EX-10.8



 




EXHIBIT 10.8



 







MAGNOLIA ASSOCIATES, LTD.




Landlord,




and




PZENA INVESTMENT MANAGEMENT, LLC,




Tenant.




 






LEASE




 






	 	 	 
	Premises:
	 	Thirty-Fourth (34th) Floor
	 
	 	120 West 45th Street
	 
	 	New York, New York
	 
	 	 
	 
	 	New York, New York
	 
	 	 
	 
	 	Dated:  February 4, 2003






 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	TABLE OF CONTENTS
	 	 	i	 
	 
	 	 	 	 
	LEASE
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 1 BASIC LEASE PROVISIONS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2 PREMISES; TERM; RENT
	 	 	3	 
	 
	 	 	 	 
	ARTICLE 3 USE AND OCCUPANCY
	 	 	3	 
	 
	 	 	 	 
	ARTICLE 4 CONDITION OF THE PREMISES
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 5 ALTERATIONS
	 	 	6	 
	 
	 	 	 	 
	ARTICLE 6 FLOOR LOAD
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 7 REPAIRS
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 8 INCREASES IN REAL ESTATE TAXES AND OPERATING EXPENSES
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 9 REQUIREMENTS OF LAW
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 10 QUIET ENJOYMENT
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 11 SUBORDINATION
	 	 	19	 
	 
	 	 	 	 
	ARTICLE 12 SERVICES
	 	 	21	 
	 
	 	 	 	 
	ARTICLE 13 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 14 DESTRUCTION — FIRE OR OTHER CAUSE
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 15 EMINENT DOMAIN
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 16 ASSIGNMENT AND SUBLETTING
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 17 ELECTRICITY
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 18 ACCESS TO PREMISES
	 	 	42	 
	 
	 	 	 	 
	ARTICLE 19 DEFAULT
	 	 	43	 
	 
	 	 	 	 
	ARTICLE 20 REMEDIES AND DAMAGES
	 	 	45	 






i 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 21 LANDLORD’S RIGHT TO CURE; REIMBURSEMENT
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 22 NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL
	 	 	48	 
	 
	 	 	 	 
	ARTICLE 23 END OF TERM
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 24 NO SURRENDER; NO WAIVER
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 25 WAIVER OF TRIAL BY JURY
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 26 Intentionally Omitted
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 27 NOTICES
	 	 	51	 
	 
	 	 	 	 
	ARTICLE 28 RULES AND REGULATIONS
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 29 PARTNERSHIP TENANT
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 30 VAULT SPACE
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 31 BROKERS
	 	 	53	 
	 
	 	 	 	 
	ARTICLE 32 INDEMNITY
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 33 TAX STATUS OF BENEFICIAL OWNERS
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 34 SECURITY DEPOSIT
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 35 MISCELLANEOUS
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 36 RENEWAL TERM
	 	 	61	 
	 
	 	 	 	 
	ARTICLE 37 ARBITRATION
	 	 	62	 
	 
	 	 	 	 





EXHIBIT A            FLOOR PLAN




EXHIBIT B            DEFINITIONS




EXHIBIT C            INTENTIONALLY OMITTED




EXHIBIT D            LANDLORD’S WORK




EXHIBIT E            RULES AND REGULATIONS




EXHIBIT F            HEATING, VENTILATION AND AIR CONDITIONING SPECIFICATIONS




ii 









 








EXHIBIT G            CLEANING SPECIFICATIONS




EXHIBIT H            FORM LETTER OF CREDIT




EXHIBIT I              PLANS





iii 









 





LEASE




          THIS LEASE is made as of the 4th day of February, 2003, between MAGNOLIA ASSOCIATES,
LTD., a Florida limited partnership, having an office at c/o Reckson Associates Realty Corp., 1350
Avenue of the Americas, New York, New York 10019 (“Landlord”), and PZENA INVESTMENT
MANAGEMENT, LLC, a Delaware limited liability company, having an office at 830 Third Avenue,
Fourteenth Floor, New York, New York 10022 (“Tenant”).




          Landlord and Tenant hereby covenant and agree as follows:




ARTICLE 1




BASIC LEASE PROVISIONS




	 	 	 
	PREMISES

	 	The thirty-fourth (34th) Floor of
the Building, substantially as shown on Exhibit
A, which Landlord and Tenant agrees contains
11,858 rentable square feet.
	 
	 	 
	BUILDING

	 	The building, fixtures, equipment and other
improvements and appurtenances now located or
hereafter erected, located or placed upon the
land known as 120 West 45th Street,
New York, New York.
	 
	 	 
	COMMENCEMENT DATE

	 	The date of this Lease.
	 
	 	 
	RENT COMMENCEMENT DATE

	 	The date four (4) months after the Substantial
Completion Date (subject, however, to the
provisions of Section D of Exhibit D).
	 
	 	 
	EXPIRATION DATE

	 	The last day of the calendar month in which the
day preceding the tenth (10th)
anniversary of the Rent Commencement Date
occurs, or if the term of this Lease shall be
extended in accordance with any express
provision of this Lease, the last day of any
renewal or extended term.
	 
	 	 
	TERM

	 	The period commencing on the Commencement Date
and ending on the Expiration Date.
	 
	 	 
	PERMITTED USES

	 	Executive and general offices, provided that
any areas designated on Exhibit A as bathroom,
utility or storage areas shall be used only for
those respective purposes, and provided that in
no event shall any Prohibited Use be included
as a Permitted Use.






 









 






	 	 	 
	BASE TAXES

	 	The average of (i) the Taxes for the Tax Year
commencing July 1, 2002 and ending on June 30,
2003, and (ii) the Taxes for the Tax Year
commencing July 1, 2003 and ending on June 30,
2004.
	 
	 	 
	BASE OPERATING YEAR

	 	The Computation Year commencing on January 1,
2003 and ending on December 31, 2003.
	 
	 	 
	TENANT’S AREA

	 	11,858 rentable square feet.
	 
	 	 
	TENANT’S PROPORTIONATE 

SHARE

	 	2.67% for Taxes and 2.78% for Operating
Expenses (which Landlord and Tenant stipulate
and agree is based on the Premises containing
11,858 rentable square feet and the Building
containing 444,255 rentable square feet for
purposes of computing Taxes and 426,960
rentable square feet for purposes of computing
Operating Expenses.
	 
	 	 
	FIXED RENT

	 	(i) Five Hundred Ninety Two Thousand Nine
Hundred Dollars ($592,900.00) per annum
($49,408.33 per month) for the period from the
Rent Commencement Date through the day
immediately preceding the fifth anniversary of
the Rent Commencement Date; and (ii) Six
Hundred Forty Thousand Three Hundred Thirty-Two
Dollars ($640,332.00) per annum ($53,361.00 per
month) for the period commencing on the fifth
anniversary of the Rent Commencement Date
through the Expiration Date.
	 
	 	 
	ADDITIONAL RENT

	 	All sums other than Fixed Rent payable by
Tenant to Landlord under this Lease, including
Tenant’s Tax Payment and Tenant’s Operating
Payment (as required pursuant to Article 8),
late charges, overtime or excess service
charges, and interest and other costs related
to Tenant’s failure to perform any of its
obligations under this Lease.
	 
	 	 
	RENT

	 	Fixed Rent and Additional Rent, collectively.
	 
	 	 
	SECURITY DEPOSIT

	 	$592,900.00, subject to reduction as provided
in Section 34.5.
	 
	 	 
	LANDLORD’S AGENT

	 	Any Person designated by Landlord from time to
time as Landlord’s agent for purposes of
managing the Real Property.
	 
	 	 





2









 






	 	 	 
	LANDLORD’S CONTRIBUTION

	 	Seven Hundred Eleven Thousand Four Hundred
Eighty Dollars ($711,480.00).





All capitalized terms used in the text of this Lease without definition are defined in this Article
1 or in Exhibit B.




ARTICLE 2




PREMISES; TERM; RENT




     Section 2.1 Lease of Premises. Subject to the terms of this Lease, Landlord leases
the Premises to Tenant, and Tenant leases the Premises from Landlord, for the Term.



     Section 2.2 Payment of Rent. Tenant shall pay to Landlord, without notice or demand,
and without any set-off, counterclaim, abatement or deduction whatsoever, except as may be
expressly set forth in this Lease, in lawful money of the United States, by check or money order
drawn on a bank which clears through the New York Clearinghouse Association or Federal Reserve Bank
of New York or other bank reasonably approved by Landlord: (i) Fixed Rent in equal monthly
installments, in advance, on the first day of each calendar month during the Term, commencing on
the Rent Commencement Date, (ii) Additional Rent, at the times and in the manner set forth in this
Lease, and (iii) electricity charges due under Article 17, on the first day of each calendar month
during the term commencing on the Commencement Date.



     Section 2.3 First Month’s Rent. Tenant shall pay one (1) month’s Fixed Rent upon the
execution and delivery of this Lease. If the Rent Commencement Date is on the first day of a
month, such payment shall be credited towards such month’s Fixed Rent payment. If the Rent
Commencement Date is not the first day of a month, then on the Rent Commencement Date Tenant shall
pay Fixed Rent for the period (the “Partial Month”) from the Rent Commencement Date through
the last day of such month, and the payment made by Tenant on the date of execution and delivery of
this Lease shall be credited towards Fixed Rent for the next succeeding calendar month.



ARTICLE 3




USE AND OCCUPANCY




     Section 3.1 Permitted Uses. (a) Tenant shall use and occupy the Premises for the
Permitted Uses and for no other purpose. Tenant shall not use or occupy or suffer the use or
occupancy of any part of the Premises in a manner constituting a Prohibited Use. If Tenant uses or
suffers the use of the Premises for a purpose which constitutes a Prohibited Use or violates any
Requirements, or which causes the Building to be in violation of any Requirements, then Tenant
shall promptly discontinue such use upon notice of such violation.



3









 





          (b) Licenses and Permits. Tenant, at its expense, shall obtain and at all times
maintain and comply with the terms and conditions of all licenses and permits required for the
lawful conduct of the Permitted Uses in the Premises.




     Section 3.2 Delivery of Premises. Landlord shall be deemed to have delivered
possession of the Premises to Tenant, and Tenant shall be deemed to have accepted possession of the
Premises, immediately upon the Commencement Date. The provisions of this Article are intended to
constitute “an express provision to the contrary” within the meaning of Section 223-a of the New
York Real Property Law or any successor Requirements. Acceptance of possession of the Premises by
Tenant as herein provided shall not obviate, waive or otherwise affect Landlord’s obligation to
perform Landlord’s Work as provided in this Lease.



     Section 3.3 Use of Building Name. Neither Tenant nor any occupant of the Premises
shall use the name of the Building or the name of the entity for which the Building is named or
designated by Landlord or any part or abbreviation (including initials) of any such name, except in
a conventional manner, and without emphasis or display, as a part of Tenant’s or such permitted
occupant’s business address.



ARTICLE 4




CONDITION OF THE PREMISES




     Section 4.1 Condition. Tenant has inspected the Premises and agrees (i) to accept
possession of the Premises in the “as is” condition existing on the Commencement Date, subject,
however, to Landlord’s obligation to perform Landlord’s Work as provided in this Lease, (ii) that
neither Landlord nor Landlord’s agents have made any representations or warranties with respect to
the Premises or the Building except as expressly set forth herein, and (iii) except for the work
set forth on Exhibit D to this Lease (“Landlord’s Work”), Landlord has no
obligation to perform any work, supply any materials, incur any expense or make any alterations or
improvements to the Premises to prepare the Premises for Tenant’s occupancy. Tenant’s occupancy of
any part of the Premises shall be conclusive evidence, as against Tenant, that (A) Landlord has
Substantially Completed Landlord’s Work, (B) Tenant has accepted possession of the Premises in
their then current condition, and (C) the Premises and the Building are in a good and satisfactory
condition as required by this Lease. Not later than five (5) Business Days after the date that
Landlord has Substantially Completed Landlord’s Work, Tenant shall deliver to Landlord written
notice of all items, which Tenant claims to be Punch-List Items (hereinafter defined). Landlord
shall complete and perform all Punch-List Items within a reasonable period after the date Landlord
has Substantially Completed Landlord’s Work (subject, however, to Unavoidable Delay, including
Tenant Delay).



     Section 4.2 Performance of Landlord’s Work. Provided this Lease shall be in full force
and effect and no Event of Default then exists, Landlord shall perform Landlord’s Work in
accordance with the provisions of this Article 4 and Exhibit D hereto. Tenant shall not
interfere with the performance of Landlord’s Work by Landlord, its employees, agents, contractors,
subcontractors and suppliers, and Tenant at all times shall fully and freely cooperate with
Landlord, its employees, agents, contractors, subcontractors and suppliers in connection with the



4









 




performance of Landlord’s Work. To the extent that in the performance of Landlord’s Work there
shall be issued, by any contractor, subcontractor or supplier, any warranty or guaranty, then
Landlord, at Landlord’s option, shall either (i) use reasonable efforts (without being required to
incur any cost or expense, or to commence or continue any suit, action or proceeding), to obtain
the benefits of such warranties and guaranties for Tenant, or (ii) to the extent assignable, and
without representation or warranty by Landlord, and without recourse to Landlord, assign such
warranties and guaranties to Tenant; provided that in either case Landlord in no way shall be
liable or obligated in connection with any such warranties or guaranties, or the issuance or
non-issuance thereof, or the performance or non-performance thereof by or on behalf of the issuer
thereof.




     Section 4.3 Landlord’s Work In connection with the performance of Landlord’s Work,
as set forth in Section 4.2 hereof, Tenant shall provide Landlord with access at all times
to all portions of the Premises. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall not be subject to any liability and/or penalty whatsoever as a result of any delays
in connection with the performance of Landlord’s Work which result from Unavoidable Delay,
including, without limitation, Tenant Delay.



     Section 4.4 Landlord’s Contribution. Provided this Lease shall be in full force and
effect and that no Event of Default shall have occurred and be continuing, Landlord agrees to pay
Landlord’s Contribution toward the cost of the Landlord’s Work. Tenant shall pay any and all costs
of Landlord’s Work (including both “hard costs,” such as costs of construction labor and materials,
and “soft costs”, such as costs of obtaining permits and approvals, and inspection, architectural
and engineering costs), in excess of Landlord’s Contribution in accordance with the terms and
conditions set forth herein and in Exhibit D. Landlord’s Contribution shall be payable
solely on account of work related to the Landlord’s Work (including, without limitation, (i) actual
architectural, consulting and engineering fees and costs incurred by Tenant in connection therewith
and (ii) costs of electricity and other utilities incurred in connection therewith) except as
otherwise specifically provided in this Lease. Tenant shall not be entitled to receive any portion
of Landlord’s Contribution not actually expended in the performance of the Landlord’s Work in
accordance with Exhibit D, nor shall Tenant have any right to apply any unexpended portion
of Landlord’s Contribution as a credit against Fixed Rent, Additional Rent or any other obligation
of Tenant under this Lease; provided, however (and subject to the first sentence of this
Section 4.4), that if, after payment of all costs of Landlord’s Work and the costs set
forth in Section 12.9(c), there shall be any unexpended balance of Landlord’s Contribution,
then such balance shall be applied to reimburse Tenant for costs incurred by Tenant for installing
Tenant’s initial telecommunications and computer data wiring and initial built-in furniture in the
Premises, provided that Tenant provides to Landlord, not later than sixty (60) days after the
Substantial Completion Date (as hereinafter defined) (with TIME OF THE ESSENCE), a request for such
reimbursement accompanied by evidence reasonably satisfactory to Landlord substantiating that such
work has been performed and completed and that such costs actually have been incurred and paid by
Tenant; but Tenant shall pay the costs for such wiring and built-in furniture to the extent that
the unexpended balance of Landlord’s Contribution (if any), after payment of the costs and expenses
to which said Landlord’s Contribution otherwise is to be applied, including the costs set forth in
Section 12.9(c), shall be insufficient therefor. Such reimbursement out of



5









 




the unexpended balance of Landlord’s Contribution shall be provided by Landlord to Tenant not
later than thirty (30) days after request by Tenant for such reimbursement made as and when
provided herein, accompanied by such substantiating evidence.




ARTICLE 5




ALTERATIONS




     Section 5.1 (a) Tenant’s Alterations. Tenant shall not make any alterations,
additions or other physical changes in or about the Premises (collectively, “Alterations”),
other than decorative Alterations such as painting, wall coverings and floor coverings
(collectively, “Decorative Alterations”), without Landlord’s prior consent, which may be
withheld in Landlord’s sole discretion. Landlord will not unreasonably withhold, delay or
condition its consent to Alterations so long as such Alterations (i) are non-structural and do not
affect the Building Systems, (ii) are performed only by Landlord’s designated contractors or by
contractors approved by Landlord to perform such Alterations, (iii) affect only the Premises and
are not visible from outside of the Premises or the Building, (iv) do not affect the certificate of
occupancy issued for the Building or the Premises, (v) are consistent with the design, construction
and equipment of the Building, and (vi) do not adversely affect any service furnished by Landlord
in connection with the operation of the Building.



          (b) Plans and Specifications. Prior to making any Alterations, Tenant, at its
expense, shall (i) submit to Landlord for its approval, detailed plans and specifications
(including layout, architectural, mechanical, electrical, plumbing, sprinkler and structural
construction drawings using the AutoCAD Computer Assisted Drafting and Design System, Version 12 or
later of each proposed Alteration (other than Decorative Alterations), and with respect to any
Alteration affecting any Building System, Tenant shall submit proof that the Alteration has been
designed by, or reviewed and approved by, Landlord’s designated engineer for the affected Building
System, (ii) obtain all permits, approvals and certificates required by any Governmental
Authorities, (iii) furnish to Landlord duplicate original policies or certificates of worker’s
compensation (covering all persons to be employed by Tenant, and Tenant’s contractors and
subcontractors in connection with such Alteration) and comprehensive public liability (including
property damage coverage) insurance, all in such form, with such companies, for such periods and in
such amounts as Landlord may reasonably require, naming as additional insureds Landlord, Landlord’s
Affiliates and subsidiaries now or hereafter existing, Landlord’s managing agent, if any,
Landlord’s leasing agent, if any, and all Mortgagees and Lessors, and their respective successors
and assigns, now or hereafter existing and (provided that Tenant shall not be required to bear any
additional expense in connection therewith) all other Indemnitees and any other parties designated
by Landlord as additional insureds, as well as Builder’s Risk coverage which satisfies the
requirements of Section 13.1(a)(iii), (iv) furnish to Landlord such other evidence of
Tenant’s ability to complete and to fully pay for such Alterations (other than Decorative
Alterations) as is reasonably satisfactory to Landlord. Upon Tenant’s request, Landlord shall
reasonably cooperate with Tenant in obtaining any permits, approvals or certificates required to be
obtained by Tenant in connection with any permitted Alteration (if the provisions of the applicable
Requirements require that Landlord join in such application),



6









 







provided that Tenant shall reimburse Landlord for any cost, expense or liability in connection
therewith. Tenant shall give Landlord not less than three (3) Business Days’ notice prior to
performing any Decorative Alteration, which notice shall contain a description of such Decorative
Alteration.



          (c) Governmental Approvals; Plans. Upon completion of any Alterations, Tenant, at its
expense, shall promptly obtain certificates of final approval of such Alterations required by any
Governmental Authority, and shall furnish Landlord with copies thereof, together with “as-built”
plans and specifications for such Alterations (other than Decorative Alterations) prepared on the
AutoCAD Computer Assisted Drafting and Design System, Version 12 or later (or such other system or
medium as Landlord reasonably may accept), using naming conventions issued by the American
Institute of Architects in June, 1990 (or such other naming convention as Landlord may accept) and
magnetic computer media of such record drawings and specifications, translated into DXF format or
another format reasonably acceptable to Landlord.



     Section 5.2 Manner and Quality of Alterations. All Alterations shall be performed (i)
in a good and workmanlike manner and free from defects, (ii) in accordance with the plans and
specifications as required under Section 5.1, and by contractors, approved by Landlord,
(iii) under the supervision of a licensed architect reasonably satisfactory to Landlord (other than
Decorative Alterations), and (iv) in compliance with all Requirements, the terms of this Lease, all
procedures and regulations then prescribed by Landlord for work performed in the Building, and the
Rules and Regulations. All materials and equipment to be used in the Premises shall be of first
quality and at least equal to the applicable standards for the Building then established by
Landlord, and no such materials or equipment shall be subject to any lien or other encumbrance.



     Section 5.3 Removal of Tenant’s Property. All Building Standard Installations (as
defined in Article 13 of this Lease) shall be the property of Landlord and shall not be
removed by Tenant without the prior approval of Landlord. All Above Building Standard
Installations (as defined in Article 14 of this Lease) and Tenant’s Property shall be and,
except as hereinafter provided, shall remain the property of Tenant. On or prior to the Expiration
Date or sooner termination of the Term, Tenant shall, at Tenant’s expense, remove all of Tenant’s
Property and, unless otherwise directed by Landlord: (i) close up any slab penetrations in the
Premises and (ii) remove any Alterations which are not standard office installations, including
kitchen facilities, raised floors, internal stairways, vaults, private lavatories, libraries,
vertical transportation systems, reinforced floor areas, and supplemental air-conditioning systems
(collectively, “Specialty Alterations”) (all Specialty Alterations shall be deemed to be
Above Building Standard Installations for all purposes of this Lease). At least thirty (30) days
prior to commencing the removal of any Specialty Alterations or the closing of any slab
penetrations, Tenant shall notify Landlord of its intention to remove such Specialty Alterations or
effect such closings, and if Landlord notifies Tenant within such thirty (30) day period, Tenant
shall not remove such Specialty Alterations or close such slab penetrations, and the Specialty
Alterations not so removed shall become the property of Landlord upon the Expiration Date or sooner
termination of the Term. Tenant shall repair and restore, in a good and workmanlike manner, any
damage to the Premises or the Building caused by Tenant’s removal of any Alterations or Tenant’s
Property, or by the closing of any slab penetrations, and if Tenant fails to do so, Tenant



7









 







shall reimburse Landlord, on demand, for Landlord’s actual cost of repairing and restoring
such damage. Any Above Building Standard Installations or Tenant’s Property not removed on or
before the Expiration Date or sooner termination of the Term shall be deemed abandoned and Landlord
may either retain the same as Landlord’s property or remove and dispose of same without
accountability to Tenant, and repair and restore any damage caused thereby, at Tenant’s cost.
Simultaneously with submitting to Landlord any Alteration Plans for proposed Specialty Alterations,
Tenant may submit to Landlord a notice in writing (using bold letters) requesting Landlord to
notify Tenant whether Landlord shall require Tenant, at the Expiration Date or sooner termination
of this Lease, to remove the specified Specialty Alterations depicted in such Alteration Plans and
restore the Premises as provided in this Section 5.3 (an “Alteration Removal
Request”). If Tenant fails to so submit such Alteration Removal Request, and if the Specialty
Alterations are in fact made (it being agreed that such Specialty Alterations shall be subject to
the terms and provisions of this Lease), Landlord shall have the option to require Tenant, at the
Expiration Date or sooner termination of the Term, to remove all or any of the Specialty
Alterations shown on such Alteration Plans and to restore the Premises as provided in this
Section 5.3. If Landlord does not respond to the Alteration Removal Request within five
(5) Business Days, then as Tenant’s sole remedy Tenant shall have the right to provide Landlord
with a second Alteration Removal Request (a “Second Alteration Removal Request”), which
shall specifically identify the Specialty Alterations to which such request relates, and set forth
in bold capital letters the following statement: IF LANDLORD FAILS TO RESPOND WITHIN 5 BUSINESS
DAYS AFTER RECEIPT OF THIS NOTICE, TENANT SHALL NOT BE REQUIRED, AT THE EXPIRATON OR SOONER
TERMINATION OF THE TERM OF THE LEASE, TO REMOVE THE SPECIFIED ALTERATIONS OR RESTORE THE PREMISES
AS PROVIDED IN SECTION 5.3 OF THE LEASE. If Landlord shall respond to the Alteration Removal
Request or a Second Alteration Removal Request, Landlord shall state in such response whether or
not Tenant shall be required, at the Expiration Date or sooner termination of this Lease, to remove
such Specialty Alterations and restore the Premises as provided in this Section 5.3. If
Landlord fails to respond to a Second Alteration Removal Request within five (5) Business Days
after receipt of same by Landlord, then as Tenant’s sole remedy Landlord shall be deemed to have
agreed that Tenant shall not be required to remove the specified Specialty Alterations or restore
the Premises at the Expiration Date or sooner termination of this Lease as provided in provided
this Section 5.3. If Landlord, in a timely manner, shall respond to an Alteration Removal
Request or a Second Alteration Removal Request, then Tenant’s obligations to remove such Specialty
Alterations and restore the Premises as provided in this Section 5.3 shall be as set forth
in Landlord’s response. Nothing in this Section 5.3, and no response (or lack of response)
by Landlord to any Alteration Removal Request or Second Alteration Removal Request, shall affect,
waive or reduce Tenant’s repair and/or maintenance obligations as otherwise set forth in this
Lease.



     Section 5.4 Mechanic’s Liens. Tenant, at its expense, shall discharge any lien or
charge filed against the Premises, the Building or the Real Property in connection with any work
claimed or determined in good faith by Landlord to have been done by or on behalf of, or materials
claimed or determined in good faith by Landlord to have been furnished to, Tenant, within thirty
(30) days after Tenant’s receipt of notice thereof by payment, filing the bond required by law or
otherwise in accordance with law.



8









 





     Section 5.5 Labor Relations. Tenant shall not employ, or permit the employment of,
any contractor or laborer, or permit any materials to be delivered to or used in the Building, if,
in Landlord’s sole judgment, such employment, delivery or use will interfere or cause any conflict
or disharmony with other contractors or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others, or the use and enjoyment of the Building
by other tenants or occupants. In the event of such interference, conflict or disharmony, upon
Landlord’s request, Tenant shall cause all contractors or laborers causing such interference or
conflict to leave the Building immediately.



     Section 5.6 Tenant’s Costs. Tenant shall pay to Landlord or its designee, within ten
(10) Business Days after demand, all out-of-pocket costs actually incurred by Landlord in
connection with Tenant’s Alterations, including costs incurred in connection with (i) Landlord’s
review of the Alterations (including review of requests for approval thereof), and (ii) the
provision of Building personnel during the performance of any Alterations required by trade union
policy or otherwise, to operate elevators or otherwise to facilitate Tenant’s Alterations.



     Section 5.7 Tenant’s Equipment. Tenant shall not move any heavy machinery, heavy
equipment, freight, bulky matter or fixtures into or out of the Building without Landlord’s prior
consent (which consent shall not be unreasonably withheld, delayed or conditioned) and payment to
Landlord of Landlord’s reasonable charges in connection therewith. If any such machinery,
equipment or other items require special handling, Tenant agrees (i) to employ only persons holding
a Master Rigger’s License to perform such work, and (ii) such work shall be done only during hours
designated by Landlord.



     Section 5.8 Legal Compliance. The approval of plans or specifications, or the consent
by Landlord to the making of any Alterations, does not constitute Landlord’s agreement or
representation that such plans, specifications or Alterations comply with any Requirements or the
certificate of occupancy issued for the Building. Landlord shall have no liability to Tenant or
any other party in connection with Landlord’s approval of plans and specifications for any
Alterations, or Landlord’s consent to Tenant’s performing any Alterations. If, as the result of
any Alterations made by or on behalf of Tenant, Landlord is required to make any alterations or
improvements to any part of the Building in order to comply with any Requirements, whether or not
in the Premises, Tenant shall pay all costs and expenses incurred by Landlord in connection with
such alterations or improvements as provided in Article 21.



     Section 5.9 Landlord’s Reasonable Cooperation. Provided Tenant shall at times be in
compliance with its agreements and obligations under this Lease, and subject to the terms and
provisions of this Lease, including, without limitation, the provisions of this Article 5,
Landlord, at Tenant’s sole cost and expense, shall provide reasonable cooperation to Tenant in
connection with the performance of Alterations by Tenant to which Landlord has consented, or which
Tenant has a right to perform under the provisions of this Lease without the consent of Landlord,
provided that Landlord shall not be obligated to incur any liability, expense, cost or obligation
in connection therewith.



9









 





ARTICLE 6




FLOOR LOAD




     Tenant shall not place a load upon any floor of the Premises that exceeds 50 pounds per square
foot. Landlord reserves the right to reasonably designate the position of all heavy machinery,
equipment and fixtures which Tenant wishes to place within the Premises, and to place limitations
on the weight thereof, in accordance with the Rules and Regulations.



ARTICLE 7




REPAIRS




     Section 7.1 Landlord’s Repair and Maintenance. Landlord shall operate, maintain and,
except as provided in Section 7.2 hereof, make all necessary repairs (both structural and
nonstructural) to (i) the Building Systems, (ii) the public portions of the Building, and (iii) the
structural elements of the Building, both exterior and interior, including the roof, foundation and
curtain wall (including the windows which comprise components thereof), in conformance with
standards applicable to first-class office buildings of comparable age and quality in midtown
Manhattan.



     Section 7.2 Tenant’s Repair and Maintenance. Tenant shall promptly, at its expense
and in compliance with Article 5 of this Lease, (i) make all nonstructural repairs to the
Premises and the fixtures, equipment and appurtenances therein (to the extent not required to be
made by Landlord pursuant to Section 7.1) as and when needed to preserve the Premises in
good working order and condition, except for reasonable wear and tear and damage for which Tenant
is not responsible pursuant to this Lease, and (ii) replace (or, to the extent practical and
consistent with the esthetic standards of the Building, repair) damaged doors, signs and glass
(other than exterior window glass) in and about the Premises. Without limiting the foregoing but
subject to the provisions of Section 13.2, all damage to the Premises or to any other part
of the Building, or to any fixtures, equipment, sprinkler system and/or appurtenances thereof,
whether requiring structural or nonstructural repairs, caused by or resulting from any act,
omission, neglect or improper conduct of, or Alterations made by, or the moving of Tenant’s
fixtures, furniture or equipment, including machinery and heavy equipment, into, within or out of
the Premises by any Tenant Party, shall be repaired at Tenant’s expense. Such repairs shall be
made by (A) Tenant, at Tenant’s expense if the required repairs are nonstructural in nature and do
not affect any Building System or any portion of the Building outside of the Premises, or (B)
Landlord, at Tenant’s expense, if the required repairs are structural in nature, involve
replacement of exterior window glass (if damaged by any Tenant Party), or affect any Building
System or any portion of the Building outside of the Premises. Tenant shall give Landlord
reasonably prompt notice of any defective condition of which Tenant is aware in any structural
element or any Building System located in, servicing or passing through the Premises. All Tenant
repairs shall be of a quality at least equal to the original work or construction using new
construction materials, and shall be made in accordance with this Lease. If Tenant fails to
proceed with due diligence to make any repairs required to be made by Tenant, Landlord may make
such repairs, and all actual




10










 




costs and expenses incurred by Landlord in connection therewith shall be paid by Tenant as
provided in Article 21.




     Section 7.3 Interruptions Due to Repairs. Landlord reserves the right to make all
changes, alterations, additions, improvements, repairs or replacements to the Building, including
the Building Systems which provide services to Tenant, as Landlord deems necessary or desirable,
provided that in no event shall the level of any Building service decrease in any material respect
from the level required of Landlord in this Lease as a result thereof (other than temporary changes
in the level of such services during the performance of any such work by Landlord), nor shall there
be a denial of Tenant’s access to the Premises. Landlord shall use reasonable efforts to minimize
interference with Tenant’s use and occupancy of the Premises during the making of such changes,
alterations, additions, improvements, repairs or replacements, provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever, unless Tenant shall bear and pay in full
such overtime or premium pay rates, overtime costs, and other additional expenses, to the extent
same exceed Landlord’s ordinary, non-overtime, non-premium pay rates, costs and expenses. There
shall be no Rent abatement or allowance to Tenant for a diminution of rental value, no actual or
constructive eviction of Tenant, in whole or in part, no relief from any of Tenant’s other
obligations under this Lease, and no liability on the part of Landlord, by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or others making, or failing to make,
any repairs, alterations, additions or improvements in or to any portion of the Building or the
Premises, or in or to fixtures, appurtenances or equipment therein; provided, however, that
Landlord shall be responsible for repairing any damage to the Premises to the extent actually
caused by Landlord, its employees or contractors, in connection with the performance by Landlord of
any repairs, alterations, additions or improvements as provided herein.



ARTICLE 8




INCREASES IN REAL ESTATE TAXES AND OPERATING EXPENSES




     Section 8.1 Definitions. As used in this Article:



          (a) “Base Expenses” means the Operating Expenses payable for the Base Operating Year.




          (b) Intentionally omitted




          (c) “Computation Year” means each calendar year in which any part of the Term occurs
and, in the case of a termination of this Lease pursuant to Article 19, in which any part
of the Term would have occurred except for such termination.




          (d) “Landlord’s Statement” means an instrument or instruments containing a comparison
of one or both of (i) the Base Taxes and the Taxes for any Tax Year, and (ii) the Base Expenses
and the Operating Expenses for any Computation Year.




11









 








          (e) “Operating Expenses” means the costs and expenses (and taxes, if any, thereon)
paid or incurred by or on behalf of Landlord and/or its Affiliates with respect to the ownership,
operation, maintenance and repair of the Real Property, including the costs incurred for (i) air
conditioning, ventilation, and heating; (ii) interior and exterior cleaning and rubbish removal;
(iii) window washing; (iv) elevators and escalators; (v) hand tools and other movable equipment;
(vi) porter service; (vii) electricity, gas, oil, steam, water rates, sewer rents and other
utilities; (viii) association fees and dues; (ix) insurance premiums; (x) supplies; (xi) wages,
salaries, disability benefits, pensions, hospitalization, retirement plans, severance packages and
group insurance for employees of Landlord, up to and including the level of building managers and
their immediate supervisors, (xii) uniforms and working clothes for such employees and the cleaning
thereof; (xiii) expenses imposed pursuant to any collective bargaining agreement with respect to
such employees; (xiv) payroll, social security, unemployment and other similar taxes with respect
to such employees; (xv) sales, use and similar taxes; (xvi) vault charges; (xvii) franchise and
license fees; (xviii) charges of independent contractors performing work in connection with the
operation, maintenance and repair of the Real Property; (xix) legal, accounting and other
professional fees; (xx) installation, operation and maintenance of holiday decorations; (xxi)
landscaping costs; (xxii) management fees; (xxiii) the annual depreciation or amortization, on a
straight-line basis over such period as shall be appropriate under generally acceptable accounting
principals (with interest on the unamortized portion at the Base Rate plus 2 percent per annum), of
any capital costs incurred after the Base Operating Year for any equipment, device or other
improvement made or acquired (provided, however, that capital costs incurred in order to comply
with Requirements shall be includable only to the extent required by Requirements which are enacted
or imposed after the date of this Lease, or any modification, amendment or re-interpretation of
currently existing Requirements); and (xxiv) protection and security services.




          (f) Operating Expenses shall not include (1) Taxes (including without limitation legal fees
included in the definition of Taxes), special assessments and franchise, income or any other taxes
imposed upon or measured by the income or profits of Landlord; (2) except for depreciation and
amortization specifically included in Operating Expenses as provided above, the costs of all items
which should be capitalized in accordance with generally accepted accounting practices; (3) the
costs of all services furnished to any other tenant of the Building on a “rent inclusion” basis
which are not provided to Tenant on such basis; (4) the costs of all work or services performed for
any tenant in the Building (including Tenant) at such tenant’s cost and expense; (5) mortgage
amortization and interest; (6) leasing commissions; (7) allowances, concessions and other costs of
tenant installations and decorations incurred in connection with preparing space for any tenant in
the Real Property, including workletters and concessions; (8) rent payable under Superior Leases,
if any; (9) wages, salaries and benefits paid to any employees of Landlord and Landlord’s Agent,
above the level of the immediate supervisors of building managers; (10) legal and accounting fees
relating to (i) disputes or negotiations with tenants, prospective tenants or other occupants of
the Real Property, (ii) disputes or negotiations with purchasers, prospective purchasers,
mortgagees or prospective mortgagees of the Building or any part thereof, or (iii) negotiations of
leases, contracts of sale or mortgages; (11) costs which are reimbursed by insurance, warranty or
condemnation proceeds, or which are reimbursable by Tenant or other tenants or any other Person
other than pursuant to an expense escalation clause;




12









 







(12) costs in the nature of penalties or fines; (13) the costs of all services, supplies and
repairs paid to any Affiliate or subsidiary of Landlord or Landlord’s Agent materially in excess of
the costs that would be payable in an “arm’s length” or unrelated situation; (14) advertising
expenses in connection with leasing of the Real Property; (15) the costs of installing, operating
and maintaining a specialty improvement, such as a cafeteria, lodging or private dining facility,
or an athletic, luncheon or recreational club, unless Tenant is permitted to make use of any such
facility without additional cost or on a subsidized basis consistent with other users; (16) the
costs or expenses (including fines, interest, penalties and legal fees) arising out of Landlord’s
failure to timely pay Operating Expenses or Taxes; and (17) the costs incurred in connection with
the removal, encapsulation or other treatment of any Hazardous Materials classified as such and
existing in the Premises as of the date hereof and required to be removed, encapsulated or treated
under applicable Requirements in effect as of the date hereof.




          (g) “Taxes” means the taxes and assessments imposed upon the Real Property, including
assessments made as a result of the Real Property or any part thereof being within a business
improvement district, other than any interest or penalties imposed in connection therewith, and all
expenses, including fees and disbursements of counsel and experts, reasonably incurred by Landlord
in connection with any application for a reduction in the assessed valuation for the Real Property
or for a judicial review thereof (but in no event shall such expenses be included in Base Taxes).
If due to a future change in the method of taxation any franchise, income, profit or other tax
shall be levied in substitution in whole or in part for or in lieu of any tax which would otherwise
constitute a Tax, such franchise, income, profit or other tax shall be deemed to be a Tax for the
purposes of this Lease. Interest or penalties incurred by Landlord as a result of Landlord’s late
payment of Taxes shall not be included in “Taxes.” “Taxes” shall also include any occupancy or
rent tax now in effect or hereafter enacted and applicable to Tenant’s occupancy of the Premises
imposed upon Landlord or payable by Landlord.




