EX-10.61



 





Exhibit 10.61




EXECUTION COUNTERPART




 

 






AGREEMENT OF LEASE




between




METROPOLITAN 919 THIRD AVENUE LLC




Landlord




and




NEW YORK MARINE AND GENERAL INSURANCE COMPANY




Tenant




Dated as of June 5, 2007




Entire Eleventh (11th) Floor

919 Third Avenue

New York, New York




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 
	TABLE OF CONTENTS	 	 	I	 
	ARTICLE 1
	 	DEMISE; PREMISES AND PURPOSE	 	 	1	 
	ARTICLE 2
	 	TERM	 	 	2	 
	ARTICLE 3
	 	RENT AND ADDITIONAL RENT	 	 	2	 
	ARTICLE 4
	 	ASSIGNMENT/SUBLETTING	 	 	3	 
	ARTICLE 5
	 	DEFAULT	 	 	8	 
	ARTICLE 6
	 	RELETTING, ETC.	 	 	9	 
	ARTICLE 7
	 	LANDLORD MAY CURE DEFAULTS	 	 	10	 
	ARTICLE 8
	 	ALTERATIONS	 	 	10	 
	ARTICLE 9
	 	LIENS	 	 	13	 
	ARTICLE 10
	 	REPAIRS	 	 	13	 
	ARTICLE 11
	 	FIRE OR OTHER CASUALTY	 	 	14	 
	ARTICLE 12
	 	END OF TERM	 	 	14	 
	ARTICLE 13
	 	SUBORDINATION AND ESTOPPEL, ETC.	 	 	15	 
	ARTICLE 14
	 	CONDEMNATION	 	 	17	 
	ARTICLE 15
	 	REQUIREMENTS OF LAW	 	 	18	 
	ARTICLE 16
	 	CERTIFICATE OF OCCUPANCY	 	 	18	 
	ARTICLE 17
	 	POSSESSION	 	 	18	 
	ARTICLE 18
	 	QUIET ENJOYMENT	 	 	19	 
	ARTICLE 19
	 	RIGHT OF ENTRY	 	 	19	 
	ARTICLE 20
	 	INDEMNITY	 	 	20	 
	ARTICLE 21
	 	LANDLORD’S LIABILITY, ETC.	 	 	20	 
	ARTICLE 22
	 	CONDITION OF PREMISES	 	 	20	 
	ARTICLE 23
	 	CLEANING	 	 	21	 
	ARTICLE 24
	 	JURY WAIVER	 	 	21	 
	ARTICLE 25
	 	NO WAIVER, ETC.	 	 	22	 
	ARTICLE 26
	 	OCCUPANCY AND USE BY TENANT	 	 	22	 






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	ARTICLE 27
	 	NOTICES	 	 	23	 
	ARTICLE 28
	 	WATER	 	 	23	 
	ARTICLE 29
	 	SPRINKLER SYSTEM	 	 	24	 
	ARTICLE 30
	 	HEAT, ELEVATOR, ETC.	 	 	24	 
	ARTICLE 31
	 	SECURITY DEPOSIT	 	 	24	 
	ARTICLE 32
	 	TAX ESCALATION	 	 	26	 
	ARTICLE 33
	 	RENT CONTROL	 	 	29	 
	ARTICLE 34
	 	SUPPLIES	 	 	29	 
	ARTICLE 35
	 	AIR CONDITIONING	 	 	30	 
	ARTICLE 36
	 	SHORING	 	 	31	 
	ARTICLE 37
	 	EFFECT OF CONVEYANCE, ETC.	 	 	31	 
	ARTICLE 38
	 	RIGHTS OF SUCCESSORS AND ASSIGNS	 	 	31	 
	ARTICLE 39
	 	CAPTIONS	 	 	32	 
	ARTICLE 40
	 	BROKERS	 	 	32	 
	ARTICLE 41
	 	ELECTRICITY	 	 	32	 
	ARTICLE 42
	 	LEASE SUBMISSION	 	 	36	 
	ARTICLE 43
	 	INSURANCE	 	 	36	 
	ARTICLE 44
	 	SIGNAGE	 	 	38	 
	ARTICLE 45
	 	RIGHT TO RELOCATE	 	 	39	 
	ARTICLE 46
	 	FUTURE CONDOMINIUM CONVERSION	 	 	39	 
	ARTICLE 47
	 	MISCELLANEOUS	 	 	40	 
	ARTICLE 48
	 	COMPLIANCE WITH LAW	 	 	40	 
	ARTICLE 49
	 	LANDLORD’S CONTRIBUTION	 	 	41	 
	ARTICLE 50
	 	OPERATING EXPENSE ESCALATION	 	 	42	 
	ARTICLE 51
	 	RULES AND REGULATIONS	 	 	49	 






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INDEX OF DEFINED TERMS




	 	 	 	 	 
	TERM	 	PAGE	 
	Additional Rent
	 	 	3	 
	Alterations
	 	 	10	 
	Base Year
	 	 	43	 
	Base Tax Year
	 	 	27	 
	Best’s rating
	 	 	25	 
	Brokers
	 	 	33	 
	Building
	 	 	1	 
	Building Cleaning Contractor
	 	 	23	 
	Building HVAC System
	 	 	31	 
	Building Insurance Expense
	 	 	44	 
	Building Project
	 	 	21, 44	 
	Comparative Year
	 	 	21, 44	 
	Comparative Insurance Year
	 	 	33	 
	Consultant Cost
	 	 	4	 
	Cooling Season
	 	 	31	 
	Credit
	 	 	26	 
	Declaration
	 	 	41	 
	Delivery Personnel
	 	 	1	 
	Excessive Water
	 	 	24	 
	Existing HVAC Equipment
	 	 	31	 
	Expenses
	 	 	45	 
	Expense Payment
	 	 	47	 
	Expiration Date
	 	 	2	 
	Fixed Annual Rent
	 	 	2	 
	Guaranty
	 	 	26	 
	Landlord
	 	 	1	 
	Landlord’s Contribution
	 	 	42	 
	Landlord’s Cost
	 	 	33	 
	Landlord’s Electrical Consultant
	 	 	34	 
	Landlord’s Relocation Work
	 	 	40	 
	Landlord’s Restoration Work
	 	 	14	 
	Lease
	 	 	1	 
	Leaseback Area
	 	 	4	 
	Named Tenant
	 	 	8	 
	Ordinary Business Hours
	 	 	34	 
	Percentage
	 	 	44	 
	Premises
	 	 	1	 
	Qualified Renovations
	 	 	42	 
	Real Estate Taxes
	 	 	27	 
	Recapture Date
	 	 	4	 
	Relocation Effective Date
	 	 	40	 
	Relocation Notice
	 	 	40	 






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	TERM	 	PAGE	 
	Relocation Space
	 	 	40	 
	Rent
	 	 	3	 
	Retainage
	 	 	43	 
	Security
	 	 	25	 
	Soft Costs
	 	 	43	 
	Space A
	 	 	1	 
	Space A Commencement Date
	 	 	2	 
	Space A Rent Commencement Date
	 	 	2	 
	Space B
	 	 	1	 
	Space B Commencement Date
	 	 	2	 
	Space B Rent Commencement Date
	 	 	2	 
	Submetering System
	 	 	34	 
	Supplemental A/C Systems
	 	 	31	 
	Tenant
	 	 	1	 
	Tenant Cleaning Services
	 	 	22	 
	Tenant’s Initial Alteration Work
	 	 	42	 
	Tenant’s Plans
	 	 	42	 
	Tenant’s Recapture Offer
	 	 	4	 
	Tenant’s Share
	 	 	27	 
	Term
	 	 	2	 
	Work Cost
	 	 	43	 






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          LEASE (this “Lease”) made as of the 5th day of June 2007 between METROPOLITAN 919
THIRD AVENUE LLC having an office c/o SL Green Realty Corp., at 420 Lexington Avenue, New York,
New York, 10170, hereinafter referred to as “Landlord”, and NEW YORK MARINE AND GENERAL
INSURANCE COMPANY, a New York insurance corporation, having an office at 919 Third Avenue,
10th Floor, New York, New York 10022, hereinafter referred to as “Tenant”.




WITNESSETH




          Landlord and Tenant, in consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby
covenant and agree as follows:




ARTICLE 1




DEMISE; PREMISES AND PURPOSE




          1.01 Landlord hereby leases and demises to Tenant, and Tenant hereby hires and takes from
Landlord, those certain premises located on and comprising the entire rentable portion of the
eleventh (11th) floor made up of two (2) separate spaces, the first of which (“Space A”)
shall consist of that certain portion of the eleventh (11th) floor, approximately as indicated by
hatch marks on the plan annexed hereto and made a part hereof as “Exhibit A-1”, and the second of
which (“Space B”) shall consist of any portion of the eleventh (11th) floor which is not
part of Space A, approximately as indicated by hatch marks on the plan annexed hereto and made a
part hereof as “Exhibit A-2” (Space A and Space B, are hereinafter referred to collectively as the
“Premises”) in the building known as and located at 919 Third Avenue, New York, New York (the
“Building”) subject to the provisions of this Lease.




          1.02 The Premises shall be used and occupied for executive and general office use consistent
with that found in Class “A” high-rise office buildings located in midtown Manhattan only and for
no other purpose.




          1.03 Neither the Premises, nor the halls, corridors, stairways, elevators or any other portion
of the Building shall be used by the Tenant or the Tenant’s servants, employees, licensees,
invitees or visitors in connection with the aforesaid permitted use or otherwise so as to cause any
congestion of the public portions of the Building or the entranceways, sidewalks or roadways
adjoining the Building whether by trucking or by the congregating or loitering thereon of the
Tenant and/or the servants, employees, licensees, invitees or visitors of the Tenant.




          1.04 Tenant shall not permit messengers, delivery personnel or other individuals providing
such services to Tenant (“Delivery Personnel”) to: (i) assemble, congregate or to form a
line outside of the Premises or the Building or otherwise impede
the flow of pedestrian traffic outside of the Premises or Building or (ii) park or otherwise
leave bicycles, wagons or other delivery



1









 






carts outside of the Premises or the Building except in
locations outside of the Building designated by Landlord from time-to-time. Tenant shall require
all Delivery Personnel to comply with rules promulgated by Landlord from time-to-time regarding the
use of outside messenger services.




ARTICLE 2




TERM




          2.01 The Premises are leased for a term (the “Term”) which shall commence (i) with
respect to Space A, September 1, 2007 (the “Space A Commencement Date”), and (ii) with
respect to Space B, on the date which is ninety (90) days after Landlord delivers notice to Tenant
of its intent to deliver possession of Space B to Tenant (the “Space B Commencement
Date”)(which is currently anticipated to occur on or before January 30, 2008, subject to delay
by causes beyond Landlord’s control) and shall end on the 30th day of July, 2016 (the
“Expiration Date”) or on such earlier date upon which the Term shall expire, be canceled or
terminated pursuant to any of the conditions or covenants of this Lease or pursuant to law. Tenant
agrees that upon request from Landlord, it shall execute and return to Landlord within ten (10)
days of Landlord’s request, a certificate prepared by Landlord confirming the Space A Commencement
Date and Space B Commencement Date. Tenant further agrees that its failure to timely execute and
return same to Landlord shall not in any way operate to invalidate the commencement of the term of
this Lease and the designation of the Space A Commencement Date and Space B Commencement Date as
set forth in such certificate.




ARTICLE 3




RENT AND ADDITIONAL RENT




          3.01 Tenant shall pay fixed annual rent without electricity (the “Fixed Annual Rent”)
to Landlord throughout the Term of this Lease in accordance with the provisions of this Article,
provided, however, that all Fixed Annual Rent and Additional Rent accruing under this Lease from
the Space A Commencement Date and Space B Commencement Date through and including the day preceding
the Space A Rent Commencement Date and Space B Rent Commencement Date, respectively, shall be
abated. Tenant shall pay Fixed Annual Rent without electricity with respect to Space A and Space B,
in each case commencing on the rent commencement date applicable to such space of the Premises, at
the rates provided for in the schedule annexed hereto and made a part hereof as Exhibit B-1 and
Exhibit B-2, respectively, in equal monthly installments in advance on the first (1st) day of
each calendar month during the Term, except that the first (1st) monthly installment of Fixed
Annual Rent shall be paid by Tenant upon its execution of this Lease. Fixed Annual Rent for any
partial calendar month shall be appropriately prorated. “Space A Rent Commencement Date”
shall mean the date that is one hundred twenty (120) days after the Space A Commencement Date and
“Space B Rent Commencement Date” shall mean the date that is one hundred twenty (120)
days after the Space B Commencement Date. Anything contained hereinabove to the contrary
notwithstanding, if Tenant at any time during the term of the Lease, breaches any material
covenant, condition or provision of the Lease and fails to cure such



2









 






breach within any applicable
grace period, and provided that the Lease is terminated by Landlord because of such material
default, then, in addition to all other damages and remedies herein provided and to which Landlord
may be otherwise entitled, Landlord shall also be entitled to the repayment in full of all Rent
which has theretofore been abated under the provisions of this Lease, which repayment Tenant shall
make upon demand therefor. All sums other than Fixed Annual Rent payable hereunder shall be deemed
to be “Additional Rent” and shall be payable on demand, unless other payment dates are
hereinafter provided. Tenant shall pay all Fixed Annual Rent and Additional Rent due hereunder,
without any set off or deduction whatsoever (other than as expressly provided in this Lease), in
United States legal tender, either (a) by good and sufficient check drawn on a New York City bank
which clears through the New York Clearing House or a successor thereto delivered to the office of
Landlord or such other place as Landlord may designate by notice to Tenant, or (b) by electronic
transfer of immediately available federal funds payable to such account as Landlord may from time
to time designate by notice to Tenant. The term “Rent” as used in this Lease shall mean
Fixed Annual Rent and Additional Rent.




ARTICLE 4




ASSIGNMENT/SUBLETTING




          4.01 Neither Tenant nor Tenant’s legal representatives or successors in interest by operation
of law or otherwise, shall assign, mortgage or otherwise encumber this Lease, or sublet or permit
all or part of the Premises to be used by others, without the prior written consent of Landlord in
each instance. The transfer of a majority of the issued and outstanding capital stock of any
corporate tenant or sublessee of this Lease or a majority of the total interest in any partnership
tenant or sublessee or company, however accomplished, and whether in a single transaction or in a
series of related or unrelated transactions, the conversion of a tenant or sublessee entity to
either a limited liability company or a limited liability partnership or the merger or
consolidation of a corporate tenant or sublessee, shall be deemed an assignment of this Lease or of
such sublease. If this Lease is assigned, or if the Premises or any part thereof is underlet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the rent herein reserved,
but no assignment, underletting, occupancy or collection shall be deemed a waiver of the provisions
hereof, the acceptance of the assignee, undertenant or occupant as tenant, or a release of Tenant
from the further performance by Tenant of covenants on the part of Tenant herein contained. The
consent by Landlord to an assignment or underletting shall not in any way be construed to relieve
Tenant from obtaining the express consent in writing of Landlord to any further assignment or
underletting. In no event shall any permitted sublessee assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the sublet space or
any part thereof to be used or occupied by others, without Landlord’s prior written consent in each
instance. A modification, amendment or extension of a sublease shall be deemed a sublease. The
listing of the name of a party or entity other than that of Tenant on the Building or floor
directory or on or adjacent to the entrance door to the
Premises shall neither grant such party or entity any right or interest in this Lease or in
the Premises nor constitute Landlord’s consent to any assignment or sublease to, or occupancy of
the Premises by, such party or entity. If any lien is filed against the Premises or the Building of
which the same form a part for brokerage services claimed to have been



3









 






performed for Tenant in connection with any such assignment or sublease, whether or not actually performed, the same shall
be discharged within ten (10) days thereafter, at Tenant’s expense, by filing the bond required by
law, or otherwise, and paying any other necessary sums, and Tenant agrees to indemnify Landlord and
its agents and hold them harmless from and against any and all claims, losses or liability
resulting from such lien for brokerage services rendered.




          4.02 If Tenant desires to assign this Lease or to sublet all or any portion of the Premises,
it shall first submit in writing to Landlord the documents described in Section 4.06 hereof, and
shall offer in writing (“Tenant’s Recapture Offer”), (i) with respect to a prospective
assignment, to assign this Lease to Landlord without any payment of moneys or other consideration
therefor, or, (ii) with respect to a prospective subletting, to sublet to Landlord the portion of
the Premises involved (“Leaseback Area”) for the term specified by Tenant in its proposed
sublease or, at Landlord’s option for the balance of the term of the Lease less one (1) day, and at
the lower of (a) Tenant’s proposed subrental or (b) the rate of Fixed Annual Rent and Additional
Rent, and otherwise on the same terms, covenants and conditions (including provisions relating to
escalation rents), as are contained herein and as are allocable and applicable to the portion of
the Premises to be covered by such subletting. Tenant’s Recapture Offer shall specify the date when
the Leaseback Area will be made available to Landlord, which date shall be in no event earlier than
ninety (90) days nor later than one hundred eighty (180) days following the acceptance of Tenant’s
Recapture Offer (the “Recapture Date”). If an offer of sublease is made, and if the
proposed sublease will result in all or substantially all of the Premises being sublet, then
Landlord shall have the option to extend the term of its proposed sublease for the balance of the
term of this Lease less one (1) day. Landlord shall have a period of ninety (90) days from the
receipt of such Tenant’s Recapture Offer to either accept or reject Tenant’s Recapture Offer or to
terminate this Lease.




