Exhibit 10.5(a)


 


ROCK-MCGRAW, INC.


 


LANDLORD


 


TO


 


SOCIÉTÉ GÉNÉRALE


 


TENANT


 


LEASE


 


Dated October 29th,
1993


 


 


1221 Avenue of the
Americas


 

















 


TABLE
OF CONTENTS


 


	
  Article

  	
   

  	
   

  	
  Page

  
	
    1.

  	
   

  	
  Demise of Premises, Term
  and Rent

  	
  1

  
	
    2.

  	
   

  	
  Completion and Occupancy

  	
  3

  
	
    3.

  	
   

  	
  Use of Premises

  	
  4

  
	
    4.

  	
   

  	
  Fixtures

  	
  7

  
	
    5.

  	
   

  	
  Electric Current and Water

  	
  8

  
	
    6.

  	
   

  	
  Various Covenants

  	
  11

  
	
    7.

  	
   

  	
  Assignment, Mortgaging, Subletting, etc

  	
  17

  
	
    8.

  	
   

  	
  Changes or Alterations by Landlord

  	
  19

  
	
    9.

  	
   

  	
  Damage by Fire, etc

  	
  20

  
	
  10.

  	
   

  	
  Condemnation

  	
  23

  
	
  11.

  	
   

  	
  Compliance with Laws

  	
  25

  
	
  12.

  	
   

  	
  Accidents to Sanitary and Other Systems

  	
  26

  
	
  13.

  	
   

  	
  Subordination

  	
  28

  
	
  14.

  	
   

  	
  Notices

  	
  29

  
	
  15.

  	
   

  	
  Conditions of Limitation

  	
  29

  
	
  16.

  	
   

  	
  Re-entry by Landlord

  	
  31

  
	
  17.

  	
   

  	
  Damages

  	
  32

  
	
  18.

  	
   

  	
  Waivers by Tenant

  	
  34

  
	
  19.

  	
   

  	
  Tenant’s Removal

  	
  34

  
	
  20.

  	
   

  	
  Elevators, Cleaning, Services, etc

  	
  35

  
	
  21.

  	
   

  	
  Lease Contains All Agreements - No Waivers

  	
  38

  
	
  22.

  	
   

  	
  Parties Bound; Exculpation

  	
  39

  
	
  23.

  	
   

  	
  Curing Tenant’s Defaults - Additional Rents 

  	
  40

  
	
  24.

  	
   

  	
  Adjustments for Changes in Landlord’s Costs and
  Expenses

  	
  41

  



 


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  Article

  	
   

  	
   

  	
  Page

  
	
  25.

  	
   

  	
  Miscellaneous

  	
  53

  
	
  26.

  	
   

  	
  Signage and Information Desk

  	
  59

  
	
  27.

  	
   

  	
  Brokerage Commission

  	
  61

  
	
  28.

  	
   

  	
  Quiet Enjoyment

  	
  61

  
	
  29.

  	
   

  	
  Hazardous Substances

  	
  61

  
	
  30.

  	
   

  	
  Service Option

  	
  62

  
	
  31.

  	
   

  	
  Option Space

  	
  65

  
	
  32.

  	
   

  	
  Renewal Options

  	
  71

  
	
  33.

  	
   

  	
  Work by Tenant

  	
  76

  
	
  34.

  	
   

  	
  Early Possession

  	
  81

  
	
  35.

  	
   

  	
  Subletting

  	
  81

  
	
  36.

  	
   

  	
  Landlord’s Work

  	
  87

  
	
  37.

  	
   

  	
  Use Areas

  	
  88

  
	
  38.

  	
   

  	
  Right of First Offer

  	
  94

  



 


	
  RULES AND REGULATIONS

  
	
  EXHIBIT A – PREMISES

  
	
  EXHIBIT B – FLOOR PLANS

  
	
  EXHIBIT C – THE LAND

  
	
  EXHIBIT D – APPLICABLE FIXED RENTAL RATE

  
	
  EXHIBIT E – FORM OF NON-DISTURBANCE AGREEMENT FOR
  UNDERLYING MORTGAGES

  
	
  EXHIBIT F – FORM OF NON-DISTURBANCE AGREEMENT FOR
  UNDERLYING LEASES

  
	
  EXHIBIT G – CLEANING SPECIFICATIONS

  
	
  EXHIBIT H – AIR CONDITIONING SPECIFICATIONS

  
	
  EXHIBIT I – FORM OF ESCALATION STATEMENT

  



 


ii

















 


	
  EXHIBIT J – TENANT’S SIGNAGE

  
	
  EXHIBIT K – FORM OF INFORMATION DESK AGREEMENT

  
	
  EXHIBIT L – FIRST OPTION SPACE

  
	
  EXHIBIT M – SQUARE FOOTAGE OF FLOORS 21 THROUGH 25

  
	
  EXHIBIT N – SETBACK AREA

  
	
  EXHIBIT O – SKETCHES OF SETBACK EQUIPMENT

  
	
  EXHIBIT P – RESTRICTED SETBACK AREA

  
	
  EXHIBIT Q – LOCATION OF TELECOMMUNICATIONS SHAFT
  SPACE

  
	
  EXHIBIT R – LOCATION OF ELECTRIC SHAFT SPACE

  
	
  EXHIBIT S – LOCATION OF FUEL PIPE SHAFT SPACE

  
	
  EXHIBIT T – OFFER SPACE

  



 


iii

















 


Lease, dated as of October 29th, 1993, between
ROCK-McCRAW, INC., a New York
corporation, having an office at 1230 Avenue of the Americas, New York, N.Y.
10020 (the “Landlord”), and SOCIÉTÉ GÉNÉRALE, a corporation organized and existing under the laws of the
Republic of France, having an office at No. 29 Boulevard Haussman, Paris,
France (the “Tenant”),


 


WITNESSETH:


 


ARTICLE ONE


Demise of
Premises, Term and Rent


 


1.1           The Landlord does hereby lease and
demise to the Tenant, and the Tenant does hereby hire and take from the
Landlord, subject and subordinate to the Qualified Encumbrances (as hereinafter
defined) and upon and subject to the provisions of this Lease, for the term
hereinafter stated, the spaces designated on Exhibit A
attached hereto and substantially as shown hatched on the diagrams attached hereto
as Exhibit B in the building
known as 1221 Avenue of the Americas (the “Building”), situated
upon a plot of land (the “Land” and,
together with the Building, the “Real Property”)
in the Borough of Manhattan, New York, N.Y. as more particularly described in Exhibit C attached hereto, together with
all fixtures, equipment, improvements, installations and appurtenances which at
the commencement of or during the term of this Lease are thereto attached
(except items not deemed to be included therein and removable by the Tenant as
provided in Article Four); which spaces, fixtures,
equipment, improvements, installations and appurtenances are sometimes called
the “Premises”.


 


1.2           The term of this Lease shall commence
on the date of this Lease (subject to Article Two)
(such date for the commencement of the term of this Lease being the “term  commencement date”) and shall end on September 30, 2013
or on such earlier date upon which the term may expire or be terminated
pursuant to any of the conditions of limitation or other provisions of this
Lease or pursuant to law; provided, that the Tenant shall have the right,
exercisable upon twelve (12) months prior notice, to terminate this Lease with
respect to those portions of the Premises on the C-2 level of the Building.


 


1.3           The Premises shall be used for the
following, but no other, purpose, namely: executive, clerical, general and
administrative offices, including lawful activities incidental thereto.


 


1.4           The rent reserved under this Lease
for the term of this Lease shall consist of (a) fixed rent, at the annual rates
per


 


1

















 


rentable square foot set
forth in Exhibit D attached
hereto (“Fixed Rent”), payable
in equal monthly installments in advance on the first day of each and every
calendar month of the term of this Lease for which Fixed Rent is reserved as
aforesaid (except that, if the term commencement date shall be other than the
first day of a calendar month, the first monthly installment of Fixed Rent,
apportioned for the part month in question, shall be payable on the term
commencement date), plus (b) the Additional Rent payable as provided in this
Lease; all to be paid to the Landlord, at its office as set forth above, or at
such other place or places as the Landlord shall designate to the Tenant, in
lawful money of the United States of America. For purposes of this Lease, “Additional Rent” shall mean any and all
costs, expenses, charges, amounts or sums payable to the Landlord by the Tenant
pursuant to this Lease other than Fixed Rent.


 


1.5           The Tenant shall pay Fixed Rent and
Additional Rent (collectively “Rent”) as and
when the same shall become due and payable as provided in this Lease and
without setoff or deduction and, except as otherwise expressly provided in this
Lease, without demand therefor and without any abatement. The Tenant shall
keep, observe and perform, and permit no violation of, each and every provision
contained in this Lease on the part of the Tenant to be kept, observed and
performed.


 


1.6           In determining the rentable area and,
where applicable, the useable area of the Building or any portion thereof
pursuant to any provision of this Lease, the rentable area or useable area
thereof or such portion, as the case may be, shall be the rentable area or
useable area thereof in square feet determined in accordance with the Standard
Method of Floor Measurement for Office Buildings approved by The Real Estate
Board of New York, Inc., which became effective on January 1, 1987, assuming a
20% loss factor from rentable to useable (the “Measurement
Standard”). The parties stipulate for all purposes of this Lease
that the rentable square foot area of the spaces enumerated on Exhibit A and Exhibit M hereto (a) shall be as set forth on Exhibit A and Exhibit M hereto, (b) has been determined in accordance with
the Measurement Standard and (c) shall not be changed by future remeasurement
or measurement standard, but only by actual increase or decrease in the space
leased hereunder. The parties further agree that the rentable square foot area
of the First Option Space (as hereinafter defined) shall be determined in
accordance with the Measurement Standard.


 


1.7           The term “Qualified Encumbrances” means (a) matters of record
affecting the Premises, Building or Land on the date of this Lease or hereafter
approved by the Tenant, which approval shall not be unreasonably withheld, (b)
the underlying mortgages and underlying leases to which this Lease is
subordinate pursuant to Article Thirteen, (c)
any declaration of restrictions or other document in respect of the transfer of
use of development rights,


 


2

















 


(d) any declaration or
other document which subjects all or any portion of the Land and/or the
Building to a condominium regime, and (e) any preservation or similar easement,
declaration or agreement containing covenants, restrictions or agreements in
respect of the maintenance of the Building and/or the Land as a landmark site
with or held by a governmental agency or an entity designated or accepted by a
governmental agency (each, a “Preservation Agreement”).
To the Landlord’s actual knowledge, without independent investigation, there
are no matters of record affecting the Premises, Building or Land which are not
set forth in that certain certificate for title insurance No. 9201-00487 dated
May 19, 1992 issued by Chicago Title Insurance Company.


 


ARTICLE TWO


Completion and
Occupancy


 


2.1           The Tenant has examined and shall
accept the Premises in their existing condition and state of repair and
understands that no work is to be performed by the Landlord in connection
therewith except as provided in Section
36.1. The Landlord, either through its own
employees or through a contractor or contractors to be engaged by it for such
purpose, will proceed with due dispatch, subject to delay by causes beyond its
reasonable control and Tenant Delay (as hereinafter defined), to do all of the
work the Landlord is required to do by the terms of this Lease during regular
working hours and will exercise all reasonable efforts to complete all of such
work not later than (a) November 1, 1993 with respect to the portion of the
Premises on the 10th Floor of the Building and (b) December 1, 1993 with
respect to the portion the Premises on the 11th Floor of the Building. If the
Landlord is required by this Lease to do any such work without expense to the
Tenant and the cost of such work is increased due to any Tenant Delay, the
Tenant shall pay to the Landlord an amount equal to such increase in cost. As
used in this Lease, “Tenant Delay” shall
mean a delay caused by any act or omission of the Tenant, any affiliate thereof
or their respective agents, officers, partners, directors, contractors,
employees, licensees or invitees, including, without limitation, delays due to
changes in or additions to any work to be done by the Landlord or delays in
submission of information, approving working drawings or estimates or giving
authorizations or approvals.


 


2.2           If any portion of the Premises shall
not be available for possession by the Tenant on the specific date hereinabove
designated for the availability thereof for any reason, then this Lease shall
not be affected thereby; it being understood that the Tenant shall have no
claim against the Landlord, and the Landlord shall have no liability to the
Tenant, by reason of any such postponement of said specific date. The parties
to this Lease expressly provide that, if the Premises are not available for
possession by the Tenant on the specific date hereinabove designated for the
commencement of the term hereof, the Tenant, except with the consent of the
Landlord, shall not be entitled to


 


3

















 


possession of the
Premises until the same is delivered to the Tenant by the Landlord and there
shall be no abatement of Rent by reason thereof, and the Tenant shall not have
any claim against the Landlord nor any right to rescind this Lease, and the
Landlord shall have no liability to the Tenant, by reason thereof. The
foregoing Section  2.2
shall constitute “an express provision to the contrary” as such phrase is used
in Section 223-a of the Real Property Law of the State of New York and shall
constitute a waiver of the Tenant’s rights pursuant to such Section 223-a and any other law of like
import now or hereafter in force.


 


2.3           Unless the Tenant notifies the
Landlord to the contrary before the earlier of (a) thirty (30) days after the
date on which the Tenant takes possession of any part of the Premises and (b)
the date on which the Tenant commences the Tenant Work (as hereinafter defined)
in such part of the Premises, the Tenant, by taking possession of such part of
the Premises, shall be conclusively deemed to have agreed that the Landlord, up
to the time of such possession, had performed all of its obligations under this
Lease with respect to such part and that such part, except for latent defects
and except for minor details of construction, decoration and mechanical
adjustment referred to above, was in satisfactory condition as of the date of
such possession. If the Tenant so notifies the Landlord and the Landlord had
not performed such obligations, the Landlord shall promptly commence and
diligently proceed with the performance thereof in such a manner as will not
unreasonably interfere with the Tenant’s Work,


 


ARTICLE THREE


Use of Premises


 


3.1           The Tenant shall not, except with the
prior consent of the Landlord, use, or suffer or permit the use of, the
Premises or any part thereof for any purpose other than the uses permitted in Section 1.3, provided, that the portions of the Premises
which are identified as toilets or utility areas, if any, shall be used by the
Tenant only for the purposes for which they are designed and the portions of
the Premises which are identified as storage areas, if any, shall be used only
for storage purposes.


 


3.2           The Tenant shall not:


 


(a)           use, or suffer or permit the use of,
the Premises or any part thereof in any manner or for any purpose or do, bring
or keep anything, or suffer or permit anything to be done, brought or kept,
therein (including, without limitation, the installation or operation of any
electrical, electronic or other equipment) which is unlawful or in
contravention of the Certificate of Occupancy for the Building; or


 


(b)           do, or suffer or permit the doing of,
anything in the Premises or in connection with the Tenant’s business or


 


4














advertising which, in the
reasonable judgment of the Landlord, will, to more than a de
minimis extent, be prejudicial to the
business or reputation of the Landlord, the Building or Rockefeller Center or
reflect unfavorably on the Landlord, the Building or Rockefeller Center or
confuse or mislead the public as to any connection or relationship between the
Landlord and the Tenant.


 


The Landlord acknowledges
that (1) commercial and investment banking, (2) asset management, (3) issue,
placing and trading of financial instruments, (4) specialized financing and (5)
investing in the equity of industrial and commercial companies are not
businesses which are prejudicial to the business of the Landlord or the
reputation of the Landlord, the Building or Rockefeller Center or reflect
unfavorably on the Landlord, the Building or Rockefeller Center.


 


3.3           Unless otherwise specifically
provided in this Lease, the Tenant will not use, or suffer or permit the use
of, the Premises or any part thereof for any of the following purposes: (a)
manufacturing of any kind, (b) the business of broadcasting to the general
public by wire or wireless of any programs or pictures of any sort, or for the
sale of apparatus or devices connected with the business of such broadcasting,
(c) the retail sale of any item whatsoever except to the extent customarily
sold by financial or financial service institutions and not involving regular
and consistent direct patronage of the general public, (d) an auction of any
kind other than an auction of financial instruments or products, or (e) except
as provided in Section  3.4, the preparation, dispensation or
consumption of food or beverages.


 


3.4           The Landlord agrees that parts of the
Premises may be used as a kitchen, pantry or executive dining room and for the
installation and operation of food and beverage vending machines for the
employees and guests of the Tenant (but not open to the general public) upon
the condition in each case that: (1) no food or beverages will be kept or
served in the Premises in a manner or under any conditions which shall be the
occasion for fumes or odors being emitted from, or detectable outside of, the
Premises, (2) such parts of the Premises shall be at all times maintained by
the Tenant in an clean and sanitary condition and free of refuse (including use
of extermination services whenever required), (3) the Tenant will keep the
plumbing and sanitary systems and installations serving such parts of the
Premises to the points they connect with the main vertical risers and stacks of
the Building in a good state of repair and operating condition, (4) except in a
kitchen, no cooking or other preparation of food (other than the heating of
precooked foods and beverages) shall be done in the Premises and (5) no kitchen
shall be used unless it is equipped with all equipment (collectively, “Kitchen Equipment”) required by Requirements or reasonably required by the
Landlord for safety, sanitary operation and ventilation or customarily required
by owners of first-class office buildings in midtown Manhattan of


 


 


5

















 


similar size, character
and operation, including, without limitation, ventilating hoods, duct work,
risers, stacks, plumbing and sanitary systems and range hood exhaust systems
(including flues and related fans). Unless required by Requirements or the
provisions of this Lease, once the Kitchen Equipment has been installed in
accordance with plans approved by the Landlord, the Tenant shall not be
required to relocate the flue or add any bracing to the floor by reason of the
Kitchen Equipment unless the Landlord bears the cost thereof. Kitchen Equipment
shall be installed by the Tenant at its expense (and all work and actions in
connection therewith shall be subject to the provisions of this Lease,
including, without limitation, Article  Six), and the Tenant, at its expense,
shall keep all Kitchen Equipment (including any related fans and all
connections between the Kitchen Equipment and such fans) clean and in a good
state of repair and operating condition. Within sixty (60) days after
commencing operation of any kitchen in the Premises, the Tenant shall establish
a maintenance schedule for the cleaning of all ventilating hoods over ranges
and cooking equipment and duct work and risers, including any related fans (the
“Exhaust System”), and
submit such maintenance records with respect to the Exhaust System to the
building manager within 10 days after request at all times during the term of
this Lease.


 


3.5           If any governmental license or permit
shall be required for the proper and lawful conduct of any business or other
activity carried on in the Premises and, if the failure to secure such license
or permit would adversely affect the Landlord, the Tenant shall promptly
procure and thereafter maintain such license or permit, submit the same to
inspection by the Landlord, and comply with the terms and conditions thereof.


 


3.6           Neither the Tenant nor any occupant
of the Premises shall use the words “Rockefeller”,
“Center” or “Radio City”, or any
combination or simulation thereof, for any purpose whatsoever, including (but
not limited to) as or for any corporate, firm or trade name, trademark or
designation or description of merchandise or services, except that the
foregoing shall not prevent the use, in a conventional manner and without
emphasis or display, of the words “Rockefeller
Center” and/or, where applicable, “Rockefeller
Plaza” as part of the Tenant’s business address. Neither the Tenant
nor any occupant of the Premises shall use the name of the Building or the name
of the entity for which the Building is named or any part or abbreviation
(including, without limitation, initials) of either such name except that the
foregoing shall not prevent the use of the name of the Building or any part thereof,
in a conventional manner and without emphasis or display, as a part of the
Tenant’s or such occupant’s business address or by reference in the ordinary
course of its business.


 


6

















 


ARTICLE FOUR


Fixtures


 


4.1           All fixtures, equipment, improvements and
installations (“Fixtures”) attached to, or built
into, the Premises at the commencement of or during the term of this Lease,
whether or not installed at the expense of the Tenant or by the Tenant, shall
be and remain part of the Premises and be deemed the property of the Landlord
and shall not be removed by the Tenant except as otherwise expressly provided
in this Lease. All electric, plumbing, heating, sprinkling, dumbwaiter,
elevator, fixtures and outlets, venetian blinds, partitions, railings, gates,
doors, vaults, stairs, paneling (including, without limitation, display cases
and cupboards recessed in paneling), molding, shelving, radiator enclosures,
floors, and ventilating, silencing, air conditioning and cooling equipment
shall be deemed to be included in Fixtures, whether or not attached to or built
into the Premises. Notwithstanding the foregoing, all non-structural
installations and/or alterations in the Premises may, at the Tenant’s option,
be removed or abandoned by the Tenant; provided, that the Tenant shall, unless
otherwise requested by the Landlord, (a) close up any slab penetration in the
Premises (other than those existing on the date of this Lease which the Tenant
has not closed and received any reimbursement from the Landlord pursuant to Section 33.6 plus one (1) new slab penetration for a
stairway) and (b) remove from the Building any of the following additions to
the Premises made by the Tenant after the date of this Lease: structural
additions, stairways (except as otherwise provided in clause
(a) above), safes, vault areas,
lead-lined rooms, conveyors, pneumatic tubes and internal elevators. All such
closing and removal shall be performed not later than the expiration or
termination of the Lease and shall be performed subject to the provisions of
this Lease, including, without limitation, Section 6.5.
The Tenant shall repair any damage to the Premises arising from such additions,
closing and removal to the extent such damage (i) is structural, (ii) affects
the Building’s sanitary, electrical, heating, air conditioning, ventilating or
other systems, (iii) affects any space outside of the Premises or (iv) is
visible from the common areas of the Building outside of the Premises. The cost
of repairing any such damage to the Premises or the Building shall be paid by
the Tenant upon demand. If any Fixture or other alteration or property of the
Tenant which as aforesaid may or is required to be removed by the Tenant is not
so removed within the time above specified therefor, then the Landlord may at
its election deem that the same has been abandoned by the Tenant to the
Landlord, but no such election shall relieve the Tenant of its obligation to
pay the cost and expense of removing those required to be removed by the Tenant
or the cost of repairing damage arising from any removal performed by the
Tenant or required to be performed by the Tenant hereunder. Notwithstanding the
foregoing, the Landlord may, by notice to the Tenant, prohibit the closing of any
slab penetration not theretofore closed and the removal of any or all items the
Tenant


 


7

















 


is required to remove
pursuant to this Section 4.1 but
has not theretofore removed unless, with respect to non-structural items, the
Tenant chooses to remove same.


 


4.2           All the perimeter walls of the
Premises, any balconies, terraces or roofs adjacent to the Premises (including,
without limitation, any flagpoles or other installations on said walls,
balconies, terraces or roofs), and any space in and/or adjacent to the Premises
used for shafts, stairways, stacks, pipes, conduits, ducts, mail chutes,
conveyors, electric or other utilities, sinks, fans or other Building
facilities, and the use thereof, as well as access thereto through the Premises
(except in the case of emergency, upon reasonable prior notice and at such
times as shall not unreasonably interfere with the Tenant’s business) for the
purposes of such use and the operation, improvement, replacement, addition,
repair, maintenance or decoration thereof, are expressly reserved to the
Landlord.


 


ARTICLE FIVE


Electric Current
and Water


 


5.1           The Landlord shall furnish, through
the existing transmission facilities installed by it in the Building,
alternating electric current to the electric closets and panels provided by the
Landlord and serving the Premises in such reasonable quantity as may be
required for the Tenant’s ordinary use of the Premises for the purposes herein
specified, but such quantity shall not exceed, in the aggregate, an average of
six watts per rentable square foot of space in the Premises; provided, that if
the Tenant shall demonstrate, to the Landlord’s reasonable satisfaction, that
the Tenant’s actual usage will exceed said six watts, then the Landlord shall
provide the amount so needed, but in no event shall the Landlord be obligated
to provide more than eight (8) watts per rentable square foot of space in the
Premises. Such alternating electric current shall be measured by a meter or
meters provided and installed by the Landlord at such location or locations as
the Landlord shall select, it being understood that Tenant is responsible for
installation of meter service, including, without limitation, CT cabinets,
meter pans and associated wiring, but excluding the meter itself. The Tenant
shall pay to the Landlord, as billed by the Landlord, at the end of each
billing period of the public utility company then supplying such alternating
electric current to the Building an amount which shall be the sum of (i) 105%
of the product obtained by multiplying the actual number of kilowatt hours of
electric current consumed by the Tenant in such billing period by a fraction
having as its numerator the amount charged the Landlord for the Building by
said public utility for the total number of kilowatt hours billable to the
Landlord for the Building in such billing period and as its denominator said
total number of kilowatt hours, plus (ii) any taxes applicable to the amount
determined pursuant to the foregoing clause (i).
If requested by the Tenant within sixty (60) days


 


8














after
any bill for electricity is sent to the Tenant, the Landlord will furnish the
Tenant with a copy of the corresponding bill from the public utility company.
In any circumstances where any meter measures consumption of electricity by
more than one tenant, the Landlord shall make a reasonable estimate of such
consumption and allocate the cost thereof pro
rata to the tenants (including the
Tenant) which derive the benefit thereof in accordance with the respective
rentable areas occupied by such tenants and subject to such shared metering.


 


5.2           The Landlord may, at its option, upon
not less than sixty (60) days’ prior notice to the Tenant, discontinue the
furnishing of electric current to the Premises or any part thereof and, in such
event, the Tenant shall contract for the supplying of such electric current
thereto with the public service company supplying electric current to the
neighborhood, and the Landlord shall permit its risers, conduits and feeders
serving the Premises, to the extent available, suitable and safely capable, to
be used for the purpose of supplying such electric current; it being understood
that (except to the extent prohibited by any Requirement) the Landlord will not
discontinue the furnishing of such electric current to the Premises unless (a)
the Landlord discontinues furnishing electric current to substantially all of
the tenants in the Building, (b) it is possible for the Tenant to contract with
the public utility company furnishing electric current to the neighborhood for
the furnishing of such electric current to the Premises and (c) the Tenant
shall have had reasonable time to so contract with such utility company and to
perform all work necessary to provide risers, conduits and feeders to supply
the electric current provided for in the first sentence of Section 5.1.


 


5.3           If (a) the Tenant shall require electric
current for use in the Premises (including, without limitation, electric
current furnished through the Tenant’s Electric Riser) in excess of the greater
of (i) six (6) watts per rentable square foot of space in the Premises and (ii)
if the Tenant shall demonstrate, to the Landlord’s reasonable satisfaction,
that the Tenant’s actual usage will exceed said six watts, the lesser of the
Tenant’s actual usage and eight (8) watts per rentable square foot of space in
the Premises and (b) the Landlord, at its reasonable option, shall make such
excess load available to the Tenant, then the Tenant shall pay the Landlord’s
then standard charge for such excess load availability along with the
consumption charges specified in Section  5.1. In addition to the foregoing charges,
if, in the Landlord’s judgment, such additional electric current cannot be
furnished unless additional risers, conduits, feeders, switchboards and/or
appurtenances are installed in the Building, the Landlord, upon request of the
Tenant, will proceed with reasonable diligence to install such additional
risers, conduits, feeders, switchboards and/or appurtenances provided the same
and the use thereof shall be permitted by all laws, ordinances, rules, orders
and regulations of all governmental and quasi-governmental authorities and of
all


 


 


9

















 


insurance bodies, at any
time duly issued and in force (collectively, “Requirements”)
applicable to the Land, the Building or the Premises or any part thereof, to
the Tenant’s use thereof or to the Tenant’s observance of any provision of this
Lease and shall not cause damage or injury to the Building or the Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or repairs or interfere with or disturb other tenants
or occupants of the Building, and the Tenant shall pay all costs and expenses
incurred by the Landlord in connection with such installation and shall
maintain on deposit with the Landlord such security for the payment by the
Tenant of all such costs and expenses as the Landlord shall from time to time
request; provided, that the Tenant may, at its expense, install such additional
risers, feeders, switchboards and/or appurtenances (and all work and actions in
connection therewith shall be subject to the provisions of Section  6.5).
The Tenant shall purchase and install all lamps, starters and ballasts
(including replacements thereof) used in the lighting fixtures in the Premises.


 


5.4           Water will be furnished by the
Landlord for (a) normal office uses including in lavatory and toilet
facilities, pantries and coffee rooms, if any, in the Premises and (b)
reasonable and customary use in any kitchen facilities in the Premises which
are capable of simultaneously serving a full meal to no more than twenty-four
(24) persons. Where any water is otherwise furnished or any steam is furnished
by the Landlord, the Tenant shall pay (i) the actual cost to the Landlord for
the water or steam so furnished based on a mutually agreed-upon, reasonable
estimate of the Tenant’s usage and, in the case of water, for any required
pumping and heating thereof, and (ii) any taxes, sewer rent or other charges
which may be imposed by any government or agency thereof based upon the
quantity of water or steam so furnished or the charge therefor. Notwithstanding
anything in this Section  5.4, there shall be no charge to the
Tenant under this Section  5.4 for chilled water furnished by the
Landlord pursuant to Article  Twenty.


 


5.5           The Landlord shall in no way be
liable for any failure, inadequacy or defect in the character or supply of
electric current, water or steam furnished to the Premises except for actual damage
suffered by the Tenant by reason of any such failure, inadequacy or defect
caused by the sole negligence, gross negligence or willful misconduct of the
Landlord or its agents, servants or employees in the operation or maintenance
of the Premises or the Building (each, a “Landlord Party”).
Subject to the provisions of Article  Nine, if any such failure, inadequacy or
defect renders more than 500 rentable square feet of the Premises untenantable
for (a) fourteen (14) days in any thirty (30) day period after the Tenant
notifies the Landlord of such untenantability (subject to appropriate extension
for force majeure events), if the
remedy of such failure, inadequacy or defect is within the Landlord’s
reasonable control or was caused by the sole negligence, gross negligence or
willful misconduct of a Landlord


 


10

















 


Party, or (b) in
all events, thirty (30) days in any sixty (60) day period after the Tenant
notifies the Landlord of such untenantability, then Fixed Rent and the
Additional Rent under Article Twenty-four
(“Article 24 Rent”) payable in respect of the portion
of the Premises rendered untenantable shall abate from the first day after such
portion of the Premises became untenantable until such portion of the Premises
is rendered tenantable; provided that such abatement shall be made only if
there is no other existing abatement relating to the space in question under
any provision of this Lease. If the Tenant would be entitled to an abatement
under this Section 5.5 but for
the fact that the date on which the Tenant is to commence payment of Fixed Rent
(the “Rent Commencement Date”) has not yet occurred, then the Rent
Commencement Date for the space in question
shall be postponed by one (1) day for each day such abatement would have been
applicable had the Rent Commencement Date occurred. If a substantial part of
the Premises is rendered untenantable as a result of such a failure, inadequacy
or defect and it is reasonably determined by the Landlord that such part of the
Premises cannot be made tenantable within a period of fifteen (15) months after
the occurrence of such failure, inadequacy or defect, then, notwithstanding
anything to the contrary contained in this Section
5.5, the provisions of Section 9.2 shall control. For purposes of this Lease, space shall
be deemed untenantable only if such space (1) cannot be used by the Tenant in
the ordinary course of its business for the uses permitted in Section 1.3 and (2) is not used by the
Tenant.


 


5.6           The Landlord shall pay to the Tenant
all utility company rebates paid to the Landlord resulting from installations
paid for by the Tenant, or permit the Tenant a credit for such amount against
future Rent payments.


 


ARTICLE SIX


Various Covenants


 


6.1           The Tenant shall take such care of
the Premises as is necessary to (a) maintain the Premises in a safe and
vermin-free condition and (b) not adversely affect the operation or maintenance
of the Building’s sanitary, electrical, heating, air conditioning, ventilating
or other systems serving, located in, or passing through, the Premises. The
Tenant shall keep clean those portions of the Premises which are visible from
outside of the Premises which the Landlord is not required by this Lease to
clean, and pay the cost of making good any injury, damage or breakage caused by
the Tenant, any other occupant of the Premises (other than a Landlord Party),
any affiliate of the Tenant or such occupant, or any of their respective
employees, officers, directors, partners, contractors, agents, licensees or
invitees (each, a “Tenant Party”), other than any
damage with respect to which the Tenant is released from liability pursuant to Section  9.3.