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




     Section 8.2 Tax Payments. (a) If the Taxes for any Tax Year exceed the Base Taxes,
Tenant shall pay to Landlord, as Additional Rent with respect to such Tax Year, an amount
(“Tenant’s Tax Payment”) equal to Tenant’s Proportionate Share of the amount by which the
Taxes for such Tax Year exceed the Base Taxes. Landlord shall furnish to Tenant, prior to the
commencement of each Tax Year, a Landlord’s Statement setting forth Landlord’s estimate of Tenant’s
Tax Payment for such Tax Year. Tenant shall pay to Landlord on the first day of the June preceding
such Tax Year and the first day of December of such Tax Year (each a “Payment Date”) of
such Tax Year, an amount equal to one-half (2) of Landlord’s estimate of Tenant’s Tax Payment
for such Tax Year. If Landlord shall not furnish any such estimate for a Tax Year or if Landlord
shall furnish any such estimate for a Tax Year subsequent to the commencement thereof, then (x)
until the first Payment Date following the date on which such estimate is furnished to Tenant,
Tenant shall pay to Landlord on each Payment Date, an amount equal to the amount due from Tenant on
the immediately preceding Payment Date; (y) after such estimate is furnished to Tenant, if any
Tenant’s Tax Payment previously made was greater or less than the



13









 







Tenant’s Tax Payment to be made in accordance with such estimate, then (1) if there is a
deficiency, Tenant shall pay the amount thereof to Landlord within ten (10) Business Days after
such estimate is furnished to Tenant, or (2) if there is an overpayment, Landlord shall credit such
overpayment against subsequent installments of Rent, unless the Term has expired, in which event
Landlord shall refund such overpayment to Tenant within thirty (30) days after the issuance of such
estimate, provided that if Tenant is in default under this Lease and there are amounts due and
payable to Landlord hereunder, then Landlord shall refund such overpayment to Tenant to the extent
in excess of any amounts claimed to be in default hereunder within such thirty (30) day period and
once all defaults under this Lease are cured and there are no amounts due and payable to Landlord
hereunder, Landlord shall refund any remaining portion of such overpayment to Tenant within thirty
(30) days; and (z) on the first Payment Date following the date on which such estimate is furnished
to Tenant, Tenant shall make the Tenant’s Tax Payment in accordance with the terms set forth above.
Landlord may, during each Tax Year, furnish to Tenant a revised Landlord’s Statement of Landlord’s
good faith estimate of Tenant’s Tax Payment for such Tax Year, and in such case, Tenant’s Tax
Payment for such Tax Year shall be adjusted and any deficiencies paid or overpayments credited, as
the case may be, substantially in the same manner as provided in the preceding sentence. After the
end of each Tax Year, Landlord shall furnish to Tenant a Landlord’s Statement of Taxes for such Tax
Year, and (A) if such Landlord’s Statement shall show that the sums so paid by Tenant were less
than Tenant’s Tax Payment for such Tax Year, Tenant shall pay to Landlord the amount of such
deficiency in Tenant’s Tax Payment within ten (10) Business Days after such Landlord’s Statement is
furnished to Tenant, or (B) if such Landlord’s Statement shall show that the sums so paid by Tenant
were more than Tenant’s Tax Payment for such Tax Year, Landlord shall credit such overpayment in
Tenant’s Tax Payment against subsequent installments of Rent payable by Tenant, unless the Term has
expired, in which event Landlord shall refund such overpayment to Tenant within thirty (30) days
after the issuance of such Landlord’s Statement, provided that if Tenant is in default under this
Lease and there are amounts due and payable to Landlord hereunder, then Landlord shall refund such
overpayment to Tenant to the extent in excess of any amounts claimed to be in default hereunder
within such thirty (30) day period and once all defaults under this Lease are cured and there are
no amounts due and payable to Landlord hereunder, Landlord shall refund any remaining portion of
such overpayment to Tenant within thirty (30) days. If there shall be any increases in the Taxes
for any Tax Year, whether during or after such Tax Year, or if there shall be any decrease in the
Taxes for any Tax Year, whether during or after such Tax Year, Tenant’s Tax Payment for such Tax
Year shall be appropriately adjusted and any deficiencies paid or overpayments credited, as the
case may be, substantially in the same manner as provided in the preceding sentence. If the Base
Taxes are reduced at any time during the Term as a result of a reassessment or otherwise, then
Tenant shall pay to Landlord, within ten (10) days of Tenant’s receipt of written notice from
Landlord of such reduction, an amount equal to the difference between (a) the amount of all of
Tenant’s Tax Payments that would theretofore have been payable had the reduced amount of Base Taxes
been used in calculating such Tenant’s Tax Payment and (b) all of Tenant’s Tax Payments theretofore
actually made by Tenant. In the event that during the Term the City of New York changes the dates
upon which Taxes are due, the Payment Dates shall be such dates upon which real estate taxes are
payable to the City of New York. If, during the Term, Landlord shall elect to collect Tenant’s Tax
Payments, in full or in quarterly or bi-annual or other installments on any other



14









 







date or dates than as presently required (but not more frequently than monthly), then
following Landlord’s notice to Tenant, Tenant’s Tax Payments shall be correspondingly revised.



          (b) Tenant shall be obligated to pay Tenant’s Tax Payment regardless of whether Tenant may be
exempt from the payment of taxes as the result of any reduction, abatement, or exemption from Taxes
granted or agreed to by any Governmental Authority, or by reason of Tenant’s diplomatic status or
other tax-exempt status. The benefit of any discount for any early payment of Taxes shall accrue
solely to the benefit of Landlord.




          (c) Tenant shall not (and hereby waives any and all rights it may now or hereafter have to)
institute or maintain any action, proceeding or application in any court or other body having the
power to fix or review assessed valuations, for the purpose of reducing Taxes, and the filing of
any such proceeding by Tenant without Landlord’s consent shall be a default hereunder.




          (d) Tenant shall pay any occupancy or rent tax now in effect or hereafter enacted and
applicable to Tenant’s occupancy of the Premises imposed by its terms upon Tenant.




     Section 8.3 Operating Expense Payments. (a) If the Operating Expenses for any
Computation Year exceed the Base Expenses, Tenant shall pay to Landlord, as Additional Rent with
respect to such Computation Year, an amount (“Tenant’s Operating Payment”) equal to
Tenant’s Proportionate Share of the amount by which the Operating Expenses for such Computation
Year exceed the Base Expenses. For each Computation Year, Landlord shall furnish to Tenant a
statement setting forth Landlord’s estimate of Tenant’s Operating Payment for such Computation
Year. Tenant shall pay to Landlord, on the first day of each month during such Computation Year,
an amount equal to one-twelfth (1/12th) of Landlord’s estimate of Tenant’s Operating
Payment for such Computation Year. If Landlord does not furnish any such estimate for a
Computation Year until after the commencement thereof, then (A) until the first day of the month
following the month in which such estimate is furnished to Tenant, Tenant shall pay to Landlord on
the first day of each month an amount equal to the monthly sum payable by Tenant to Landlord under
this Section 8.3 during the last month of the preceding Computation Year, (B) promptly
after such estimate is furnished to Tenant or together therewith, Landlord shall give notice to
Tenant stating whether the installments of Tenant’s Operating Payment previously made for such
Computation Year were greater or less than the installments of Tenant’s Operating Payment to be
made for such Computation Year in accordance with such estimate, and (1) if there shall be a
deficiency, Tenant shall pay the amount thereof within ten (10) Business Days after demand therefor
or (2) if there shall have been an overpayment, Landlord shall credit the amount thereof against
subsequent installments of Rent due hereunder, unless the Term has expired, in which event Landlord
shall refund such overpayment to Tenant within thirty (30) days after the issuance of such notice,
provided that if Tenant is in default under this Lease and there are amounts due and payable to
Landlord hereunder, then Landlord shall refund such overpayment to Tenant to the extent in excess
of any amounts claimed to be in default hereunder within such thirty (30) day period and once all
defaults under this Lease are cured and there are no amounts due and payable to Landlord hereunder,
Landlord shall refund any remaining portion of such overpayment to Tenant within thirty (30) days,
and (C) on the first day of the month following the month in which such estimate is furnished to
Tenant, and on the first day of each month thereafter throughout the remainder of such Computation
Year, Tenant



15









 







shall pay to Landlord an amount equal to one-twelfth (1/12th) of Tenant’s Operating
Payment shown on such estimate.



          (b) Landlord shall furnish to Tenant a Landlord’s Statement of Operating Expenses for each
Computation Year with reasonable promptness after the expiration of such Computation Year. If such
Landlord’s Statement shows that the sums paid by Tenant under Section 8.3(a) exceeded the
actual amount of Tenant’s Operating Payment for such Computation Year, Landlord shall credit the
amount of such excess against subsequent installments of Rent due hereunder unless the Term has
expired, in which event Landlord shall refund such overpayment to Tenant within thirty (30) days
after the issuance of such Landlord’s Statement, provided that if Tenant is in default under this
Lease and there are amounts due and payable to Landlord hereunder, then Landlord shall refund such
overpayment to Tenant to the extent in excess of any amounts claimed to be in default hereunder
within such thirty (30) day period and once all defaults under this Lease are cured and there are
no amounts due and payable to Landlord hereunder, Landlord shall refund any remaining portion of
such overpayment to Tenant within thirty (30) days. If Landlord’s Statement for such Computation
Year shows that the sums so paid by Tenant were less than Tenant’s Operating Payment for such
Computation Year, Tenant shall pay the amount of such deficiency within ten (10) Business Days
after Tenant’s receipt of Landlord’s Statement.




     Section 8.4 Certain Adjustments. (a) If the Rent Commencement Date shall be a day
other than January 1 or the Expiration Date shall be a day other than December 31, or if there is
any abatement of Fixed Rent payable under this Lease (other than any abatement under Article
1 hereof) or any termination of this Lease (other than a termination pursuant to Article
19), or if there is any increase or decrease in Tenant’s Area, then in each such event in
applying the provisions of this Article with respect to the Tax Year or Computation Year in which
the event occurred, appropriate adjustments shall be made to reflect the result of such event on a
basis consistent with the principles underlying the provisions of this Article, taking into
consideration (i) the portion of such Tax Year or Computation Year, as the case may be, which shall
have elapsed prior to or after such event, (ii) the rentable area of the Premises affected thereby,
and (iii) the duration of such event.



          (b) If during all or any part of any Computation Year (including the Base Operating Year),
Landlord is not furnishing any particular work or service (the cost of which, if performed by
Landlord, would constitute an Operating Expense) to a rentable portion of the Building which is not
then leased, Operating Expenses for such period shall include an amount equal to the costs and
expenses which would reasonably have been incurred for such work or service during such period by
Landlord if the Building had been one hundred percent (100%) leased and occupied.




     Section 8.5 Non-Waiver. Landlord’s failure to render a Landlord’s Statement on a
timely basis with respect to any Tax Year or Computation Year shall not prejudice Landlord’s right
to thereafter render a Landlord’s Statement with respect to such Tax Year or Computation Year or
any subsequent Tax Year or Computation Year, nor shall the rendering of a Landlord’s Statement
prejudice Landlord’s right to thereafter render a corrected Landlord’s Statement for any Tax Year
or Computation Year; provided, that Landlord shall not have the right to render a



16









 







Landlord’s Statement, or a corrected Landlord’s Statement, after the expiration of three (3)
years after the expiration or sooner termination of the Term. Anything in this Lease to the
contrary notwithstanding, but subject to the provisions of the immediately preceding sentence, the
refund by Landlord to Tenant of any sums on account of overpayment, alleged overpayment, or
believed overpayment on account of Tenant’s Tax Payment and/or Tenant’s Operating Payment shall not
prejudice Landlord’s right thereafter to render a corrected estimate or Landlord’s Statement and
collect from Tenant any sums due Landlord in accordance therewith.



     Section 8.6 Tenant Disputes. Each Landlord’s Statement sent to Tenant shall be
conclusively binding upon Tenant unless Tenant shall (i) pay to Landlord when due the amount set
forth in such statement, without prejudice to Tenant’s right to dispute such statement, and (ii)
within ninety (90) days after such statement is sent, send a notice to Landlord objecting to such
statement and specifying the reasons for Tenant’s claim that such statement is incorrect. Tenant
covenants and agrees that Tenant will not employ, in connection with any dispute under this Lease,
any Person who is to be compensated, in whole or in part, on a contingency fee basis. If the
parties are unable to resolve any such dispute within thirty (30) days following the giving of
Tenant’s notice of objection, either party may refer the issues raised to an independent firm of
certified public accountants selected by Landlord and reasonably acceptable to Tenant, and the
decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection
therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree
not to disclose to any third party any of the information obtained in connection with such review,
or the substance of any admissions or stipulations by any party in connection therewith, or of any
resulting reconciliation, compromise or settlement. Tenant shall pay the fees and expenses
relating to such procedure, unless such accountants shall determine that Landlord overstated the
Operating Expenses by more than five percent (5%) for such Computation Year, as finally determined,
in which case Landlord shall pay such fees and expenses.



ARTICLE 9




REQUIREMENTS OF LAW




     Section 9.1 (a) Tenant’s Compliance. Tenant, at its expense, shall comply (or cause
compliance) with all Requirements applicable to the Premises (and to areas outside of the Premises,
if resulting from any act or omission of Tenant, including, without limitation, any work undertaken
by or on behalf of Tenant), regardless of whether imposed by their terms upon Landlord or Tenant
provided however, that Tenant shall not be obligated to comply with any Requirement requiring any
structural alteration to the Premises unless the application of such Requirement arises from (i)
Tenant’s manner of use or occupancy of the Premises other than its mere use for executive and
general offices, (ii) any cause or condition created by or on behalf of Tenant or any Tenant Party
(including any Alterations), (iii) any wrongful act or wrongful omission by Tenant or any Tenant
Party or (iv) the breach of any of Tenant’s obligations under this Lease. If Tenant obtains
knowledge of any failure to comply with any Requirements applicable to the Premises, Tenant shall
give Landlord prompt notice thereof. All repairs and alterations, whether ordinary or
extraordinary, required to be made to cause the Premises to



17









 




comply with any Requirements shall be made by Tenant, at Tenant’s expense and in compliance
with Article 5 if such repairs or alterations are nonstructural, do not affect any Building
System, and do not involve the performance of work outside of the Premises, or by Landlord, at
Tenant’s expense, if such repairs or alterations are structural, affect any Building System, or
involve the performance of work outside the Premises.




          (b) Hazardous Materials. Tenant or any Tenant Party shall not (i) cause or wrongfully
permit any Hazardous Materials to be brought into or onto the Real Property, (ii) cause or permit
the storage or use of Hazardous Materials in any manner not permitted by any Requirements, or (iii)
cause or permit the escape, disposal or release of any Hazardous Materials within or in the
vicinity of the Real Property. Nothing herein shall be deemed to prevent Tenant’s use of any
Hazardous Materials customarily used in the ordinary course of office work, provided such use is in
accordance with all Requirements. Tenant shall be responsible, at its expense, for all matters
directly or indirectly based on, or arising or resulting from, the presence of Hazardous Materials
in the Premises, the Building or the Real Property, which is caused or permitted by Tenant or any
Tenant Party. Tenant shall provide to Landlord copies of all communications received by Tenant or
any Tenant Party with respect to any Requirements relating to Hazardous Materials, and any claims
made in connection therewith. Landlord or its agents may perform environmental inspections of the
Premises at any time after reasonable written notice to Tenant.




          (c) Landlord’s Insurance. Tenant shall not cause or wrongfully permit any action or
condition that would (i) invalidate or conflict with Landlord’s insurance policies, (ii) violate
applicable rules, regulations and guidelines of the Fire Department, Fire Insurance Rating
Organization or any other authority having jurisdiction over the Real Property, (iii) cause an
increase in the premiums for fire insurance then covering the Building over that payable with
respect to comparable first-class office buildings, or (iv) result in insurance companies of good
standing refusing to insure the Building or any property therein in amounts and against risks as
reasonably determined by Landlord. If the fire insurance premiums increase as a result of Tenant’s
failure to comply with the provisions of this Article, Tenant shall promptly cure such failure and
shall reimburse Landlord for the increased fire insurance premiums paid by Landlord as a result of
such failure by Tenant. In any action or proceeding to which Landlord and Tenant are parties, a
schedule or “make up” of rates for the Building or the Premises issued by the appropriate Fire
Insurance Rating Organization, or other body fixing such fire insurance rates, shall be conclusive
evidence of the fire insurance rates then applicable to the Building.




     Section 9.2 Fire Alarm System; Sprinklers. As part of Landlord’s Work, Landlord shall
install a sprinkler system and fire-alarm and life-safety system serving the Premises. Tenant, at
Tenant’s expense, shall thereafter maintain in good order and repair such sprinkler system and
fire-alarm and life-safety system. Such maintenance shall be performed by Tenant in accordance with
this Lease, the Rules and Regulations and all Requirements. If and to the extent that the Fire
Insurance Rating Organization or any Governmental Authority or any of Landlord’s insurers requires
or recommends any modifications or Alterations be made or any additional equipment be supplied in
connection with the sprinkler system or fire-alarm and life-safety system serving the Building or
the Premises by reason of Tenant’s business, or the location of the partitions,



18









 







trade fixtures, or other contents of the Premises, Landlord (to the extent such modifications
or Alterations are structural, affect any Building System or involve the performance of work
outside the Premises), or Tenant (to the extent such modifications or Alterations are
nonstructural, do not affect any Building System and do not involve the performance of work
outside the Premises) shall make such modifications or Alterations, and supply such additional
equipment, in either case at Tenant’s expense.



     Section 9.3 Limitations on Rent. If at any time during the Term, the Rent is not
fully collectible by reason of any Requirements, Tenant shall take such other steps as Landlord may
reasonably request, and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally permissible (but not in
excess of the Rent reserved under this Lease). Upon the termination of such restriction during the
Term, Tenant shall pay to Landlord, in addition to the Rent for the period following such
termination, if legally permissible, the portion of Rent which would have been paid pursuant to
this Lease but for such legal restriction, less the Rent paid by Tenant to Landlord while such
restriction was in effect, together with interest thereon at the Base Rate.



ARTICLE 10




QUIET ENJOYMENT




          Provided this Lease is in full force and effect, Tenant may peaceably and quietly enjoy the
Premises without hindrance by Landlord or any Person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease and all Superior Leases and Mortgages.




ARTICLE 11




SUBORDINATION




     Section 11.1 Subordination and Attornment. (a) This Lease and Tenant’s rights and
the rights of any Tenant Party hereunder are subject and subordinate to all Mortgages and Superior
Leases. At the request of any Mortgagee or Lessor, Tenant shall attorn to such Mortgagee or
Lessor, its successors in interest or any purchaser in a foreclosure sale.



          (b) If a Lessor or Mortgagee or any other Person shall succeed to the rights of Landlord under
this Lease, whether through possession or foreclosure action, or the delivery of a new lease or
deed, then at the request of the successor landlord and upon such successor landlord’s written
agreement to accept Tenant’s attornment and to recognize Tenant’s interest under this Lease, Tenant
shall be deemed to have attorned to and recognized such successor landlord as Landlord under this
Lease. The provisions of this Article 11 are self-operative and require no further
instruments to give effect hereto; provided, however, that Tenant shall promptly execute and
deliver any instrument that such successor landlord may reasonably request (1) evidencing such
attornment, (2) setting forth the terms and conditions of Tenant’s tenancy, and (3) containing such
other terms and conditions as may be required by such Mortgagee or Lessor, provided such terms and
conditions do not increase the Rent, do not




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increase Tenant’s non-Rent obligations except to a de minimis extent or adversely affect
Tenant’s rights under this Lease except to a de minimis extent. Upon such attornment, this Lease
shall continue in full force and effect as a direct lease between such successor landlord and
Tenant upon all of the terms, conditions and covenants set forth in this Lease except that such
successor landlord shall not be:





          (i) liable for any act or omission of Landlord (except to the extent such act or
omission is a default under this Lease and continues beyond the date when such successor
landlord succeeds to Landlord’s interest and Tenant gives notice of such act or omission to
such successor landlord);




          (ii) subject to any defense, claim, counterclaim, set-off or offset which Tenant may
have against Landlord;




          (iii) bound by any prepayment of more than one (1) month’s Rent to any prior landlord;




          (iv) bound by any obligation to make any payment to Tenant which was required to be
made prior to the time such successor landlord succeeded to Landlord’s interest;




          (v) bound by any obligation to perform any work or to make improvements to the Premises
except for (A) repairs and maintenance required to be made by the landlord under this Lease,
and (B) repairs to the Premises as a result of damage by fire or other casualty, or partial
condemnation, pursuant to the provisions of this Lease, but only to the extent that such
repairs can reasonably be made from the net proceeds of any insurance or condemnation awards
actually made available to such successor landlord;




          (vi) bound by any modification, amendment or renewal of this Lease made without the
consent of any Lessor or Mortgagee of which Tenant has been provided notice; or




          (vii) obligated to return any security deposit not actually received by any successor
landlord.



          (c) Any Mortgagee may elect that this Lease shall have priority over the Mortgage that it
holds and, upon notification to Tenant by such Mortgagee, this Lease shall be deemed to have
priority over such Mortgage, regardless of the date of this Lease. In connection with any
financing of the Real Property, or of the interest of the lessee under any Superior Lease, Tenant
shall consent to any reasonable modifications of this Lease requested by any lender, provided such
modifications do not increase the Rent, increase Tenant’s non-Rent obligations except to a de
minimis extent, or adversely affect Tenant’s rights under this Lease except to a de minimis extent.
Upon notice to Tenant from any Mortgagee or Lessor that Landlord’s license to collect Rent has
been revoked, Tenant shall be authorized to pay Rent to such Mortgagee or Lessor, as the case may
be.





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     Section 11.2 Termination by Tenant. As long as any Superior Lease or Mortgage shall
exist, Tenant shall not seek to terminate this Lease by reason of any act or omission of Landlord
(i) until Tenant shall have given notice of such act or omission to all Lessors and/or Mortgagees,
and (ii) until a reasonable period of time shall have elapsed following the giving of notice of
such default and the expiration of any applicable notice or grace periods (unless such act or
omission is not capable of being remedied within a reasonable period of time) during which period
such Lessors and/or Mortgagees shall have the right, but not the obligation, to remedy such act or
omission. If any Lessor or Mortgagee elects to remedy such act or omission of Landlord, Tenant
shall not seek to terminate this Lease so long as such Lessor or Mortgagee is proceeding with
reasonable diligence to effect such remedy.



     Section 11.3 Future Condominium Declaration. This Lease and Tenant’s rights hereunder
are and will be subject and subordinate to any condominium declaration, by-laws and other
instruments (collectively, the “Declaration”) which may be recorded in order to subject the
Building to a condominium form of ownership pursuant to Article 9-B of the New York Real
Property Law or any successor statute, provided that the Declaration does not by its terms increase
the Rent, increase Tenant’s non-Rent obligations except to a de minimis extent, or adversely affect
Tenant’s rights under this Lease except to a de minimis extent. At Landlord’s request, and subject
to the foregoing proviso, Tenant will execute and deliver to Landlord an amendment of this Lease
confirming such subordination and modifying this Lease to conform to such condominium regime.



     Section 11.4 Applicability. The provisions of this Article shall (i) inure to the
benefit of Landlord, any future owner of the Real Property, any Lessor or Mortgagee and any
successor or assign thereof, and (ii) apply notwithstanding that, as a matter of law, this Lease
may terminate upon the termination of any Superior Lease or the foreclosure of any Mortgage.



ARTICLE 12




SERVICES




     Section 12.1 Elevators. Landlord shall provide passenger elevator service to each
floor of the Premises which is above the street floor of the Building during Business Hours on
Business Days, with at least one elevator being subject to call at all other times. In addition,
Landlord shall make available to Tenant at least one freight elevator serving the Premises upon
Tenant’s prior request, on a non-exclusive “first come, first serve” basis with other Building
tenants, on all Business Days from 8:00 a.m. to 12:00 noon, and from 1:00 p.m. to 5:00 p.m.



     Section 12.2 Heating, Ventilation and Air Conditioning. (a) Landlord shall furnish
to the Premises heating, ventilation and air-conditioning (“HVAC”), in accordance with the
standards set forth in Exhibit F, on all Business Days during Business Hours. Landlord
shall have access to all air-cooling, fan, ventilating and machine rooms and electrical closets and
all other mechanical installations of Landlord (collectively, the “Mechanical Areas”), and
Tenant shall not construct partitions or other obstructions which may interfere with Landlord’s
access thereto or the moving of Landlord’s equipment to and from the Mechanical Areas. Neither
Tenant nor any Tenant Party shall at any time enter the Mechanical Areas or tamper with, adjust,



21









 




or otherwise affect the Mechanical Areas. Tenant shall not install any supplementary or
auxiliary HVAC equipment to serve the Premises without Landlord’s prior consent in each instance.




          (b) Landlord shall not be responsible if the normal operation of the Building System providing
HVAC to the Premises (the “HVAC System”) shall fail to provide cooled or heated air, as the
case may be, in accordance with the specifications set forth in Exhibit F by reason of (i)
any machinery or equipment installed by or on behalf of Tenant, which shall have an electrical load
in excess of the average electrical load and human occupancy factors for the HVAC System as
designed, as the case may be, or (ii) any rearrangement of partitioning or other Alterations made
or performed by or on behalf of Tenant. All blinds and shades shall be subject to Landlord’s
approval. Tenant shall lower the blinds when necessary because of the sun’s position, whenever the
HVAC System is in operation or when and as reasonably required by any Requirements. Tenant at all
times shall cooperate fully with Landlord and shall abide by the rules and regulations which
Landlord may reasonably prescribe for the proper functioning and protection of the HVAC System.




     Section 12.3 Overtime Building Services. The Rent does not reflect or include any
charge to Tenant for the furnishing of any building services such as elevator service or HVAC other
than to the extent described in Sections 12.1 and 12.2 above. Landlord shall not
be required to furnish any building services at any times (“Overtime Periods”) other than
the times specifically described in this Lease for the provision of such building services unless
Tenant delivers notice to Landlord’s property management office serving the Building requesting
such services at least 24 hours prior to the time at which such services are to be provided, but
Landlord shall use reasonable efforts (without obligation to incur any additional cost) to arrange
for building services during Overtime Periods on such shorter notice as Tenant shall provide. If
Landlord furnishes elevator service, HVAC or any other building service to the Premises during
Overtime Periods, Tenant shall pay to Landlord Landlord’s then established rates for supplying such
overtime building services in the Building. Landlord and Tenant acknowledge that as of the date of
this Lease Landlord’s charge for overtime HVAC service is $25.00 per hour; and Tenant acknowledges
and agrees that such charge shall be subject to increase by Landlord from time to time, in
Landlord’s discretion, provided that such increased charges shall be reasonably competitive with
rates for similar service for similar buildings in mid-town Manhattan, New York City.



     Section 12.4 Cleaning. Landlord shall cause the Premises (excluding any portions
thereof used for the storage, preparation, service or consumption of food or beverages, or as an
exhibition area or classroom, or for storage, shipping room, mail room or similar purposes, or for
private bathrooms, showers or exercise facilities, or as a trading floor, or primarily for
operation of computer, data processing, reproduction, duplicating or similar equipment) to be
cleaned, substantially in accordance with the standards set forth in Exhibit G. Any areas
of the Premises requiring cleaning which Landlord is not required to clean under this Section
12.4, and any additional cleaning of any portion of the Premises requested by Tenant, shall be
done, at Tenant’s expense, by Landlord’s employees or Landlord’s contractor, at rates which shall
be competitive with rates of other cleaning contractors providing services to first-class office



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buildings in midtown Manhattan. Landlord’s cleaning personnel shall have access to the Premises at all
times except between 7:00 A.M. and 7:00 P.M. on Business Days.




     Section 12.5 Water. Landlord, at Landlord’s expense, shall provide hot and cold water
for drinking, cleaning and lavatory purposes. If Tenant requires or uses water or steam for any
additional purposes, Landlord may install a meter to measure the water or steam furnished. Tenant
shall pay the cost of such installation, and for all maintenance, repairs and replacements thereto,
and for the reasonable charges of Landlord for the water or steam furnished. Tenant shall also pay
Landlord’s reasonable charge for any required pumping or heating thereof, and any sewer rent, tax
and/or charge now or hereafter assessed or imposed upon the Premises or the Real Property pursuant
to any Requirements. If any tax is imposed upon Landlord’s receipts from the sale or resale of
water or steam to Tenant, Tenant shall reimburse Landlord for such tax, if and to the extent
permitted by law.



     Section 12.6 Refuse and Rubbish Removal. Landlord shall provide refuse and rubbish
removal services at the Premises for ordinary office refuse and rubbish pursuant to regulations
reasonably established by Landlord. Tenant shall pay to Landlord, within ten (10) Business Days
after delivery of an invoice therefor, Landlord’s reasonable charge for such removal to the extent
that the refuse generated by Tenant exceeds, in Landlord’s reasonable judgment, the refuse and
rubbish customarily generated by executive and general office tenants. Tenant shall not dispose of
any refuse and rubbish in the public areas of the Real Property or any part thereof, and if any
Tenant Party does so, Tenant shall be liable for Landlord’s reasonable charge for such removal.
Tenant shall cause all Tenant Parties to observe such additional rules and regulations regarding
rubbish removal and/or recycling as Landlord may, from time to time, reasonably impose, provided
that Tenant is given reasonable prior written notice of the imposition thereof.



     Section 12.7 Listings in Building Directory. (a) Landlord shall, at the request of
Tenant, maintain listings on the directory located in the Building lobby of the names of Tenant and
any officers or employees of Tenant, provided that the number of listings shall be in the same
proportion to the capacity of the directory as Tenant’s Area is to the rentable square foot area of
the Building. Tenant shall deliver to Landlord, on or prior to the Commencement Date, a list of
all names to be included in the directory. Tenant may deliver revised listings to Landlord from
time to time throughout the Term (but Landlord shall not be obligated to revise the directory more
often than once a month), and Tenant shall pay Landlord’s then established charge therefor.



          (b) Tenant, at its expense, shall have the right to install signs in the elevator lobby of the
34th Floor of the Building displaying the names of Tenant, permitted subtenants, and
permitted Desk Space Users. Such signs shall be subject to the reasonable approval of Landlord as
to number, location, size, color, style, and content.




     Section 12.8 Service Interruptions. (a) Landlord reserves the right to suspend any
Building service when necessary, by reason of Unavoidable Delays, accidents or emergencies, or for
repairs, alterations or improvements which, in Landlord’s reasonable judgment, are necessary or
appropriate, until such Unavoidable Delay, accident or emergency shall cease or such repairs,



23









 




alterations or improvements are completed, and Landlord shall not be liable to Tenant for any
interruption, curtailment or failure to supply services. Landlord shall use reasonable efforts to
restore such service, remedy such situation and minimize interference with Tenant’s business,
provided that Landlord shall have no obligation to employ contractors or labor at overtime or other
premium pay rates, or to incur any other overtime costs or additional expenses whatsoever. The
exercise of any such right or the occurrence of any such failure by Landlord shall not (i)
constitute an actual or constructive eviction, in whole or in part, (ii) entitle Tenant to any
compensation, abatement or diminution of Rent, (iii) relieve Tenant from any of its obligations
under this Lease, or (iv) impose any liability upon Landlord by reason of inconvenience to Tenant,
or interruption of Tenant’s business, or otherwise.




          (b) Notwithstanding anything to the contrary contained in any other provision of this Lease,
in the event that (i) Tenant is unable to use the Premises for the ordinary conduct of Tenant’s
business due solely to Landlord’s breach of an obligation under this Lease, other than as a result
of Unavoidable Delays, and such condition continues for a period in excess of fifteen (15)
consecutive days after Tenant gives a notice to Landlord (the “Abatement Notice”) stating
that Tenant’s inability to use the Premises is solely due to such condition, (ii) Tenant does not
actually use or occupy the Premises during such period for the ordinary conduct of Tenant’s
business, and (iii) such condition has not resulted from the negligence or misconduct of Tenant or
any Tenant Party, then, as Tenant’s sole remedy therefor, Rent shall be abated on a per diem basis
for the period commencing on the sixteenth (16th)) day after Tenant gives the
Abatement Notice, and ending on the earlier of (A) the date Tenant reoccupies the Premises for the
ordinary conduct of its business, or (B) the date on which such condition is substantially
remedied.




          (c) Notwithstanding anything to the contrary set forth in Sections 8.1 or 8.7
or elsewhere in this Lease, Landlord makes no representations to Tenant with respect to the
adequacy or effectiveness of any programs, systems, devices or equipment designed to preserve or
enhance the safety or security of the Building, and Landlord will have no liability to Tenant, any
Tenant Party, or any other Person whatsoever with respect thereto.




     Section 12.9 Supplemental HVAC. (a) As part of Landlord’s Work, a supplemental
heating, ventilation and air conditioning system (“Supplemental HVAC”) shall be installed
to service the Premises. Landlord shall provide four and one-half (4.5) tons of condenser water
(the “Water Tonnage”) to Tenant for use in its Supplemental HVAC.



          (b) Tenant shall pay to Landlord, regardless of actual usage, as Additional Rent, for such
condenser water on the first day of each month, the amount which is equal to 1/12th of the Water
Charge for such calendar year. “Water Charge” shall mean (i) for the calendar year 2003, an amount
equal to $500.00 per ton, multiplied by the Water Tonnage, and (ii) for each calendar year
thereafter (including, without limitation, each year during any renewal term of this Lease pursuant
to Article 36 of this Lease): the amount equal to 103% of the Water Charge payable for the
prior calendar year. The Supplemental HVAC shall be installed pursuant to plans and specifications
approved by Landlord in writing. The repair and maintenance of the Supplemental HVAC shall be at
Tenant’s sole cost and expense. Tenant shall not make any changes to the Supplemental HVAC without
Landlord’s prior written consent. Landlord makes no representations that the Supplemental HVAC will
operate as designed or intended.




24









 








          (c) Tenant shall pay to Landlord, as Additional Rent, not later than five (5) days after
demand by Landlord, a one-time charge of $1,500.00 for connection of the Supplemental HVAC System
to the supply of condenser water. If and to the extent that after payment of all costs of
Landlord’s Work, there shall be any unexpended balance of Landlord’s Contribution, then Tenant
shall have the right to apply such balance (to the extent thereof) against such connection charge,
but Tenant shall pay the cost for such connection charge to the extent that the unexpended balance
of Landlord’s Contribution (if any) shall be insufficient therefor.




ARTICLE 13




INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT




     Section 13.1 Tenant’s Insurance. (a) Tenant, at its expense, shall obtain and keep
in full force and effect during the Term:




               (i) a policy of commercial general liability insurance on an occurrence basis against
claims for bodily injury, death and/or property damage occurring in or about the Premises or
the Real Property, under which Tenant is named as the insured and Landlord, Landlord’s
Affiliates and subsidiaries now or hereafter existing, Landlord’s managing agent (if any),
Landlord’s leasing agent (if any), any Lessors, and any Mortgagees, now or hereafter
existing, and their successors and assigns and (provided that Tenant shall not be required
to bear any additional expenses to obtain same) any other parties whose names shall have
been furnished by Landlord to Tenant from time to time are named as additional insureds,
which insurance shall provide primary coverage without contribution from any other insurance
carried by or for the benefit of Landlord, Landlord’s Affiliates and subsidiaries,
Landlord’s managing agent, Landlord’s leasing agent, any Lessors, and any Mortgagees, now or
hereafter existing, and their successors and assigns and such other parties named as
additional insureds; and Tenant agrees to obtain blanket broad-form contractual liability
coverage to insure its indemnity obligations set forth in Article 32 hereof. The
minimum limits of liability shall be a combined single limit with respect to each occurrence
in an amount of not less than $5,000,000.00; provided, however, that Landlord may require
Tenant to increase such coverage, from time to time, to that amount of insurance which in
Landlord’s reasonable judgment is then being customarily required by landlords for similar
office space in first-class buildings in the Borough of Manhattan. If the aggregate limit
applying to the Premises is reduced by the payment of a claim or establishment of a reserve
equal to or greater than fifty percent (50%) of the annual aggregate, Tenant shall
immediately arrange to have the aggregate limit restored by endorsement to the existing
policy or the purchase of an additional insurance policy unless, in Landlord’s reasonable
judgment, Tenant maintains sufficient concurrent excess liability insurance to satisfy the
liability requirements of this Lease without the reinstatement of the aggregate limit;




               (ii) insurance against loss or damage by fire, and such other risks and hazards as are
insurable under then available standard forms of “all risk” property



25









 







insurance policies, insuring Tenant’s Property, and all Alterations and improvements to
the Premises to the extent such Alterations and improvements exceed the cost of the
improvements typically performed in connection with the initial occupancy of tenants in the
Building (hereinafter, “Building Standard Installations”), for the full insurable
value thereof or replacement cost value thereof, whichever is greater, having a deductible
amount, if any, of not more than $100,000.00;




               (iii) during the performance of any Alteration, until completion thereof, Builder’s
risk insurance on an “all risk” basis and on a completed value form including a Permission
to Complete and Occupy endorsement, for full replacement value covering the interest of
Landlord and Tenant (and their respective contractors and subcontractors), any Mortgagee and
any Lessor in all work incorporated in the Building and all materials and equipment in or
about the Premises;




               (iv) Workers’ Compensation Insurance, as required by law;




               (v) New York State disability benefits as required by law;




               (vi) Business Interruption Insurance; and




               (vii) such other insurance in such amounts as Landlord, any Mortgagee and/or any Lessor
may reasonably require from time to time and which is, at the applicable time, generally or
customarily required by landlords in mid-town Manhattan, New York in connection with
buildings similar to the Building.



          (b) All insurance required to be carried by Tenant pursuant to the terms of this Lease (i)
shall contain a provision that (A) no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained, (B) the policy shall
be noncancellable and/or no material change in coverage shall be made thereto unless Landlord,
Lessors and Mortgagees shall have received thirty (30) days’ prior notice of the same, and (C)
Tenant shall be solely responsible for the payment of all premiums under such policies and
Landlord, Lessors and Mortgagees shall have no obligation for the payment thereof (provided,
however, that Tenant shall not be required to name Landlord, Landlord’s Affiliates and
subsidiaries, any Lessors or any Mortgagees as additional insureds on property damage insurance
policies insuring only Tenant’s Property), and (ii) shall be effected under valid and enforceable
policies issued by reputable and independent insurers permitted to do business in the State of New
York, and rated in Best’s Insurance Guide, or any successor thereto (or if there be none, an
organization having a national reputation) as having a Best’s Rating of “A-” and a “Financial Size
Category” of at least “X” or if such ratings are not then in effect, the equivalent thereof or such
other financial rating as Landlord may at any time consider appropriate.




          (c) On or prior to the Commencement Date, Tenant shall deliver to Landlord appropriate
policies of insurance, including evidence of waivers of subrogation, required to be carried by each
party pursuant to this Article. Evidence of each renewal or replacement of a policy shall be
delivered by Tenant to Landlord at least ten (10) days prior to the expiration of such policy. In
lieu of the policies of insurance required to be delivered to Landlord pursuant to


26









 








this Article (the “Policies”), Tenant may deliver to Landlord a certification from
Tenant’s insurance company (on the form currently designated “Acord 27”, or the
equivalent), with such certification evidencing coverage, and which shall expressly provide that
such certification (i) conveys to Landlord and any other named insured and/or additional insureds
thereunder (the “Insured Parties”) all the rights and privileges afforded under the
applicable Policies as primary insurance, and (ii) contains an unconditional obligation of the
insurance company to advise all Insured Parties in writing at least thirty (30) days in advance, of
any termination of or change to the applicable Policies that would affect the interest of any of
the Insured Parties.




     Section 13.2 Waiver of Subrogation. Landlord and Tenant shall each procure an
appropriate clause in or endorsement to any property insurance covering the Premises, the Building
and personal property, fixtures and equipment located therein, wherein the insurance companies
shall waive subrogation or consent to a waiver of right of recovery, and Landlord and Tenant agree
not to make any claim against, or seek to recover from, the other for any loss or damage to its
property or the property of others resulting from fire and other hazards; provided, however, that
the release, discharge, exoneration and covenant not to sue contained herein shall be limited by
and coextensive with the terms and provisions of the waiver of subrogation or waiver of right of
recovery. Tenant acknowledges that Landlord shall not carry insurance on, and (notwithstanding
anything in this Lease or any rule of law to the contrary) shall not be responsible for, (i) damage
to or destruction of any Alterations or improvements to the Premises, to the extent they exceed
Building Standard Installations, (ii) damage to or destruction of Tenant’s Property, and/or (iii)
any loss suffered by Tenant due to interruption of Tenant’s business, in all cases notwithstanding
how any of such damage, destruction or interruption may arise or be caused; and (a) Tenant shall
look solely to Tenant’s insurance policies for the recovery or any and all damages and/or
compensation relating to damage or destruction of Tenant’s Property and/or such Alterations and
improvements, and/or relating to interruption of Tenant’s business, and (ii) Tenant (and not
Landlord) shall be solely responsible for paying and bearing the amounts of any and all
deductibles, exclusions from coverage, and lack of coverage in such insurance policies.