          4.03. If Landlord exercises its option to terminate this Lease, then (i) the term of this
Lease shall end at the election of Landlord either (x) on the date that such assignment or sublet
was to become effective or commence, as the case may be, or (y) on the Recapture Date and (ii)
Tenant shall surrender to Landlord and vacate the Premises on or before such date in the same
condition as is otherwise required upon the expiration of this Lease by its terms, (iii) the Rent
and Additional Rent due hereunder shall be paid and apportioned to such date, and (iv) Landlord
shall be free to lease the Premises (or any portion thereof) to any individual or entity including,
without limitation, Tenant’s proposed assignee or subtenant.




          4.04. If Landlord shall accept Tenant’s Recapture Offer, Tenant shall then execute and deliver
to Landlord, or to anyone designated or named by Landlord, an assignment or sublease, as the case
may be, in either case in a form reasonably satisfactory to Landlord’s counsel;




               If a sublease is so made it shall expressly:



          (i) permit Landlord to make further subleases of all or any part of the Leaseback Area and (at
no cost or expense to Tenant) to make and authorize any and all changes, alterations, installations
and improvements in such space as necessary;




          (ii) provide that Tenant will at all times permit reasonably appropriate means of ingress to
and egress from the Leaseback Area;




4









 








          (iii) negate any intention that the estate created under such sublease be merged with any
other estate held by either of the parties;




          (iv) provide that Landlord shall accept the Leaseback Area “as is” except that Landlord, at
Tenant’s expense, shall perform all such work and make all such alterations as may be required
physically to separate the Leaseback Area from the remainder of the Premises and to permit lawful
occupancy, it being intended that Tenant shall have no other cost or expense in connection with the
subletting of the Leaseback Area;




          (v) provide that at the expiration of the term of such sublease Tenant will accept the
Leaseback Area in its then existing condition, subject to the obligations of Landlord to make such
repairs thereto as may be necessary to preserve the Leaseback Area in good order and condition,
ordinary wear and tear excepted.




          4.05 Landlord shall indemnify and save Tenant harmless from all obligations under this Lease
as to the Leaseback Area during the period of time it is so sublet, except for Fixed Annual Rent
and Additional Rent, if any, due under the within Lease, which are in excess of the rents and
additional sums due under such sublease. Subject to the foregoing, performance by Landlord, or its
designee, under a sublease of the Leaseback Area shall be deemed performance by Tenant of any
similar obligation under this Lease and any default under any such sublease shall not give rise to
a default under a similar obligation contained in this Lease, nor shall Tenant be liable for any
default under this Lease or deemed to be in default hereunder if such default is occasioned by or
arises from any act or omission of the tenant under such sublease or is occasioned by or arises
from any act or omission of any occupant holding under or pursuant to any such sublease.




          4.06 If Tenant requests Landlord’s consent to a specific assignment or subletting, it shall
submit in writing to Landlord (i) the name and address of the proposed assignee or sublessee, (ii)
a duly executed counterpart of the proposed agreement of assignment or sublease, (iii) reasonably
satisfactory information as to the nature and character of the business of the proposed assignee or
sublessee and as to the nature of its proposed use of the space, and (iv) banking, financial or
other credit information relating to the proposed assignee or sublessee reasonably sufficient to
enable Landlord to determine the financial responsibility and character of the proposed assignee or
sublessee.




          4.07. If Landlord shall not have accepted Tenant’s Recapture Offer and Landlord shall not have
terminated this Lease, as provided for in Section 4.02 hereof, then Landlord will not unreasonably
withhold or delay its consent to Tenant’s request for consent to such specific assignment or
subletting for the use permitted under this Lease, provided that:




          (i) The Premises shall not, without Landlord’s prior consent, have been listed or otherwise
publicly advertised for assignment or subletting at a rental rate lower than the higher of (a) the
Fixed Annual Rent and all Additional Rent then payable, or (b) the then prevailing rental rate for
other space in the Building;




5









 








          (ii) The proposed assignee or subtenant shall have a financial standing, be of a character, be
engaged in a business, and propose to use the Premises, in a manner consistent with the permitted
use and in keeping with the standards of the Building;




          (iii) The proposed assignee or subtenant shall not then be a tenant, subtenant, assignee or
occupant of any space in the Building, nor shall the proposed assignee or subtenant be a person or
entity who has dealt with Landlord or Landlord’s agent (directly or through a broker) with respect
to space in the Building during the six (6) months immediately preceding Tenant’s request for
Landlord’s consent;




          (iv) The character of the business to be conducted in the Premises by the proposed assignee or
subtenant shall not be likely to increase operating expenses or the burden on existing cleaning
services, elevators or other services and/or systems of the Building;




          (v) In case of a subletting, the subtenant shall be expressly subject to all of the
obligations of Tenant under this Lease and the further condition and restriction that such sublease
shall not be assigned, encumbered or otherwise transferred or the Premises further sublet by the
subtenant in whole or in part, or any part thereof suffered or permitted by the subtenant to be
used or occupied by others, without the prior written consent of Landlord in each instance;




          (vi) No subletting shall end later than one (1) day before the Expiration Date nor shall any
subletting be for a term of less than two (2) years unless it commences less than two (2) years
before the Expiration Date;




          (vii) At no time shall there be more than two (2) occupants, including Tenant, in the
Premises;




          (viii) Tenant shall reimburse Landlord on demand for any reasonable costs, including
attorneys’ fees and disbursements that may be incurred by Landlord in connection with said
assignment or sublease;




          (ix) The character of the business to be conducted in the Premises by the proposed assignee or
subtenant shall not require any alterations, installations, improvements, additions or other
physical changes to be performed, or made to, any portion of the Building or the Real Property
other than the Premises; and




          (x) The proposed assignee or subtenant shall not be any entity which is entitled to diplomatic
or sovereign immunity or which is not subject to service of process in the State of New York or to
the jurisdiction of the courts of the State of New York and the United States located in New York
County.




          4.08 Any consent of Landlord under this Article shall be subject to the terms of this Article
and conditioned upon there being no default by Tenant, beyond any grace period, under any of the
terms, covenants and conditions of this Lease at the time that Landlord’s consent to any such
subletting or assignment is requested and on the date of the commencement of the term of any
proposed sublease or the effective date of any proposed assignment. Tenant acknowledges and




6









 







agrees that no assignment or subletting shall be effective unless and until Tenant, upon receiving any
necessary Landlord’s written consent (and unless it was theretofore delivered to Landlord) causes a
duly executed copy of the sublease or assignment to be delivered to Landlord within ten (10) days
after execution thereof. Any such sublease shall provide that the sublessee shall comply with all
applicable terms and conditions of this Lease to be performed by the Tenant hereunder. Any such
assignment of this Lease shall contain an assumption by the assignee of all of the terms, covenants
and conditions of this Lease to be performed by the Tenant.




          4.09. Anything hereinabove contained to the contrary notwithstanding, Landlord’s consent shall
not be required for an assignment of this Lease, or sublease of all or part of the Premises for the
uses permitted hereunder, to a Related Entity provided that (i) Landlord is given prior notice
thereof and reasonably satisfactory proof that the requirements of this Lease have been met and
Tenant agrees to remain primarily liable, jointly and severally, with any transferee or assignee,
for the obligations of Tenant under this Lease and (ii) in Landlord’s reasonable judgment the
proposed assignee or subtenant is engaged in a business and the Premises, or the relevant part
thereof, will be used in a manner which (x) is in keeping with the standards of the Building and
(y) would not adversely affect or increase Landlord’s cost in the operation of the Building.




          4.10 For purposes of this Article:




          (i) a “Related Entity” shall mean (x) a wholly-owned subsidiary of Tenant or any
corporation or entity which controls or is controlled by Tenant or is under common control with
Tenant or (y) any entity (i) to which substantially all the assets of Tenant are transferred or
(ii) into which Tenant may be merged or consolidated, provided that in either such case both the
net worth and ratio of current assets to current liabilities (exclusive of good will) of such
transferee or of the resulting or surviving corporation or other business entity, as the case may
be, as certified by the certified public accountants of such transferee or the resulting or
surviving business entity in accordance with generally accepted accounting principles, consistently
applied, is not less than Tenant’s net worth and ratio of current assets to current liabilities
(exclusive of good will), as so certified, as of (a) the Commencement Date or (b) the day
immediately prior to such transaction, whichever is greater, and provided also that any such
transaction complies with the other provisions of this Article; and




          (ii) the term “control” shall mean, in the case of a corporation or other entity,
ownership or voting control, directly or indirectly, of at least fifty (50%) percent of all of the
general or other partnership (or similar) interests therein.




          4.11 Anything hereinabove contained to the contrary notwithstanding, the “recapture”
provisions of this Article shall not apply in connection with, and Landlord’s consent shall not be
required for a sublease of part of the Premises, which portion of the of the Premises shall
not exceed the entire rentable square footage of Space A, by Tenant named on the front page of this
Lease (the “Named Tenant”) for the uses permitted hereunder, to either (a) Mariner
Partners, Inc., or (b) Tricadia Capital Management LLC, provided that (i) Landlord is given at
least thirty (30) days prior notice thereof along with a copy of the proposed sublease, and
reasonably satisfactory proof that the requirements of this Article 4 have been met and Tenant
agrees to remain primarily liable for the



7









 






obligations of Tenant under this Lease, (ii) in
Landlord’s reasonable judgment the proposed subtenant is engaged in a business and the Premises, or
the relevant part thereof, will be used in a manner which (x) is in keeping with the standards of
the Building and (y) would not adversely affect or increase Landlord’s cost in the operation of the
Building, (iii) to the extent to which such subletting shall be for a term ending after December
31, 2010, or three (3) years from the Space A Commencement Date, such subletting shall be subject
to the “recapture” provisions of this Article, and (iv) after such subletting, the Named Tenant
shall occupy no less than fifty (50%) percent of the entire Premises for the conduct of its
business (as opposed to mere lawful possession).




          4.12 If Landlord shall not have accepted Tenant’s Recapture Offer hereunder and Landlord has
not elected to terminate this Lease, and Tenant effects any assignment or subletting (other than
pursuant to Section 4.09 above), then Tenant thereafter shall pay to Landlord a sum equal to fifty
(50%) percent of (a) any rent or other consideration payable to Tenant by any subtenant (after
deducting the cost of Tenant, if any, in effecting the subletting or assignment, for reasonable
alteration costs, advertising expenses, brokerage commissions, reasonable rent concessions and
legal fees) which is in excess of the rent allocable to the subleased space which is then being
paid by Tenant to Landlord pursuant to the terms hereof, and (b) any other profit or gain realized
by Tenant (after deducting the cost of Tenant, if any, in effecting the subletting or assignment,
for reasonable alteration costs, advertising expenses, brokerage commissions, reasonable rent
concessions and legal fees not previously deducted in subsection a above) from any such subletting
or assignment. In computing such excess amount and/or profit or gain, any advertising, legal
expenses and brokerage commissions reasonably incurred by Tenant in connection with such assignment
or subleasing shall be deducted on an amortized basis (i.e., in equal monthly installments) over
the balance of the term of the sublease, in the event of a subletting, or this Lease, in the event
of an assignment. The foregoing amounts shall be payable to Landlord only if, as and when, the
same are received by Tenant from said assignee or sublessee.




          4.13 In no event shall Tenant be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any claim, for money damages (nor shall Tenant claim any money damages by way
of set-off, counterclaim or defense) based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed its consent or approval to a proposed assignment or
subletting as provided for in this Article. Tenant’s sole remedy shall be an action or proceeding
to enforce any such provision, or for specific performance, injunction or declaratory judgment.




ARTICLE 5




DEFAULT




          5.01 Landlord may terminate this Lease on five (5) days’ notice: (a) if Fixed Annual Rent or
Additional Rent is not paid within five (5) days after written notice from Landlord; or (b) if
Tenant shall have failed to cure a default in the performance of any covenant of this Lease (except
the payment of Rent), or any rule or regulation hereinafter set forth, within ten (10) days after
written notice thereof from Landlord, or if default cannot be completely cured in such time, if
Tenant shall not promptly proceed to cure such default within said ten (10) days, or shall not



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complete the curing of such default with due diligence; or (c) when and to the extent permitted by
law, if a petition in bankruptcy shall be filed by or against Tenant or if Tenant shall make a
general assignment for the benefit of creditors, or receive the benefit of any insolvency or
reorganization act; or (d) if a receiver or trustee is appointed for any portion of Tenant’s
property and such appointment is not vacated within twenty (20) days; or (e) if an execution or
attachment shall be issued under which the Premises shall be taken or occupied or attempted to be
taken or occupied by anyone other than Tenant; or (f) if the Premises become and remain deserted
for a period of ten (10) days; or (g) if Tenant shall default beyond any grace period under any
other lease between Tenant and Landlord. At the expiration of the five (5) day notice period, this
Lease and any rights of renewal or extension thereof shall terminate as completely as if that were
the date originally fixed for the expiration of the Term of this Lease, but Tenant shall remain
liable as hereinafter provided.




          5.02 In the event that Tenant is in arrears for Fixed Annual Rent or any item of Additional
Rent, Tenant waives its right, if any, to designate the items against which payments made by Tenant
are to be credited and Landlord may apply any payments made by Tenant to any items which Landlord
in its sole discretion may elect irrespective of any designation by Tenant as to the items against
which any such payment should be credited.




          5.03 Tenant shall not seek to remove and/or consolidate any summary proceeding brought by
Landlord with any action commenced by Tenant in connection with this Lease or Tenant’s use and/or
occupancy of the Premises.




          5.04 In the event of a default by Landlord hereunder, no property or assets of Landlord, or
any principals, shareholders, officers, directors, partners or members of Landlord, whether
disclosed or undisclosed, other than the Building in which the Premises are located and the land
upon which the Building is situated, shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant’s remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant’s use and occupancy of the Premises.




ARTICLE 6




RELETTING, ETC.




          6.01 If Landlord shall re-enter the Premises on the default of Tenant, by summary
proceedings or otherwise: (a) Landlord may re-let the Premises or any part thereof, as
Tenant’s agent, in the name of Landlord, or otherwise, for a term shorter or longer than the
balance of the term of this Lease, and may grant concessions or free rent; (b) Tenant shall pay
Landlord any deficiency between the rent hereby reserved and the net amount of any rents collected
by Landlord for the remaining term of this Lease, through such re-letting. Such deficiency shall
become due and payable monthly, as it is determined. Landlord shall have no obligation to re-let
the Premises, and its failure or refusal to do so, or failure to collect rent on re-letting, shall
not affect Tenant’s liability hereunder. In computing the net amount of rents collected through
such re-letting, Landlord may deduct all expenses incurred in obtaining possession or re-letting
the Premises, including legal expenses and fees, brokerage fees, the cost of restoring the Premises
to good order, and the cost of all alterations and decorations deemed necessary by Landlord to
effect re-letting. In no event shall




9









 







Tenant be entitled to a credit or repayment for rerental
income which exceeds the sums payable by Tenant hereunder or which covers a period after the
original term of this Lease; (c) Tenant hereby expressly waives any right of redemption granted by
any present or future law. “Re-enter” and “re-entry” as used in this Lease are not restricted to
their technical legal meaning. In the event of a breach or threatened breach of any of the
covenants or provisions hereof, Landlord shall have the right of injunctive relief. Mention herein
of any particular remedy shall not preclude Landlord from any other available remedy; (d) Landlord
shall recover as liquidated damages, in addition to accrued rent and other charges, if Landlord’s
re-entry is the result of Tenant’s bankruptcy, insolvency, or reorganization, the full rental for
the maximum period allowed by any act relating to bankruptcy, insolvency or reorganization.




          6.02 If Landlord re-enters the Premises for any cause, or if Tenant abandons the Premises, or
after the expiration of the term of this Lease, any property left in the Premises by Tenant shall
be deemed to have been abandoned by Tenant, and Landlord shall have the right to retain or dispose
of such property in any manner without any obligation to account therefor to Tenant. If Tenant
shall at any time default hereunder, and if Landlord shall institute an action or summary
proceeding against Tenant based upon such default, then Tenant will reimburse Landlord for the
legal expenses and fees thereby incurred by Landlord.




ARTICLE 7




LANDLORD MAY CURE DEFAULTS




          7.01 If Tenant shall default in performing any covenant or condition of this Lease, Landlord
may perform the same for the account of Tenant, and if Landlord, in connection therewith, or in
connection with any default by Tenant, makes any expenditures or incurs any obligations for the
payment of money, including but not limited to reasonable attorney’s fees, such sums so paid or
obligations incurred shall be deemed to be Additional Rent hereunder, and shall be paid by Tenant
to Landlord within five (5) days of rendition of any bill or statement therefor, and if Tenant’s
lease term shall have expired at the time of the making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Landlord as damages.