 


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6.2           The Tenant shall observe and comply
with the rules and regulations annexed to, and made a part of, this Lease and
such other and further reasonable rules and regulations as the Landlord
hereafter at any time may make and communicate to the Tenant and which (a) in
the reasonable judgment of the Landlord, shall be necessary or desirable for
the reputation, safety, care or appearance of the Building, or the preservation
of good order therein, or the operation or maintenance of the Building, or the
equipment thereof, or the comfort of tenants or others in the Building, and (b)
will not unreasonably interfere with the Tenant’s use of the Premises;
provided, however, that (1) no such rule or regulation shall apply to Qualified
Alterations (as hereinafter defined) or other Alterations (as hereinafter defined)
which have been approved by the Landlord once work in respect thereof has been
commenced by the Tenant if such rule or regulation will prohibit or materially
increase the cost of completion thereof and (2) in the case of any conflict
between the provisions of this Lease and any such rule or regulation, the
provisions of this Lease shall control. The Landlord shall enforce the rules
and regulations in a non-discriminatory manner.


 


6.3           The Tenant shall permit the Landlord,
any landlord under any of the underlying leases, any mortgagee under any of the
underlying mortgages, any other party reasonably designated by the Landlord,
and their respective representatives, to enter the Premises during business
hours for the purposes of inspection and permit them or any of their agents or
contractors to enter at any time for the purpose of complying with any
Requirement or exercising any right reserved to the Landlord under Article Eight or elsewhere by this Lease
(it being understood that the parties specified in this subsection are
third-party beneficiaries of the covenants specified in this subsection in the
event of the Landlord’s breach of any obligation it may have to any such party
to exercise a right of access on such party’s behalf). The foregoing rights of access
to the Premises shall not be exercised (a) more often than is reasonably
necessary or desirable in furtherance of legitimate business interests of the
Landlord or any such mortgagee or landlord and (b) unless, in each instance (i)
twenty-four hours advance telephonic notice thereof, except in the case of an
emergency, has been given to the Tenant, (ii) the Tenant shall be permitted, if
it so elects, except in the case of an emergency, to have a representative
accompany the Landlord or any such party, (iii) any such party is accompanied
by the Landlord, an affiliate of the Landlord, the managing agent of the
Building or any of their representatives and (iv) such right of access is
exercised in a manner which does not interfere with the Tenant’s use and
enjoyment of the Premises, provided that the Tenant acknowledges that walking
through the Premises does not constitute interference with the Tenant’s use and
enjoyment of the Premises.


 


12














6.4           The Tenant shall make no claim against the Landlord or any landlord
under any of the underlying leases for any injury or damage to the Tenant or to any
other person or for any damage to, or loss (by theft or
otherwise) of, or loss of use of, any property of the Tenant or of any other
person, irrespective of the cause of such injury, damage or loss, unless caused
by the sole negligence, gross negligence or willful misconduct of a Landlord
Party, it being understood that no property other than such as might normally
be brought upon or kept in the Premises as an incident to the reasonable use of
the Premises for the purposes specified in this Lease will be brought upon or
kept in the Premises.


 


6.5           (a)          The
Tenant shall make no alteration, change, addition, improvement, repair or
replacement (an “Alteration”) in, to, or about,
the Premises, and do no work in such connection, without in each case the prior
consent of the Landlord. Notwithstanding the foregoing, the Tenant shall not be
required to obtain the Landlord’s prior consent in connection with any
Alteration (a “Qualified Alteration”) which
(i) does not involve a structural change to the Building, (ii) does not affect
the sanitary, electrical, heating, air conditioning, ventilating or other
systems of the Building, (iii) does not affect any space outside of the
Premises and (iv) is not visible from the common areas of the Building outside
of the Premises. All work in connection with any Alteration shall be performed
only by workers and contractors of the Landlord or by workers and contractors
of the Tenant acceptable to the Landlord, and in a manner and upon reasonable
terms and conditions and at times, approved by the Landlord. The Tenant shall
make no contract for nor employ any labor in connection with the maintenance,
cleaning (except as provided in Article Thirty)
or other servicing of the Premises without in each case the prior consent of
the Landlord. In the case of structural Alterations required by any Requirement
applicable to the Premises or any part thereof or to Tenant’s use thereof or to
Tenant’s observance of any provision of this Lease, the Landlord’s consents and
approvals under this Section  6.5(a) shall not be unreasonably withheld,
conditioned or delayed to the extent granting same shall not impose any burden
on the Landlord in addition to those burdens specifically agreed to by the
Landlord under the terms of this Lease. Without limiting the generality of the
foregoing, the parties agree that it is not unreasonable for the Landlord to condition
its consent on the Tenant agreeing to pay the cost of performing any such
burden on the Landlord in addition to those burdens specifically agreed to by
the Landlord under the terms of this Lease. If the retention of an outside
consultant is necessitated by the extraordinary time required for, or complex
nature of, the reviews and inspections in connection with the consideration of
the granting of, and compliance with, any such consent or approval, the Tenant
shall reimburse the Landlord for its reasonable third party costs incurred in
connection therewith.


 


13

















 


 


(b)           Notwithstanding
anything in this Lease to the contrary, the Tenant shall make all changes (once
approved by the Landlord), whether or not structural and whether or not in the
Premises, required by any Requirement as a result of any Alteration.


 


(c)           The Tenant shall pay as and when the
same become due and payable all charges incurred by it in connection with any
Alterations. If any notice or claim of any lien be given or filed by or against
the Building or the Land for any work, labor or services performed, or for any
materials, products or equipment used, furnished or manufactured for use,
therein or thereon or in connection with the performance of any Alteration, the
Tenant shall promptly, but in all events within thirty (30) days, discharge or
remove the same of record by payment, bonding or otherwise.


 


(d)           Notwithstanding any consent or
approval by the Landlord, the Tenant shall not:


 


(i) permit the use
of any contractors, workers, labor, material or equipment if the use thereof
actually disturbs harmony with any trade engaged in performing any other work,
labor or service in or with regard to the Building or Rockefeller Center or
contributes to any labor dispute, or


 


(ii) permit the
use of any contractors, workers, labor, material or equipment if the use
thereof will, in the Landlord’s reasonable judgement, disturb harmony with any
trade engaged in performing any other work, labor or service in or with regard
to the Building or Rockefeller Center or contribute to any labor dispute.


 


Without limiting the
generality of the foregoing, it is understood by the parties that vandalism or
a stoppage, strike, slowdown, picket, leafletting or other similar unrest shall
be deemed to be such a disturbance.


 


(e)           The Tenant shall carry or cause to be
carried appropriate workers compensation insurance for all workers working in
the Premises.


 


(f)            The Tenant shall deliver to the
Landlord, within thirty (30) days after completion of an Alteration, (i) a
“paper” copy of as-built plans and specifications of the Premises reflecting
the Alteration in question and (ii) if available, magnetic computer media of
such as-built plans and specifications prepared on an Autocad Computer Assisted
Drafting and Design (“CADD”) System
(or such other system as the Landlord may select) using naming conventions
issued by the American Institute of Architects in June 1990 (or such other
naming convention the Landlord may select), translated into DXF format or
another format selected by the Landlord. The Tenant shall use best efforts


 


14

















 


(without being obligated
to expend money beyond that due in payment for the Alteration) to deliver to
the Landlord, within thirty (30) days after completion of an Alteration,
general releases and waivers of lien
from all contractors, subcontractors and materialmen involved in the
performance of the Alteration in question. If the Tenant is unable to deliver
such general releases and waivers of lien within said thirty (30) day period,
the Tenant shall (A) nonetheless continue using best efforts (without being
obligated to expend money beyond that due in payment for the Alteration) to
deliver the same to the Landlord until such time as the contractors,
subcontractors and materialmen in question may not, as a matter of law, file a
lien or charge against the Building, the Land or any part thereof and (B)
deliver to the Landlord a certificate signed by an appropriate officer of the
Tenant either (1) stating that all contractors, subcontractors and materialmen
have been paid for all work and materials furnished in connection with the
Alteration or (2) if the Tenant is engaged in a bona fide dispute with any contractors,
subcontractors or materialmen, describing the nature of the dispute. If the
Tenant shall be engaged in a dispute with any contractors, subcontractors or
materialmen who have not furnished general releases and waivers of lien, the
Tenant shall act to resolve the dispute with due diligence and dispatch, and
shall keep the Landlord fully Informed of all material matters relating
thereto. Notwithstanding the foregoing, nothing contained in this subsection  6.5(f) shall
in any way affect the obligations of the Tenant under subsection
6.5(c).


 


6.6           The Tenant shall not violate, or
permit the violation of, any condition imposed by the standard fire insurance
policy issued for office buildings in the Borough of Manhattan, New York, N.Y.,
and shall not do, suffer or permit anything to be done, or keep, suffer or
permit anything to be kept, in the Premises, which would increase the fire or
other casualty insurance rate on the Building or property therein unless the
Tenant agrees to bear the additional cost thereof, or which would result in two
insurance companies of good standing refusing to insure the Building or any
such property in amounts and against risks as reasonably determined by the
Landlord.


 


6.7           The Tenant shall permit the Landlord
to show the Premises at reasonable times during Business Hours (as hereinafter
defined) to any lessee, or any prospective purchaser, lessee, mortgagee or
assignee of any mortgage or underlying lease, of the Building and/or the Land
or of the Landlord’s interest therein, and their representatives, and during
the 24 months preceding the expiration of this Lease with respect to any part
of the Premises similarly show such part to any person contemplating the
leasing of all or a portion of the same. The foregoing rights of access to the
Premises shall not be exercised (a) more often than is reasonably necessary or desirable in furtherance of
legitimate business interests of the Landlord or any such mortgagee or landlord
and (b) unless, in each instance (i) twenty-four hours advance telephonic


 


15

















 


notice thereof has been
given to the Tenant, (ii) the Tenant shall be permitted, if it so elects, to
have a representative accompany the Landlord or any such party, (iii) any such
party is accompanied by the Landlord, an affiliate of the Landlord, the
managing agent of the Building or any of their representatives and (iv) such
right of access is exercised in a manner which does not interfere with the
Tenant’s use and enjoyment of the Premises, provided that the Tenant
acknowledges that walking through the Premises does not constitute interference
with the Tenant’s use and enjoyment of the Premises.


 


6.8           At the expiration or any earlier
termination of this Lease with respect to any part of the Premises, the Tenant
shall terminate its occupancy of, and quit and surrender to the Landlord, such
part of the Premises free of rubbish, debris and vermin.


 


6.9           Each party, at any time and from time
to time, shall execute, acknowledge and deliver to the other party, upon not
less than twenty (20) days’ prior notice, a statement of such party (or if such
party is a corporation or a
partnership, an appropriate officer or partner, as the case may be, of such
party) certifying as to whether this Lease is unmodified and in full force and
effect (or if there have been modifications, whether the same is in full force
and effect as modified and stating the modifications), the dates to which the
Rent has been paid in advance, if any, stating whether or not to the best knowledge
of the signer of such certificate the other party is in default in the keeping,
observance or performance of any provision contained in this Lease and, if so,
specifying each such default, and such other information as the other party may
reasonably request. It is intended that any such statement from the Tenant may
be relied upon by the Landlord, any landlord under any underlying lease (as
defined in Article  Thirteen hereof) or any lessee or
mortgagee, or any prospective purchaser, lessee, mortgagee or assignee of any
underlying mortgage (as defined in Article  Thirteen hereof); and that any such
statement from the Landlord may be relied upon by the Tenant, any of the
Tenant’s sublessees, or any prospective assignee or sublessee of the Tenant’s
interest in this Lease.


 


6.10         The Tenant shall indemnify, and save
harmless, the Landlord, and its agents and partners and its and their
respective contractors, licensees, invitees, servants, officers, directors,
agents and employees, any mortgagee under any underlying mortgage and any
landlord under any of the underlying leases (the “Landlord Indemnitees”) from and against all liability
(statutory or otherwise), claims, suits, demands, damages, judgments, costs,
interest and expenses (including, without limitation, reasonable counsel fees
and disbursements incurred in the defense thereof) to which any Landlord
Indemnitee may (except insofar as it arises solely out of the negligence or
willful misconduct of any such Landlord Indemnitee) be subject or suffer whether
by reason of, or by reason of any claim for, any injury to, or death of, any
person


 


16














or persons or damage to
property (including, without limitation, any loss of use thereof) or otherwise
arising from or in connection with the use of, or from any work or thing whatsoever done in, any part of the
Premises or the Building (other than by any Landlord Indemnitee) during the
term of this Lease or during the period of time, if any, prior to the
commencement of such term that the Tenant may have been given access to such
part for the purpose of doing work or otherwise, or as a result of any Tenant
Party performing any such work or otherwise that subjects any Landlord
Indemnitee to any Requirement to which such Landlord Indemnitee would not
otherwise be subject, or arising from any condition of the Premises due to or
resulting from any default by the Tenant in the keeping, observance or
performance of any provision contained in this Lease or from any act or
negligence of any Tenant Party.


 


6.11         The Tenant shall maintain, at all times
during the term of this Lease and during any other times the Tenant is granted
access to the Premises, a policy or policies of commercial general liability
insurance (including, without limitation, insurance of the Tenant’s contractual
liability under this Lease) with the premiums fully paid on or before the due
date, issued by a reputable insurance company licensed to do business in the
State of New York, having a minimum rating A- XI by A.M. Best & Company or
such other comparable financial rating as the Landlord may at any time consider
reasonably appropriate, and reasonably acceptable to the Landlord. Such
insurance shall afford minimum limits as the Landlord may reasonably designate
from time to time, but in no event less than $3,000,000 per occurrence with a
$5,000,000 aggregate in respect of injury or death to any number of persons and
not less than $3,000,000 for damage to or loss of use of property in any one
occurrence, subject to reasonable deductibles. Each such policy shall provide
that it cannot be cancelled, changed or modified except upon 30 days’ prior
notice to the Landlord and shall name the Landlord Indemnitees and such other
designees as the Landlord may from time to time designate as additional
insureds thereunder. The Tenant shall furnish original certificates of such insurance
to the Landlord prior to the term commencement date (or any date on which the
Tenant is granted earlier access) and thereafter not less than 30 days prior to
the expiration of each such policy and any renewals or replacements thereof.


 


ARTICLE SEVEN


Assignment,
Mortgaging, Subletting, etc.


 


7.1           The Tenant covenants, for the Tenant
and its successors, assigns and legal representatives, that neither this Lease
nor the term and estate hereby granted, nor any part hereof or thereof, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred (it being
agreed that (y) issuance by the Tenant of stock and/or the transfer of
already-issued stock/partnership interest, in one or more transactions so as to
transfer control or transfer 50% or more of an interest in the Tenant, other
than


 


 


17

















 


through over-the-counter or national securities
exchange transactions by those holding less than a 5% interest in the Tenant,
or (z) sale or transfer of 25% or more of the assets of the Tenant in one or
more transactions, other than in the ordinary course of business, shall, in
either event, be deemed an assignment of this Lease), and that neither the
Premises, nor any part thereof, will be encumbered in any manner by reason of
any act or omission on the part of the Tenant, or will be used or occupied, or
permitted to be used or occupied, or utilized for desk space, for mailing
privileges or as a concession, by anyone other than the Tenant and the Tenant’s
permitted subsidiaries, affiliates, sublessees and assigns, or will, except as
permitted under Article Thirty-five, be
sublet, or offered or advertised for subletting; provided, however, that, if
the Tenant is a corporation, (a) the assignment or transfer of this Lease, and
the term and estate hereby granted, to any corporation into which the Tenant is
merged or with which the Tenant is consolidated (such corporation being
hereinafter in this Article called the “Assignee”) without
the prior consent of the Landlord shall not be deemed to be prohibited hereby
if, and upon the express conditions that, (i) the primary purpose for such
merger or consolidation is other than the transfer of this Lease, (ii) the
surviving entity has a net worth of at least $400 million (U.S.), and (iii) at
least thirty (30) days prior to the merger or consolidation, the Assignee shall
have executed and delivered to the Landlord an agreement in form and substance
reasonably satisfactory to the Landlord whereby the Assignee shall agree to be
personally bound by and upon all the provisions set forth in this Lease on the
part of the Tenant to be kept, observed or performed to the same extent as the
Tenant, and whereby the Assignee shall expressly agree that the provisions of
this Article shall, notwithstanding such assignment or transfer, continue to be
binding upon it with respect to all future assignments and transfers, and (b)
the Landlord will consent to the Tenant permitting the Premises to be used and
occupied for the purposes specified in, and subject to the provisions of, this
Lease, by any subsidiary or affiliate of the Tenant, but only for so long as
the occupant remains a subsidiary or affiliate of the Tenant, provided that (I)
the Tenant provides reasonable evidence of the relationship of the subsidiary
or affiliate to the Tenant, (II) in the Landlord’s reasonable judgment the
subsidiary or affiliate is of a character and engaged in a business such as is
in compliance with Section  1.3 and is otherwise in keeping with the
standards in those respects for the Building and its occupancy and (III) it
being understood that an entity shall only be a subsidiary or affiliate of the
Tenant for purposes of this Section  7.1 if the Tenant or its subsidiary,
parent or affiliate owns, directly or indirectly, 50% or more of each class of
the stock of any corporation or equitable interest in any other business entity.


 


7.2           Without in any way suggesting
permission for the Tenant to assign the Lease, if the Lease is nonetheless
assigned by the order of a court or otherwise but not as permitted by Section 7.1


 


18

















 


above, the Tenant shall
pay to the Landlord fifty percent (50%) of any consideration received by the
Tenant from an assignee (other than a Tenant Affiliate) for the assignment, net
of brokerage commissions, legal fees, workletter payments and other costs
incurred by the Tenant in connection therewith and not reimbursed by the
assignee. The amounts to be paid to the Landlord under this Section shall be
payable only out of amounts collected by the Tenant in connection with an
assignment and shall be deemed forgiven if no assignment occurs.


 


7.3           The Landlord will, at the request of
the Tenant, maintain listings on the Building directory of the names of the
Tenant, its departments and its permitted sublessees, subsidiaries and
affiliates occupying parts of the Premises, and the names of any of their
officers or employees; provided, however, that the number of names so listed shall not exceed 900.
Without implying any right to do so, the listing of any name other than that of
the Tenant, whether on the doors or windows of the Premises, on the Building
directory, or otherwise, shall not operate to vest any right or interest in
this Lease or in the Premises or be deemed to be the consent of the Landlord
referred to in Section 7.1, it
being expressly understood that any such listing is a privilege extended by the
Landlord revocable at will by notice to the Tenant.


 


ARTICLE EIGHT


Changes or
Alterations by Landlord


 


8.1           The Landlord reserves the right to
make such changes, alterations, additions, improvements, repairs or
replacements in or to the Building (including, without limitation, the
Premises) and the fixtures and equipment thereof, as well as in or to the
street entrances, halls, passages, elevators, escalators and stairways and
other parts of the Building, and to erect, maintain and use pipes, ducts and
conduits in and through the Premises, all as may be reasonably necessary or
desirable for other tenants in the Building, for the safety of the Building,
for the maintenance of the Building as a first-class building or for Building
technology upgrades; provided, that (a) the exercise of such rights shall not
result in (i) an unreasonable obstruction of the means of access to the
Premises or (ii) an unreasonable interference with the use of the Premises, (b)
the number of passenger elevators serving the Premises is not permanently
reduced and (c) pipes, ducts and conduits are enclosed and, where reasonably
practicable, are situated above ceilings, below floors or in walls or shafts.
The Landlord shall, except in the case of emergency, give the Tenant reasonable
prior notice if any such change, alteration, addition, improvement, repair or
replacement will affect the Premises. If any such change, alteration, addition,
improvement, repair or replacement results in the Tenant being excluded from
more than 500 rentable square feet of the Premises for seven (7) days in any
fifteen (15) day period after the Tenant notifies the Landlord of such exclusion,
then Fixed Rent and Article 24 Rent


 


19














payable in respect of the
portion of the Premises from which the Tenant is excluded shall abate from the
first day after the Tenant is excluded from such portion of the Premises until
such portion of the Premises is returned to the Tenant’s possession; provided,
that: (a) if the Tenant (i) is excluded from more than 25% of any full floor of
the Premises as a result of such a change, alteration, addition, improvement,
repair or replacement and (ii) does not use any part such floor, then Fixed
Rent and Article 24 Rent payable in respect of such full floor shall be abated
as aforesaid; and (b) if the Tenant (i) is excluded from more than 50% of the
entire Premises as a result of such a change, alteration, addition,
improvement, repair or replacement and (ii) does not use any part of the
Premises, then Fixed Rent and Article 24 Rent payable in respect of the entire
Premises shall be abated as aforesaid. If the Tenant would be entitled to an
abatement under this Section 8.1 but
for the fact that the Rent Commencement Date has not yet occurred, then the
Rent Commencement Date for the space in question shall be postponed by one (1)
day for each day such abatement would have been applicable had the Rent
Commencement Date occurred. Notwithstanding anything to the contrary contained
in this Section 8.1, abatements
under this Section  8.1 shall be made only if there is no
other existing abatement relating to the space in question under any provision
of this Lease. Nothing in this Section  8.1
or in Article
Six shall be deemed to relieve
the Tenant of any duty, obligation or liability to make any repair, replacement
or improvement or comply with any Requirement. Except as permitted by this Section  8.1 and
in case of emergency, the Landlord shall not make any changes, alterations,
additions, improvements, repairs or replacements in or to the Premises without
the prior consent of the Tenant, which consent shall not be unreasonably
withheld, delayed or conditioned and which consent shall be deemed granted if
not granted or denied within five (5) days after request therefor.


 


8.2           Subject to the provisions of Article  Twenty-six,
the Landlord reserves the right to change the name or address of the Building
at any time. Neither this Lease nor any use by the Tenant shall give the Tenant
any right or easement to the use of any door or any passage connecting the
Building with any subway or any other building or to the use of any public
conveniences, and the use of such doors, passages and conveniences may be
regulated or discontinued at any time by the Landlord.


 


ARTICLE NINE


Damage by Fire,
etc.


 


9.1           If any part of the Premises shall be
damaged by fire or other perils, the Tenant shall give prompt notice thereof to
the Landlord and the Landlord shall proceed with reasonable diligence subject
to adjustment and collection of any insurance proceeds and the provisions of
any Qualified Encumbrance to repair such damage, and, if any part of the
Premises shall be rendered untenantable by


 


 


20

















 


reason of such damage (including untenantability due
to lack of access thereto), Fixed Rent and Article 24 Rent in respect of such
part of the Premises, shall be abated for the period from the date of such
damage to the date when such part of the Premises shall have been made
tenantable or to such earlier date upon which either such part of the Premises
would have been tenantable but for Tenant Delay or the full term of this Lease
with respect to such part of the Premises shall expire or terminate, unless (a)
the Landlord shall make available to the Tenant, during the period of such
repair, other space in the Building which, in the Tenant’s reasonable judgment,
is reasonably suitable for the temporary carrying on of the Tenant’s business,
or (b) such fire or other damage shall have resulted from the act or negligence
of any Tenant Party; provided, that: (i) if (A) more than 25% of any full floor
of the Premises is rendered untenantable as a result of such fire or other
damage and (B) the Tenant does not use any part of such floor, then Fixed Rent
and Article 24 Rent payable in respect of such full floor shall be abated as
aforesaid; and (ii) if (A) more than 50% of the entire Premises is rendered
untenantable as a result of such fire or other damage and (B) the Tenant does
not use any part of the Premises, then Fixed Rent and Article 24 Rent payable
in respect of the entire Premises shall be abated as aforesaid. If the Tenant
would be entitled to an abatement under this Section
9.1 but for the fact that the
Rent Commencement Date has not yet occurred, then the Rent Commencement Date
for the space in question shall be shall be postponed by one (1) day for each
day such abatement would have been applicable had the Rent Commencement Date
occurred. Notwithstanding anything to the contrary contained in this Section 9.1, abatements under this Section 9.1 shall be made only if there is no other existing
abatement relating to the space in question under any provision of this Lease.
Except for the Landlord’s gross negligence or willful misconduct, the Landlord
shall not be liable for any inconvenience or annoyance to the Tenant or injury
to the business of the Tenant resulting in any way from such damage or the
repair thereof. The Tenant understands that the Landlord will not carry
insurance of any kind on (w) the Tenant’s goods, furniture, equipment or
furnishings, (x) on any Fixtures removable by the Tenant as provided in this
Lease, (y) on Tenant improvements or betterments or (z) on any property in the
care, custody and control of the Tenant (collectively, the “Tenant’s Property”), and that the
Landlord shall not be obligated to repair any damage thereto or replace the
same.


 


9.2           If substantial alteration or
reconstruction of the Building shall, in the reasonable opinion of the
Landlord, be required as a result of damage by fire or other perils (whether or
not the Premises shall have been damaged by such fire or other casualty), then
this Lease and the term and estate hereby granted may be terminated by the
Landlord by a notice, given within sixty (60) days of such damage specifying a
date, not less than sixty (60) days after the giving of such notice, for such
termination; provided, that the Landlord may not so terminate the


 


21






 










 


Lease unless the Landlord terminates substantially all of the leases in
the Building. If the Landlord undertakes such a substantial
alteration or reconstruction of the Building, the Landlord shall complete the
same with reasonable diligence insofar as the same relates to the Premises
(including, without limitation, access thereto) and the common areas of the
Building. In addition, (a) if a substantial part of the Premises is rendered
untenantable as a result of such damage by fire or other peril and it is reasonably
determined by the Landlord that such part of the Premises cannot be made
tenantable within a period of fifteen (15) months after the occurrence of such
fire or other peril, then this Lease and the term and estate hereby granted may
be terminated by the Landlord or the Tenant by a notice specifying a date, not
less than sixty (60) days after the giving of such notice for such termination,
which notice must be given within sixty (60) days of such damage (as to which
date time is of the essence), and (b) if the Premises or a substantial part
thereof are rendered untenantable as a result of such damage by fire or other
casualty (including, without limitation, untenantability due to lack of access
thereto) and the Landlord’s restoration is not substantially completed by the
Landlord within fifteen (15) months after the occurrence thereof, then this
Lease and the term and estate hereby granted may be terminated by the Tenant by
its giving to the Landlord within sixty (60) days after the end of such fifteen-month
period (as to which date time is of the essence) a notice specifying a date,
not less than thirty (30) days after the giving of such notice, for such
termination. In the event of the giving of notice of termination, this Lease
and the term and estate hereby granted shall expire as of the date specified in
such notice with the same effect as if such date were the date initially
specified in this Lease as the expiration date, and Fixed Rent and Article 24
Rent shall be apportioned as of such date of termination, subject to abatement,
if any, as and to the extent provided in Section
9.1.


 


9.3           Nothing in this Lease shall relieve the Tenant from any liability to
the Landlord or to its insurers in connection with any damage to the Premises
or the Building by fire or other peril if the Tenant shall be legally liable in
such respect, except that the Landlord and the Tenant hereby release each other
with respect to any liability which the released party might otherwise have to
the releasing party for any damage to the Building or the Premises or the
contents thereof by fire or other peril occurring during the term of this Lease
to the extent of the proceeds received under a policy or policies of insurance
permitting such release. Each party will use best efforts to cause its property
and/or other applicable insurance policy to include a provision permitting such
a release of liability; provided, that if such a provision is obtainable from
such insurer only at an additional expense, the insured party shall notify the
other party and, unless the other party pays such additional expense within ten
(10) days thereafter, the insured party shall thereafter be free of its waiver
of


 


22

















 


subrogation
so long as an additional cost is required under the policy in question.


 


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


 


ARTICLE TEN 
 Condemnation


 


10.1         If all of the Premises shall be lawfully condemned or taken in any
manner for any public or quasi-public use, this Lease and the term and estate
hereby granted shall forthwith cease and terminate as of the date of vesting of
title in such condemnation or taking. If only a part of the Premises shall be
so condemned or taken, then the term and estate hereby granted with respect to
such part of the Premises shall forthwith cease and terminate as of the date of
vesting of title in such condemnation or taking and Fixed Rent and Article 24
Rent, to the extent related to such part of the Premises, shall be abated for
the period from the date of such vesting of title to the date specified in this
Lease for the expiration of the full term of this Lease with respect to such
part of the Premises, but only if there is no other existing abatement relating
to the space in question under any provision of this Lease. If only a part of
the Building shall be so condemned or taken, then (a) if substantial alteration
or reconstruction of the Building or the Premises shall, in the opinion of the
Landlord, be necessary or desirable as a result of such condemnation or taking,
this Lease and the term and estate hereby granted may be terminated by the
Landlord within sixty (60) days following the date on which the Landlord shall
have received notice of such vesting of title, by a notice to the Tenant
specifying a date, not less than sixty (60) days after the Landlord’s notice,
for such termination, or (b) if such condemnation or taking shall be of a
substantial part of the Premises or of a substantial part of the means of
access thereto, this Lease and the term and estate hereby granted may be
terminated by the Tenant, within sixty (60) days following the date upon which
the Tenant shall have received notice of such vesting of title, by a notice to
the Landlord specifying a date, not less than thirty (30) days after the Tenant’s
notice, for such termination, or (c) if neither the Landlord nor the Tenant
elects to terminate this Lease, this Lease shall not be affected by such
condemnation or taking, except that this Lease and the term and estate hereby
granted with respect to the part of the Premises so condemned or taken shall
expire on the date of the vesting of title to such part and except that Fixed
Rent and Article 24 Rent shall be abated to the extent, if any, hereinabove
provided in this Article. If only a part of the Premises shall be so condemned
or


 


23

















 


taken
and this Lease and the term and estate hereby granted with respect to the
remaining portion of the Premises are not terminated, the Landlord will proceed
with reasonable diligence, subject to the provisions of any Qualified
Encumbrance and without requiring the Landlord to expend more than it collects
as an award therefor, to restore the remaining portion of the Premises as
nearly as practicable to the same condition as it was in prior to such
condemnation or taking.


 


10.2         The termination of this Lease and the term and estate hereby granted in
any of the cases specified in this Article shall be with the same effect as if
the date of such termination were the date originally specified for the
expiration of the full term of this Lease, and Fixed Rent and Article 24 Rent
shall be apportioned as of such date of termination.


 


10.3         If there is any condemnation or taking of all or a part of the
Building, the Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including, without limitation, any award made for the
value of the estate vested by this Lease in the Tenant and, in the case of a
taking for temporary use and occupancy, any award made as compensation for the
cost of restoration of the Building. The Tenant hereby expressly assigns to the
Landlord any and all right, title and interest of the Tenant now or hereafter
arising in or to any such award or any part thereof, and the Tenant shall be
entitled to receive no part of such award; provided, that the Tenant shall not
be precluded, on prior notice to the Landlord, from intervening for the Tenant’s
own interest in any such condemnation proceeding to claim or receive from the
condemning authority any compensation to which the Tenant may otherwise
lawfully be entitled in such case in respect of property removable by the
Tenant under Article Four or for moving expenses,
but only to the extent such compensation does not reduce the award otherwise
payable to the Landlord.