     Section 13.3 Landlord’s Insurance. Landlord shall obtain and maintain in effect such
insurance coverage respecting the Building as from time to time is obtainable at commercially
reasonable rates and is then customarily obtained and maintained by landlords in respect of office
buildings similar to the Building, located in midtown Manhattan, New York City.



ARTICLE 14




DESTRUCTION — FIRE OR OTHER CAUSE




     Section 14.1 Restoration. If the Premises are damaged by fire or other casualty, or
if the Building is damaged such that Tenant is deprived of reasonable access to the Premises,
Tenant shall give prompt notice to Landlord, and the damage shall be repaired by Landlord, at its
expense, to substantially the condition of the Premises prior to the damage, subject to the
provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or
restore (i) Tenant’s Property, or (ii) any Alterations or improvements to the Premises, to the



27








 




extent such Alterations or improvements exceed Building Standard Installations (“Above
Building Standard Installations”). Until the restoration of the Premises is Substantially
Completed or would have been Substantially Completed but for Tenant Delay, Fixed Rent, Tenant’s Tax
Payment and Tenant’s Operating Payment shall be reduced in the proportion by which the area of the
part of the Premises which is not usable (or accessible) and is not used by Tenant bears to the
total area of the Premises.




     Section 14.2 Landlord’s Termination Right. Notwithstanding anything to the contrary
contained in Section 14.1, if the Premises are totally damaged or are rendered wholly
untenantable, or if the Building is so damaged that in Landlord’s opinion, substantial alteration,
demolition, or reconstruction of the Building is required (whether or not the Premises are so
damaged or rendered untenantable), then in either of such events, Landlord may, not later than
sixty (60) days following the date of the damage, give Tenant a notice terminating this Lease,
provided that if the Premises are not damaged, Landlord may not terminate this Lease unless
Landlord similarly terminates the leases of other office tenants in the Building aggregating,
together with this Lease, at least fifty percent (50%) of the portion of the Building occupied for
office purposes immediately prior to such damage. If this Lease is so terminated, (i) the Term
shall expire upon the date set forth in Landlord’s notice, which shall not be less than thirty (30)
days after such notice is given, and Tenant shall vacate the Premises and surrender the same to
Landlord no later than the date set forth in the notice, (ii) Tenant’s liability for Rent shall
cease as of the date of the damage, (iii) any prepaid Rent for any period after the date of the
damage shall be refunded by Landlord to Tenant, and (iv) Landlord shall be entitled to collect all
insurance proceeds of policies held by Landlord or Tenant providing coverage for Alterations and
other improvements to the Premises. Landlord shall retain such proceeds from Tenant’s insurance
only to the extent that Landlord performed or paid for such Alterations and improvements, whether
by contribution, offset or otherwise, and the balance of such proceeds, if any, shall be paid to
Tenant.



     Section 14.3 Tenant’s Termination Right. (a) If the Premises are totally damaged and
are thereby rendered wholly untenantable, or if the Building shall be so damaged that Tenant is
deprived of reasonable access to the Premises, and if Landlord elects to restore the Premises,
Landlord shall, within sixty (60) days following the date of the damage, cause a contractor or
architect selected by Landlord to give notice (the “Restoration Notice”) to Tenant of the
date by which such contractor or architect estimates the restoration of the Premises (excluding any
Above Building Standard Installations) shall be Substantially Completed. If such date, as set
forth in the Restoration Notice, is more than twelve (12) months from the date of such damage, then
Tenant shall have the right to terminate this Lease by giving notice (the “Termination
Notice”) to Landlord not later than thirty (30) days following Tenant’s receipt of the
Restoration Notice (with time of the essence). If Tenant delivers a Termination Notice to
Landlord, this Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice, in the manner set forth in the second sentence of Section 14.2.



          (b) If (1) Landlord shall cause to be given a Restoration Notice as set forth in Section
14.3(a) stating that restoration shall be Substantially Completed by a date not more than
twelve (12) months from the date of the damage (the date twelve (12) months after the date of


28









 







the damage is hereinafter referred to as the “Restoration Outside Date”) and (2) for
any reason other than Tenant Delay or other Unavoidable Delay such restoration is not Substantially
Completed on or before the Restoration Outside Date, then Tenant, by notice given to Landlord not
later than the date twenty (20) days after the Restoration Outside Date (with time of the essence)
may give notice to Landlord (the “Tenant’s Restoration Outside Date Termination Notice”) of
Tenant’s election to terminate this Lease. If such restoration is Substantially Completed on or
before the date thirty (30) days after the Restoration Outside Date, then Tenant’s Restoration
Outside Date Termination Notice shall be of no force or effect, and this Lease shall continue in
full force and effect; and if such restoration is not Substantially Completed on or before the date
thirty (30) days after the Restoration Outside Date, then on the thirty first (31st) day after the
Restoration Outside Date this Lease shall automatically terminate in the manner set forth in the
second sentence of Section 14.2, except that the Term shall expire on such thirty-first
(31st) day and Tenant shall vacate the Premises and surrender the same to Landlord no later than
such thirty-first (31st) day. If Tenant shall fail or omit in a timely manner to give Tenant’s
Restoration Outside Date Termination Notice, Tenant shall have waived its right to terminate this
Lease as provided in this Section 14.3(b).




     Section 14.4 Final 24 Months. Notwithstanding anything set forth to the contrary in
this Article, in the event that any damage rendering the Premises wholly untenantable occurs during
the final twenty-four (24) months of the Term, either Landlord or Tenant may terminate this Lease
by notice to the other party within thirty (30) days after the occurrence of such damage and this
Lease shall expire on the thirtieth (30th) day after the date of such notice; provided, however,
that if Landlord shall give notice terminating this Lease as provided in this Section 14.4
(“Landlord’s Section 14.4 Termination Notice”), and if (i) not later than the date thirty
(30) days after Landlord has given Landlord’s Section 14.4 Termination Notice, Landlord actually
receives a Renewal Notice (hereafter defined) from Tenant exercising Tenant’s option to renew the
term of this Lease in accordance with the provisions of Article 36 (with TIME OF THE
ESSENCE AS AGAINST TENANT), and (ii) all the conditions in this Lease to the exercise by Tenant of
such renewal option are satisfied, then Landlord’s Section 14.4 Termination Notice shall be of no
force or effect and this Lease shall continue in full force and effect as if Landlord had not given
Landlord’s Section 14.4 Termination Notice. For purposes of this Section 14.4, the
Premises shall be deemed wholly untenantable if due to such damage, Tenant shall be precluded from
using more than fifty percent (50%) of the Premises for the conduct of its business and Tenant’s
inability to so use the Premises is reasonably expected to continue until at least the earlier of
the (i) Expiration Date, or (ii) the ninetieth (90th) day after the date when such damage occurs.
Tenant shall have no right to exercise Tenant’s option to renew the term of this Lease if Tenant
previously has terminated this Lease in accordance with the provisions of this Section
14.4, or otherwise. Nothing herein shall limit or affect Landlord’s right to terminate this
Lease in accordance with Section 14.2.



     Section 14.5 Waiver of Real Property Law '227. This Article constitutes an
express agreement governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which
provides for such contingency in the absence of an express agreement, and any other law of like
nature and purpose now or hereafter in force, shall have no application in any such case.



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     Section 14.6 Inability to Collect. Notwithstanding any of the foregoing provisions of
this Article, if Landlord or any Lessor or Mortgagee shall be unable to collect all of the
insurance proceeds (including rent insurance proceeds) applicable to damage or destruction of the
Premises or the Building by reason of any action or inaction on the part of Tenant or any Tenant
Party, then, without prejudice to any other remedies which may be available against Tenant, (i)
there shall be no abatement of Rent, and (ii) Landlord shall have no obligation to restore the
Premises, until Landlord receives the insurance proceeds withheld by reason of such action or
inaction on the part of Tenant or any Tenant Party.



     Section 14.7 Landlord’s Liability. Any Building employee to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agent with respect
to such property and neither Landlord nor any of the Indemnitees shall be liable for any damage to
such property, or for the loss of or damage to any property of Tenant by theft or otherwise. None
of the Indemnitees shall be liable for any injury or damage to persons or property or interruption
of Tenant’s business resulting from fire or other casualty, any damage caused by other tenants or
persons in the Building or by construction of any private, public or quasi-public work, or any
latent defect in the Premises or in the Building (except that Landlord shall be required to repair
the same to the extent provided in Article 7). No penalty shall accrue for delays which
may arise by reason of adjustment of fire insurance on the part of Landlord or Tenant, or
Unavoidable Delays, in connection with any repair or restoration of any portion of the Premises or
of the Building. Landlord shall use reasonable efforts to minimize interference with Tenant’s use
and occupancy of the Premises during the performance of any such repair or restoration; provided,
however, Landlord shall have no obligation to employ contractors or labor at overtime or other
premium pay rates or to incur any other overtime costs or additional expenses whatsoever. Nothing
in this Section 14.7 shall affect any right of Landlord to be indemnified by Tenant under
Article 32 for payments made to compensate for losses of third parties.



     Section 14.8 Windows. If at any time any windows of the Premises are temporarily
closed, darkened or covered over by reason of repairs, maintenance, alterations or improvements to
the Building, or any of such windows are permanently closed, darkened or covered over due to any
Requirements, Landlord shall not be liable for any damage Tenant may sustain and Tenant shall not
be entitled to any compensation or abatement of any Rent, nor shall the same release Tenant from
its obligations hereunder or constitute an actual or constructive eviction.



ARTICLE 15




EMINENT DOMAIN




     Section 15.1 (a) Total Taking. If all or substantially all of the Premises, the
Building or the Real Property shall be acquired or condemned for any public or quasi-public
purpose, this Lease shall terminate and the Term shall end as of the date of the vesting of title,
with the same effect as if such date were the Expiration Date.



          (b) Partial Taking. If only a part of the Premises, the Building or the Real Property
shall be acquired or condemned, this Lease and the Term shall continue in full force











30









 




and
effect, provided that from and after the date of the vesting of title, Fixed Rent, Tenant’s Tax Payment and
Tenant’s Operating Payment shall be modified to reflect the reduction of the Premises and/or the
Building as a result of such acquisition or condemnation.




          (c) Landlord’s Termination Right. Whether or not the Premises are affected, Landlord
may give to Tenant, within sixty (60) days following the date upon which Landlord receives notice
that all or a portion of the Building or the Real Property has been acquired or condemned, a notice
of termination of this Lease, provided that Landlord elects to terminate leases (including this
Lease) affecting at least fifty percent (50%) of the rentable area of the Building (excluding any
rentable area leased by Landlord or its Affiliates).




          (d) Tenant’s Termination Right. If the part of the Building or the Real Property so
acquired or condemned contains a substantial part of the total area of the Premises immediately
prior to such acquisition or condemnation, or if, by reason of such acquisition or condemnation,
Tenant no longer has reasonable means of access to the Premises, Tenant may terminate this Lease by
notice to Landlord given within sixty (60) days following the date upon which Tenant received
notice of such acquisition or condemnation. If Tenant so notifies Landlord, this Lease shall
terminate and the Term shall end and expire upon the date set forth in the notice, which date shall
not be more than thirty (30) days following the giving of such notice. If a part of the Premises
shall be so acquired or condemned and this Lease and the Term shall not be terminated in accordance
with this Section, Landlord, at Landlord’s expense but without requiring Landlord to spend more
than it collects as an award, shall, subject to the provisions of any Mortgage or Superior Lease,
restore that part of the Premises not so acquired or condemned to a self-contained rental unit
substantially equivalent (with respect to character, quality, appearance and services) to that
which existed immediately prior to such acquisition or condemnation, excluding Tenant’s Property,
Tenant’s Alterations and/or Above Building Standard Installations.




          (e) Apportionment of Rent. Upon any termination of this Lease pursuant to the
provisions of this Article, Fixed Rent and Tenant’s payments for Taxes and Operating Expenses shall
be apportioned as of, and shall be paid or refunded up to and including, the date of such
termination.




          (f) Applicability. The provisions of Sections 15.1 and 15.2 shall not
apply to any acquisition or condemnation of all or any part of the Premises for a period of
eighteen (18) months or less.




     Section 15.2 Awards. Upon any acquisition or condemnation of all or any part of the
Building or the Real Property, Landlord shall receive the entire award for any such acquisition or
condemnation, and Tenant shall have no claim against Landlord or the condemning authority for the
value of any unexpired portion of the Term, Tenant’s Alterations or improvements; and Tenant hereby
assigns to Landlord all of its right in and to such award. Nothing contained in this Article shall
be deemed to prevent Tenant from making a separate claim in any condemnation proceedings for the
then value of any Tenant’s Property and Tenant’s Above Building Standard Installations included in
such taking and for any moving expenses, provided any such award is in addition to, and does not
result in a reduction of, the award made to Landlord.



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     Section 15.3 Temporary Taking. Notwithstanding the provisions of Section
15.1, if all or any part of the Premises is acquired or condemned for a period of eighteen (18)
months or less during the Term for any public or quasi-public use or purpose, Tenant shall give
prompt notice to Landlord, and the Term shall not be reduced or affected in any way, and Tenant shall
continue to pay all Rent payable by Tenant without reduction or abatement and to perform all its
other obligations under this Lease, except to the extent prevented from doing so by the condemning
authority. Tenant shall be entitled to receive any award or payment from the condemning authority
for such use, which award shall be received, held and applied by Tenant for payment of Rent falling
due, provided that if the acquisition or condemnation is for a period extending beyond the Term,
such award shall be apportioned between Landlord and Tenant and Landlord shall receive the portion
of such award relating to the period after the Term. If the acquisition or condemnation of all or
any part of the Premises is for a period of more than eighteen (18) months, the provisions of
Sections 15.1 and 15.2 shall apply.



ARTICLE 16




ASSIGNMENT AND SUBLETTING




     Section 16.1 (a) No Assignment or Subletting. Except as expressly set forth herein,
Tenant shall not assign, mortgage, pledge, encumber, or otherwise transfer this Lease, whether by
operation of law or otherwise, and shall not sublet (or underlet), or permit, or suffer the
Premises or any part thereof to be used or occupied by others (whether for desk space, mailing
privileges or otherwise), without Landlord’s prior consent in each instance. Any assignment,
sublease, mortgage, pledge, encumbrance or transfer in contravention of the provisions of this
Article shall be null and void.



          (b) Collection of Rent. If, without Landlord’s consent, this Lease is assigned, or
any part of the Premises is sublet or occupied by anyone other than Tenant, or this Lease or the
Premises is encumbered (by operation of law or otherwise), Landlord may collect rent from the
assignee, subtenant or occupant and apply the net amount collected to the Rent herein reserved. No
such collection of rent shall be deemed to be (i) a waiver of the provisions of this Article, (ii)
an acceptance of the assignee, subtenant or occupant as tenant, or (iii) a release of Tenant from
the performance of any of the terms, covenants and conditions to be performed by Tenant under this
Lease, including the payment of Rent.




          (c) No Waiver. Landlord’s consent to any assignment or subletting shall not relieve
Tenant from the obligation to obtain Landlord’s express consent to any further assignment or
subletting. In no event shall any permitted subtenant assign or encumber its sublease or further
sublet any portion of its sublet space, or otherwise suffer or permit any portion of the sublet
space to be used or occupied by others. The listing of any name other than that of Tenant in the
directory, or on the doors of the Premises or elsewhere, shall not vest in any such named party any
right or interest in this Lease or in the Premises, nor be deemed to constitute Landlord’s consent
to any assignment or transfer of this Lease, or to any sublease of the Premises, or to the use or
occupancy thereof by others.




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          (d) Desk Space Users. Notwithstanding the provisions of Section 16.1(a), and
without the consent of Landlord, only Pzena Investment Management, LLC, as Tenant, or an Affiliate
of Pzena Investment Management, LLC, as Tenant (if this Lease has been assigned to such Affiliate
in accordance with the provisions of this Lease), may from time to time, subject to
all of the provisions of this Lease, permit portions of the Premises to be used or occupied
under so-called “desk sharing” arrangements by employees of any reputable company or reputable
self-employed persons (provided the use under such “desk sharing arrangement” is for the Permitted
Use only) (each such employee or person, a “Desk Space User”), provided that (i) any such
use or occupancy of desk or office space shall be without the installation of any separate entrance
to the Premises, (ii) each Desk Space User shall use the Premises in accordance with all of the
provisions of this Lease, and only for the use expressly permitted pursuant to this Lease, (iii) in
no event shall the use of any portion of the Premises by a Desk Space User create or be deemed to
create any right, title or interest of such Desk Space User in any portion of the Premises or this
Lease, (iv) at no time shall there be more than five (5) Desk Space Users in the aggregate, and at
no time shall there be more than five (5) offices at the Premises, in the aggregate, used or
occupied by Desk Space Users, and (v) such “desk sharing” arrangement shall terminate automatically
upon the termination of this Lease, and (vi) such desk sharing arrangement is for a valid business
purpose and not to circumvent the provisions of this Article 16. Prior to entering into
any such desk sharing arrangement, Tenant shall notify Landlord in writing of its plan to provide
any space in the Premises to a Desk Space User, which notice shall include (1) the identity of the
Desk Space User and its principals, with such reasonable detail as may be required by Landlord as
to particulars of such Desk Space User, (2) a description of the nature and character of the
business to be conducted in the Premises by such Desk Space User and (3) the rentable square feet
and location in the Premises to be occupied by such Desk Space User, together with a copy of the
agreement, if any, relating to the use or occupancy of such portion of the Premises by such Desk
Space User.




     Section 16.2 Tenant’s Notice. If Tenant desires to assign this Lease or sublet all or
any portion of the Premises, Tenant shall give notice thereof to Landlord (“Tenant’s Proposed
Assignment or Sublet Notice”), which shall be accompanied by (i) with respect to an assignment
of this Lease, the date Tenant desires the assignment to be effective, and (ii) with respect to a
sublet of all or a part of the Premises, (A) the material business terms on which Tenant would
sublet such premises, and (B) a description of the portion of the Premises to be sublet. Such
Tenant’s Proposed Assignment or Sublet Notice shall (except as otherwise expressly provided in this
Article 16) be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord’s
designee) shall be granted the right, at Landlord’s option (1) to terminate this Lease with respect
to such space as Tenant proposes to sublease, upon the terms and conditions hereinafter set forth,
or (2) if the proposed transaction is an assignment of this Lease or a subletting of 50% or more of
the rentable square footage of the Premises, to terminate this Lease with respect to the entire
Premises. Such option may be exercised by notice from Landlord to Tenant within thirty (30) days
after Landlord’s receipt of Tenant’s Proposed Assignment or Sublet Notice. The foregoing
notwithstanding, in the event of a proposed subletting Landlord shall not have such right of
termination if such subletting (when aggregated with the portions of the Premises then subject to
other sublettings) is (i) for less than fifty percent (50%) of the rentable square footage of the



33









 







Premises and (ii) for a term which expires not later than the date two (2) years prior to the
expiration date of the Term of this Lease.



     Section 16.3 Landlord’s Termination. If Landlord exercises its option to terminate
all or a portion of this Lease pursuant to Section 16.2: (i) this Lease shall end and
expire with
respect to all or a portion of the Premises, as the case may be, on the date that such
assignment or sublease was to commence, (ii) Fixed Rent and Tenant’s payments for Taxes and
Operating Expenses shall be apportioned, paid or refunded as of such date, (iii) Tenant, upon
Landlord’s request, shall enter into an amendment of this Lease ratifying and confirming such total
or partial termination, and setting forth any appropriate modifications to the terms and provisions
hereof, (iv) Landlord shall be free to lease the Premises (or any part thereof) to Tenant’s
prospective assignee or subtenant, and (v) if this Lease shall end with respect to a portion of the
Premises, Tenant shall, at Tenant’s sole cost and expense, separately demise such portion of the
Premises, and make available all utility services so as to make such portion of the Premises a
self-contained rental unit reasonably satisfactory to Landlord and in compliance with all
Requirements; provided, however, that if Landlord exercises its option to terminate pursuant to
Section 16.2, and if Tenant, in Tenant’s Proposed Assignment or Sublet Notice, had
specifically set forth all material business terms of such transaction, which terms included the
specific identity of the proposed subtenant and specifically provided that the sublet premises
would not be physically separated from and separately demised from the balance of the Premises,
then Landlord shall bear the expense of physically separating and separately demising such premises
from the Premises; and Landlord shall have all reasonable and necessary access to the Premises (and
the reasonable cooperation of Tenant, without charge therefor) in connection therewith.



     Section 16.4 Conditions to Assignment or Subletting. (a) If Landlord does not
exercise its option to terminate all or a portion of this Lease pursuant to Section 16.2,
and provided that no Event of Default then exists, Landlord’s consent to the proposed assignment or
subletting shall not be unreasonably withheld or delayed, provided that the conditions set forth in
Section 16.4(b)(i)-(v) and all the following conditions are satisfied:




     (i) in Landlord’s reasonable judgment, the proposed assignee or subtenant is engaged in
a business or activity, and the Premises will be used in a manner, which (A) is in keeping
with the then standards of the Building , (B) limits the use of the Premises to general and
executive offices, and (C) does not violate any restrictions set forth in this Lease, any
Mortgage or Superior Lease, or any negative covenant as to use of the Premises required by
any other lease at the Building;




     (ii) the proposed assignee or subtenant is a reputable Person of good character with
sufficient financial means to perform all of its obligations under this Lease or the
sublease, as the case may be, and Landlord has been furnished with reasonable proof thereof,
and Landlord or any Affiliate of Landlord is not litigating against or has been threatened
with litigation by such proposed assignee or subtenant or its affiliates within the prior
twelve (12) months;




     (iii) intentionally omitted;



34









 






     (iv) neither the proposed assignee or subtenant nor any Person which, directly or
indirectly, Controls, is Controlled by, or is under common Control with, the proposed
assignee or subtenant is then an occupant of the Building;




     (v) if Landlord, at the relevant time, has reasonably comparable space available in the
Building, the proposed assignee or subtenant is not a Person (or Affiliate of a Person) with
whom Landlord or Landlord’s agent is then, or has been within the prior six (6) months,
negotiating in connection with the rental of space in the Building;




     (vi) there shall be not more than three (3) occupants of the Premises, including Tenant
(but not including Desk Space Users);




     (vii)
intentionally omitted;




     (viii) Tenant shall, upon demand, reimburse Landlord for all reasonable expenses
incurred by Landlord in connection with such assignment or sublease, including any
investigations as to the acceptability of the proposed assignee or subtenant, reviewing any
plans and specifications for Alterations proposed to be made in connection therewith, and
all legal costs reasonably incurred in connection with the granting of any requested
consent;




     (ix) Tenant shall not publicly advertise the availability of the Premises or any
portion thereof as sublet space or by way of an assignment of this Lease, without first
obtaining Landlord’s consent, which consent shall not be unreasonably withheld or delayed,
provided that Tenant shall in no event advertise the rental rate or any description of the
rental rate;




     (x) the proposed assignee or subtenant shall not be entitled, directly or indirectly,
to diplomatic or sovereign immunity, regardless of whether the proposed assignee or
subtenant agrees to waive such diplomatic or sovereign immunity, and shall be subject to the
service of process in, and the jurisdiction of the courts of, the City and State of New
York;




     (xi) if the proposed assignee or subtenant is an entity organized under the laws of any
jurisdiction other than the United States or any state thereof, or is not a United States
citizen, if an individual, such Person shall waive any immunity to which it may be entitled,
and shall be subject to the service of process in, and the jurisdiction of the courts of,
the City and State of New York; and




     (xii) in Landlord’s reasonable judgment, the proposed assignee or subtenant shall not
be of a type or character, or engaged in a business or activity, or owned or controlled by
or identified with any entity, which may result in protests or civil disorders or commotions
or other disruptions of the normal business activities at the Real Property.



35









 





          (b) With respect to each and every assignment and/or subletting authorized by Landlord under
the provisions of this Lease, it is further agreed that:





          (i) the form of the proposed assignment or sublease shall be reasonably satisfactory to
Landlord and shall comply with the provisions of this Article;




          (ii) no sublease shall be for a term ending later than one (1) day prior to the
Expiration Date of this Lease;




          (iii) no sublease shall be delivered to any subtenant, and no subtenant shall take
possession of any part of the Premises, until an executed counterpart of such sublease has
been delivered to Landlord and approved in writing by Landlord as provided in Section
16.4(a);




          (iv) if an Event of Default shall occur at any time prior to the effective date of such
assignment or subletting, then (a) Landlord, at its discretion, by notice to Tenant given at
any time prior to the effective date of such assignment or subletting, shall have the right
to revoke Landlord’s consent thereto, if previously granted, and (b) if such assignment or
subletting would have been permitted without Landlord’s consent pursuant to Section
16.8, Landlord, at its discretion, by notice to Tenant, nonetheless shall have the right
to void such assignment or subletting and render same without force and effect, and in
either such case, any such assignment or subletting shall constitute a further Event of
Default hereunder; and




          (v) each sublease shall be subject and subordinate to this Lease and to the matters to
which this Lease is or shall be subordinate, it being the intention of Landlord and Tenant
that Tenant shall assume and be liable to Landlord for any and all acts and omissions of all
subtenants and anyone claiming under or through any subtenants which, if performed or
omitted by Tenant, would be a default under this Lease; and Tenant and each subtenant shall
be deemed to have agreed that upon the occurrence and during the continuation of an Event of
Default hereunder, Tenant has hereby assigned to Landlord, and Landlord may, at its option,
accept such assignment of, all right, title and interest of Tenant as sublandlord under such
sublease, together with all modifications, extensions and renewals thereof then in effect,
and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not be (A) liable for any
previous act or omission of Tenant under such sublease, (B) subject to any counterclaim,
offset or defense not expressly provided in such sublease, which theretofore accrued to such
subtenant against Tenant, (C) bound by any previous modification of such sublease not
consented to by Landlord, or by any prepayment of more than one (1) month’s rent and
additional rent under such sublease, (D) bound to return such subtenant’s security deposit,
if any, except to the extent that Landlord shall receive actual possession of such deposit
and such subtenant shall be entitled to the return of all or any portion of such deposit
under the terms of its sublease, or (E) obligated to make any payment to or on behalf of
such subtenant, or to perform any work in the subleased space or the Building, or in any way
to prepare the subleased space for occupancy, beyond Landlord’s obligations under this



36









 






Lease. The provisions of this Section 16.4(b)(v) shall be self-operative, and no
further instrument shall be required to give effect hereto, provided that the subtenant
shall execute and deliver to Landlord any instruments Landlord may reasonably request to
evidence and confirm such subordination and attornment.




          (c) Any consent pursuant to Section 16.4(a) shall be granted or declined, as the case may be,
within thirty (30) days after Landlord’s receipt of (1) a true and complete statement reasonably
detailing the identity of the proposed assignee or subtenant, the nature of its business and its
proposed use of the Premises, (2) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial statements, and (3) any other
information Landlord may reasonably request.



     Section 16.5 No Release of Tenant; Indemnification of Landlord. Notwithstanding any
assignment or subletting or any acceptance of Rent by Landlord from any assignee or subtenant,
Tenant shall remain fully liable for the payment of all Rent due and for the performance of all
other terms, covenants and conditions contained in this Lease on Tenant’s part to be observed and
performed, and any default under any term, covenant or condition of this Lease by any subtenant
shall be deemed a default under this Lease by Tenant. Tenant shall indemnify, defend, protect and
hold harmless Landlord from and against any and all Losses (as defined in Section 32.1(b))
resulting from any claims that may be made against Landlord by the proposed assignee or subtenant
or by any brokers or other Persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease, irrespective of whether Landlord shall give or decline to give
its consent to any proposed assignment or sublease, or if Landlord shall exercise any of its
options under this Article 16. The foregoing notwithstanding, if this Lease shall end (in
whole or with respect to a portion of the Premises) as provided in Section 16.3, and if
Landlord, within one hundred twenty (120) days after the date of such end of this Lease (in whole
or with respect to a portion of the Premises), shall enter into a lease of the Premises (or such
portion thereof) (a) with a tenant to which Tenant had intended to assign the Lease or sublease the
Premises (or such portion thereof), and which Tenant had specifically identified to Landlord in
Tenant’s Proposed Assignment or Sublet Notice and (b) on business terms not less favorable to
Landlord than the terms under which Tenant had intended to assign the Lease or sublease the
Premises (or such portion thereof) to such tenant, as specifically set forth in Tenant’s Proposed
Assignment or Sublet Notice (which notice shall set forth, among all other terms, the commissions
and brokerage fees payable in connection with such transaction), then Landlord shall be responsible
for the payment of such commissions and fees, provided that Landlord’s obligation shall not exceed,
in the aggregate, the amount of one “industry-standard” (as applicable at such time) brokerage
commission in connection with such lease by Landlord; and Tenant shall otherwise continue to be
obligated in connection with (among other things) claims by any brokers or other Persons claiming a
commission or similar compensation in connection with the proposed assignment or sublease in excess
of that, or additional to or other than that, for which Landlord is obligated under this provision.



     Section 16.6 Tenant’s Failure to Complete. If Landlord consents to a proposed
assignment or sublease and Tenant fails to execute and deliver to Landlord such assignment or
sublease within one hundred twenty (120) days after the giving of such consent, then Tenant



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shall
again comply with all of the provisions and conditions of Sections 16.2 and 16.4
hereof before assigning this Lease or subletting all or part of the Premises.



     Section 16.7 Profits. If Tenant shall enter into any assignment or sublease requiring
the consent of Landlord, Tenant shall, within thirty (30) days after the effective date of an
assignment or within thirty (30) days after the commencement date of a sublease, as the case
may be, deliver to Landlord a complete list of Tenant’s reasonable costs actually paid or to be
paid to third parties in connection with such transaction (collectively, “Transaction
Costs”), together with a list of all of Tenant’s Property to be transferred to such assignee or
subtenant. Such Transaction Costs shall include only (i) reasonable brokerage fees to the extent
specifically incurred in connection with such assignment or sublease, (ii) reasonable costs of
alterations and tenant improvements (including, without limitation, reasonable fees of architects
and engineers, and permitting fees) to the extent such alterations and tenant improvements are made
specifically by Tenant for such assignee or subtenant or amounts for such alterations and tenant
improvements which are specifically allowed by Tenant to such assignee or subtenant (and shall not
include any costs or expenses incurred by Tenant in connection with other Alterations made by or
for Tenant, or the initial preparation of the Premises for Tenant’s occupancy), (iii) reasonable
costs of alterations (including, without limitation, reasonable fees of architects and engineers,
and permitting fees) made specifically for the purpose of separately demising subleased premises,
(iv) reasonable fees and expenses of Tenant’s counsel to the extent reasonably and specifically
incurred in connection with such assignment or sublease, and (v) commercially reasonable “free
rent” respecting the premises offered by Tenant to such assignee or subtenant; provided, however,
that (1) in no event shall there be any duplication of Transaction Costs or “double-dipping,” (2)
in no event shall Transaction Costs include any costs or expenses of any “take-back” lease or
similar transaction incurred by Tenant, and (3) in no event shall Transaction Costs include any
amounts unless (and then only to the extent that) such amounts represent out-of-pocket costs and
expenses actually and reasonably paid by Tenant to third parties for costs and expenses or
reasonable allowances by Tenant to the assignee or subtenant, in all cases reasonably incurred by
Tenant solely and directly in connection with such assignment or subletting. Tenant shall deliver
to Landlord evidence of the payment of such costs and expenses promptly after the same are paid, or
the granting of such allowances in accordance with the terms agreed to. In consideration of such
assignment or subletting, Tenant shall pay to Landlord:



          (a) In the case of an assignment, on the effective date of the assignment, an amount equal to
fifty percent (50%) of the Assignment Profit. As used herein, the term “Assignment Profit”
shall mean (i) all sums and other consideration paid to Tenant by the assignee for or by reason of
such assignment (including sums paid for the sale or rental of Tenant’s Property, less, in the case
of a sale or rental thereof, the then fair market value thereof or fair market rental value
thereof, as the case may be), less (ii) the Transaction Costs incurred by Tenant in connection with
such assignment; or




          (b) In the case of a sublease, fifty percent (50%) of the Subletting Profit. As used herein,
the term “Subletting Profit” shall mean (i) all consideration payable under the sublease to
Tenant by the subtenant which exceeds, on a per square foot basis, Fixed Rent and Additional




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Rent
accruing during the term of the sublease in respect of the subleased space (together with any sums
paid for the sale or rental of Tenant’s Property, less, in the case of the sale or rental thereof,
the then fair market value thereof or fair market rental value thereof, as the case may be), less
(ii) the Transaction Costs incurred by Tenant in connection with such sublease. The sums
payable under this clause shall be paid by Tenant to Landlord as and when paid by the
subtenant to Tenant, but after Tenant has first deducted the Transaction Costs.




     Section 16.8 (a) Transfers. If Tenant is a corporation or a limited liability
company, the transfer by one or more transfers, directly or indirectly, by operation of law or
otherwise, of a majority of the stock of Tenant, or a majority of the membership interests in
Tenant (as the case may be) shall be deemed a voluntary assignment of this Lease; provided,
however, that the provisions of this Article 16 shall not apply to (i) the transfer of
shares of stock of Tenant if and so long as Tenant is publicly traded on a nationally recognized
stock exchange or (ii) bona fide transfers of membership interests between and among existing or
new bona fide employees and/or members of Tenant, and/or (in connection with bona fide estate
planning and/or probate of estates of such employees and/or members) to family members and/or
trusts for the benefit of family members of any such employee or member; provided, in all cases,
that such transfers are for a valid purpose and not for the purposes of circumventing the
provisions of this Article 16. For purposes of this Section the term “transfers” shall be
deemed to include the issuance of new stock or of treasury stock which results in a majority of the
stock of Tenant being held by a Person or Persons that do not hold a majority of the stock of
Tenant on the date hereof. If Tenant is a partnership, the transfer by one or more transfers,
directly or indirectly, by operation of law or otherwise, of a majority interest in the partnership
or otherwise in violation of the provisions of Section 29.2 shall be deemed a voluntary
assignment of this Lease. If Tenant is a limited liability company, trust, or any other legal
entity (including a corporation or partnership), the transfer by one or more transfers, directly or
indirectly, of Control of such entity, however characterized, shall be deemed a voluntary
assignment of this Lease, except as otherwise herein specifically provided. The provisions of
Section 16.1 and Section 16.7 shall not apply to transactions with an entity into
or with which Tenant is merged or consolidated or to which substantially all of Tenant’s assets are
transferred so long as (i) such transfer was made for a legitimate independent business purpose and
not for the purpose of transferring this Lease, (ii) the successor to Tenant has a net worth
computed in accordance with generally accepted accounting principles at least equal to the net
worth of Tenant immediately prior to such merger, consolidation or transfer, and (iii) proof
satisfactory to Landlord of such net worth is delivered to Landlord at least ten (10) days prior to
the effective date of any such transaction. Tenant may also, upon prior notice to but without the
consent of Landlord, permit any Person which Controls, is Controlled by, or is under common Control
with the original Tenant named herein (a “Related Entity”) to sublet all or part of the
Premises for any Permitted Use, provided the Related Entity is in Landlord’s reasonable judgment of
a character and engaged in a business which is in keeping with the standards for the Building and
the occupancy thereof. Such sublease shall not be deemed to vest in any such Related Entity any
right or interest in this Lease or the Premises nor shall it relieve, release, impair or discharge
any of Tenant’s obligations hereunder.



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          (b) Applicability. The limitations set forth in this Section 16.8 shall apply to
subtenant(s), assignee(s) and guarantor(s) of this Lease, if any, and any transfer by any such
entity in violation of this Section 16.8 shall be a transfer in violation of Section 16.1.




          (c) Modifications, Takeover Agreements. Any modification, amendment or extension of a
sublease and/or any other agreement by which a landlord (or its affiliate) of a building other than
the Building agrees to assume or perform the obligations of Tenant under this Lease shall be deemed
a sublease for the purposes of Section 16.1 hereof.




     Section 16.9 Assumption of Obligations. Any assignment or transfer, whether made with
Landlord’s consent or without Landlord’s consent, if and to the extent permitted hereunder, shall
not be effective unless and until the assignee executes, acknowledges and delivers to Landlord (i)
an agreement in form and substance reasonably satisfactory to Landlord whereby the assignee (A)
assumes Tenant’s obligations under this Lease, and (B) agrees that, notwithstanding such assignment
or transfer, the provisions of Section 16.1 hereof shall be binding upon it in respect of
all future assignments and transfers, and (ii) certificates or policies of insurance as required
under Article 13.



     Section 16.10 Tenant’s Liability. The joint and several liability of Tenant and any
successors-in-interest of Tenant and the due performance of Tenant’s obligations under this Lease
shall not be discharged, released or impaired by any agreement or stipulation made by Landlord, or
any grantee or assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any grantee or assignee of
Landlord, to enforce any of the terms and provisions of this Lease.



     Section 16.11 Lease Not Affirmed or Rejected. If at any time after an assignment by
Tenant named herein, this Lease is not affirmed or rejected in any proceeding of the types
described in Section 19.1(h) or (i) or any similar proceeding, or upon a
termination of this Lease due to any such proceeding, Tenant named herein, upon request of Landlord
given within thirty (30) days after such disaffirmance, rejection or termination (and actual notice
thereof to Landlord in the event of a disaffirmance or rejection or in the event of termination
other than by act of Landlord), shall (i) pay to Landlord all Rent and other charges due and owing
by the assignee to Landlord under this Lease to and including the date of such disaffirmance,
rejection or termination, and (ii) as “tenant,” enter into a new lease of the Premises with
Landlord for a term commencing on the effective date of such disaffirmance, rejection or
termination and ending on the Expiration Date, unless sooner terminated in accordance therewith, at
the same Rent and upon the then executory terms, covenants and conditions contained in this Lease,
except that (A) the rights of Tenant named herein under the new lease shall be subject to the
possessory rights of the assignee under this Lease and the possessory rights of any Persons
claiming through or under such assignee or by virtue of any statute or of any order of any court,
(B) such new lease shall require all defaults existing under this Lease to be cured by Tenant named
herein with due diligence, and (C) such new lease shall require Tenant named herein to pay all Rent
which, had this Lease not been so disaffirmed, rejected or terminated, would have become due under
the provisions of this Lease after the date of such disaffirmance, rejection or termination with
respect to any period prior thereto. If Tenant named herein defaults in its obligations to enter
into such new lease for a period of twenty (20) days after Landlord’s request, then, in addition to
all other




40










 




rights and remedies by reason of default, either at law or in equity, Landlord shall have
the same rights and remedies against Tenant named herein as if it had entered into such new lease
and such new lease had thereafter been terminated as of the commencement date thereof by reason of
Tenant’s default thereunder.




     Section 16.12 Restrictions on Assignment/Subletting. Notwithstanding anything to the
contrary contained herein, Tenant shall not be permitted to assign this Lease or sublet any portion
of the Premises (including, without limitation, any assignment or sublet pursuant to Section 16.8)
to any person which, in Landlord’s reasonable discretion, pose a security risk to the Building or
its occupants.



ARTICLE 17




ELECTRICITY




     Section 17.1 Electric Charge. Tenant shall pay directly to the utility company
supplying electricity to the Premises the amounts due for electric current consumed by Tenant as
indicated by meters measuring Tenant’s consumption thereof. Tenant, at Tenant’s sole cost and
expense, shall be responsible for maintenance and repair of such meters. Tenant shall at all times
comply with the rules and regulations of the utility company supplying electricity to the Building.