ARTICLE 8




ALTERATIONS




          8.01 Tenant shall make no decoration, alteration, addition or improvement in the Premises,
without the prior written consent of Landlord, and then only by contractors or mechanics and in
such manner and time, and with such materials, as approved by Landlord. All alterations, additions
or improvements to the Premises, including air-conditioning equipment and duct work, except movable
office furniture and trade equipment installed at the expense of Tenant, shall, unless Landlord
elects otherwise in writing, become the property of Landlord, and shall be surrendered with the
Premises, at the expiration or sooner termination of the term of this Lease. Any such



10









 






alterations, additions and improvements which Landlord shall designate shall be removed by Tenant and any damage
repaired, at Tenant’s expense, prior to the expiration of this Lease.




          8.02 Anything hereinabove to the contrary notwithstanding, Landlord will not unreasonably
withhold or delay approval of written requests of Tenant to make nonstructural interior
alterations, decorations, additions and improvements (herein referred to as “Alterations”)
in the Premises, provided that such Alterations do not affect utility services or plumbing and
electrical lines or other systems of the Building and do not affect and are not visible from any
portion of the Building outside of the Premises. All Alterations shall be performed in accordance
with the following conditions:




          (i) Prior to the commencement of any Alterations costing more than $50,000.00 or requiring a
building permit, Tenant shall first submit to Landlord for its approval detailed dimensioned
coordinated plans and specifications, including layout, architectural, mechanical, electrical,
plumbing and structural drawings for each proposed Alteration. Landlord shall be given, in writing,
a good description of all other Alterations.




          (ii) All Alterations in and to the Premises shall be performed in a good and workmanlike
manner and in accordance with the Building’s rules and regulations governing Tenant Alterations.
Prior to the commencement of any such Alterations, Tenant shall, at its sole cost and expense,
obtain and exhibit to Landlord any governmental permit required in connection with such
Alterations. In order to compensate Landlord for its general conditions and the costs incurred by
Landlord in connection with Tenant’s performance of Alterations in and/or to the Premises
(including, without limitation, the costs incurred by Landlord in connection with the coordination
of Alterations which may affect systems or services of the Building or portions of the Building
outside of the Premises), Tenant shall pay to Landlord a fee equal to five (5%) percent of the cost
of such Alterations (excluding, however any Alterations performed by Tenant within the first twelve
(12) months of the Term and any Alterations which do not affect utility services or plumbing and
electrical lines or other systems of the Building, cost less than $50,000.00, and do not require a
building permit). Such fee shall be paid by Tenant as Additional Rent hereunder within ten (10)
days following receipt of an invoice therefor.




          (iii) All Alterations shall be done in compliance with all other applicable provisions of this
Lease and with all applicable laws, ordinances, directions, rules and regulations of
governmental authorities having jurisdiction, including, without limitation, the Americans
with Disabilities Act of 1990 and New York City Local Law No. 57/87 and similar present or future
laws, and regulations issued pursuant thereto, and also New York City Local Law No. 76 and similar
present or future laws, and regulations issued pursuant thereto, on abatement, storage,
transportation and disposal of asbestos and other hazardous materials, which work, if required,
shall be effected at Tenant’s sole cost and expense, by contractors and consultants approved by
Landlord and in strict compliance with the aforesaid rules and regulations and with Landlord’s
rules and regulations thereon.




          (iv) All work shall be performed with union labor having the proper jurisdictional
qualifications.




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          (v) Tenant shall keep the Building and the Premises free and clear of all liens for any work
or material claimed to have been furnished to Tenant or to the Premises.




          (vi) Prior to the commencement of any work by or for Tenant, Tenant shall furnish to Landlord
certificates evidencing the existence of the following insurance:




               (a) Workmen’s compensation insurance covering all persons employed for such work and with
respect to whom death or bodily injury claims could be asserted against Landlord, Tenant or the
Premises.



               (b) Broad form general liability insurance written on an occurrence basis naming Tenant as an
insured and naming Landlord and its designees as additional insureds, with limits of not less than
$3,000,000 combined single limit for personal injury in any one occurrence, and with limits of not
less than $500,000 for property damage (the foregoing limits may be revised from time to time by
Landlord to such higher limits as Landlord from time to time reasonably requires). Tenant, at its
sole cost and expense, shall cause all such insurance to be maintained at all time when the work to
be performed for or by Tenant is in progress. All such insurance shall be obtained from a company
authorized to do business in New York and shall provide that it cannot be canceled without thirty
(30) days prior written notice to Landlord. All polices, or certificates therefor, issued by the
insurer and bearing notations evidencing the payment of premiums, shall be delivered to Landlord.
Blanket coverage shall be acceptable, provided that coverage meeting the requirements of this
paragraph is assigned to Tenant’s location at the Premises.



          (vii) Intentionally Deleted.




          (viii) All work to be performed by Tenant shall be done in a manner which will not interfere
with or disturb other tenants and occupants of the Building.




          (ix) The review and/or approval by Landlord, its agents, consultants and/or contractors, of
any Alteration or of plans and specifications therefor and the coordination of such Alteration work
with the Building, as described in part above, are solely for the benefit of Landlord, and neither
Landlord nor any of its agents, consultants or contractors shall have any duty toward Tenant; nor
shall Landlord or any of its agents, consultants and/or contractors be deemed to have made any
representation or warranty to Tenant, or have any liability, with respect to the safety,
adequacy, correctness, efficiency or compliance with laws of any plans and specifications,
Alterations or any other matter relating thereto.




          (x) Promptly following the substantial completion of any Alterations, Tenant shall submit to
Landlord: (a) one (1) sepia and one (1) copy on disk (using a current version of Autocad or such
other similar software as is then commonly in use) of final, “as-built” plans for the Premises
showing all such Alterations and demonstrating that such Alterations were performed substantially
in accordance with plans and specifications first approved by Landlord and (b) an itemization of
Tenant’s total construction costs, detailed by contractor, subcontractors, vendors and materialmen;
bills, receipts, lien waivers and releases from all contractors, subcontractors, vendors and
materialmen; architects’ and Tenant’s certification of completion, payment and acceptance, and all
governmental approvals and confirmations of completion for such Alterations.




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ARTICLE 9




LIENS




          9.01 Prior to commencement of its work in the Premises, Tenant shall obtain and deliver to
Landlord a written letter of authorization, in form satisfactory to Landlord’s counsel, signed by
all architects, engineers and designers to become involved in such work, which shall confirm that
any of their drawings or plans are to be removed from any filing with governmental authorities on
request of Landlord, in the event that said architect, engineer or designer thereafter no longer is
providing services with respect to the Premises. With respect to contractors, subcontractors,
materialmen and laborers, and architects, engineers and designers, for all work or materials to be
furnished to Tenant at the Premises, Tenant agrees to obtain and deliver to Landlord written and
unconditional waiver of mechanics liens upon the Premises or the Building after payments to the
contractors, etc., subject to any then applicable provisions of the Lien Law. Notwithstanding the
foregoing, Tenant at its expense shall cause any lien filed against the Premises or the Building,
for work or materials claimed to have been furnished to Tenant, to be discharged of record within
ten (10) days after notice thereof.




ARTICLE 10




REPAIRS




          10.01 Tenant shall take good care of the Premises and the fixtures and appurtenances therein,
and shall make all repairs necessary to keep them in good working order and condition, including
structural repairs when those are necessitated by the act, omission or negligence of Tenant or its
agents, employees, invitees or contractors, subject to the provisions of Article 11 hereof. During
the term of this Lease, Tenant may have the use of any air-conditioning equipment servicing the
Premises, subject to the provisions of Article 35 of this Lease, and shall reimburse Landlord, in
accordance with Article 41 of this Lease, for electricity consumed by the equipment. The exterior
walls and roofs of the Building, the mechanical rooms, service closets, shafts, areas above any
hung ceiling and the windows and the portions of all window sills outside same are not part of the
Premises demised by this Lease, and Landlord hereby reserves all rights to such parts of the
Building. Notwithstanding the foregoing, Tenant shall be permitted access above the hung ceilings
within the Premises for the sole purpose of installing and maintaining wiring, cabling and conduits
for computer and communications systems. Tenant shall not paint, alter, drill into or otherwise
change the appearance of the windows including, without limitation, the sills, jambs, frames,
sashes, and meeting rails.




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ARTICLE 11




FIRE OR OTHER CASUALTY




          11.01 Damage by fire or other casualty to the Building and to the core and shell of the
Premises (excluding the tenant improvements and betterments and Tenant’s personal property) shall
be repaired at the expense of Landlord (“Landlord’s Restoration Work”), but without
prejudice to the rights of subrogation, if any, of Landlord’s insurer to the extent not waived
herein. Landlord shall not be required to repair or restore any of Tenant’s property or any
alteration, installation or leasehold improvement made in and/or to the Premises. If, as a result
of such damage to the Building or to the core and shell of the Premises, the Premises are rendered
untenantable, the Rent shall abate in proportion to the portion of the Premises not usable by
Tenant from the date of such fire or other casualty until Landlord’s Restoration Work is
substantially completed. Landlord shall not be liable to Tenant for any delay in performing
Landlord’s Restoration Work, Tenant’s sole remedy being the right to an abatement of Rent, as
provided above. Tenant shall cooperate with Landlord in connection with the performance by Landlord
of Landlord’s Restoration Work. If the Premises are rendered wholly untenantable by fire or other
casualty and if Landlord shall decide not to restore the Premises, or if the Building shall be so
damaged that Landlord shall decide to demolish it or not to rebuild it (whether or not the Premises
have been damaged), Landlord may within ninety (90) days after such fire or other cause give
written notice to Tenant of its election that the term of this Lease shall automatically expire no
less than ten (10) days after such notice is given. Notwithstanding the foregoing, each party shall
look first to any insurance in its favor before making any claim against the other party for
recovery for loss or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Landlord and Tenant each
hereby releases and waives all right of recovery against the other or any one claiming through or
under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in
force only if both releasors’ insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance and also, provided that such a policy can be obtained
without additional premiums. Tenant hereby expressly waives the provisions of Section 227 of the
Real Property Law and agrees that the foregoing provisions of this Article shall govern and control
in lieu thereof.




          11.02 In the event that the Premises has been damaged or destroyed and this Lease has not been
terminated in accordance with the provisions of this Article, Tenant shall (i) cooperate with
Landlord in the restoration of the Premises and shall remove from the Premises as promptly as
reasonably possible all of Tenant’s salvageable inventory, movable equipment, furniture and other
property and (ii) repair the damage to the tenant improvements and betterments and Tenant’s
personal property and restore the Premises within one hundred eighty (180) days following the date
upon which the core and shell of the Premises shall have been substantially repaired by Landlord.




ARTICLE 12




END OF TERM




          12.01 Tenant shall surrender the Premises to Landlord at the expiration or sooner




14









 







termination of this Lease in good order and condition, except for reasonable wear and tear and damage by fire
or other casualty, and Tenant shall remove all of its property. Tenant agrees it shall indemnify
and save Landlord harmless against all costs, claims, loss or liability resulting from delay by
Tenant in so surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. The parties recognize and agree that the damage to
Landlord resulting from any failure by Tenant timely to surrender the Premises will be substantial,
will exceed the amount of monthly Rent theretofore payable hereunder, and will be impossible of
accurate measurement. Tenant therefore agrees that if possession of the Premises is not surrendered
to Landlord within one (1) day after the date of the expiration or sooner termination of the Term
of this Lease, then Tenant will pay Landlord as liquidated damages for each month and for each
portion of the first month during which Tenant holds over in the Premises after expiration or
termination of the Term of this Lease, a sum equal to one and one-half (1 1/2) times the average Rent
which was payable per month under this Lease during the last six months of the Term thereof and for
the second and subsequent months during which Tenant holds over in the Premises after expiration or
termination of the Term of this Lease, a sum equal to two (2) times the Rent which was payable per
month under this Lease during the last month of the Term thereof. Tenant shall also pay all
Additional Rent as incurred in the normal course of operations under the Lease. The aforesaid
obligations shall survive the expiration or sooner termination of the Term of this Lease. At any
time during the Term of this Lease, Landlord may exhibit the Premises to prospective purchasers or
mortgagees of Landlord’s interest therein. During the last year of the term of this Lease, Landlord
may exhibit the Premises to prospective tenants.




ARTICLE 13




SUBORDINATION AND ESTOPPEL, ETC.




          13.01 This Lease, and all rights of Tenant hereunder, are, and shall continue to be, subject
and subordinate in all respects to:





     (1) all ground leases, overriding leases and underlying leases of the land
and/or the building now or hereafter existing;




     (2) all mortgages that may now or hereafter affect the land, the Building
and/or any of such leases, whether or not such mortgages shall also cover other
lands and/or buildings;




     (3) each and every advance made or hereafter to be made under such mortgages;




     (4) all renewals, modifications, replacements and extensions of such leases and
such mortgages; and




     (5) all spreaders and consolidations of such
mortgages.



15









 





          13.02 The provisions of Section 13.01 of this Article shall be self-operative, and no further
instrument of subordination shall be required. In confirmation of such subordination, Tenant shall
execute and deliver any instrument that Landlord, the lessor of any such lease, the holder of any
mortgage or any of its successors in interest shall reasonably request to evidence such
subordination and, in the event that Tenant shall fail to execute and deliver any such instrument
within ten (10) days after request therefor, Tenant shall irrevocably constitute and appoint
Landlord as Tenant’s attorney-in-fact, coupled with an interest, to execute and deliver any such
instrument for and on behalf of Tenant. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article 13 are herein sometimes called “superior leases”,
the mortgages to which this Lease is, at the time referred to, subject and subordinate are herein
sometimes called “superior mortgages”, the lessor of a superior lease or its successor in interest
at the time referred to is sometimes herein called a “lessor” and the mortgagee under a superior
mortgage or its successor in interest at the time referred to is sometimes herein called a
“mortgagee”.




          13.03 In the event of any act or omission of Landlord that would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a
partial or total eviction, Tenant shall not exercise such right until:





     (i) it has given written notice of such act or omission to the mortgagee of
each superior mortgage and the lessor of such superior lease whose name and address
shall previously have been furnished to Tenant; and




     (ii) a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such mortgagee or
lessor shall have obtained possession of the Premises and become entitled under such
superior mortgage or superior lease, as the case may be, to remedy the same (which
reasonable period shall in no event be less than the period to which Landlord would
be entitled under this Lease or otherwise, after similar notice, to effect such
remedy). Nothing contained herein shall obligate such lessor or mortgagee to remedy
such act or omission.



          13.04 If the lessor of a superior lease or the mortgagee of a superior mortgage shall succeed
to the rights of Landlord under this Lease, whether through possession or foreclosure action
or delivery of a new lease or deed, then, at the request of such party so succeeding to
Landlord’s rights (hereinafter sometimes called a “successor landlord”), and upon such successor
landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize
such successor landlord as Tenant’s landlord under this Lease, and shall promptly execute and
deliver any instrument that such successor landlord may reasonably request to evidence such
attornment. Upon such attornment this Lease shall continue in full force and effect as, or as if it
were, a direct lease between such successor landlord and Tenant upon all of the terms, conditions
and covenants as are set forth in this Lease and shall be applicable after such attornment, except
that such successor landlord shall not be subject to any offset or liable for any previous act or
omission of Landlord under this Lease.




          13.05 If, in connection with obtaining financing or refinancing for the Building, a banking,
insurance, or other lender shall request reasonable modifications to this Lease as a



16









 






condition to
such financing or refinancing, Tenant shall not unreasonably withhold, delay, or defer its consent
thereto, provided that such modifications do not materially increase the obligation, or materially
decrease the rights, of Tenant hereunder. In no event shall a requested modification of this Lease
requiring Tenant to do the following be deemed to materially adversely affect the leasehold
interest hereby created:





     (i) give notice of any default by Landlord under this Lease to such lender
and/or permit the curing of such defaults by such lender; and




     (ii) obtain such lender’s consent for any modification of this Lease.



          13.06 This Lease may not be modified or amended so as to reduce the Rent, shorten the term, or
otherwise materially affect the rights of Landlord hereunder, or be canceled or surrendered,
without the prior written consent in each instance of the ground lessors and of any mortgagees
whose mortgages shall require such consent. Any such modification, agreement, cancellation or
surrender made without such prior written consent shall be null and void.




          13.07 Tenant agrees that if this Lease terminates, expires or is canceled for any reason or by
any means whatsoever by reason of a default under a ground lease or mortgage, and the ground lessor
or mortgagee so elects by written notice to Tenant, this Lease shall automatically be reinstated
for the balance of the term which would have remained but for such termination, expiration or
cancellation, at the same rental, and upon the same agreements, covenants, conditions, restrictions
and provisions herein contained, with the same rental, and upon the same agreements, covenants,
conditions, restrictions and provisions herein contained, with the same force and effect as if no
such termination, expiration or cancellation had taken place. Tenant covenants to execute and
deliver any instrument required to confirm the validity of the foregoing.