 


10.4         If the whole or any part of the Premises, or of the Tenant’s leasehold
estate, shall be taken in condemnation proceedings or by any right of eminent
domain for temporary use or occupancy. Fixed Rent and Article 24 Rent, to the
extent related to such part of the Premises, shall be abated for the period
from the date such use or occupancy commences to the date on which possession
of such part of the Premises is restored to the Tenant, but only if there is no
other existing abatement relating to the space in question under any provision of
this Lease. Notwithstanding the foregoing, the Tenant shall perform and observe
all of the other provisions of this Lease upon the part of the Tenant to be
performed and observed, as though such taking had not occurred, except (a) to
the extent that the Tenant may be prevented from so doing pursuant to the terms
of the order of the condemning authority or (b) in portions of the Premises
taken pursuant to the order. The Landlord shall, upon the expiration of any
such period of temporary use or occupancy, restore the Building, as nearly as


 


24

















 


may
be reasonably possible within the balance of the term of the Lease, to the
condition in which the same was immediately prior to such taking, subject to
the provisions of any Qualified Encumbrance and without requiring the Landlord
to expend more than it collects as an award therefor.


 


ARTICLE ELEVEN

Compliance with Laws


 


11.1         Subject to the provisions of Section
11.3, the Tenant shall comply with all Requirements applicable to
the Premises or any part thereof, to the Tenant’s use thereof or to the Tenant’s
observance of any provision of this Lease, except that the Tenant shall not be
under any obligation to comply with any such Requirement (other than such a
Requirement having as a primary purpose the benefit of disabled persons) which
(a) requires any structural alteration of or in connection with the Premises
solely by reason of the use thereof for any of the purposes permitted in Section 1.3 or (b) would not have been
applicable to the Premises but for a condition which has been created solely
by, or at the sole instance of, any Landlord Party. Notwithstanding the
foregoing, the Tenant shall, subject to the provisions of Section
11.3, be responsible
for (x) a condition which has been created by, or at the instance of, any
Tenant Party and (y) a breach by any Tenant Party of any provision of this
Lease. Where any structural alteration of or in connection with the Premises is
required by any such Requirement and (i) by reason of the express exception
specified above, the Tenant is not under any obligation to make such alteration
and (ii) it is reasonably determined by the Landlord that the cost of making
such required alteration, when added to the cost of all required alterations
made during the preceding twelve-month period, will exceed $5,000,000 (the “Threshold
Amount”), then the Landlord shall
have the option of making such alteration or of terminating this Lease and the
term and estate hereby granted by giving to the Tenant not less than thirty
(30) days’ prior notice of such termination. If within fifteen (15) days after
the giving of notice of termination, the Tenant shall request the Landlord to
make such alteration, and the Tenant agrees to bear fifty percent (50%) of the
cost thereof in excess of the Threshold Amount, then such notice of termination
shall be ineffective and the Landlord shall proceed with reasonable diligence
to make such alteration. The Tenant shall pay to the Landlord fifty percent
(50%) of all costs and expenses in excess of the Threshold Amount incurred by the
Landlord in connection therewith. For purpose of this Article, providing and
installing of sprinklers shall be deemed to be a non-structural alteration. The
Landlord represents to the Tenant that as of the date of this Lease, to the
Landlord’s best knowledge without investigation, the Premises are not in
violation of any Requirements compliance with which would cost more than the
Threshold Amount.


 


25

















 


11.2         If a notice of termination shall be given by the Landlord under this
Article and such notice shall not become ineffective as above provided, this
Lease and the term and estate hereby granted shall terminate on the date
specified in such notice with the same effect as if such date were the date
originally specified for the expiration of this Lease, and Fixed Rent shall be
apportioned as of such date of termination.


 


11.3         The Tenant shall have the right to contest by appropriate legal
proceedings, without cost or expense to the Landlord but upon prior notice to
the Landlord (which notice shall specify the Requirement in question and the
Tenant’s good faith estimate of the duration of the contest), the validity or application
of any Requirement which the Tenant is or may be obligated to comply with
pursuant to this Lease and if compliance therewith pending the prosecution of
any such proceeding may legally be held in abeyance without the incurrence of a
lien, charge or liability of any kind against the Premises, the Tenant’s leasehold
interest therein, the Building or the Land and without causing a default under
any Qualified Encumbrance and without subjecting the Tenant or any Landlord
Indemnitee to any civil liability or any criminal liability for failure so to
comply therewith and without jeopardizing the coverage afforded by any of the
Landlord’s insurance policies, the Tenant may postpone compliance therewith until
the final determination of any proceedings, provided that all such proceedings
shall be prosecuted with due diligence and dispatch, and if any lien or charge
is incurred by reason of non-compliance, the Tenant may nevertheless make the
contest and delay compliance as aforesaid, provided, that before commencing any
contest or delaying compliance the Tenant furnishes to the Landlord security,
reasonably satisfactory to the Landlord, against any loss or other charges and
prosecutes the contest with due diligence and dispatch. During the pendency of any
contest by the Tenant, the Tenant shall keep the Landlord fully informed of all
material matters relating to such contest. If, notwithstanding the Tenant’s
contest of a particular Requirement, such Requirement must ultimately be
complied with, in whole or in part, the Tenant shall pay all compliance costs,
including, without limitation, all interest, fines or other charges. This Section  11.3 shall
survive the expiration or earlier termination of this Lease.


 


ARTICLE TWELVE 

Accidents to Sanitary and Other Systems


 


12.1         If a responsible Tenant Party learns of any damage to, or defective
condition in, any part or appurtenance of the Building’s sanitary, electrical,
heating, air conditioning, ventilating or other systems serving, located in, or
passing through, the Premises, the Tenant shall give to the Landlord prompt
notice thereof. Any such damage or defective condition shall be remedied by the
Landlord at the Landlord’s expense with reasonable


 


26

















 


diligence except to the
extent the Tenant is specifically required to remedy same under the terms of
this Lease, but if such damage or defective condition (other than any damage
with respect to which the Tenant is relieved
from liability pursuant to Section 9.3 or
as a result of normal wear and tear) was caused by the use by, or negligence or
willful misconduct of, any Tenant Party, the cost of the remedy thereof shall
be paid by the Tenant. Except for the abatement hereinafter provided for in
this Section 12.1, the
Tenant shall not be entitled to claim any damages against the Landlord arising
from any such damage or defective condition unless the same shall have been
caused by the gross negligence or willful misconduct of any Landlord Party and
the same shall not have been remedied by the Landlord with reasonable diligence
after notice from the Tenant; nor shall the Tenant be entitled to claim any
eviction by reason of any such damage or defective condition unless the same
shall have been caused by the gross negligence or willful misconduct of any
Landlord Party and shall not have been made tenantable by the Landlord within a
reasonable time after notice from the Tenant. If any such damage or defective
condition renders more than 500 rentable square feet of the Premises
untenantable for (a) fourteen (14) days in any thirty (30) day period after the
Tenant notifies the Landlord of such untenantability (subject to appropriate
extension for force  majeure events), if the remedy of such failure, inadequacy
or defect is within the Landlord’s reasonable control or was caused by the sole
negligence, gross negligence or willful misconduct of a Landlord Party, or (b)
in all events, thirty (30) days in any sixty (60) day period after the Tenant
notifies the Landlord of such untenantability, then Fixed Rent and Article 24
Rent payable in respect of the portion of the Premises rendered untenantable
shall abate from the first day after such portion of the Premises became
untenantable until such portion of the Premises is rendered tenantable;
provided, that: (i) if (A) more than 25% of any full floor of the Premises is
rendered untenantable as a result of such damage or defective condition and (B)
the Tenant does not use any part of such floor, then Fixed Rent and Article 24
Rent payable in respect of such full floor shall be abated as aforesaid; and
(ii) if (A) more than 50% of the entire Premises is rendered untenantable as a
result of such damage or defective condition and (B) the Tenant does not use
any part of the Premises, then Fixed Rent and Article 24 Rent payable in
respect of the entire Premises shall be abated as aforesaid. If the Tenant
would be entitled to an abatement under this Section 12.1
but for the fact that the Rent Commencement Date has not yet occurred, then the
Rent Commencement Date for the space in question shall be shall be postponed by
one (1) day for each day such abatement would have been applicable had the Rent
Commencement Date occurred. Notwithstanding anything to the contrary contained
in this Section 12.1, abatements under this Section 12.1
shall be made only if there is no other existing abatement relating to the
space in question under any provision of this Lease. If a substantial part of
the Premises is rendered untenantable as a result of such damage or defective
condition and it is reasonably determined by the


 


27

















 


Landlord
that such part of the Premises cannot be made tenantable within a period of
fifteen (15) months after the occurrence of such damage or defective condition,
then, notwithstanding anything to the contrary contained in this Section 12.1, the provisions
of Section  9.2
shall control.


 


ARTICLE THIRTEEN 

Subordination


 


13.1         This Lease and the term and estate hereby granted are and shall be
subject and subordinate to (a) the lien of each mortgage which may now or shall
at any time hereafter affect the Premises, the Building and/or the Land, or the
Landlord’s interest therein (collectively, as the same may be extended,
modified, or consolidated without increasing the principal balance secured
thereby, the “underlying  mortgages”), provided that in the case of
future underlying mortgages or increases in the principal balance secured by
any existing underlying mortgage, the holder thereof executes, acknowledges and
delivers to the Tenant a non-disturbance agreement substantially in the form of
Exhibit E and (b) any future
ground or net lease of the Land and/or the Building (collectively, as the same
may be extended, modified or consolidated, the “underlying
leases”), provided that the holder or the lessor thereunder
executes, acknowledges and delivers to the Tenant a non-disturbance agreement
substantially in the form of Exhibit F. The Landlord agrees to use reasonable efforts to obtain a
non-disturbance agreement from all such holders and lessors substantially in
the form of Exhibit E or
Exhibit F, as
the case may be, and the Tenant agrees to accept such reasonable changes to the
form as such holder or lessor may reasonably require. Without limiting the
generality of the foregoing, the Landlord further agrees to use reasonable
efforts to have such holders and lessors agree to the deletion of subparagraph
4(c) from the forms of non-disturbance agreement annexed hereto. The foregoing
provisions for the subordination of this Lease and the term and the estate
hereby granted to future underlying mortgages and underlying leases shall be
self-operative upon delivery to the Tenant of an executed non-disturbance
agreement substantially in the form of Exhibit
E or Exhibit F, as the case may be, and no further instrument shall
be required to effect any such subordination; but the Tenant shall, from time
to time, upon request by the Landlord, execute and deliver any and all
instruments that may be necessary or proper to effect such subordination or to
confirm or evidence the same. If the Landlord’s interest in the Building or the
Land shall be sold or conveyed to any person, firm or corporation upon the
exercise of any remedy provided for in any underlying mortgage or by law or
equity, or if the Landlord’s interest in this Lease is assigned or conveyed to
the landlord under any ground lease as a result of a default by the tenant
under the ground lease and a resulting termination thereof, such person, firm
or corporation succeeding to the Landlord’s interest in the Building or Land or
this Lease and each person, firm or corporation thereafter succeeding to its


 


28

















 


interest
in the Building or the Land or this Lease (i) shall not be liable for any act
or omission of the Landlord under this Lease occurring prior to such sale or conveyance,
(ii) shall not be subject to any offset, defense or counterclaim accruing prior
to such sale or conveyance, (iii) shall not be bound by any payment prior to
such sale or conveyance of Rent for more than one month in advance (except
prepayments in the nature of security for the performance by the Tenant of its
obligations hereunder), and (iv) shall be liable for the performance of the
other obligations of the Landlord under this Lease only during the period such
successor landlord shall hold such interest.


 


ARTICLE FOURTEEN 

Notices


 


14.1         Except as otherwise expressly provided in this Lease, any notice,
consent, approval, request, demand or statement (collectively, “Notices”) under this Lease by either party to the other
party shall be in writing and shall be deemed to have been duly given when
delivered personally or by overnight mail service to such other party and a
receipt has been obtained or on the third day after being mailed in a postpaid
envelope (registered or certified, return receipt requested) addressed to such
other party, which address (a) for the Landlord, shall be as above set forth
and (b) for the Tenant shall be the Premises (or the Tenant’s address as above
set forth if mailed prior to the Term Commencement Date), Attention: Chief
Financial Officer, with a copy of such Notice the same address, Attention:
Office of General Counsel, or if the address of such other party for notices
shall have been duly changed as hereinafter provided, if so mailed to such
other party at such changed address. Either party may at any time change the
address for Notices by a Notice stating the change and setting forth the
changed address. If the term “Tenant” as used
in this Lease refers to more than one person, any Notice to any one of such
persons shall be deemed to have been duly given to the Tenant. If and to the
extent requested by the Landlord, the Tenant shall give copies of all Notices
to the Landlord to holders of underlying mortgages and underlying leases of
which the Tenant has notice.


 


ARTICLE FIFTEEN 
Conditions of Limitation


 


15.1         This Lease and the term and estate hereby granted are subject to the
limitation that:


 


(a)           if the Tenant shall default in the payment of any Rent and such default
shall continue for twenty (20) days after notice of default;


 


(b)           if the Tenant shall default in observing any provision of Section  3.2(a), 6.5(c), 6.5(d)(ii) or 6.6
and such default shall not be remedied by the Tenant (i) within three (3)


 


29

















 


business
days after notice of default from the Landlord specifying the nature of the
default and the Landlord’s requirements for its cure and (ii) within two (2)
business days after a second notice of default from Landlord, given after the
expiration of such three-day period, enclosing a copy of the prior notice and
stating that the Landlord may terminate this Lease if the default is not cured
within two (2) business days;


 


(c)           if the Tenant shall default in observing any provision of Section 6.5(d)(i) and such default shall
not be remedied by the Tenant (i) within twenty-four (24) hours after notice of
default from the Landlord specifying the nature of the default and the Landlord’s
requirements for its cure and (ii) within twenty-four (24) hours after a second
notice of default from Landlord, given after the expiration of such initial
twenty-four-hour period, enclosing a copy of the prior notice and stating that the
Landlord may terminate this Lease if the default is not cured within
twenty-four (24) hours after said second notice; provided, that the Tenant
shall have at least one (1) business day after the Initial notice of default
under this subparagraph 15.1(c) to
remedy the default in question (it being understood by the parties that the Landlord
may proceed under this subparagraph 15.1(c) notwithstanding
the fact that the grace period applicable to a default by the Tenant in the
observance of Section  6.5(d)(ii) has not yet expired);


 


(d)           if the Tenant shall default in observing any provision of this Lease
other than a default of the character referred to in subsections
(a) through (c) of
this Section, and if such default shall continue and shall not be
remedied by the Tenant within thirty (30) days after notice of default or, if
such default cannot for causes beyond the Tenant’s reasonable control, with due
diligence be cured within said period of thirty (30) days, if the Tenant (i)
shall not, promptly upon the receipt of such notice, give the Landlord notice
of the Tenant’s intention to duly institute all steps necessary to remedy such
default, (ii) shall not duly institute and thereafter diligently prosecute to completion
all steps necessary to remedy the same, or (iii) shall not remedy the same
within a reasonable time after the date of the giving of said notice by the
Landlord, which period shall in no event exceed one hundred twenty (120) days;


 


(e)           if any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the full term of
this Lease would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than the Tenant (except as permitted under Article Seven); and


 


(f)            when and to the extent permitted by law, if a
petition in bankruptcy shall be filed by or against the Tenant, or if the
Tenant shall make a general assignment for the benefit of


 


30

















 


its
creditors, or the Tenant shall receive the benefit of any insolvency or
reorganization act, or if a receiver or trustee is appointed for any portion of
the Tenant’s property and such appointment is not vacated within ninety (90)
days, or if an execution or attachment shall be issued under which the Premises
shall be taken or occupied by anyone other than the Tenant;


 


then
in any of said cases the Landlord may give to the Tenant a notice of intention
to end the term of this Lease, and, if such notice is given, this Lease and the
term and estate hereby granted (whether or not the term shall theretofore have
commenced) shall terminate upon the expiration of five (5) business days from
the date the notice is deemed given with the same effect as if the last of said
five (5) business days were the date originally specified as the expiration of
the full term of this Lease, but the Tenant shall remain liable for damages as
provided in this Lease or pursuant to law. If this Lease shall have been
assigned, the term “Tenant”, as used in subsections  (a) to (f), inclusive,
of this Section 15.1, shall be deemed to include the assignee and the
assignor or either of them under any such assignment unless the Landlord shall,
in connection with such assignment, release the assignor from any further
liability under this Lease, in which event the term “Tenant”,
as used in said subsections, shall not include the assignor so released.


 


15.2         At any time after the Landlord gives a notice of default to the Tenant,
the Tenant may, by written notice to the Landlord specifying what actions the
Tenant has taken in order to cure the default in question, request that the
Landlord confirm in writing that either (a) the Tenant has cured the default
which was the subject of the notice of default or (b) if not, state with
reasonable specificity the Landlord’s further requirements for cure. The
Landlord agrees to respond to any such request within five (5) business days. NOTHING CONTAINED IN THIS SECTION
15.2 SHALL AFFECT THE RIGHTS OR OBLIGATIONS OF THE LANDLORD OR THE
TENANT UNDER ANY OTHER PROVISION OF THIS LEASE INCLUDING, WITHOUT LIMITATION, SECTION 15.1, ARTICLE SIXTEEN OR
ARTICLE SEVENTEEN.


 


ARTICLE SIXTEEN 

Re-entry by Landlord


 


16.1         If this Lease shall terminate under Article
Fifteen, or if the Tenant shall default in
the payment of any Rent on any date upon which the same becomes due, and if
such default shall continue for twenty (20) days after a notice of default with
respect thereto has been sent to the Tenant, the Landlord or the Landlord’s
agents and servants may immediately or at any time thereafter re-enter the
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law or in equity, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and
may remove any persons therefrom, to the end that the Landlord may have, hold
and enjoy


 


31

















 


the
Premises again as and of its first estate and interest therein. Notwithstanding
the foregoing, the Landlord may not re-enter the Premises other than by summary
dispossess proceedings or by any suitable action or proceeding at law or in
equity. The words “re-enter”, “re-entry”, and “re-entering” as
used in this Lease are not restricted to their technical legal meanings.


 


16.2         If this Lease shall terminate under the provisions of Article Fifteen or if the Landlord
undertakes any summary dispossess or other proceeding or action for the
enforcement of its right of re-entry (any such termination of this Lease or undertaking
by the Landlord being a “Default Termination”), the Tenant
shall thereupon pay to the Landlord the Rent up to the time of such Default
Termination, and shall likewise pay to the Landlord all such damages which, by
reason of such Default Termination, shall be payable by the Tenant as provided
in this Lease or pursuant to law. Also in the event of a Default Termination
the Landlord shall be entitled to retain all moneys, if any, paid by the Tenant
to the Landlord, whether as advance Rent or as security for Rent, but such
moneys shall be credited by the Landlord against any Rent due from the Tenant
at the time of such Default Termination or, at the Landlord’s option, against
any damages payable by the Tenant as provided in this Lease or pursuant to law.
Any moneys in excess of such Rent and damages shall be refunded to the Tenant.


 


16.3         In the event of a breach or threatened breach on the part of either
party of any of its obligations under this Lease, the other party shall also
have the right of injunction. Except as otherwise expressly provided in this
Lease, the specified remedies to which a party may resort under this Lease are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which such party may lawfully be entitled at any time, and either party may
invoke any remedy allowed at law or in equity as if specific remedies were not provided
for in this Lease.


 


ARTICLE SEVENTEEN 

Damages


 


17.1         If there is a Default Termination of this Lease, the Tenant will pay to
the Landlord as damages, at the election of the Landlord, either:


 


(a)           a sum which, at the time of such Default
Termination, represents the then present value (such computation to be made by
using the then prevailing rate of most recently issued bonds or notes issued by
the United States Treasury having a maturity closest to but not exceeding the
period commencing with the day following the date of such Default Termination
and ending with the date originally specified as the expiration date of this
Lease (the “Remaining Period”)) of
the excess, if any, of (1) the aggregate


 


32

















 


of Fixed Rent and Article 24 Rent (if any) which, had this Lease not so terminated, would have been payable
under this Lease by the Tenant for the
Remaining Period over (2) the aggregate rental value of the Premises for the same period, or


 


(b)           sums equal to the aggregate of Fixed Rent and
Article 24 Rent (if any) which would have been payable by the Tenant had this
Lease not terminated by such Default Termination, payable upon the due dates
therefor specified in this Lease following such Default Termination and until
the date originally specified as the expiration of this Lease; provided, that
if the Landlord shall relet all or any part of the Premises for all or any part
of the Remaining Period (the Landlord having no obligation to so relet the
Premises), the Landlord shall credit the Tenant with the net rents received by
the Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by the Landlord from such
reletting the expenses incurred by the Landlord in terminating this Lease and
re-entering the Premises and of securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and preparing the
Premises for new tenants, brokers’ commissions, and all other expenses properly
chargeable against the Premises and the rental therefrom in connection with
such reletting, it being understood that any such reletting may be for a period
equal to or shorter or longer than said period; provided, further, that (i) in
no event shall the Tenant be entitled to receive any excess of such net rents
over the sums payable by the Tenant to the Landlord, (ii) in no event shall the
Tenant be entitled, in any suit for the collection of damages pursuant to this
subsubsection (b), to a credit in respect of any net rents from a reletting
except to the extent that such net rents are actually received by the Landlord
prior to the commencement of such suit, and (iii) if the Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot rentable area basis shall be made of the rent
received from such reletting and of the expenses of reletting.


 


17.2         For the purposes of this
Article, the amount of Article 24 Rent which would have been payable by the
Tenant shall, for each Computation Year (as defined in Article
Twenty-four) ending after such
Default Termination, be deemed to be an amount equal to the amount of Article
24 Rent payable by the Tenant for the Computation Year immediately preceding
the Computation Year in which such Default Termination occurs or if the Default
Termination occurs prior to the end of the first Computation Year, then the
Landlord’s reasonable estimate of what Article 24 Rent would have been had the
Lease commenced one year earlier, and in either case deemed increased each year
by the percentage increase in Article 24 Rent for the immediately preceding
Computation Year over the Article 24 Rent for the twelve-month period prior
thereto or, if the Lease term did not occur throughout such prior years,
Landlord’s reasonable estimate of what such increase would have been had the


 


33

















 


term
occurred during such years. Suit or suits for the recovery of any damages
payable by the Tenant, or any installments thereof, may be brought by the
Landlord from time to time at its election, and nothing in this Lease shall be
deemed to require the Landlord to postpone suit until the date when the term of
this Lease would have expired but for such Default Termination.


 


17.3         Nothing in this Lease shall be construed as limiting or precluding the
recovery by the Landlord against the Tenant of any sums or damages to which, in
addition to the damages specified above, the Landlord may lawfully be entitled
by reason of any default under this Lease on the part of the Tenant.


 


ARTICLE EIGHTEEN 

Waivers by Tenant


 


18.1         The Tenant, for itself and all other Tenant Parties, and on behalf of
any and all persons, firms, entities and corporations claiming through or under
any Tenant Party, including, without limitation, 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 present or future law to redeem the
Premises or to have a continuance of this Lease for the full term hereby
demised after the Tenant is dispossessed or ejected therefrom by process of law
or under the terms of this Lease or after the expiration or termination of this
Lease as provided in this Lease or pursuant to law. The Tenant also waives (a)
the right of the Tenant to trial by jury in any summary dispossess or other
proceeding that may hereafter be instituted by the Landlord against the Tenant
with respect to the Premises or in any action that may be brought to recover
Rent, damages or other sums payable under this Lease, and (b) the provisions of
any law relating to notice and/or delay in levy of execution in case of an
eviction or dispossess of a tenant for nonpayment of rent, and of any other law
of like import now or hereafter in effect. If the Landlord commences any such
summary dispossess proceeding, the Tenant will not interpose any counterclaim
of whatever nature or description in such proceeding, other than a compulsory
counterclaim.


 


ARTICLE NINETEEN 

Tenant’s Removal


 


19.1         Any personal property which shall remain in any part of the Premises
after the expiration or termination of the term of this Lease with respect to
such part shall be deemed to have been abandoned, and either may be retained by
the Landlord as its property or may be disposed of in such manner as the
Landlord may see fit.


 


34

















 


ARTICLE TWENTY 

Elevators, Cleaning, Services, etc.


 


20.1         (a)           The Landlord will (i) supply passenger elevator service during Business
Hours to each floor, above the street floor of the Building, which is served by
the Building’s passenger elevators and on which the Premises are, or any
portion thereof is, located, with one of said elevators being subject to call
for such service during hours other than Business Hours, (ii) supply an
elevator for the transmission of freight to said floor or floors during
Business Hours, (iii) subject to any applicable policies or regulations adopted
by any utility or governmental authority, supply during Business Hours in the
heating season heat for the warming of the Premises and the public portions of
the Building, (iv) subject to any applicable policies or regulations adopted by
any utility or governmental authority, supply during Business Hours air
conditioning (including cooling during the cooling season as, in the Landlord’s
judgment, may be necessary) and ventilation to all portions of the Premises, if
any, which are served by the Building’s air conditioning and ventilation
systems, and (v) clean any portion of the Premises which is located on a floor
above the street floor of the Building except any such portion used for
preparing, dispensing or consumption of food or beverages or as an exhibition
area or classroom or auditorium or for storage, shipping room, mail room or
similar purposes or which is a toilet (other than a toilet shown on any diagram
attached hereto as Exhibit B) or
a shop or is used for a trading floor or for operation of computer, data
processing, reproduction, duplicating or similar equipment or any part of the
Premises which the Tenant has notified the Landlord that the same is being used
for the storage of valuables. The cleaning specifications annexed hereto as Exhibit C set forth substantially the
extent and scope of the cleaning to be performed by the Landlord in the
Premises as hereinabove provided in this Section. Except to the extent
contractually dedicated to other tenants in the Building on the date of this
Lease, the Landlord agrees not to dedicate any freight elevators to the
exclusive use of another tenant in the Building (other than for occasional,
short-term use) until the earlier of (A) the date on which the Tenant commences
the operation of its business in the Premises and (B) twelve (12) months after
the date of this Lease.


 


(b)           Notwithstanding anything to the contrary contained in this Lease, (i)
the air conditioning to be provided from the Building’s interior shaft shall be
such as to provide the number of cubic feet per minute per floor as set forth
opposite such floor on Exhibit H at
a supply air temperature of approximately 55 degrees Fahrenheit (plus or minus
one degree Fahrenheit) at all times during the cooling season and (ii) the
perimeter induction air conditioning units in the Premises shall provide the
minimum cooling capacities set forth on Exhibit
H. In order for said air conditioning
systems to function properly, the Tenant must, to the extent they are missing
therefrom, install building standard window


 


35

















 


blinds
or shades on all windows of the Premises and must lower and close such window
blinds or shades on all windows facing the sun whenever said air conditioning
system is in operation and the Tenant will at all times comply with all
regulations and requirements which the Landlord may reasonably prescribe for
the proper functioning and protection of said air conditioning system. No
representation is made by the Landlord with respect to the adequacy or fitness
of such air conditioning or ventilation to maintain temperatures that may be
required for, or because of, the operation of any computer, data processing or
other equipment of the Tenant and where air conditioning or ventilation is
required for any such purpose and the Landlord assumes no responsibility, and
shall have no liability for any loss or damage however sustained, in connection
therewith. Unless otherwise provided in this Lease, “Business
Hours”, means the
generally customary daytime business hours of the Tenant (but not before 8:00
A.M. or after 6:00 P.M.) of days other than Saturdays, Sundays and Holidays. As
used in this Lease, “Holidays” shall mean those holidays observed by the Landlord on the
date of this Lease and any other holidays established by the Landlord after the
date of this Lease; provided, that such other holidays are city, state or
federal holidays or observed as a union holiday by the unions serving the
Building.


 


(c)           The Tenant acknowledges that the supply air temperature set forth in
this Article Twenty may rise or fall from the
55 degree temperature set forth above during periods of warm-up and cool-down
typically following times other than Business Hours. Accordingly, the supply
air temperature may, at the Landlord’s option and typically prior to Business
Hours, be increased during periods of warm-up and reduced during periods of
cool-down.


 


20.2         The Landlord shall, when and to the extent reasonably requested by the
Tenant, furnish additional elevator, heating, air conditioning, ventilating
and/or cleaning services upon such reasonable terms and conditions as shall be determined by the
Landlord, including, without limitation, the payment by the Tenant of the
Landlord’s reasonable and customary charge therefor. To the extent available,
the Landlord shall, when and to the extent reasonably requested by the Tenant,
furnish the Tenant with condenser water as back up to the Tenant’s cooling
tower upon such reasonable terms and conditions as shall be determined by the
Landlord, including the payment by the Tenant of the Landlord’s reasonable and
customary charges therefor; provided, that the Tenant shall, subject to all
applicable provisions of this Lease including, without limitation. Article Six hereof, be responsible for making all
appropriate connections to the Landlord’s condenser water circulation system at
the Tenant’s sole expense. Notwithstanding the foregoing, nothing contained in
this Lease shall be deemed to obligate the Landlord to reserve condenser water
for the Tenant or to furnish condenser water to the Tenant on terms other than
those reasonably established by the Landlord. The


 


36

















 


Tenant
will also pay the Landlord’s reasonable and customary charge for (a) any
additional cleaning of the Premises required because of the carelessness or
indifference of any Tenant Party or because of the nature of any Tenant Party
business, provided that (i) such additional cleaning is authorized by a
responsible Tenant Party (except in the case of emergency) and (ii) the
Landlord keeps a contemporaneous record thereof and, upon the Tenant’s request,
provides evidence thereof to the Tenant, and (b) the removal of any refuse and
rubbish of any Tenant Party from the Premises and the Building, except
wastepaper and similar discarded material placed by the Tenant in wastepaper
baskets and left for emptying as an incident to the Landlord’s normal cleaning
of the Premises. If the cost to the Landlord for cleaning the Premises shall be
increased due to the use of any part of the Premises during hours other than
Business Hours or due to there being installed in the Premises, at the request
of or by any Tenant Party, any materials or finish other than those which are
of the standard adopted by the Landlord for the Building, the Tenant shall pay
to the Landlord an amount equal to such increase in cost.


 


20.3         All or any of the elevators in the Building may, at the option of the
Landlord, be manual or automatic elevators, and the Landlord shall be under no
obligation to furnish an elevator operator or starter for any automatic
elevator, but if the Landlord shall furnish any elevator operator or starter
for any automatic elevator, the Landlord may discontinue furnishing such
elevator operator or starter.


 


20.4         The Landlord reserves the right, without liability to the Tenant and
without constituting any claim of constructive eviction, to stop or interrupt
any heating, elevator, escalator, lighting, ventilating, air conditioning,
power, water, cleaning or other service and to interrupt the use of any
Building facilities, at such times as may be necessary and for as long as may
reasonably be required by reason of accidents, strikes, the making of repairs, alterations
or improvements, inability to secure a proper supply of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond the
reasonable control of the Landlord; provided, that any such stoppage or
interruption for the purpose of making any discretionary alteration or
improvement shall be made at such times and in such manner as shall not
unreasonably interfere with the Tenant’s use of the Premises. If any such stoppage
or interruption renders more than 500 rentable square feet of the Premises
untenantable for (a) fourteen (14) days in any thirty (30) day period after the
Tenant notifies the Landlord of such untenantability (subject to appropriate
extension for force majeure events), if the remedy of such stoppage or
interruption is within the Landlord’s reasonable control or was caused by the
sole negligence, gross negligence or willful misconduct of a Landlord Party, or
(b) in all events, thirty (30) days in any sixty (60) day period after the
Tenant notifies the Landlord of such untenantability, then Fixed Rent and
Article 24 Rent payable in


 


37

















 


respect
of the portion of the Premises rendered untenantable shall abate from the first
day after such portion of the Premises became untenantable until such portion
of the Premises is rendered tenantable; provided, that: (i) if (A) more than
25% of any full floor of the Premises is rendered untenantable as a result of
such stoppage or interruption and (B) the Tenant does not use any part of such
floor, then Fixed Rent and Article 24 Rent payable in respect of such full
floor shall be abated as aforesaid; and (ii) if (A) more than 50% of the entire
Premises is rendered untenantable as a result of such stoppage or interruption
and (B) the Tenant does not use any part of the Premises, then Fixed Rent and
Article 24 Rent payable in respect of the entire Premises shall be abated as
aforesaid. If the Tenant would be entitled to an abatement under this Section 20.4 but for the fact that the
Rent Commencement Date has not yet occurred, then the Rent Commencement Date
for the space in question shall be postponed by one (1) day for each day such
abatement would have been applicable had the Rent Commencement Date occurred.
Notwithstanding anything to the contrary contained in this Section 20.4, abatements under
this Section 20.4 shall be made
only if there is no other existing abatement relating to the space in question
under any provision of this Lease. If a substantial part of the Premises is
rendered untenantable as a result of such stoppage or interruption and it is
reasonably determined by the Landlord that such part of the Premises cannot be
made tenantable within a period of fifteen (15) months after the occurrence of
such stoppage or interruption, then, notwithstanding anything to the contrary
contained in this Section 20.4,
the provisions of Section 9.2 shall
control.