     Section 17.2 Use of Electricity. Tenant shall not use any electrical equipment
which, in Landlord’s reasonable judgment, would exceed the Permitted Capacity or interfere with
electrical service to other tenants of the Building. Tenant shall not make or perform, or permit
the making or performance of, any Alterations to wiring installations or other electrical
facilities in or serving the Premises without the prior consent of Landlord, in each instance, and
in compliance with this Lease. “Permitted Capacity” shall mean a connected load of 6 watts per
useable square foot of office space in the Premises. Landlord shall not take any action to diminish
the Permitted Capacity of the Premises.



     Section 17.3
Service Disruption. (a) Landlord shall not be liable in any way to
Tenant for any failure, defect or interruption of, or change in the supply, character and/or
quantity of, electric service furnished to the Premises (a “Service Disruption”) for any
reason except if attributable to the gross negligence or willful misconduct of Landlord (but in no
event shall Landlord be liable for consequential damages), nor shall there be any allowance to
Tenant for a diminution of rental value, nor shall the same constitute an actual or constructive
eviction of Tenant, in whole or in part, or relieve Tenant from any of its Lease obligations, and
no liability shall arise on the part of Landlord by reason of inconvenience, annoyance or injury to
business, whether electricity is provided by public or private utility or by any electricity
generation system owned and operated by Landlord.



          (b) Notwithstanding the provisions of Section 17.3(a), in the event that Tenant is
unable to use the Premises for the ordinary conduct of Tenant’s business as a result of a Service
Disruption arising solely from Landlord’s breach of an obligation under this Lease, other than as a
result of Unavoidable Delays, and such Service Disruption continues for a period in excess of



41









 







fifteen (15) consecutive days after Tenant gives a notice to Landlord (the “Service
Disruption Notice”) stating that Tenant’s inability to use the Premises is solely due to such
Service Disruption, (ii) Tenant does not actually use or occupy the Premises during such period for
the ordinary conduct of Tenant’s business, and (iii) such Service Disruption has not resulted from
the negligence or misconduct of Tenant or any Tenant Party, then, as Tenant’s sole remedy
therefor, Rent shall be abated on a per diem basis for the period commencing on the sixteenth
(16th)) day after Tenant gives the Service Disruption Notice, and ending on
the earlier of (A) the date Tenant reoccupies the Premises for the ordinary conduct of its
business, or (B) the date on which such Service Disruption is substantially remedied.



ARTICLE 18




ACCESS TO PREMISES




     Section 18.1 Landlord’s Access. (a) Tenant shall permit Landlord, Landlord’s agents,
utility companies and other service providers servicing the Building to erect, use and maintain
concealed ducts, pipes and conduits in and through the Premises, provided such use does not cause
the usable area of the Premises to be reduced beyond a de minimis amount. Landlord shall promptly
repair any damage to the Premises caused by any work performed pursuant to this Article.



          (b) Landlord, any Lessor or Mortgagee and any other party designated by Landlord and their
respective agents shall have the right to enter the Premises at all reasonable times, upon
reasonable notice (which notice may be oral) except in the case of emergency, in which event notice
shall not be required, (i) to examine the Premises, (ii) to show the Premises to prospective
purchasers, Mortgagees or Lessors of the Real Property and their respective agents and
representatives or others, and, during the last twelve (12) months of the Term, to prospective
lessees of premises in the Building, and (iii) to make such repairs, alterations or additions to
the Premises or the Building (A) as Landlord may deem necessary or desirable, (B) which Landlord
may elect to perform following Tenant’s failure to perform, or (C) to comply with any Requirements,
and Landlord shall be allowed to take all material into the Premises that may be required for the
performance of such work without the same constituting an actual or constructive eviction of Tenant
in whole or in part and without any abatement of Rent.




          (c) All parts (except surfaces facing the interior of the Premises) of all walls, windows and
doors bounding the Premises, including exterior Building walls, exterior core corridor walls, and
doors and entrances (other than doors and entrances solely connecting areas within the Premises),
all balconies, terraces and roofs adjacent to the Premises, all space in or adjacent to the
Premises used for shafts, stacks, risers, fan rooms, electrical and communications closets,
stairways, mail chutes, conduits and other mechanical facilities, Building Systems and Building
facilities are not part of the Premises, and Landlord shall have the use thereof and access thereto
through the Premises for the purposes of Building operation, maintenance, alteration and repair.




     Section 18.2 Alterations to Building. Landlord has the right at any time to (i)
change the name, number or designation by which the Building is commonly known, or (ii) alter the



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Building to change the arrangement or location of entrances or passageways, doors and
doorways, and corridors, elevators, stairs, toilets, or other public parts of the Building without
any such acts constituting an actual or constructive eviction and without incurring any liability
to Tenant, so long as such changes do not deny Tenant reasonable access to the Premises. Landlord
shall use reasonable efforts to minimize interference with Tenant’s use and occupancy of the
Premises during the making of such changes or alterations, provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever, unless Tenant shall bear and pay in full
such overtime or premium pay rates, overtime costs, and other additional expenses, to the extent
same exceed Landlord’s ordinary, non-overtime, non-premium pay rates, costs and expenses.



ARTICLE 19




DEFAULT




     Section 19.1 Tenant’s Defaults. Each of the following events shall be an “Event of
Default” hereunder:



          (a) Tenant fails to pay when due any installment of Fixed Rent or Additional Rent and such
default continues for five (5) days after Landlord’s notice of such default is given to Tenant;
provided, however, that if Tenant shall default in the timely payment of Fixed Rent or Additional
Rent more than three times in any period of twelve (12) months, with notice thereof in each
instance, then, notwithstanding that such defaults shall have each been cured within the applicable
period provided above, upon any further default in the timely payment of Fixed Rent or Additional
Rent within such twelve (12) month period, Landlord may serve a three (3) days= notice of
termination upon Tenant without affording Tenant an opportunity to cure such further default; or




          (b) Tenant defaults in observing or performing the provisions of Section 3.1(a), and
such default continues for twenty-four (24) hours after notice; provided, however, that if such
default by Tenant consists solely of a violation of the prohibitions and restrictions
respecting the use or occupancy of the Premises set forth in clauses (i) through (vi), inclusive,
of the first sentence of the definition of “Prohibited Use” as set forth in Exhibit B to
this Lease, then it shall be an Event of Default if such default or violation continues for
seventy-two (72) hours after notice; or




          (c) if Landlord applies or retains any part of the Security Deposit, and Tenant fails to
deposit with Landlord the amount so applied or retained by Landlord, or to provide Landlord with a
replacement Letter of Credit (as defined in Section 34.2), if applicable, within five (5)
Business Days after notice by Landlord to Tenant stating the amount applied or retained; or




          (d) Tenant defaults in the observance or performance of any other term, covenant or condition
of this Lease to be observed or performed by Tenant (other than a default of the type described in
Sections 19.1(a), (b), (c), (e), (f), (g), (h) or (i)) and such default continues for more than
twenty (20) days after notice by Landlord to Tenant of such default; or if such default is of


43









 







such a nature that it can be remedied but cannot be completely remedied within twenty (20)
days, Tenant fails to commence to remedy such default within twenty (20) days after such notice;
or, with respect to any such default, Tenant, having commenced such remedy within twenty (20)
days after such notice, fails to diligently prosecute to completion all steps necessary to
remedy such default, or Tenant fails to complete such remedy within sixty (60) days; or




          (e) Tenant defaults in the observance or performance of any term, covenant, or condition on
Tenant’s part to be observed or performed under any other lease with Landlord or Landlord’s
predecessor-in-interest for space in the Building, and such default shall continue beyond any grace
period set forth in such other lease for the remedying of such default; or




          (f) Tenant’s interest in this Lease shall devolve upon or pass to any Person, whether by
operation of law or otherwise, except as expressly permitted under Article 16 hereof; or




          (g) Tenant is unable to, or admits in writing its inability to, pay its debts as they become
due; or




          (h) Tenant files a voluntary petition in bankruptcy or insolvency, or is adjudicated a
bankrupt or insolvent, or files any petition or answer seeking any reorganization, liquidation,
dissolution or similar relief under any present or future federal bankruptcy act or any other
present or future applicable federal, state or other statute or law, or makes an assignment for the
benefit of creditors or seeks or consents to or acquiesces in the appointment of any trustee,
receiver, liquidator or other similar official for Tenant or for all or any part of Tenant’s
property; or




          (i) if, within sixty (60) days after the commencement of any proceeding against Tenant,
whether by the filing of a petition or otherwise, seeking bankruptcy, insolvency, reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other present or future applicable federal,
state or other statute or law, such proceeding shall not have been dismissed, or if, within sixty
(60) days after the appointment of any trustee, receiver, liquidator or other similar official for
Tenant, or for all or any part of Tenant’s property, without the consent or acquiescence of Tenant,
such appointment shall not have been vacated or otherwise discharged, or if any lien, execution or
attachment or other similar filing shall be made or issued against Tenant or any of Tenant’s
property pursuant to which the Premises shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant.



Upon the occurrence of any one or more of such Events of Default, Landlord may, at its sole option,
give to Tenant three (3) days’ notice of cancellation of this Lease, in which event this Lease and
the Term shall come to an end and expire (whether or not the Term shall have commenced) upon the
expiration of such three (3) day period with the same force and effect as if the date set forth in
the notice was the Expiration Date stated herein; and Tenant shall then quit and surrender the
Premises to Landlord, but Tenant shall remain liable for damages as provided in Article 20
hereof.




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     Section 19.2 Tenant’s Liability. If, at any time, (i) Tenant shall be comprised of
two or more Persons, (ii) Tenant’s obligations under this Lease shall have been guaranteed by any
Person other than Tenant, or (iii) Tenant’s interest in this Lease shall have been assigned, the
word “Tenant,” as used in Sections 19.1(g), (h) and (i), shall be
deemed to mean any one or more of the Persons primarily or secondarily liable for Tenant’s
obligations under this Lease. Any monies received by Landlord from or on behalf of Tenant during
the pendency of any proceeding of the types referred to in this Article shall be deemed paid as
compensation for the use and occupancy of the Premises and the acceptance of any such compensation
by Landlord shall not be deemed an acceptance of Rent or a waiver on the part of Landlord of any
rights under this Lease. This Lease and the obligations of Tenant to pay Rent and to perform all
of the other covenants and agreements of Tenant hereunder shall not be affected, impaired or
excused by any Unavoidable Delays.



ARTICLE 20




REMEDIES AND DAMAGES




     Section 20.1 (a) Landlord’s Remedies. If any Event of Default occurs, and this Lease
terminates as provided in Article 19:




          (i) Surrender of Possession. Tenant shall quit and surrender the Premises to
Landlord, and Landlord and its agents may immediately, or at any time after such Event of
Default, re-enter the Premises or any part thereof, without notice, either by summary
proceedings, or by any other applicable action or proceeding, or by force (to the extent
permitted by law) or otherwise in accordance with applicable legal proceedings (without
being liable to indictment, prosecution or damages therefor), and may repossess the Premises
and dispossess Tenant and any other Persons from the Premises and remove any and all of
their property and effects from the Premises.




          (ii) Landlord’s Reletting. Landlord, at Landlord’s option, may relet all or
any part of the Premises from time to time, either in the name of Landlord or otherwise, to
such tenant or tenants, for any term ending before, on or after the Expiration Date, at such
rental and upon such other conditions (which may include concessions and free rent periods)
as Landlord, in its sole discretion, may determine. Landlord shall have no obligation to
and shall not be liable for refusal or failure to relet or, in the event of any such
reletting, for refusal or failure to collect any rent due upon any such reletting; and no
such refusal or failure shall relieve Tenant of, or otherwise affect, any liability under
this Lease. Landlord, at Landlord’s option, may make such alterations, decorations and
other physical changes in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise affecting any such
liability.



          (b) Other Remedies. Upon the breach by Tenant, or any Persons claiming through or
under Tenant, of any term, covenant or condition of this Lease, Landlord shall have the right to
enjoin such breach and to invoke any other remedy allowed by law or in equity as if re-entry,
summary proceedings and other special remedies were not provided in this Lease for


45









 







such breach. The rights to invoke the remedies set forth above are cumulative and shall not
preclude Landlord from invoking any other remedy allowed at law or in equity.




          (c) Tenant’s Waiver. Tenant, on its own behalf and on behalf of all Persons claiming
through or under Tenant, including all creditors, hereby waives all rights which Tenant and all
such Persons might otherwise have under any Requirements (i) to the service of any notice of
intention to re-enter or to institute legal proceedings, (ii) to redeem, or to re-enter or
repossess the Premises, or (iii) to restore the operation of this Lease, after (A) Tenant shall
have been dispossessed or ejected by judgment or by warrant of any court or judge, (B) any re-entry
by Landlord, or (C) any expiration or early termination of the term of this Lease, whether such
dispossession, re-entry, expiration or termination shall be by operation of law or pursuant to the
provisions of this Lease. The words “re-enter,” “re-entry” and “re-entered” as used in this Lease
shall not be deemed to be restricted to their technical legal meanings.




     Section 20.2 (a) Landlord’s Damages. If this Lease and the Term expires and comes to
an end as provided in Article 19, or by or under any summary proceeding or any other action
or proceeding, or if Landlord shall re-enter the Premises as provided in Section 20.1,
then, in any of such events:




          (i) Tenant shall pay to Landlord all Rent payable under this Lease by Tenant to
Landlord up to the Expiration Date or to the date of re-entry upon the Premises by Landlord,
as the case may be;




          (ii) Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord, whether as prepaid Rent, the Security Deposit or otherwise, and to draw upon any
Letter of Credit or other security deposited by Tenant hereunder and retain the proceeds
thereof, which monies, to the extent not otherwise applied to amounts due and owing to
Landlord, shall be credited by Landlord against any damages payable by Tenant to Landlord;




          (iii) Tenant shall pay to Landlord, in monthly installments, on the days specified in
this Lease for payment of installments of Fixed Rent, any Deficiency; it being understood
that Landlord shall be entitled to recover the Deficiency from Tenant each month as the same
shall arise, and no suit to collect the amount of the Deficiency for any month shall
prejudice Landlord’s right to collect the Deficiency for any subsequent month by a similar
proceeding; and




          (iv) whether or not Landlord shall have collected any monthly Deficiency, Tenant shall
pay to Landlord, on demand, in lieu of any further Deficiency and as liquidated and agreed
final damages, a sum equal to the amount by which the Rent for the period which otherwise
would have constituted the unexpired portion of the Term (assuming Additional Rent during
such period to be the same as had been payable for the year immediately preceding such
termination or re-entry, increased in each succeeding year by four percent (4%) (on a
compounded basis)) exceeds the then fair and reasonable rental value of the Premises, for
the same period (with both amounts being discounted to present value at a rate of interest
equal to two percent (2%) below the then Base Rate)



46









 







less the aggregate amount of Deficiencies theretofore collected by Landlord pursuant to
the provisions of Section 20.2(a)(iii) for the same period. If, before presentation
of proof of such liquidated damages to any court, commission or tribunal, Landlord shall
have
relet the Premises or any part thereof for the period which otherwise would have
constituted the unexpired portion of the Term or any part thereof, the amount of rent
reserved upon such reletting shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Premises so relet during the term of the
reletting.



          (b) Reletting. If the Premises, or any part thereof, shall be relet together with
other space in the Building, the rents collected or reserved under any such reletting and the
expenses of any such reletting shall be equitably apportioned for the purposes of this Section.
Tenant shall not be entitled to any rents collected or payable under any reletting, whether or not
such rents exceed Fixed Rent reserved in this Lease. Nothing contained in Articles 19 or
20 shall be deemed to limit or preclude the recovery by Landlord from Tenant of the maximum
amount allowed to be obtained as damages under applicable Requirements, or of any sums or damages
to which Landlord may be entitled in addition to the damages set forth in this Section.




     Section 20.3 Default Interest; Other Rights of Landlord. Any Rent or damages payable
under this Lease and not paid when due shall bear interest at the Interest Rate from the due date
until paid, and the interest shall be deemed Additional Rent. If Tenant fails to pay any
Additional Rent when due, Landlord, in addition to any other right or remedy, shall have the same
rights and remedies as in the case of a default by Tenant in the payment of Fixed Rent. If Tenant
is in arrears in the payment of Rent, Tenant waives Tenant’s right, if any, to designate the items
against which any payments made by Tenant are to be credited, and Landlord may apply any payments
made by Tenant to any items Landlord sees fit, regardless of any request by Tenant. Landlord
reserves the right, without liability to Tenant and without constituting any claim of constructive
eviction, to suspend furnishing or rendering to Tenant any overtime Building services or labor,
materials or other property or services for which Tenant is obligated to pay a separate charge
under this Lease (excluding electricity and water), in the event that (but only for so long as)
Tenant is in arrears in paying Landlord for such items for more than five (5) Business Days after
notice from Landlord to Tenant demanding the payment of such arrears.



ARTICLE 21




LANDLORD’S RIGHT TO CURE; REIMBURSEMENT




     Section 21.1 Landlord’s Right to Cure. If Tenant defaults in the performance of its
obligations under this Lease, Landlord, without thereby waiving such default, may perform such
obligation for the account and at the expense of Tenant: (i) immediately or at any time
thereafter, and without notice, in the case of emergency or in case the default (A) materially
interferes with the use by any other tenant of any space in the Building, (B) materially interferes
with the efficient operation of the Building, (C) has resulted in a violation of any Requirements,
(D) will result in a default under any Mortgage or Superior Lease, or (E) will result in a
cancellation of any insurance policy maintained by Landlord, and (ii) in any other case if such
default continues after ten (10) days from the date Landlord gives notice of Landlord’s intention



47









 




so to perform the defaulted obligation. All out-of-pocket costs and expenses incurred by
Landlord in connection with any such performance by it for the account of Tenant and all costs and
expenses, including reasonable counsel fees and disbursements, incurred by Landlord in any
action or proceeding (including any summary dispossess proceeding) brought by Landlord to
enforce any obligation of Tenant under this Lease and/or right of Landlord in or to the Premises,
shall be paid by Tenant to Landlord on demand, with interest thereon at the Interest Rate from the
date incurred by Landlord. Except as expressly provided to the contrary in this Lease, all costs
and expenses which, pursuant to this Lease (including the Rules and Regulations) are incurred by
Landlord and payable to Landlord by Tenant, and all charges, amounts and sums payable to Landlord
by Tenant for any property, material, labor, utility or other services which, pursuant to this
Lease or at the request and for the account of Tenant, are provided, furnished or rendered by
Landlord, shall become due and payable by Tenant to Landlord in accordance with the terms of the
bills rendered by Landlord to Tenant.




     Section 21.2 Reimbursement For Tenant’s Default. Tenant shall reimburse Landlord,
within five (5) days after demand, for all expenditures (including reasonable attorney fees and
disbursements) made by, or damages, costs or fines sustained or incurred by, Landlord due to any
default by Tenant under this Lease, with interest thereon at the Interest Rate, from the date such
expenditures were made, or damages, costs or fines incurred, until the date reimbursed by Tenant.



ARTICLE 22




NO REPRESENTATIONS BY LANDLORD; LANDLORD’S APPROVAL




     Section 22.1 No Representations. Except as expressly set forth herein, Landlord and
Landlord’s agents have made no warranties, representations, statements or promises with respect to
(i) the rentable and usable areas of the Premises or the Building, (ii) the amount of any current
or future Operating Expenses or Taxes, (iii) the compliance with applicable Requirements of the
Premises or the Building, or (iv) the suitability of the Premises for any particular use or
purpose. No rights, easements or licenses are acquired by Tenant under this Lease, by implication
or otherwise. Tenant is not relying upon any statement or representation made by Landlord not
embodied in this Lease.



     Section 22.2 Written Approval. All references in this Lease to the consent or
approval of Landlord mean the written consent or approval of Landlord, duly executed by Landlord.
All consents or approvals of Landlord may be granted or withheld in Landlord’s sole discretion
unless specifically provided to the contrary in this Lease.



     Section 22.3 No Money Damages. (a) Wherever in this Lease Landlord’s consent or
approval is required, if Landlord refuses to grant such consent or approval, whether or not
Landlord expressly agreed that such consent or approval would not be unreasonably withheld, Tenant
shall not make, and Tenant hereby waives, any claim for money damages (including any claim by way
of set-off, counterclaim or defense) based upon Tenant’s claim or assertion that Landlord
unreasonably withheld or delayed its consent or approval. Tenant’s sole remedy shall



48









 







be an action or proceeding to enforce such provision, by specific performance, injunction or
declaratory judgment.



          (b) In no event under this Lease shall Landlord be liable for, and Tenant, on behalf of itself
and all other Tenant Parties, hereby waives any claim for, any indirect, consequential or punitive
damages, including loss of profits or business opportunity, arising under or in connection with
this Lease.



ARTICLE 23




END OF TERM




     Section 23.1 Expiration. Upon the expiration or other termination of this Lease,
Tenant shall quit and surrender the Premises to Landlord, vacant, broom clean and in good order and
condition, ordinary wear and tear and damage by fire, other casualty or taking by eminent domain
for which Tenant is not responsible under the terms of this Lease excepted, and Tenant shall remove
all of Tenant’s Property and Tenant’s Alterations as may be required pursuant to Article 5
of this Lease.



     Section 23.2 Holdover Rent. Landlord and Tenant recognize that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the Premises may be
substantial, may exceed the amount of the Rent theretofore payable hereunder, and will be
impossible to accurately measure. Tenant therefore agrees that if possession of the Premises is
not surrendered to Landlord on or before the Expiration Date or sooner termination of the Term, in
addition to any other rights or remedies Landlord may have hereunder or at law, Tenant shall:



          (a) (i) pay to Landlord, for each month (or any portion thereof) occurring prior to the date
forty-five (45) days after the Expiration Date or sooner termination of the Term, during which
Tenant holds over in the Premises after the Expiration Date or sooner termination of the Term, a
sum equal to the greater of (1) one and one-half times (1.5x) the Rent payable under this Lease for
the last full calendar month of the Term, or (2) one and one-half times (1.5x) the fair market
rental value of the Premises for such month (as reasonably determined by Landlord); and




               (ii) pay to Landlord, for each month (or any portion thereof), occurring on or after the date
forty-five (45) days after the Expiration Date or sooner termination of the Term, during which
Tenant holds over in the Premises after the Expiration Date or sooner termination of the Term, a
sum equal to the greater of (1) two times (2x) the Rent payable under this Lease for the last full
calendar month of the Term, or (2) two times (2x) the fair market rental value of the Premises for
such month (as reasonably determined by Landlord);




          (b) be liable to Landlord for (i) any payment or rent concession which Landlord may be
required to make to any tenant obtained by Landlord for all or any part of the Premises (a “New
Tenant”) in order to induce such New Tenant not to terminate its lease by reason of the


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holding-over by Tenant, and (ii) the loss of the benefit of the bargain if any New Tenant
shall terminate its lease by reason of the holding-over by Tenant; and




          (c) indemnify Landlord against all claims for damages by any New Tenant; but Tenant shall have
the right, at Tenant’s expense, to participate with Landlord in the defense of Landlord against any
such claims by any New Tenant.



No holding-over by Tenant, nor the payment to Landlord of the amounts specified above, shall
operate to extend the Term hereof. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner termination of this Lease,
and no acceptance by Landlord of payments from Tenant after the Expiration Date or sooner
termination of the Term shall be deemed to be other than on account of the amount to be paid by
Tenant in accordance with the provisions of this Article.




     Section 23.3 Waiver of Stay. Tenant expressly waives, for itself and for any Person
claiming through or under Tenant, any rights which Tenant or any such Person may have under the
provisions of Section 2201 of the New York Civil Practice Law and Rules and of any successor law of
like import then in force, in connection with any holdover summary proceedings which Landlord may
institute to enforce the foregoing provisions of this Article.



ARTICLE 24




NO SURRENDER; NO WAIVER




     Section 24.1 No Surrender or Release. No act or thing done by Landlord or Landlord’s
agents or employees during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender of the Premises shall be valid unless in writing and
signed by Landlord. The delivery of keys to any employee of Landlord or Landlord’s agent shall not
operate as a termination of this Lease or a surrender of the Premises.



     Section 24.2 No Waiver. No provision of this Lease shall be deemed to have been
waived by any party unless such waiver is in writing and is signed by the party against whom such
waiver is asserted, and any such waiver shall be effective only for the specific purpose and in the
specific instance in which given. The failure of either party to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this Lease, or any of the
Rules and Regulations, shall not be construed as a waiver or relinquishment for the future
performance of such obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and effect with respect
to any subsequent breach, act or omission. The receipt by Landlord of any Rent payable pursuant to
this Lease or any other sums with knowledge of the breach of any covenant of this Lease shall not
be deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly Fixed Rent or Additional Rent herein stipulated shall be deemed to be other than a
payment on account of the earliest stipulated Fixed Rent or Additional Rent, or as Landlord may
elect to apply such payment, nor shall any endorsement or acceptance of any check or other payment
in the face of a statement on such check or any letter accompanying such check or payment be deemed
an accord and satisfaction, and Landlord may




50










 




accept such check or payment without prejudice to Landlord’s right to recover the balance of
such Fixed Rent or Additional Rent or pursue any other remedy provided in this Lease. The
existence of a right of renewal or extension of this Lease, or the exercise of such right, shall
not limit Landlord’s right to terminate this Lease in accordance with the terms hereof.




ARTICLE 25




WAIVER OF TRIAL BY JURY




          Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by either party against the other on any matters in any way arising out of or connected
with this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the
Premises, or the enforcement of any remedy under any Requirements. If Landlord commences any
summary proceeding against Tenant, Tenant will not interpose any counterclaim of any nature or
description in any such proceeding (unless failure to impose such counterclaim would preclude
Tenant from asserting in a separate action the claim which is the subject of such counterclaim),
and will not seek to consolidate such proceeding with any other action which may have been or will
be brought in any other court by Tenant.



ARTICLE 26




Intentionally Omitted.




ARTICLE 27




NOTICES




          (a) Except as otherwise expressly provided in this Lease, any consents, notices, demands,
requests, approvals or other communications given under this Lease shall be in writing and shall be
deemed sufficiently given or rendered if delivered by hand (provided a signed receipt is obtained)
or if sent by registered or certified mail (return receipt requested) or by a nationally recognized
overnight delivery service making receipted deliveries, addressed as follows:



          if to Tenant, (i) at Tenant’s address set forth on the first page of this Lease, Attention:
General Counsel, if given prior to Tenant’s taking possession of the Premises, or (ii) at the
Building, Attention: General Counsel, if given subsequent to Tenant’s taking possession of the
Premises, and in either case with a copy thereof, similarly sent, shall be sent to Donald M. Bloch,
Esq., Posternak Blankstein & Lund, LLP, 100 Charles River Plaza, Boston, Massachusetts 02114; or



          if to Landlord, at Landlord’s address set forth on the first page of this Lease, Attention:
Property Management, and with copies to (A) Reckson Associates Realty Corp., 225 Broadhollow Road,
Melville, New York 11747, Attention: Jason Barnett, Esq., Office of



51









 







General Counsel, (B) Reckson Associates Realty Corp., 120 West 45th Street, New
York, New York 10036, Attention: Building Management Office, and (C) any Mortgagee or Lessor which
shall have requested copies of notices, by notice given to Tenant in accordance with the provisions
of this Article, at the address designated by such Mortgagee or Lessor; or



          to such other address(es) as either Landlord or Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other in accordance with
the provisions of this Article. Any such consent, notice, demand, request or other communication
shall be deemed to have been given on the date of receipted delivery or refusal to accept delivery
as provided in this Article 27, or the date delivery is first attempted but cannot be made
due to a change of address of which no notice was given.



          (b) Rent statements, if any, and bills for Additional Rent shall be delivered to Tenant at the
Building, Attention Keith Komar; telephone number: 212 583 1576.



ARTICLE 28




RULES AND REGULATIONS




          Tenant and all Tenant Parties shall observe and comply with the Rules and Regulations, as
supplemented or amended from time to time, provided, that in case of any conflict or inconsistency
between the provisions of this Lease and any of the Rules and Regulations as originally promulgated
or as supplemented or amended from time to time, the provisions of this Lease shall control.
Landlord reserves the right, from time to time, to adopt additional Rules and Regulations and to
amend the Rules and Regulations then in effect. Nothing contained in this Lease shall impose upon
Landlord any obligation to enforce the Rules and Regulations or terms, covenants or conditions in
any other lease against any other Building tenant, and Landlord shall not be liable to Tenant for
violation of the Rules and Regulations by any other tenant, its employees, agents, visitors or
licensees, except that Landlord shall not enforce any Rule or Regulation against Tenant in a
discriminatory fashion.



ARTICLE 29




PARTNERSHIP TENANT




     Section 29.1 Partnership Tenant. If Tenant, or a permitted assignee of this Lease
pursuant to Article 16, is a partnership, or is comprised of two or more Persons,
individually or as partners of a partnership (any such partnership and such Persons are referred to
in this Article 29 as “Partnership Tenant”), the following shall apply: (i) the
liability of each of the general partners (excluding Persons solely holding interests as limited
partners), each of the partners in a limited liability partnership or Persons comprising
Partnership Tenant (the “Partners”) shall be joint and several; (ii) each of the Partners
hereby consents in advance to, and agrees to be bound by, any written instrument which may
hereafter be executed by Partnership Tenant or any of the Partners, which shall modify, extend or
discharge this Lease, in whole or in part, or surrender all or any part of the Premises to
Landlord; (iii) any bills, statements, notices, demands, requests or other communications given or
rendered to Partnership Tenant or to any of



52









 







the Partners shall be binding upon Partnership Tenant and all of the Partners; (iv) if
Partnership Tenant shall admit new Partners, all new Partners shall, by their admission to
Partnership Tenant, be deemed to have assumed joint and several liability for the performance of
all of the terms, covenants and conditions of this Lease on Tenant’s part to be observed and
performed; (v) Partnership Tenant shall give prompt notice to Landlord of the admission of any new
Partners, and upon demand of Landlord, shall cause each new Partner to execute and deliver to
Landlord an agreement in form and substance satisfactory to Landlord, wherein each new Partner
shall assume joint and several liability for the performance of all the terms, covenants and
conditions of this Lease on Tenant’s part to be observed and performed (but neither Landlord’s
failure to request any such agreement nor the failure of any new Partner to execute or deliver any
such agreement to Landlord shall vitiate the provisions of this Section 29.1); and (vi) no
change in the Partners of Partnership Tenant resulting from the admission of a new Partner, or the
death, retirement or withdrawal of a Partner, shall release Partnership Tenant or any Partner or
former Partner from their obligations under this Lease. Landlord agrees that so long as Tenant is a
limited liability company and not a partnership, the provisions of this Section 29.1 shall
not apply to Tenant.



ARTICLE 30




VAULT SPACE




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



ARTICLE 31




BROKERS




          Each of Landlord and Tenant represents and warrants to the other that it has not dealt with
any broker in connection with this Lease other than Insignia/ESG, Inc. and Julien J. Studley, Inc.
(collectively, the “Broker”) and that, to the best of its knowledge and belief, no other
broker, finder or like entity procured or negotiated this Lease or is entitled to any fee or
commission in connection herewith. Each of Landlord and Tenant shall indemnify, defend, protect
and hold the other party harmless from and against any and all Losses (as defined in Section
32.1(b)) which the indemnified party may incur by reason of any claim of or liability to any
broker, finder or like agent (other than the Broker) arising out of any dealings claimed to



53









 







have occurred between the indemnifying party and the claimant in connection with this Lease,
or the above representation being false. Landlord shall be responsible for the commission due and
payable to the Broker pursuant to a separate agreement. Landlord confirms that Reckson Associates
Realty Corp. is not a broker in connection with this Lease.



ARTICLE 32




INDEMNITY




     Section 32.1 (a) Tenant’s Indemnity. Tenant or any Tenant Party shall not do or
permit to be done any act or thing upon the Premises, the Building or the Real Property which may
subject Landlord to any liability or responsibility for injury, damages to persons or property or
to any liability by reason of any violation of any Requirements, and shall exercise such control
over the Premises as to fully protect the Indemnitees against any such liability. Tenant shall
indemnify, defend, protect and hold harmless each of the Indemnitees from and against any and all
Losses to which any Indemnitee may (except to the extent arising from the negligence or willful
misconduct of any such Indemnitee) be subject or suffer, whether by reason of, or by reason of any
claim for, any injury to, or death of, any person or persons or damage to property (including any
loss of use thereof) or otherwise arising from or in connection with the use of, or from any work
or thing whatsoever done in, any part of the Premises (other than by such Indemnitee) or by any
Tenant Party in the Building, during the Term or during the period of time, if any, prior to the
commencement or following the expiration of the Term that any Tenant Party may have been given
access to any portion of the Premises for the purpose of performing work or otherwise, or as a
result of any Tenant Party performing any such work or otherwise that subjects any Indemnitee to
any Requirements to which such Indemnitee would not otherwise be subject, or arising from any
condition of the Premises due to or resulting from any default by Tenant in the keeping, observance
or performance of any provision contained in this Lease or from any act or negligence of any Tenant
Party.



          (b) Indemnity Inclusions. As used in this Lease, the term “Losses” means any and all
losses, liabilities, damages, claims, judgments, fines, suits, demands, costs, interest and
expenses of any kind or nature (including reasonable attorneys’ fees and disbursements) incurred in
connection with any claim, proceeding or judgment and the defense thereof, and including all costs
of repairing any damage to the Premises, the Building or the Real Property or any part thereof, or
the appurtenances of any of the foregoing, to which a particular indemnity and hold harmless
agreement applies.



          (c) Landlord’s Indemnity. Except as otherwise provided in Section 13.2, and
subject to the provisions of Section 13.2, Landlord shall indemnify, defend and hold Tenant
and any Tenant Party harmless from and against any and all Losses imposed upon, incurred by or
asserted against Tenant and arising directly as a result of or directly in connection with
Landlord=s negligence or willful misconduct or the negligence or
willful misconduct of Landlord=s
agents, servants, contractors or employees.



     Section 32.2 Defense and Settlement. If any claim, action or proceeding is made or
brought against any party entitled to indemnification hereunder, then, upon demand by the



54









 







indemnified party, the indemnifying party, at its sole cost and expense, shall resist or
defend such claim, action or proceeding in the indemnified party’s name (if necessary), by
attorneys approved by the indemnified party, which approval shall not be unreasonably withheld.
Attorneys for the indemnifying party’s insurer shall hereby be deemed approved for purposes of this
Section 32.2. Notwithstanding the foregoing, an indemnified party, at its own cost and
expense, may retain its own attorneys to participate or assist in defending any claim, action or
proceeding, provided that the indemnifying party shall control the defense. Notwithstanding
anything herein contained to the contrary, the indemnifying party may direct the indemnified party
to settle any claim, suit or other proceeding provided that (i) such settlement shall involve no
obligation on the part of the indemnified party other than the payment of money, (ii) any payments
to be made pursuant to such settlement shall be paid in full exclusively by the indemnifying party
at the time such settlement is reached, (iii) such settlement shall not require the indemnified
party to admit any liability or wrongdoing, and (iv) the indemnified party shall have received an
unconditional release from the other parties to such claim, suit or other proceeding.



ARTICLE 33




TAX STATUS OF BENEFICIAL OWNERS




     Tenant recognizes and acknowledges that Landlord and/or certain beneficial owners of Landlord
may from time to time qualify as real estate investment trusts pursuant to Sections 856 et seq. of
the Code or as entities described in Section 511(a)(2) of the Code, and that avoiding (i) the loss
of such status, (ii) the receipt of any income derived under any provision of this Lease that does
not constitute “rents from real property” (in the case of real estate investment trusts) or that
constitutes “unrelated business taxable income” (in the case of entities described in Section
511(a)(2) of the Code), and (iii) the imposition of penalty or similar taxes (each, an “Adverse
Event”) is of material concern to Landlord and such beneficial owners and Tenant’s agreement
herein contained regarding the avoidance of an Adverse Event is a material inducement to Landlord
entering into this Lease. In the event that this Lease or any document contemplated hereby could,
in the opinion of counsel to Landlord, result in or cause an Adverse Event, Tenant agrees to
cooperate with Landlord (at the reasonable expense of Landlord) in amending or modifying this Lease
or such documents and shall at the request of Landlord execute and deliver such documents
reasonably required to effect such amendment or modification. Any amendment or modification
pursuant to this Article 33 shall be structured so that the economic results to Landlord
and Tenant shall be substantially similar to those set forth in this Lease without regard to such
amendment or modification. Without limiting any of Landlord’s other rights under this Article
33, Landlord may waive the receipt of any amount payable to Landlord under this Lease, and such
waiver shall constitute an amendment or modification of this Lease with respect to such payment.



55









 





ARTICLE 34




SECURITY DEPOSIT




          (a) Security Deposit. Tenant shall deposit the Security Deposit with Landlord upon
the execution of this Lease in cash as security for the faithful performance and observance by
Tenant of the terms, covenants and conditions of this Lease, including the surrender of possession
of the Premises to Landlord as herein provided. If the Security Deposit is in the form of cash, the
Security Deposit shall be held, until applied or returned in accordance with this Article, in an
interest bearing account, and all interest earned thereon shall be deemed to be a portion of, and
shall be treated in the same manner as, the Security Deposit, except that such interest (less the
administrative fee due to Landlord) shall be paid to Tenant not less frequently than annually,
provided that no Event of Default shall have occurred and be continuing. If the Security Deposit is
in the form of cash (i) Landlord shall have no obligation to obtain any specific rate of interest
on the Security Deposit, and (ii) Landlord shall receive a one percent (1%) per annum
administrative fee in connection with the maintenance of such interest bearing account, except that
Landlord shall waive such administrative fee only for the period of six (6) months from and after
the Commencement Date.



     Section 34.2 Letter of Credit. In lieu of a cash deposit, Tenant (at any time after
delivery to Landlord of such cash deposit) may deliver the Security Deposit to Landlord in the form
of a clean, irrevocable, non-documentary and unconditional letter of credit in the amount of the
Security Deposit, in the form attached hereto as Exhibit H (the “Letter of Credit”) issued
by and drawable upon any commercial bank, trust company, national banking association or savings
and loan association with offices for banking and drawing purposes in the City of New York (the
“Issuing Bank”), which has outstanding unsecured, uninsured and unguaranteed indebtedness,
or shall have issued a letter of credit or other credit facility that constitutes the primary
security for any outstanding indebtedness (which is otherwise uninsured and unguaranteed), that is
then rated, without regard to qualification of such rating by symbols such as “+” or “-” or
numerical notation, “Aa” or better by Moody’s Investors Service and “AA” or better by Standard &
Poor’s Ratings Service (and is not on credit-watch with negative implications), and has combined
capital, surplus and undivided profits of not less than $500,000,000. The Letter of Credit shall
(i) name Landlord as beneficiary, (ii) be in the amount of the Security Deposit, (iii) have a term
of not less than one year, (iv) permit multiple drawings, (v) be fully transferable by Landlord
multiple times without the consent of Tenant and without the payment of any fees or charges,(vi) be
payable to Landlord or an authorized representative of Landlord upon presentation of only the
Letter of Credit and a sight draft and shall not contain as a condition to a draw the requirement
of Landlord’s certification or other statement as to the existence of Tenant’s default, and (vii)
otherwise be in form and content satisfactory to Landlord; provided, however, that Landlord shall
in no event be obligated to accept a Letter of Credit for any amount less than $50,000. If upon
any transfer of the Letter of Credit, any fees or charges shall be so imposed, then such fees or
charges shall be payable solely by Tenant and the Letter of Credit shall so specify. The Letter of
Credit shall provide that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the Term through the date that is at least
sixty (60) days after the Expiration Date, unless the Issuing



56









 







Bank sends a notice (the “Non-Renewal Notice”) to Landlord by certified mail, return
receipt requested, not less than sixty (60) days prior to the then-current expiration date of the
Letter of Credit, stating that the Issuing Bank has elected not to renew the Letter of Credit.
Landlord shall have the right, upon receipt of a Non-Renewal Notice, to draw the full amount of the
Letter of Credit, by sight draft on the Issuing Bank, and shall thereafter hold or apply the cash
proceeds of the Letter of Credit pursuant to the terms of this Article 34. The Letter of
Credit shall state that drafts drawn under and in compliance with the terms of the Letter of Credit
will be duly honored upon presentation to the Issuing Bank at an office location in New York City.
The Letter of Credit shall be subject in all respects to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590. Tenant shall cooperate, at
Tenant’s expense, with Landlord to promptly execute and deliver to Landlord any and all
modifications, amendments, and replacements of the Letter of Credit, as Landlord may reasonably
request to carry out the intent, terms and conditions of this Article 34. If Tenant shall deliver
to Landlord a Letter of Credit in lieu of a cash deposit as herein provided, then within a
reasonable period thereafter Landlord shall return to Tenant the unapplied balance, if any, of the
cash deposit previously deposited by Tenant with Landlord as security, plus the interest thereon to
the extent not previously applied or paid to Tenant, and less, however, the administrative fee to
which Landlord is entitled.