          13.08 From time to time, Tenant, on at least ten (10) days’ prior written request by Landlord,
shall deliver to Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there shall have been modifications, that the same is in full force
and effect as modified and stating the modifications) and the dates to which the Rent and other
charges have been paid and stating whether or not Landlord is in default in performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying each such default.
Tenant hereby irrevocably constitutes and appoints Landlord the attorney-in-fact of Tenant to execute,
acknowledge and deliver any such statements or certificates for and on behalf of Tenant in the
event that Tenant fails to so execute any such statement or certificate.




ARTICLE 14




CONDEMNATION




          14.01 If the whole or any substantial part of the Premises shall be condemned by eminent
domain or acquired by private purchase in lieu thereof, for any public or quasi-public purpose,
this Lease shall terminate on the date of the vesting of title through such proceeding or purchase,
and Tenant shall have no claim against Landlord for the value of any unexpired portion of



17









 






the Term of this Lease, nor shall Tenant be entitled to any part of the condemnation award or private
purchase price. If less than a substantial part of the Premises is condemned, this Lease shall not
terminate, but Rent shall abate in proportion to the portion of the Premises condemned.




ARTICLE 15




REQUIREMENTS OF LAW




          15.01 Tenant at its expense shall comply with all laws, orders and regulations of any
governmental authority having or asserting jurisdiction over the Premises, which shall impose any
violation, order or duty upon Landlord or Tenant with respect to the Premises or the use or
occupancy thereof, including, without limitation, compliance in the Premises with all City, State
and Federal laws, rules and regulations on the disabled or handicapped, on fire safety and on
hazardous materials. The foregoing shall not require Tenant to do structural work to the Building.




          15.02 Tenant shall require every person engaged by him to clean any window in the Premises
from the outside, to use the equipment and safety devices required by Section 202 of the Labor Law
and the rules of any governmental authority having or asserting jurisdiction.




          15.03 Tenant at its expense shall comply with all requirements of the New York Board of Fire
Underwriters, or any other similar body affecting the Premises, and shall not use the Premises in a
manner which shall increase the rate of fire insurance of Landlord or of any other tenant, over
that in effect prior to this Lease. If Tenant’s use of the Premises increases the fire insurance
rate, Tenant shall reimburse Landlord for all such increased costs. That the Premises are being
used for the purpose set forth in Article 1 hereof shall not relieve Tenant from the foregoing
duties, obligations and expenses.




ARTICLE 16




CERTIFICATE OF OCCUPANCY




          16.01 Tenant will at no time use or occupy the Premises in violation of the certificate of
occupancy issued for the Building. The statement in this Lease of the nature of the business to be
conducted by Tenant shall not be deemed to constitute a representation or guaranty by Landlord that
such use is lawful or permissible in the Premises under the certificate of occupancy for the
Building.




ARTICLE 17




POSSESSION




          17.01 If Landlord shall be unable to give possession of Space A on the Space A Commencement
Date or Space B on the Space B Commencement Date because of the retention of




18









 







possession of any occupant thereof, alteration or construction work, or for any other reason, Landlord shall not be
subject to any liability for such failure. In such event, this Lease shall stay in full force and
effect, without extension of its Term. However, the Space A Rent Commencement Date or the Space B
Rent Commencement Date, as the case may be, hereunder shall be delayed until one hundred twenty
(120) days from the date the Space A or Space B, as the case may be, are available for occupancy by
Tenant. If delay in possession is due to work, changes or decorations being made by or for Tenant,
or is otherwise caused by Tenant, there shall be no rent abatement and the Rent shall commence on
the date specified in this Lease. If permission is given to Tenant to occupy the Premises or other
Premises prior to the date specified as the commencement of the Term, such occupancy shall be
deemed to be pursuant to the terms of this Lease, except that the parties shall separately agree as
to the obligation of Tenant to pay Rent for such occupancy. The provisions of this Article are
intended to constitute an “express provision to the contrary” within the meaning of Section 223(a),
New York Real Property Law.




ARTICLE 18




QUIET ENJOYMENT




          18.01 Landlord covenants that if Tenant pays the Rent and performs all of Tenant’s other
obligations under this Lease, Tenant may peaceably and quietly enjoy the Premises, subject to the
terms, covenants and conditions of this Lease and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.




ARTICLE 19




RIGHT OF ENTRY




          19.01 Tenant shall permit Landlord to erect, construct and maintain pipes, conduits and shafts
in and through the Premises. Landlord or its agents shall have the right to enter or pass through
the Premises at all times, by master key and, in the event of an emergency, by reasonable force or
otherwise, to examine the same, and to make such repairs, alterations or additions as it may deem
necessary or desirable to the Premises or the Building, and to take all material into and upon the
Premises that may be required therefor. Such entry and work shall not constitute an eviction of
Tenant in whole or in part, shall not be grounds for any abatement of Rent, and shall impose no
liability on Landlord by reason of inconvenience or injury to Tenant’s business. Landlord shall
have the right at any time, without the same constituting an actual or constructive eviction, and
without incurring any liability to Tenant, to change the arrangement and/or location of entrances
or passageways, windows, corridors, elevators, stairs, toilets, or other public parts of the
Building, and to change the designation of rooms and suites and the name or number by which the
Building is known.




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ARTICLE 20




INDEMNITY




          20.01 Tenant shall indemnify, defend and save Landlord harmless from and against any liability
or expense arising from the use or occupation of the Premises by Tenant, or anyone on the Premises
with Tenant’s permission, or from any breach of this Lease.




ARTICLE 21




LANDLORD’S LIABILITY, ETC.




          21.01 This Lease and the obligations of Tenant hereunder shall not in any way be affected
because Landlord is unable to fulfill any of its obligations or to supply any service, by reason of
strike or other cause not within Landlord’s control. Landlord shall have the right, without
incurring any liability to Tenant, to stop any service because of accident or emergency, or for
repairs, alterations or improvements, necessary or desirable in the judgment of Landlord, until
such repairs, alterations or improvements shall have been completed. Landlord shall not be liable
to Tenant or anyone else, for any loss or damage to person, property or business; nor shall
Landlord be liable for any latent defect in the Premises or the Building. Neither the partners,
entities or individuals comprising the Landlord, nor the agents, directors, or officers or
employees of any of the foregoing shall be liable for the performance of the Landlord’s obligations
hereunder. Tenant agrees to look solely to Landlord’s estate and interest in the land and Building,
or the lease of the Building or of the land and Building, and the Premises, for the satisfaction of
any right or remedy of Tenant for the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord, and in the event of
any liability by Landlord, no other property or assets of Landlord or of any of the aforementioned
parties shall be subject to levy, execution or other enforcement procedure for the satisfaction of
Tenant’s remedies under or with respect to this Lease, the relationship of Landlord and Tenant
hereunder, or Tenant’s use and occupancy of the Premises or any other liability of Landlord to
Tenant.




ARTICLE 22




CONDITION OF PREMISES




          22.01 The parties acknowledge that Tenant has inspected the Premises and the Building and is
fully familiar with the physical condition thereof and Tenant agrees to accept the Premises at the
commencement of the Term in its then “as is” condition. Tenant acknowledges and agrees that
Landlord shall have no obligation to do any work in or to the Premises in order to make it suitable
and ready for occupancy and use by Tenant.




20









 








ARTICLE 23




CLEANING




          23.01 Landlord shall cause the Premises to be kept clean in accordance with Landlord’s
customary standards for the Building, provided they are kept in order by Tenant. Landlord, its
cleaning contractor and their employees shall have after-hours access to the Premises and the use
of Tenant’s light, power and water in the Premises as may be reasonably required for the purpose of
cleaning the Premises. Landlord may remove Tenant’s extraordinary refuse from the Building and
Tenant shall pay the cost thereof.




          23.02 Tenant acknowledges that Landlord has designated a cleaning contractor for the Building.
Tenant agrees to employ said cleaning contractor or such other contractor as Landlord shall from
time to time designate (the “Building Cleaning Contractor”) to perform all cleaning
services Tenant elects to have performed within the Premises in addition to those provided pursuant
to Section 23.01 above, and for any other waxing, polishing, and other cleaning and maintenance
work of the Premises and Tenant’s furniture, fixtures and equipment (collectively, “Tenant
Cleaning Services”) provided that the prices charged by said contractor are comparable to the
prices customarily charged by other reputable cleaning contractors employing union labor in midtown
Manhattan for the same level and quality of service. Tenant acknowledges that it has been advised
that the cleaning contractor for the Building may be a division or affiliate of Landlord. Tenant
agrees that it shall not employ any other cleaning and maintenance contractor, nor any individual,
firm or organization for such purpose, without Landlord’s prior written consent. In the event that
Landlord and Tenant cannot agree on whether the prices then being charged by the Building Cleaning
Contractor for such cleaning services are comparable to those charged by other reputable
contractors as herein provided, then Landlord and Tenant shall each obtain two (2) bona fide bids
for such services from reputable cleaning contractors
performing such services in comparable buildings in midtown Manhattan employing union labor,
and the average of the four bids thus obtained shall be the standard of comparison. In the event
that the Building Cleaning Contractor does not agree to perform such cleaning services for Tenant
at such average price, Landlord shall not unreasonably withhold its consent to the performance of
Tenant Cleaning Services by a reputable cleaning contractor designated by Tenant employing union
labor with the proper jurisdictional qualifications; provided, however, that, without limitation,
Landlord’s experience with such contractor or any criminal proceedings pending or previously filed
against such contractor may form a basis upon which Landlord may withhold or withdraw its consent.




ARTICLE 24




JURY WAIVER




          24.01 Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim
involving any matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises or involving the
right to any statutory relief or remedy. Tenant will not interpose any counterclaim of any nature
(other than a compulsory counterclaim) in any summary proceeding.




21









 








ARTICLE 25




NO WAIVER, ETC.




          25.01 No act or omission of Landlord or its agents shall constitute an actual or constructive
eviction, unless Landlord shall have first received written notice of Tenant’s claim and shall have
had a reasonable opportunity to meet such claim. In the event that any payment herein provided for
by Tenant to Landlord shall become overdue for a period in excess of ten (10) days, then at
Landlord’s option a “late charge” shall become due and payable to Landlord, as Additional Rent,
from the date it was due until payment is made, at the following rates: for individual and
partnership lessees, said late charge shall be computed at the maximum legal rate of interest; for
corporate or governmental entity lessees the late charge shall be computed at two percent per month
unless there is an applicable maximum legal rate of interest which then shall be used. No act or
omission of Landlord or its agents shall constitute an acceptance of a surrender of the Premises,
except a writing signed by Landlord. The delivery or acceptance of keys to Landlord or its agents
shall not constitute a termination of this Lease or a surrender of the Premises. Acceptance by
Landlord of less than the Rent herein provided shall at Landlord’s option be deemed on account of
earliest Rent remaining unpaid. No endorsement on any check, or letter accompanying Rent, shall be
deemed an accord and satisfaction, and such check may be cashed without prejudice to Landlord. No
waiver of any provision of this Lease shall be effective, unless such waiver be in writing signed
by the party to be charged. In no event shall Tenant be entitled to make, nor shall Tenant make any
claim, and Tenant hereby waives any claim for money damages (nor shall Tenant claim any money
damages by way of set-off, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord had unreasonably withheld, delayed or conditioned its consent or approval to any
request by Tenant made under a provision of this Lease. Tenant’s sole remedy shall be an action or proceeding to
enforce any such provision, or for specific performance or declaratory judgment. Tenant shall
comply with the rules and regulations contained in this Lease, and any reasonable modifications
thereof or additions thereto. Landlord shall not be liable to Tenant for the violation of such
rules and regulations by any other tenant. Failure of Landlord to enforce any provision of this
Lease, or any rule or regulation, shall not be construed as the waiver of any subsequent violation
of a provision of this Lease, or any rule or regulation. This Lease shall not be affected by nor
shall Landlord in any way be liable for the closing, darkening or bricking up of windows in the
Premises, for any reason, including as the result of construction on any property of which the
Premises are not a part or by Landlord’s own acts.




ARTICLE 26




OCCUPANCY AND USE BY TENANT




          26.01 If this Lease is terminated because of Tenant’s default hereunder, then, in addition to
Landlord’s rights of re-entry, restoration, preparation for and rerental, and anything elsewhere in
this Lease to the contrary notwithstanding, all Rent and Additional Rent reserved in this Lease
from the date of such breach to the expiration date of this Lease shall become immediately



22









 






due and
payable to Landlord and Landlord shall retain its right to judgment on and collection of Tenant’s
aforesaid obligation to make a single payment to Landlord of a sum equal to the total of all Rent
and Additional Rent reserved for the remainder of the original Term of this Lease, subject to
future credit or repayment to Tenant in the event of any rerenting of the Premises by Landlord,
after first deducting from rerental income all expenses incurred by Landlord in reducing to
judgment or otherwise collecting Tenant’s aforesaid obligation, and in obtaining possession of,
restoring, preparing for and re-letting the Premises. In no event shall Tenant be entitled to a
credit or repayment for rerental income which exceeds the sums payable by Tenant hereunder or which
covers a period after the original Term of this Lease.




ARTICLE 27




NOTICES




          27.01 Any bill, notice or demand from Landlord to Tenant, may be delivered personally at the
Premises or sent by registered or certified mail or by any nationally recognized overnight delivery
service and addressed to Tenant at the Premises or at the address first set forth herein. Such
bill, notice or demand shall be deemed to have been given at the time of delivery, mailing or
receipt by such delivery service. Any notice, request or demand from Tenant to Landlord must be
sent by registered or certified mail to the last address designated in writing by Landlord.




ARTICLE 28




WATER




          28.01 Tenant shall pay the amount of Landlord’s cost for all excessive water (“Excessive
Water”) used by Tenant for any purpose other than ordinary lavatory, drinking, pantry and
cleaning uses, and any sewer rent or tax based thereon. If Tenant shall consume excessive amounts
of water, Landlord may install a water meter to measure Tenant’s Excessive Water consumption and
Tenant agrees to pay for any such Excess Water consumption as shown on said meter at Landlord’s
cost therefor plus seven (7%) percent. If water is made available to Tenant in the Building or the
Premises through a meter which also supplies other Premises, or without a meter, then Tenant shall
pay to Landlord a reasonable charge per month for Excessive Water use. Landlord reserves the
right to discontinue water service to the Premises if either the quantity or character of such
service is changed or is no longer available or suitable for Tenant’s requirements without
releasing Tenant from any liability under this Lease and without Landlord or Landlord’s agent
incurring any liability for any damage or loss sustained by Tenant by such discontinuance of
service.




23









 








ARTICLE 29




SPRINKLER SYSTEM




          29.01 If there shall be a “sprinkler system” in the Premises for any period during this Lease,
Tenant shall pay a reasonable charge per month, for sprinkler supervisory service. If such
sprinkler system is damaged by any act or omission of Tenant or its agents, employees, licensees or
visitors, Tenant shall restore the system to good working condition at its own expense. If the New
York Board of Fire Underwriters, the New York Fire Insurance Exchange, the Insurance Services
Office, or any governmental authority requires the installation of, or any alteration to a
sprinkler system by reason of Tenant’s particular manner of occupancy or use of the Premises,
including any alteration necessary to obtain the full allowance for a sprinkler system in the fire
insurance rate of Landlord, or for any other reason, Tenant shall make such installation or
alteration promptly, and at its own expense.




ARTICLE 30




HEAT, ELEVATOR, ETC.




          30.01 Landlord shall provide elevator service during all usual business hours, except on
Sundays, State holidays, Federal holidays, or Building Service Employees Union Contract holidays.
Landlord shall furnish heat to the Premises during the same hours on the same days in the cold
season in each year. If the elevators in the Building are manually operated, Landlord may convert
to automatic elevators at any time, without in any way affecting Tenant’s obligations hereunder.




ARTICLE 31




SECURITY DEPOSIT




          31.01 As of the Commencement Date, Landlord shall not require Tenant to deposit with Landlord
any monies as and for security (the “Security”) for the performance by Tenant of the terms
of this Lease, provided that (i) Tenant shall maintain a A.M. Best Company credit rating (or credit
rating off any successor thereto) (“Best’s rating”) of A- or greater, and (ii) on or before
January 1st of each calendar year during the Term of the Lease, Tenant shall provide
Landlord with a certification of Tenant’s Best’s rating, certified by an officer of Tenant and
accompanied by reasonable, detailed documentary evidence which establishes the foregoing to the
reasonable satisfaction of Landlord. Notwithstanding the immediately preceding sentence, however,
in the event that at any time during the Term, Tenant’s credit rating falls below a Best’s rating
of A-, then within ten (10) days notice from Landlord, Tenant shall deposited with Landlord the sum
of $790,887.50 as the Security for the performance by Tenant of the terms of this Lease. Landlord
may use any part of the Security to satisfy any default of Tenant and any expenses arising from
such default, including but not limited to legal fees and any damages or rent deficiency before or
after re-entry by Landlord. Tenant shall, upon demand, deposit with Landlord the full amount so
used,



24









 






and/or any amount not so deposited by Tenant, in order that Landlord shall have the full
Security deposit on hand at all times during the term of this Lease. If Tenant shall comply fully
with the terms of this Lease, the Security shall be returned to Tenant after the date fixed as the
end of the Lease. In the event of a sale or lease of the Building containing the Premises, Landlord
may transfer the Security to the purchaser or tenant, and Landlord shall thereupon be released from
all liability for the return of the Security. This provision shall apply to every transfer or
assignment of the Security to a new Landlord. Tenant shall have no legal power to assign or
encumber the Security herein described.