 


ARTICLE TWENTY-ONE 

Lease Contains All Agreements—No Waivers


 


21.1         This Lease contains all of the understandings relating to the leasing
of the Premises and the parties’ obligations in connection therewith. Neither
party nor any of the parties’ agents or representatives have made or are
making, and the parties in executing and delivering this Lease is not relying
upon, any warranties, representations, promises or statements whatsoever, except
to the extent expressly set forth in this Lease. All understandings and
agreements, if any, heretofore had between the parties are merged in this
Lease, which alone fully and completely expresses the agreement of the parties.


 


21.2         The failure of either party to insist in any instance upon the strict
keeping, observance or performance of any provision of this Lease or to
exercise any election in this Lease shall not be construed as a waiver or
relinquishment for the future of such provision, but the same shall continue
and remain in full force and effect. No waiver or modification by either party
of any provision of this Lease shall be deemed to have been made unless
expressed in writing and signed by both parties. No surrender of possession of
the Premises or of any part thereof or of any remainder of the


 


38

















 


term
of this Lease shall release the Tenant from any of its obligations under this
Lease unless accepted by the Landlord in writing. The receipt and retention by
the Landlord of Rent from anyone other than the Tenant shall not be deemed a
waiver of the breach by the Tenant of any provision in this Lease, or the
acceptance of such other person as a tenant, or a release of the Tenant from
its further observance of the provisions of this Lease. The receipt and
retention by the Landlord of Rent with knowledge of the breach of any provision
of this Lease shall not be deemed a waiver of such breach and the Landlord is
not bound by any restrictive endorsement received in connection therewith.


 


ARTICLE TWENTY-TWO 

Parties Bound; Exculpation


 


22.1         The provisions of this Lease shall bind and benefit the respective
successors, assigns and legal representatives of the parties to this Lease
except that (1) no violation of the provisions of Article
Seven shall operate to vest any
rights in any successor, assignee or legal representative of the Tenant and (2)
the provisions of this Article shall not be construed as modifying the
conditions of limitation contained in Article Fifteen.
The obligations of the Landlord under this Lease shall not, however, be binding
upon the Landlord herein named (or any transferee of its interest in the
Building or the Premises) with respect to the period (i) subsequent to the
transfer of its interest in the Building or the Premises (a lease of the entire
interest being deemed such a transfer), or (ii) subsequent to the expiration or
earlier termination of the term of any underlying lease to which this Lease and
the term and estate hereby granted may be subject and subordinate and wherein
the lessor thereunder has agreed to recognize this Lease in case the term of
said underlying lease expires or terminates prior to the expiration or
termination of the term of this Lease if the Landlord would not then be
entitled to terminate this Lease pursuant to said Article
Fifteen or to exercise any
dispossess remedy provided for in this Lease or by law; and in any such event
those covenants shall, subject to Article  Thirteen, thereafter be
binding upon the transferee of such interest in the Building or the Premises or
the lessor under said underlying lease, as the case may be, until the next such
transfer of such interest. Except as otherwise provided in Article Thirteen, no transfer of the
Landlord’s interest in this Lease shall affect the Tenant’s rights hereunder
including, without limitation, the Tenant’s rights to abatements of Fixed Rent
and Article 24 Rent.


 


22.2         The Tenant shall look solely to the Landlord’s interest in (a) the Land
and the Building, (b) subject to any underlying mortgages and underlying
leases, any casualty insurance proceeds in respect of the Building and (c) for
up to two (2) years after the Landlord’s receipt thereof, any net sale or
refinancing proceeds received by the Landlord in respect of the Land or the


 


39

















 


Building,
for the satisfaction of any monetary claim under this Lease, or for the
collection of any judgment (or other judicial process) based thereon, and no
other property or assets of the Landlord (or any affiliate, shareholder,
director, officer, employee, partner, agent, representative, or beneficiary of
the Landlord, disclosed or undisclosed) shall be subject to levy, execution or
other enforcement procedure for the satisfaction of such claim or judgment (or
other judicial process).


 


ARTICLE TWENTY-THREE 

Curing Tenant’s Defaults—Additional Rents


 


23.1         If the Tenant shall default in the observance of any provision of this
Lease beyond any applicable period of grace, the Landlord, without thereby
waiving such default, may perform the same for the account and at the expense
of the Tenant (a) immediately and without notice in the case of emergency, (b)
upon reasonable prior notice in case such default unreasonably interferes with
the use by any other tenant of any space in the Building or with the efficient
operation of the Building or will result in a violation of any Requirement
applicable to the Land, the Building or the Premises or any part thereof, to
the Tenant’s use thereof or to the Tenant’s observance of any provision of this
Lease, or in a cancellation of an insurance policy maintained by the Landlord,
and (c) in any other case if such default continues after thirty (30) days from
the date of the giving by the Landlord of notice of the Landlord’s intention so
to perform the same, provided, however, that if the Tenant’s default
constitutes a default under any underlying lease or underlying mortgage and the
lessor or mortgagee thereof notifies the Landlord of such default, then if the
cure period afforded the Tenant extends beyond the tenth day preceding the end
of the cure period permitted to the Landlord under the underlying lease or
underlying mortgage, the Landlord may so notify the Tenant, in which event the
Landlord’s right to cure the Tenant’s default will commence upon such tenth
day. All costs and expenses incurred by the Landlord in connection with any
such performance by it for the account of the Tenant and all costs and
expenses, including, without limitation, reasonable counsel fees and
disbursements incurred by the Landlord in any action or proceeding (including,
without limitation, any summary dispossess proceeding) brought by the Landlord
to enforce any obligation of the Tenant under this Lease and/or right of the
Landlord in or to the Premises, shall be paid by the Tenant to the Landlord
after notice. Except as expressly provided to the contrary in this Lease, all
costs and expenses which, pursuant to this Lease (including, without limitation,
the rules and regulations referred to in this Lease) are incurred by the
Landlord and payable to it by the Tenant and all charges, amounts and sums
payable to the Landlord by the Tenant for any property, material, labor,
utility or other services which, pursuant to this Lease or at the request and
for the account of the Tenant, are provided, furnished or rendered by the
Landlord shall become due and payable


 


40

















 


by
the Tenant to the Landlord in accordance with the terms of bills  therefor to be
rendered by the Landlord to the Tenant. If any cost, expense, charge, amount or sum referred
to in this Section or elsewhere in this Lease is not paid when due as provided in this Lease,
the same shall become due by the Tenant as additional rent under this Lease. If any Rent or damages
payable under this Lease is not
paid when due, the same shall bear interest at the rate of 1-1/2% per month (but in no event at a rate
in excess of that permitted by
law) from the due date thereof until paid and the amount of such interest shall be deemed
Additional Rent; provided, that
such interest shall only be payable in the case of Rent or damages which are
more than ten (10) days past due (and, if so payable, the Tenant shall pay interest on such Rent or damage from the due
date thereof until paid). If there is a nonpayment by the Tenant of any such Additional Rent and/or any
other Additional Rent becoming
due under this Lease, the Landlord, in addition to any other right or remedy, shall have the same
rights and remedies as in the
case of default by the Tenant in the payment of Fixed Rent. If the Tenant is in arrears in payment of
Rent, the Tenant waives the
Tenant’s right, if any, to designate the items against which any payments made by the Tenant are to be
credited, and the Landlord may
apply any payments made by the Tenant to any items of Rent the Landlord sees
fit, irrespective of and notwithstanding any designation or request by the Tenant as to the items against which any
such payments shall be credited. The Landlord reserves the right, without liability to the Tenant and
without constituting any claim
of constructive eviction, to suspend furnishing or rendering to the Tenant any property, material, labor,
utility or other service (other
than the services the Landlord is required to provide pursuant to Sections 5.1, 5.4 and 20.1), wherever
the Landlord is obligated to
furnish or render the same as an additional
expense of the Tenant, in the event that (but only so long as) the Tenant is in arrears in paying
the Landlord therefor at the
expiration of ten (10) days after the Landlord shall have given to the Tenant notice demanding the
payment of such arrears.


 


ARTICLE TWENTY-FOUR 

Adjustments for Changes in Landlord’s Costs and Expenses


 


24.1        If for any Computation Year, the R.E. Tax Share of the Real Estate
Taxes shall be greater than Base Real Estate Taxes, or the O.E. Share of the
Cost of Operation and Maintenance shall be greater than the Base COM, then the
Tenant shall pay to the Landlord, as Additional Rent, an amount equal to the
product obtained by multiplying such excess or excesses by the Tenant’s Area.


 


24.2        In order to provide for current payments on account of the Additional
Rent which may be payable to the Landlord pursuant to Section 24.1 for any Computation Year, the
Tenant agrees to make


 


41

















 


such
payments on account of said Additional Rent for and during such Computation
Year, as the case may be, as follows: 


 


(a)           With respect to Real Estate Taxes, the Tenant shall pay its share
thereof in two semiannual installments in advance on (i) the first day of June,
if paid by check, or the sixteenth day of June, if paid by wire transfer to an
account designated by the Landlord, and (ii) and the first day of December, if
paid by check, or the sixteenth day of December, if paid by wire transfer to an
account designated by the Landlord. If the Tenant desires to pay any such
semiannual installment by wire transfer, it shall so notify the Landlord on or
before the first day of the month in which such installment is due, and request
instructions as to where to wire its payment. Each semiannual installment shall
be equal to the product of the Tenant’s Area multiplied by one-half of the
excess of the R.E. Tax Share of the Real Estate Taxes for the Tax Year in which
the Landlord’s corresponding tax payment falls over the Base Real Estate Taxes.
If the tax bill for the following Tax Year is not received in time to bill the
June payment, the Landlord may estimate the payment due on June 1 or June 16
based on the Landlord’s estimate of the Real Estate Taxes for such following
Tax Year, which estimate shall be based on the Landlord’s then-current
knowledge of the effective Tax Rate and the Assessed Valuation (or Assumed
Assessed Valuation) of the Land and the Building. If, upon issuance of the tax
bill for such following Tax Year, such estimated amount results in an
underpayment, the Tenant shall pay to the Landlord the amount of the
underpayment. If, upon issuance of the tax bill for such following Tax Year,
such estimated amount results in an overpayment, the Landlord shall either pay
to the Tenant an amount equal to the overpayment or permit the Tenant a credit for such amount against
future Rent payments; provided, that if the Tenant is not then in default in
the payment of Rent and such overpayment is in excess of the next monthly
payment of Fixed Rent and Article 24 Rent, the Landlord shall pay such amount
to the Tenant (rather than permitting the Tenant a credit for such amount
against future Rent payments). If there shall be any increase in Real Estate
Taxes for any Tax Year, whether during or after such Tax Year, or if there
shall be any decrease in the Real Estate Taxes for any Tax Year, whether during
or after such Tax Year, the Tenant shall pay its share of any increase, or, to
the extent the decrease does not reduce the R.E. Tax Share of Real Estate Taxes
below the Base Real Estate Taxes, receive its share of any decrease,
substantially in the same manner as provided in the preceding two sentences. If
during the term of the Lease, Real Estate Taxes are required to be paid on any
other date or dates than as presently required, then the Tenant’s payments
toward Real Estate Taxes shall be correspondingly accelerated or revised so
that such payments are due at least thirty (30) days prior to the date payments
are due, if the Tenant’s payments are made by check, or fifteen (15) days prior
to the date such payments are due, if the Tenant’s payment is made by wire
transfer.


 


42

















(b)           With respect to Cost of Operation and Maintenance, the Tenant shall pay
an amount each month equal to the product of the Tenant’s Area multiplied by
l/12th of the excess of the O.E. Share of the Cost of Operation and Maintenance
for such Computation Year over the Base COM, as reasonably estimated by the
Landlord based on the Landlord’s then-current knowledge of the projected Cost
of Operation and Maintenance, the installment for each calendar month to be due
and payable upon the receipt from the Landlord of a bill for the same. If, as
finally determined, the amount of Additional Rent payable by the Tenant to the
Landlord pursuant to this subsection for such Computation Year shall be greater
than (resulting in an underpayment) or be less than (resulting in an
overpayment) the aggregate of all the installments so paid on account to the
Landlord by the Tenant for such Computation Year, then, promptly after the
receipt of the Escalation Statement for such Computation Year and, in
performance of its obligations under Section  24.1, the Tenant shall, in case of such
an underpayment, pay to the Landlord an amount equal to such underpayment or
the Landlord shall, in case of such an overpayment, either refund to the Tenant
an amount equal to such overpayment or permit the Tenant a credit for such
amount against future Rent payments; provided, that if the Tenant is not then
in default in the payment of Rent and such overpayment is in excess of the next
monthly payment of Fixed Rent and Article 24 Rent, the Landlord shall pay such
amount to the Tenant (rather than permitting the Tenant a credit for such
amount against future Rent payments). If the aggregate of all the installments
paid by the Tenant on account of Additional Rent under this subsection for any
Computation Year shall exceed 107.5% of the amount, as finally determined, of
Additional Rent actually payable by the Tenant to the Landlord pursuant to this
subsection for such Computation Year, then the amount of such overpayment shall
bear interest at the rate of one percent (1%) per month from the first day
after the end of such Computation Year until paid. The Landlord shall provide
an Escalation Statement as promptly as reasonably possible, but in no event
later than one hundred eighty (180) days after the end of each Computation
Year.


 


24.3         As used in this Article: 


 


(a)           “Computation
Year” shall mean each calendar year in which occurs
any part of the term of this Lease and, in the case of a Default Termination of
this Lease, in which would have occurred any part of the full term of this
Lease except for such Default Termination. 


 


(b)           “Tax Year” shall mean the twelve (12) month period commencing July 1 of each year, or such other twelve
(12) month period as may be duly adopted as the fiscal year for real estate tax
purposes in The City of New York.


 


43

















 


(c)           “Tenant’s
Area” shall mean the number of square feet in the
rentable area of the Premises as determined in accordance with Section 1.6. 


 


(d)           “R.E. Tax
Share” shall mean a fraction whose numerator is one
and whose denominator is 2,497,153,
which shall not be subject to remeasurement except by the number of square feet
actually added to or subtracted from the rentable area of the Building,
excluding from such denominator the number of rentable square feet in any
portion of the Building (i) not leased to the Tenant and for which Real Estate
Taxes are not payable in full, or (ii) for which the Real Estate Taxes are
payable directly in whole or in part by any person, firm or corporation other
than the Landlord, without reimbursement by the Landlord or (iii) at the Landlord’s
election, constituting a condominium unit not wholly or partially leased to the
Tenant). 


 


(e)           “O.E.
Share” shall mean a fraction whose numerator is one
and whose denominator is 2,497,153, which shall not be subject to remeasurement
except by the number of square feet actually added to or subtracted from the
rentable area of the Building, excluding from such denominator the number of
rentable square feet in any portion of the Building operated and maintained by
and at the expense of any person, firm or corporation (other than the Landlord
or, at Landlord’s election, any affiliate of Landlord) or of any theater or
garage located in the Building.


 


(f)            “Cost of Operation and Maintenance” shall mean the actual cost incurred by the
Landlord or its affiliates with respect to the ownership, operation,
maintenance and repair of the Building and the plaza, curbs and sidewalks
adjoining the same, including, without limitation, the cost incurred for air
conditioning; mechanical ventilation; heating; interior and exterior cleaning; rubbish
removal; window washing (interior and exterior, including, without limitation,
inside partitions); elevators; escalators; hand tools and other equipment to
the extent same are not required to be capitalized in accordance with generally
accepted accounting principles (“GAAP”); porter
and matron service; electric current, steam, water and other utilities;
association fees and dues; protection and security service; repairs;
maintenance; compliance with any Preservation Agreement to the extent same are
not required to be capitalized in accordance with GAAP; fire, extended
coverage, boiler, sprinkler, apparatus, rental income, public liability and property
damage insurance; supplies; wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance respecting service and
maintenance employees, building superintendents, concierges, managers, their assistants
and clerical staffs, and persons engaged in supervision of the foregoing;
uniforms and working clothes for such employees and the cleaning thereof;
expenses imposed pursuant to any collective bargaining agreement with respect
to such employees; payroll, social security, unemployment and other similar
taxes with respect


 


44

















to
such employees; sales, use and other similar taxes; vault charges; franchise
fees payable in connection with the concourse levels of Rockefeller Center;
water rates; sewer rents; charges of any independent contractor who does any
work with respect to the operation, maintenance and repair of the Building and
the plaza curbs and sidewalks adjoining the same; reasonable and customary
management fees not to exceed those which would be charged by comparable,
unaffiliated managing agents providing services similar to those provided by
the Landlord or the Landlord’s managing agent; legal, accounting and other
professional fees; decorations; and the annual depreciation or amortization
over the useful life thereof in accordance with GAAP of costs, including,
without limitation, financing costs, incurred for any equipment, device or
other capital improvement made or acquired which is either intended as a
laborsaving measure or to effect other economies in the operation, maintenance
or repair of the Building and said plaza, curbs and sidewalks (but only if the
annual benefits anticipated to be realized therefrom will, in the Landlord’s
reasonable judgement, exceed the annual amount to be amortized over the useful
life thereof) or which is required by any Requirement; provided, that the term “Cost
of Operation and Maintenance”
shall not include: 


 


(1)           Real Estate Taxes, special assessments,
franchise taxes or taxes imposed upon or measured by the income or profits of
the Landlord; 


 


(2)           except
for depreciation and amortization specifically provided for in this subsection,
the cost of any item which is, or should in accordance with good accounting practice
be, capitalized on the books of the Landlord; 


 


(3)           the cost of (A) any work or service performed
for any tenant of space in the Building (including the Tenant) at such tenant’s
cost and expense, including, without limitation, the furnishing of electricity,
and (B) any work or service performed for any tenant of space in the Building
(other than the Tenant) to the extent that such work or service exceed the work
or service performed for the Tenant under this Lease; 


 


(4)           any costs incurred with respect to any
theater or garage located in the Building, provided that costs of operating and
maintaining the loading dock in
the Building shall be included as a Cost of Operation and Maintenance; 


 


(5)           interest, points and fees on and amortization
of any debts, including mortgage indebtedness, any rents payable in respect of
any underlying or ground lease, and the cost of consummating any of the
foregoing;


 


45

















 


(6)           the cost of restoration or repair of the
Building or any part thereof incurred by reason of fire or other casualty or
condemnation; 


 


(7)           expenses for which the Landlord is reimbursed
out of the proceeds of insurance or by any tenant in the Building; 


 


(8)           commissions, legal fees, accounting fees,
lease takeover costs and other leasing expenses and advertising costs incurred
in leasing or procuring new tenants for the Building including the cost of subdivision,
layout installations, work done upon, and the finish of, any space in the
Building performed in connection with the occupancy of such space by a new
tenant or in connection with the renewal of a lease for such space with the
existing tenant thereof;


 


(9)           any legal, accounting and other fees or
expenses incurred in any lease enforcement or the securing or defense of the
Landlord’s title to the Land or the Building; 


 


(10)         interest, fines, penalties or other late
payment charges paid by the Landlord and costs incurred by the Landlord in
remedying violations of Requirements to the extent in excess of what the cost
of complying with such Requirements would have been had the Landlord timely
complied therewith; 


 


(11)         rentals for equipment ordinarily considered
to be of a capital nature (such as elevators and HVAC systems) except if such
equipment (A) is reasonably and customarily leased in the operation of
first-class, midtown Manhattan office buildings or (B) is of the type for which
depreciation and amortization is specifically provided for in this subsection;


 


(12)         additional costs incurred by the Landlord
which result from the Landlord’s breach of a lease in the Building or of any
law which would not have been incurred but for such breach; 


 


(13)         the cost of installing, operating and
maintaining any commercial concessions operated by the Landlord in the Building
or of installing, operating and maintaining any specialty services, such as a
Building cafeteria or dining facility, or an athletic, luncheon or recreational
club; 


 


(14)         all additions to Building reserves including
bad debts and rent loss reserves;


 


(15)         dues paid to trade associations and similar expenses
if there is no resulting benefit to the Building;


 


46














 


(16)         the
cost of removing asbestos-containing material and polychlorinated biphenyls in
order to comply with Requirements;  


 


(17)         advertising
and public relations costs incurred primarily for leasing individual space in
the Building, but the net cost of general promotional events sponsored by the Landlord
for the Building shall be included in the Cost of Operation and Maintenance;



 


(18)         the
Landlord’s general corporate overhead and general administrative expenses not
related to the operation of the Real Property (such as fees and costs in
connection with the sale or refinancing of the Real Property) and all compensation
to executives, officers or partners of the Landlord or to persons who are
executives or officers of partners of the Landlord or the Landlord’s managing
agent or to any other person above the grade of building manager and their
respective secretaries (other than any officer in the Operations Division and
their secretaries, in which case an allocable share, determined on the basis of
the amount of time spent on matters relating to the Building, of their salaries
and fringe benefits may be included in the Costs of Operation and Maintenance);



 


(19)         the
cost of any political or charitable donations;  


 


(20)         cost
of purchasing, installing and replacing art work in the building;  


 


(21)         the
overhead and profit increments paid to the Landlord, or to any subsidiary or
affiliate of the Landlord, for goods and/or services in the Building, to the
extent such overhead and profit increments exceed the costs of comparable goods
and/or services delivered or rendered by unaffiliated third parties of
comparable reputation, stature, experience and quality to the Landlord, on a
competitive basis;  


 


(22)         increases
in premiums for insurance carried by the Landlord pursuant to this Lease, which
increase is directly caused by use of the building by the Landlord or any other
tenant of the Landlord which is hazardous on account of fire or otherwise or
premiums for any insurance carried by the Landlord which is not customarily
carried by other reasonably prudent landlords in comparable first-class office
buildings in the midtown Manhattan area;  


 


(23)         to
the extent any costs includable in operating expenses are incurred with respect
to both the Building and other properties (including, without limitation,
salaries, fringe benefits and other compensation of Landlord’s personnel who provide
services to both the Building and other


 


47

















 


properties), there shall be excluded from the Cost of Operation and
Maintenance a fair and reasonable percentage thereof which is properly
allocable to such other properties;  


 


(24)         the
cost of providing any service customarily provided by a managing agent and the
cost of which is customarily included in management fees including general corporate
overhead and general administrative expenses related to the operation of the
Real Property (e.g., bookkeeping and accounting costs) except as otherwise
provided in this Lease;  


 


(25)         the
cost of any separate electrical meter Landlord may provide to any of the
tenants in the Building;  


 


(26)         costs
relating to withdrawal liability or unfunded pension liability under the
Multi-Employer Pension Plan act or similar law;  


 


(27)         costs incurred solely with respect to a sale
of the Building or any interest therein; or  


 


(28)         with
respect to those portions of the Premises on the C-2 and C-4 levels of the
Building, the cost of general office cleaning, rubbish removal other than in
the common areas of the Building and window cleaning other than in common areas
of the Building.  


 


Any
cost or expense of the nature described above to be included in the Cost of
Operation and Maintenance shall be included in the Cost of Operation and
Maintenance for any Computation Year no more than once, notwithstanding that
such cost or expense may fall under more than one of the categories listed in subsection 24.3(f) above. The Cost of
Operation and Maintenance shall be calculated on the accrual basis of
accounting. If, during the Computation Year utilized for purposes of
determining the Base COM, the tenant of any space in the Building undertook to
perform work or services therein in lieu of having the Landlord perform same
and the cost thereof would have been included in the Cost of Operation and
Maintenance if done by the Landlord, then the Cost of Operation and Maintenance
for such Computation Year shall include the amount that would have been
incurred if the Landlord had performed such work or services. The Landlord may
use related or affiliated persons to provide services or furnish materials for
the Land or the Building if the rates or fees charged by such persons are
competitive with those charged by unrelated or unaffiliated persons with
respect to first class office buildings in the Borough of Manhattan for the
same services or materials. If during any period for which the Cost of
Operation and Maintenance is being computed (including, without limitation, the
Computation Year utilized for purposes of determining the Base COM) the Landlord
is not, for all or any part of such period, furnishing any particular work or
service (the cost of which if performed by the Landlord would


 


48

















 


constitute
a Cost of Operation and Maintenance) to a portion of the Building due to the
fact that such portion is not leased to a tenant or that the Landlord is not
obligated to perform such work or service in such portion, then the amount of
the Cost of Operation and Maintenance for such period shall be deemed, for the
purposes of this Article, to be increased by an amount equal to the additional
Cost of Operation and Maintenance which would reasonably have been incurred
during such period by the Landlord if it had furnished such work or service.



 


(g)           “Real Estate  Taxes” shall
mean the taxes (“Taxes”) and assessments imposed
upon the Building and the Land including without limitation assessments made as
a result of the Building or part thereof being within a business improvement
district, or the aggregate of taxes and assessments imposed upon all portions
of the Building and the Land, if such taxes and assessments are imposed
separately, but excluding penalties and interest. Real Estate Taxes shall
include, without limitation, all reasonable and customary expenses, including,
without limitation, fees and disbursements of counsel and experts, incurred or
reimbursable by the Landlord in connection with any application for a reduction
in the assessed valuation for the Building and/or the Land or for a judicial
review thereof (but in no event shall such expenses be included in Base Real
Estate Taxes); provided that if the Landlord uses in-house personnel for such
purposes, the cost thereof shall be included in Real Estate Taxes only to the
extent properly allocable to the Building and/or the Land. Real Estate Taxes
shall not include franchise, income, profit, inheritance, estate, succession or
transfer taxes; provided that if any such tax or other tax, due to a future
change in the method of taxation, shall be levied against the Landlord in
substitution in whole or in part for or in lieu of any tax which would
otherwise constitute a Real Estate Tax, such tax shall be deemed to be a Real
Estate Tax for the purposes of this Lease. Where the Real Estate Taxes are not
separately levied upon the Building and the Land but are included in a blanket
levy imposed upon or with respect to the Building and/or the Land as well as
others, the amount of Real Estate Taxes for the purposes of this Lease shall be
determined by allocation as follows: the amount of Real Estate Taxes for the
Building shall be deemed to be that amount which, in relation to the total
amount of said taxes for all buildings included in said blanket levy, is in the
same proportion as the total rentable area of the Building bears to the total
rentable area of all the included buildings, and the amount of Real Estate
Taxes for the Land shall be deemed to be that amount which, in relation to the
total amount of said taxes for all land included in said blanket levy, is in
the same proportion as the rentable area of the Building bears to the aggregate
rentable area of all buildings situated on said included lands. Real Estate
Taxes shall not include any portion thereof payable directly by a person or
entity other than the Landlord, without reimbursement by the Landlord.
Notwithstanding the foregoing, if:


 


49

















 


(A)          a
Transfer shall occur at any
time during the term of this
Lease, the following formula (the “Alternative Computation
Formula”) shall be used to compute Taxes for each Tax Year
subsequent to the Transfer Tax Year to and including the earlier to occur of
(1) December 31, 2008 or (2) the Tax Year in which the Assumed Assessed
Valuation multiplied by the Tax Rate is equal to or greater than the Taxes for
such Tax Year: Taxes shall be an amount equal to the product of (x) the
Tax Rate in effect in the respective Tax Year multiplied by (y) the
Assumed Assessed Valuation for the respective Tax Year; and  


 


(B)           the
Building and/or the Land are no longer used as an office building and such
change in use shall result in a change of the tax classification of the
Building or the Land for purposes of determining the Tax Rate applicable
thereto, Taxes shall be computed as if the Tax Rate was the rate applicable to
the tax classification of the Building and the Land prior to such change (or
its equivalent).  


 


(h)           “Transfer” shall mean either (i) a “Transfer
of real property” (as
defined on the date of this Lease in Section 1440 of the Tax Law of the State
of New York) of the Land and/or the Building, or (ii) a refinancing (unless the
net proceeds of such refinancing, when aggregated with the net proceeds of all
refinancings outstanding on and after the date of the refinancing in question,
are less than the quotient of (1) the Assessed Valuation for the Tax Year in
which the refinancing takes place divided by (2) the applicable State
Equalization Rate as defined under the Real Property Tax Law of the State of
New York or any successor law applicable to the Tax Year in which the
refinancing takes place), if such sale or refinancing directly results in an
increased Assessed Valuation.  


 


(i)            “Assessed
Valuation” shall
mean, for any Tax Year, the actual assessment for such Tax Year for the Building
and the Land as finally determined under the Real Property Tax Law of the State
of New York or under any successor law (i.e., the value for the Building and
the Land upon which real estate taxes are based for such Tax Year if the
Building and Land are taxable or, if all or any portion of the Building or Land
is exempt, the value upon which real estate taxes would have been based but for
such exemption).  


 


(j)            “Average
Percentage Increase” shall
mean the sum of: (y) the percentage obtained by dividing (1) the excess, if
any, of the Assessed Valuation for the Transfer Tax Year over the Assessed
Valuation for the Tax Year which is five years prior to the Transfer Tax Year
(the “Comparison Year”) by (2) the product of
five times the Assessed Valuation for the Comparison Year and adding (z) one (1%) percent to the
amount determined in accordance


 


50

















 


with clause  (y) (e.g., if the Assessed Valuation in the Transfer Tax Year were
$110,000,000 and the Assessed Valuation in the Comparison Year were
$100,000,000, the Average Percentage Increase would be obtained by dividing
$10,000,000 by $500,000,000, which equals .02 (i.e., 2%), plus one (1%)
percent, for a total Average Percentage Increase of three (3%) percent).



 


(k)           “Tax Rate” shall mean, as to any Tax Year, the real estate
tax rate of the City of New York applicable to the Building and/or the Land
during the Tax Year in question.  


 


(l)            “Assumed Assessed Valuation” shall mean, as to any Tax Year,
an assumed assessed valuation of the Building and the Land, assuming that the
Assessed Valuation for each Tax Year subsequent to the Transfer Tax Year has
increased over the prior Tax Year by an amount equal to the Average Percentage
Increase (e.g., if a Transfer shall occur on April 2, 1997, the Assessed
Valuation for the Transfer Tax Year was $110,000,000 and the Average Percentage
Increase was 3%, then the Assumed Assessed Valuation for the Tax Year ending
June 30, 1999 is $110,000,000 + [(110,000,000 x 3%) + (113,300,000 [the Assumed
Assessed Valuation for the first Tax Year after the Transfer Tax Year] x 3%)],
which equals $116,699,000).  


 


(m)          “Escalation
Statement” shall mean a statement setting forth the amount payable
by the Tenant in respect of the Cost of Operation and Maintenance for a
specified Computation Year. Escalation Statements shall be substantially in the
form of Exhibit I attached
hereto.  


 


(n)           “Transfer
Tax Year” shall
mean the Tax Year in which the Transfer occurs.  


 


(o)           “Base Real Estate Taxes” shall mean the R.E. Tax Share of
Real Estate Taxes, as finally determined, for the 12-month period ending June 30,
1995.