     Section 34.3 Application of Security. If Tenant defaults, beyond the applicable
notice and/or cure period, if any, in the payment or performance of any of the terms, covenants or
conditions of this Lease, including the payment of Rent, Landlord may use, apply or retain the
whole or any part of the cash Security Deposit or may notify the Issuing Bank and thereupon receive
all or a portion of the Security Deposit represented by the Letter of Credit, and use, apply, or
retain the whole or any part of such proceeds, as the case may be, to the extent required for the
payment of any Rent or any other sum as to which Tenant is in default, including (i) any sum which
Landlord may expend or may be required to expend by reason of Tenant’s default, and (ii) any
damages or Deficiency to which Landlord is entitled pursuant to this Lease or applicable
Requirements, whether such damages or Deficiency accrue before or after summary proceedings or
other reentry by Landlord. If Landlord uses, applies or retains any part of the Security Deposit,
Tenant, upon demand, shall deposit with Landlord the amount so applied or retained so that Landlord
shall have the full Security Deposit on hand at all times during the Term. If Tenant shall fully
and faithfully comply with all of the terms, covenants and conditions of this Lease, the Security
Deposit (or so much thereof as remains) shall be returned to Tenant within thirty (30) days after
the Expiration Date and after delivery of possession of the Premises to Landlord in the manner
required by this Lease, but if Tenant shall not have so complied, then the Security Deposit (or so
much thereof as remains) shall be returned to Tenant after the Expiration Date and after delivery
of possession of the Premises to Landlord in the manner required by this Lease, within thirty (30)
days after all defaults under this Lease are cured and there are no amounts due and payable to
Landlord hereunder. Tenant expressly agrees that Tenant shall have no right to apply any portion of
the Security Deposit against any of Tenant’s obligations to pay Rent hereunder.



     Section 34.4 Transfer. Upon a sale of the Building or the Real Property or a leasing
of the Building, or any financing of Landlord’s interest therein, Landlord shall have the right to



57









 







transfer the cash Security Deposit or the Letter of Credit, as applicable, to the vendee,
lessee or lender. With respect to the Letter of Credit, within ten (10) days after notice from
Landlord of any such anticipated sale, leasing or financing, Tenant, at its sole cost, shall
arrange for the transfer of the Letter of Credit to the new landlord or lender, as designated by
Landlord in the foregoing notice, or to have the Letter of Credit reissued in the name of the new
landlord or lender. Tenant shall look solely to the new landlord or lender for the return of such
cash Security Deposit or Letter of Credit, and the provisions of this Section 34.4 shall
apply to every transfer or assignment made of the Security Deposit to a new landlord. Tenant will
not assign or encumber, or attempt to assign or encumber, the cash Security Deposit or Letter of
Credit, and neither Landlord nor its successors or assigns shall be bound by any such actual or
attempted assignment or encumbrance.



     Section 34.5 Security Deposit Reduction. (a) Subject to the provisions of Section
34.5(b) hereof, the Security Deposit shall be reduced on each of the following reduction dates
(the “Reduction Dates”) as follows:




          (i) On the day succeeding the second anniversary of the Rent Commencement Date, the
total Security Deposit shall be reduced to $505,665.00.




          (ii) On the day succeeding the fourth anniversary of the Rent Commencement Date, the
total Security Deposit shall be reduced to $429,815.00.




          (iii) On the day succeeding the sixth anniversary of the Rent Commencement Date, the
total Security Deposit shall be reduced to $365,342.00.




          (iv) On the day succeeding the eighth anniversary of the Rent Commencement Date, until
the expiration of the Term (as same may be extended or renewed pursuant to this Lease), the
total Security Deposit shall be reduced to $148,725.00.



          (b) Notwithstanding anything to the contrary contained herein, the reduction of the Security
Deposit set forth above shall be expressly conditioned that on each applicable Reduction Date the
Lease shall be in full force and effect and no Event of Default is occurring or has occurred.



          (c) If the Security Deposit shall be held by Landlord in cash, then within ten (10) Business
Days after any applicable Reduction Date under this Section, Landlord shall credit such amount
against the next installment of Fixed Rent. If the Security Deposit is being held by Landlord in
the form of a Letter of Credit pursuant to Section 34.2 of this Lease, prior to any such
reduction, Tenant shall deliver to Landlord an amendment to, or a substitute for, the Letter of
Credit (which amendment or substitute shall be reasonably acceptable to Landlord in all respects),
reducing the amount of the Letter of Credit by the amount of the reduction permitted by this
Section.



58









 





ARTICLE 35




MISCELLANEOUS




     Section 35.1 Delivery. This Lease shall not be binding upon either party unless and
until both parties shall have executed and delivered, each to the other, a counterpart of this
Lease.



     Section 35.2 Transfer of Real Property. Landlord named herein shall not be liable for
any obligations under this Lease accruing after the sale, conveyance, assignment, transfer or lease
by Landlord named herein of Landlord’s interest in the Building or the Real Property, as the case
may be (collectively, a “Transfer”) (nor shall any subsequent landlord be liable for any
obligations under this Lease accruing after the Transfer by such subsequent landlord) and in the
event of any such Transfer, Landlord (and any such subsequent landlord) shall be entirely freed and
relieved of all covenants and obligations of Landlord hereunder to the extent accruing after such
Transfer, and the transferee of Landlord’s interest (or that of such subsequent landlord) in the
Building or the Real Property, as the case may be, shall be deemed to have assumed all obligations
under this Lease accruing from and after such Transfer.



     Section 35.3 Limitation on Liability. The liability of Landlord for Landlord’s
obligations under this Lease shall be limited to Landlord’s interest from time to time in the Real
Property and Tenant and any Tenant Party shall not look to any other property or assets of Landlord
or the property or assets of any of the Indemnitees in seeking either to enforce Landlord’s
obligations under this Lease or to satisfy a judgment for Landlord’s failure to perform such
obligations; and none of the Indemnitees shall be personally liable for the performance of
Landlord’s obligations under this Lease.



     Section 35.4 Rent. Notwithstanding anything to the contrary contained in this Lease,
all amounts payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated Fixed Rent, Tenant’s Tax Payment, Tenant’s Operating Payment, Additional Rent
or Rent, shall constitute rent for the purposes of Section 502(b)(6) of the United States
Bankruptcy Code and other Requirements.



     Section 35.5 Entire Agreement. This Lease (including any Schedules and Exhibits
referred to herein and all supplementary agreements provided for herein) contains the entire
agreement between the parties and all prior negotiations and agreements are merged into this Lease.
All of the Schedules and Exhibits attached hereto are incorporated in and made a part of this
Lease, provided that, in the event of any inconsistency between the terms and provisions of this
Lease and the terms and provisions of the Schedules and Exhibits hereto, the terms and provisions
of this Lease shall control. All Article and Section references set forth herein shall, unless the
context otherwise requires, be deemed references to the Articles and Sections of this Lease.



     Section 35.6 Governing Law. This Lease shall be governed in all respects by the laws
of the State of New York.



59









 





     Section 35.7 Partial Unenforceability. If any provision of this Lease, or its
application to any Person or circumstance, shall ever be held to be invalid or unenforceable, then
in each such event the remainder of this Lease or the application of such provision to any other
Person or any other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.



     Section 35.8 Consent to Jurisdiction. (a) Except as expressly provided to the
contrary in this Lease, Tenant, any Tenant Party, and Landlord all agree that all disputes arising,
directly or indirectly, out of or relating to this Lease, and all actions to enforce this Lease,
shall be dealt with and adjudicated in the state courts of the State of New York or the federal
courts for the Southern District of New York; and for that purpose Tenant, any Tenant Party and
Landlord each expressly and irrevocably submit themselves to the jurisdiction of such courts.
Tenant, any Tenant Party and Landlord each agree that so far as is permitted under applicable law,
this consent to personal jurisdiction shall be self-operative and no further instrument or action,
other than service of process in one of the manners specified in this Lease, or as otherwise
permitted by law, shall be necessary in order to confer jurisdiction upon it in any such court.
Tenant, any Tenant Party and Landlord each further agree that judgment against them in any such
action or proceeding shall be conclusive and, to the extent permitted by applicable law, may be
enforced in any other jurisdiction within or outside the United States of America by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and of
the amount of its indebtedness.



          (b) To the extent that Tenant and any Tenant Party have or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, Tenant irrevocably waives such immunity in respect of its obligations
under this Lease.



     Section 35.9 Survival. All obligations and liabilities of Landlord or Tenant to the
other which accrued before the expiration or other termination of this Lease, and all such
obligations and liabilities which by their nature or under the circumstances can only be, or by the
provisions of this Lease may be, performed after such expiration or other termination, shall
survive the expiration or other termination of this Lease. Without limiting the generality of the
foregoing, the rights and obligations of the parties with respect to any indemnity under this
Lease, and with respect to Fixed Rent, Tenant’s Tax Payment, Tenant’s Operating Payment and any
other amounts payable under this Lease, shall survive the expiration or other termination of this
Lease.



     Section 35.10 Estoppels. Within ten (10) Business Days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a statement executed and
acknowledged by Tenant, in form reasonably satisfactory to Landlord, (i) stating the Commencement
Date, the Rent Commencement Date and the Expiration Date, and that this Lease is then in full force
and effect and has not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which Fixed Rent and any Additional Rent have been paid, together with
the amount of monthly Fixed Rent, Tenant’s Tax Payment and Tenant’s Operating Payment then payable,
(iii) stating whether or not, to the best of Tenant’s knowledge,




60










 




Landlord is in default under this Lease, and, if Tenant asserts that Landlord is in
default, setting forth the specific nature of any such defaults, (iv) stating whether Landlord has
failed to complete any work required to be performed by Landlord under this Lease, (v) stating
whether there are any sums payable to Tenant by Landlord under this Lease, (vi) stating the amount
of the Security Deposit, if any, under this Lease, (vii) stating whether there are any subleases
affecting the Premises, (viii) stating the address of Tenant to which all notices and
communications under this Lease shall be sent, and (ix) responding to any other matters reasonably
requested by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that any statement
delivered pursuant to this Section 35.10 may be relied upon by any purchaser or owner of
the Real Property or the Building, or all or any portion of Landlord’s interest in the Real
Property or the Building or under any Superior Lease, or by any Mortgagee or assignee thereof, or
by any Lessor or assignee thereof.




     Section 35.11 Certain Rules of Interpretation. For purposes of this Lease, whenever
the words “include”, “includes”, or “including” are used, they shall be deemed to be followed by
the words “without limitation”, and, whenever the circumstances or the context requires, the
singular shall be construed as the plural, the masculine shall be construed as the feminine and/or
the neuter and vice versa. This Lease shall be interpreted and enforced without the aid of any
canon, custom or rule of law requiring or suggesting construction against the party drafting or
causing the drafting of the provision in question.



     Section 35.12 Captions. The captions in this Lease are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of this Lease or
the intent of any provision hereof.



     Section 35.13 Parties Bound. The terms, covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and, except as
otherwise provided in this Lease, to their respective legal representatives, successors, and
assigns.



     Section 35.14 Recording. Neither this Lease nor any memorandum of this Lease shall be
recorded.



     Section 35.15 Counterparts. This Lease may be executed in duplicate counterparts,
each of which shall be deemed an original and all of which, when taken together, shall constitute
one and the same instrument.



ARTICLE 36




RENEWAL TERM




     Section 36.1 Option to Renew. Pzena Investment Management, LLC only, as Tenant, shall
have the one-time right, at its option, to renew this Lease, for all of the Premises for a renewal
term (“Renewal Term”) of five (5) years. The Renewal Term shall commence (“Renewal
Term Commencement Date”) on the day immediately following the Expiration Date and shall
terminate on the day immediately preceding the fifth anniversary of the Renewal Term



61









 







Commencement
Date. Tenant shall exercise the option described herein by giving Landlord
written notice of such election to renew (“Renewal Notice”) not later than the day
which is eighteen months prior to the Expiration Date, and upon the giving of such notice this
Lease shall thereupon be deemed renewed for the Renewal Term with the same force and effect as if
the Renewal Term had originally been included in the term of this Lease. Time is of the essence
with respect to Tenant’s Renewal Notice. The right of Tenant to renew this Lease shall be
conditioned upon (i) there shall be no Event of Default at the time of the Renewal Notice and as of
the Renewal Term Commencement Date, (ii) the original Tenant named herein and its Affiliates
occupying, in the aggregate, not less than ninety percent (90%) of the rentable square footage of
the Premises as of the date of the Renewal Notice and the Renewal Term Commencement Date, and (iii)
upon this Lease being in full force and effect at the time of the exercise of such option and as of
the Renewal Term Commencement Date.



     Section 36.2 Terms of Lease. All of the terms, covenants and conditions of this Lease
shall continue in full force and effect during the Renewal Term, except that (i) the Fixed Rent for
the Renewal Term shall be in an amount equal to the Fair Market Rent (as determined below), (ii)
Tenant shall have no further right to renew the term of this Lease, (iii) Base Taxes shall be the
average of (1) the Taxes for the Tax Year commencing July 1, 2012 and ending on June 30, 2013, and
(2) the Taxes for the Tax Year commencing July 1, 2013 and ending on June 30, 2014, and Base
Expenses shall be the Operating Expenses for the Computation Year commencing January 1, 2013 and
ending December 31, 2013, and (iv) the Rent Commencement Date in respect of the Renewal Term shall
be the Renewal Term Commencement Date. Any termination, cancellation or surrender of the interest
of Tenant under this Lease at any time during the Term hereof shall terminate any right of renewal
of Tenant hereunder. Upon the determination of the Fixed Rent in accordance with Section
36.3 below for the Renewal Term, Landlord and Tenant, upon the demand of either of them, shall
execute and deliver an instrument setting forth the Fixed Rent for the Renewal Term.



     Section 36.3 Fixed Rent. For purposes of determining the Fixed Rent payable during
the Renewal Term, the Fair Market Rent of the Premises shall be equal to the fair market annual
rental value of the Premises as of the Renewal Term Commencement Date, as determined in accordance
with the terms hereof. Not later than ninety (90) days prior to the Renewal Term Commencement
Date, Landlord shall give notice (“Valuation Notice”) to Tenant setting forth the amount
which Landlord determines to be the Fair Market Rent for the Renewal Term. If Tenant shall dispute
Landlord’s determination of the Fair Market Rent, Tenant must (or Tenant shall be deemed to have
accepted the Fair Market Rent set forth in Landlord’s Valuation Notice) give notice to Landlord of
such dispute within twenty (20) days of Tenant’s receipt of the Valuation Notice (with time of the
essence). The parties shall then engage in good faith negotiations for ten (10) days to determine
the Fair Market Rent for the Renewal Term. In the event the parties cannot resolve their dispute
with regard to the Fair Market Rent for the Renewal Term within such ten (10) day period, then this
Lease shall be deemed renewed and the Fair Market Rent shall be determined by arbitration in
accordance with Article 37 hereof.



62









 





ARTICLE 37




ARBITRATION




     Section 37.1 Determination of Fair Market Rent. If Tenant shall dispute Landlord’s
determination of the Fair Market Rent pursuant to Article 36 of this Lease, the Fair Market
Rent shall be determined by a single arbitrator appointed in accordance with the American
Arbitration Association Real Estate Valuation Arbitration Proceeding Rules. Such arbitrator shall
be impartial and shall have not less than ten (10) years’ experience in the County of New York in a
calling related with the leasing of commercial office space in office buildings comparable to the
Building, and the fees of such arbitrator, shall be shared equally by Landlord and Tenant. Within
twenty (20) days following the appointment of such arbitrator, each party shall attend a hearing
before such arbitrator wherein each party shall submit a report setting forth its determination of
the Fair Market Rent, together with such information on comparable rentals or such other evidence
as such party shall deem relevant. The arbitrator shall, within thirty (30) days following such
hearing and submission of evidence, render its decision by selecting the determination of the Fair
Market Rent submitted by either Landlord or Tenant which, in the judgment of the arbitrator, most
nearly reflects the Fair Market Rent based on all relevant factors relating to the premises in
question. It is expressly understood that such arbitrator shall have no power or authority to
select any Fair Market Rent other than the Fair Market Rent submitted by Landlord or Tenant, and
the decision of such arbitrator shall be final and binding upon the parties hereto. Prior to the
determination of the arbitrator, Tenant shall pay Rent in the amount equal to Landlord’s
determination of Rent submitted to Tenant pursuant to Article 36 or Article 37.
Following the arbitrator’s final determination, the amount of any overpayment or underpayment shall
be promptly adjusted between the parties.



THE REST OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK.




63









 





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



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	MAGNOLIA ASSOCIATES, LTD.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	Metropolitan Orlando GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Metropolitan Operating
Partnership, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Metropolitan Partners, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:
	 	/s/ Philip M. Waterman III	 	 
	 

	 	 	 	 	 	 	 	 	 	 

Name: Philip M. Waterman III

Title: Managing Director
	 	 






	 	 	 	 	 
	 

	 	TENANT:	 	 
	 
	 	 	 	 
	 

	 	PZENA INVESTMENT MANAGEMENT, LLC	 	 
	 
	 	 	 	 
	 

	 	/s/ Amelia C. Jones	 	 
	 

	 	 

Name: Amelia C. Jones

Title: Vice President, Principal & Director of 

          Operations and
Administration
	 	 
	 
	 	 	 	 
	 

	 	Tenant’s Federal
Identification Number or Social Security Number: 13-3860154	 	 






64









 





ACKNOWLEDGMENT BY TENANT




	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	 	 	ss.:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     On the 4 day of February in the year 2003 before me, the
undersigned, a Notary Public in and said State, personally appeared Amelia C. Jones,
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.



	 	 	 	 	 
	 

	 	/s/ James M. Krebs	 	 
	 

	 	 

Notary Public
	 	 
	 
	 	 	 	 
	 

	 	[Notary Seal]	 	 







65










 





EXHIBIT A




FLOOR PLAN



The floor plan which follows is intended solely to identify the location of the Premises, and
should not be used for any other purpose. All areas, dimensions and locations are approximate, and
any physical conditions indicated may not exist as shown.




[Exhibit is Intentionally Omitted]




A-1









 





EXHIBIT B




DEFINITIONS




     Affiliate: With respect to any Person, any other Person that, directly or indirectly
(through one or more intermediaries), Controls, is Controlled by, or is under common Control with,
such first Person.



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



     Building Systems: The mechanical, electrical, plumbing, sanitary, sprinkler, heating,
ventilation and air conditioning, security, life-safety, elevator and other service systems or
facilities of the Building up to (but not including) the point of localized distribution to the
Premises (excluding any systems or facilities exclusively serving the Premises).



     Business Days: All days, excluding Saturdays, Sundays and all days observed as legal
holidays by either the State of New York, the Federal Government or the labor unions servicing the
Building.



     Business Hours: The hours of 8:00 a.m. through 6:00 p.m. on Business Days.



     Code: The Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder, as amended.



     Control: (a) The ownership, directly or indirectly, of more than 50% of the voting
stock of a corporation, or (b)(i) in the case of any Person which is not a corporation, the
ownership, directly or indirectly, of more than 50% of the beneficial ownership interests in such
Person, or (ii) in the case of any such Person, the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such Person.



     Deficiency: The difference between (i) Fixed Rent and Additional Rent for the period
which otherwise would have constituted the unexpired portion of the Term, and (ii) the net amount,
if any, of rents collected under any reletting effected pursuant to the provisions of this Lease
for any part of such period (after first deducting from such rents all expenses incurred by
Landlord in connection with the termination of this Lease, Landlord’s re-entry upon the Premises
and such reletting, including repossession costs, brokerage commissions, attorneys’ fees and
disbursements, and alteration costs).



     Governmental Authority (Authorities): The United States of America, the City, County
or State of New York or any political subdivision, agency, department, commission, board, bureau or
instrumentality of any of the foregoing, or any landmarks preservation agency (or other entity
designated or accepted for such purpose by any



B-1









 




Governmental Authority or landmarks preservation commission), now existing or hereafter
created, having jurisdiction over the Real Property or any portion thereof.




     Hazardous Materials: Any substances, materials or wastes currently or in the future
deemed or defined in any Requirements as “hazardous substances”, “toxic substances”,
“contaminants”, “pollutants” or words of similar import.



     HVAC System: The Building System designed to provide heating, ventilation and air
conditioning.



     Indemnitees: Landlord, Landlord’s managing agent (if any), Landlord’s leasing agent
(if any), each Mortgagee and Lessor, and each of their respective direct and indirect partners,
officers, shareholders, directors, members, trustees, beneficiaries, employees, principals,
contractors, licensees, invitees, servants, agents and representatives.



     Interest Rate: The lesser of (i) the greater of (a) 1.5% per month and (b) four
percent per annum over the Base Rate (as same may change from time to time), and (ii) the maximum
rate permitted by applicable Requirements.



     Lease Year: A “Lease Year” shall be comprised of a period of twelve (12) consecutive
months. The first Lease Year shall commence on the Rent Commencement Date but, notwithstanding the
first sentence of this paragraph, if the Rent Commencement Date is not the first day of a month,
then the first Lease Year shall include the additional period from the Rent Commencement Date to
the end of the then current month. Each succeeding Lease Year shall end on the anniversary date of
the last day of the preceding Lease Year. For example, if the Rent Commencement date were January
1, 1999, the first Lease Year would begin on January 1, 1999, and end on December 31, 1999, and
each succeeding Lease Year would end on December 31st. If, however, the Rent Commencement Date
were January 2, 1999, the first Lease Year would end on January 31, 2000, the second Lease Year
would commence on February 1, 2000, and each succeeding Lease Year would end on January 31st.



     Lessor: A lessor under a Superior Lease.



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



     Mortgagee: Any mortgagee, trustee or other holder of a Mortgage.



     Person: Any individual, corporation, partnership, limited liability company, joint
venture, estate, trust, unincorporated association, business trust, tenancy-in-common or other
entity, or any Governmental Authority.



B-2









 





     Prohibited Use: Any use or occupancy of the Premises that in Landlord’s reasonable
judgment will: (i) cause damage to the Premises or the Real Property or any portion thereof or any
equipment, facilities or other systems therein; (ii) impair the appearance of the Real Property or
any portion thereof; (iii) interfere with the efficient and economical maintenance, operation and
repair of the Premises, the Building or the Real Property or the equipment, facilities or systems
thereof; (iv) adversely affect any service provided to, and/or the use and occupancy by, any
Building tenants or occupants; (v) violate the certificate of occupancy issued for the Premises or
the Building; or (vi) adversely affect the image of the Building as a first-class office location
in midtown Manhattan. Prohibited Use also includes the use of any part of the Premises for: (A) a
restaurant or bar; (B) the preparation, consumption, storage, manufacture or sale of food or
beverages (except in connection with vending machines and/or warming kitchens installed for the use
of Tenant’s employees only), liquor, tobacco or drugs; (C) the business of photocopying, multilith
or offset printing; (D) a typing or stenography business; (E) a school or classroom; (F) lodging or
sleeping; (G) the operation of retail facilities (meaning facilities the primary patronage of which
arises from the generalized solicitation of the general public to visit Tenant’s offices in person
without a prior appointment) of a savings and loan association or retail facilities of any
financial, lending, securities brokerage or investment activity; (H) a payroll office; (I) a
barber, beauty or manicure shop; (J) an employment agency, executive search firm or similar
enterprise; (K) offices of any Governmental Authority, any foreign government, the United Nations,
or any agency or department of the foregoing; (L) the retail sale of merchandise, goods or property
of any kind (other than the sale of financial services to regular clients, but nothing herein shall
permit the use of the Premises for sale of such financial services to any “off-the-street”
customers or traffic); (M) the manufacture, storage or auction of merchandise, goods or property of
any kind to the general public which could reasonably be expected to create a volume of pedestrian
traffic substantially in excess of that normally encountered in a first-class office building; (N)
the rendering of medical, dental or other therapeutic or diagnostic services; (O) broadcasting or
the business of broadcasting by wire or wireless of any programs or pictures of any sort, or the
sale of apparatus or devices connected with the business of such broadcasting; or (P) any illegal
activity or any activity constituting a nuisance.



     Real Property: The Building and the parcel of land upon which it is constructed (the
“Land”) and all easements, air rights, development rights and other appurtenances thereto.



     Requirements: All present and future laws, rules, orders, ordinances, regulations,
statutes, requirements, codes and executive orders, extraordinary and ordinary of (i) all
Governmental Authorities, including the Americans With Disabilities
Act, 42 U.S.C. '12101 (et
seq.), New York City Local Law 58 of 1987, and any law of like import, and all rules, regulations
and government orders with respect thereto, and any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters, and landmarks preservation,
(ii) any applicable fire rating bureau or other body exercising similar functions, affecting the
Real Property or any portion thereof, including the Building or the maintenance, use or occupation
thereof, and (iii) all insurance bodies affecting the Premises.



B-3









 





     Rules and Regulations: The rules and regulations annexed to and made a part of this
Lease as Exhibit E, as the same may be modified from time to time by Landlord.



     Substantial Completion: As defined on Exhibit D.



     Superior Lease(s): Any ground or underlying lease of the Real Property or any part
thereof heretofore or hereafter made by Landlord and all renewals, extensions, supplements,
amendments, modifications, consolidations, and replacements thereof.



     Tenant Delay: As defined on Exhibit D.



     Tenant Party: (i) Any of Tenant, any Affiliate of Tenant, any subtenant or any other
occupant of the Premises, and (ii) any of the direct or indirect partners, officers, shareholders,
directors, members, trustees, beneficiaries, employees, principals, contractors, licensees,
servants, agents or representatives of the parties described in clause (i) hereof, and (iii) any
invitees of Tenant, any Affiliate of Tenant, any subtenant or any other occupant of the Premises,
during such times as such invitees are conducting or transacting business for or with Tenant, any
Affiliate of Tenant, any subtenant or any other occupant of the Premises, or otherwise providing
services to or for the benefit of Tenant, any Affiliate of Tenant, any subtenant or any other
occupant of the Premises.



     Tenant’s Property: Tenant’s movable fixtures and movable partitions, telephone and
other equipment, computer systems, trade fixtures, furniture, furnishings, and other items of
personal property which are removable without material damage to the Premises or Building.



     Unavoidable Delays: Landlord’s inability to fulfill or delay in fulfilling any of its
obligations under this Lease expressly or impliedly to be performed by Landlord, or Landlord’s
inability to make or delay in making any repairs, additions, alterations, improvements or
decorations, or Landlord’s inability to supply or delay in supplying any equipment or fixtures, if
Landlord’s inability or delay is due to or arises by reason of strikes, labor troubles or by
accident, or by any cause whatsoever beyond Landlord’s reasonable control, including Requirements,
governmental preemption in connection with a national emergency, shortages, or unavailability of
labor, fuel, steam, water, electricity or materials, Tenant Delay, delays caused by other tenants
or other occupants of the Building, acts of God, enemy or terrorist action, civil commotion, fire
or other casualty.



B-4









 





EXHIBIT C




INTENTIONALLY OMITTED




C-1









 





EXHIBIT D




LANDLORD’S WORK 




Section A — Plans, Etc. 



1. Identified on Exhibit I are plans and specifications for Landlord’s Work, prepared by or
for Tenant, and including, without limitation, all architectural and engineering drawings and
specifications. Tenant acknowledges and agrees that such plans and specifications remain subject to
Landlord’s review and approval (such plans and specifications as approved by Landlord, the
“Final Plans”).



2. Tenant acknowledges that the Final Plans were prepared by or for Tenant, and not by Landlord,
and Tenant agrees that, notwithstanding any acceptance, approval, consent, inspection or review of
the Final Plans by Landlord, and notwithstanding the utilization of the Final Plans by Landlord in
connection with the performance by Landlord of the Landlord’s Work, Landlord shall have no
liability or obligation in respect of the Final Plans, and Tenant shall be solely responsible for
the Final Plans including, without limitation, approval of same by all applicable Governmental
Authority, and the conformity of same with all applicable Requirements. To the extent available
and not otherwise applied, Landlord’s Contribution shall be applied to the application for such
approvals by applicable Governmental Authorities, and the payment of any regular fees payable to
such Governmental Authorities for the issuance thereof.



3. Provided the Lease shall be in full force and effect and there shall be no Event of Default,
Landlord shall endeavor to procure and deliver to Tenant, not later than ten (10) Business Days
after the date of the Lease, bids for performance and construction of the work set forth in the
Final Plans (“Bids”), from JMK Construction Group, 156 Fifth Avenue, New York, New York
(“Tenant’s Proposed Contractor”) and from two (2) other contractors selected by Landlord.
(collectively, the “Contractors”). The Bids shall be based on the Final Plans. The day
upon which the Bids are actually delivered to Tenant is referred to below as the “Bid Delivery
Date.”



4. On or before the expiration of the second (2nd) Business Day following the Bid Delivery Date
(the “Selection Date”), TIME BEING OF THE ESSENCE, Tenant shall, by actually
delivering written notice to Landlord (the “Selection Notice”) select one (1) of the three
(3) Contractors (which shall constitute selection of such Contractor’s Bid). If Tenant shall fail
or omit to select one (1) of the three (3) Contractors prior to 5:00 pm on the Selection Date, then
each day thereafter until the date after the date on which Tenant shall have delivered to Landlord
the Selection Notice, shall constitute a day of Tenant Delay.



5. Tenant shall fully cooperate with Landlord and Landlord’s agent, the Contractors, the architect
(if any) and all other parties involved (or which may be involved) in Landlord’s Work and shall
make Tenant’s Agent (hereinafter defined) available at all reasonable times to facilitate the
procurement of the Bids on or before the Bid Delivery Date. It is expressly understood and agreed
that except for Landlord’s gross negligence or willful misconduct, Landlord shall not be




D-1









 




subject to any liability whatsoever, and there shall be no abatement of Rent or any other monetary
concession to Tenant whatsoever in the event Landlord fails to complete and deliver to Tenant the
Bids on or before the Bid Delivery Date.



6. Tenant shall provide Landlord (and its contractors and designees) with unobstructed access to
all portions of the Premises at all times to facilitate the performance and completion of
Landlord’s Work.



7. Tenant’s selecting a Bid shall be deemed full authorization by Tenant for Landlord to proceed
with the commencement of the Landlord’s Work in accordance with Section B of this Exhibit
D.




SECTION B — PERFORMANCE OF THE LANDLORD’S WORK AND COSTS.



1. Landlord shall engage the selected Contractor and shall perform or cause to be performed the
Landlord’s Work depicted on the Final Plans promptly following Tenant’s selection of the Bid as set
forth in Section A of this Exhibit D.. It is understood and agreed that Landlord does not
represent, warrant or guaranty that Landlord shall achieve Substantial Completion of the Landlord’s
Work by any specific date, and that the failure by Landlord, for any reason whatsoever, to achieve
Substantial Completion of the Landlord’s Work by any specific date, (x) shall not give rise to any
liability or obligation of Landlord to Tenant, (y) shall not entitle Tenant to any compensation,
abatement or diminution of Rent, and (z) shall not relieve Tenant from any of its obligations under
this Lease or otherwise give rise to any rights of Tenant as against Landlord or this Lease.



2. Notwithstanding anything to the contrary contained in this Agreement, prior to Landlord’s
commencement of Landlord’s Work, Tenant shall pay in full the cost of any and all work or materials
(including, without limitation, any amounts payable by Landlord to third parties in connection with
Landlord’s Work) (“Tenant Extra Work”) in excess of Landlord’s Contribution (“Tenant’s
Contribution”), which excess amount shall be based upon the selected Bid. However, it is
expressly agreed that Tenant’s obligation shall not be limited to Tenant’s Contribution, and that
Tenant shall be obligated to pay any and all costs and expenses of Change Orders (hereinafter
defined) and any and all cost overruns in the performance of Landlord’s Work.



3. Notwithstanding anything to the contrary set forth in this Lease or this Exhibit D, in
the event of any change to the Final Plans required by any Governmental Authority or in the event
the Final Plans shall require a change as a result of a field condition revealed during the
performance of Landlord’s Work (a “Field Condition”); any such change shall be performed by
Landlord, at Tenant’s sole cost, and shall not be deemed a breach or violation of any provision of
this Lease or this Exhibit D, and shall be deemed automatically accepted and approved by
Tenant. Landlord shall give written notice to Tenant of any such change, promptly after Landlord
receives written notice thereof.



4. In addition to and not in limitation of any other provision of this Lease, Tenant shall pay to
Landlord a sum equal to (i) any additional cost to Landlord in completing the Landlord’s




D-2









 




Work resulting from any Tenant Delay, (ii) any cost incurred by Landlord on account of any changes
in or to the Final Plans or on account of any Change Orders, and (iii) all other costs of
performing and completing Landlord’s Work in excess of Landlord’s Contribution. Any such sums shall
be in addition to any sums payable hereunder and shall be paid to Landlord within five (5) Business
Days after Landlord submits an invoice to Tenant with respect thereto. Such costs shall be
collectible in the same manner as Additional Rent whether or not the term of this Lease shall have
commenced or the Rent Commencement Date has occurred, and, if Tenant defaults in the payment
thereof, Landlord shall (in addition to all other remedies) have the same rights as it would have
upon a default by Tenant in the payment of Rent under this Lease, and Landlord shall have no
obligation to continue the performance of the Landlord’s Work until Tenant shall have cured such
default.



5. It is expressly understood and agreed that except for Landlord’s gross negligence or willful
misconduct, Landlord shall not be subject to any liability whatsoever, and there shall be no
abatement of Rent or any other monetary concession to Tenant whatsoever, in connection with
Landlord’s Work, or the performance of any work (including Landlord’s Work) by the Contractor whose
Bid was selected, or any cost overruns in the performance or completion of Landlord’s Work.




SECTION C — GENERAL CONDITIONS OF LANDLORD’S WORK.



1. Notwithstanding anything to the contrary contained in the Lease or this Exhibit D 
Landlord shall not be required to perform, and Tenant shall not request any work unless such work
(i) is reasonable and compatible with the status of the Building as a first-class office building,
(ii) is non-structural and does not affect the Building Systems (except to the extent that such
work may be specifically provided for in the Final Plans), (iii) affects only the Premises and are
not visible from outside of the Premises or the Building, (iv) is consistent with the design,
construction and equipment of the Building, (v) does not adversely affect any service furnished by
Landlord in connection with the operation of the Building, (vi) complies with all applicable
Requirements, (vii) does not call for use of any asbestos-containing or other hazardous materials,
(viii) will not adversely affect the appearance or value of the Building, and (ix) is compatible
with the Certificate of Occupancy for the Building (the requirements set forth in the preceding
clauses (i) through (ix), the “Landlord’s Work Requirements”). Landlord shall give written
notice to Tenant of any and all changes in the Final Plans required by any Governmental Authority
promptly after Landlord receives written notice thereof.



2. Notwithstanding anything to the contrary contained in the Lease or in this Exhibit D,
neither the recommendation, designation, selection, engagement or approval by Landlord of any
contractor, architects or engineers, nor the review, consent to or approval by Landlord of the
Final Plans (or any other plans), or the selected Bid (or any budget for Landlord’s Work), shall
constitute a representation or warranty by Landlord (i) that the Final Plans either (a) are
complete or suitable for their intended purpose, or (b) comply with applicable Requirements, or
(ii) respecting or concerning the selected Contractor and/or its abilities or performance (and
Tenant expressly agrees that Landlord assumes no responsibility or liability whatsoever to Tenant
or to any other person or entity for such completeness, suitability, or compliance of the Final
Plans, or




D-3









 




the sufficiency or inclusiveness of the selected Bid (or any budget), and/or the ability or
performance of the selected Contractor).



3. Tenant shall not make any changes in the Final Plans without Landlord’s prior written approval,
which shall not be unreasonably withheld or delayed, provided that Landlord may, in the exercise of
its sole and absolute discretion, disapprove any proposed changes which are inconsistent with or
violative of the Landlord’s Work Requirements.




SECTION D — TENANT DELAYS. 



1. If Landlord shall be delayed in Substantially Completing the Landlord’s Work as a result of any
act, neglect, failure or omission of Tenant, its agents, employees, contractors or sub-contractors,
including, without limitation, any of the following, such delay shall be deemed a “Tenant
Delay”:




     (a) Tenant’s failure or omission, on or before the Selection Date, to actually deliver to
Landlord the complete Selection Notice, TIME BEING OF THE ESSENCE.



     (b) Tenant’s failure to cooperate with Landlord, Landlord’s agent, the Contractor, architect
and all other parties involved in Landlord’s Work, or Tenant’s failure to make Tenant’s Agent
available at all reasonable times to facilitate the completion of the Final Plans;



     (c) Tenant’s request for any change, addition or modification in connection with the Final
Plans;



     (d) Tenant’s request for any change, addition or modification in connection with any of the
Bids, or in connection with the selected Bid, or Tenant’s request for the procurement of any other
or additional Bids;



     (e) Tenant’s failure to pay to Landlord the entire amount of Tenant’s Contribution, and any
other monies required to be paid pursuant to Section B of this Exhibit D;



     (f) Change Orders (including, but not limited to, the implementation, processing, review,
analysis and approval thereof);



     (g) Tenant’s request for materials, finishes or installations that are not readily available
at the time Landlord is ready to install same, unless within two (2) Business Days of being
requested by Landlord to agree to substitute a material, finish or installation that is comparable
in quality and not substantially greater in cost, Tenant agrees to such substitution;



     (h) The performance of work by a person, firm or corporation employed by Tenant and delays in
the completion of the said work by said person, firm or corporation;



     (i) Any delay which results from any act or omission of any Tenant Party, including delays due
to changes in or additions to, or interference with, any work to be done by Landlord, or delays by
Tenant in submission of information, or selecting construction materials to be



D-4









 




installed by Landlord as part of the Landlord’s Work, if any, (e.g., color of paint and carpet), or
approving working drawings or estimates or giving authorizations or approvals;




     (j) Any delay which results from any claim by any Governmental Authority or other person that
the Final Plans are deficient or do not conform to and satisfy all applicable Requirements, or are
deficient or insufficient for the prompt issuance of any and all necessary permits and approvals in
connection with the performance of Landlord’s Work; or any delay in Landlord obtaining any of the
Bids as a result of any claimed deficiency in the Final Plans; and/or



     (k) Any other failure by Tenant to comply with its obligations under the Lease.