          31.02 (a) In lieu of a cash deposit required hereunder, Tenant shall be permitted to deliver
to Landlord as and for security hereunder a clean, irrevocable and unconditional letter of credit
in an amount equal to the security required to be deposited by Tenant pursuant hereto which shall
comply conform in all material respects with the form annexed hereto and made apart hereof as
Exhibit C (hereinafter called the “Credit”), to be held, used and drawn upon solely
under the security provisions of this Lease, which Credit shall be issued by a bank which is a
member of the New York Clearing House Association, naming Landlord (or its successor as Landlord)
as beneficiary. The Credit shall be transferable. All transfer fees shall be payable by Tenant.




          (b) If during the term of this Lease, the Credit and/or the proceeds of all or part of said
Credit become less than the full amount of the security hereinabove required, then and in such
event Tenant shall, upon demand, deposit with Landlord the amount of any security /Credit
theretofore used or applied by Landlord pursuant to the terms hereof in order that Landlord shall
have the full security on hand at all times during the term of this Lease. If at the expiration of
the term of this Lease, Landlord holds all or part of said Credit, and Tenant is not in default
under any of the terms, covenants and conditions of this Lease, then Landlord will turn over said
Credit to Tenant or assign it to the designee of Tenant.




          (c) It shall be the obligation of Tenant during the term of this Lease to deliver to Landlord
at least forty-five (45) days prior to the expiration date of the then existing Credit, a renewal
or extension of said Credit or a substitute Credit (each fully complying with the foregoing). If
for any reason Landlord has not received such renewal or extension or substitute Credit within
forty-five (45) days prior to the expiration date of the then existing Credit, then and in such
event Landlord shall be free to draw on the Credit and hold and use and apply the proceeds thereof
in accordance with the security deposit provisions of this Lease. Tenant agrees to reimburse
Landlord for any reasonable attorneys’ fees incurred by Landlord, after the commencement of the
term of this Lease, in connection with reviewing the Credit and any renewals, extensions or
substitutions therefor, ensuring that the provisions of the Credit and any renewals, extensions or
substitutions therefor comply with the provisions of this Article, drawing down upon the proceeds
of Credit, or any renewals, extensions or substitution therefor, or ensuring that the
security/Credit is maintained as required under this Lease.




          31.03 Notwithstanding the foregoing, Tenant shall cause the Guarantor (as hereinafter defined)
to execute and deliver to Landlord, simultaneously with the execution and delivery of this Lease by
Tenant, the guaranty agreement (“Guaranty”) in the form attached hereto and made a part
hereof as Annex I. Tenant acknowledges and understands that such agreement by Tenant to
cause the guarantor to so execute and deliver the Guaranty constitutes a material



25









 






inducement to Landlord to enter into this Lease, and that Landlord would not have agreed to enter into this Lease
but for such agreement by Tenant to cause the Guarantor to so execute and deliver the Guaranty.
For purposes hereof, the Guarantor shall mean NYMAGIC, INC.




ARTICLE 32




TAX ESCALATION




          32.01 Tenant shall pay to Landlord, as Additional Rent, tax escalation in accordance with this
Article:




          (a) For purposes of this Lease, Landlord and Tenant acknowledge and agree that the rentable
square foot area of the Premises shall be deemed to be 30,615 square feet.




          (b) For the purpose of this Article, the following definitions shall apply:




          (i) The term “Tenant’s Share”, for purposes of computing tax escalation, shall mean
2.293 percent (2.293%) with respect to the Premises of which .995 percent (.995%) shall be
allocated to Space A and 1.298 percent (1.298%) shall be allocated to Space B. Tenant’s Share has
been computed on the basis of a fraction, the numerator of which is the rentable square foot area
of the Premises and the denominator of which is the total rentable square foot area of the office
and commercial space in the Building Project. The parties acknowledge and agree that the total
rentable square foot area of the office and commercial space in the Building Project shall be
deemed to be 1,335,345 sq. ft.




          (ii) The term the “Building Project” shall mean the aggregate combined parcel of land
on a portion of which are the improvements of which the Premises form a part, with all the
improvements thereon, said improvements being a part of the block and lot for tax purposes which
are applicable to the aforesaid land.




          (iii) The “Base Tax Year” shall mean the New York City fiscal tax year commencing on
July 1, 2007 through June 30, 2008.




          (iv) The term “Comparative Year” shall mean the twelve (12) month period following the
Base Tax Year, and each subsequent period of twelve (12) months thereafter.




          (v) The term “Real Estate Taxes” shall mean the total of all taxes and special or
other assessments levied, assessed or imposed at any time by any governmental authority upon or
against the Building Project including, without limitation, any tax or assessment levied, assessed
or imposed at any time by any governmental authority in connection with the receipt of income or
rents from said Building Project to the extent that same shall be in lieu of all or a portion of
any of the aforesaid taxes or assessments, or additions or increases thereof, upon or against said
Building Project. If, due to a future change in the method of taxation or in the taxing authority,
or for any other reason, a franchise, income, transit, profit or other tax or governmental
imposition, however designated, shall be levied against Landlord in substitution in whole or in
part for the Real Estate Taxes, or in lieu of




26









 







additions to or increases of said Real Estate Taxes,
then such franchise, income, transit, profit or other tax or governmental imposition shall be
deemed to be included within the definition of “Real Estate Taxes” for the purposes hereof.




          (vi) Where more than one assessment is imposed by the City of New York for any tax year,
whether denominated an “actual assessment” or a “transitional assessment” or otherwise, then the
phrases herein “assessed value” and “assessments” shall mean whichever of the actual, transitional
or other assessment is designated by the City of New York as the taxable assessment for that tax
year.




          32.02 In the event that the Real Estate Taxes payable for any Comparative Year shall exceed
the amount of the Real Estate Taxes payable during the Base Tax Year, Tenant shall pay to Landlord,
as Additional Rent for such Comparative Year, an amount equal to Tenant’s Share of the excess.
Before or after the start of each Comparative Year, Landlord shall furnish to Tenant a statement of
the Real Estate Taxes payable during the Comparative Year. If the Real Estate Taxes payable for
such Comparative Year exceed the Real Estate Taxes payable during the Base Tax Year, Additional
Rent for such Comparative Year, in an amount equal to Tenant’s Share of the excess, shall be due
from Tenant to Landlord, and such Additional Rent shall be payable by Tenant to Landlord within
thirty (30) days after receipt of the aforesaid statement. The benefit of any discount for any
early payment or prepayment of Real Estate Taxes shall accrue solely to the benefit of Landlord,
and such discount shall not be subtracted from the Real Estate Taxes payable for any Comparative
Year. In addition to the foregoing, Tenant shall pay to Landlord, on demand, as Additional Rent, a
sum equal to Tenant’s Share of any business improvement district assessment payable by the Building
Project.




          32.03 Should the Real Estate Taxes payable during the Base Tax Year be reduced by final
determination of legal proceedings, settlement or otherwise, then, the Real Estate Taxes payable
during the Base Tax Year shall be correspondingly revised, the Additional Rent theretofore paid or
payable hereunder for all Comparative Years shall be recomputed on the basis of such reduction, and
Tenant shall pay to Landlord as Additional Rent, within ten (10) days after being billed therefor,
any deficiency between the amount of such Additional Rent as theretofore computed and the amount
thereof due as the result of such recomputations.




          32.04 If, after Tenant shall have made a payment of Additional Rent under Section 32.02,
Landlord shall receive a refund of any portion of the Real Estate Taxes payable for any Comparative
Year after the Base Tax Year on which such payment of Additional Rent shall have been based, as a
result of a reduction of such Real Estate Taxes by final determination of legal proceedings,
settlement or otherwise, Landlord shall within ten (10) days after receiving the refund pay to
Tenant Tenant’s Share of the refund less Tenant’s Share of expenses (including attorneys’ and
appraisers’ fees) incurred by Landlord and not previously paid by Tenant, in connection with any
such application or proceeding. In addition to the foregoing, Tenant shall pay to Landlord, as
Additional Rent, within ten (10) days after Landlord shall have delivered to Tenant a statement
therefor, Tenant’s Share of all expenses incurred by Landlord in reviewing or contesting the
validity or amount of any Real Estate Taxes or for the purpose of obtaining reductions in the
assessed valuation of the Building Project prior to the billing of Real Estate Taxes, including
without limitation, the fees and disbursements of attorneys, third party consultants, experts and
others.




27









 








          32.05 The statements of the Real Estate Taxes to be furnished by Landlord as provided above
shall be certified by Landlord and shall constitute a final determination as between Landlord and
Tenant of the Real Estate Taxes for the periods represented thereby, unless Tenant within thirty
(30) days after they are furnished shall give a written notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular respects in which the
statement is inaccurate or inappropriate. If Tenant shall so dispute said statement then, pending
the resolution of such dispute, Tenant shall pay the Additional Rent to Landlord in accordance with
the statement furnished by Landlord. If Landlord and Tenant are unable to resolve any such dispute
within thirty (30) days after Tenant’s notice of objection, then either party may within ten (10)
days thereafter refer the dispute to an independent, third party certified public accounting firm
selected by Landlord and reasonably acceptable to Tenant. In connection therewith, Landlord,
Tenant and such firm shall enter into a confidentiality agreement, in form and substance reasonably
satisfactory to the parties, whereby such parties shall agree not to disclose to any third party
any of the information in connection with the prosecution, review and determination of such dispute
or of any resulting reconciliation, compromise or resolution. Such firm may request such
supporting documentation as it reasonably deems appropriate in order to promptly determine the
dispute. The determination of such firm shall be rendered within thirty (30) days after the
referral of the dispute, and shall be conclusive and binding upon Landlord and Tenant and shall be
set forth in a written determination along with the rationale for the determination; however such
firm shall not have the power to add to, modify or delete any of the provisions of this Lease or to
award any relief whatsoever to either party, the sole function of said firm being to determine the
accuracy of any and all statements disputed by Tenant hereunder. Landlord and Tenant shall each be
responsible for any respective fees and expenses (including, without limitation, attorneys’ fees)
incurred in connection with said dispute, unless the such firm
determines that a disputed statement overstated the Additional Rent due from Tenant hereunder
by more than five (5%) percent for the applicable Comparison Year, as finally determined, in which
event, Landlord shall reimburse Tenant for any such fees and expenses in connection with the
dispute of said statement, by way of credit against the monthly installments of Fixed Annual Rent
next accruing under this Lease until such credit is exhausted.




          32.06 In no event shall the Fixed Annual Rent under this Lease be reduced by virtue of this
Article.




          32.07 If the Space A Commencement Date or Space B Commencement Date of the Term of this Lease
is not the first day of the first Comparative Year, then the Additional Rent due hereunder for such
first Comparative Year shall be a proportionate share of said Additional Rent for the entire
Comparative Year, said proportionate share to be based upon the length of time that the lease Term
will be in existence during such first Comparative Year. Upon the date of any expiration or
termination of this Lease (except termination because of Tenant’s default) whether the same be the
date hereinabove set forth for the expiration of the Term or any prior or subsequent date, a
proportionate share of said Additional Rent for the Comparative Year during which such expiration
or termination occurs shall immediately become due and payable by Tenant to Landlord, if it was not
theretofore already billed and paid. The said proportionate share shall be based upon the length of
time that this Lease shall have been in existence during such Comparative Year. Landlord shall
promptly cause statements of said Additional Rent for that Comparative Year to be prepared and
furnished to Tenant. Landlord and Tenant shall thereupon make appropriate adjustments of amounts




28









 







then owing.




          32.08 Landlord’s and Tenant’s obligations to make the adjustments referred to in Section 32.07
above shall survive any expiration or termination of this Lease. Any delay or failure of Landlord
in billing any tax escalation hereinabove provided shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay such tax escalation hereunder.




ARTICLE 33




RENT CONTROL




          33.01 In the event the Fixed Annual Rent or Additional Rent or any part thereof provided to be
paid by Tenant under the provisions of this Lease during the Term shall become uncollectible or
shall be reduced or required to be reduced or refunded by virtue of any Federal, State, County or
City law, order or regulation, or by any direction of a public officer or body pursuant to law, or
the orders, rules, code or regulations of any organization or entity formed pursuant to law,
whether such organization or entity be public or private, then Landlord, at its option, may at any
time thereafter terminate this Lease, by not less than thirty (30) days’ written notice to Tenant,
on a date set forth in said notice, in which event this Lease and the term hereof shall terminate
and come to an end on the date fixed in said notice as if the said date were the date originally
fixed herein for the termination of the demised term. Landlord shall not have the right to so
terminate this Lease if Tenant within such period of thirty (30) days shall in writing lawfully
agree that the rentals herein reserved
are a reasonable rental and agree to continue to pay said rentals, and if such agreement by
Tenant shall then be legally enforceable by Landlord.




ARTICLE 34




SUPPLIES




          34.01 Only Landlord or any one or more persons, firms, or corporations authorized in writing
by Landlord shall be permitted to furnish laundry, linens, towels, drinking water, water coolers,
ice and other similar supplies and services to tenants and licensees in the Building such
authorization not to be unreasonably withheld. Landlord may fix, in its own reasonable discretion,
from time to time, the hours during which and the regulations under which such supplies and
services are to be furnished.




          34.02 Tenant and its employees, guests and invitees may personally bring food or beverages
into the Building for consumption within the Premises by the said employees, but not for resale or
for consumption by any other tenant. Landlord may fix in its reasonable discretion from time to
time the hours during which, and the regulations under which, food and beverages may be brought
into the Building by Tenant or its employees, guests or invitees.




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ARTICLE 35




AIR CONDITIONING




          35.01 Subject to the provisions of this Article and all other applicable provisions of this
Lease, Landlord shall supply air-conditioning service to the Premises through the Building’s
central air-conditioning facilities (the “Building HVAC System”) Monday to Friday from 8:00
a.m. to 6:00 p.m. during the Building’s “Cooling Season” (which is currently May 15 through
October 15), subject to and in accordance with the provisions of this Lease. Tenant shall pay
Tenant’s proportionate share of all electricity (and also water, gas and/or steam, if applicable)
consumed in the operation of the Building HVAC System and for the production of chilled and/or
condenser water and its supply to the Premises. Subject to the review and approval by Landlord of
Tenant’s Plans (as herein defined in Article 49), if supplementary air-conditioning equipment is
required to accommodate Tenant’s special usage areas (i.e. computer rooms, conference rooms,
cafeteria/lunchroom or any special usage which subjects a portion or the entire premises to a high
density of office personnel and/or heat generating machines or appliances), Tenant shall be
permitted to install air cooled supplemental air-conditioning equipment to service to the Premises
(the “Supplemental A/C System”) including, without limitation, the ducts, dampers,
registers, grilles and appurtenances utilized in connection therewith, provided that Tenant hereby
acknowledges and agrees that at all times the Supplemental A/C System once installed by Tenant
shall be and remain the property of Landlord and, further, that Tenant shall at all times, at its
sole cost and expense, be responsible to operate, maintain, repair in good working order and in
compliance with all present and future laws and regulations relating thereto at Tenant’s sole cost
and expense. Tenant shall pay to Landlord, within twenty (20) days after demand as Additional
Rent hereunder, charges for all electricity consumption in connection with the Supplemental A/C
System, in accordance with the provisions of Article 41 of this Lease. Tenant shall pay for all
parts and supplies necessary for the proper operation of the Supplemental A/C System (and any
restoration or replacement by Tenant of all or any part thereof shall be in quality and class at
least equal to the original work or installations. Without limiting the generality of the
foregoing, Tenant shall at all times during the term hereof contract for and maintain regular
service of said the Supplemental A/C System through an independent, licensed, professional third
party maintenance company approved by Landlord and shall, within thirty (30) days of installation
of the Supplemental A/C System, forward to Landlord a fully executed original copy of such
contract. Such contract shall provide for the thorough overhauling of the Supplemental A/C System
at least once each year during the Term of this Lease and shall expressly state that (i) it shall
be an automatically renewing contract terminable upon not less than thirty (30) days prior written
notice to the Landlord (sent by certified mail, return receipt requested) and (ii) the contractor
providing such service shall maintain a log at the Premises detailing the service provided during
each visit pursuant to such contract. Tenant shall keep such log at the Premises and permit
Landlord to review same promptly after Landlord’s request. Landlord reserves the right to suspend
operation of the Building HVAC System and/or Supplemental A/C System, if any, at any time that
Landlord, in its reasonable judgment, deems it necessary to do so for reasons such as accidents,
emergencies or any situation arising in the Premises or within the Building which has an adverse
affect, either directly or indirectly, on the operation of Building HVAC System and
/or Supplemental
A/C System, if any, including without limitation, reasons relating to the making of repairs,
alterations or improvements in the Premises or the Building, and Tenant agrees that any such
suspension in the operation of the Building HVAC System may



30









 






continue until such time as the reason causing such suspension has been remedied and that Landlord shall
not be held responsible or be
subject to any claim by Tenant due to such suspension. Tenant further agrees that Landlord shall
have no responsibility or liability to Tenant if operation of the Building HVAC System and/or
Supplemental A/C System, if any, is prevented by strikes or accidents or any cause beyond
Landlord’s reasonable control, or by the orders or regulations of any federal, state, county or
municipal authority or by failure of the equipment or electric current, steam and/or water or other
required power source.