 


(p)           “Base COM” shall mean the O.E. Share of Cost of Operation and
Maintenance for the Computation Year ending December 31, 1995.


 


24.4         If the term
commencement date shall be a day other than a January 1 or the date fixed for
the expiration of the full term of this Lease shall be a day other than
December 31, or if there is any abatement of Fixed Rent or any termination of
this Lease (other than a Default Termination), or if there is any increase or
decrease in the Tenant’s Area, then in each such event in applying the
provisions of this Article with respect to any Tax Year or Computation Year in
which such event occurred, appropriate adjustments shall be made to reflect the
result of such event on a basis consistent with the principles underlying the
provisions of this Article, taking into consideration (i) the portion of such


 


51

















 


Tax
Year or Computation Year, as the case may be, which shall have elapsed prior to
or after such event, (ii) the rentable area of the Premises affected thereby,
and (iii) the duration of such event. Without limiting the generality of the
foregoing, if there is any abatement of Fixed Rent with respect to any portion
of the Premises, the Additional Rent payable with respect to such portion of
the Premises under this Article shall be abated for the same period as is Fixed
Rent.  


 


24.5         The Tenant shall not
(and hereby waives any and all rights it may now or hereafter have to)
institute or maintain any action, proceeding or application in any court or
other body having the power to fix or review assessed valuations, for the
purpose of reducing the Real Estate Taxes.


 


24.6         When requested by the
Tenant within six (6) months following the receipt by it of any Escalation
Statement, the Landlord, in substantiation of the amounts set forth in such Escalation
Statement, will furnish to the Tenant such additional information as reasonably
may be required for such purpose, and, as may be necessary for the verification
of such information, will permit the pertinent records of the Landlord to be
examined at the office of the Landlord or its managing agent in New York, New
York during normal business hours by an employee of the Tenant or a nationally
recognized, independent certified public accounting firm designated by the
Tenant and reasonably acceptable to the Landlord it being expressly understood
that the Landlord shall be under no duty to preserve any such records, or any
data or material related thereto, longer than three (3) years. The Tenant shall
keep (and shall require its certified public accountants, if any, to keep) confidential
all of the Landlord’s records except in connection with any judicial proceeding
to resolve any dispute under this Lease. If any such examination by the Tenant
or the Tenant’s certified public accountant shall reveal that the amount set
forth in any Escalation Statement is more than one hundred ten percent (110%)
of the actual amount payable by the Tenant in respect of the Cost of Operation
and Maintenance for the relevant Computation Year, the Landlord shall reimburse
the Tenant for the reasonable and customary outside accounting costs incurred
by the Tenant in conducting such examination. If the Tenant shall bring an
action to contest the amounts set forth in any Escalation Statement, the Tenant
shall pay all reasonable counsel fees and costs incurred by the Landlord in
defending such action if the Tenant shall receive a final non-appealable judgment
which is not in excess of the amount the Landlord alleges is due the Tenant and
the Landlord shall pay all reasonable counsel fees and costs incurred by the Tenant
in prosecuting such action if the Tenant shall receive a final non-appealable
judgment which is in excess of the amount the Landlord alleges is due the
Tenant.


 


24.7         In the event the
Landlord fails to bill the Tenant for the Tenant’s share of Real Estate Taxes
or Cost of Operation and


 


52

















 


Maintenance
by the time such amounts would otherwise be due and payable hereunder, the
Tenant shall pay the amount most recently billed for the item in question,
subject to subsequent adjustment to reflect the correct amount due.
Notwithstanding the foregoing, the Landlord shall not bill for, and the Tenant
shall not dispute, any Real Estate Taxes or Cost of Operation and Maintenance
more than three (3) years after the end of the Computation Year in which the
same were incurred.


 


24.8         If available and
requested by the Tenant within six (6) months after the beginning of any Tax
Year, the Landlord will send the Tenant a copy of the tax bill for such Tax
Year.


 


ARTICLE TWENTY-FIVE 

Miscellaneous


 


25.1         If the Landlord shall
consent to a request by the Tenant for the omission or removal of any part of,
or the insertion of any door (other than to a public corridor) or other opening
in, any wall separating the Premises from other space adjoining the Premises,
then (a) the Tenant shall be deemed to have assumed responsibility for all
risks (including, without limitation, damage to, or loss or theft of, property)
incident to the use of said door or other opening or the existence thereof, and
shall indemnify and save the Landlord Indemnitees harmless from and against any
claim, demand or action for, or on account of, any such loss, theft or damage,
and (b) upon the expiration or termination of this Lease or any lease of said
adjoining space, the Landlord may enter the Premises and close up such door or
other opening by erecting a wall to match the wall separating the Premises from
said adjoining space, and the Tenant shall pay the reasonable cost thereof and such
work may be done during Business Hours and while the Tenant is in occupancy of
the Premises and the Tenant shall not be entitled to any abatement of Fixed
Rent or other compensation on account thereof; provided, that nothing shall be
deemed to vest the Tenant with any right or interest in, or with respect to,
said adjoining space, or the use thereof, and the Tenant hereby expressly
waives any right to be made a party to, or to be served with process or other
notice under or in connection with, any proceeding which may hereafter be
instituted by the Landlord for the recovery of the possession of said adjoining
space.


 


25.2         Without incurring any
liability to the Tenant, the Landlord may, upon reasonable prior telephonic
notice to the Tenant (but only to the extent the Landlord receives prior
notice), permit access to the Premises and open the same, whether or not the
Tenant shall be present, upon demand of any receiver, trustee, assignee for the
benefit of creditors, sheriff, marshal or court officer entitled to, or
reasonably purporting to be entitled to, such access for the purpose of taking
possession of, or removing, the Tenant’s property or for any other purpose (but
this provision and any action by the Landlord hereunder shall not be deemed a


 


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recognition
by the Landlord that the person or official making such demand has any right or
interest in or to this Lease, or in or to the Premises), or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal government.  


 


25.3         If an excavation
shall be made upon any land adjacent to the Building, or shall be authorized to
be made, the Tenant shall afford to the person causing or authorized to cause
such excavation a license to enter upon the Premises for the purpose of doing
such work as is reasonably necessary to preserve the Building from injury or
damage, all without any claim for damages or indemnity against the Landlord or
diminution or abatement of Rent; provided, that if any such work will take place in the Premises (a) such
person, in the Landlord’s reasonable judgment, has reasonably adequate
insurance coverage, (b) the Tenant is named as an additional insured under such
insurance and (c) the Landlord exercises reasonable precautions and supervision
under the circumstances so that such work does not unreasonably interfere with
the Tenant’s business. The Landlord shall give the Tenant reasonable prior
telephonic notice, if possible, of such an entry upon the Premises.


 


25.4         Time shall be of the
essence with respect to the exercise by the Tenant of any right of termination
or other option granted to it by this Lease. The Tenant shall not be entitled
to exercise any expansion option granted to it under Article
Thirty-one of this
Lease or the right of first offer granted to it under Article
Thirty-eight of this Lease at any
time when the Tenant is in default after notice in the payment of Fixed Rent
and Article 24 Rent.


 


25.5         The headings of the
Articles of this Lease are for convenience only and are not to be considered in
construing said Articles.


 


25.6         As used in this
Section, the term “facility” means stores, restaurants, cafeterias, rest rooms, and any
other facility of a public nature in the Building. The Tenant will not discriminate
by segregation or otherwise against any person or persons because of race,
creed, color, sex (except as appropriate in the case of rest rooms) or national
origin in furnishing, or by refusing to furnish, to such person or persons the
use of any facility in the Premises, including any and all services, privileges,
accommodations, and activities provided thereby. The Tenant’s noncompliance
with the provisions of this Section shall constitute a material breach of this
Lease. In the event of such noncompliance, the Landlord may take appropriate
action to enforce compliance, may terminate this Lease in accordance with the provisions
of this Lease, or may pursue such other remedies as may be provided by law. In
the event of termination, the Tenant shall


 


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be
liable to the Landlord for damages in accordance with the provisions of this
Lease.


 


25.7         If the Tenant
holds-over in the Premises after the expiration or termination of this Lease
without the consent of the Landlord:


 


(a)           for less than three
(3) months after such expiration or termination, the Tenant shall pay as
hold-over rental for each month of the first three (3) months of the hold-over
tenancy an amount equal to the greater of (i) 125% of the fair market rental value
of the Premises for such month (as reasonably determined by the Landlord) or
(ii) 125% of the Rent which Tenant was obligated to pay for the month
immediately preceding the expiration or termination of this Lease;


 


(b)           for more than three
(3) months but less than six (6) months after such expiration or termination,
the Tenant shall (i) pay as hold-over rental for each month after the third
month of the hold-over tenancy an amount equal to the greater of (i) 150% of
the fair market rental value of the Premises for such month (as reasonably
determined by Landlord) or (ii) 150% of the Rent which the Tenant was obligated
to pay for the month immediately preceding the expiration or termination of
this Lease; and


 


(c)           for more than six
(6) months after such expiration or termination, the Tenant shall (i) pay as
hold-over rental for each month of the hold-over tenancy after the sixth (6th)
month thereof an amount equal to the greater of (A) 150% of the fair market
rental value of the Premises for such month (as reasonably determined by
Landlord) or (B) 150% of the Rent which Tenant was obligated to pay for the
month immediately preceding the expiration or termination of this Lease, (ii)
be liable to the Landlord for (A) any payment or rent concession which Landlord
may be required to make to any tenant obtained by the Landlord for all or any
part of the Premises (a “New Tenant”) in order to induce such New Tenant not to terminate
its lease by reason of the holding-over by the Tenant and (B) the loss of the
benefit of the bargain if any New Tenant shall terminate its lease by reason of
the holding-over by the Tenant, and (iii) indemnify the Landlord against all
claims for damages by any New Tenant.


 


No
holding-over by the Tenant, nor the payment to or acceptance by the Landlord of
the amounts specified above, shall operate to extend the term of this Lease.


 


25.8         Any obligation of the
Landlord or the 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


 


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otherwise
provided in this Lease, shall survive the expiration or earlier termination of
this Lease.


 


25.9         If any provision of
this Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the application
of such provision to persons or circumstances other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each provision
of this Lease shall be valid and be enforced to the fullest extent permitted by
law.


 


25.10       It is the intention of
the Landlord and the Tenant to create the relationship of landlord and tenant,
and no other relationship whatsoever, and nothing herein shall be construed to make
the Landlord and the Tenant partners or joint venturers, or to render either
party hereto liable for any of the debts or obligations of the other party.


 


25.11       The Landlord and the
Tenant acknowledge that (i) improvements (including Fixtures) made or installed
by the Tenant in the Premises do not constitute consideration for the granting of
this Lease to the Tenant and (ii) there has been no adjustment in the Rent on
account of such improvements (including Fixtures).


 


25.12       Any payment required
to be made under this Lease for which no time period is stated within which the
payment must be made shall be made within thirty (30) days after demand by the party
entitled thereto.


 


25.13       Except to the extent
that the same is not obtainable at commercially reasonable rates, the Tenant
shall maintain, at all times during the term of this Lease and during any other
times the Tenant is granted access to the Premises, a policy or policies of “all
risk” property insurance covering the Tenant’s Property to a limit of not less
than 100% of the replacement cost thereof with the premiums fully paid on or
before the due date, issued by a reputable insurance company licensed to do
business in the State of New York, having a minimum rating A- XI by A.M. Best
& Company or such other comparable financial rating as the Landlord may at any
time consider appropriate, and reasonably acceptable to the Landlord. Each such
policy shall provide, if then generally available, that it cannot be cancelled,
changed or modified except upon 30 days’ prior notice to the Landlord. The
Tenant shall furnish original certificates of such insurance to the Landlord prior
to the term commencement date (or any date on which the Tenant is granted
earlier access) and thereafter not less than 30 days prior to the expiration of
each such policy and any renewals or replacements thereof. The Tenant shall
have included in all of its “all risk” property insurance policies insuring the
Tenant’s Property a waiver of the insurer’s right of subrogation against the Landlord
or, if such waiver is unobtainable or unenforceable, (i) an express agreement
that such policy shall not be invalidated if


 


56

















 


the insured waives the right of recovery against any party responsible
for a casualty covered by the policy before the casualty, or (ii) any other
form of permission for the release of the Landlord. If such waiver, agreement
or permission is not, or ceases to be, obtainable from the Tenant’s then
current insurance company, the Tenant shall so notify the Landlord promptly after
learning thereof, and shall use its best efforts to obtain same from another
insurance company. If such waiver, agreement or permission is obtainable only
by payment of an additional charge, the Tenant shall so notify the Landlord
promptly after learning thereof, and the Tenant shall not be required to obtain
said waiver, agreement or permission unless the Landlord agrees to pay the
additional charge therefor. The Tenant hereby releases the Landlord in respect
of any claim (including, without limitation, a claim for negligence) which it
might otherwise have against the Landlord for loss, damage or destruction of or
to its property to the extent to which it is insured under a policy containing
a waiver of subrogation or express agreement that such policy shall not be
invalidated or permission to release liability, as provided above in this
Section.


 


25.14      Each party hereby
represents to the other that it is not entitled, directly or indirectly, to
diplomatic or sovereign immunity. In all disputes arising out of this Lease the
parties, each person comprising the parties or claiming by or through the
parties, shall be deemed subject to service in the State of New York and to the
jurisdiction of the state and federal courts located in the State of New York and
such service may be accomplished in any manner permitted by law.


 


25.15      The Tenant represents
and warrants to the Landlord that the Tenant is a duly formed and validly
existing corporation under laws of the Republic of France duly qualified to do
business in the State of New York and the execution, delivery and performance
by Tenant of this Lease have been duly authorized by all necessary corporate
action. The Landlord represents and warrants to the Tenant that the Landlord is
a duly formed and validly existing corporation under laws of the State of New
York and the execution, delivery and performance by Landlord of this Lease have
been duly authorized by all necessary corporate action.


 


25.16      This Lease shall be
construed without regard to any presumption or other rule regarding
construction against the party drafting this Lease.


 


25.17      If the Tenant requests
the Landlord’s consent and the Landlord fails or refuses to give such consent,
the Tenant shall not be entitled to any damages for any withholding by the
Landlord of its consent; the Tenant’s sole remedy therefor shall be an action
for specific performance or injunction, and such remedy shall be available only
in those cases where this Lease provides that the Landlord shall not
unreasonably withhold, delay or


 


57

















 


condition
its consent or where as a matter of law the Landlord may not
unreasonably withhold, delay or condition its consent.


 


25.18      Except
to the extent that the same is not (a) obtainable from a reputable insurer
reasonably acceptable to the Landlord at commercially reasonable rates or (b)
being maintained by the majority of the
owners of comparable first-class office buildings in midtown Manhattan, the
Landlord will, during the term of this Lease, insure the Building against loss
or damage by fire, lightning, windstorm, hail, explosion (other than explosion
of boilers, heating apparatus or other pressure vessels), riot, riot attending
a strike, civil commotion, aircraft, vehicle or smoke in amounts sufficient to
prevent the Landlord from becoming a coinsurer with the terms of the policies
in question, but in any event in amounts not less than eighty percent (80%) of
the then full insurable value of the Building and with not more than five percent
(5%) of such insurable value deductible. The foregoing insurance may be
included in a “blanket” policy of the Landlord. The Landlord shall notify the
Tenant if the Landlord shall not be carrying any of the foregoing insurance,
and will request that its insurers give the Tenant thirty (30) days prior
notice of the cancellation of any of the foregoing insurance. Upon request by
the Tenant, but in no event more than once in any twelve (12) month period, the
Landlord shall furnish the Tenant with one of more certificates of insurance
evidencing the foregoing coverages.


 


25.19      During
the term of this Lease, the Landlord shall operate and maintain the Building as
a first-class office building in a manner consistent with first-class office
buildings in midtown Manhattan of similar size, character and operation.


 


25.20      The
Landlord shall indemnify, and save harmless, the Tenant and its officers,
directors, agents and employees (the “Tenant Indemnitees”) from and against all liability
(statutory or otherwise), claims, suits, demands, damages, judgements, costs,
interest and expenses (including reasonable counsel fees incurred in the
defense thereof) (collectively, “Losses”), but
specifically excluding any contractual obligation of any Tenant Indemnitee, to
which any Tenant Indemnitee may (except insofar as it arises from the conduct
of any Tenant Indemnitee or any Tenant Party) be subject or suffer, whether by
reason of, or by reason of any claim for, any injury to or death of any persons
or damage to property (including any loss of use thereof) or otherwise for any
Losses occurring in any Common Area and related to the Landlord’s operation or
maintenance of the Building. The term “Common Area”
means all public corridors and elevators in the Building not leased by the Landlord
to others and open to the general public.


 


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ARTICLE TWENTY-SIX


Signage and Information Desk


 


26.1        (a)           The Tenant shall have the right
during the term of this Lease, subject to the provisions of this Lease, to
display the following signage (collectively, “Tenant’s
Signage”) in or about the Building:


 


(1)           two (2) monuments which, as to size,
material, design and finish, are as shown on Exhibit
J-2 attached hereto, at the locations indicated on Exhibit J-1 attached hereto,


 


(2)           one (1) pylon sign which, as to size, material, design and
finish, is substantially as shown on Exhibit
J-3 attached hereto, at the location indicated on Exhibit J-1 attached hereto (the “Pylon”),


 


(3)           four (4) exterior plaques which, as to size, material,
design and finish, are as shown on Exhibit
J-4a attached hereto, at the locations indicated on Exhibits J-1 and J-4b attached hereto, and


 


(4)           four (4) interior plaques indicating the floors in the
Building occupied by the Tenant which, as to size, material, design and finish,
are as shown on Exhibit J-5 attached
hereto, at the locations indicated on Exhibits
J-1 and J-5 attached hereto.


 


The Landlord reserves the
right to display on the Pylon the names of up to two (2) additional tenants in
the Building; provided, that such tenants are not engaged in a business which
is not in keeping with the maintenance of the Building as a first-class
building and such displays shall not be above or more prominent than that of
the Tenant. All design, fabrication, installation and maintenance of the
Tenant’s Signage shall be performed by the Landlord at the Tenant’s expense,
except that the Landlord and the Tenant shall share equally the cost of design,
fabrication, installation and maintenance of the Pylon.


 


(b)           If the Tenant and/or Tenant
Affiliates shall no longer occupy at least 200,000 rentable square feet of
space in the Building, the Tenant shall have no further rights at any time
thereafter to so display, nor obligation to maintain, the Tenant’s Signage,
unless the Tenant and/or Tenant Affiliates thereafter again occupy at least
200,000 rentable square feet in the Building and the Landlord has not granted
such signage rights to another party, in which case the Tenant shall again have
the rights granted pursuant to the first sentence of subsection
26.1(a). If the Tenant shall
notify the Landlord to discontinue the display of all or any part of the
Tenant’s Signage, the Tenant shall have no further rights at any time
thereafter to so display such signage,


 


59

















 


unless the conditions set forth in the preceding
sentence are satisfied and the Landlord has not granted such signage rights to
another party, in which case the Tenant shall again have the rights granted
pursuant to the first sentence of subsection  26.1(a).


 


(c)           Upon the expiration or earlier
termination of the term of this Lease or such earlier time as the Tenant shall
not be entitled to display the Tenant’s Signage, the Landlord shall remove the
Tenant’s Signage and make good any damage to the Building or its appurtenances
which have been occasioned by reason of or in connection with the installation,
maintenance or removal of such display (except removal caused by the Landlord’s
gross negligence) and the Tenant shall reimburse the Landlord within 30 days of
receipt of statement thereof for the cost and expense incurred by the Landlord
in removing the Tenant’s Signage and making good such damage. Notwithstanding
the foregoing, if at the expiration or earlier termination of this Lease (i)
the Landlord shall elect to allow the Pylon to remain, the Tenant shall
reimburse the Landlord within thirty (30) days of receipt of statement thereof
for the cost and expense incurred by the Landlord in removing the Tenant’s name
therefrom and (ii) if the Landlord shall elect to remove the Pylon, the cost of
such removal and making good any resulting damage to the Building and its
appurtenances not caused by the Landlord’s gross negligence shall be borne equally
by the Landlord and the Tenant.


 


26.2        The
Landlord will permit the Tenant to establish at the location in the lobby of
the Building indicated on Exhibit J-1 a
service and information desk. Such desk may bear the Tenant’s name and/or logo
or, subject to the Landlord’s approval (which approval may not be arbitrarily
withheld), the name and/or logo of a Tenant Affiliate occupying not less than
40,000 rentable square feet of space in the Building. Such desk shall be
capable of utilization by the Tenant and up to two (2) other entities selected
by the Landlord, which other entities may only be other tenants in the
Building, the Landlord itself or an affiliate of the Landlord. The Tenant’s
portion of such desk may be used by one (1) or two (2) people. The size,
material, design and finish of such desk shall be substantially as shown on Exhibit J-6 attached hereto. Such right to
establish a service and information desk shall be evidenced by the execution
and delivery of, and shall be subject to the provisions of, an agreement
substantially identical to the agreement attached hereto as Exhibit K.


 


26.3        If
the Tenant and/or Tenant Affiliates occupy at least 200,000 rentable square
feet of space in the Building, the Landlord shall not (a) permit the Building
to be named after any commercial bank or (b) grant to any commercial bank
signage rights on the side of the Building or the Land facing Avenue of the
Americas unless such bank leases (i) the retail portion of the Building facing
Avenue of the Americas or (ii) more than 500,000 rentable square feet of space
in the Building.


 


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ARTICLE TWENTY-SEVEN


Brokerage Commission


 


27.1        The
Landlord and the Tenant represent to each other that the only brokers with
which they have dealt in connection with this Lease are Morgan Stanley Realty,
Incorporated (“Morgan”}, having an office at 1251
Avenue of the Americas, New York, New York 10020, and Cushman & Wakefield,
Inc. (“C&W”), having
an office at 1166 Avenue of the Americas, New York, New York 10036. The Tenant
shall indemnify and save harmless the Landlord Indemnitees from and against all
liability, claims, suits, demands, judgments, costs, interest and expenses
(including, without limitation, reasonable counsel fees and disbursements
incurred in the defense thereof) to which the Landlord Indemnitees may be
subject or suffer by reason of any
claim made by any person, firm or corporation other than C&W for any
commission, expense or other compensation as a result of the execution and
delivery of this Lease or the demising of the Premises by the Landlord to the
Tenant pursuant to this Lease, which claim is alleged to arise out of any
conversations, negotiations or dealings between such claimant and the Tenant.
The Landlord shall indemnify and save harmless the Tenant Indemnitees from and
against all liability, claims, suits, demands, judgments, costs, interest and
expenses (including, without limitation, reasonable counsel fees and
disbursements incurred in the defense thereof) to which the Tenant Indemnitees
may be subject or suffer by reason of any claim made by any person, firm or
corporation other than Morgan for any commission, expense or other compensation
as a result of the execution and delivery of this Lease or the demising of the
Premises by the Landlord to the Tenant pursuant to this Lease, which claim is
alleged to arise out of any conversations, negotiations or dealings between
such claimant and the Landlord. The Tenant agrees to pay a commission to Morgan
pursuant to a separate agreement between Morgan and the Tenant. The Landlord
agrees to pay a commission to C&W pursuant to a separate agreement between
C&W and the Landlord.


 


ARTICLE TWENTY-EIGHT


Quiet Enjoyment


 


28.1        If,
and so long as, the Lease is in full force and effect, the Tenant shall quietly
enjoy the Premises without hindrance or molestation by the Landlord or by any
other person lawfully claiming through or under the Landlord, subject, however,
to the provisions of this Lease and to the Qualified Encumbrances.


 


ARTICLE TWENTY-NINE


Hazardous Substances


 


29.1        The
Tenant shall not (a) cause or permit to be brought to the Building or the Land
any hazardous substances, (b) cause or permit the storage or use of hazardous
substances in any manner not


 


61

















 


permitted by any
Requirements applicable to the Land, the Building or the Premises or any part
thereof, to the Tenant’s use thereof or to the Tenant’s observance of any
provision of this Lease, or (c) cause or permit the escape, disposal or release
of any hazardous substances on or in the vicinity of the Building or Land;
provided, that nothing herein shall prevent the Tenant’s use of any hazardous
substances customarily used in the ordinary course of the business of the Tenant
and the Tenant’s permitted affiliates, subsidiaries, sublessees and assigns in
connection with their permitted use of space in the Premises in accordance with
the terms of this Lease, including, without limitation, the use of a fuel
storage tank for the Tenant’s emergency generator, if (i) such use is for such
ordinary course of the Tenant’s business, (ii) is in accordance with all
Requirements applicable to the Land, the Building or the Premises or any part
thereof, to the Tenant’s use thereof or to the Tenant’s observance of any
provision of this Lease and (iii) only reasonable quantities of hazardous
substances are brought to or used or stored in the Premises.


 


29.2        “Hazardous
substances” are
(i) any “hazardous wastes” as defined by the Resource, Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et
seq.), as amended from time to time,
and regulations promulgated thereunder; (ii) any “hazardous, toxic or dangerous
waste, substance or material” specifically defined as such in (or for purposes
of) the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. Section 9601 et
seq.), as amended from time to time, and regulations promulgated
thereunder; and (iii) any hazardous, toxic or dangerous chemical, biological or
other waste, substance or material as defined in any so-called “superfund” or “superlien” law or any other federal, state or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct
concerning such waste, substance or material; including, without limiting the
generality of the foregoing, asbestos, radon, urea formaldehyde,
polychlorinated biphenyls, and petroleum products (including, without
limitation, gasoline, fuel oil, crude oil and various constituents of such
products). Without limiting the generality of Section
6.1(j) hereof, the Tenant agrees that the covenants and warranties
contained in this Article are included within the matters as to which the
Landlord Indemnitees shall be indemnified pursuant to said Section
6.1(j).


 


29.3        The
covenants contained in this Article shall survive the expiration or earlier
termination of this Lease.


 


ARTICLE THIRTY


Service Option


 


30.1        The
Landlord hereby grants to the Tenant the exclusive and irrevocable option (the
“Service  Option”), with respect to each Assumable
Service, to assume and thereafter exercise control of and


 


62

















 


be responsible for providing
such Assumable Service at the Tenant’s expense on the terms and conditions
herein set forth.


 


30.2        A
Service Option may be exercised only in accordance with this Article and then
only as to an Assumable Service in its entirety by notice by the Tenant to the
Landlord (the “Service Option Notice”).
Notwithstanding anything to the contrary contained in this Lease, the Tenant
may not exercise a Service Option if (i) such election would result in an increase
in the Landlord’s cost (other than an increase for which the Tenant shall agree
to reimburse the Landlord) or interfere with the Landlord’s ability to provide
such Assumable Service to areas other than the Premises, it being understood
that the Tenant may not exercise the Service Option with respect to the
cleaning service provided pursuant to Article
Twenty unless the Tenant’s cleaning
contractor uses the Building’s elevators only during those hours when the same
are not being used by the Landlord’s cleaning contractor, or (ii) in the case
of the electrical service provided pursuant to Article
Five, the Tenant may
not exercise the Service Option with respect to the electric service if the
purchase of electric current directly from the public utility company would (y)
increase the Landlord’s costs of obtaining electric current to meet the Landlord’s
obligations or needs (unless the Tenant shall agree to reimburse the Landlord
for such increased costs) or (z) make it difficult or impossible for the
Landlord to obtain such electric current service.


 


30.3        If
a Service Option shall be exercised by the Tenant as to any Assumable Service,
unless the Tenant shall have already done so, the Tenant shall, within sixty
(60) days of the Tenant’s giving of the Service Option Notice, furnish the
Tenant’s estimated timetable for work in connection with such Assumable Service
for the Landlord’s approval. The Landlord shall approve or disapprove the
Tenant’s timetable within ten (10) business days. The Tenant’s timetable will
be deemed approved if the Landlord (a) fails to approve or disapprove the
Tenant’s timetable within the above-described ten-day period, and (b) still
fails to approve or disapprove same within three (3) business days after a
second notice from the Tenant, given after the expiration of such ten-day
period, which second notice must specify that the Landlord’s failure to approve
or disapprove same within three (3) business days will be deemed an approval of
same. Upon receipt of Landlord’s approval of the Tenant’s timetable (or upon
the deemed approval of same), the Tenant shall, at its expense, complete in
coordination with such timetable (subject to delays for causes beyond the
Tenant’s reasonable control) all work necessary to assume and thereafter
exercise control of and be responsible for providing, operating, maintaining,
repairing and replacing such Assumable Service at its expense, and from and
after the commencement of any work by the Tenant on such Assumable Service,
notwithstanding anything to the contrary contained in this Lease: (y) the
Tenant shall exercise control and be responsible for


 


63

















 


providing such Assumable
Service at its expense (it being understood that the Tenant’s responsibility
shall include, without limitation, the installation, operation, maintenance,
repair and replacement at the Tenant’s expense of all equipment, facilities and
building service systems which are required by applicable Requirements or which
the Landlord or the Tenant deems to be required for the fulfillment of its
responsibility including, without limitation, personnel changing, storage and
equipment rooms for the Tenant’s cleaning contractor) and (z) the Landlord
shall have no responsibility under this Lease or otherwise in respect of such
Assumable Service. Notwithstanding anything to the contrary contained herein,
the Landlord reserves the right, on a non-exclusive basis, to share with the
Tenant the janitor’s closets in the Premises and the Tenant shall not store any
equipment or materials therein which would unreasonably interfere with the
Landlord’s use thereof. If the Tenant exercises the Service Option with respect
to the cleaning service provided pursuant to Article
Twenty, the Landlord
shall, subject to the other provisions of this Article, use reasonable efforts
not to unreasonably interfere with the performance of the Tenant’s cleaning
contractor.


 


30.4        If
the Tenant exercises a Service Option, the Tenant shall not be permitted to
utilize any of the Landlord’s equipment providing service to the Premises as to
which a Service Option has been exercised, provided, that, if the Tenant shall
exercise a Service Option as to the electrical service, the Tenant shall be
permitted to purchase and use the switchgear, risers, conduits and feeders that
exclusively serve the portion of the Premises in question and are part of the
Assumable Service. The Tenant shall pay the Landlord for such equipment within
30 days after receipt of statements therefor an amount equal to the greater of
(i) the fair market value of such equipment or (ii) the Landlord’s unrecovered
capital costs (i.e., the actual capital expenditures required to be capitalized
in accordance with generally accepted accounting principles, plus the real or
imputed cost of financing such capital expenditures), plus any applicable
taxes. The Tenant’s purchase pursuant to this clause shall be made without
recourse to the Landlord and shall be evidenced by a bill of sale containing no
representation, warranty or covenant, express or implied, by the Landlord. The
Tenant shall thereafter keep all such equipment in a state of good repair and
operating condition and the Landlord shall have no obligation with respect to
the operation, maintenance, repair or replacement of any of such equipment and
shall have no liability with respect to any damage thereto or loss thereof.


 


30.5        The
Tenant shall be solely responsible, and the Landlord shall have no liability to
the Tenant or to any other tenants of the Building, for any interruption of any
utility or other building service caused by any work or action taken by or on
behalf of the Tenant in connection with any Assumable Service. The Tenant’s
responsibilities under this Article shall include, without


 


64

















 


limitation, in respect of
any Assumable Service as to which the Tenant has exercised a Service Option,
the responsibility at the Tenant’s expense to separate and relocate any
equipment and associated pipes, wires and other similar items owned by the
Landlord which serve the Tenant and/or others or otherwise arranging to the
Landlord’s reasonable satisfaction (taking into account, among other things,
the Landlord’s obligations under leases of space in the Building) for the
provision of services to others by the Landlord’s building service systems. All
work and actions taken by or on behalf of the Tenant and the Landlord in
connection with the assumption by the Tenant of any Assumable Service shall be
subject to the provisions of Article  Six.