2. Notwithstanding any other provision of this Exhibit D and/or the Lease to which this
Exhibit D is attached, except as provided in the immediately succeeding Paragraph 3
of this Section D of Exhibit D, if the Substantial Completion Date shall be delayed
by reason of a Tenant Delay or Unavoidable Delay, the Premises shall be deemed Substantially
Completed as of the date that the Premises would have been substantially completed but for any such
Tenant Delay or Unavoidable Delay and there shall not be any postponement of the Rent Commencement
Date or any other rent abatement or monetary concession whatsoever on account of such Tenant Delay
or Unavoidable Delay.



3. Notwithstanding any other provision of this Exhibit D and/or the Lease to which this
Exhibit D is attached, if the Contractor selected by Tenant is Tenant’s Proposed
Contractor, then the Rent Commencement Date shall be the earlier of (a) the date four (4) months
after the Substantial Completion Date, and (b) the date eight (8) months after the Commencement
Date.




SECTION E — ENTRY BY TENANT AND ITS AGENTS; DESIGNATION OF TENANT’S AGENT.



1. Except as hereinafter provided, neither Tenant nor its agents, employers, invitees or
independent contractors shall enter the Premises during the performance of the Landlord’s Work.
Tenant hereby designates Amy Jones as its authorized agent (“Tenant’s Agent”) for the
purpose of submitting to Landlord and authorizing any Change Orders to the Final Plans and for the
purpose of consulting with Landlord as to any and all aspects of the Landlord’s Work. Tenant’s
Agent shall have the right to inspect the Premises during the course of the Landlord’s Work
provided Tenant’s Agent shall make a prior appointment with Landlord and/or its contractor at a
mutually convenient time.



2. In the event Tenant shall enter upon the Premises or any other part of the Building, as may be
above permitted by Landlord, Tenant shall indemnify and save Landlord harmless from and against any
and all Losses arising from or claimed to arise as a result of (i) any act, neglect or failure to
act of Tenant or anyone entering the Premises or Building with Tenant’s permission, or (ii) any
other reason whatsoever arising out of Tenant’s entry upon the Premises or Building.





D-5









 





SECTION F — CHANGE ORDERS. 



1. (a) Tenant shall have the right to make reasonable changes from time to time in the Final Plans
by submitting to Landlord revised plans and specifications (collectively, “Change Orders”).
All Change Orders shall be subject to Landlord’s prior written approval, which approval shall not
be unreasonably withheld, provided that Landlord may, in the exercise of its sole and absolute
discretion, disapprove any proposed changes which are inconsistent with or violative of the
Landlord’s Work Requirements. Without limiting the generality of the foregoing, no Change Order
will be approved unless (a) all changes to and modifications of Tenant’s Final Plans are circled or
highlighted as per standard industry practices, and (b) such Change Order conforms with the
requirements of this Lease (including without limitation this Exhibit D, and including,
without limitation, Landlord’s Work Requirements). Landlord shall notify Tenant of any required
Tenant’s Contribution and any Tenant Delay that the performance of any such Change Order may
entail. If Tenant does not respond affirmatively within three (3) Business Days of the giving of
such notice, Landlord shall not make the proposed Change Order. Upon receipt and approval of any
Change Order, Landlord shall submit the Change Order to the contractor or subcontractors performing
the trade or trades involved in the Change Orders and, if applicable and so requested by Tenant,
obtain and deliver to Tenant a work order in connection therewith. In no event shall Landlord be
required to perform any Change Order unless and until Tenant has paid Landlord the entire amount of
any Tenant Contribution required in connection therewith.




     (b) If Tenant shall submit to Landlord (i) a Change Order which complies in all respects with
the requirements of the foregoing Paragraph (a) of this Section F of this
Exhibit D (or revisions or supplements to a previously submitted and rejected Change
Order), for approval by Landlord, together with (ii) written notice from Tenant expressly claiming
same as a Change Order and requesting Landlord’s approval thereof, and which notice must be headed
by the legend, in bold, capital letters stating that “LANDLORD MUST RESPOND WITHIN 3 BUSINESS DAYS
AFTER RECEIPT OF THIS NOTICE,” then Landlord, within three (3) Business Days after actual receipt
by Landlord of such Change Order (or such revisions or supplement thereto) and notice, shall give
notice to Tenant either approving or disapproving same. If Landlord shall fail or omit to give such
notice to Tenant approving or disapproving same by the expiration of such three (3) Business Day
period, then, as the sole remedy of Tenant, each day after the expiration of such three (3)
Business Day period that Landlord shall fail or omit to give such notice, until the date that
Landlord shall give such notice of approval or disapproval, shall not constitute a day of
Tenant Delay.


2. Such costs shall be collectible in the same manner as Additional Rent whether or not the term of
this Lease as it applies to the Premises shall have commenced, and, if Tenant defaults in the
payment thereof, Landlord shall (in addition to all other remedies) have the same rights as it
would have upon a default by Tenant in the payment of Rent under this Lease, and Landlord shall
have no obligation to continue the performance of the Landlord’s Work until Tenant shall have cured
such default.




D-6









 








SECTION G — SUBSTANTIAL COMPLETION. 



1. The date that Landlord Substantially Completes the Landlord’s Work shall be deemed the
“Substantial Completion Date.” For the purposes of this Lease and this Exhibit D,
the term “Substantial Completion” shall mean that, with the exception of minor details of
construction, mechanical adjustments or decoration which do not materially interfere with Tenant’s
use of the Premises, or items of work which, in accordance with good construction practice, should
be completed after the completion of other work to be performed in the Premises (collectively,
“Punch-List Items”), the Landlord’s Work shall have been completed in accordance with the Final
Plans and all mechanical systems serving or affecting the Premises shall then be in working order.
Landlord and Tenant shall thereupon set a mutually convenient time for Tenant’s Agent, Landlord and
Landlord’s contractor to inspect the Premises and the Landlord’s Work, at which time Tenant’s Agent
shall prepare and submit to Landlord the Punch List of items to be completed. Upon completion of
the inspection, Tenant’s Agent shall acknowledge in writing that Substantial Completion of the
Landlord’s Work has occurred, subject to any Punch-List Items to be completed. Landlord shall
endeavor to complete the Punch List Items within a reasonable period thereafter.





D-7









 








EXHIBIT E




RULES AND REGULATIONS




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




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




          3. Tenant shall not obtain or accept for use in the Premises ice, drinking water, food,
beverage, towel, linen, uniform, barbering, boot blacking or similar or related services from any
persons not authorized by Landlord to furnish such services. Such services shall be furnished only
at such hours, in such places within the Premises and under such regulations as may be fixed by
Landlord. Tenant reserves the right to order take-out prepared food and beverages from restaurants
of its choosing.




          4. Where any damage to the public portions of the Building or to any portions used in common
with other tenants is caused by any Tenant Party, the cost of repairing the same shall be paid by
Tenant upon demand.




          5. No lettering, sign, advertisement, trademark, emblem, notice or object shall be displayed
in or on the windows or doors, or on the outside of the Premises, or at any point inside the
Premises where the same might be visible outside the Premises, except that the name of Tenant,
Tenant’s Affiliates and Desk Space Users may be displayed on the entrance door




E-1









 







of the Premises, subject to the approval of Landlord as to the location, size, color and style
of such display. The inscription of the name of Tenant on the door of the Premises shall be done
by Landlord and the expense thereof shall be paid by Tenant to Landlord.




          6. No awnings or other projections of any kind over or around the windows or entrances of the
Premises shall be installed by Tenant, and only such window blinds and shades as are approved by
Landlord shall be used in the Premises. Tenants shall be prohibited from opening the windows.
Linoleum, tile or other floor covering shall be laid in the Premises only in a manner approved by
Landlord.




          7. Landlord shall have the right to prescribe the weight and position of safes and other
objects of excessive weight, and no safe or other object whose weight exceeds the lawful load for
the area upon which it would stand shall be brought into or kept upon the Premises. If, in the
judgment of Landlord, it is necessary to distribute the concentrated weight of any safe or heavy
object, the work involved in such distribution shall be done in such manner as Landlord shall
determine and the expense thereof shall be paid by Tenant. The moving of safes and other heavy
objects shall take place only upon previous notice to, and at times and in a manner approved by,
Landlord, and the persons employed to move the same in and out of the Building shall be acceptable
to Landlord. No machines, machinery or electrical or electronic equipment or appliances of any
kind shall be placed or operated so as to disturb other tenants. Freight, furniture, business
equipment, merchandise and packages of any description shall be delivered to and removed from the
Premises only in the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Landlord.




          8. No noise, including the playing of any musical instrument, radio or television, which, in
the judgment of Landlord, might disturb other tenants in the Building, shall be made or permitted
by Tenant. No animals (except for seeing-eye dogs) shall be brought into or kept in the Building
or the Premises. No dangerous, inflammable, combustible or explosive object or material shall be
brought into or kept in the Building by Tenant or with the permission of Tenant, except as
permitted by law and the insurance companies insuring the Building or the property therein. Tenant
shall not cause or permit any odors of cooking or other processes, or any unusual or other
objectionable odors, to permeate in or emanate from the Premises.




          9. No additional locks or bolts of any kind shall be placed upon any of the doors or windows
in the Premises and no lock on any door shall be changed or altered in any respect. Duplicate keys
for the Premises and toilet rooms shall be procured only from Landlord, and Tenant shall pay to
Landlord Landlord’s reasonable charge therefor. Upon the expiration or termination of this Lease,
all keys to the Premises and toilet rooms shall be delivered to Landlord.




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




          11. Landlord reserves the right to rescind, alter or waive any rule or regulation at any time
prescribed by Landlord when, in its judgment, it deems it necessary, desirable or




E-2









 







proper for its best interest or for the best interests of the tenants, and no rescission,
alteration or waiver of any rule or regulation in favor of one tenant shall operate as a
rescission, alteration or waiver in favor of any other tenant. Landlord shall not be responsible to
Tenant for the nonobservance or violation by any other tenant of any of the rules or regulations at
any time prescribed by Landlord.




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




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




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




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




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




          17. Tenant shall bear the cost and expenses incurred by Landlord in maintaining emergency
lighting, including battery components, in good working condition.




          18. Tenant shall not bring or keep, or allow to be brought or kept, in the Building, any
bicycles, roller blades, in line or other skates or other type of wheeled pedestrian form of
locomotion.




          19. Mail pick-up and delivery shall be responsibility of Tenant.




E-3









 








EXHIBIT F




HEATING, VENTILATION AND AIR CONDITIONING SPECIFICATIONS



The Premises will be heated, ventilated and air conditioned by a non-central heat pump unit system.
Landlord shall provide water for heating or air-conditioning, as the case may be, to the heat pump
units serving the Premises during the hours set forth in Section 12.2(a). Landlord shall supply
hot water to provide supplemental heat during the hours set forth in Section 12.2(a). It is
understood that the Building is designed to provide 0.0033 tons of HVAC per usable square foot.
The heat pump unit system serving the Premises shall have separate controls in various locations
throughout the Premises. Tenant, at Tenant’s expense in accordance with Article 17 hereof, shall
obtain and furnish such electricity as is required to operate the heat pump units, fans and other
HVAC equipment located in and serving the Premises both during and outside of Business Days and
Business Hours. Landlord shall, at Landlord’s expense, maintain the heat pump units, fans,
thermostats and other HVAC equipment serving the Premises.




F-1









 








EXHIBIT G




CLEANING SPECIFICATIONS




GENERAL




OFFICES




DAILY





	X	 	Empty all trash receptacles; replace liners if necessary but not less than weekly.
	 
	X	 	Remove all collected trash to designated area outside the Premises.
	 
	X	 	Dust all furniture, fixtures, equipment and accessories utilizing a chemically treated cloth to avoid dust dispersion.
	 
	X	 	Sweep and/or dust mop all hard surface floors with broom or electrostatic dust mop.
	 
	X	 	Dust wipe all telephones including ear and mouthpiece.
	 
	X	 	Empty recyclable paper trash containers; replace correct color liners in containers as necessary.
	 
	X	 	Remove recyclable paper trash and store in designated area outside the Premises.
	 
	X	 	Clean top of glass top tables.
	 
	X	 	Vacuum internal stairs, dust railings and ledges (if any).





WEEKLY





	X	 	Spot vacuum all carpeted traffic lane areas.
	 
	X	 	Dust all chairs and table legs and rungs, baseboards, ledges, moldings, and other low reach areas.
	 
	X	 	Spot clean doors, door frames and light switches.
	 
	X	 	Fully vacuum all carpets.





MONTHLY





	X	 	Vacuum all fabric furniture.
	 
	X	 	Damp wipe if necessary all trash containers.





QUARTERLY





	X	 	Dust all high reach areas.
	 
	X	 	Dust HVAC Louvers (non-ceiling).
	 
	X	 	Dust venation blinds.
	 
	X	 	Dust exterior side of ceiling light lenses.





BI-ANNUALLY





	X	 	Wipe clean all ceiling diffusers.




G-1









 











CORE LAVATORIES




DAILY





	X	 	Refill dispensers, empty trash, clean and sanitize all restroom
fixtures, wipe all counters, clean mirrors, wipe chrome, spot wipe
partitions, sweep and damp mop floors using a germicidal cleaner.
Empty sanitary napkin holders.
	 
	X	 	All lavatory supplies to be provided by Contractor.





MONTHLY





	X	 	Wash all restroom partitions on both sides.
	 
	X	 	Hand wash all walls.





BI-MONTHLY





	X	 	Machine scrub all restroom floors using a germicidal detergent.





QUARTERLY





	X	 	Dust and clean all return air vents.
	 
	X	 	Dust ceiling light lenses.




G-2









 











EXHIBIT H




FORM LETTER OF CREDIT




LETTERHEAD OF ISSUING BANK




LETTER OF CREDIT DEPARTMENT




Issue Date: _________  ___, 200_

Our Number: _________ _________

No.                                                                                                             

Irrevocable Commercial Letter of Credit




	 	 	 
	Applicant:
	 	 
	 
	 	 
	Beneficiary:

	 	[Landlord]
	 

	 	c/o Reckson Associates Realty Corp.
	 

	 	225 Broad Hollow Road
	 

	 	Melville, New York 11747
	 

	 	Attn.: Tom Carey, Corporate Controller
	 
	 	 
	Amount (U.S.):

	 	$[Full amount of Security Deposit]
	 
	 	 
	Expiry:

	 	[Expiration Date of the Lease]






Gentlemen:




          For the account of Applicant we hereby establish this Irrevocable Letter of Credit No.
_________ in your favor for an
amount of up to $_________ effective immediately,
available by your drafts at sight when accompanied by this Irrevocable Letter of Credit.




          All
drafts must be marked “Drawn under _________ Bank, Irrevocable Letter of Credit
No. _________ dated _________, 200_.”




          It is a condition of this Irrevocable Letter of Credit that it shall be payable in multiple
drafts and shall be fully transferable by Beneficiary multiple times without any fees or charges
payable by Beneficiary in connection therewith.




          It is a condition of this Irrevocable Letter of Credit that it shall be automatically extended
for additional periods of one year from the present or any future expiry date, unless, at least 60
days prior to any such expiry date, we notify you in writing at the above address, by certified or
registered mail, return receipt requested, that we elect not to renew this Irrevocable Letter of
Credit for such additional period. Upon receipt by you of such notice, you may draw




H-1









 







drafts on us at sight for an amount not to exceed the balance remaining in this Irrevocable
Letter of Credit within the then applicable expiry date.




          We hereby agree with you that drafts drawn under and in accordance with the terms of this
Irrevocable Letter of Credit will be duly honored by us on delivery of this Irrevocable Letter of
Credit to this office as follows: [Bank address, including floor and attn. — THIS ADDRESS MUST BE
EITHER IN MANHATTAN OR WITHIN A REASONABLE DISTANCE THEREOF].




          In the event that the Applicants becomes a debtor in a case under Title 11 of the United
States Code (the “Bankruptcy Code”), or in any other insolvency or similar proceeding, our
obligations to the Beneficiary hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended, stayed, terminated or otherwise affected by reason thereof or by reason of any
provisions of the Bankruptcy Code (including, but not limited to, Section 362 and 502(b) of the
Bankruptcy code), or the provisions of any other insolvency or similar law.




          This credit is subject to the International Standby Practices 1998, International Chamber of
Commerce Publication No. 590; provided, however, that in the event the expiration
date occurs during an interruption of our business of the type described in such publication, then
the expiration date shall be deemed to be automatically extended until the date which shall be five
(5) days after the resumption of our business.




	 	 	 	 	 
	 

	 	 

Authorized Signature
	 	 






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EXHIBIT I




PLANS




[Intentionally Omitted]





I-1









 





AMENDMENT OF LEASE




                  AMENDMENT OF LEASE (this “Amendment”), dated as of March 31, 2005, between MAGNOLIA
ASSOCIATES, LTD., a Florida limited partnership, having an office c/o Reckson Associates Realty
Corp., 1350 Avenue of the Americas, New York, New York 10019 (“Landlord”) and PZENA
INVESTMENT MANAGEMENT, LLC, a Delaware limited partnership having an office at 120 West
45th Street, New York, New York 10036 (“Tenant”).



W I T N E S S E T H:




                  WHEREAS, Landlord and Tenant entered into that certain Lease dated February 4, 2003 (the
“Original Lease”), covering space on the 34th floor in the office building
located at 120 West 45th Street, New York, New York (the “Building”), as more
fully described in the Original Lease (the “Original Premises”), at the rent and on the
other terms and conditions set forth in the Original Lease; and



                  WHEREAS, Tenant desires to (i) surrender to Landlord and vacate the Original Premises and (ii)
lease additional premises, consisting of the entire rentable area of the twentieth
(20th) and twenty-first (21st) floors of the Building comprising in total
24,958 rentable square feet, as shown on the floor plan attached hereto as Exhibit A-2 and
made a part hereof (the “20th/21st Floor Space”), and Landlord is
agreeable thereto on the terms and conditions hereinafter set forth.



                  NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Amendment, Landlord and Tenant agree as follows:



     SECTION 1 DEFINITIONS, NO OTHER AMENDMENTS, EFFECTIVE DATE.



                  1.1 Capitalized terms used herein and not otherwise defined shall have the meanings ascribed
to them in the Original Lease. The provisions of this Amendment shall supersede any inconsistent
provisions contained in the Original Lease, regardless of whether such inconsistent provisions are
contained in the body of the Original Lease or in any rider, exhibit or schedule thereto, or in any
amendment, modification, letter, notice or other written instrument executed in connection
therewith or sent pursuant thereto. Effective as of the Effective Date (as hereinafter defined)
(i) any and all exhibits to this Amendment shall be deemed incorporated into, and made a part of,
the Original Lease, (ii) all references in the Original Lease to the “Lease,” or similar
references, shall mean the Original Lease as amended and modified by this Amendment, and (iii) all
references in the Original Lease, as amended by this Amendment, to the “Term” (or words of similar
import) shall be deemed to refer to the 20th/21st Floor Term (hereinafter
defined). During the period from and after the date immediately succeeding the Surrender Date
(hereinafter defined), all references in the Original Lease, as amended by this Amendment, to the
“Premises” (or words of similar import) shall be deemed to refer to the
20th/21st Floor Space; during the period from and after the
20th/21st Floor Commencement Date (hereafter defined) through and including
the Surrender Date, all references in the Original Lease, as amended by this Amendment, to the
“Premises” (or words of similar import) shall be deemed to refer to the
20th/21st Floor Space and the Original Premises.



 









 





                  1.2 Each of Landlord and Tenant hereby confirms and agrees that, except for the Original
Lease, there are not, as of the date hereof and prior to the execution of this Amendment, any
amendments, modifications, written instruments or other oral or written agreements which amend or
modify the provisions of the Original Lease in any manner.



                  1.3 The Original Lease shall be deemed amended on the terms and conditions hereinafter set
forth effective as of the date hereof (the “Effective Date”). Except as may be otherwise
specifically provided in this Amendment, all references in this Amendment hereinafter made to the
“Lease” or “the Original Lease, as amended by this Amendment” shall mean the Original Lease as
modified and amended by this Amendment.



SECTION 2 TWENTIETH AND TWENTY-FIRST FLOOR SPACE.




                  2.1 Demise; Premises. Landlord hereby leases and demises to Tenant, and Tenant hereby
hires and takes from Landlord, the 20th/21st Floor Space upon all of the
terms and conditions of the Original Lease, as modified and amended by this Amendment, for a term
(the “20th/21st Floor Term”) (i) commencing on June 1, 2005 (the
“20th/21st Floor Commencement Date”) and (ii) ending on the last day
of the calendar month in which the day preceding the tenth (10th) anniversary of the
“20th/21st Rent Commencement Date” (hereafter defined) occurs (the
“20th/21st Floor Expiration Date”) or sooner termination of the
Lease, both dates inclusive. All terms and conditions of the Original Lease with respect to or
concerning the Expiration Date shall, except to the extent modified by this Amendment, apply to the
20th/21st Floor Space, except that the same shall apply with respect to the
20th/21st Floor Space as of the 20th/21st Floor
Expiration Date. Effective as of the 20th/21st Floor Commencement Date, the
20th/21st Floor Space shall be added to the Premises and shall constitute
part thereof for all purposes of the Lease (subject, however, to the provisions of this Amendment),
and (together with the Original Premises) shall be included in the Premises, and Exhibit
A-2 hereof shall be added to Exhibit A annexed to the Original Lease, and Exhibit
A of the Original Lease shall be amended by the addition of Exhibit A-2. Landlord and
Tenant agree that, for all purposes of the Original Lease and this Amendment, the square footage of
the 20th/21st Floor Space is conclusively deemed to be 24,958 rentable square
feet.



                  2.2 Delivery. (a) Landlord shall use commercially reasonable efforts to cause the
tenant(s) occupying the 20th/21st Floor Space (or any part thereof) on the
date hereof to vacate such space prior to the 20th/21st Floor Commencement
Date. However, anything in this Lease to the contrary notwithstanding, Landlord shall not be liable
for failure to deliver possession of the 20th/21st Floor Space to Tenant on
any particular date for any reason whatsoever, including the failure of the current occupant(s) of
the 20th/21st Floor Space, if any, to vacate the
20th/21st Floor Space in a timely manner, and such failure by Landlord shall
not impair the validity of the Original Lease or this Amendment, nor shall Tenant’s obligations
under the Original Lease and/or this Amendment be affected thereby. Subject to the terms and
provisions hereof, Landlord shall deliver possession of the 20th/21st Floor
Space to Tenant and Tenant shall accept possession of the 20th/21st Floor
Space immediately upon the date (the “20th/21st Floor Possession
Date”) on which Landlord gives notice (the “Possession Date Notice”) to Tenant that the
“Phase I Landlord’s 20th/21st Floor Work” (hereafter defined) is
Substantially Completed; and Landlord shall be deemed to have delivered possession of the
20th/21st Floor Space to Tenant and Tenant shall be deemed to have accepted
such possession on the 20th/21st Possession Date.



2









 




There shall be no postponement of the 20th/21st Floor Commencement Date,
or the 20th/21st Floor Possession Date, or the
20th/21st Floor Rent Commencement Date for (i) any delay in the delivery of
possession and/or occupancy of the 20th/21st Floor Space to Tenant, or
otherwise in the achievement of such dates, which results from any Tenant Delay or any Unavoidable
Delay, or (ii) any delay by Landlord in the performance of any Punch List Items relating to
Landlord’s Work; and there shall be no postponement of the 20th/21st Floor
Commencement Date, the 20th/21st Floor Possession Date, or the
20th/21st Floor Rent Commencement Date for failure by Landlord to achieve
Substantial Completion of Landlord’s Work by any particular date. The provisions of this
Section 2.2 are intended to constitute “an express provision to the contrary” within the
meaning of Section 223-a of the New York Real Property Law or any successor Requirements.
Notwithstanding anything to the contrary in the Original Lease, as amended by this Amendment, (i)
the Possession Date Notice may be delivered orally and (ii) the Possession Date Notice shall be
deemed given on the earlier to occur of (a) the date of actual giving of such notice and (b) if
such notice is in written form and given pursuant to Article 27 of the Original Lease, the
date such notice would be deemed given pursuant to Article 27 of the Original Lease.




                  (b) Notwithstanding anything to the contrary set forth in the Original Lease, as modified by
this Amendment, Landlord and Tenant agree that (i) prior to the Possession Date, Tenant shall have
no right to enter, possess, use or occupy the 20th/21st Floor Space for any
purpose whatsoever, and (ii) as respects the 20th/21st Floor Space only,
prior to the Possession Date, (x) Tenant have no obligation to comply with the provisions of
Section 7.2 or Section 9.1(a) of the Original Lease, (y) Tenant shall have no
obligation to obtain the insurance policies required under Article 13 of the Original
Lease, and (z) Tenant shall have no obligations or liabilities pursuant to Article 32 of
the Original Lease, except for any Losses arising from or in connection with (A) the negligence or
willful misconduct of Tenant or any Tenant Party or (B) any work or thing whatsoever done by Tenant
or any Tenant Party, if Tenant or such Tenant Party enters upon any portion of the
20th/21st Floor Space for the purpose of performing any work or otherwise
prior to the Possession Date (it being understood that Landlord shall have sole discretion as to
whether any such entry shall be permitted prior to the Possession Date). Landlord and Tenant
acknowledge and agree that (i) at the request of Tenant, and subject to the terms and provisions of
the Original Lease, as amended by this Amendment, Landlord shall perform the “Phase II of
Landlord’s 20th/21st Floor Work” (hereafter defined) as hereinafter provided;
and (ii) to facilitate the performance of such work, and notwithstanding anything to the contrary
set forth in the Original Lease, as modified by this Amendment, prior to the date (the
“20th/21st Floor Occupancy Date”) of Substantial Completion
of Phase II Landlord’s 20th/21st Floor Work, and notwithstanding that
Landlord shall have previously delivered possession of the 20th/21st Floor
Space to Tenant and that Tenant shall have accepted such possession, Tenant and the other Tenant
Parties shall have no right to use or occupy the 20th/21st Floor Space for
any purpose whatsoever, or to enter thereupon in any manner or at any time that shall interfere, in
Landlord’s judgment, with the proper, economical, safe and efficient performance of Phase II of
Landlord’s 20th/21st Floor Work or create a security risk or a danger to
person or property (it being understood that Landlord shall have sole discretion at to whether any
such entry shall be permitted prior to the 20th/21st Floor Occupancy Date);
but nothing in this sentence, and no limitation on the right of Tenant to enter, use or occupy the
20th/21st Floor Space, shall limit or modify the obligations of Tenant in
respect of the 20th/21st Floor Space as otherwise provided in the Original
Lease, as amended hereby. Nothing in this Section 2.2(b) shall limit or affect the rights
or obligations of Tenant respecting the Original Premises.



3









 





                  2.3 Condition. Tenant has inspected the 20th/21st Floor Space
and agrees (i) to accept possession of the 20th/21st Floor Space in the “as
is” condition of such space existing on the 20th/21st Floor Possession Date
except as expressly set forth herein, subject to Substantial Completion of Phase II of Landlord’s
20th/21st Floor Work, (ii) that neither Landlord nor Landlord’s agents have
made any representations or warranties with respect to the 20th/21st Floor
Space, and (iii) that except for the work set forth on Exhibit B-2 to this Amendment
(“Landlord’s 20th/21st Floor Work”), and except as otherwise
expressly set forth in Section 4 hereof respecting “Landlord’s
20th/21st Floor Contribution” (hereinafter defined) and “Landlord’s Restroom
Contribution” (hereinafter defined), Landlord shall have no obligation to perform any work, supply
any materials, incur any expense or cost or make any installations, alterations or improvements to
the 20th/21st Floor Space to prepare the 20th/21st
Floor Space for Tenant’s occupancy thereof, or make any payment or contribution for such purpose.
Landlord shall deliver possession of the 20th/21st Floor Space vacant and
broom clean. Tenant’s occupancy of any portion of the 20th/21st Floor Space
shall be conclusive evidence, as against Tenant, that (A) Landlord has Substantially Completed
Landlord’s 20th/21st Floor Work (B) Tenant has accepted, in its then current
condition, possession of the entire 20th/21st Floor Space, and (C) the
Building and the 20th/21st Floor Space are in a good and satisfactory
condition as required by this Amendment.



                  2.4 Article 36 of Original Lease (Option to Renew). Article 36 and
Article 37 of the Original Lease are hereby deemed deleted in their entirety, and shall be
of no force or effect.



                  2.5 Desk Space Users. In respect only of the 20th/21st Floor
Space, the first sentence of Section 16.1(d) of the Original Lease is deemed amended by
deletion of clause “(iv)” of such sentence and insertion of the following in lieu thereof: “(iv) at
no time shall there be more than twelve (12) Desk Space users in the aggregate, and at no time
shall there be more than twelve (12) offices at the 20th/21st Floor Space, in
the aggregate, used or occupied by Desk Space Users, and”.



SECTION 3 RENT; OPERATING EXPENSES; INSURANCE FOR THE 20th/21st FLOOR SPACE.




                  3.1 Fixed Rent for the 20th/21st Floor Space. In addition to the
Fixed Rent set forth in the Original Lease, for the period commencing on the date which is the
later to occur of (x) the 20th/21st Floor Occupancy Date and (y) the date
three (3) months after the 20th/21st Floor Possession Date (the
“20th/21st Floor Rent Commencement Date”), and continuing thereafter
until the 20th/21st Expiration Date, Tenant shall pay Fixed Rent with respect
to the 20th/21st Floor Space as follows: (a) One Million One Hundred Ninety
Seven Thousand Nine Hundred Eighty Four Dollars ($1,197,984.00) per annum ($99,832.00 per month)
commencing on the 20th/21st Floor Rent Commencement Date through and
including the day immediately preceding the fifth (5th) anniversary of the
20th/21st Floor Rent Commencement Date; and (b) One Million Two Hundred
Ninety Seven Thousand Eight Hundred Sixteen Dollars ($1,297,816.00) per annum ($108,151.33) per
month) from and after the fifth (5th) anniversary of the 20th/21st
Floor Rent Commencement Date through and including the 20th/21st Floor
Expiration Date, which Fixed Rent shall be paid in advance, in equal monthly installments on the
first day of each calendar month and otherwise in accordance with the provisions of the Lease
governing payment of Fixed Rent. If the 20th/21st Floor Rent Commencement
Date is not the first day of a calendar month,



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the Fixed Rent in respect of the 20th/21st Floor Space for the month in
which the 20th/21st Floor Rent Commencement Date occurs shall be prorated for
the number of days of the term of the Lease in respect of the 20th/21st Floor
Space that occur within said month. The provisions of this Section 3.1 shall apply only to
the 20th/21st Floor Space and nothing contained in this Section 3.1
shall modify or otherwise affect Tenant’s obligations to pay Fixed Rent for any other portions of
the Premises.



                  3.2 Intentionally Omitted.



                  3.3 Operating Expenses for the 20th/21st Floor Space. In
addition to the payment of Tenant’s Operating Payment in respect of the Original Premises pursuant
to the Original Lease, from and after the 20th/21st Floor Rent Commencement
Date, Tenant shall pay to Landlord, as Additional Rent, an additional payment on account of
Operating Expenses (the “20th/21st Floor Additional Operating
Payment”) in respect of the 20th/21st Floor Space. Landlord and Tenant
agree that the provisions of Article 8 of the Original Lease shall otherwise be applicable
to the determination of Operating Expenses in respect of the 20th/21st Floor
Space and the obligation of Tenant to pay the 20th/21st Floor Additional
Operating Payment, except that (in respect of the 20th/21st Floor Additional
Operating Payment only) (i) the Base Operating Year shall be the Computation Year commencing on
January 1, 2005 and ending on December 31, 2005 and (ii) Tenant’s proportionate share shall be
5.848% (which Landlord and Tenant stipulate and agree is based upon the
20th/21st Floor Space containing 24,958 rentable square feet and the Building
containing 426,755 rentable square feet for purposes of computing Operating Expenses). The
provisions of this Section 3.3 shall apply only to the 20th/21st
Floor Space and the 20th/21st Floor Additional Operating Payment, and nothing
contained in this Section 3.3 shall affect the Tenant’s Operating Payment (or Tenant’s
obligations in respect thereof) in respect of any other portion of the Premises. From and after
the Surrender Date, all references in the Original Lease, as amended by this Amendment, to
“Tenant’s Operating Payment” shall be deemed to refer to Tenant’s 20th/21st
Floor Additional Operating Payment.



                  3.4 Taxes for the 20th/21st Floor Space. In addition to the
payment of Tenant’s Tax Payment in respect of the Original Premises pursuant to the Original Lease,
from and after the 20th/21st Floor Rent Commencement Date, Tenant shall pay
to Landlord, as Additional Rent, an additional payment on account of Taxes (the
“20th/21st Floor Additional Tax Payment”) in respect of the
20th/21st Floor Space. Landlord and Tenant agree that the provisions of
Article 8 of the Original Lease shall otherwise be applicable to the determination of Taxes
in respect of the 20th/21st Floor Space and the obligation of Tenant to pay
the 20th/21st Floor Additional Tax Payment, except that (in respect of the
20th/21st Floor Additional Tax Payment only) (i) Base Taxes shall be the
Taxes for the Tax Year commencing July 1, 2005 and ending on June 30, 2006 and (ii) Tenant’s
proportionate share shall be 5.624% (which Landlord and Tenant stipulate and agree is based upon
the 20th/21st Floor Space containing 24,958 rentable square feet and the
443,750 rentable square feet for purposes of computing Taxes). The provisions of this Section
3.4 shall apply only to the 20th/21st Floor Space and the
20th/21st Floor Additional Tax Payment, and nothing contained in this
Section 3.4 shall affect the Tenant’s Tax Payment (or Tenant’s obligations in respect
thereof) in respect of any other portion of the Premises. From and after the Surrender Date, all
references in the Original Lease, as amended by this Amendment, to “Tenant’s Tax Payment” shall be
deemed to refer to Tenant’s 20th/21st Floor Additional Tax Payment.



5









 





                  3.5 Electricity for the 20th/21st Floor Space. Landlord and
Tenant agree that, commencing on the 20th/21st Floor Occupancy Date, Tenant
shall obtain electricity for the 20th/21st Floor Space directly from the
public utility servicing the Building and, accordingly, the provisions of Article 17 of the
Original Lease shall be applicable to the 20th/21st Floor Space in addition
to the Original Premises.



SECTION 4 LANDLORD’S 20th/21st FLOOR WORK AND LANDLORD’S

20th/21st FLOOR CONTRIBUTION.




                  4.1 Performance of Landlord’s 20th/21st Floor Work. Provided the
Original Lease, as amended by this Amendment, shall be in full force and effect and no Event of
Default then exists, Landlord shall perform “Landlord’s 20th/21st Floor
Work” in accordance with the provisions of this Section 4 and Exhibit B-2
hereto. Tenant shall not interfere with the performance of Landlord’s
20th/21st Floor Work by Landlord, its employees, agents, contractors,
subcontractors and suppliers, and Tenant at all times shall fully and freely cooperate with
Landlord, its employees, agents, contractors, subcontractors and suppliers in connection with the
performance of Landlord’s 20th/21st Floor Work. To the extent that in the
performance of Landlord’s 20th/21st Floor Work there shall be issued, by any
contractor, subcontractor or supplier, any warranty or guaranty, then Landlord, at Landlord’s
option, shall either (i) use reasonable efforts (without being required to incur any cost or
expense, or to commence or continue any suit, action or proceeding), to obtain the benefits of such
warranties and guaranties for Tenant, or (ii) to the extent assignable, and without representation
or warranty by Landlord, and without recourse to Landlord, assign such warranties and guaranties to
Tenant; provided that in either case Landlord in no way shall be liable or obligated in connection
with any such warranties or guaranties, or the issuance or non-issuance thereof, or the performance
or non-performance thereof by or on behalf of the issuer thereof. Landlord’s
20th/21st Floor Work shall consist of the “Phase I Landlord’s
20th/21st Floor Work,” as described in Exhibit B-2, and the “Phase II
Landlord’s 20th/21st Floor Work,” as described in Exhibit B-2.



                  4.2 Landlord’s 20th/21st Work. In connection with the
performance of Landlord’s 20th/21st Floor Work, as set forth in Section
4.1 hereof, Tenant shall provide Landlord with access at all times to all portions of the
20th/21st Floor Space. Notwithstanding anything to the contrary contained in
the Original Lease, as amended by this Amendment, Landlord shall not be subject to any liability
and/or penalty whatsoever as a result of any delays in connection with the performance of
Landlord’s 20th/21st Floor Work which result from Unavoidable Delay,
including, without limitation, Tenant Delay.



                  4.3 Landlord’s 20th/21st Floor Contribution. Provided the
Original Lease, as amended by this Amendment, shall be in full force and effect and that no Event
of Default shall have occurred and be continuing, Landlord, subject to the provisions of the
Original Lease, as amended hereby, agrees to pay Landlord’s 20th/21st Floor
Contribution toward the cost of the Landlord’s 20th/21st Floor Work.
“Landlord’s 20th/21st Floor Contribution” shall be in the aggregate
amount of One Million One Hundred Twenty Three Thousand One Hundred Ten Dollars ($1,123,110.00).
Tenant shall pay any and all costs of Landlord’s 20th/21st Floor Work
(including both “hard costs,” such as costs of construction labor and materials, and “soft costs”,
such as costs of obtaining permits and approvals, and inspection, architectural and engineering
costs), in excess of Landlord’s 20th/21st Floor Contribution in accordance
with the terms and



6









 






conditions set forth herein and in Exhibit B-2. Landlord’s
20th/21st Floor Contribution shall be payable solely on account of work
related to the Landlord’s 20th/21st Floor Work (including, without
limitation, (i) actual architectural, consulting and engineering fees and costs incurred by Tenant
in connection therewith and (ii) costs of electricity and other utilities incurred in connection
therewith). Tenant shall not be entitled to receive any portion of Landlord’s
20th/21st Floor Contribution not actually expended in the performance of the
Landlord’s 20th/21st Floor Work in accordance with Exhibit B, nor
shall Tenant have any right to apply any unexpended portion of Landlord’s
20th/21st Floor Contribution as a credit against Fixed Rent, Additional Rent
or any other obligation of Tenant under the Original Lease, as amended by this Amendment; provided,
however (and subject to the first sentence of this Section 4.3), that if, after payment of
all costs of Landlord’s 20th/21st Floor Work and the costs set forth in
Section 4.4 hereof, there shall be any unexpended balance of Landlord’s
20th/21st Floor Contribution, then such balance shall be applied to reimburse
Tenant for costs incurred by Tenant for installing Tenant’s initial telecommunications and computer
data wiring and initial built-in furniture (if any) in the 20th/21st Floor
Space, provided that Tenant provides to Landlord, not later than sixty (60) days after the
Substantial Completion Date for the 20th/21st Floor (with TIME OF THE
ESSENCE), a request for such reimbursement accompanied by evidence reasonably satisfactory to
Landlord substantiating that such work has been performed and completed and that such costs
actually have been incurred and paid by Tenant; but Tenant shall pay the costs for such wiring and
built-in furniture to the extent that the unexpended balance of Landlord’s
20th/21st Floor Contribution (if any), after payment of the costs and
expenses to which said Landlord’s 20th/21st Floor Contribution otherwise is
to be applied, including the costs set forth in Section 4.4 hereof, shall be insufficient
therefor. Such reimbursement out of the unexpended balance of Landlord’s
20th/21st Floor Contribution shall be provided by Landlord to Tenant not
later than thirty (30) days after request by Tenant for such reimbursement made as and when
provided herein, accompanied by such substantiating evidence.