ARTICLE 36




SHORING




          36.01 Tenant shall permit any person authorized to make an excavation on land adjacent to the
Building containing the Premises to do any work within the Premises necessary to preserve the wall
of the Building from injury or damage, and Tenant shall have no claim against Landlord for damages
or abatement of rent by reason thereof.




ARTICLE 37




EFFECT OF CONVEYANCE, ETC.




          37.01 If the Building containing the Premises shall be sold, transferred or leased, or the
lease thereof transferred or sold, Landlord shall be relieved of all future obligations and
liabilities hereunder and the purchaser, transferee or tenant of the Building shall be deemed to
have assumed and agreed to perform all such obligations and liabilities of Landlord hereunder. In
the event of such sale, transfer or lease, Landlord shall also be relieved of all existing
obligations and liabilities hereunder, provided that the purchaser, transferee or tenant of the
Building assumes in writing such obligations and liabilities.




ARTICLE 38




RIGHTS OF SUCCESSORS AND ASSIGNS




          38.01 This Lease shall bind and inure to the benefit of the heirs, executors, administrators,
successors, and, except as otherwise provided herein, the assigns of the parties hereto. If any
provision of any Article of this Lease or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of that Article, or the
application of such provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each provision of said Article and of
this Lease shall be valid and be enforced to the fullest extent permitted by law.




31









 








ARTICLE 39




CAPTIONS




          39.01 The captions herein are inserted only for convenience, and are in no way to be construed
as a part of this Lease or as a limitation of the scope of any provision of this Lease.




ARTICLE 40




BROKERS




          40.01 Tenant covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent in connection with the consummation of this Lease other than
SL Green Leasing LLC and Studley, Inc. (collectively, the “Brokers”) and Tenant covenants
and agrees to defend, hold harmless and indemnify Landlord from and against any and all cost,
expense (including reasonable attorneys’ fees) or liability for any compensation, commissions or
charges claimed by any broker or agent with respect to this Lease or the negotiation thereof.




          40.02 Landlord represents and warrants to Tenant that it did not consult or negotiate with any
broker, finder, or consultant with regard to the Premises other than the Brokers, and that no other
broker, finder or consultant participated with Landlord in procuring this Lease. Landlord hereby
indemnifies and agrees to defend and hold Tenant, its agents, servants and employees harmless from
any suit, action, proceeding, controversy, claim or demand whatsoever at law or in equity that may
be instituted against Tenant by anyone with whom Landlord has dealt for recovery of compensation or
damages for procuring this Lease.




ARTICLE 41




ELECTRICITY




          41.01 Landlord and Tenant agree that Landlord shall furnish electricity to Tenant on a
“submetered basis”. Landlord shall make available during the Term of this Lease at the combined
electrical closets servicing the Premises electricity for all purposes with an average capacity of
not less than six (6) watts connected load per usable square foot of the Premises, which shall be
distributed by Tenant at its sole cost and expense, subject to all other applicable provisions of
this Lease.




          41.02 Tenant agrees that the charges for redistributed electricity shall be computed in the
manner hereinafter described, to wit, a sum equal to Landlord’s cost for such electricity
(“Landlord’s Cost”) plus five (5%) percent thereof. Landlord’s Cost for such redistributed
electricity shall be equal to (i) the consumption of KW demand and KW hours recorded on Tenant’s
submeter(s), billed at the service classification under which Landlord purchases electric current
and the rate that is appropriate for Tenant’s level of consumption, (ii) Landlord’s costs for
measuring, calculating and reporting Tenant’s electricity charges, including the fees of an
electrical consultant




32









 







(“Consultant Costs”) and (iii) and all surcharges, energy charges,
fuel adjustment charges, rate adjustments and taxes paid by Landlord.




          41.03 Landlord shall install submeters at Tenant’s sole cost and expense to measure Tenant’s
electricity consumption, KWH and KW. Bills therefor shall be rendered at such times as Landlord
may elect, and the amount, as computed from said meters, shall be deemed to be, and shall be paid
as Additional Rent. If any tax is imposed upon Landlord’s receipt from the resale of electrical
energy to Tenant by any Federal, State or Municipal authority, Tenant covenants and agrees that,
where permitted by law, Tenant’s share of such taxes based upon its usage and demand shall be
passed on to, and shall be included in the bill of, and shall be paid by Tenant to Landlord. Where
more than one meter measures the service of Tenant in the Building, the KWH and KW recorded by each
meter shall be computed and billed separately in accordance with rates set forth herein.




          41.04 Landlord shall not be liable to Tenant for any loss or damage or expense which Tenant
may sustain or incur if either the quantity or character of electric service is changed or is no
longer available or suitable for Tenant’s requirements. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of existing feeders to the
building or the risers or wiring installation. If Tenant shall require any additional riser or
risers, feeders or other equipment
or service proper or necessary to supply Tenant’s electrical requirements, upon written
request of Tenant, the same will be installed by Landlord, at the sole cost and expense of Tenant
if, in Landlord’s reasonable judgment, the same are necessary, will not result in a diminution in
the amount of electrical power available to other tenants or occupants in the building and provided
that same is then available and will not cause damage or injury to the building or Premises or
cause or create a dangerous or hazardous condition or entail excessive or unreasonable alterations,
repairs or expense or interfere with or unreasonably disturb other tenants or occupants in the
building. In addition to any such installation, Landlord will also at the sole cost and expense of
Tenant, install all other equipment proper and necessary in connection therewith, subject to the
aforesaid terms and conditions.




          41.05 In the event that all or part of the meters, or system by which Landlord measures
Tenant’s consumption of electricity (the “Submetering System”), shall malfunction, (a)
Landlord, through an independent, electrical consultant selected by Landlord, shall reasonably
estimate the readings that would have been yielded by said Submetering System as if the malfunction
had not occurred, on the basis of Tenant’s prior usage and demand and the lightning and equipment
installed within the Premises and (b) Tenant shall utilize such estimated readings and the bill
rendered based thereon shall be binding and conclusive on Tenant unless, within thirty (30) days
after receipt of such a bill, Tenant challenges, in writing to Landlord, the accuracy or method of
computation thereof. If, within thirty (30) days of Landlord’s receipt of such a challenge, the
parties are unable to agree on the amount of the contested bill, the controlling determination of
same shall be made by an independent electrical consultant agreed upon by the parties or, upon
their inability to agree, as selected by the American Arbitration Association. The determination
of such electrical consultant shall be final and binding on both Landlord and Tenant and the
expenses of such consultant shall be divided equally between the parties. Pending such controlling
determination, Tenant shall timely pay additional rent to Landlord in accordance with the contested
bill. Tenant shall be entitled to a prompt refund from Landlord, or shall make prompt additional
payment to



33









 






Landlord, in the event that the electrical consultant determines that the amount of a
contested bill should have been other than as reflected thereon.




          41.06 If all or part of the Additional Rent payable in accordance with this Article becomes
uncollectible or reduced or refunded by virtue of any law, order or regulation, the parties agree
that, at Landlord’s option, in lieu thereof, and in consideration of Tenant’s use of the building’s
electrical distribution system and receipt of redistributed electricity and payment by Landlord of
consultants’ fees and other redistribution costs, the fixed annual rental rate(s) to be paid under
this Lease shall be increased by an “alternative charge” which shall be a sum equal to Landlord’s
Cost, plus ten (10%) percent thereof (or the maximum such percentage then permitted by law but not
more than ten (10%) percent.




          41.07 Landlord reserves the right to terminate the furnishing of redistributed electricity on
a submetered or any other basis at any time, upon thirty (30) days’ written notice to Tenant, in
which event Tenant shall make application directly to the public utility for Tenant’s entire
separate supply of electric current and Landlord shall permit its risers, feeders, meters, wires
and conduits, to the extent available and safely capable, to be used for such purpose. Any meters,
risers or other equipment or connections necessary to enable Tenant to obtain electric current
directly from such utility shall be installed at Tenant’s sole cost and expense. Landlord, upon
the expiration of the aforesaid thirty (30) days’ written notice to Tenant, may discontinue furnishing the
redistributed electric current, but this Lease shall otherwise remain in full force and effect.




          41.08 Where more than one meter measures the service of Tenant in the Building, the service
rendered through each meter may be computed and billed separately in accordance with the rates
herein specified. Bills for monies payable under this Article shall be rendered at such times as
Landlord may elect and the amount, as computed from a meter, shall be deemed to be, and be paid as,
Additional Rent. In the event that such bills are not paid within five (5) days after the same are
rendered, Landlord may, without further notice, discontinue the service of electric current to the
Premises without releasing Tenant from any liability under this Lease and without Landlord or
Landlord’s agent incurring any liability for any damage or loss sustained by Tenant by such
discontinuance of service. If any tax is imposed upon Landlord’s receipt from the sale, resale or
redistribution of electricity or gas or telephone service to Tenant by any Federal, State, or
Municipal authority, Tenant covenants and agrees that where permitted by law, Tenant’s pro-rata
share of such taxes shall be passed on to and included in the bill of, and paid by, Tenant to
Landlord.




          41.09 At the option of Landlord, Tenant agrees to purchase from Landlord or its agents all
lamps and bulbs used in the Premises and to pay for the cost of installation thereof. If all or
part of the submetering Additional Rent payable in accordance with this Article becomes
uncollectible or reduced or refunded by virtue of any law, order or regulations, the parties agree
that, at Landlord’s option, in lieu of submetering Additional Rent and in consideration of Tenant’s
use of the Building’s electrical distribution system and receipt of redistributed electricity and
payment by Landlord of consultant’s fees and other redistribution costs, the Fixed Annual Rental
rate(s) to be paid under this Lease shall be increased by an “alternative charge” which shall be a
sum equal to $3.25 per year per rentable square foot of the Premises, changed in the same
percentage as any increase in the cost to Landlord for electricity for the entire Building
subsequent to May 1, 1996, because of electric rate, service classification or market price
changes, such percentage change to be computed as in Section 41.04 provided.




34









 








          41.10 Landlord shall not be liable to Tenant for any loss or damage or expense which Tenant
may sustain or incur if either the quantity or character of electric service is changed or is no
longer available or suitable for Tenant’s requirements. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of existing feeders to the
Building or wiring installation. Any riser or risers to supply Tenant’s electrical requirements,
upon written request of Tenant, will be installed by Landlord, at the sole cost and expense of
Tenant, if, in Landlord’s sole judgment, the same are necessary and will not cause permanent damage
or injury to the Building or the Premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants. In addition to the installation of such riser or risers, Landlord will also
at the sole cost and expense of Tenant, install all other equipment proper and necessary in
connection therewith subject to the aforesaid terms and conditions. The parties acknowledge that
they understand that it is anticipated that electric rates, charges, etc., may be changed by virtue
of time-of-day rates or changes in other methods of billing, and/or electricity purchases and the
redistribution thereof, and fluctuation in the market price of electricity, and that the references
in the foregoing paragraphs to changes in methods of or rules on billing are intended to include
any such changes. Anything hereinabove to the contrary notwithstanding, in no event is the
submetering Additional Rent or any “alternative charge” to be less
than an amount equal to the total of Landlord’s payments to public utilities and/or other
providers for the electricity consumed by Tenant (and any taxes thereon or on redistribution of
same) plus five (5%) percent thereof for transmission line loss, plus fifteen (15%) thereof for
other redistribution costs. The Landlord reserves the right, at any time upon thirty (30) days’
written notice, to change its furnishing of electricity to Tenant from a rent inclusion basis to a
submetering basis, or vice versa, or to change to the distribution of less than all the components
of the existing service to Tenant. The Landlord reserves the right to terminate the furnishing of
electricity on a rent inclusion, submetering, or any other basis at any time, upon thirty (30)
days’ written notice to the Tenant, if required by any applicable law, code, rule or regulation of
any governmental or quasi-governmental authority or agency having jurisdiction or if Landlord also
terminates the furnishing of redistributed electricity to the majority (i.e., over fifty (50%)
percent) of the office tenants in the Building, in which event the Tenant may make application
directly to the public utility and/or other providers for the Tenant’s entire separate supply of
electric current and Landlord shall permit its wires and conduits, to the extent available and
safely capable, to be used for such purpose, but only to the extent of Tenant’s then authorized
load. Any meters, risers, or other equipment or connections necessary to furnish electricity on a
submetering basis or to enable Tenant to obtain electric current directly from such utility and/or
other providers shall be installed at Tenant’s sole cost and expense. Only rigid conduit or
electricity metal tubing (EMT) will be allowed. Landlord, upon the expiration of the aforesaid
thirty (30) days’ written notice to the Tenant may discontinue furnishing the electric current but
this Lease shall otherwise remain in full force and effect. Notwithstanding the foregoing,
provided that Tenant promptly applies for such direct service and diligently pursues such
application to completion, Landlord shall
 not so discontinue such redistributed service until
Tenant obtains electric service directly from the public utility, unless required by law. If Tenant
was provided electricity on a rent inclusion basis when it was so discontinued, then commencing
when Tenant receives such direct service and as long as Tenant shall continue to receive such
service, the Fixed Annual Rent payable under this Lease shall be reduced by the amount of the ERIF
which was payable immediately prior to such discontinuance of electricity on a rent inclusion
basis.




35









 








ARTICLE 42




LEASE SUBMISSION




          42.01 Landlord and Tenant agree that this Lease is submitted to Tenant on the understanding
that it shall not be considered an offer and shall not bind Landlord in any way unless and until
(i) Tenant has duly executed and delivered duplicate originals thereof to Landlord and (ii)
Landlord has executed and delivered one of said originals to Tenant.




ARTICLE 43




INSURANCE




          43.01 Tenant shall not violate, or permit the violation of, any condition imposed by the
standard fire insurance policy then issued for office buildings in the Borough of Manhattan, City
of New York, and shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Premises which would subject Landlord to any liability or responsibility for personal
injury or death or property damage, or which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would otherwise then be in effect
(unless Tenant pays the resulting premium as hereinafter provided for) or which would result in
insurance companies of good standing refusing to insure the building or any of such property in
amounts reasonably satisfactory to Landlord.




          43.02 Tenant covenants to provide on or before the earlier to occur of (i) the first Space A
Commencement Date and Space B Commencement Date, and (ii) ten (10) days from the date of this
Lease, and to keep in force, at Tenant’s own cost, during the term hereof the following insurance
coverage which coverage shall be effective from and after such first Space A Commencement Date and
Space B Commencement Date, respectively:




               (a) A Commercial General Liability insurance policy naming Landlord and its designees as
additional insureds protecting Landlord, its designees against any alleged liability, occasioned by
any incident involving injury or death to any person or damage to property of any person or entity,
on or about the Building, the Premises, common areas or areas around the Building or premises. Such
insurance policy shall include Products and Completed Operations Liability and Contractual
Liability covering the liability of the Tenant to the Landlord by virtue of the indemnification
agreement in this Lease, covering bodily injury liability, property damage liability, personal
injury & advertising liability and fire legal liability, all in connection with the use and
occupancy of or the condition of the Premises, the Building or the related common areas, in amounts
not less than:




$5,000,000, general aggregate per location

$5,000,000, per occurrence for bodily injury & property damage

$5,000,000, personal & advertising injury




36









 







$1,000,000, fire legal liability


Such insurance may be carried under a blanket policy covering the Premises and other locations of
Tenant, if any, provided such a policy contains an endorsement (i) naming Landlord and its
designees as additional insureds, (ii) specifically referencing the Premises; and (iii)
guaranteeing a minimum limit available for the Premises equal to the limits of liability required
under this Lease;




               (b) “All-risk” insurance, including flood, earthquake and terrorism coverage in an amount
adequate to cover the cost of replacement of all personal property, fixtures, furnishings,
equipment, improvements, betterments and installations located in the Premises, whether or not
installed or paid for by the Landlord.