 


30.6        The
term “Assumable
Service” shall
mean the (i) electrical service provided pursuant to Article
Five, but only if the
Tenant will become a direct customer of the public utility company providing
such service, and (ii) cleaning service provided pursuant to Article  Twenty, but
only if the Tenant has notified the Landlord that it is not satisfied with the
performance of the Landlord’s cleaning contractor and has given the Landlord a
reasonable period of time to rectify the situation.


 


30.7        On
or before the expiration or termination of this Lease with respect to all or
any portion of the Premises, the Tenant shall, at its expense, connect and
return all Assumable Services provided by the Tenant with or to the Landlord’s
building service systems, and title to all equipment assumed in connection with
the exercise of a Service Option shall automatically vest in the Landlord, at
no cost to the Landlord, and the same shall be delivered to the Landlord in
good order and condition (allowing for ordinary wear and tear).


 


30.8        The
Tenant shall indemnify and hold harmless each Landlord Indemnitee from and
against all liabilities (statutory or otherwise and whether arising from a
strict liability or per se negligence theory or otherwise), claims, suits,
demands, damages, judgments, costs, interest and expenses (including, without
limitation, reasonable counsel fees and disbursements incurred in defense
thereof) to which such Landlord Indemnitee may be subject or suffer in any
manner connected with the exercise of a Service Option and the Tenant’s
installation, operation, maintenance, repair or replacement of any Assumable
Service.


 


ARTICLE THIRTY-ONE 


Option Space


 


31.1        (a)           Subject to clause (g)
below, the Landlord hereby grants to the Tenant an option, exercisable as
hereinafter provided, to lease the space substantially as shown hatched on the
diagram attached hereto as Exhibit L and
designated as ‘C’ on the 12th Floor of the Building (the “First
Option Space”) for a
term commencing on the First Option Space Term Commencement Date and


 


65

















 


ending
on September 30, 2013 or on such earlier date upon which said term may expire
or be terminated pursuant to this Lease or pursuant to law. The Tenant shall
notify the Landlord on or prior to May 31, 1998 (as to which date time is of
the essence) of its election to exercise its option with respect to the First
Option Space. If such notice is timely given, Fixed Rent payable for the First
Option Space will be determined in accordance with clause
(e) below.


 


(b)           With reasonable promptness after the
exercise of the option with respect to the First Option Space, the Landlord and
the Tenant shall execute and deliver an amendment to this Lease confirming the
leasing of the First Option Space.


 


(c)           If the Tenant shall timely exercise
its option on the First Option Space, then, on and after the First Option Space
Term Commencement Date, such First Option Space shall be subject to and upon
all of the provisions of this Lease except (1) such provisions of this Lease as
have been rendered inapplicable by the passage of time, (2) Fixed Rent per
annum reserved under this Lease shall be deemed increased on and after the date
which is seven months after the First Option Space Term Commencement Date by
the First Option Space Fixed Rent, and (3) the term “Premises” as used in this
Lease shall be deemed to include the First Option Space, except that in
applying the provisions of Article Two to
the First Option Space, (i) the Premises shall be deemed to refer to the First
Option Space only and (ii) the “term commencement date” referred to in said Article Two shall be deemed to mean the
First Option Space Term Commencement Date. The Tenant shall not be charged
Article 24 Rent in respect of the First Option Space until the date which is
seven months after the First Option Space Term Commencement Date.


 


 


(d)          The
term “First
Option Space Term Commencement Date” shall mean the date on which the Landlord delivers possession
of the First Option Space to the Tenant; it being understood that the Landlord
shall use reasonable efforts to cause such date to occur no later than June 1,
2000.


 


(e)           The
term “First
Option Space Fixed Rent” shall
mean an annual amount equal to the product of the rentable square foot


 


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area of the First Option
Space determined in accordance with Section  1.6 multiplied by the following rates:


 


	
  Years

  	
   

  	
  Annual Fixed Rent

  Per Square Foot

  	
   

  
	
  First Option
  Space Term Commencement Date to August 31, 2003

  	
   

  	
  $

  	
  36.00

  	
   

  
	
  September 1,
  2003 to August 31, 2008

  	
   

  	
  $

  	
  40.00

  	
   

  
	
  September 1,
  2008 to September 30, 2013

  	
   

  	
  $

  	
  44.00

  	
   

  



 


(f)           Notwithstanding
anything else to the contrary set forth in this Lease, the Landlord shall
provide the Tenant, in connection solely with respect to the First Option
Space, a tenant allowance to be made available to and used by the Tenant in
preparing such First Option Space for the Tenant’s intended use in an amount
equal to fifty dollars ($50.00) per rentable square foot of space in the First
Option Space determined in accordance with Section
1.6. Such tenant allowance shall be made available to the Tenant and
disbursed in the same manner and subject to the same provisions as set forth in
Article Thirty-three.


 


(g)          Unless
the Tenant has elected to lease the Offer Space (as defined in Article  Thirty-eight) in
accordance with Article  Thirty-Eight, if the Tenant
exercises its option to lease the First Option Space in accordance with this Section 31.1, the Landlord reserves the right to exclude
space from the First Option Space for corridors, lavatories and other similar
facilities for a multi-tenant floor which are usual, customary or required by
Requirements; provided, that no space excluded from the First Option Space
shall be leased to another tenant for its exclusive use as office space.


 


31.2        (a)           The Landlord hereby grants to the
Tenant an option exercisable as hereinafter provided to lease, at the
Landlord’s option, one floor in the Building between Floor 21 and Floor 25
inclusive (the “Second Option Space”) for a term commencing on the
Second Option Space Term Commencement Date and ending on September 30, 2013 or
on such earlier date upon which said term may expire or be terminated pursuant
to this Lease or pursuant to law. The Tenant shall notify the Landlord on or
prior to June 30, 2001 (as to which date time is of the essence) of its
election to exercise its option with respect to the Second Option Space. If
such notice is timely given, Fixed Rent payable for the Second Option Space
will be determined in accordance with clause  (e) below. The Tenant may exercise its option
to lease the Second Option Space


 


67

















 


notwithstanding the fact
that the Tenant has not exercised its option to lease the First Option Space or
the Offer Space.


 


(b)          With
reasonable promptness after the exercise of the option with respect to the
Second Option Space, the Landlord and the Tenant shall execute and deliver an
amendment to this Lease confirming the leasing of the Second Option Space.


 


(c)          If the
Tenant shall timely exercise its option on the Second Option Space, then, on
and after the Second Option Space Term Commencement Date, such Second Option
Space shall be subject to and upon all of the provisions of this Lease except
(1) such provisions of this Lease as have been rendered inapplicable by the
passage of time, (2) Fixed Rent per annum reserved under this Lease shall be
deemed increased by the Second Option Space Fixed Rent, (3) in applying the
provisions of Article Twenty-four to the Second
Option Space, the Base Real Estate Taxes shall be deemed to be an amount equal
to the R.E. Tax Share of the Real Estate Taxes and the Base COM shall be deemed
to mean the O.E. Share of the Cost of Operation and Maintenance, both for the
12-month period ending on December 31, 2002, and (4) the term “Premises” as
used in this Lease shall be deemed to include the Second Option Space, except
that in applying the provisions of Article  Two to the Second Option Space (i) the Premises shall be
deemed to refer to the Second Option Space only and (ii) the “term commencement
date” referred to in Article  Two shall be deemed to mean the Second
Option Space Term Commencement Date.


 


(d)          The
term “Second  Option
Space Term Commencement Date” shall
mean the date on which the Landlord delivers possession of the Second Option
Space to the Tenant; it being understood that the Landlord will use reasonable
efforts to cause such date to occur by January 1, 2003.


 


(e)          The
term “Second
Option Space Fixed Rent” shall
mean an amount equal to the annual fair market rental value for the Second
Option Space on the Second Option Space Term Commencement Date which shall be
determined in accordance with the provisions for the determination of Fair
Market Rental Value described in subsection
32.1(c).


 


31.3        (a)           The Landlord hereby grants to the Tenant
an option to lease, at the Landlord’s option, one floor in the Building between
Floor 21 and Floor 25 inclusive (the “Third Option Space”)
for a term commencing on the Third Option Space Term Commencement Date and
ending on September 30, 2013 or on such earlier date upon which said term may
expire or be terminated pursuant to this Lease or pursuant to law. The Landlord
agrees that the Third Option Space will be contiguous to the Second Option
Space (if the Tenant exercised its option to lease the Second Option Space).
The Tenant shall notify the Landlord not later than eighteen (18) months prior
to the Third Option Space Delivery Date (as hereinafter defined)


 


68

















 


(as to which date time is of
the essence) of its election to exercise its option with respect to the Third
Option Space. If such notice is timely given, Fixed Rent payable for the Third
Option Space will be determined in accordance with clause (e) below. The Tenant may exercise its option to
lease the Third Option Space notwithstanding the fact that the Tenant has not
exercised its option to lease the First Option Space or the Second Option
Space.


 


(b)          With
reasonable promptness after the exercise of the option with respect to the
Third Option Space, the Landlord and the Tenant shall execute and deliver an
amendment to this Lease confirming the leasing of the Third Option Space.


 


(c)          If
the Tenant shall exercise its option with respect to the Third Option Space,
then, on and after the Third Option Space Term Commencement Date, such Third
Option Space shall be subject to and upon all of the provisions of this Lease
except (1) such provisions of this Lease as have been rendered inapplicable by
the passage of time, (2) Fixed Rent per annum reserved under this Lease shall
be deemed increased by the Third Option Space Fixed Rent, (3) in applying the
provisions of Article  Twenty-four to the Third Option Space, the
Base Real Estate Taxes shall be deemed to be an amount equal to the R.E. Tax
Share of the Real Estate Taxes and the Base COM shall be deemed to mean the
O.E. Share of the Cost of Operation and Maintenance, both for the 12-month
period ending on December 31 of the Computation Year in which the Third Option
Space Term Commencement Date occurs, and (4) the term “Premises” as used in
this Lease shall be deemed to include the Third Option Space, except that in
applying the provisions of Article  Two to the Third Option Space, (i) the
Premises shall be deemed to refer to the Third Option Space only and (ii) the
“term commencement date” referred to in Article  Two shall be deemed to mean the Third Option Space Term
Commencement Date.


 


(d)          The
term “Third
Option Space Term Commencement Date” shall mean the date on which the Landlord delivers possession
of the Third Option Space to the Tenant; it being understood that the Landlord
shall use reasonable efforts to cause such date to occur not later than January
1, 2007 (the “Third Option Space Delivery Date”); provided, that the Landlord may, by written notice
to the Tenant given on or prior to January 1, 2005, defer the Third Option
Space Delivery Date by up to twenty-four (24) months.


 


(e)          The
term “Third
Option Space  Fixed Rent” shall mean an
amount equal to the annual fair market rental value for the Third Option Space
on the Third Option Space Term Commencement Date which shall be determined in
accordance with the provisions outlining the determination of Fair Market
Rental Value described in subsection  32.1(c).


 


69

















 


(f)           The
term “Option
Space” shall
mean any of the First Option Space, the Second Option Space or the Third Option
Space.


 


31.4        The
parties acknowledge that the incorporation of Section 2.2
with respect to any Option Space shall constitute “an express provision to the
contrary” as such phrase is used in Section
223-a of the Real
Property Law of the State of New York and shall constitute a waiver of the
Tenant’s rights pursuant to such Section
223-a and any other law of like import now or hereafter in force.


 


31.5        The
Tenant shall not exercise any option described in this Article
Thirty-one unless the Tenant,
Tenant Affiliates and the Tenant’s then existing sublessees will occupy the
Option Space in question for the normal conduct of their respective businesses;
provided, that the Tenant’s then existing sublessees may not occupy more than
25% of the Option Space.


 


31.6        The
Landlord agrees not to enter into leases for the Option Space which expire
after, or which the Landlord does not have the right to terminate before, sixty
(60) days prior to the dates (the “Projected Delivery Dates”) by which Landlord has agreed to
use reasonable efforts to deliver Option Space to the Tenant. The Landlord
further agrees to commence and diligently prosecute a holdover proceeding
against any tenant of Option Space that remains in occupancy of Option Space
after the expiration or termination of its lease if such continued occupancy
will jeopardize the Landlord’s ability to deliver Option Space to the Tenant on
or before the applicable Projected Delivery Date. If, for reasons beyond the
Landlord’s reasonable control, the Landlord is unable to deliver any Option
Space to the Tenant on or before the date which is twelve (12) months after the
applicable Projected Delivery Date, and the Landlord has comparable space
available in the Building, such comparable space shall be substituted for the
Option Space which the Landlord is unable to deliver. The Tenant shall have
thirty (30) days after such substitute space is offered (as to which date time
is of the essence) to accept or reject same as the Option Space in question. If
the Tenant shall fail to accept or reject such substitute space within such
thirty (30) day period, the Tenant shall be deemed to have rejected such
substitute space. If, for reasons beyond the Landlord’s reasonable control, the
Landlord is unable to deliver any Option Space to the Tenant on or before the
date which is twelve (12) months after the applicable Projected Delivery Date,
and the Landlord does not have comparable space available in the Building, the
Tenant shall have the right, exercisable by written notice to the Landlord
given within thirty (30) days after the expiration of such twelve (12) month
period, to nullify its exercise of the option in question.


 


70

















 


ARTICLE THIRTY-TWO


Renewal Options


 


32.1        (a)           So long as this Lease shall then be
in full force and effect, then the Tenant shall have the option to extend and
renew the term of this Lease for one additional five-year period by notifying
the Landlord of its intention not later than September 30, 2011 (as to which
date time is of the essence) (such notice being the “First Renewal Notice”). Upon the timely giving of the
First Renewal Notice, the initial term of
this Lease shall (unless said term shall sooner have expired or
terminated pursuant to any of the conditions of limitation or other provisions
of this Lease or pursuant to law) be deemed extended for an additional period
of five (5) years (the “First Renewal Term”),
namely the period commencing on October 1, 2013 and ending on September 30,
2018 (subject to earlier termination pursuant to any of the conditions of
limitation or provisions of this Lease or pursuant to law), such extension to
be subject to and upon all of the provisions of this Lease (including, without
limitation, Article Twenty-four), except
(i) such of the provisions of this Lease as have been rendered inapplicable by
the passage of time, (ii) the Base Real Estate Taxes shall be deemed changed to
an amount equal to the R.E. Tax Share of the Real Estate Taxes and the Base COM
shall be deemed changed to an amount equal to the O. E. Share of the Cost of Operation and
Maintenance, both for the Computation Year ending on December 31, 2013 and (iii)
Fixed Rent payable for the First Renewal Term shall be determined in accordance
with the provisions of subsection (c) below.


 


(b)           If the Tenant has timely elected to
extend the term of this Lease for the First Renewal Term and so long as this
Lease shall then be in full force and effect, the Tenant shall have the option
(the “Second
Renewal Option”) to
extend and renew the term of this Lease for a second additional five-year
period by notifying the Landlord not later than September 30, 2016 (as to which
date time is of the essence) (such notice being the “Second Renewal Notice”). Upon the timely giving of the
Second Renewal Notice the term of this Lease shall (unless said term shall
sooner have expired or terminated pursuant to any of the conditions of
limitation or other provisions of this Lease or pursuant to law) be deemed
extended for an additional period of five (5) years (the “Second
Renewal Term”), namely the period commencing on
October 1, 2018 and ending on September 30, 2023 (subject to earlier
termination pursuant to any of the conditions of limitation or provisions of
this Lease or pursuant to law), such extension to be subject to and upon all of
the provisions of this Lease (including, without limitation, Article Twenty-four), except
(i) such of the provisions of this Lease as have been rendered inapplicable by
the passage of time, (ii) the Base Real Estate Taxes shall be deemed changed to
an amount equal to the R.E. Tax Share of the Real Estate Taxes and the Base COM
shall be deemed changed to an amount equal to the O. E. Share of the Cost of
Operation and Maintenance, both


 


71














 


for the Computation Year
ending on December 31, 2018, (iii) Fixed Rent payable for the Second Renewal
Term shall, if not previously determined, be determined in accordance with the
provisions of subsection (c) below,
and (iv) the Tenant shall have no further right to extend or renew the term of
this Lease.


 


(c)           Fixed Rent payable during a Renewal
Term shall be equal to the annual fair market rental value, taking into account
all then relevant factors (including, without limitation, any workletter
allowance, free rent or other concessions and whether the Landlord is obligated
to pay a brokerage commission by reason of the exercise by the Tenant of the
expansion or renewal option in question) (the “Fair Market
Rental Value”) of the Premises, less,
in the case of space occupied by the Tenant and/or any Tenant Affiliates only
for so long as the same is so occupied, five percent (5%) of the net rent
component of such Fair Market Rental Value (i.e., the Fair Market Rental Value
less the then current costs of the Landlord incurred in connection with the
Premises such as Cost of Operation and Maintenance and Real Estate Taxes). If the
Tenant shall timely exercise its renewal option, then not later than six (6)
months prior to the commencement of the Renewal Term in question the Landlord
shall deliver to the Tenant a notice setting forth the Landlord’s estimate of
the Fair Market Rental Value for the Premises as of the commencement of the
Renewal Term, which estimate may provide for an interim Increase or increases during
the Renewal Term. If the Tenant shall disagree with the Landlord’s estimate,
the Tenant shall, within ninety (90) days after receipt of the Landlord’s
notice, notify the Landlord of the Tenant’s election to determine the Fair
Market Rental Value in accordance with the provisions of clause
(d) below. If the Tenant shall
fail to give such notice within such ninety-day period, the Tenant hereby
expressly agrees that it shall conclusively be deemed to have accepted the
Landlord’s estimate of the Fair Market Rental Value, and the Landlord’s
estimate shall be used for purposes of computing Fixed Rent payable for the
Renewal Term. The term “Renewal Term” shall mean, collectively, the First
Renewal Term and the Second Renewal Term.


 


(d)           (i)            Within
ninety (90) days after receipt by the Landlord of a timely notice from the
Tenant objecting to the Landlord’s estimate of the Fair Market Rental Value,
the Landlord and the Tenant shall meet to attempt to agree on the Fair Market Rental
Value. Each party shall be entitled to have its consultants and experts
participate in the meetings. If the Fair Market Rental Value for any Renewal
Term shall not be determined prior to three months before the first day of such
Renewal Term then either the Landlord or the Tenant may, by notice to the
other, invoke the arbitration procedure set forth in subclause (ii) of this clause  (d).


 


(ii)           The party invoking the arbitration
procedure shall give a notice (the “Arbitration
Notice”) to the other party


 


72

















 


stating that the party sending the Arbitration Notice desires to meet
within 10 days to attempt to agree on a single arbitrator (the “Arbitrator”) to
determine the Fair Market Rental Value. If the Landlord and the Tenant have not
agreed on the Arbitrator within 30 days after the giving of the Arbitration
Notice, then either the Landlord or the Tenant, on behalf of both, may apply to
the New York City office of the American Arbitration Association or any
organization which is the successor thereof (the “AAA”)
for appointment of the Arbitrator, or, if the AAA shall not then exist or shall
fail, refuse or be unable to act such that the Arbitrator is not appointed by
the AAA within 60 days after application therefor, then either party may apply
to the administrative judge of the Supreme Court of New York, New York County
(the “Court”) for the appointment of the
Arbitrator and the other party shall not raise any question as to the Court’s
full power and jurisdiction to entertain the application and make the
appointment. The date on which the Arbitrator is appointed is the “Appointment Date”. If any Arbitrator appointed under
this Lease shall be unwilling or unable, for any reason, to serve or to
continue to serve, a replacement arbitrator shall be appointed in the same
manner as the original Arbitrator. The arbitration shall be conducted in
accordance with the then prevailing rules of the local office of the AAA,
modified as follows:


 


(1)           The Arbitrator shall
be disinterested and Impartial, shall not be affiliated with the Landlord or
the Tenant and shall be an MAI appraiser with at least 10 years’ current experience
in the determination of the fair market values of, and fair market rentals in,
comparable buildings in Manhattan.


 


(2)           Before hearing any
testimony or receiving any evidence, the Arbitrator shall be sworn to hear and
decide the controversy faithfully and fairly by an officer authorized to
administer an oath and a written copy thereof shall be delivered to the
Landlord and the Tenant.


 


(3)           Within 20 days after
the Appointment Date, the Landlord and the Tenant shall deliver to the
Arbitrator two copies of their respective written determinations of the Fair Market
Rental Value (each, a “Determination”)
for the Premises. After the submission of any Determination, the submitting
party may not make any additions to or deletions from, or otherwise change,
such Determination. If either party fails so to deliver its Determination
within such time period, time being of the essence with respect thereto, such party
shall be deemed to have irrevocably waived its right to deliver a Determination
and the Arbitrator, without holding a hearing, shall accept the Determination
of the submitting party as the Fair Market Rental Value. If each party timely submits
a Determination, the Arbitrator shall, promptly after its receipt of the second
Determination, deliver a copy of each party’s Determination to the other party.


 


73

















 


(4)           If the Fair Market
Rental Value has not been determined pursuant to subclause
(3) of this Section
32.1{d)(ii), then not less than
15 days nor more than 30 days after the earlier to occur of (i) the expiration
of the twenty-day period provided for in subclause
(3) or (ii) the Arbitrator’s receipt of both of the Determinations
from the parties (such earlier date being the “Submission
Date”), and upon not less than 10 days’ notice to the parties, the Arbitrator
shall hold one or more hearings with respect to the determination of the Fair
Market Rental Value of the Premises. The hearings shall be held in the City of
New York at such location and time as shall be specified by the Arbitrator.
Each of the parties shall be entitled to present all relevant evidence and to
cross-examine witnesses at the hearings. The Arbitrator shall have the
authority to adjourn any hearing to such later date as the Arbitrator shall specify;
provided, that, in all events, all hearings with respect to the determination
of the Fair Market Rental Value shall be concluded not later than 45 days after
the Submission Date.


 


(5)           Except as otherwise
provided in subclause (3) of this
Section 32.1(d)(ii), the
Arbitrator shall be instructed, and shall be empowered only, to select as the
Fair Market Rental Value in respect of the Premises that one of the Determinations
which the Arbitrator believes is the more accurate determination of the Fair
Market Rental Value. Without limiting the generality of the foregoing, in
rendering his or her decision, the Arbitrator shall not add to, subtract from
or otherwise modify the provisions of this Lease or either of the
Determinations.


 


(6)           The Arbitrator shall
render his or her determination as to the selection of a Determination in a
signed and acknowledged written instrument, original counterparts of which
shall be sent simultaneously to the Landlord and the Tenant within 10 days
after the earlier to occur of (i) his or her determination of the Fair Market
Rental Value pursuant to subclause  (3) of this Section
32.1(d)(ii) or (ii) the conclusion
of the hearing(s) required by subclause  (4) of this Section
32.1(d)(ii).


 


( iii )        the
arbitration procedures set forth in this Article shall constitute a written
agreement to submit any dispute regarding the determination of the Fair Market
Rental Value to arbitration. The arbitration decision, determined as provided
in this Section 32.1, shall be conclusive and
binding on the parties, shall constitute an “award” by the Arbitrator within
the meaning of the AAA rules and applicable law, and Judgment may be entered
thereon in any court of competent jurisdiction. Each party shall


 


74

















 


pay its own fees and expenses relating to the arbitration (including,
without limitation, the fees and expenses of its counsel and of experts and
witnesses retained or called by it). Each party shall pay one-half of the fees
and expenses of the AAA and of the Arbitrator; provided, that (a) the
Arbitrator shall have the authority to award such fees and expenses in favor of
the prevailing party and (b) if either party fails to submit a Determination
within the period provided therefor, such non-submitting party shall pay all of
such fees and expenses.


 


32.2         If
Fixed Rent shall not be determined prior to the commencement of a
Renewal Term, the Tenant shall pay an interim Fixed Rent for the period
commencing on the day after such expiration date and ending on the last day of
the month in which the Fair Market Rental Value is determined, equal to Fixed
Rent and Additional Rent payable under this Lease on such expiration date
(without giving effect to any existing abatement under this Lease of Fixed Rent
in effect on such day other than any abatement under Article Ten).
When Fixed Rent is determined, Fixed Rent for such period shall be recomputed
and, if such recomputed Fixed Rent for such period is in excess of the Interim
Fixed Rent so paid, the Tenant shall, within 20 days after such amount has been
determined, pay to the Landlord an amount equal to such excess and if such recomputed
Fixed Rent for such period is less than the interim Fixed Rent so paid, the
Landlord shall credit such overpayment against the next installments of Rent
coming due under this Lease. In any event, after Fixed Rent payable for a
Renewal Term shall have been determined (whether by agreement or otherwise as hereinabove
provided), the Landlord and the Tenant shall execute an amendment to this Lease
confirming the same.


 


32.3         The
Tenant may exercise the renewal options provided for in this Article  Thirty-two for
(a) the entire Premises or (b) less than the entire Premises; provided, that if
the Tenant renews this Lease for less than the entire Premises, the Tenant (i)
must renew this Lease with respect to that portion of the Premises on the 6th
and 7th Floors of the Building, (ii) may only renew this Lease for contiguous
full floors and (iii) may not exercise the Second Renewal Option for any
premises which are not included in the Premises during the First Renewal Term. With
reasonable promptness after the exercise of any renewal option, the Landlord and
the Tenant shall execute and deliver an amendment to this Lease confirming the
exercise of the renewal option in question.


 


32.4         The
Tenant understands that the renewal options provided for in this Article Thirty-two may be exercised only
if, on the commencement of each Renewal Term, at least 75% of the Premises will
be used solely by the Tenant and Tenant Affiliates in the normal conduct of
their respective businesses.


 


32.5         Notwithstanding
anything herein to the contrary, the exercise by the Tenant of a renewal option
provided for in this


 


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Article Thirty-two shall in no way vitiate the
ability of the Landlord to terminate this Lease in accordance with the
provisions of Article  Fifteen.


 


ARTICLE THIRTY-THREE

Work by Tenant


 


33.1         The
Tenant shall promptly submit to the Landlord, for the Landlord’s approval (such
approval not to be unreasonably withheld), complete architectural and
mechanical working drawings and specifications showing the Tenant’s proposed
renovation of the Premises consistent with the design, construction and
equipment of the Building and in conformity with the standards of the Building,
all in such form and in such detail as may be reasonably required by the
Landlord. The working drawings and specifications to be submitted to the
Landlord shall be prepared by a reputable architect licensed in the State of
New York (in consultation with a reputable engineer licensed in the State of
New York where required by the nature of the work), each reasonably
satisfactory to the Landlord, who shall be engaged by the Tenant and who, at
the Tenant’s expense, shall furnish all architectural and engineering services
necessary for the preparation of said working drawings and specifications. If
the Tenant shall submit to the Landlord for approval working drawings and
specifications for no more than two (2) floors of the Building at any given
time, the Landlord shall have ten (10) business days after the date of
submission, or four (4) business days after the date of resubmission of revised
working drawings and specifications reflecting only revisions which are
responsive the Landlord’s comments and the date of resubmission of such revised
working drawings and specifications is not more than thirty (30) days after the
Landlord’s initial disapproval thereof (a “Qualified
Resubmission”), to approve or disapprove
such working drawings and specifications or Qualified Resubmission. The
Landlord will be deemed to have approved working drawings and specifications if
the Landlord (A) fails to approve or disapprove same within the above-described
ten-day period (or four-day period in the case of Qualified Resubmissions), and
(B) still fails to approve or disapprove same within two (2) business days (or
one (1) business day in the case of Qualified Resubmissions) after a second
notice from the Tenant, given after the expiration of such ten-day (or
four-day) period, which second notice must specify that the Landlord’s failure
to approve or disapprove same within two (2) business days (or one (1) business
day) will be deemed an approval of same. The Landlord agrees to review the
Tenant’s working drawings without charge if submitted in accordance with the
foregoing provisions of this Section 33.1; provided,
that if the retention of independent consultants is necessitated because the
Tenant’s working drawings include any highly specialized or unusual
installations, the Landlord shall be entitled to retain independent consultants
for reviews and inspections made in connection therewith and shall be entitled
to reimbursement from the Tenant,


 


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within 20 days after request therefor, for all reasonable fees of such
consultants.


 


33.2         If
(a) the Landlord does not approve the Tenant’s working drawings under Section 33.1 and (b) the Tenant believes
that the failure to approve such working drawings was not reasonable, then the
Tenant shall have the right to request, by written notice to the Landlord (the “Tenant  Work Arbitration
Notice”), that the question of whether the failure to approve such
working drawings was reasonable be determined by arbitration in accordance with
the provisions of this Section 33.2.
The Landlord and the Tenant agree that one of Gensler & Associates,
Thornton-Tomaseti P.C. and Phillips Janson Group Architects P.C. (the “Tenant Work Arbitrator”) shall serve as
the arbitrator in any such arbitration. Promptly after the giving of the Tenant
Work Arbitration Notice, the Tenant may submit to the Tenant Work Arbitrator
for consideration copies of all working drawings previously submitted to the
Landlord and the Landlord’s responses thereto, but the Tenant shall not submit
to the Tenant Work Arbitrator any other materials or information. The Landlord
may submit to the Tenant Work Arbitrator for consideration copies of all
responses previously submitted to the Tenant in connection with the Tenant’s
working drawings, but the Landlord shall not submit to the Tenant Work
Arbitrator any other materials or information. In determining whether the
Landlord was reasonable in disapproving the Tenant’s working drawings, the
Tenant Work Arbitrator shall consider all relevant factors. Within seven (7)
days after the Tenant submits to the Tenant Work Arbitrator copies of all
working drawings previously submitted to the Landlord, the Tenant Work
Arbitrator shall submit a written decision to the Landlord and the Tenant as to
whether the Landlord was reasonable in disapproving the Tenant’s working
drawings, which decision shall be final and binding on the Landlord and the
Tenant. If the Tenant Work Arbitrator fails to render a decision within said
seven (7) day period, the Tenant shall have the right to commence another
arbitration pursuant to this Section 33.2.
If the decision of the Tenant
Work Arbitrator shows that the Landlord was not reasonable in disapproving the
Tenant’s working drawings, the Landlord shall be deemed to have approved same.
Each party shall bear its own costs in connection with the arbitration,
including, without limitation, their attorneys’ and consultants’ fees. The
costs of the Tenant Work Arbitrator shall be borne equally by the parties. Each
party agrees that it will (i) not sue the Tenant Work Arbitrator as a result of
the decision rendered in the arbitration and (ii) if requested by the Tenant
Work Arbitrator, indemnify and hold the Tenant Work Arbitrator harmless from
any and all loss, cost and/or expense incurred by the Tenant Work Arbitrator in
connection with the arbitration.


 


33.3         If
the Landlord shall not approve any working drawings or specifications submitted
by the Tenant, the Landlord shall, with reasonable promptness, notify the
Tenant thereof and of the


 


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particulars of such revisions as are reasonably required by the
Landlord for the purpose of obtaining its approval, and, as promptly as
reasonably possible after being so informed by the Landlord, the Tenant shall
submit to the Landlord, for the Landlord’s approval (which approval shall not
be unreasonably withheld), working drawings or specifications, as the case may
be, incorporating such revisions (the working drawings and specifications, as
so approved, are the “Tenant Working
Drawings”}. If available, the Tenant shall require all Tenant
Working Drawings to be prepared on a CADD System using the naming conventions
issued by the American Institute of Architects in June 1990 (or such other
naming convention the Landlord may reasonably select) and shall provide, at the
Tenant’s expense, the Landlord with magnetic computer media of as-built
drawings, translated into DXF format or such other format reasonably selected
by the Landlord. All work and services described in the Tenant Working
Drawings, and all labor, materials and equipment necessary to perform the same,
are the “Tenant Work”. Any such approval by the
Landlord shall not be deemed to be a representation or warranty that the same
is properly designed to perform the function for which it is intended or
complies with any applicable Requirement.