                  4.4 Supplemental HVAC. (a) As part of Landlord’s 20th/21st
Floor Work, a supplemental heating, ventilation and air conditioning system
(“20th/21st Floor Supplemental HVAC”) shall be installed to
service the 20th/21st Floor Space.



                         (a) From and after the 20th/21st Floor Occupancy Date, Landlord shall
provide four and one-half (4.5) tons of condenser water (the “20th/21st
Floor Water Tonnage”) to Tenant for use in its 20th/21st Floor
Supplemental HVAC.



                         (b) From and after the 20th/21st Floor Occupancy Date, Tenant shall pay
to Landlord, regardless of actual usage, as Additional Rent, for such condenser water on the first
day of each month, the amount which is equal to 1/12th of the 20th/21st Floor
Water Charge for such calendar year. “20th/21st Floor Water Charge”
shall mean (i) for the calendar year 2005, an amount equal to $530.45 per ton, multiplied by the
20th/21st Floor Water Tonnage, and (ii) for each calendar year thereafter
(including, without limitation, each year during any renewal term of the Original Lease, as amended
by this Amendment, pursuant to Section 10 of this Amendment): the amount equal to 103% of
the 20th/21st Floor Water Charge payable for the prior calendar year. The
20th/21st Floor Supplemental HVAC shall be installed pursuant to plans and
specifications approved by Landlord in writing. The repair and maintenance of the
20th/21st Floor Supplemental HVAC shall be at Tenant’s sole cost and expense.
Tenant shall not make any changes to the 20th/21st Floor Supplemental HVAC
without Landlord’s prior written consent.



7









 






Landlord makes no representations that the 20th/21st Floor Supplemental
HVAC will operate as designed or intended.



                         (c) Tenant shall pay to Landlord, as Additional Rent, not later than five (5) days after
demand by Landlord, a one-time charge of $1,500.00 for connection of the
20th/21st Floor Supplemental HVAC System to the supply of condenser water. If
and to the extent that after payment of all costs of Landlord’s 20th/21st
Floor Work, there shall be any unexpended balance of Landlord’s 20th/21st
Floor Contribution, then Tenant shall have the right to apply such balance (to the extent thereof)
against such connection charge, but Tenant shall pay the cost for such connection charge to the
extent that the unexpended balance of Landlord’s Contribution (if any) shall be insufficient
therefor.



                         (d) The provisions of this Section 4.4 of this Amendment shall be in addition to, and
not in replacement of, the provisions of Section 12.9 of the Original Lease; and through
and including the Surrender Date (hereafter defined), the provisions of Section 12.9 of the
Original Lease shall continue in full force and effect as respects the Original Premises only, and
until and through the Surrender Date Tenant shall be entitled to receive, in respect of the
Original Premises, the condenser water described in Section 12.9 of the Original Lease, and
Tenant shall obligated to make the pay the payments described in Section 12.9 of the
Original Lease.



                  4.5 Landlord’s Restroom Contribution. If Tenant elects to have the Restroom
Renovations (hereafter defined) included as part of Landlord’s 20th/21st
Floor Work (it being agreed that Tenant automatically shall be deemed to have so elected in the
event that, and to the extent that, Restroom Renovations are required for compliance of the
Restrooms with any Requirements), and provided that the Original Lease, as amended by this
Amendment, shall be in full force and effect and that no Event of Default shall have occurred and
be continuing, and subject to the provisions of the Original Lease, as amended hereby, Landlord
agrees to pay Landlord’s Restroom Contribution (in addition to Landlord’s
20th/21st Floor Contribution) toward the cost of the renovations and
alterations, if any (the “Restroom Renovations”), by Tenant of the two restrooms on each
floor of the 20th/21st Floor Space (the “Restrooms”), which Restroom
Renovations, if elected by Tenant (or if required for compliance with any Requirements), shall be
performed contemporaneously with, and shall constitute part of, Phase II of Landlord’s
20th/21st Floor Work. “Landlord’s Restroom Contribution” shall be in
the aggregate amount not to exceed One Hundred Thousand Dollars ($100,000). Tenant shall pay any
and all costs of the Restroom Renovations (including both “hard costs,” such as costs of
construction labor and materials, and “soft costs”, such as costs of obtaining permits and
approvals, and inspection, architectural and engineering costs), in excess of Landlord’s Restroom
Contribution in accordance with the terms and conditions set forth herein and in Exhibit
B-2, except to the extent that such costs are otherwise paid by Landlord’s
20th/21st Floor Contribution pursuant to Section 4.3. Landlord’s
Restroom Contribution shall be payable solely on account of work related to the Restroom
Renovations (including, without limitation, (i) actual architectural, consulting and engineering
fees and costs incurred by Tenant in connection therewith and (ii) costs of electricity and other
utilities incurred in connection therewith). Tenant shall not be entitled to receive any portion of
Landlord’s Restroom Contribution not actually expended in the performance of the Restroom
Renovations in accordance with Exhibit B-2 as part of Landlord’s
20th/21st Floor Work, nor shall Tenant have the right to apply any such
unexpended portion



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against any other Alterations or work (including Landlord’s 20th/21st Floor Work), nor
shall Tenant have any right to apply any unexpended portion of Landlord’s Restroom Contribution as
a credit against Fixed Rent, Additional Rent or any other obligation of Tenant under the Original
Lease, as amended by this Amendment.



SECTION 5 SECURITY DEPOSIT.




                  5.1 On the date hereof, the amount of the Security Deposit described in the Original Lease
shall be increased by $655,000.00 (by Tenant either by making a cash deposit with Landlord or
delivering an additional Letter of Credit which in all respects complies with and shall be governed
by the terms, conditions and requirements of Section 34.2 of the Original Lease and all
other applicable terms and conditions of the Original Lease) so that the Security Deposit under the
Original Lease, as amended hereby, from and after the Effective Date shall be in the total amount
of One Million Two Hundred Forty Seven Thousand Nine Hundred and 00/100 Dollars ($1,247,900.00),
subject to reduction as hereinafter provided (such increased Security Deposit, the “Increased
Security Deposit”). From and after the Effective Date, all references in the Original Lease,
as amended hereby, to the “Security Deposit” shall be deemed to refer to the Increased Security
Deposit. Except as otherwise specifically provided herein, the provisions of Article 34 of
the Original Lease shall govern and apply to the Increased Security Deposit and, except as
otherwise herein specifically provided, all terms and provisions of the Original Lease respecting
the Security Deposit shall apply to the Increased Security Deposit.



                  5.2 Subject to the provisions of and satisfaction of all of the conditions set forth in
Section 34.5(b) and (c) of the Original Lease, the Increased Security Deposit shall be
reduced on each of the following reduction dates (the “20th/21st Floor
Reduction Dates”) as follows:




     (a) On the day succeeding the second anniversary of the
20th/21st Floor Rent Commencement Date, the Increased Security
Deposit shall be reduced to $1,064,293.06.




     (b) On the day succeeding the fourth anniversary of the
20th/21st Floor Rent Commencement Date, the Increased Security
Deposit shall be reduced to $904,648.57.




     (c) On the day succeeding the sixth anniversary of the
20th/21st Rent Commencement Date, the Increased Security
Deposit shall be reduced to $768,949.71.




     (d) On the day succeeding the eighth anniversary of the
20th/21st Rent Commencement Date, the Increased Security
Deposit shall be reduced to $313,027.37.




     (e) There shall be no further reduction of or return of the Increased Security
Deposit until the final expiration of the Term, and then only subject to and in
accordance with the provisions of Article 34 of the Original Lease, as
amended hereby.



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                  5.3 From and after the Effective Date, the provisions of Section 34.5(a) of the
Original Lease shall be void and of no force or effect. The provisions of Section 34.5(b)
and Section 34.5(c) of the Original Lease shall continue in full force and effect and shall
apply in respect of the Increased Security Deposit.



SECTION 6 SURRENDER OF ORIGINAL PREMISES




                  6.1 (a) On a date selected by Tenant (and of which Tenant shall provide to Landlord at least
two (2) Business Days’ prior notice) and occurring not earlier than the date immediately succeeding
the date of Substantial Completion of the Phase II Landlord’s 20th/21st Floor
Work and not later than the date two (2) weeks after the date of Substantial Completion of the
Phase II Landlord’s 20th/21st Floor Work (the “Outside Surrender
Date”), the Original Lease, as amended by this Amendment, and the term thereof, shall end and
expire as respects the Original Premises only, as fully and completely as if the Surrender
Date were the date fixed in the Original Lease for the end and expiration thereof; and Tenant shall
surrender the Original Premises to Landlord in the condition required pursuant to the Original
Lease (subject, however, to the following provisions of this Section 6.1) and Landlord
shall accept such surrender (the date of actual surrender by Tenant of the Original Premises in
accordance with the provisions hereof, the “Surrender Date”). If the Surrender Date shall
not occur on the last day of a calendar month, then the Rent payable in respect of the Original
Premises for the month in which the Surrender Date occurs shall be prorated for the number of days
that occur within said month. In no event shall Tenant fail to so vacate and surrender the Original
Premises by the Outside Surrender Date. The provisions of the first sentence of this Section
6.1(a) to the contrary notwithstanding, and the provisions of Section 5.3 (and any
other provision) of the Original Lease to the contrary notwithstanding: (i) Tenant shall not remove
from the Original Premises the following items existing in the Original Premises on the date
hereof, and simultaneously with the surrender of the Original Premises by Tenant to Landlord such
items shall be surrendered by Tenant to Landlord and shall be the property solely of Landlord
(without payment of any consideration therefor by Landlord): (1) the reception gate and reception
desk, (2) the cabinetry and appliances (refrigerator and dishwasher, but not the microwave) in the
pantry, (3) the two supplemental air conditioning systems, (4) the ADA compliant private bathroom,
(5) built in shelving in the mail/copy room, (5) desk/shelves in the IT room, plywood mounted on
wall in the IT room, (6) printer/fax platforms over convectors, and (7) conference room drop-down
screen and white board (the items described in subclauses (1), (2), (3), (4), (5), (6) and (7) of
this clause (i), “Surrender Items”); (ii) Tenant shall not be required prior to the
Surrender Date to remove the following Alterations or items of Tenant’s Property from the Original
Premises: (1) the furniture workstations existing in the Original Premises on the date hereof, and
(2) the boardroom table in the large conference room and the audio cabinet and shelf unit in the
large conference room existing in the Original Premises on the date hereof (the items described in
subclauses (1) and (2) of this clause (ii), “Unremoved Alterations and Tenant’s Property”);
(iii) Tenant shall not be required to remove any telecommunications wires or cables existing in the
walls or ceilings of the Original Premises as of the Surrender Date or the floor power receptacles
in the Original Premises which provide power for workstations (the “In-Wall Cabling and Floor
Receptacles”); (iv) except as otherwise specifically provided in the preceding clauses (i),
(ii) and (iii) respecting the Surrender Items, the Unremoved Alterations and Tenant’s Property, and
the In-Wall Cabling and Floor Receptacles, Tenant shall, prior to the Surrender Date, remove all
Alterations and all Tenant’s Property and make all restorations or repairs otherwise required



10









 






pursuant to the Original Lease (which restorations and repairs shall include, without
limitation, spackling and repair of torn or damaged sheetrock, but not repainting); and (v) Tenant
shall otherwise surrender the Original Premises in the condition (including without limitation
broom clean condition) required pursuant to the Original Lease.



                         (b) If, in accordance with Section 6.1(a), Tenant shall not have removed Unremoved
Alterations and Tenant’s Property from the Original Premises prior to the Surrender Date and made
the related restorations and repairs, then, unless a new tenant of all or a part of the Original
Premises has previously agreed (and given notice to Landlord to such effect, in form and substance
reasonably satisfactory to Landlord) that such new tenant shall accept or acquire from Tenant, in
place, the Unremoved Alterations and Tenant’s Property (without requiring any payment or work by
Landlord in connection therewith), Tenant, at Tenant’s sole cost and expense, (i) may, at any
reasonable time, upon reasonable notice to Landlord, and subject to such reasonable conditions as
Landlord may impose for the protection of persons and property and the prevention of disruption of
Building operations, remove from the Original Premises the Unremoved Alterations and Tenant’s
Property (to the extent not so accepted or acquired by such new tenant) and make the related
restorations or repairs otherwise required pursuant to the Original Lease, and (ii) shall, not
later than thirty (30) days after demand by Landlord given at any time after the Surrender Date,
but at a reasonable time and subject to such reasonable conditions as Landlord may impose for the
protection of persons and property and the prevention of disruption of Building operations, remove
from the Original Premises the Unremoved Alterations and Tenant’s Property (to the extent not so
accepted or acquired by such new tenant) and make the related restorations or repairs otherwise
required pursuant to the Original Lease; and if Tenant shall fail so to do, then anything herein to
the contrary notwithstanding (including, without limitation, the provisions of clause (i) of this
sentence), same shall be deemed abandoned and Landlord may either retain the same as Landlord’s
property or remove and dispose of same without accountability to Tenant, and repair and restore any
damage caused thereby, all at Tenant’s cost. Landlord shall have absolutely no liability or
responsibility for the Unremoved Alterations and Tenant’s Property, and the failure by Tenant to
remove same prior to the Surrender Date shall be at the sole risk of Tenant.



                  6.2 From and after the Surrender Date neither Tenant nor Landlord shall have any liability to
the other in connection with the Original Premises, except for any matters which accrue or accrued
under the Original Lease in respect of the Original Premises on or prior to the Surrender Date.



                  6.3 Anything herein to the contrary notwithstanding, the Surrender Date shall not be deemed to
have occurred unless all of the “Conditions to Effectiveness” (hereinafter defined) are then
satisfied, unless Landlord, in its sole discretion, shall waive any such Conditions to
Effectiveness. The “Conditions to Effectiveness” are the following (any or all of which may
be waived by Landlord, in its sole discretion): (i) on the Surrender Date, the Original Lease, as
amended hereby shall be in full force and effect, (ii) by the Surrender Date, Tenant shall have
accepted possession of the 20th/21st Floor Space and the Term, as respects
the 20th/21st Floor Space, shall have commenced, and (iii) on the Surrender
Date Tenant shall surrender the Original Premises to Landlord vacant and broom clean, and otherwise
in the condition required by the Original Lease upon the expiration of the term thereof, subject,
however, to the provisions of the last sentence of Section 6.1(a) of this Amendment.



11









 





                  6.4 Through and including the Surrender Date, Tenant shall continue to pay to Landlord all
Fixed Rent and Additional Rent due or to become due in respect of the Original Premises pursuant to
the terms of the Original Lease (as in effect immediately prior to this Amendment).



                  6.5 Anything in this Amendment to the contrary notwithstanding, and notwithstanding that the
Surrender Date shall occur, all obligations and liabilities of Landlord and Tenant to the other,
including payment of Additional Rent (such as, but not limited to, any operating expense payments
and adjustments or real estate tax payments and adjustments, or any sundry items not yet paid or
billed), which accrue or accrued in respect of the Original Premises through the Surrender Date,
under the Original Lease as in effect immediately prior to this Amendment, and all obligations and
liabilities (under this Amendment and/or otherwise under the Original Lease prior to this
Amendment) which by their nature or under the circumstances can only be, or by the provisions of
the Original Lease, as amended hereby, may be performed after such Surrender Date shall survive the
Surrender Date and the surrender of the Original Premises. Without limiting the generality of the
foregoing, the rights and obligations of the parties with respect to any indemnity under the
Original Lease, as in effect immediately prior to this Amendment, in connection with any matter
which arose or arises, or accrues or accrued, on or prior to the Surrender Date in respect of the
Original Premises, shall survive the Surrender Date.



                  6.6 Landlord and Tenant recognize that the damage to Landlord resulting from any failure by
Tenant to timely surrender possession of the Original Premises pursuant to this Section 6
may be substantial, may exceed the amount of the Rent theretofore payable under the Original Lease,
and will be impossible to accurately measure. Tenant therefore agrees that if possession of the
Original Premises is not surrendered to Landlord in the condition required pursuant to the Original
Lease (subject, however, to the provisions of the last sentence of Section 6.1(a) of this
Amendment) on or before the Outside Surrender Date in addition to any other rights or remedies
Landlord may have hereunder or at law, Tenant shall:




               (a) pay to Landlord,




                            (i) for each month (or any portion thereof, provided that the payment for partial
months shall be prorated) during which Tenant holds over in the Original Premises during the
period commencing on the date immediately succeeding the Outside Surrender Date but prior to
the date two weeks after the Outside Surrender Date, a sum equal to one and one-quarter
times (1.25x) the Rent payable under the Original Lease for the last full calendar month
immediately preceding the Outside Surrender Date; and




                            (ii) for each month (or any portion thereof, provided that the payment for partial
months shall be prorated) during which Tenant holds over in the Original Premises during the
period commencing on the date two (2) weeks after the Outside Surrender Date but prior to
the date four (4) weeks after the Outside Surrender Date, a sum equal to one and one-half
times (1.5x) the Rent payable under the Original Lease for the last full calendar month
immediately preceding the Outside Surrender Date; and



12









 






                            (iii) for each month (or any portion thereof, provided that the payment for partial
months shall be prorated) during which Tenant holds over in the Original Premises during the
period commencing four (4) weeks after the Outside Surrender Date, a sum equal to two times
(2x) the Rent payable under the Original Lease for the last full calendar month immediately
preceding the Outside Surrender Date; and




               (b) be liable to Landlord for (i) any payment or rent concession which Landlord
may be required to make to any tenant obtained by Landlord for all or any part of
the Original Premises (a “New Tenant”) in order to induce such New Tenant not to
terminate its lease by reason of the holding-over by Tenant, and (ii) the loss of
the benefit of the bargain if any New Tenant shall terminate its lease by reason of
the holding-over by Tenant; and




               (c) indemnify Landlord against all claims for damages by any New Tenant; but
Tenant shall have the right, at Tenant’s expense, to participate with Landlord in
the defense of Landlord against any such claims by any New Tenant.



                  6.7 No holding-over by Tenant, nor the payment to Landlord of the amounts specified above,
shall operate to extend the term of the Original Lease as respects the Original Premises beyond the
Outside Surrender Date. Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Original Premises after the Outside Surrender Date or sooner termination of the
Original Lease, as amended hereby, and no acceptance by Landlord of payments from Tenant in respect
of the Original Premises after the Outside Surrender Date or sooner termination of the Term as
respects the Original Premises shall be deemed to be other than on account of the amount to be paid
by Tenant in accordance with the provisions of this Section 6.



                  6.8 Tenant expressly waives, for itself and for any Person claiming through or under Tenant,
any rights which Tenant or any such Person may have under the provisions of Section 2201 of the New
York Civil Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to enforce the
foregoing provisions of this Section 6.



                  6.9 Tenant shall not be obligated to pay any Fixed Rent in respect of the Original Premises
attributable to any period from and after the date immediately following the Surrender Date.



                  6.10 Tenant shall not be obligated to pay any Tenant’s Tax Payment in respect of the Original
Premises attributable to any period from and after the date immediately following the Surrender
Date.



                  6.11 Tenant shall not be obligated to pay any Tenant’s Operating Payment in respect of the
Original Premises attributable to any period from and after the date immediately following the
Surrender Date.



13









 





                  6.12 In respect of Tenant’s Tax Payment and Tenant’s Operating Payment with respect to the
period from and after the date immediately following the Surrender Date, Tenant’s Proportionate
Share shall not include the Original Premises.



                  6.13 Landlord, one time only without charge to Tenant, shall make the appropriate changes to
the Building Directory to reflect the premises actually leased to Tenant.



SECTION 7 NO OTHER MODIFICATIONS; RATIFICATION.




                  7.1 Except as specifically modified and amended by this Amendment, there are no other changes
or modifications to the Original Lease and all of the terms, covenants and conditions of the
Original Lease, as modified and amended by this Amendment, are hereby ratified and confirmed and
shall continue to be and remain in full force and effect.



SECTION 8 BROKERS.




                  8.1 Each of Landlord and Tenant represents and warrants to the other that it has not dealt
with any broker in connection with this Amendment other than Studley, Inc., CB Richard Ellis, Inc.
and RANY Management Group, Inc. (the “Brokers”) and that, to the best of its knowledge and
belief, no other broker, finder or like entity procured or negotiated this Amendment or is entitled
to any fee or commission in connection herewith. Each of Landlord and Tenant shall indemnify,
defend, protect and hold the other party harmless from and against any and all Losses (as defined
in Section 32.1(b) of the Original Lease) which the indemnified party may incur by reason
of any claim of or liability to any broker, finder or like agent (other than the Brokers) arising
out of any dealings claimed to have occurred between the indemnifying party and the claimant in
connection with this Amendment, or the above representation being false. Landlord shall be
responsible for the commission due and payable to the Brokers in connection with this Amendment
pursuant to a separate agreement.



SECTION 9 NOTICES.




                  9.1 (a) All bills, statements, consents, notices, demands, requests, approvals or other
communications to be given under the Lease as modified by this Amendment shall be given in
accordance with the provisions of Article 27 of the Original Lease, as amended hereby.



                         (b) The address for Donald M. Bloch, Esq. set forth in Article 27 of the Original
Lease is hereby revised to the following: Donald M. Bloch, Esq., Posternak Blankstein & Lund LLP,
The Prudential Tower, 800 Boylston Street, 33rd Floor, Boston, Massachusetts, 02199.



14









 





SECTION 10 OPTION TO RENEW RESPECTING THE 20th/21st FLOOR SPACE




                  10.1 The provisions of this Section 10 of this Amendment shall apply only to the
20th/21st Floor Space and shall not apply in any respect to the Original
Premises or any part thereof.



                  10.2 Option to Renew. Pzena Investment Management, LLC only, as Tenant, shall have
the one-time right, at its option, to renew the Original Lease, as amended by this Amendment (the
“Renewal Option”), for all of the 20th/21st Floor Space only, for a
renewal term (“Renewal Term”) of five (5) years. The Renewal Term shall commence
(“Renewal Term Commencement Date”) on the day immediately following the
20th/21st Floor Space Expiration Date and shall terminate on the day
immediately preceding the fifth anniversary of the Renewal Term Commencement Date. Tenant shall
exercise the option described herein by giving Landlord written notice of such election to renew
(“Renewal Notice”) not later than the day which is eighteen months prior to the
20th/21st Floor Space Expiration Date, and upon the giving of such notice the
Original Lease, as amended by this Amendment, as respects the 20th/21st Floor
Space only, shall thereupon be deemed renewed for the Renewal Term with the same force and effect
as if the Renewal Term had originally been included in the term of the Original Lease, as amended
by this Amendment, as respects 20th/21st Floor Space. Time is of the essence
with respect to Tenant’s Renewal Notice. The right of Tenant to renew the Original Lease, as
amended by this Amendment, as respects the 20th/21st Floor Space shall be
conditioned upon (i) there shall be no Event of Default at the time of the Renewal Notice and as of
the Renewal Term Commencement Date, (ii) the original Tenant named herein and its Affiliates
occupying, in the aggregate, not less than ninety percent (90%) of the rentable square footage of
the 20th/21st Floor Space as of the date of the Renewal Notice and the
Renewal Term Commencement Date, and (iii) the Original Lease, as amended by this Amendment, being
in full force and effect at the time of the exercise of such option and as of the Renewal Term
Commencement Date.



                  10.3 Terms of Lease. All of the terms, covenants and conditions of the Original
Lease, as amended by this Amendment, as respects 20th/21st Floor Space, shall
continue in full force and effect during the Renewal Term, except that (i) the Fixed Rent for the
Renewal Term shall be in an amount equal to the Fair Market Rent (as determined below), (ii) Tenant
shall have no further right to renew the term of the Original Lease, as amended by this Amendment,
(iii) Base Taxes shall be the Taxes for the Tax Year commencing July 1, 2015 and ending on June 30,
2016, and Base Expenses shall be the Operating Expenses for the Computation Year commencing January
1, 2015 and ending December 31, 2015, (iv) the Rent Commencement Date in respect of the Renewal
Term shall be the Renewal Term Commencement Date and Tenant shall not be entitled to any abatement
of Fixed Rent (as such abatement is provided in Section 3.1 of this Amendment or
otherwise), and (v) Landlord shall have no obligation to make any Landlord’s
20th/21st Floor Contribution or Landlord’s Restroom Contribution or perform
any Landlord’s 20th/21st Floor Work, nor shall Landlord otherwise have any
obligation to pay or contribute to the payment for, or perform, any Alterations or any other work
intended to prepare the 20th/21st Floor Space for Tenant’s occupancy. Any
termination, cancellation or surrender of the interest of Tenant under the Original Lease, as
amended by this Amendment, at any time during the Term hereof shall terminate any right of renewal
of Tenant hereunder. Upon the determination of the Fixed Rent in accordance with Section
10.4 or Section 10.5 below for the Renewal Term, Landlord and Tenant, upon the demand
of either of



15









 






them, shall execute and deliver an instrument setting forth the Fixed Rent for the Renewal Term; but
failure of the parties, or either of them, to so execute and deliver such an instrument shall not
affect the enforceability of the Fixed Rent for the Renewal Term, as determined as herein provided.



                  10.4 Fixed Rent. For purposes of determining the Fixed Rent payable during the Renewal
Term, the Fair Market Rent of the 20th/21st Floor Space shall be equal to the
fair market annual rental value of the 20th/21st Floor Space as of the
Renewal Term Commencement Date, as determined in accordance with the terms hereof. Not later than
ninety (90) days prior to the 20th/21st Floor Renewal Term Commencement Date,
Landlord shall give notice (“20th/21st Floor Valuation Notice”) to
Tenant setting forth the amount that Landlord determines to be the Fair Market Rent for the
20th/21st Floor Space for the Renewal Term. If Tenant shall dispute
Landlord’s determination of the Fair Market Rent, Tenant must (or Tenant shall be deemed to have
accepted the Fair Market Rent set forth in Landlord’s 20th/21st Floor
Valuation Notice) give notice to Landlord of such dispute within twenty (20) days of Tenant’s
receipt of the 20th/21st Floor Valuation Notice (with time of the essence).
The parties shall then engage in good faith negotiations for ten (10) days to determine the Fair
Market Rent for the 20th/21st Floor Space for the Floor Renewal Term. In the
event the parties cannot resolve their dispute with regard to the Fair Market Rent for the
20th/21st Floor Space for the Renewal Term within such ten (10) day period,
then the Original Lease, as amended by this Amendment, shall be deemed renewed as respects the for
the 20th/21st Floor Space and the Fair Market Rent for the
20th/21st Floor Space for the Renewal Term shall be determined by arbitration
in accordance with Section 10.5 hereof. For the avoidance of doubt, Fair Market Rent is
defined as the annual amount of fixed, base rent that a willing lessee would pay and a willing
lessor would accept for the 20th/21st Floor Space, paid over the Renewal
Term, taking into account all reasonably relevant factors relating to the premises in question.



                  10.5 Arbitration. If Tenant shall dispute Landlord’s determination of the Fair Market
Rent for the 20th/21st Floor Space for the Renewal Term pursuant to
Section 10.4 of this Amendment, such Fair Market Rent shall be determined by a single
arbitrator appointed in accordance with the American Arbitration Association Real Estate Valuation
Arbitration Proceeding Rules. Such arbitrator shall be impartial and shall have not less than ten
(10) years’ experience in the County of New York in a calling related with the leasing of
commercial office space in office buildings comparable to the Building, and the fees of such
arbitrator, shall be shared equally by Landlord and Tenant. Within thirty (30) days following the
appointment of such arbitrator, each party shall attend a hearing before such arbitrator wherein
each party shall submit a report setting forth its determination of the Fair Market Rent for the
20th/21st Floor Space for the Renewal Term (which need not be the same
determination which the party submitted or proposed pursuant to Section 10.4), together
with such information on comparable rentals or such other evidence as such party shall deem
relevant. The arbitrator shall, within thirty (30) days following such hearing and submission of
evidence, render its decision by selecting the determination of the Fair Market Rent for the
20th/21st Floor Space for the Renewal Term submitted to the arbitrator by
either Landlord or Tenant which, in the judgment of the arbitrator, most nearly reflects such Fair
Market Rent based on all relevant factors relating to the premises in question. It is expressly
understood that such arbitrator shall have no power or authority to select any Fair Market Rent for
the 20th/21st Floor Space for the Renewal Term other than the Fair Market
Rent submitted by Landlord or Tenant, and the decision of such arbitrator



16









 






shall be final and binding upon the parties hereto. Prior to the determination of the
arbitrator, Tenant shall pay Rent in the amount equal to the lesser of the amount set forth in
Landlord’s 20th/21st Floor Valuation Notice and the amount submitted by
Landlord to the arbitrator pursuant to this Section 10.5, provided that during such period
of time, if any prior to the determination of the arbitrator and prior to such time as Landlord
shall make such submission to the arbitrator, Tenant shall pay Rent in an amount equal to the
amount set forth in Landlord’s 20th/21st Floor Valuation Notice. Following
the arbitrator’s final determination, the amount of any overpayment or underpayment shall be
promptly adjusted between the parties.



SECTION 11 RIGHT OF FIRST OFFER




                  11.1 Expansion Space and Landlord’s Notice. If all of the following conditions are
satisfied:




	 	(i)	 	the existing tenant, or any successor to or
assign of the existing tenant (in either case, the “Existing
Sixteenth Floor Tenant”) of the lease (the “Existing Sixteenth
Floor Lease”) existing on the date hereof respecting the sixteenth
(16th) floor of the Building, does not, at any time
prior to the current expiration date of such lease (a) renew or extend
the Existing Sixteenth Floor Lease pursuant to a renewal or extension
which covers fifty percent (50%) or more of the rentable area of the
sixteenth (16th) floor of the Building), or (b) enter into a
new lease with Landlord pursuant to a lease covering fifty percent
(50%) or more of the rentable areas of the sixteenth (16th)
floor of the Building (any such renewal, extension or new lease
covering fifty percent (50%) or more of the rentable areas of the
sixteenth (16th) floor of the Building, a “Threshold New
Lease”); and
	 
	 	(ii)	 	on both (a) the date the Expansion Space
(hereinafter defined) is actually available (and/or the date Landlord
reasonably anticipates that such Expansion Space shall become
available) and (b) the date Tenant’s lease of the Expansion Space
otherwise would commence (1) there shall be no Event of Default, (2)
the original Tenant named herein and its Affiliates shall occupy, in
the aggregate, not less than ninety percent (90%) of the rentable
square footage of the 20th/21st Floor Space, and
(3) the Original Lease, as amended hereby, is in force and effect;




then subject to the terms and provisions of this Section 11, (a) Tenant shall have a
one time only option (the “Expansion Option”) to lease only the entirety of that
portion, if any, of the rentable square footage on the sixteenth (16th) floor of the
Building which is not subject to a renewal, extension or new lease with the Existing Sixteenth
Floor Tenant (such space, comprising fifty percent (50%) or more of the rentable square footage on
the sixteenth (16th) floor of the Building and which is not subject to a renewal,
extension or new lease with the Existing Sixteenth Floor Tenant, the “Expansion Space”),
and (b) Landlord shall promptly give notice to Tenant when


17









 





Landlord reasonably believes that the Expansion Space shall become available, specifying in such
notice the date or approximate date (in either case, the “Anticipated Availability Date”)
that Landlord then believes such Expansion Space shall become available (the “Expansion Offer
Notice”). The Expansion Offer Notice shall state the date that Landlord anticipates that the
Expansion Space shall become available or ready for occupancy, the term (which Landlord and Tenant
hereby agree shall be coterminous with the Term (including any renewal thereof pursuant to the
Renewal Option) of the Original Lease, as amended hereby, as respects the
20th/21st Floor Space, the approximate rentable square footage and location
of the Expansion Space, and Landlord’s calculation of the annual Fair Market Rent for the Expansion
Space (not including any unexercised renewal term, it being understood that the Fair Market Rent
for the Expansion Space as respects any such unexercised renewal term shall be determined in
accordance with Section 10 of this Amendment (such annual Fair Market Rent, the
“Expansion Space Fixed Rent”, and such terms, collectively, the “Offer”)). As used
in this Section, “available” means that (i) the Expansion Space is vacant and free of any
right existing in favor of the existing tenant on the floor to renew or extend its lease, and (ii)
no Threshold New Lease with the existing tenant on the floor shall have been entered into. Landlord
and Tenant agree that for all purposes of the Original Lease, as amended hereby, the sixteenth
(16th) floor of the Building shall be deemed to comprise 13,745 rentable square feet.




                  11.2 Acceptance of Expansion Space and Tenant’s Notice. (a) Tenant shall have the
one-time only option (the “Expansion Space Option”) to accept the Offer by giving
Landlord notice (the “Expansion Acceptance Notice”) of such acceptance within fourteen (14)
days after it’s receipt of the Expansion Offer Notice with time being of the essence with respect
to said fourteen (14) day period. The last day of such fourteen (14) day period is hereinafter
referred to as the “Expansion Notice Date”. If Tenant shall timely exercise the aforesaid
right to accept the Offer, then the Expansion Space shall be added to and become part of the
Premises on the terms of the Offer (subject to the provisions of Section 11.3 below) as of
the date (the “Expansion Space Commencement Date”) which shall be the later of (x) the date
on which Tenant exercises the aforesaid right to accept the Offer and (y) the date on which the
Expansion Space shall become available for Tenant’s occupancy. Tenant shall accept possession of
the Expansion Space in its “as is” and “where is” condition (except that such space, if delivered,
shall be delivered vacant, broom clean, and free of occupancy claims), and Landlord shall have no
obligation to perform any Landlord’s Work or any other work whatsoever to prepare the Expansion
Space for Tenant’s occupancy, or make any repairs, improvements or alterations in or to the
Expansion Space, nor shall Landlord otherwise have any obligation to pay or contribute to the
payment for, or perform, any Alterations or any other work intended to prepare the Expansion Space
for Tenant’s occupancy.



                         (b) If Tenant fails to timely deliver the Expansion Acceptance Notice to Landlord on or before
the Expansion Notice Date, then the Offer with respect to such portion of the Expansion Space shall
be deemed revoked, null and void, and of no further force and effect, and (i) Landlord may
thereafter proceed with the leasing of such Expansion Space, or any portions thereof, to any
person, upon any terms and conditions desired by Landlord, (ii) Tenant shall have no further rights
with respect to all or any portion of the Expansion Space as may then be (or may thereafter at any
time during the Term, as same may be renewed or extended) become available for leasing and (iii)
Tenant shall, upon demand by Landlord, execute an instrument confirming Tenant’s waiver of, and
extinguishing, the Expansion Space



18









 






Option, but the failure by Tenant to execute any such instrument shall not affect the
provisions of the immediately preceding clauses (i) and (ii).



                  11.3 Anything in this Section 11 to the contrary notwithstanding, (i) Tenant shall
have no right to lease the Expansion Space pursuant to the Expansion Space Option if, as of the
Anticipated Availability Date (or the date the Expansion Space actually becomes available), the
unexpired portion of the original Term remaining to the Original Lease, as amended by this
Amendment, as respects the 20th/21st Floor Space, would be or is three (3)
years or less, unless Tenant has duly exercised the Renewal Option; (ii) during the Renewal Term,
Tenant shall have no right to lease the Expansion Space pursuant to the Expansion Space Option if,
as of the Anticipated Availability Date (or the date the Expansion Space actually becomes
available), the unexpired portion of the Renewal Term as respects the
20th/21st Floor Space, would be or is three (3) years or less; and (iii) if
Tenant shall give an Expansion Acceptance Notice during the last three (3) years of the original
Term of the Original Lease, as amended by this Amendment, as respects the
20th/21st Floor Space, but shall not have exercised the Renewal Option then,
at the option of Landlord, Tenant automatically shall be deemed to have exercised the Renewal
Option (subject, however, to the provisions of Section 10 of this Amendment).



                  11.4 Event of Default. Notwithstanding anything to the contrary contained in this
Section 11, if at any time prior to the Expansion Space Commencement Date (including
without limitation the period subsequent to the date on which Landlord shall have delivered an
Expansion Offer Notice to Tenant, but prior to the Expansion Space Commencement Date), (i) there
shall occur an Event of Default, or (ii) the original Tenant named herein and its Affiliates shall
occupy, in the aggregate, less than ninety percent (90%) of the rentable square footage of the
20th/21st Floor Space, or (iii) the Original Lease, as amended hereby, is not
in force and effect, or (iv) Tenant shall fail to deliver to Landlord the additional Security
Deposit as required pursuant to Section 11.5(a)(vi), then Landlord, in Landlord’s sole and
absolute discretion, may elect, by notice delivered to Tenant, to void Tenant’s acceptance of the
Offer, in which case Tenant’s acceptance of the Offer shall be of no force and effect, and Tenant
shall have no further rights with respect to all or any portion of the Expansion Space as may then
be (or may thereafter at any time during the Term become) available for leasing.



                  11.5 Modifications to Lease. (a) From and after the Expansion Space Commencement
Date, the provisions of the Original Lease as modified by this Amendment shall apply to the
Expansion Space, except that:




	 	(i)	 	The term “Premises” (as defined in Article
1 of the Original Lease, as amended hereby), shall be deemed to
include the Expansion Space;
	 
	 	(ii)	 	Fixed Rent (as defined in Article 1 of
the Original Lease, as amended hereby), shall be increased by an amount
equal to the Fair Market Rent for the Expansion Space (which, subject
to Section 11.7 of this Amendment, shall be Landlord’s
determination of Fair Market Rent for the Expansion Space as set forth
in the Expansion Offer Notice);










19









 











	 	(iii)	 	Tenant’s Proportionate Share shall be
recalculated based on the square footage of the Expansion Space (as
determined by Landlord in a manner consistent with Landlord’s
then-current procedures for taking measurements in the Building) and
the computations set forth in Sections 3.3 and 3.4 of this
Amendment;
	 
	 	(iv)	 	All Additional Rent shall be recalculated to
reflect the relevant Expansion Space, provided however, (a) the Base
Operating Year applicable to the Expansion Space shall be the
Computation Year commencing January 1 of the calendar year (the
“Expansion Space Commencement Year”) in which the term of the
Original Lease, as amended hereby, shall commence as respects the
Expansion Space and ending on December 31 of the Expansion Space
Commencement Year, and (ii) the Base Taxes applicable to the Expansion
Space shall be the Taxes for the Tax Year commencing July 1 of the
Expansion Space Commencement Year and ending on June 30 of the next
succeeding calendar year;
	 
	 	(v)	 	The lease term with respect to the Expansion
Space shall commence on the Expansion Space Commencement Date, and
shall be coterminous with Term (including any renewal thereof pursuant
to the Renewal Option) of the Original Lease, as amended hereby, as
respects the 20th/21st Floor Space (whether such
term shall terminate or expire by reason of expiration, default, or
otherwise);
	 
	 	(vi)	 	The Security Deposit, to the extent outstanding
on the Expansion Space Commencement Date, shall be increased by an
additional fifty percent (50%); and on each Reduction Date, the
Security Deposit, as so increased, shall be reduced to an amount equal
to one hundred fifty percent (150%) of the amount to which the Security
Deposit otherwise would be reduced pursuant to Section 34.5(a)
of the Original Lease (subject however, to the provisions of
Article 34 of the Original Lease, including without limitation
the provisions of Sections 34.5(b) and (c) of the Original
Lease). Except as otherwise herein provided, all of the terms and
provisions of the Original Lease (including without limitation the
provisions of Article 34) respecting the Security Deposit shall
apply to the Security Deposit as so increased.





                         (b) At the request of either party, Landlord and Tenant shall amend the Original Lease, as
amended by this Amendment, in order to reflect accurately the terms of this Section 11,
provided that the failure to so execute or deliver any such amendment shall not in any way reduce
Tenant’s obligations or Landlord’s rights under the Original Lease, as amended by this Amendment,
with respect to the relevant Expansion Space, the 20th/21st Floor Space or
the Premises.