          43.03 All such policies shall be issued by companies of recognized responsibility permitted to
do business within New York State and approved by the Landlord and rated by Best’s Insurance
Reports or any successor publication of comparable standing and carrying a rating of A- VIII or
better or the then equivalent of such rating, and all such policies shall contain a provision
whereby the same cannot be canceled or modified unless Landlord and any additional insured are
given at least thirty (30) days prior written notice of such cancellation or modification.




          43.04 Prior to the time such insurance is first required to be carried by Tenant and
thereafter, at least fifteen (15) days prior to the expiration of any such policies, Tenant shall
deliver to Landlord either duplicate originals of the aforesaid policies or a 2003 Accord 28
certificates evidencing such insurance (the 2006 Accord 28 being unacceptable to Landlord),
together with evidence of payment for the policy. If Tenant delivers certificates as aforesaid
Tenant, upon reasonable prior notice from Landlord, shall make available to Landlord, at the
Premises, duplicate originals of such policies from which Landlord may make copies thereof, at
Landlord’s cost. Tenant’s failure to provide and keep in force the aforementioned insurance shall
be regarded as a material default hereunder, entitling Landlord to exercise any or all of the
remedies as provided in this Lease in the event of Tenant’s default. In addition, in the event
Tenant fails to provide and keep in force the insurance required by this Lease, at the times and
for the durations specified in this Lease, Landlord shall have the right, but not the obligation,
at any time and from time to time, and without notice, to procure such insurance and/or pay the
premiums for such insurance in which event Tenant shall repay Landlord within five (5) days after
demand by Landlord, as Additional Rent, all sums so paid by Landlord and any costs or expenses
incurred by Landlord in connection therewith without prejudice to any other rights and remedies of
Landlord under this Lease.




          43.05 Landlord and Tenant shall each endeavor to secure an appropriate clause in, or an
endorsement upon, each “all-risk” insurance policy obtained by it and covering property as stated
in 43.02 (b), pursuant to which the respective insurance companies waive subrogation against each
other and any other parties, if agreed to in writing prior to any damage or destruction. The waiver
of subrogation or permission for waiver of any claim hereinbefore referred to shall extend to the
agents of each party and its employees and, in the case of Tenant, shall also extend to all other
persons and entities occupying or using the Premises in accordance with the terms of this Lease.
If and to the extent that such waiver or permission can be obtained only upon payment of an
additional charge then, except as provided in the following two paragraphs, the party benefiting
from the waiver or permission shall pay such charge upon demand, or shall be deemed to have agreed
that the party




37









 







required to obtain such insurance coverage shall be relieved of any obligation
hereunder to secure such waiver or permission.




          43.06 Subject to the foregoing provisions of this Article, and insofar as may be permitted by
the terms of the insurance policies carried by it, each party hereby releases the other with
respect to any claim (including a claim for negligence) which it might otherwise have against the
other party for loss, damages or destruction with respect to its property by fire or other casualty
(including rental value or business interruption, as the case may be) occurring during the Term of
this Lease.




          43.07 If, by reason of a failure of Tenant to comply with the provisions of this Lease, the
rate of fire insurance with extended coverage on the building or equipment or other property of
Landlord shall be higher than it otherwise would be, Tenant shall reimburse Landlord, on demand,
for that part of the premiums for fire insurance and extended coverage paid by Landlord because of
such failure on the part of Tenant.




          43.08. Landlord may, from time to time, require that the amount of the insurance to be
provided and maintained by Tenant hereunder be increased so that the amount thereof adequately
protects Landlord’s interest, but in no event in excess of the amount that would be required of
other tenants in other similar office buildings in the Borough of Manhattan.




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




          43.10 Each policy evidencing the insurance to be carried by Tenant under this Lease shall
contain a clause that such policy and the coverage evidenced thereby shall be primary with respect
to any policies carried by Landlord, and that any coverage carried by Landlord shall be excess
insurance.




ARTICLE 44




SIGNAGE




          44.01 Tenant shall be permitted to affix either a sign or plaque on or adjacent to the
entrance door to the Premises, subject to the prior written approval of Landlord which shall not be
unreasonably withheld subject to the other provisions of this Article, with respect to location,
design, size, materials, quality, coloring, lettering and shape thereof, and subject, also, to
compliance by Tenant, at its expense, with all applicable legal requirements or regulations. All
such signage shall be consistent and compatible with the design, aesthetics, signage and graphics
program for the Building as established by Landlord. Landlord may remove any sign installed in
violation of this provision, and Tenant shall pay the cost of such removal and any restoration
costs.




38









 








ARTICLE 45




RIGHT TO RELOCATE




          45.01 Notwithstanding anything contained in this Lease to the contrary, Landlord shall have
the right to substitute in lieu of the Premises alternative space in the Building designated by
Landlord (the “Relocation Space”) effective as of the date (the “Relocation Effective
Date”) set forth in a notice given to Tenant (the “Relocation Notice”); provided
however, that such Relocation Space shall be located on a floor contiguous with at least one other
premises leased by Tenant in the Building. The Relocation Space shall be reasonably comparable to
the Premises with respect to internal configuration, quality of finish and rentable square foot
area (i.e., plus or minus ten (10%) percent). The Relocation Effective Date shall not be less than
thirty (30) days following the date upon which the Relocation Notice is given to Tenant. In the
event that Landlord exercises its rights hereunder, (i) Tenant shall deliver to Landlord possession
of the Premises on or before the Relocation Effective Date vacant and broom clean, free of all
occupancies and encumbrances and otherwise in accordance with the terms, covenants and conditions
of the Lease as if the Relocation Effective Date were the expiration date of the Term of this
Lease, (ii) effective as of the Relocation Effective Date, the term and estate hereby granted with
respect to the Premises originally demised
hereunder shall terminate, the Relocation Space shall be deemed to be the Premises and the
Fixed Annual Rent and Additional Rent payable under this Lease shall be adjusted, if necessary, so
as to reflect any difference between the deemed rentable square foot area of the original Premises
and said Relocation Space.




          45.02 Provided that Tenant is not in default under this Lease, Landlord shall (i) at
Landlord’s cost and expense, remove and reinstall Tenants’ personal property, trade fixtures and
equipment in the Relocation Space (“Landlord’s Relocation Work”) and (ii) compensate Tenant
for Tenant’s actual, reasonable, out-of-pocket moving and related expenses upon Tenant’s submission
of paid invoices therefor. Landlord shall complete Landlord’s Relocation Work on or before the
Relocation Effective Date provided that Tenant cooperates with Landlord and gives Landlord full
access to the Premises to facilitate the performance thereof.




          45.03 Following any relocation undertaken pursuant to this Article, Tenant shall promptly
execute and deliver an agreement confirming such relocation and fixing any corresponding
adjustments in Fixed Annual Rent and Additional Rent payable under this Lease, but any failure to
execute such an agreement by Tenant shall not affect such relocation and adjustments as determined
by Landlord.




ARTICLE 46




FUTURE CONDOMINIUM CONVERSION




          46.01 Tenant acknowledges that the Building and the land of which the Premises form a part may
be subjected to the condominium form of ownership prior to the end of the Term of this Lease.
Tenant agrees that if, at any time during the Term, the Building and the land shall be subjected to
the condominium form of ownership, then, this Lease and all rights of Tenant hereunder



39









 






are and
shall be subject and subordinate in all respects to any condominium declaration and any other
documents (collectively, the “Declaration”) which shall be recorded in order to convert the
Building and the land of which the Premises form a part to a condominium form of ownership in
accordance with the provisions of Article 9-B of the Real Property Law of the State of New York or
any successor thereto. If any such Declaration is to be recorded, Tenant, upon request of Landlord,
shall enter into an amendment of this Lease in such respects as shall be necessary to conform to
such condominiumization, including, without limitation, appropriate adjustments to Real Estate
Taxes payable during the Base Tax Year and Tenant’s Share, as such terms are defined in Article 32
hereof.




ARTICLE 47




MISCELLANEOUS




          47.01 This Lease represents the entire understanding between the parties with regard
to the matters addressed herein and may only be modified by written agreement executed by all
parties hereto. All prior understandings or representations between the parties hereto, oral or
written, with regard to the matters addressed herein are hereby merged herein. Tenant acknowledges
that neither Landlord nor any representative or agent of Landlord has made any representation or
warranty, express or implied, as to the physical condition, state of repair, layout, footage or use
of the Premises or any matter or thing affecting or relating to Premises except as specifically set
forth in this Lease. Tenant has not been induced by and has not relied upon any statement,
representation or agreement, whether express or implied, not specifically set forth in this Lease.
Landlord shall not be liable or bound in any manner by any oral or written statement, broker’s
“set-up”, representation, agreement or information pertaining to the Premises, the Building or this
Agreement furnished by any real estate broker, agent, servant, employee or other person, unless
specifically set forth herein, and no rights are or shall be acquired by Tenant by implication or
otherwise unless expressly set forth herein. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this agreement to be
drafted.




ARTICLE 48




COMPLIANCE WITH LAW




          48.01 If, at any time during the Term hereof, Landlord expends any sums for alterations or
improvements to the Building which are required to be made pursuant to any law, ordinance or
governmental regulation, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share of such
cost within ten (10) days after demand therefor; provided, however, that if the cost of such
alteration or improvement is one which is required to be amortized over a period of time pursuant
to applicable governmental regulations, Tenant shall pay to Landlord, as Additional Rent, during
each year in which occurs any part of the Term, Tenant’s Share of the cost thereof amortized on a
straight line basis over an appropriate period, but not more than eight (8) years. Notwithstanding
anything to the contrary contained herein, in the event that the requirement for the performance of
any such alteration or improvement is attributable to the actions, installations, use or manner of
use of the Premises by Tenant, then in such event Tenant shall be responsible to pay the





40











 




entire cost imposed by Landlord with respect to such alteration or improvement.




ARTICLE 49




LANDLORD’S CONTRIBUTION




          49.01 Tenant shall have prepared by a registered architect and/or a licensed professional
engineer, at its sole cost and expense, and submit to Landlord for its approval in accordance with
the applicable provisions of the Lease, final and complete dimensioned architectural, mechanical,
electrical and structural drawings and specifications (“Tenant’s Plans”) in a form ready
for use as construction drawings for the installation of alterations, installations, decorations
and improvements in the Premises to prepare the same for Tenant’s initial occupancy thereof
(“Tenant’s Initial Alteration Work”). All such construction plans and specifications and
all such work shall be effected in accordance with all applicable provisions of the Lease at
Tenant’s sole cost and expense. If and so long as Tenant is not in default under the Lease,
subject to and in accordance with the provisions of this Article, Landlord shall contribute up to
the sum of (i) $332,200.00 to be applied to the cost of labor and materials for the portion of
Tenant’s Initial Alteration Work which constitutes Qualified Renovations made in and to the portion
of the Premises designated as Space A (the “Space A Contribution”), and (ii) $433,175.00 to
be applied to the cost of labor and materials for the portion of Tenant’s Initial Alteration Work
which constitutes Qualified Renovations made in and to the portion of the Premises designated as
Space B (the “Space B Contribution” and Space A Contribution collectively referred to as,
“Landlord’s Contribution”). Notwithstanding anything to the contrary contained in this
Article, from and after the Space B Commencement Date, all or any portion of the Space A
Contribution may be applied towards Qualified Renovations made in and to the portion of the
Premises designated as Space B, subject to, and to be disbursed in accordance with, the applicable
provisions of this Article. “Qualified Renovations” shall be defined as the labor and
materials used by Tenant to construct permanent leasehold improvements and alterations to the
Premises in compliance with this Lease after the date hereof and prior to twelve (12) months
following the Space B Commencement Date. Without limitation, for purposes of this Article,
Qualified Renovations shall be deemed not to include and Landlord’s Contribution shall not be
applied to the cost of interest, late charges, trade fixtures, furniture, furnishings, equipment,
professional fees, workstations, work surfaces (whether or not affixed to walls and/or convector
covers), related cabinetry, moveable business equipment or any personal property whatsoever, or to
the cost of labor, materials or services used to furnish or provide the same, provided, however,
that notwithstanding anything to the contrary contained in this Article, a portion of Landlord’s
Contribution up to but not exceeding the sum of $76,537.50 may be applied towards the cost of
architectural, planning, engineering and filing fees (“Soft Costs”), subject to and to be
disbursed in accordance with the applicable provisions of this Article.




          49.02 “Requisition” shall mean a request by Tenant for payment from Landlord for
Qualified Renovations and shall consist of such documents and information from Tenant as Landlord
may require to substantiate the completion of, and payment for,
such Qualified Renovations to which the Requisition relates (the “Work Cost”) and shall
include, without limitation, the following: an itemization of Tenant’s total construction costs,
detailed by contractor, subcontractors, vendors and materialmen; bills, receipts, lien waivers and
releases from all




41









 







contractors, subcontractors, vendors and materialmen; architects’ and Tenant’s certification of
completion, payment and acceptance, and all governmental approvals and confirmations of completion
for the portion of the Tenant’s Initial Alteration Work theretofore completed and for which Tenant
seeks payment.




          49.03 From time-to-time, but not more than once in any calendar month during the term, Tenant
may give Landlord a Requisition for so much of the Work Cost as arose since the end of the period
to which the most recent prior Requisition related, or, with respect to the first Requisition, for
the initial Work Cost.




          49.04 If Tenant is not in default under this Lease and provided that all documents and
information required by Landlord have been provided, within thirty (30) days after Landlord
receives a Requisition, Landlord shall pay Tenant eighty five percent (85%) of the Work Cost
reflected in such Requisition and shall withhold the remaining fifteen percent (15%) of Work Cost
(the “Retainage”); and provided that Tenant is not in default under this Lease, within
thirty (30) days after Tenant furnishes Landlord with (x) a final, stamped set of “as-built” plans
for the Premises which demonstrates that Tenant’s Initial Alteration Work has been completed in
accordance with plans and specifications first approved by Landlord and (y) its final Requisition
which demonstrates that Tenant’s Initial Alteration Work has been completed and paid for in full by
Tenant and (z) all documents and information required by Landlord, Landlord shall pay Tenant all
the Retainages.




          49.05 It is expressly understood and agreed that if the amount of Landlord’s Contribution is
less than the cost of Tenant’s Initial Alteration Work, Tenant shall remain solely responsible for
the payment and completion of, and in all events shall complete, at its sole cost and expense,
Tenant’s Initial Alteration Work on or before twelve months following the Space B Commencement
Date. Any portion of Landlord’s Contribution not disbursed shall be retained by Landlord.




ARTICLE 50




OPERATING EXPENSE ESCALATION




          50.01 Tenant shall pay to Landlord, as Additional Rent, operating expense escalations in
accordance with this Article.




          50.02 For the purposes of this Article, the following definitions shall apply:




               (i) The term “Base Year” as herein after set forth for the determination of operating
expense escalation, shall mean the calendar year 2007, and the term “Base Insurance
Expenses” year shall mean the average of the Building Insurance Expenses (hereinafter defined)
for the calendar years 2005, 2006 and 2007.



               (ii) The term the “Percentage”, for purposes of
computing operating expense escalations hereunder, shall mean two and three hundred and two
thousandths (2.302%) percent with respect to the Premises of which .999 percent (.999%) shall be
allocated to Space A and 1.303 percent



42









 




(1.303%) shall be allocated to Space B. The Percentage has been computed on the basis of a
fraction, the numerator of which is the rentable square foot area of the presently demised premises
and the denominator of which is the total rentable square foot area of the office space in the
Building. The parties acknowledge and agree that, for purposes of this Article only, the total
rentable square foot area of the Premises presently demised to Tenant shall be deemed to be 30,615
square feet, and that the rentable square foot area of the office space in the Building shall be
deemed to be 1,330,014 square feet.




               (iii) The term the “Building Project” for purposes of this Article shall mean the
aggregate combined parcel of land on a portion of which is the Building of which the Premises form
a part, with all the improvements and appurtenances thereon, said improvements being a part of the
block and lot for tax purposes which are applicable to the aforesaid land.



               (iv) The term “Comparative Year” for purposes of this Article shall mean the twelve
(12) months following the Base Year, and each subsequent period of twelve (12) months, and the term
“Comparative Insurance Year” for purposes of this Article shall mean the twelve (12) month
period commencing as of January 1, 2007, and each subsequent period of twelve (12) months.