 


33.4         The Tenant Work shall be performed in
accordance with and subject to all of the provisions of this Lease (including, without
limitation, Article Six). The
Tenant shall, at its expense, proceed with due dispatch to cause the Tenant
Work to be promptly completed. The Tenant shall, as part of the Tenant Work, install
all branch piping and sprinkler heads from the fire sprinkler loop serving the
Premises required by all applicable Requirements and install toilet facilities
and elevator call buttons in the Premises that are in compliance with all Requirements
having as a primary purpose the benefit of disabled persons. The Landlord
shall, at the request and expense of the Tenant, reasonably cooperate with the
Tenant in obtaining any necessary permits, certificates or approvals required
by the Department of Buildings for the City of New York or any other municipal
authority having jurisdiction over the Tenant Work, including, without
limitation, executing any necessary applications and authorizations, if in a
form reasonably acceptable to the Landlord.


 


33.5         The Landlord shall reimburse the Tenant
for the actual cost of such Tenant Work, not to exceed, in the aggregate, $23,105,300
(the “Tenant Allowance”) as
follows: The Tenant Allowance shall be paid in installments, not more often
than monthly, to the Tenant within thirty (30) days of the presentation to the
Landlord of invoices for which no Tenant Allowance has theretofore been paid
and such other evidence reasonably requested by the Landlord to confirm the
payment by the Tenant of such costs. Each request shall be accompanied by (a) a
certificate executed by the Tenant’s architect stating that, to the architect’s
best knowledge after due inquiry and inspection, the Tenant Work for


 


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which payment is requested has been performed in a good and  workmanlike manner and in accordance with the
applicable plans previously
approved by the Landlord and all applicable Requirements and identifying the work for which
reimbursement is requested, and (b)
evidence reasonably satisfactory to the Landlord that each contractor, subcontractor or materialman has
waived and released any lien
theretofore filed by it (with respect to the Tenant Work) against the Premises or the Building and has
waived and released its right to
file any such lien with respect to all portions of the Tenant Work for which payment is requested.
Within thirty (30) days after
receipt of such request, the Landlord shall reimburse to the Tenant the amount set forth in the
approved invoice or invoices,
except to the extent that the Landlord asserts that the Tenant’s approval of the invoice as due and
owing is not true or is in
excess of the limitation on the aggregate reimbursement referred to above, until ninety-five percent
(95%) of the Tenant Allowance
has been so disbursed. Within thirty (30) days after the completion of all Tenant Work contemplated
herein, the Tenant shall deliver
to the Landlord (i) a certificate from the Tenant’s architect certifying that the work has been
completed in accordance with
this Lease, all applicable rules and regulations, all applicable Requirements, and the Tenant
Working Drawings, (ii) a detailed
list of completed work and copies of certified paid bills and a certificate signed by the Tenant’s
general contractor stating that
all contractors, subcontractors and materialmen have been paid for all work and materials furnished through
such date. The Tenant shall use
best efforts (without being obligated to expend money beyond that due in payment for the Tenant
Work) to deliver to the Landlord,
within thirty (30) days after completion of all Tenant Work contemplated herein, general releases
and waivers of lien from _all
contractors, subcontractors and materialmen involved in the performance of the Tenant Work. If the Tenant
is unable to deliver such
general releases and waivers of lien within said thirty (30) day period, the Tenant shall (A) nonetheless
continue using best efforts
(without being obligated to expend money beyond that due in payment for the Tenant Work) to deliver
the same to the Landlord until
such time as the contractors, subcontractors and materialmen in question may not, as a matter of law, file
a lien or charge against the
Building, the Land or any part thereof and (B) deliver to the Landlord a certificate signed by an
appropriate officer of the
Tenant either (1) stating that all contractors, subcontractors and materialmen have been paid for all work
and materials furnished in
connection with the Tenant Work or (2) if the Tenant is engaged in a bona fide dispute with any contractors,
subcontractors or materialmen,
describing the nature of the dispute. If the Tenant shall be engaged in a dispute with any
contractors, subcontractors or
materialmen who have not furnished general releases and waivers of lien, the Tenant shall act to resolve the
dispute with due diligence and
dispatch, and shall keep the Landlord fully informed of all material matters relating thereto. The
Landlord shall pay any remaining
unreimbursed amounts to the Tenant owed under this Section 33.5, including retainage, if any,
within thirty (30) days  


 


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after (x) the Tenant has satisfied the requirements of clauses (i) and (ii) above and (y) either (1) the Tenant shall have
delivered to the Landlord general releases and waivers of lien from all
contractors, subcontractors and materialmen involved in the performance of the
Tenant Work or (2) such time shall have elapsed that the contractors,
subcontractors and materialmen in question may not, as a matter of law, file a
lien or charge against the Building, the Land or any part thereof.
Notwithstanding the foregoing, nothing contained in this Section 33.5 shall in any way affect the
obligations of the Tenant under subsection  6.5(c). If the Tenant has (I) completed
such portion of the Tenant Work as would entitle the Tenant to receive the
entire Tenant Allowance remaining unpaid but for the Landlord’s right to retain
the final five percent (5%) of the Tenant Allowance and (II) satisfied the
conditions set forth In clauses  (i), (ii) and (y) above with respect to all portions of the Tenant Work
for which payment has been requested by the Tenant from the Landlord from the
Tenant Allowance, then the Landlord shall nonetheless pay to the Tenant the
portion of the then unpaid Tenant Allowance in excess of $500,000, deposit the
remaining $500,000 of the Tenant Allowance in a segregated, interest-bearing
account at a commercial bank, and pay to the Tenant the interest actually
collected by the Landlord thereon; provided, that the Tenant shall have
furnished the Landlord with such Information as the Landlord may reasonably
require for establishing such account and that the Tenant shall be responsible
for all taxes payable on such interest. In no event shall the Landlord be
required to make payments in an amount which exceeds, in the aggregate, the
Tenant Allowance. If any portion of the Tenant Allowance is not paid when due,
the same shall bear interest at the rate of 1% per month (but in no event at a
rate in excess of that permitted by law) from the due date thereof until paid;
provided, that such interest shall only be payable in the case of portions of
the Tenant Allowance which are more than ten (10) days past due (and, if so
payable, the Landlord shall pay interest on such portions from the due dates
thereof until paid). Without limiting the generality of the foregoing, except
as otherwise expressly set forth in this Section
33.5, the portion of the Tenant Allowance which is not then payable
but remains unpaid from time to time shall not bear interest.


 


33.6         In
addition to the Tenant Allowance, the Landlord agrees to reimburse the Tenant
for up to $62,500 per stairway, or $250,000 in the aggregate, for the Tenant’s
costs incurred in removing stairways from the Premises before the first
anniversary of the date of this Lease, which reimbursement will be made within
thirty (30) days of the presentation to the Landlord of invoices for which the
Tenant has not theretofore been reimbursed and such other evidence reasonably
requested by the Landlord to confirm the payment by the Tenant of such costs.
Each request by the Tenant for reimbursement under this Section 33.6
shall be made in accordance with the applicable provisions of Section 33.5.


 


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33.7         The
Landlord agrees that if, in the twelve (12) month period following the date of
this Lease, the Landlord shall (a) modify the existing underlying mortgage so
as to increase the principal balance secured thereby or (b) refinance the
existing underlying mortgage so that the principal balance secured thereby
exceeds the principal balance secured by the existing underlying mortgage on
the date of this Lease, the Landlord shall reserve the net proceeds of such
modification or refinancing, up to the amount of the then unexpended Tenant
Allowance, for twelve (12) months following such modification or refinancing
for purposes of funding the then unexpended Tenant Allowance.


 


ARTICLE THIRTY-FOUR

Early Possession


 


34.1         If
the Landlord shall deliver possession of all or any portion of the Premises to
the Tenant prior to the term commencement date, such possession shall be
subject to and upon all of the provisions of this Lease, except the Tenant’s
obligations to pay Fixed Rent and Article 24 Rent and the Landlord’s
obligations to provide cleaning services prior to the date the Tenant occupies
the Premises for the normal conduct of its business.


 


ARTICLE THIRTY-FIVE

Subletting


 


35.1         (a)           The Tenant covenants, for it and its
successors, assigns and legal representatives, that neither this Lease nor the
term and estate hereby granted, nor any part hereof or thereof, will be sublet
or under-sublet, without the prior consent of the Landlord in every such case;
provided, that the Tenant may, without the necessity for consent (but the
Tenant shall notify the Landlord within 30 days of the making of each such
sublease), at any time, sublet
any space to a Tenant Affiliate (but only so long as such party remains a
Tenant Affiliate).


 


(b)           In the event the Tenant desires to
sublet all or any part of the Premises for any part of the term of this Lease
to a party other than a Tenant Affiliate, the Tenant shall deliver to the
Landlord a notice (a “Sublet Notice”) containing
the name of the proposed sublessee, such information as to the proposed
sublessee’s business, financial responsibility and standing as the Landlord may
reasonably require, and of the provisions of the proposed subletting. The
Landlord will not unreasonably withhold or condition its consent to the
proposed subletting referred to in a Sublet Notice on the conditions set forth
in such Sublet Notice; provided, however, that the Landlord shall not in any
event be obligated to consent to any such proposed subletting unless:


 


(i)            the sublessee under
any such subletting shall (y) be such person, firm or corporation as in the
Landlord’s


 


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reasonable judgment is of a character and creditworthiness
and engaged in a business such as is in keeping with the standards in those
respects for the Building and its occupancy and (z) not be (A) a government or
a governmental authority or a subdivision or an agency of any government or any
governmental authority, or (B) a tenant of the Landlord in the Building or a
subsidiary or affiliate of such a tenant, or (C) a person, firm or corporation
with whom the Landlord has actively negotiated in good faith within the
previous ninety (90) days for comparable space in the Building, or a subsidiary
or affiliate of such a person, firm or corporation;


 


(ii)           if such subletting
shall be at a rental rate less than rental rates then being charged under
leases being entered into by the Landlord for comparable space in the Building
and for a comparable term, the Tenant shall not advertise such rates and shall
keep, and use reasonable efforts to cause the sublessee and broker to keep,
confidential all such information regarding rental rates;


 


(iii)          such consent shall
be evidenced by the delivery of, and shall be subject to the provisions of, a “Consent
to Sublease” duly executed by the Landlord, the Tenant and the sublessee and on
such reasonable and customary form of the Landlord as is adopted by it for such
purpose;


 


(iv)          the Tenant and the
sublessee shall agree (and the sublease shall provide) that the sublessee shall
not, without the prior consent of the Landlord, assign the sublease or
under-sublet the space so sublet or any part thereof; and


 


(v)           the sublease in
question, when aggregated with all other subleases of space in the Premises
made by the Tenant within the preceding twelve (12) months, does not exceed
86,000 rentable square feet.


 


As used in this Section 35.1,
the term “actively negotiated” shall mean one or more written or verbal
discussions or correspondence between the Landlord, or its authorized
representative, and the proposed sublessee or a subsidiary or affiliate of the
proposed sublessee, which discussions or correspondence include reference to
one or more basic business terms of letting space in the Building, such as,
without limitation, base or additional rent, escalations, term, amount or
location of space, work contributions, landlord’s work or rent concessions. For
purposes of this Section 35.1, the
mere inquiry for information concerning the letting of space in the Building or
the mere tour of space in the Building, without further discussion or
correspondence, shall not constitute “active negotiation”. If the Tenant shall
send a Sublet Notice to the Landlord and shall furnish to the Landlord such
information as to the proposed sublessee’s business, financial responsibility
and standing as the Landlord may reasonably require, and the terms of


 


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the proposed subletting, then within twenty (20) days after the
Landlord’s receipt of such Sublet Notice and such further information, the
Landlord shall give to the Tenant a notice setting forth the Landlord’s
election to consent to the proposed subletting or to withhold its consent to
the proposed subletting. The Landlord’s decision as to whether it will consent
to a proposed subletting shall be based on all relevant factors including,
without limitation, the proposed sublessee’s creditworthiness, net worth,
reputation, type of business, intended use, level of traffic and type of
clientele and Building service needs. If the Landlord elects to withhold its
consent, such notice shall set forth with reasonable specificity the Landlord’s
objections to the proposed subletting. The Tenant shall have the right to
resubmit to the Landlord a proposed subletting if the Tenant
in good faith believes the Landlord’s objections have been overcome. The
Landlord will be deemed to have consented to a proposed subletting if the
Landlord (A) fails to respond to a Sublet Notice from the Tenant with respect
to proposed subletting of a portion of the Premises within the above-described
twenty-day period, and (B) still fails to respond within five (5) business days
after a second notice from the Tenant, given after the expiration of such
twenty-day period, which second notice must specify that the Landlord’s failure to respond within five (5)
business days will be deemed a consent to the proposed subletting. The Landlord
shall keep confidential all information regarding proposed sublessees;
provided, that such information may be disclosed to the Landlord’s consultants,
attorneys, accountants, lenders, investors, prospective lenders and investors
and others who have a legitimate reason with respect to the Landlord’s business
to know same and agree to keep same confidential. In the event that (1) a
sublessee proposed by the Tenant in a Sublet Notice is not a person, firm or
corporation described in clause (z)(C) of Subsection  35.1(b)(i) above
and (2) the Landlord was not previously aware from a source other than the
Tenant that such proposed sublessee was interested in letting space in the
Building, then, for the period during the ninety (90) days immediately
following the Landlord’s receipt of the Sublet Notice with respect to such
proposed sublessee, the Landlord shall not initiate negotiations with such
proposed sublessee, or any of its subsidiaries or affiliates, for comparable
space in the Building; provided, however, that nothing contained herein shall
prohibit the Landlord, or its duly authorized representative, from negotiating
with such proposed sublessee or any of its subsidiaries or affiliates in the
event such proposed sublessee, any of its subsidiaries or affiliates, any of
their respective representatives or a broker initiates discussions with the
Landlord or its authorized representative concerning the letting of comparable
space in the Building to such proposed sublessee, or any of its subsidiaries or
affiliates.


 


35.2         If (a) the Landlord is obligated under subsection 35.l(b) to be
reasonable in determining whether it will consent to a proposed subletting, (b)
the Landlord withholds its consent to


 


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such subletting and (c) the Tenant believes that the withholding of
such consent was not reasonable, then the Tenant shall have the right to
request that the question of whether the withholding of such consent was
reasonable be determined by arbitration in accordance with the provisions of
this Section  35.2.
The Tenant may request arbitration of a proposed subletting by
notice to the Landlord (the “Sublet  Arbitration Notice”), which notice shall
include a list of at least five (5) candidates (“Candidates”)
to serve as arbitrator. All Candidates shall be impartial and unrelated to
either party and shall have substantial knowledge of, and not less than ten
(10) years of experience in, the ownership or management of first class office
space in midtown Manhattan. The Tenant must include on such list of Candidates
at least three (3) Candidates who are senior officers in an entity which,
together with its affiliates, owns and operates not less than 5,000,000 square
feet of first class office space in midtown Manhattan. Within four (4) business
days after receipt of the Sublet Arbitration Notice, the Landlord shall, by
notice to the Tenant, select a Candidate (the “Sublet
Arbitrator”) to serve as arbitrator under this Section
35.2. If the Landlord
(x) falls to select the Sublet Arbitrator within the above-described four-day
period, and (y) still fails to select the Sublet Arbitrator within one (1)
business day after a second notice from the Tenant, given after the expiration
of such four-day period, which second notice must specify that the Landlord’s
failure to select a Sublet Arbitrator within one (1) business day will give the
Tenant the right to select the Sublet Arbitrator, then the Tenant shall have
the right to select a Candidate to serve as the Sublet Arbitrator. Promptly
after the selection of the ‘ Sublet Arbitrator as aforesaid, the Tenant may
submit to the Sublet Arbitrator for consideration copies of this Lease, all
amendments thereto and all materials and information previously submitted to
the Landlord in connection with the proposed subletting and the Landlord’s
response thereto, but the Tenant shall not submit to the Sublet Arbitrator any
other materials or information. The Landlord shall have the right to submit to
the Sublet Arbitrator for consideration copies of this Lease and all amendments
thereto, all materials and information previously submitted to the Tenant in
connection with the proposed subletting and the Landlord’s response thereto,
but the Landlord shall not submit to the Sublet Arbitrator any other materials
or information. The Landlord and the Tenant shall keep confidential all
information and material regarding proposed sublessees and the terms of
proposed sublettings and shall each request that the Sublet Arbitrator keep
confidential all such materials and information; provided, that such
information and material may be disclosed to consultants, attorneys,
accountants, lenders, investors, prospective lenders and investors and others
who have a legitimate business reason to know same and agree to keep same confidential.
In determining whether the Landlord was reasonable in withholding its consent
to a proposed subletting, the Sublet Arbitrator shall consider all relevant
factors including, without limitation, the proposed sublessee’s
creditworthiness, net worth,


 


84

















 


reputation, type of business, intended use, level of traffic, type of
clientele and Building service needs. Within thirty (30) days after the Tenant
submits to the Sublet Arbitrator copies of all materials and information
previously submitted to the Landlord in connection with such proposed
subletting, the Sublet Arbitrator shall submit a written decision to the
Landlord and the Tenant as to whether the Landlord was reasonable in
withholding its consent to the proposed subletting, which decision shall be
final and binding on the Landlord and the Tenant. If the Sublet Arbitrator
fails to render a decision within said thirty (30) day period, the Tenant shall
have the right to commence another arbitration pursuant to this Section 35.2. If the decision of the Sublet
Arbitrator shows that the Landlord was not reasonable in withholding its
consent to the proposed subletting, and the Landlord was not otherwise entitled
to withhold its consent to the proposed subletting in accordance with the
provisions of subsection  35.1(b), the Landlord shall be deemed to
have consented thereto. Each party shall bear its own costs in connection with
the arbitration, including, without limitation, their attorneys’ and
consultants’ fees. The costs of the Sublet Arbitrator shall be borne equally by
the parties. Each party agrees that it will (i) not sue the Sublet Arbitrator
as a result of the decision rendered in the arbitration and (ii) if requested
by the Sublet Arbitrator, indemnify and hold the Sublet Arbitrator harmless
from any and all loss, cost and/or expense incurred by the Sublet Arbitrator in
connection with the arbitration.


 


35.3         The Tenant shall pay all reasonable
out-of-pocket costs and expenses incurred by the Landlord in connection with
its consideration of a proposed subletting except for arbitration costs, which
shall be borne by the parties in accordance with Section 35.2. In
addition, after the Landlord has considered twenty (20) proposed sublettings,
the Tenant shall pay to the Landlord a reasonable processing charge in
connection with each proposed subletting.


 


35.4         All of the provisions of any such “Consent
to Sublease” so executed by the Landlord, the Tenant and the sublessee shall be
deemed to be provisions of this Lease and the violation by the Tenant or the
sublessee of any provision of such “Consent to Sublease” shall entitle the
Landlord to all the rights and remedies provided for in this Lease or by law in
the case of any violation of a provision of this Lease.


 


35.5         If the aggregate amount payable by a
sublessee (other than a Tenant Affiliate) as rent or otherwise for the use or occupancy
of space (including, without limitation, all amounts payable on account of
changes in Real Estate Taxes, operating costs, maintenance costs, labor rates,
indexes or other formula contained in the sublease but excluding consideration
paid in respect of actual services rendered to the extent that the same does
not exceed that which bona fide third party would pay for the


 


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same services) with respect to any period of time under a sublease of
any part of the Premises shall be in excess of the Tenant’s Basic Cost (as
hereinafter defined) for such period allocable to such part of the Premises,
then, promptly after the collection by the Tenant of such amounts for such
period, the Tenant will pay to the Landlord, as Additional Rent hereunder, an
amount equal to fifty percent (50%) of the excess of such amounts so collected
for such period over the Tenant’s Basic Cost for such period for such part of
the Premises. The term “Tenant’s Basic Cost,” as used herein with
respect to any period for which any part of the Premises is sublet, shall mean
the sum of (a) Fixed Rent at the Applicable Rental Rate for each square foot of
the rentable area of such part of the Premises, (b) Article 24 Rent for such
period with respect to such part of the Premises, (c) the amount, if any,
amortized on a straight line basis over the term of the sublease, of any
customary brokerage commissions and reasonable legal fees and advertising
expenses paid by the Tenant to a party other than a Tenant Affiliate in respect
of such subletting and not reimbursed by the sublessee, and (d) the amount, if
any, amortized on a straight line basis over the term of the sublease of any
costs paid by the Tenant to a party other than a Tenant Affiliate in making
changes in the layout and finish of such part of the Premises at the request of
the sublessee but only to the extent that such costs are not reimbursed by such
sublessee.


 


35.6         If requested by the Landlord, the
Tenant shall deliver to the Landlord a statement, certified by an officer of
the Tenant, within thirty (30) days after the end of each calendar year in which
any part of the term of this Lease occurs specifying as to such calendar year,
and within thirty (30) days after the expiration or earlier termination of the
term of this Lease specifying with respect to the elapsed portion of the
calendar year in which such expiration or termination occurs, each sublease in effect
during the period covered by such statement and as to each sublease, the date
of its execution and delivery, the number of square feet of the rentable area
demised thereby, the term thereof, and a computation in reasonable detail
showing whether or not anything is payable by the Tenant to the Landlord
pursuant to this Article with respect to such sublease for the period covered
by such statement.


 


35.7         Each sublease of the Premises or a portion
thereof shall be subject and subordinate to this Lease and the rights of the Landlord
under this Lease and any violation of any provision of this Lease, whether
by act or omission, by any sublessee shall be deemed a violation of such
provision by the Tenant, it being the intention of the parties that the Tenant
shall assume and be liable to the Landlord for any and all acts and omissions of all sublessees if such act or omission,
if made by the Tenant, would be a violation of any provision of this Lease. No
sublease shall provide for a term which extends beyond the day prior to the
then expiration date of this Lease, In the event of the Tenant’s


 


86

















 


default in the payment of any Fixed Rent and/or Article 24 Rent beyond
any applicable period of grace and the Tenant is not then in good faith
disputing Fixed Rent or Article 24 Rent which is the subject of the default,
the Landlord may, after ten (10) days prior written notice to the Tenant,
collect rent from any sublessee so long as such default shall continue, and the
Landlord may apply the same to the curing of any such default under this Lease
in any order of priority the Landlord may select, any unapplied balance thereof
to be applied by the Landlord against subsequent installments of Rent, but the
Landlord’s collection of rent from a sublessee shall not constitute a
recognition by the Landlord of attornment by such sublessee nor a waiver by the
Landlord of any default by the Tenant.


 


35.8         As security for the performance of the
Tenant’s obligations under this Lease, the Tenant hereby agrees that if and only
for so long as the Tenant shall be in default in the payment of Fixed Rent
and/or Article 24 Rent beyond any applicable period of grace and the Tenant is
not then in good faith disputing Fixed Rent or Article 24 Rent which is the
subject of the default, the Tenant shall, after ten (10) days prior written
notice from the Landlord, assign to the Landlord all of the Tenant’s interest
in and to all present and future subleases of space in the Premises, together
with all modifications, renewals and extensions thereof now existing or
hereafter made, and also together with the rights to sue for, collect and
receive all rents, additional rents and other sums payable to the Tenant under
such subleases.


 


35.9         The term “Applicable
Rental Rate” shall mean at the
time in question the then per square foot amount for the space in question
payable as Fixed Rent pursuant to Article
First.


 


35.10       The term “Tenant
Affiliate” means a corporation, partnership
or other entity which controls, is controlled by or is under common control
with the Tenant. The term “control” means (a) ownership of not less than 34% of
the voting stock of a corporation or the equitable interest in any other
business entity and (b) the right to make all significant management decisions.


 


ARTICLE THIRTY-SIX

Landlord’s Work


 


36.1         The Landlord has or shall, as promptly
as is reasonably possible, (a) remove from the Premises all polychlorinated
biphenyls and asbestos (other than asbestos on the structural elements in the
perimeter and core areas such as columns, deck and beams and minor areas of
non-friable asbestos containing fireproofing at certain points on unaccessible
structural members), (b) re-fireproof such areas, (c) render the Premises broom
clean and vacant and (d) demolish all existing improvements in the Premises
(other than interior stairways and lavatories installed by the prior tenant).


 


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36.2         The Landlord shall (a) remove from the
Option Space all polychlorinated biphenyls and asbestos (other than asbestos on
the structural elements in the perimeter and core areas such as columns, deck
and beams and minor areas of non-friable asbestos containing fireproofing at
certain points on unaccessible structural members), (b) re-fireproof such
areas, (c) render the Option Space broom clean and vacant and (d) demolish all
existing Improvements in the Option Space (other than Interior stairways installed
by the prior tenant which connect to the Premises and lavatories installed by
the prior tenant).


 


36.3         The Landlord shall, at the Tenant’s
request, provide the Tenant with copies of any required filing, an ACP-5 Form
and, if requested, an ACP-7 Form in connection with the asbestos removal work
required under this Lease.


 


36.4         The Landlord shall provide the Tenant
with building standard blinds in good working order reasonably acceptable to
the Tenant for all exterior windows in the Premises (and, when delivered, the
Option Space).


 


ARTICLE THIRTY-SEVEN

Use Areas


 


37.1         The Tenant shall have the right to use
the portion of the roof area immediately above the 7th Floor of the Building
substantially as shown hatched on the diagram attached hereto as Exhibit N (the “Setback Area”) for the
installation and use of a 1600-kilowatt emergency generator and a 400-ton
cooling tower as shown on the sketches attached hereto as Exhibit O and, subject to the Landlord’s
reasonable approval as to the size and location thereof, other equipment serving
the Premises (collectively, the “Setback  Equipment”); provided, that the Landlord
hereby reserves the right to Install and maintain a six (6) inch conduit
through the Setback Area in such manner as will not unreasonably interfere with
the Tenant’s use of the Setback Area. The Tenant shall not use the Setback Area
for any other purpose. The Tenant’s use of the Setback Area in respect of the
Setback Equipment shall be subject to such reasonable rules as the Landlord may
from time to time designate and to the following additional conditions: (i) no
Setback Equipment other than the above-referenced cooling tower and emergency
generator shall be installed if the same in the Landlord’s reasonable judgment
would cause any interference with the operation of any equipment theretofore
installed in or on the Building or on or in any other building or would not be
consistent with the character of a first-class office building in midtown
Manhattan; (ii) the Tenant shall be solely responsible for the installation, maintenance,
repair, security, operation and replacement of the Setback Equipment
(including, without limitation, the cost of utilities); (iii) the Tenant shall
not sell, transfer or otherwise permit the use of any services from the use of
the Setback Equipment to any other tenant of the Building or to anyone else
(other than the Tenant’s permitted affiliates, subsidiaries, sublessees and
assigns in connection with their


 


88

















 


permitted use of space in the Premises in accordance with the terms of
this Lease) and (iv) the Tenant shall, to the extent permitted under applicable
Requirements, provide noise abatement screening, reasonably acceptable to the
Landlord, around any Setback Equipment. The space provided to the Tenant
pursuant to this Section shall be deemed demised to the Tenant as of the term
commencement date and be part of the “Premises” for all purposes of this Lease
(other than the obligation to pay Fixed Rent and Article 24 Rent). All work and
actions in connection with this Section shall be deemed an Alteration and
otherwise be subject to the provisions of Article  Six, and the Tenant shall be responsible
for all structural requirements, maintenance, repair and security in the
Setback Area, any equipment and its housing therein and the fuel piping. Unless
otherwise requested by the Landlord, upon the expiration or termination of this
Lease, the Tenant shall remove the Setback Equipment and the fuel piping and
restore the Setback Area and fuel piping route to their respective conditions
on the date of this Lease. The cost of repairing any damage to the Setback Area
and/or the Building arising from such removal and/or restoration shall be paid
by the Tenant on demand. The Landlord shall not enter into any agreement during
the term of this Lease demising any portion of the roof area
immediately above the 7th Floor of the Building substantially as shown hatched
on the diagram attached hereto as Exhibit P
for the installation and use of any equipment which exclusively
serves other tenants in the Building without the Tenant’s prior consent, which
consent shall not be unreasonably withheld, delayed or conditioned.


 


37.2         The Tenant shall have the right to use
a portion of shaft space from the subbasement to the 6th Floor (provided such
portion may not exceed that necessary for four (4) conduits of four (4) inches
in diameter) substantially as shown hatched on the diagram attached hereto as Exhibit Q (the “Telecommunications
Shaft Space”) for the
installation and use of conduits containing telecommunications risers serving
the Premises. The Tenant shall not use the Telecommunications Shaft Space for
any other purpose. The Tenant’s use of the Telecommunications Shaft Space shall
be subject to such reasonable rules as the Landlord may from time to time
designate and to the following additional conditions: (i) no telecommunications
riser or equipment shall be installed if the same in the Landlord’s reasonable
judgment would cause any interference with the operation of any equipment
installed in the Telecommunications Shaft Space; (ii) the Tenant shall be
solely responsible for the installation, maintenance, repair, security,
operation and replacement of the telecommunications risers; and (iii) the
Tenant shall not sell, transfer or otherwise permit the use of any services
from the use of the Telecommunications Shaft Space to any other tenant of the
Building or anyone else (other than the Tenant’s permitted affiliates,
subsidiaries, sublessees and assigns in connection with their permitted use of
space in the Premises in accordance with the terms of this Lease). The
Telecommunications Shaft Space provided to the Tenant pursuant to


 


89

















 


this Section shall be deemed demised to the Tenant as of the term
commencement date and be part of the Premises for all purposes of this Lease
(other than the Tenant’s obligation to pay Fixed Rent and Article 24 Rent). All
work and actions in connection with this Section shall be deemed an Alteration
and otherwise be subject to the provisions of Article Six.
The Tenant shall remove the conduits and telecommunications risers from the
Telecommunications Shaft Space prior to the expiration or termination of this
Lease. The cost of repairing any damage to the Telecommunications Shaft Space
and/or the Building arising from such removal shall be paid by the Tenant on
demand.


 


37.3         The Tenant shall have the right to use
a portion of shaft space from the subbasement to the 6th Floor (provided such portion
may not exceed that necessary for three (3) conduits of four (4) inches in
diameter) substantially as shown hatched on the diagram attached hereto as Exhibit R (the “Electric Shaft Space”), together
with the necessary connection in the switchgear room for the installation and
use of conduits containing a 1200-kilowatt electric riser serving the Premises
(“Tenant’s  Electric Riser”). The Tenant shall not use the Electric
Shaft Space for any other purpose. The Tenant’s use of the Electric Shaft Space
shall be subject to such reasonable rules as the Landlord may from time to time
designate and to the following additional conditions: (i) no electric riser or
equipment shall be Installed if the same in the Landlord’s reasonable Judgment
would cause any interference with the operation of any equipment installed in
the Electric Shaft Space; (ii) the Tenant shall be solely responsible for the installation,
maintenance, repair, security, operation and replacement of Tenant’s Electric
Riser; and (iii) the Tenant shall not sell, transfer or otherwise permit the
use of any services from the use of the Electric Shaft Space to any other
tenant of the Building or anyone else (other than the Tenant’s permitted affiliates,
subsidiaries, sublessees and assigns in connection with their permitted use of
space in the Premises in accordance with the terms of this Lease). The Electric
Shaft Space provided to the Tenant pursuant to this Section shall be deemed
demised to the Tenant as of the term commencement date and be part of the Premises
for all purposes of this Lease (other than the Tenant’s obligation to pay Fixed
Rent and Article 24 Rent). All work and actions in connection with this Section
shall be deemed an Alteration and otherwise be subject to the provisions of Article  Six. Upon
the expiration or termination of this Lease, the Tenant shall leave Tenant’s
Electric Riser in the Electric Shaft Space in good working condition.


