for Conference Center and Roof Deck
	Exhibit R
	 	Approved Arbitrators
	Exhibit S
	 	Example of Surrender Payment
	Exhibit T
	 	Existing Superior Lease
	Exhibit U
	 	Omitted Prior to Execution
	Exhibit V
	 	Sales Tax Letter Agreement
	Exhibit W
	 	Lobby Signs
	Exhibit X
	 	Interior Lobby Sign
	Exhibit Y
	 	Rooftop Sign
	Exhibit Z
	 	Building Entry Plaque
	Exhibit AA
	 	Directional Plaque
	Exhibit BB
	 	Exterior Façade Sign






x









 






     This Index is included only as a matter of convenience of reference and shall not be deemed or
construed in any way to define or limit the scope of the following lease or the intent of any
provision thereof.




xi