               (v) The term “Building Insurance Expenses” shall mean the total of all the costs and
expenses incurred or borne by Landlord with respect to procuring and maintaining in respect of the
Building Project: comprehensive all risk insurance on the Building Project and the personal
property contained therein or thereon; commercial general liability insurance against claims for
personal injury, bodily injury, death or property damage, occurring upon, in or about the Building
Project; extended coverage, boiler and machinery, sprinkler, apparatus, rental, business income and
plate glass insurance; owner’s contingent or protective liability insurance; workers’ compensation
and employer’s liability insurance; insurance against acts of terrorism (including, without
limitation, bio-terrorism), and any insurance required by a mortgagee;



               (vi) The term “Expenses” shall mean the total of all the costs and expenses incurred
or borne by Landlord with respect to the operation and maintenance of the Building Project and the
services provided tenants therein, including, but not limited to, the costs and expenses incurred
for and with respect to: steam and any other fuel; water rates and sewer rents; air-conditioning;
mechanical ventilation; heating; cleaning, by contract or otherwise; window washing (interior and
exterior); elevators, escalators; parking areas and facilities; porters and matron service;
Building electric current*; protection and security; lobby decoration; repairs, replacements and
improvements which are appropriate for the continued operation of the Building as a first-class
building; maintenance; management fees; painting of non-tenant areas; supplies; wages, salaries,
disability benefits, pensions, hospitalization, retirement plans and group insurance respecting
employees of the Building up to and including the building manager; uniforms and working clothes
for such employees and the cleaning thereof and expenses imposed pursuant to law or to any
collective bargaining agreement with respect to such employees; workmen’s compensation insurance,
payroll, social security, unemployment and other similar taxes with respect to such employees; and
association fees or dues.





 




			
	*	 	i.e. Building electric current shall be deemed to mean all
electricity purchased for the Building except that which is redistributed to
tenants in the Building; the parties acknowledge and agree that forty-five
percent (45%) of the Building’s payment to the public utility for the purchase
of electricity shall be deemed to be payment for Building electric current.




43









 










          Provided, however, that the foregoing Expenses shall exclude or have deducted from them, as
the case may be and as shall be appropriate:




               (a) leasing commissions;



               (b) managing agents’ fees or commissions in excess of the rates then customarily charged by
owner/operators for building management for buildings of like class and character;



               (c) executive’s salaries above the grade of building manager;



               (d) expenditures for capital improvements except those which under generally applied real
estate practice are expensed or regarded as deferred expenses and except for capital expenditures
required by law, in either of which cases the cost thereof shall be included in Expenses for the
Comparative Year in which the costs are incurred and subsequent Comparative Years, amortized on a
straight line basis over an appropriate period, but not more then ten years, with an interest
factor equal to the prime rate of the JP Morgan Chase, New York, (or the successor thereto) at the
time of Landlord’s having incurred said expenditure;



               (e) amounts received by Landlord through proceeds of insurance to the extent the proceeds are
compensation for expenses which were previously included in Expenses hereunder;



               (f) cost of repairs or replacements incurred by reason of fire or other casualty to the extent
to which Landlord is compensated therefor through proceeds of insurance, or caused by the exercise
of the right of eminent domain;



               (g) advertising and promotional expenditures;



               (h) legal fees for disputes with tenants and legal and auditing fees, other than legal and
auditing fees reasonably incurred in connection with the maintenance and operation of the Building
Project or in connection with the preparation of statements required pursuant to Additional Rent or
lease escalation provisions; and



               (i) the incremental cost of furnishing services such as overtime HVAC to any tenant at such
tenant’s expense; costs incurred in performing work or furnishing services for individual tenants
(including this Tenant) at such tenant’s expense; and costs of performing work or furnishing
services for tenants other than this Tenant at Landlord’s expense to the extent that such work or
service is in excess of any work or service Landlord is obligated to furnish to this Tenant at
Landlord’s expense;



               (j) Building Insurance Expenses.



          50.03 If Landlord shall purchase any item of capital equipment or make any capital expenditure
designed to result in savings or reductions in Expenses, then the costs for same shall be




44









 







included in Expenses. The costs of capital equipment or capital expenditures are so to be included
in Expenses for the Comparative Year in which the costs are incurred and subsequent Comparative
Years, on a straight line basis, to the extent that such items are amortized over such period of
time as reasonably can be estimated as the time in which such savings or reductions in Expenses are
expected to equal Landlord’s costs for such capital equipment or capital expenditure, with an
interest factor equal to the prime rate of JP Morgan Chase, New York, (or the successor thereto) at
the time of Landlord’s having incurred said costs. If Landlord shall lease any such item of
capital equipment designed to result in savings or reductions in Expenses, then the rentals and
other costs paid pursuant to such leasing shall be included in Expenses for the comparative year in
which they were incurred.




          50.04 If during all or part of the Base Year or any Comparative Year, Landlord shall not
furnish any particular item(s) of work or service (which would constitute an Expense hereunder) to
portions of the Building Project due to the fact that such portions are not occupied or leased, or
because such item of work or service is not required or desired by the tenant of such portion, or
such tenant is itself obtaining and providing such item of work or service, or for other reasons,
then, for the purposes of computing the Additional Rent payable hereunder, the amount of the
Expenses for such item for such period shall be increased by an amount equal to the additional
operating and maintenance expenses which would reasonably have been incurred during such period by
Landlord if it had at its own expense furnished such item of work or services to the greater of (i)
the actual occupancy of the Building, or (ii) ninety-five (95%) percent of the occupancies of the
Building.




          50.05 If the Expenses for any Comparative Year shall be greater than the Expenses for the Base
Year, Tenant shall pay to Landlord, as Additional Rent for such Comparative Year, in the manner
hereinafter provided, an amount equal to the Percentage of the excess of the Expenses for such
Comparative Year over the Expenses for the Base Year (such amount being hereinafter called the
“Expense Payment”). If the Building Insurance Expenses for any Comparative Insurance Year
shall be greater than the Base Insurance Expenses, Tenant shall pay to Landlord, as Additional Rent
for such Comparative Insurance Year, in the manner hereinafter provided, an amount equal to the
Percentage of the excess of the Building Insurance Expenses for such Comparative Insurance Year
over the Base Insurance Expenses (such amount being hereinafter called the “Insurance Expense
Payment”).




          50.06 Following the expiration of each Comparative Year and Comparative Insurance Year and
after receipt of necessary information and computations from Landlord’s certified public
accountant, Landlord shall submit to Tenant a statement or statements, as hereinafter described,
setting forth the Expenses for the preceding Comparative Year, and the Expense Payment, if any, due
to Landlord from Tenant for such Comparative Year, and a statement setting forth the Base Insurance
Expenses and the Insurance Expense Payment, if any, due to Landlord from Tenant for such Insurance
Comparative Year. The rendition of any such statement to Tenant shall constitute prima facie proof
of the accuracy thereof and, if such statement shows an Expense Payment and/or Insurance Expense
Payment due from Tenant to Landlord with respect to the preceding Comparative Year and/or
Comparative Insurance Year, then (i) Tenant shall make payment of any unpaid portion thereof within
ten (10) days after receipt of such statement; and (ii) Tenant shall also pay Landlord, as
Additional Rent within ten (10) days after receipt of such statement, an amount equal to the
product obtained by multiplying the Expense Payment and/or Insurance Expense Payment for the
Comparative Year or the
Comparative Insurance Year, as the case may be, by a fraction, the denominator of which shall be 12
and the numerator of which shall be the number of months of the current Comparative Year or




45









 







Comparative Insurance Year, as the case may be, which shall have elapsed prior to the first day of
the month immediately following the rendition of such statement; and (iii) Tenant shall also pay to
Landlord, as Additional Rent, commencing as of the first day of the month immediately following the
rendition of such statement and on the first day of each month thereafter until a new statement is
rendered an amount equal to 1/12th of the total Expense Payment for the preceding Comparative Year
and/or 1/12th of the total Insurance Expense Payment for the preceding Comparative Insurance Year.
The aforesaid monthly payments based on the total Expense Payment for the preceding Comparative
Year or the total Insurance Expense Payment for the preceding Comparative Insurance Year, as the
case may be, shall from time to time be adjusted to reflect, if Landlord can reasonably so
estimate, known increases in rates or cost, for the current Comparative Year or the current
Comparative Insurance Year, as the case may be, applicable to the categories involved in computing
Expenses or Building Insurance Expenses, whenever such increases become known prior to or during
such current Comparative Year or the current Comparative Insurance Year, as the case may be. The
payments required to be made under (ii) and (iii) above shall be credited toward the Expense
Payment or the Insurance Expense payment due from Tenant for the then current Comparative Year or
the current Comparative Insurance Year, as the case may be, subject to adjustment as and when the
statement for such current Comparative Year or the current Comparative Insurance Year is rendered
by Landlord.




          50.07 The statements of the Expenses and the Building Insurance Expenses to be furnished by
Landlord as provided above shall be certified by Landlord, and shall be prepared in reasonable
detail and based on information and computations made for the Landlord by a Certified Public
Accountant (who may be the CPA now or then employed by Landlord for the audit of its accounts):
said Certified Public Accountant may rely on Landlord’s allocations and estimates wherever
operating cost allocations or estimates are needed for this Article. The statements thus furnished
to Tenant shall constitute a final determination as between Landlord and Tenant of the Expenses for
the periods represented thereby, unless Tenant within thirty (30) days after they are furnished
shall give notice to Landlord that it disputes their accuracy or their appropriateness, which
notice shall specify the particular respects in which the statement is inaccurate or inappropriate
or, in the event that such statement does not itemize or provide reasonable supporting
documentation for the increase in such Expenses and Building Insurance Expenses, then such notice
shall be accompanied by a statement from an independent, third party real estate professional with
at least ten (10) years experience in commercial office leasing and/or management in midtown
Manhattan, indicating with reasonable detail the basis for such dispute such as, for example, a
comparison of those Expenses or Building Insurance Expenses to those of various other Buildings of
comparable age, class and character in midtown Manhattan. Pending the resolution of any such
dispute, Tenant shall pay the Additional Rent to Landlord in accordance with the statements
furnished by Landlord.




          50.08 In no event shall the Fixed Annual Rent under this Lease be reduced by virtue of this
Article.




          50.09 Landlord’s and Tenants obligation to make adjustments as provided for above in this
Article shall survive any expiration or termination of this Lease.




          50.10 Any delay or failure of Landlord in billing any escalation hereinabove provided shall
not constitute a waiver of or in way impair the continuing obligation of Tenant to pay such
escalation hereunder.




46









 








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




	 	 	 	 	 
	 	METROPOLITAN 919 THIRD AVENUE LLC

 	 
	 	By:  	/s/ Steven M. Durels
 	 
	 	 	Name:  	Steven M. Durels 	 
	 	 	Title:  	Executive Vice President, Director of Leasing 	 



Witness:




	 	 	 	 	 
	/s/ Monica Perez
 	 	 
	Name:  	Monica Perez 	 	 
	Title:  	Admin. Asst. 	 	 
	 



	 	 	 	 	 
	 	NEW YORK MARINE AND GENERAL INSURANCE COMPANY

 	 
	 	By:  	/s/ A. George Kallop
 	 
	 	 	Name:  	A. George Kallop 	 
	 	 	Title:  	Chief Executive Officer 	 



Witness:




	 	 	 	 	 
	 	 	 
	Name:  	 	 	 
	Title:  	 	 	 



47









 






ARTICLE 51




RULES AND REGULATIONS

MADE A PART OF THIS LEASE




          1. No animals, birds, bicycles or vehicles shall be brought into or kept in the Premises. The
Premises shall not be used for manufacturing or commercial repairing or for sale or display of
merchandise or as a lodging place, or for any immoral or illegal purpose, nor shall the Premises be
used for a public stenographer or typist; barber or beauty shop; telephone, secretarial or
messenger service; employment, travel or tourist agency; school or classroom; commercial document
reproduction; or for any business other than specifically provided for in the Tenant’s lease.
Tenant shall not cause or permit in the Premises any disturbing noises which may interfere with
occupants of this or neighboring Buildings, any cooking or objectionable odors, or any nuisance of
any kind, or any inflammable or explosive fluid, chemical or substance. Canvassing, soliciting and
peddling in the Building are prohibited, and each tenant shall cooperate so as to prevent the same.




          2. The toilet rooms and other water apparatus shall not be used for any purposes other than
those for which they were constructed, and no sweepings, rags, ink, chemicals or other unsuitable
substances shall be thrown therein. Tenant shall not place anything out of doors, windows or
skylights, or into hallways, stairways or elevators, nor place food or objects on outside window
sills. Tenant shall not obstruct or cover the halls, stairways and elevators, or use them for any
purpose other than ingress and egress to or from Tenant’s Premises, nor shall skylights, windows,
doors and transoms that reflect or admit light into the Building be covered or obstructed in any
way. All drapes and blinds installed by Tenant on any exterior window of the Premises shall conform
in style and color to the Building standard.




          3. Tenant shall not place a load upon any floor of the Premises in excess of the load per
square foot which such floor was designed to carry and which is allowed by law. Landlord reserves
the right to prescribe the weight and position of all safes, file cabinets and filing equipment in
the Premises. Business machines and mechanical equipment shall be placed and maintained by Tenant,
at Tenant’s expense, only with Landlord’s consent and in settings approved by Landlord to control
weight, vibration, noise and annoyance. Smoking or carrying lighted cigars, pipes or cigarettes in
the elevators of the Building is prohibited.




          4. Tenant shall not move any heavy or bulky materials into or out of the Building or make or
receive large deliveries of goods, furnishings, equipment or other items without Landlord’s prior
written consent, and then only during such hours and in such manner as Landlord shall approve and
in accordance with Landlord’s rules and regulations pertaining thereto. If any material or
equipment requires special handling, Tenant shall employ only persons holding a Master Rigger’s
License to do such work, and all such work shall comply with all legal requirements. Landlord
reserves the right to inspect all freight to be brought into the Building, and to exclude any
freight which violates any rule, regulation or other provision of this Lease.




48









 








          5. No sign, advertisement, notice or thing shall be inscribed, painted or affixed on any part
of the Building, without the prior written consent of Landlord. Landlord may remove anything
installed in violation of this provision, and Tenant shall pay the cost of such removal and any
restoration costs. Interior signs on doors and directories shall be inscribed or affixed by
Landlord at Tenant’s expense. Landlord shall control the color, size, style and location of all
signs, advertisements and notices. No advertising of any kind by Tenant shall refer to the
Building, unless first approved in writing by Landlord.




          6. No article shall be fastened to, or holes drilled or nails or screws driven into, the
ceilings, walls, doors or other portions of the Premises, nor shall any part of the Premises be
painted, papered or otherwise covered, or in any way marked or broken, without the prior written
consent of Landlord.




          7. No existing locks shall be changed, nor shall any additional locks or bolts of any kind be
placed upon any door or window by Tenant, without the prior written consent of Landlord. Two (2)
sets of keys to all exterior and interior locks shall be furnished to Landlord . At the termination
of this Lease, Tenant shall deliver to Landlord all keys for any portion of the Premises or
Building. Before leaving the Premises at any time, Tenant shall close all windows and close and
lock all doors.




          8. No Tenant shall purchase or obtain for use in the Premises any spring water, ice, towels,
food, bootblacking, barbering or other such service furnished by any company or person not approved
by Landlord. Any necessary exterminating work in the Premises shall be done at Tenant’s expense, at
such times, in such manner and by such company as Landlord shall require. Landlord reserves the
right to exclude from the Building, from 6:00 p.m. to 8:00 a.m., and at all hours on Sunday and
legal holidays, all persons who do not present a pass to the Building signed by Landlord. Landlord
will furnish passes to all persons reasonably designated by Tenant. Tenant shall be responsible for
the acts of all persons to whom passes are issued at Tenant’s request.




          9. Whenever Tenant shall submit to Landlord any plan, agreement or other document for
Landlord’s consent or approval, Tenant agrees to pay Landlord as Additional Rent, on demand, an
administrative fee equal to the sum of the reasonable fees of any architect, engineer or attorney
employed by Landlord to review said plan, agreement or document and Landlord’s administrative costs
for same.




          10. The use in the Premises of auxiliary heating devices, such as portable electric heaters,
heat lamps or other devices whose principal function at the time of operation is to produce space
heating, is prohibited.




          11. Tenant shall keep all doors from the hallway to the Premises closed at all times except
for use during ingress to and egress from the Premises. Tenant acknowledges that a violation of the
terms of this paragraph may also constitute a violation of codes, rules or regulations of
governmental authorities having or asserting jurisdiction over the Premises, and Tenant agrees to
indemnify Landlord from any fines, penalties, claims, action or increase in fire insurance rates
which might result from Tenant’s violation of the terms of this paragraph.




49









 








          12. Tenant shall be permitted to maintain an “in-house” messenger or delivery service within
the Premises, provided that Tenant shall require that any messengers in its employ affix
identification to the breast pocket of their outer garment, which shall bear the following
information: name of Tenant, name of employee and photograph of the employee. Messengers in
Tenant’s employ shall display such identification at all time. In the event that Tenant or any
agent, servant or employee of Tenant, violates the terms of this paragraph, Landlord shall be
entitled to terminate Tenant’s permission to maintain within the Premises in-house messenger or
delivery service upon written notice to Tenant.




          13. Tenant will be entitled to three (3) listings on the Building lobby directory board,
without charge. Any additional directory listing (if space is available), or any change in a prior
listing, with the exception of a deletion, will be subject to a fourteen ($14.00) dollar service
charge, payable as Additional Rent.




          14. In case of any conflict or inconsistency between any provisions of this Lease and any of
the rules and regulations as originally or as hereafter adopted, the provisions of this Lease shall
control.





50