 


37.4         The Tenant shall have the right to use
a portion of shaft space from the subbasement to the 6th Floor (provided such portion
may not exceed that necessary for one (1) conduit of four (4) inches in
diameter) substantially as shown hatched on the diagram attached hereto as Exhibit S (the “Fuel Pipe
Shaft Space”) for the
installation and use of a conduit containing a fuel pipe


 


90

















 


serving the Setback Equipment. The Tenant shall not use the Fuel Pipe
Shaft Space for any other purpose. The Tenant’s use of the Fuel Pipe Shaft
Space shall be subject to such reasonable rules as the Landlord may from time
to time designate and to the following additional conditions: (i) no fuel pipe
or equipment shall be installed if the same in the Landlord’s reasonable
judgment would cause any interference with the operation of any equipment
installed in the Fuel Pipe Shaft Space; (ii) the Tenant shall be solely
responsible for the installation, maintenance, repair, security, operation and
replacement of the fuel pipe; and (iii) the Tenant shall not sell, transfer or
otherwise permit the use of any services from the use of the Fuel Pipe Shaft
Space to any other tenant of the Building or anyone else (other than the Tenant’s
permitted affiliates, subsidiaries, sublessees and assigns in connection with
their permitted use of space in the Premises in accordance with the terms of
this Lease). The Fuel Pipe Shaft Space provided to the Tenant pursuant to this
Section shall be deemed demised to the Tenant as of the term commencement date
and be part of the Premises for all purposes of this Lease (other than the
Tenant’s obligation to pay Fixed Rent and Article 24 Rent). All work and
actions in connection with this Section shall be deemed an Alteration and
otherwise be subject to the provisions of Article  Six. The Tenant shall remove the conduit
and fuel pipe from the Fuel Pipe Shaft Space prior to the expiration or
termination of this Lease. The cost of repairing any damage to the Fuel Pipe
Shaft Space and/or the Building arising from such removal shall be paid by the
Tenant on demand.


 


37.5         The Tenant shall have the option,
exercisable by written notice to the Landlord (the “Roof Option Notice”) given at any time
prior to the date that is three (3) years after the date of this Lease, to
lease from the Landlord up to fifty (50) square feet of space on the roof
immediately above the 51st Floor of the Building, in a location selected by the
Landlord (the “Roof Space”), for the installation by the Tenant of a satellite
dish or other comparable telecommunications equipment. If the Tenant timely
exercises its option contained in this Section, the Roof Space shall be demised
to the Tenant (i) at an annual fixed rent equal to $150.00 per square foot
multiplied by the CPI Factor (as defined in Section 37.9 below) and (ii) for a
term which shall commence on the date specified by the Tenant in the Roof
Option Notice (the “Roof Commencement Date”), which date shall be no later than the date that is
thirty (30) days after receipt by the Landlord of the Roof Option Notice, and
shall otherwise be co-terminus with the term of this Lease; provided, that the
Tenant shall have the right, exercisable upon twelve (12) months prior notice,
to terminate this Lease with respect to the Roof Space. If so demised, the Roof
Space shall be part of the Premises for all purposes of this Lease other than
the Tenant’s obligation to pay Article 24 Rent. If the Tenant timely exercises
its option contained in this Section 37.5, then
with reasonable promptness after the exercise of such option, the Tenant and
the Landlord shall execute and deliver an amendment


 


91

















 


of this Lease, confirming the leasing of the Roof Space and increasing
Fixed Rent by an amount equal to the product obtained by multiplying $150.00 by
the number of square feet leased pursuant to this Section 37.5 and Multiplying such product by the
CPI Factor.


 


37.6         If the Tenant timely exercises its
option pursuant to Section 37.5 above, the Tenant shall have the further
option, exercisable by written notice to the Landlord (the “Machinery Room Option Notice”) given
concurrently with the Roof Option Notice, to lease from the Landlord up to
fifty (50) square feet of space in the machinery room located on the 51st Floor
of the Building, in a location selected by the Landlord (the “Machinery Room Space”), for the
installation of equipment needed for the operation of the satellite dish or
other comparable telecommunications equipment installed by the Tenant in
accordance with Section 37.5 above. If the Tenant timely exercises its option
contained in this Section, the Machinery Room Space shall be demised to the
Tenant (1) at an annual fixed rent equal to $20.00 per square foot multiplied
by the CPI Factor and (ii) for a term which shall commence on the Roof Commencement
Date and otherwise be co-terminus with the term of this Lease; provided, that
the Tenant shall have the right, exercisable upon twelve (12) months prior
notice, to terminate this Lease with respect to the Machinery Room Space. If so
demised, the Machinery Room Space shall be part of the Premises for all
purposes of this Lease other than the Tenant’s obligation to pay Article 24 Rent.
If the Tenant timely exercises its option contained in this Section 37.6,
then with reasonable promptness after the exercise of such option, the Tenant
and the Landlord shall execute and deliver an amendment of this Lease,
confirming the leasing of the Machinery Room Space and increasing Fixed Rent by
an amount equal to the product obtained by multiplying $20.00 by the number of square
feet leased pursuant to this Section 37.6
and multiplying such product by the CPI Factor.


 


37.7         If the Tenant timely exercises its
option pursuant to Section 37.5 above, the Tenant shall have the further
option, exercisable by written notice to the Landlord (the “Upper Shaft Space Option Notice”) given
concurrently with the Roof Option Notice, to lease a portion of shaft space
from the 11th Floor to the roof immediately above the 51st Floor of the
Building (provided such portion may not exceed, in the aggregate, four (4)
inches in diameter) in a location selected by the Landlord (the “Upper Shaft Space”) for the installation
and use of conduits containing telecommunications and/or electric risers
serving the satellite dish or other comparable telecommunications equipment
installed by the Tenant on the roof immediately above the 51st Floor of the Building
pursuant to Section 37.5 above. The Tenant shall not
use the Upper Shaft Space for any other purpose. If the Tenant timely exercises
its option contained in this Section, the Upper Shaft Space shall be demised to
the Tenant as of the Roof Commencement Date and shall otherwise be co-terminus
with the term of this


 


92

















 


Lease; provided, that the Tenant shall have the right, exercisable upon
twelve (12) months prior notice, to terminate this Lease with respect to the
Upper Shaft Space. If so demised, the Upper Shaft Space shall be part of the
Premises for all purposes of this Lease (other than the Tenant’s obligation to
pay Article 24 Rent). If the Tenant exercises its option contained in this Section  37.7, then
with reasonable promptness after the exercise of such option, the Tenant and
the Landlord shall execute and deliver an amendment of this Lease, confirming
the leasing of such shaft space and increasing Fixed Rent by an amount equal to
the product of (i) $10.00 per lineal foot of the Upper Shaft Space times the
number of inches of the diameter of the portion of space so taken multiplied by
(ii) the CPI Factor.


 


37.8         The Tenant’s use of the Roof Space, the
Machinery Room Space and the Upper Shaft Space shall be subject to such
reasonable rules as the Landlord may from time to time designate and to the following
additional conditions: (i) no telecommunications and/or electric riser or
equipment shall be installed if the same in the Landlord’s reasonable judgment
would cause any interference with the operation of any equipment installed in
the Building; (ii) the Tenant shall be solely responsible for the installation,
maintenance, repair, security, operation and replacement of the telecommunications
and electric risers; and (iii) the Tenant shall not sell, transfer or otherwise
permit the use of any services from the use of the Roof Space, the Machinery
Room Space or the Upper Shaft Space to any other tenant of the Building or
anyone else (other than the Tenant’s permitted affiliates, subsidiaries, sublessees
and assigns in connection with their permitted use of space in the Premises in
accordance with the terms of this Lease). All work and actions in connection
with this Section shall be deemed an Alteration and otherwise be subject to the
provisions of Article Six. The
Tenant shall remove the conduits, telecommunications and electric risers and
all related equipment from the Roof Space, the Machinery Room Space and the
Upper Shaft Space prior to the expiration or termination of this Lease. The cost
of repairing any damage to the Roof Space, the Machinery Room Space, the Upper
Shaft Space and/or the Building arising from such removal shall be paid by the
Tenant on demand.


 


37.9         As used in this Article
Thirty-Seven, the term “CPI Factor” means, on any particular
date, a fraction whose numerator is the “Consumer Price Index for all Urban
Consumers, New York-Northern New Jersey, - Long Island, New York - New Jersey
-Connecticut, 1982-84=100” for the calendar month ending immediately preceding
such date as presently determined and published by the Bureau of Labor
Statistics of the Department of Labor of the United States Government and whose
denominator is such Consumer Price Index for May, 1995; provided, that (i) if
such Consumer Price index shall cease to be published, there shall be
substituted for such index such other index of similar kind published by a
governmental or other nonpartisan organization as may be selected


 


93

















 


by the Landlord and reasonably approved by the Tenant, (ii) If there is
any change in the computation of said index or of any such substituted index
(including a change in the base year or included items), then for the purposes
of this Lease such index as so changed shall be substituted for the index in
effect prior thereto, and (iii) If necessary, such other adjustments shall be
made as shall be required to carry out the intent of this Section 37.5, 37.6 or 37.7, as appropriate, all in such manner
as shall be reasonably determined by the Landlord and the Tenant.
Notwithstanding anything to the contrary contained in Section 37.5, 37.6 or 37.7, the fixed rent
for the Roof Space, Machinery Room Space or Upper Shaft Space referred to
therein shall be adjusted annually to reflect Increases in the CPI Factor on
May 1, 1996 and thereafter on each May 1 for the balance of the term.


 


ARTICLE THIRTY-EIGHT

Right of First Offer


 


38.1         Provided that the following conditions
have been met:


 


(i)            as of the Landlord’s
delivery of the Offer Notice (as defined below) and as of the Tenant’s
acceptance of the offer contained In the Offer Notice, this Lease shall be in
effect and no default after notice by the Tenant in the payment of Fixed Rent
and Article 24 Rent under this Lease shall have occurred and be continuing; and


 


(ii)           the second
anniversary of the date of this Lease shall have occurred (it being agreed that
prior to such anniversary date the Landlord shall have no obligation to comply
with the terms of this Article with respect to any proposed letting of the
Offer Space (as defined below) or any portion thereof;


 


then, if the Landlord shall decide during the term of this Lease to
lease all or any portion of the space substantially as shown hatched on the
diagram attached hereto as Exhibit T and designated as ‘B’ on the 12th Floor of
the Building (the “Offer Space”) to
any third party (other than the then tenant of the Offer Space in connection
with the renewal of its lease of the Offer Space), then the Landlord shall not
enter into any such lease unless the following terms and conditions have been
satisfied:


 


(a)           the Landlord shall
have delivered a notice to the Tenant (the “Offer
Notice”) offering the Offer Space to the Tenant for such rent and
term and on such other terms and conditions as the Landlord shall specify in
such notice, including base and additional rent, escalations, work
contributions, landlord’s work (including, if applicable, the construction of
demising walls), base years for operating expenses and taxes, rent concessions
and delivery date of


 


94

















 


space
and, except as specified in such notice, such offer shall be on the same terms
and conditions of this Lease; and


 


(b)           within thirty (30)
days after receipt of the Offer Notice, the Tenant shall have failed to deliver
to the Landlord a written and unqualified acceptance of the offer contained in
the Offer Notice with respect to the entire Offer Space, time being of the
essence with respect to such 30-day period (or prior to the expiration of such
30-day period, the Tenant shall have delivered to the Landlord a rejection of
such offer).


 


The Landlord agrees to respond to reasonable inquiries from the Tenant
regarding the Offer Notice.


 


38.2         If the conditions set forth in clauses
(a) and (b) of Section 38.1 above
are satisfied, then, subsequent to such 30-day period described in subsection 38.1(b) above, or the rejection described
in subsection  38.1(b) above, as applicable, but prior to the expiration of
eighteen (18) months after the expiration of the 30-day period described in
subsection 38.1(b) above, the Landlord shall have the right to enter into a
lease for the Offer Space on terms that are not materially less favorable to
the Landlord than the terms specified in the Offer Notice; provided, that the
terms of such lease shall be deemed to be not materially less favorable to the
Landlord than the terms specified in the Offer Notice so long as the rental
under such lease, net of all costs to be borne by the Landlord in respect of
the space covered thereby including, without limitation, workletter payments or
allowance, free rent or other concessions, brokerage commissions, real estate
taxes and costs of operation and maintenance (“Net
Effective Rental”), under such lease does not vary from the Net
Effective Rental under the terms specified in the Offer Notice by more than 10%
in such third party’s favor. If the Landlord enters into such a
lease with a third party, then the provisions of this Article
Thirty-eight shall be void and of
no further force or effect.


 


38.3         If a lease described in subsection 38.2 above is not entered into prior to the
expiration of the 18-month period specified in subsection
38.2, then prior to the Landlord’s entering into any lease for any
portion of the Offer Space, the Landlord shall again be obligated to comply
with the terms of this Article  Thirty-Eight.


 


38.4         If the Tenant shall have timely delivered
to the Landlord the Tenant’s unqualified acceptance of the offer contained in
the Offer Notice, then with reasonable promptness after the receipt by the
Landlord of such acceptance, the Tenant and the Landlord shall execute and
deliver an amendment of this Lease, confirming the leasing of the Offer Space
and embodying the terms of the Offer Notice.


 


95

















 


38.5         Notwithstanding anything contained in
this Lease to the contrary, the Tenant’s rights and the Landlord’s obligations
under this Article  Thirty-Eight
with respect to the Offer Space shall terminate, and the provisions
of this Article Thirty-eight shall
be void and of no further force and effect, in the event that the Tenant fails
to timely exercise its option on the First Option Space in accordance with the
provisions of subsection 31.1 of this Lease.


 


In Witness Whereof, the Landlord and the Tenant have duly executed this Lease as of the day
and year first above written.


 


	
   

  	
   

  	
  ROCK-MCGRAW, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ L. L. Marlante

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
  Attest:

  	
   

  	
   

  
	
  /s/ R. Stephen Nelsen Jr.

  	
   

  	
   

  
	
  Assistant Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOCIETE GENERALE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jean Huet

  	
  (L.S.)

  
	
   

  	
   

  	
   

  	
  Name: Jean Huet

  
	
   

  	
   

  	
   

  	
  Title:  GENERAL MANAGER

  
	
   

  	
   

  	
   

  
	
  Attest

  	
   

  	
   

  
	
  /s/ Jean-Francois Paquereau

  	
   

  	
   

  
	
  Name:
   Jean-Francois Paquereau

  	
   

  	
   

  
	
  Title:   CHIEF FINANCIAL OFFICER

  	
   

  	
   

  
						



 


96














 


GLOSSARY OF DEFINED TERMS


 


	
  Defined Term

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AAA

  	
   

  	
  73

  	
   

  
	
  Additional Rent

  	
   

  	
  2

  	
   

  
	
  Alteration

  	
   

  	
  13

  	
   

  
	
  Alternative Computation
  Formula

  	
   

  	
  50

  	
   

  
	
  Applicable Rental Rate

  	
   

  	
  87

  	
   

  
	
  Appointment Date

  	
   

  	
  73

  	
   

  
	
  Arbitration
  Notice

  	
   

  	
  72

  	
   

  
	
  Arbitrator

  	
   

  	
  73

  	
   

  
	
  Article 24 Rent

  	
   

  	
  11

  	
   

  
	
  Assessed Valuation

  	
   

  	
  50

  	
   

  
	
  Assignee

  	
   

  	
  18

  	
   

  
	
  Assumable Service

  	
   

  	
   65

  	
   

  
	
  Assumed Assessed Valuation

  	
   

  	
  51

  	
   

  
	
  Average Percentage
  Increase

  	
   

  	
  50

  	
   

  
	
  Base COM

  	
   

  	
  51

  	
   

  
	
  Base Real Estate Taxes

  	
   

  	
  51

  	
   

  
	
  Building

  	
   

  	
  1

  	
   

  
	
  Business Hours

  	
   

  	
  36

  	
   

  
	
  C&W

  	
   

  	
  61

  	
   

  
	
  CADD

  	
   

  	
  14

  	
   

  
	
  Candidates

  	
   

  	
  84

  	
   

  
	
  Common Area

  	
   

  	
  58

  	
   

  
	
  Comparison Year

  	
   

  	
  50

  	
   

  
	
  Computation Year

  	
   

  	
  43

  	
   

  
	
  Cost of Operation and
  Maintenance

  	
   

  	
  44

  	
   

  
	
  Court

  	
   

  	
  73

  	
   

  
	
  CPI Fraction

  	
   

  	
  93

  	
   

  
	
  Default Termination

  	
   

  	
  32

  	
   

  
	
  Determination

  	
   

  	
  73

  	
   

  
	
  Electric Shaft Space

  	
   

  	
  90

  	
   

  
	
  Escalation Statement

  	
   

  	
  51

  	
   

  
	
  Exhaust System

  	
   

  	
  6

  	
   

  
	
  Fair Market Rental Value

  	
   

  	
  72

  	
   

  
	
  First Option Space

  	
   

  	
  65

  	
   

  
	
  First Option Space Fixed
  Rent

  	
   

  	
  66

  	
   

  
	
  First Option Space Term
  Commencement Date

  	
   

  	
  66

  	
   

  
	
  First Renewal Notice

  	
   

  	
  71

  	
   

  
	
  First Renewal Term

  	
   

  	
  71

  	
   

  
	
  Fixed Rent

  	
   

  	
  2

  	
   

  
	
  Fixtures

  	
   

  	
  7

  	
   

  
	
  Fuel Pipe Shaft Space

  	
   

  	
  90

  	
   

  
	
  GAAP

  	
   

  	
  44

  	
   

  
	
  Hazardous substances

  	
   

  	
  62

  	
   

  
	
  Holidays

  	
   

  	
  36

  	
   

  
	
  Kitchen Equipment

  	
   

  	
  5

  	
   

  
	
  Land

  	
   

  	
  1

  	
   

  
	
  Landlord

  	
   

  	
  1

  	
   

  
	
  Landlord Indemnitees

  	
   

  	
  16

  	
   

  



 

















 


	
  Landlord Party

  	
   

  	
  10

  	
   

  
	
  Losses

  	
   

  	
  58

  	
   

  
	
  Machinery Room Option
  Notice

  	
   

  	
  92

  	
   

  
	
  Machinery Room Space

  	
   

  	
  92

  	
   

  
	
  Measurement Standard

  	
   

  	
  2

  	
   

  
	
  Morgan

  	
   

  	
  61

  	
   

  
	
  Net Effective Rental

  	
   

  	
  95

  	
   

  
	
  New Tenant

  	
   

  	
  55

  	
   

  
	
  Notices

  	
   

  	
  29

  	
   

  
	
  O.E. Share

  	
   

  	
  44

  	
   

  
	
  Offer Notice

  	
   

  	
  94

  	
   

  
	
  Offer Space

  	
   

  	
  94

  	
   

  
	
  Option Space

  	
   

  	
  70

  	
   

  
	
  Premises

  	
   

  	
  1

  	
   

  
	
  Preservation Agreement

  	
   

  	
  3

  	
   

  
	
  Projected Delivery Dates

  	
   

  	
  70

  	
   

  
	
  Pylon

  	
   

  	
  59

  	
   

  
	
  Qualified Alteration

  	
   

  	
  13

  	
   

  
	
  Qualified Encumbrances

  	
   

  	
  2

  	
   

  
	
  Qualified Resubmission

  	
   

  	
  76

  	
   

  
	
  R.E. Tax Share

  	
   

  	
  44

  	
   

  
	
  Real Estate Taxes

  	
   

  	
  49

  	
   

  
	
  Real Property

  	
   

  	
  1

  	
   

  
	
  Remaining Period

  	
   

  	
  32

  	
   

  
	
  Rent

  	
   

  	
  2

  	
   

  
	
  Rent Commencement Date

  	
   

  	
  11

  	
   

  
	
  Requirements

  	
   

  	
  10

  	
   

  
	
  Roof Commencement Date

  	
   

  	
  91

  	
   

  
	
  Roof Option Notice

  	
   

  	
  91

  	
   

  
	
  Roof Space

  	
   

  	
  91

  	
   

  
	
  Second Option Space

  	
   

  	
  67

  	
   

  
	
  Second Option Space Fixed
  Rent

  	
   

  	
  68

  	
   

  
	
  Second Option Space Term
  Commencement Date

  	
   

  	
  68

  	
   

  
	
  Second Renewal Notice

  	
   

  	
  71

  	
   

  
	
  Second Renewal Option

  	
   

  	
  71

  	
   

  
	
  Second Renewal Term

  	
   

  	
  71

  	
   

  
	
  Service Option

  	
   

  	
  62

  	
   

  
	
  Service Option Notice

  	
   

  	
  63

  	
   

  
	
  Sublet Arbitration Notice

  	
   

  	
  84

  	
   

  
	
  Sublet Arbitrator

  	
   

  	
  84

  	
   

  
	
  Sublet Notice

  	
   

  	
  81

  	
   

  
	
  Submission Date

  	
   

  	
  74

  	
   

  
	
  Tax Rate

  	
   

  	
  51

  	
   

  
	
  Tax Year

  	
   

  	
  43

  	
   

  
	
  Taxes

  	
   

  	
  49

  	
   

  
	
  Telecommunications Shaft
  Space

  	
   

  	
  89

  	
   

  
	
  Tenant

  	
   

  	
  1

  	
   

  
	
  Tenant Affiliate

  	
   

  	
  87

  	
   

  
	
  Tenant Allowance

  	
   

  	
  78

  	
   

  
	
  Tenant Delay

  	
   

  	
  3

  	
   

  
	
  Tenant Indemnitees

  	
   

  	
  58

  	
   

  
	
  Tenant Party

  	
   

  	
  11

  	
   

  



 


2

















 


	
  Tenant Work

  	
   

  	
  78

  	
   

  
	
  Tenant Work Arbitration
  Notice

  	
   

  	
  77

  	
   

  
	
  Tenant Work Arbitrator

  	
   

  	
  77

  	
   

  
	
  Tenant Working Drawings

  	
   

  	
  78

  	
   

  
	
  Tenant’s Area

  	
   

  	
  44

  	
   

  
	
  Tenant’s Basic Cost

  	
   

  	
  86

  	
   

  
	
  Tenant’s Property

  	
   

  	
  21

  	
   

  
	
  Tenant’s Signage

  	
   

  	
  59

  	
   

  
	
  Term commencement date

  	
   

  	
   1

  	
   

  
	
  Third Option Space

  	
   

  	
  68

  	
   

  
	
  Third Option Space
  Delivery Date

  	
   

  	
  69

  	
   

  
	
  Third Option Space Fixed
  Rent

  	
   

  	
  69

  	
   

  
	
  Third Option Space Term
  Commencement Date

  	
   

  	
  69

  	
   

  
	
  Threshold Amount

  	
   

  	
  25

  	
   

  
	
  Transfer

  	
   

  	
  50

  	
   

  
	
  Transfer Tax Year

  	
   

  	
  51

  	
   

  
	
  Underlying leases

  	
   

  	
  28

  	
   

  
	
  Underlying mortgages

  	
   

  	
  28

  	
   

  
	
  Upper Shaft Space

  	
   

  	
  92

  	
   

  
	
  Upper Shaft Space Option
  Notice

  	
   

  	
  92

  	
   

  



 


3

















 


Rules and Regulations


 


1.             The
rights of the Tenant in the sidewalks, entrances, corridors, stairways,
elevators and escalators of the Building are limited to ingress to and egress
from the Premises for any Tenant Party, and the Tenant shall not invite to
the Premises, nor permit the visit thereto by, persons in such numbers or under
such conditions as to interfere with the use and enjoyment by others of the
sidewalks, entrances, corridors, stairways (excluding interior stairways),
elevators, escalators or any other facilities of the Building. Fire exits and
stairways (other than interior stairways) are for emergency use only, and they
shall not be used for any other purpose by any Tenant Party. The Landlord shall
have the right to regulate the use of and operate the public portions of the
Building, as well as portions furnished for the common use of the tenants, in
such manner as it deems best for the benefit of the tenants generally.


 


2.             The
Landlord may refuse admission to the Building outside of Business Hours to any
person not having a pass issued by the Landlord or not properly identified, and
may require all persons admitted to or leaving the Building outside of Business
Hours to register. Any person whose presence in the Building at any time shall,
in the reasonable judgment of the Landlord, be prejudicial to the safety, character,
reputation and 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 commotion the Landlord may prohibit all access to the
Building during the continuance of the same, by closing doors or otherwise, for
the safety of the tenants or protection of property in the Building. The
Landlord shall, in no way, be liable to the Tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the Premises
or the Building under the provisions of this rule. The Landlord may require any
person leaving the Building with any package or other object to exhibit a pass
from the tenant from whose Premises the package or object is being removed, but
the establishment or enforcement of such requirement shall not impose any
responsibility on the Landlord for the protection of the Tenant against the
removal of property from the Premises of the Tenant.


 


3.             The
Tenant shall not obtain or accept for use in the Premises ice, drinking water,
food, beverage, towel, linen, uniform, barbering, bootblacking or similar or
related services from any persons not authorized by the Landlord to furnish
such services; provided, that the Landlord shall not unreasonably withhold,
delay or condition such authorization. Such services shall be furnished only at
such hours, in such places within the Premises and under such regulations as
may be fixed by the Landlord.


 


4.             Where
any damage to the public portions of the Building or to any portions used in
common with other tenants is


 

















 


caused by any Tenant Party, the cost of repairing the same shall be
paid by the Tenant upon demand in accordance with the applicable provisions of
the Lease.


 


5.             Except
as provided in Article  Twenty-six of the Lease and in the case of a shop, no lettering, sign, advertisement,
trademark, emblem, notice or object shall be displayed at any point where the
same might be visible outside the Premises, except that the name of the Tenant
may be displayed on the entrance door of the Premises, subject to the approval
of the Landlord as to the location, size, color and style of such display which
approval, in the case of a display of the Tenant’s logo or a display within the
Premises on a single-tenant floor, shall not be unreasonably withheld, delayed
or conditioned. The installation or inscription of the name of the Tenant on
any exterior door of the Premises on a multi-tenant floor shall be done by the
Landlord and the expense thereof shall be paid by the Tenant to the Landlord.


 


6.             No
awnings or other projections of any kind over or around the windows or
entrances of the Premises shall be installed by the Tenant, and only such
exterior window blinds and shades as are approved by the Landlord shall be used
in the Premises. Linoleum, tile or other floor covering shall be laid in the
Premises only in a manner reasonably approved by the Landlord, which approval
shall not be unreasonable withheld, delayed or conditioned.


 


7.             The
Landlord shall have the right to reasonably prescribe the weight and position
of safes and other objects of excessive weight, and no safe or other object
whose weight exceeds the lawful load for the area upon which it would stand shall
be brought into or kept upon the Premises. If, in the judgment of the Landlord,
it is necessary to distribute the concentrated weight of any safe or heavy
object, the work involved in such distribution shall be done in such manner as
the Landlord shall determine and the expense thereof shall be paid by the
Tenant. The moving of safes and other heavy objects shall take place only upon
previous notice to, and at times and in a manner approved by, the Landlord, and
the persons employed to move the same in and out of the Building shall be acceptable
to the Landlord. No machines, machinery or electrical or electronic equipment
or appliances of any kind shall be placed or operated so as to disturb other
tenants. Freight, furniture, business equipment, merchandise and packages 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 the Landlord, which
approval shall not be unreasonably withheld, delayed or conditioned.


 


8.             No
noise, including the playing of any musical instrument, radio or television,
which, in the reasonable judgment of the Landlord, might disturb other tenants
in the


 

















 


Building, shall be made or permitted by the Tenant. No live animal
shall be brought into or kept in the Building or the Premises. No dangerous,
inflammable, combustible or explosive object or material shall be brought into
or kept in the Building by the Tenant or with the permission of the Tenant,
except as permitted by law and the insurance companies insuring the Building or
the property therein. The Tenant shall not cause or permit any odors of cooking
or other processes, or any unusual or other objectionable odors, to permeate in
or emanate from the Premises. Any cuspidors or containers or receptacles used
as such in the Premises, shall be emptied, cared for and cleaned by the Tenant.


 


9.             Except
with respect to any part of the Premises which the Tenant has notified the
Landlord that the same is being used for the storage of valuables, no
additional locks or bolts of any kind shall be placed upon any of the doors or
windows in the Premises and no lock on any door shall be changed or altered in
any respect. Duplicate keys for the Premises and toilet rooms shall be procured
only from the Landlord, and the Tenant shall pay to the Landlord the Landlord’s
reasonable charge therefor. Upon the expiration or termination of the Lease,
all keys of the Premises and toilet rooms shall be delivered to the Landlord.


 


10.           All
entrance doors in the Premises shall be left locked by the Tenant when the
Premises are not in use. No door (other than a door in an interior partition of
the Premises) shall be left open and unattended at any time.


 


11.           The
Landlord reserves the right to rescind, alter or waive any rule or regulation
at any time prescribed by the Landlord when, in its reasonable judgment, it
deems it necessary, desirable or proper for its best interest or for the best interests
of the tenants, and no recision, alteration or waiver of any rule or regulation
in favor of one tenant shall operate as a recision, alteration or waiver in
favor of any other tenant. Except as otherwise provided in the Lease, the
Landlord shall not be responsible to the Tenant for the nonobservance or violation
by any other tenant of any of the rules or regulations at any time prescribed
by the Landlord.


 


12.           The
Tenant shall promptly notify the Landlord of any inspection of the Premises by
governmental agencies having jurisdiction over matters involving health or
safety.


 


13.           The
Tenant shall be responsible for maintaining the Premises rodent and insect
free. Extermination services shall be provided by the Tenant on a monthly basis
and additionally as required by the Landlord in the Landlord’s reasonable judgement.


 


14.           All
food storage areas shall be adequately protected by a contractor approved in
advance by the Landlord against vermin entry.


 

















 


15.           Drain
pipes shall be kept free of obstructions and operable at all times.


 


16.           Exit
signs shall be illuminated, and other exit identification shall be operable, at
all times.


 


17.           Emergency
lighting within the Premises, including battery components, shall be in good
working condition at all times.


 


The Landlord’s right to enforce and make new rules and regulations
shall be limited to the extent provided in Section  6.2 of the Lease.


 

















 


Exhibit A


 


[Premises]


 

















 


EXHIBIT B


 


[Floor
Plans]


 

















 


EXHIBIT C


 


[The Land]


 

















 


EXHIBIT D


 


[Applicable
Fixed Rental Rate]


 

















 


EXHIBIT E


 


[Form of Non-disturbance Agreement for Underlying
Mortgages]


 














 


EXHIBIT F


 


[Form of Non-disturbance Agreement for Underlying
Leases]


 

















 


Exhibit F-l


 


[Describe Overlease]


 


1

















 


EXHIBIT G


 


[Cleaning
Specifications]


 

















 


EXHIBIT H 


 


[Air Conditioning
Specifications]


 


1

















 


EXHIBIT I


 


[Form of Escalation
Statement]


 


1

















 


EXHIBIT J


 


[Tenant’s Signage]


 


2

















 


EXHIBIT K


 


[Form of
Information Desk Agreement]


 














 


EXHIBIT L


 


[First Option Space]


 


 


1

















 


EXHIBIT M


 


[Square Footage of Floors 21 through 25]


 


1

















 


EXHIBIT N


 


[Setback Area]


 


1

















 


EXHIBIT O


 


[Sketches of Setback Equipment]


 


1

















 


 


EXHIBIT P


 


[Restricted Setback Area]


 


1

















 


EXHIBIT Q


 


[Location of Telecommunications Shaft Space]


 


1

















 


EXHIBIT R


 


[Location of Electric Shaft Space]


 


1

















 


EXHIBIT S


 


[Location of Fuel Pipe Shaft Space]


 


1

















 


EXHIBIT T


 


[Offer Space]


 


1