20









 





                  11.6 Delivery of Expansion Space. If Landlord, after using reasonable efforts, shall
be unable to give possession of any Expansion Space to Tenant on the proposed Expansion Space
Commencement Date because of the holding-over or retention of possession of any tenant, subtenant
or occupants, or for any other reason beyond Landlord’s reasonable control, Landlord shall not be
subject to any liability for failure to give possession on said date, and the validity of the
Original Lease, as amended by this Amendment, shall not be impaired by reason thereof, nor shall
the same be construed so as to extend the Term with respect to the Expansion Space or any other
premises, but the Expansion Space Commencement Date shall be deemed extended until the date on
which Landlord shall have delivered possession thereof to Tenant (provided that Tenant shall not
have caused or contributed to the inability to obtain possession); provided, however, that if such
inability of Landlord to so deliver possession shall continue until the date (the “Expansion
Space Outside Delivery Date”) one year after the proposed Expansion Space Commencement Date,
then (provided that Tenant shall not have caused or contributed to the inability to obtain
possession) Tenant, as Tenant’s sole remedy, by giving written notice to Landlord not later than
fifteen (15) days after the Expansion Space Outside Delivery Date (with time of the essence), may
cancel Tenant’s exercise of the Expansion Option (and failing the timely delivery of such notice
Tenant shall be deemed to have waived the right to cancel Tenant’s exercise of the Exercise
Option). If Tenant shall so cancel Tenant’s exercise of the Expansion Option, the Expansion Option
shall be of no force or effect, but otherwise the Original Lease, as amended by this Amendment,
shall continue unaffected and in full force and effect. The provisions of this Section 11.6
are intended to constitute “an express provision to the contrary” within the meaning of Section
223-a of the New York Real Property Law.



                  11.7 Fair Market Rent for the Expansion Space. If Tenant shall dispute Landlord’s
determination of the Fair Market Rent for the Expansion Space, Tenant must (or Tenant shall be
deemed to have accepted the Fair Market Rent set forth in Landlord’s Expansion Offer Notice) give
notice to Landlord of such dispute within twenty (20) days of Tenant’s receipt of Landlord’s
Expansion Offer Notice (with time of the essence). The parties shall then engage in good faith
negotiations for ten (10) days to determine the Fair Market Rent for the Expansion Space. In the
event the parties cannot resolve their dispute with regard to the Fair Market Rent for the
Expansion Space within such ten (10) day period, then the Fair Market Rent for the Expansion Space
shall be determined by arbitration in accordance with Section 11.8 of this Amendment. For
the avoidance of doubt, Fair Market Rent for the Expansion Space is defined as the annual amount of
fixed, base rent that a willing lessee would pay and a willing lessor would accept for the
Expansion Space, paid over the Term of the Original Lease, as amended hereby, as respects the
Expansion Space, taking into account all reasonably relevant factors relating to the premises in
question.



                  11.8 Arbitration. If Tenant shall dispute Landlord’s determination of the Fair Market
Rent for Expansion Space pursuant to Section 11.7 of this Amendment, such Fair Market Rent
shall be determined by a single arbitrator appointed in accordance with the American Arbitration
Association Real Estate Valuation Arbitration Proceeding Rules. Such arbitrator shall be impartial
and shall have not less than ten (10) years’ experience in the County of New York in a calling
related with the leasing of commercial office space in office buildings comparable to the Building,
and the fees of such arbitrator, shall be shared equally by Landlord and Tenant. Within thirty (30)
days following the appointment of such arbitrator, each party shall attend a hearing before such
arbitrator wherein each party shall submit a report setting forth its



21









 






determination of the Fair Market Rent for the Expansion Space for the applicable term thereof
(which need not be the same determination which the party submitted or proposed pursuant to the
above provisions of this Section 11), together with such information on comparable rentals
or such other evidence as such party shall deem relevant. The arbitrator shall, within thirty (30)
days following such hearing and submission of evidence, render its decision by selecting the
determination of the Fair Market Rent for the Expansion Space for such term submitted to the
arbitrator by either Landlord or Tenant which, in the judgment of the arbitrator, most nearly
reflects such Fair Market Rent for the Expansion Space based on all relevant factors relating to
the premises in question. It is expressly understood that such arbitrator shall have no power or
authority to select any Fair Market Rent for the Expansion Space for the applicable term other than
the Fair Market Rent submitted by Landlord or Tenant, and the decision of such arbitrator shall be
final and binding upon the parties hereto. Prior to the determination of the arbitrator, Tenant
shall pay Rent respecting the Expansion Space in the amount equal to the lesser of the amount set
forth in Landlord’s Expansion Offer Notice and the amount submitted by Landlord to the arbitrator
pursuant to this Section 11.8, provided that during such period of time, if any prior to
the determination of the arbitrator and prior to such time as Landlord shall make such submission
to the arbitrator, Tenant shall pay Rent respecting the Expansion Space in an amount equal to the
amount set forth in Landlord’s Expansion Offer Notice. Following the arbitrator’s final
determination, the amount of any overpayment or underpayment shall be promptly adjusted between the
parties.



                  11.9 Exclusions. Notwithstanding anything to the contrary contained in this
Section 11, neither the Expansion Space, nor any portion thereof, shall be deemed
“available” for leasing for the purposes of this Section 11, and Tenant’s right to receive
an Offer shall not apply to, and shall exclude, any and all assignments of any lease(s) in respect
of any portion of the Expansion Space by the tenant(s) thereunder, any and all sublettings of such
portions by such tenants and subtenants, any and all assignments of such sublettings, any and all
extensions or renewals or modifications of such leases or subleases (whether or not pursuant to
express conditions in such documents), and any and all new leases with the existing tenant then
occupying space on the applicable floor.



                  11.10 Alternate Expansion Option. (a) If and only if (i) a Threshold New
Lease with the Existing Sixteenth Floor Tenant shall occur or be entered into and (ii) at the
relevant times, Tenant shall not have failed to satisfy in a timely manner any of the conditions to
be satisfied (or which would have been required to be satisfied) by Tenant for the exercise by
Tenant of the Expansion Option in respect of space on the sixteenth (16th) floor, then
(and only if both of the conditions set forth in the immediately preceding clauses (i) and (ii) are
satisfied) in lieu of (and not in addition to) the Expansion Option respecting the sixteenth
(16th) floor described in the preceding Section 11.1 through Section
11.9, and subject to the terms, provisions and conditions hereof, Tenant, one time
only, shall have an expansion option (the “Alternate Expansion Option”) in respect of
space (the “Third Floor Expansion Space”) on the third (3rd) floor of the
Building if and to the extent such space becomes available upon the current expiration date of the
lease (the “Existing Third Floor Lease”) existing as of the date of this Amendment between
Landlord and the tenant (or any successors to or assigns of such tenant) occupying the third
(3rd) floor of the Building on the date hereof (the “Existing Third Floor
Tenant”). The Alternate Expansion Option, the right of and conditions to the exercise of the
Alternate Expansion Option by Tenant, and the terms of the Alternate Expansion Option,



22









 






shall be subject to all of the same terms, conditions and provisions as are set forth in
Section 11.1 through Section 11.9 (inclusive) above as respects the Expansion
Option in respect of the Expansion Space on the sixteenth (16th floor), except that (A)
the Alternate Expansion Option shall apply (one time only) in respect of the Third Floor Expansion
Space (if any) that becomes available upon the current expiration date of the Existing Third Floor
Lease, and (B) references to the Existing Sixteenth Floor Tenant shall be deemed references to the
Existing Third Floor Tenant, (C) references to a “Threshold New Lease” shall be deemed references
to a renewal, extension or new lease with the Existing Third Floor Tenant covering fifty percent
(50%) or more of the rentable area of the third (3rd) floor of the Building and (D) it
is expressly understood that the Alternate Expansion Option shall be subject to any renewal or
extension of the Existing Third Floor Lease, or any new lease with the Existing Third Floor Tenant.



                         (b) The provisions of the immediately preceding Section 11.10(a) or any other
provision of this Section 11 to the contrary notwithstanding, in the event that any Third
Floor Expansion Space becomes available prior to the occurrence of both (i) the current expiration
date of the Existing Third Floor Lease and (ii) the date the Expansion Space on the sixteenth
(16th) floor becomes available, Landlord, at Landlord’s option, may submit to Tenant an
Offer in respect of such Third Floor Expansion Space that has then become available, in which case
such expansion option, the right of and conditions to the exercise of such expansion option by
Tenant, and the terms of such expansion option, shall be subject to all of the same terms,
conditions and provisions as are set forth in Section 11.1 through Section 11.9
(inclusive) above as respects the Expansion Option in respect of the Expansion Space on the
sixteenth (16th floor), except that (A) such expansion option shall apply (one time
only) in respect of such space on the third floor which has then become available, (B) references
to the Existing Sixteenth Floor Tenant shall be deemed references to the Existing Third Floor
Tenant and (C) references to a “Threshold New Lease” shall be deemed reference to a renewal,
extension or new lease with the Existing Third Floor Tenant covering fifty percent (50%) or more of
the rentable area of the third (3rd) floor of the Building. If Tenant shall exercise
such expansion option in respect of such space on the third (3rd) floor of the Building
that has then become available, Tenant shall have no further or other right or privilege to
exercise any expansion option in respect of the Expansion Space on the sixteenth (16th)
floor or the third
(3rd)
floor of the Building. If Tenant shall not exercise an expansion
option when offered by Landlord pursuant to this
Section 11.10(b), the expansion option respecting the sixteenth
(16th) floor set above shall remain in full force and effect, subject
to the provisions of Section 11.1 through Section 11.9
(inclusive).



SECTION 12 MISCELLANEOUS.




                  12.1 This Amendment shall not be binding upon or enforceable against Landlord unless and until
Landlord shall have executed and unconditionally delivered to Tenant a fully executed counterpart
of this Amendment.



                  12.2 As used in this Amendment: (i) whenever the words “include”, “includes”, or “including”
appear, they shall be deemed to be followed by the words “without limitation”, (ii) all Section
references shall, unless otherwise expressly stated, be deemed references to the Sections of this
Amendment, (iii) whenever a financial obligation is stated to be at a party’s expense, such
obligation shall be at such party’s sole cost and expense, and (iv) wherever a period of time is
stated in this Amendment as commencing or ending on specified dates, such period of time shall be
deemed inclusive of such stated commencement and ending dates, and to commence at 12:00 a.m.
Eastern Time on such stated commencement date and to end at 11:59 p.m. Eastern Time on such stated
ending date.



23









 





                  12.3 This Amendment (i) contains the entire agreement between the parties hereto relating to
the transactions contemplated hereby, and all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged herein, (ii) may not be changed,
modified, terminated or discharged, in whole or in part, except by an agreement in writing,
executed by the party against which enforcement of the change, modification, termination or
discharge is sought, (iii) shall be construed, governed and enforced in accordance with the laws of
the State of New York, (iv) shall be interpreted and enforced in accordance with its provisions and
without the aid of any custom or rule of law requiring or suggesting construction against the party
drafting or causing the drafting of the provisions in question, and (v) may be executed in one or
more counterparts, each of which so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument.



                  12.4 The covenants, agreements, terms, provisions and conditions contained in this Amendment
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.



THE REST OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK.




24









 





                    IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day
and year first above written.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	MAGNOLIA ASSOCIATES, LTD.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Metropolitan Orlando GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Metropolitan Operating Partnership, L.P.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:
	 	Metropolitan Partners, LLC	 






	 	 	 	 	 
	 	 	 
	 	By:  	                                                                  /s/ Philip M. Waterman III
 	 
	 	Name:  	Philip M. Waterman III 	 
	 	Title:  	Executive Vice President 	 
	 




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	PZENA INVESTMENT MANAGEMENT, LLC






	 	 	 	 	 
	 	 	 
	 	By:  	                          /s/ Amelia C. Jones
 	 
	 	Name:  	Amelia C. Jones 	 
	 	Title:  	Vice President	 
	 
	 	Federal Tax ID No.: 13-3860154 	 




25









 





EXHIBIT A-2




Floor Plans of the 20th/21st Floor Space




     The floor plan which follows is intended solely to identify the general location of the
20th/21st Floor Space, and should not be used for any other purpose. All
areas, dimensions and locations are approximate, and any physical conditions indicated may not
exist as shown.



[Exhibit Intentionally Omitted]




 









 





EXHIBIT B-2




Landlord’s 20th/21st Floor Work




SECTION A — PLANS, ETC. 



1. Not later than April 29, 2005 (the “Proposed Plans Date”), with time of the essence,
Tenant shall, in accordance with the provisions of this Exhibit B-2, and the Original
Lease, as amended by the Amendment, submit to Landlord, for Landlord’s approval, complete and
detailed architectural, structural, mechanical and engineering plans and specifications, including,
without limitation, sprinkler plans (the “Proposed Plans”), for the work, installations,
alterations and improvements intended to prepare the 20th/21st Floor Space
for Tenant’s initial occupancy, including, without limitation, the Restroom Renovations, if any
(such work, installations, alterations and improvements, collectively, “Phase II of Landlord’s
20th/21st Floor Work”), prepared by or for Tenant, and including, without
limitation, all architectural and engineering drawings and specifications. The Proposed Plans
shall be prepared, at Tenant’s sole cost and expense (subject, however, to the provisions
respecting the application of Landlord’s 20th/21st Floor Contribution
pursuant to Section 4.3 of the Amendment to which this Exhibit B-2 is attached), by
an architect selected by Tenant and reasonably satisfactory to Landlord.



2. Landlord shall respond to Tenant’s request for approval of the Proposed Plans within fifteen
(15) days of the submission of the Proposed Plans prepared in accordance with the terms hereof,
provided that such fifteen (15) day period may be extended for a reasonable time in the event
Landlord determines, in its reasonable discretion, to submit the Proposed Plans for review to its
independent consulting engineer or architect. In the event Landlord disapproves of all or a portion
of the Proposed Plans, Landlord shall notify Tenant of its reasons therefor in reasonable detail,
in which event Tenant shall revise the Proposed Plans and resubmit them to Landlord within five (5)
Business Days after notice from Landlord, time being of the essence. Landlord shall respond
to Tenant’s request for approval of the revised Plans within seven (7) days of submission. The
Proposed Plans, as approved by Landlord, are referred to as the “Final Plans”. Anything
herein to the contrary notwithstanding, each day after May 20, 2005 (such date, the “Final
Plans Date”), with time of the essence, that the complete and detailed architectural,
structural, mechanical and engineering plans and specifications, including, without limitation,
sprinkler plans, shall not have been prepared by Tenant and submitted to and approved by Landlord,
so as to constitute the Final Plans, shall be a day of Tenant Delay, except to the extent such
delay results directly from (i) the negligence or willful misconduct of Landlord or (ii) the
failure by Landlord to respond within the applicable time period set forth in this Section A
2 of this Exhibit B-2 for a response by Landlord.



3. Tenant acknowledges that the Proposed Plans and the Final Plans will be prepared by or for
Tenant, and not by or for Landlord, and Tenant agrees that, notwithstanding any acceptance,
approval, consent, inspection or review of the Proposed Plans and/or the Final Plans by Landlord,
and notwithstanding the utilization of the Final Plans by Landlord in connection with the
performance by Landlord of Phase II of Landlord’s 20th/21st Floor Work,
Landlord shall have no liability or obligation in respect of the Proposed Plans and/or the Final
Plans, and Tenant shall


 









 





be solely responsible for the Proposed Plans and Final Plans including, without limitation,
approval of same by all applicable Governmental Authority, and the conformity of same with all
applicable Requirements. To the extent available and not otherwise applied, Landlord’s
20th/21st Floor Contribution shall be applied to the application for such
approvals by applicable Governmental Authorities, and the payment of any regular fees payable to
such Governmental Authorities for the issuance thereof.



4. Provided the Original Lease, as amended hereby, shall be in full force and effect and there shall
be no Event of Default, Landlord shall use commercially reasonable efforts to procure and deliver
to Tenant, not later than ten (10) Business Days after the date that Landlord has approved the
Final Plans, bids for performance and construction of the work set forth in the Final Plans
(“Bids”), from at least two independent contractors selected by Landlord and from CP
Construction Corp. (which contractor has been designated by Tenant) (collectively, the
“Contractors”). The Bids shall be based on the Final Plans. The day upon which the Bids
are actually delivered to Tenant is referred to below as the “Bid Delivery Date.” Tenant
shall be entitled to have a representative present when the Bids are opened by Landlord, provided
that Tenant makes such representative available at the time designated by Landlord to Tenant (on
not less than three (3) Business Day’s prior notice) for such opening in a notice (which may be
oral) to Tenant. Landlord shall seek Bids that shall separately break out the costs of the Restroom
Renovations, if any, and shall request that such Bids be broken down by trade.



5. On or
before the expiration of the fourth (4th) Business Day following the Bid Delivery Date
(the “Selection Date”), time being of the essence, Tenant shall, by actually
delivering written notice to Landlord (the “Selection Notice”) select one (1) of the three
(3) (or more) Contractors (which shall constitute selection of such Contractor’s Bid). If Tenant
shall fail or omit to select one (1) of the three (3) Contractors prior to 5:00 pm on the Selection
Date, then each day thereafter until the date after the date on which Tenant shall have delivered
to Landlord the Selection Notice, shall constitute a day of Tenant Delay.



6. Tenant shall fully cooperate with Landlord and Landlord’s agent, the Contractors, the architect
(if any) and all other parties involved (or which may be involved) in Landlord’s
20th/21st Floor Work and shall make Tenant’s Agent (hereinafter defined)
available at all reasonable times to facilitate the procurement of the Bids on or before the Bid
Delivery Date. It is expressly understood and agreed that except for Landlord’s gross negligence
or willful misconduct, Landlord shall not be subject to any liability whatsoever, and there shall
be no abatement of Rent or any other monetary concession to Tenant whatsoever in the event Landlord
fails to complete and deliver to Tenant the Bids on or before the Bid Delivery Date.



7. Tenant shall provide Landlord (and its contractors and designees) with unobstructed access to
all portions of the 20th/21st Floor Space at all times to facilitate the
performance and completion of Landlord’s 20th/21st Floor Work.



8. Tenant’s selecting a Bid shall be deemed full authorization by Tenant for Landlord to proceed
with the commencement of Phase II of Landlord’s 20th/21st Floor Work in
accordance with Section B of this Exhibit B-2.




 









 




SECTION B — PERFORMANCE OF PHASE II OF LANDLORD’S 20TH/21ST FLOOR WORK
AND COSTS.



1. Landlord shall engage the selected Contractor and shall perform or cause to be performed Phase
II of Landlord’s 20th/21st Floor Work depicted on the Final Plans promptly
following Tenant’s selection of the Bid as set forth in Section A of this Exhibit
B-2. It is understood and agreed that Landlord does not represent, warrant or guaranty that
Landlord shall achieve Substantial Completion of the Landlord’s 20th/21st
Floor Work by any specific date, and that the failure by Landlord, for any reason whatsoever, to
achieve Substantial Completion of the Landlord’s 20th/21st Floor Work by any
specific date, (x) shall not give rise to any liability or obligation of Landlord to Tenant, (y)
shall not entitle Tenant to any compensation, abatement or diminution of Rent, and (z) shall not
relieve Tenant from any of its obligations under the Original Lease, as amended by this Amendment,
or otherwise give rise to any rights of Tenant as against Landlord or the Original Lease, as
amended by this Amendment.



2. Notwithstanding anything to the contrary contained in the Original Lease, as amended by this
Amendment, prior to Landlord’s commencement of Landlord’s 20th/21st Floor
Work, Tenant shall pay in full the cost of any and all work or materials (including, without
limitation, any amounts payable by Landlord to third parties in connection with Phase II of
Landlord’s 20th/21st Floor Work, including without limitation costs incurred
in connection with Landlord’s review of the Final Plans and/or any preliminary plans (“Tenant
Extra Work”) in excess of Landlord’s Contribution (“Tenant’s Contribution”), which
excess amount shall be based upon the selected Bid. However, it is expressly agreed that Tenant’s
obligation shall not be limited to Tenant’s Contribution, and that Tenant shall be obligated to pay
any and all costs and expenses of Change Orders (hereinafter defined) and any and all cost overruns
or other costs incurred in the performance of Phase II of Landlord’s
20th/21st Floor Work. Anything herein to the contrary, it is understood and
agreed that (subject to the other provisions of this Amendment) (i) Tenant shall have the right to
apply a portion of Landlord’s 20th/21st Floor Contribution to the Restroom
Renovations, but (ii) Tenant shall not have the right to apply any portion of the Landlord’s
Restroom Contribution to any portion of Landlord’s 20th/21st Floor Work other
than the Restroom Renovations, or for any purpose other than the Restroom Renovations.



3. Notwithstanding anything to the contrary set forth in the Original Lease, as amended by this
Amendment, including, without limitation, this Exhibit B-2, in the event of any change to
the Final Plans required by any Governmental Authority or in the event the Final Plans shall
require a change as a result of a field condition revealed during the performance of Phase II of
Landlord’s 20th/21st Floor Work (a “Field Condition”); any such
change shall be performed by Landlord, at Tenant’s sole cost, and shall not be deemed a breach or
violation of any provision of the Original Lease, as amended by this Amendment, including without
limitation this Exhibit B-2, and shall be deemed automatically accepted and approved by
Tenant. Landlord shall give written notice to Tenant of any such change, promptly after Landlord
receives written notice thereof.



4. In addition to and not in limitation of any other provision of the Original Lease, as amended by
this Amendment, Tenant shall pay to Landlord a sum equal to (i) any additional cost to Landlord in
completing Landlord’s 20th/21st Floor Work resulting from any Tenant Delay or
any Unavoidable Delay, (ii) any cost incurred by Landlord on account of any changes in or to the


 









 





Final Plans or on account of any Change Orders, and (iii) all other costs of performing and
completing Phase II of Landlord’s 20th/21st Floor Work in excess of
Landlord’s 20th/21st Floor Contribution. Any such sums shall be in addition
to any sums payable hereunder and shall be paid to Landlord within five (5) Business Days after
Landlord submits an invoice to Tenant with respect thereto. Such costs shall be collectible in the
same manner as Additional Rent whether or not the term of the Original Lease, as amended by this
Amendment, respecting the 20th/21st Floor Space shall have commenced or the
20th/21st Floor Rent Commencement Date has occurred, and, if Tenant defaults
in the payment thereof, Landlord shall (in addition to all other remedies) have the same rights as
it would have upon a default by Tenant in the payment of Rent under the Original Lease, as amended
by this Amendment, and Landlord shall have no obligation to continue the performance of the
Landlord’s 20th/21st Floor Work until Tenant shall have cured such default.



5. It is expressly understood and agreed that except for Landlord’s gross negligence or willful
misconduct, Landlord shall not be subject to any liability whatsoever, and there shall be no
abatement of Rent or any other monetary concession to Tenant whatsoever, in connection with
Landlord’s 20th/21st Floor Work, or the performance of any work (including
Landlord’s 20th/21st Floor Work) by the Contractor whose Bid was selected, or
any cost overruns in the performance or completion of Landlord’s 20th/21st
Floor Work.



SECTION C — GENERAL CONDITIONS OF LANDLORD’S 20TH/21ST FLOOR WORK.



1. Notwithstanding anything to the contrary contained in the Original Lease, as amended by this
Amendment (including without limitation this Exhibit B-2), Landlord shall not be required
to perform, and Tenant shall not request any work unless such work (i) is reasonable and compatible
with the status of the Building as a first-class office building, (ii) is non-structural and does
not (x) adversely affect the Building Systems, or the operation thereof, within the
20th/21st Floor Space or (y) affect the Building Systems, or the operation
thereof, outside of the 20th/21st Floor Space, (iii) affects only the
20th/21st Floor Space and are not visible from outside of the
20th/21st Floor Space or the Building, (iv) is consistent with the design,
construction and equipment of the Building, (v) does not adversely affect any service furnished by
Landlord in connection with the operation of the Building, (vi) complies with all applicable
Requirements, (vii) does not call for use of any asbestos-containing or other hazardous materials,
(viii) will not adversely affect the appearance or value of the Building, and (ix) is compatible
with the Certificate of Occupancy for the Building (the requirements set forth in the preceding
clauses (i) through (ix), the “Landlord’s 20th/21st Floor Work
Requirements”). Landlord shall give written notice to Tenant of any and all changes in the
Final Plans required by any Governmental Authority promptly after Landlord receives written notice
thereof.



2. Notwithstanding anything to the contrary contained in the Original Lease, as amended by this
Amendment (including without limitation this Exhibit B-2) neither the recommendation,
designation, selection, engagement or approval by Landlord of any contractor, architects or
engineers, nor the review, consent to or approval by Landlord of the Final Plans (or any other
plans), or the selected Bid (or any budget for Landlord’s 20th/21st Floor
Work), shall constitute a representation or warranty by Landlord (i) that the Final Plans either
(a) are complete or suitable for their intended purpose, or (b) comply with applicable
Requirements, or (ii) respecting or concerning the selected Contractor and/or its abilities or
performance (and Tenant expressly


 









 





agrees that Landlord assumes no responsibility or liability whatsoever to Tenant or to any other
person or entity for such completeness, suitability, or compliance of the Final Plans, or the
sufficiency or inclusiveness of the selected Bid (or any budget), and/or the ability or performance
of the selected Contractor).



3. Tenant shall not make any changes in the Final Plans without Landlord’s prior written approval,
which shall not be unreasonably withheld or delayed, provided that Landlord may, in the exercise of
its sole and absolute discretion, disapprove any proposed changes which are inconsistent with or
violative of the Landlord’s 20th/21st Floor Work Requirements.



SECTION D — TENANT DELAYS. 



1. If Landlord shall be delayed in Substantially Completing the Landlord’s
20th/21st Floor Work as a result of any act, neglect, failure or omission of
Tenant, its agents, employees, contractors or sub-contractors, including, without limitation, any
of the following, such delay shall, be deemed a “Tenant Delay”:




     (a) Tenant’s failure or omission, on or before the Selection Date, to actually deliver to
Landlord the complete Selection Notice, time being of the essence.



     (b) Tenant’s failure to cooperate with Landlord, Landlord’s agent, the Contractor, architect
and all other parties involved in Landlord’s 20th/21st Floor Work, or
Tenant’s failure to make Tenant’s Agent available at all reasonable times to facilitate the
completion of the Final Plans (provided that Tenant shall be charged with delay under this
subsection 1.(b) starting on the date Landlord gives notice to Tenant);



     (c) Tenant’s request for any change, addition or modification in connection with the Final
Plans;



     (d) Tenant’s request for any change, addition or modification in connection with any of the
Bids, or in connection with the selected Bid, or Tenant’s request for the procurement of any other
or additional Bids;



     (e) Tenant’s failure to pay to Landlord the entire amount of Tenant’s Contribution, and any
other monies required to be paid pursuant to Section B of this Exhibit B-2;



     (f) Change Orders (including, but not limited to, the implementation, processing, review,
analysis and approval thereof);



     (g) Tenant’s request for materials, finishes or installations that are not readily available
at the time Landlord is ready to install same, unless within two (2) Business Days of being
requested by Landlord to agree to substitute a material, finish or installation that is comparable
in quality and not substantially greater in cost, Tenant agrees to such substitution;



     (h) The performance of work by a person, firm or corporation employed by Tenant and delays in
the completion of the said work by said person, firm or corporation;



 









 





     (i) Any delay which results from any act or omission of any Tenant Party, including delays due
to changes in or additions to, or interference with, any work to be done by Landlord, or delays by
Tenant in submission of information, or selecting construction materials to be installed by
Landlord as part of the Landlord’s 20th/21st Floor Work, if any, (e.g., color
of paint and carpet), or approving working drawings or estimates or giving authorizations or
approvals (provided that Tenant shall be charged with delay under this subsection 1.(i)
starting on the date Landlord gives notice to Tenant of such act or omission);



     (j) If Tenant shall not, by the Proposed Plans Date, deliver the Proposed Plans to Landlord,
in accordance with the provisions hereof;



     (k) If the Final Plans have not been delivered by Tenant to Landlord and approved by Landlord
by the Final Plans Date, for any reason other than delay resulting directly from (i) the gross
negligence or willful misconduct of Landlord or (ii) a failure by Landlord to respond within the
applicable time period set forth in Section A 2 of this Exhibit B-2 for a response
by Landlord;



     (l) Any delay which results from any claim by any Governmental Authority or other person that
the Final Plans are deficient or do not conform to and satisfy all applicable Requirements, or are
deficient or insufficient for the prompt issuance of any and all necessary permits and approvals in
connection with the performance of Landlord’s 20th/21st Floor Work; or any
delay in Landlord obtaining any of the Bids as a result of any claimed deficiency in the Final
Plans; and/or



     (m) Any other failure by Tenant to comply with its obligations under the Original Lease, as
amended by the Amendment.


2. Notwithstanding any other provision of this Exhibit B-2 and/or the Original Lease or the
Amendment to which this Exhibit B-2 is attached, if the Substantial Completion Date shall
be delayed by reason of a Tenant Delay or Unavoidable Delay, the 20th/21st
Floor Space shall be deemed Substantially Completed as of the date that the
20th/21st Floor Space would have been substantially completed but for any
such Tenant Delay or Unavoidable Delay and there shall not be any postponement of the
20th/21st Floor Commencement Date or the 20th/21st
Floor Rent Commencement Date or any other rent abatement or monetary concession whatsoever on
account of such Tenant Delay or Unavoidable Delay.



SECTION E — ENTRY BY TENANT AND ITS AGENTS; DESIGNATION OF TENANT’S AGENT.



1. Except as hereinafter provided, neither Tenant nor its agents, employers, invitees or
independent contractors, nor any Tenant Party shall enter 20th/21st Floor
Space the during the performance of the Landlord’s 20th/21st Floor Work.
Tenant hereby designates Amelia C. Jones as its authorized agent (“Tenant’s Agent”) for the
purpose of submitting to Landlord and authorizing any Change Orders to the Final Plans and for the
purpose of consulting with Landlord as to any and all aspects of the Landlord’s
20th/21st Floor Work. Tenant’s Agent shall have the right to inspect the
20th/21st Floor from time to time during the course of the Landlord’s




 









 




20th/21st Floor Work provided Tenant’s Agent shall make a prior appointment
with Landlord and/or its contractor at a mutually convenient time.



2. (a) In the event Tenant or any Tenant Party shall enter upon the 20th/21st
Floor Space prior to the 20th/21st Floor Occupancy Date (as may be permitted
by Landlord in Landlord’s sole discretion, subject however, to the provisions of the following
subsection (b) of this Section E-2), Tenant shall indemnify and save Landlord harmless from
and against any and all Losses arising from or claimed to arise as a result of (i) any act, neglect
or failure to act of Tenant, any Tenant Party or anyone entering the
20th/21st Floor Space or the Building with Tenant’s permission, or (ii) any
other reason whatsoever arising out of Tenant’s or such Tenant Party’s entry upon the
20th/21st Floor Space or Building.




     (b) Landlord shall in good faith use reasonable efforts to provide to Tenant and its
contractors access to the 20th/21st Floor Space during the period in which
Phase II of Landlord’s 20th/21st Floor Work is being performed, solely for
the installation by Tenant of telephone and data cabling (the “Early Access Period”) (such
installations to be performed in all respects in accordance with the requirements of Article
5 of the Original Lease and in accordance with plans approved by Landlord), provided that
Tenant shall make a prior appointment with Landlord at a mutually convenient time or times during
Business Hours to perform such installations and provided, further, that (i) such entry into the
20th/21st Floor Space and any other part of the Building shall be at the sole
risk of Tenant and (ii) such entry shall not interrupt or otherwise interfere with the performance
of Phase II of Landlord’s 20th/21st Floor Work. At least three (3) business days prior to any such
early access, Tenant shall deliver to Landlord written evidence specifying that Tenant is then
carrying all insurance required by the Original Lease, as amended by the Amendment, to be carried
by Tenant in respect of the 20th/21st Floor Space and written evidence of the
insurance carried by any such contractor (which insurance must be approved in writing by Landlord
prior to any such contractor entering the 20th/21st Floor Space). If
Landlord determines that Tenant or any contractor of Tenant is interfering with Phase II of
Landlord’s 20th/21st Floor Work, then Landlord shall have the right to
require the offending party to immediately leave the 20th/21st Floor Space,
and, in any such event, Tenant shall have no right to assert that the
20th/21st Floor Commencement Date, or the 20th/21st
Floor Possession Date, or the 20th/21st Floor Rent Commencement Date, or
Tenant’s other obligations under the Original Lease as amended by the Amendment, are affected
thereby. All of the obligations and duties of Tenant in respect of the
20th/21st Floor Space under the Original Lease as amended by the Amendment
(including, without limitation, all insurance and indemnity provisions) shall apply during the
Early Access Period, except that during such period Tenant shall not be obligated to pay Fixed Rent
in respect of the 20th/21st Floor Space, 20th/21st
Floor Additional Operating Payment, or 20th/21st Floor Additional Tax
Payment. Landlord shall have no responsibility with respect to any items placed in the
20th/21st Floor Space prior to the 20th/21st Floor
Occupancy Date. Notwithstanding anything to the contrary set forth herein, Landlord and Tenant
agree that, prior to the 20th/21st Floor Occupancy Date, Tenant shall have no
right to (1) take occupancy of the 20th/21st Floor Space, or (2) except as
specifically set forth in this subsection (b) of this Section E-2, perform any
Alterations or other work on, or move any personal property into the
20th/21st Floor Space, or (3) except as otherwise specifically set forth in
this Section E, otherwise access or enter upon the 20th/21st Floor
Space.



 









 




SECTION F — CHANGE ORDERS. 



1. (a) Tenant shall have the right to make reasonable changes from time to time in the Final Plans
by submitting to Landlord revised plans and specifications (collectively, “Change Orders”).
All Change Orders shall be subject to Landlord’s prior written approval, which approval shall not
be unreasonably withheld or delayed, provided that Landlord may, in the exercise of its sole and
absolute discretion, disapprove any proposed changes which are inconsistent with or violative of
the Landlord’s 20th/21st Floor Work Requirements. Without limiting the
generality of the foregoing, no Change Order will be approved unless (a) all changes to and
modifications of Tenant’s Final Plans are circled or highlighted as per standard industry
practices, and (b) such Change Order conforms with the requirements of the Original Lease, as
amended by this Amendment (including without limitation this Exhibit B-2, and including,
without limitation, Landlord’s 20th/21st Floor Work Requirements). Landlord
shall notify Tenant of any required Tenant’s Contribution and any Tenant Delay that the performance
of any such Change Order may entail. If Tenant does not respond affirmatively within three (3)
Business Days of the giving of such notice, Landlord shall not make the proposed Change Order. Upon
receipt and approval of any Change Order, Landlord shall submit the Change Order to the contractor
or subcontractors performing the trade or trades involved in the Change Orders and, if applicable
and so requested by Tenant, obtain and deliver to Tenant a work order in connection therewith. In
no event shall Landlord be required to perform any Change Order unless and until Tenant has paid
Landlord the entire amount of any Tenant Contribution required in connection therewith.




     (b) If Tenant shall submit to Landlord (i) a Change Order which complies in all respects with
the requirements of the foregoing Paragraph 1(a) of this Section F of this
Exhibit B-2 (or revisions or supplements to a previously submitted and rejected Change
Order), for approval by Landlord, together with (ii) written notice from Tenant expressly claiming
same as a Change Order and requesting Landlord’s approval thereof, and which notice must be headed
by the legend, in bold, capital letters stating that “LANDLORD MUST RESPOND WITHIN 3 BUSINESS DAYS
AFTER RECEIPT OF THIS NOTICE,” then Landlord, within three (3) Business Days after actual receipt
by Landlord of such Change Order (or such revisions or supplement thereto) and notice, shall give
notice to Tenant either approving or disapproving same. If Landlord shall fail or omit to give such
notice to Tenant approving or disapproving same by the expiration of such three (3) Business Day
period, then, as the sole remedy of Tenant, each day after the expiration of such three (3)
Business Day period that Landlord shall fail or omit to give such notice, until the date that
Landlord shall give such notice of approval or disapproval, shall not constitute a day of
Tenant Delay.


2. Such costs shall be collectible in the same manner as Additional Rent whether or not the term of
the Original Lease, as amended by this Amendment as it applies to the
20th/21st Floor Space shall have commenced, and, if Tenant defaults in the
payment thereof, Landlord shall (in addition to all other remedies) have the same rights as it
would have upon a default by Tenant in the payment of Rent under the Original Lease, as amended by
this Amendment, and Landlord shall have no obligation to continue the performance of the Landlord’s
20th/21st Floor Work until Tenant shall have cured such default.



SECTION G — SUBSTANTIAL COMPLETION. 




 









 




1. The date that Landlord Substantially Completes Phase II of Landlord’s
20th/21st Floor Work shall be deemed the “Substantial Completion
Date”. For the purposes of the Original Lease, as amended by this Amendment (including without
limitation this Exhibit B-2), the term “Substantial Completion” shall mean that,
with the exception of minor details of construction, mechanical adjustments or decoration, neither
the completion of which nor the failure of completion of which shall materially interfere with
Tenant’s use of the 20th/21st Floor Space, or items of work which, in
accordance with good construction practice, should be completed after the completion of other work
to be performed in the 20th/21st Floor Space (collectively, “Punch-List
Items”), the Landlord’s 20th/21st Floor Work shall have been completed
substantially in accordance with the Final Plans and all mechanical systems serving or affecting
the 20th/21st Floor Space shall then be in working order. Landlord and Tenant
shall thereupon set a mutually convenient time for Tenant’s Agent, Landlord and Landlord’s
contractor to inspect the 20th/21st Floor Space and the Landlord’s
20th/21st Floor Work, at which time Tenant’s Agent shall prepare and submit
to Landlord the Punch List of items to be completed. Upon completion of the inspection, and unless
at such time Tenant in good faith shall reasonably contend that Substantial Completion (subject to
completion of the Punch-List Items) has not occurred, Tenant’s Agent shall acknowledge in writing
that Substantial Completion of the Landlord’s 20th/21st Floor Work has
occurred, subject to any Punch-List Items to be completed (it being agreed however, that (i) if
Tenant shall contend that such Substantial Completion has not in fact occurred, then Tenant, within
three (3) Business Days after the date of such inspection (with time of the essence) shall provide
notice to Landlord, in reasonable detail, specifying why Tenant contends that such Substantial
Completion (subject to completion of Punch-List Items) has not occurred, failing which Tenant shall
be deemed to have acknowledged that such Substantial Completion has occurred and (ii) failure or
refusal by Tenant’s Agent so to acknowledge that Substantial Completion of the Landlord’s
20th/21st Floor Work has occurred, subject to any Punch-List Items to be
completed, shall not negate that Substantial Completion of Landlord’s
20th/21st Floor Work has in fact occurred, subject to any Punch-List Items to
be completed). Landlord shall endeavor to complete the Punch List Items within a reasonable period
thereafter. Anything herein to the contrary notwithstanding, it is expressly understood and agreed
that if the Substantial Completion Date would have occurred by a particular date (the
“Identified Date”) but for delays resulting from Tenant Delay and/or Unavoidable Delay,
then notwithstanding such delays in achieving Substantial Completion, the Substantial Completion
Date shall have been deemed to have occurred on the Identified Date.



SECTION H — CERTAIN WORK INCLUDED IN LANDLORD’S WORK



1. Notwithstanding anything to the contrary herein set forth, (i) the items of work described on
Exhibit B-2 (A) shall be included in Landlord’s 20th/21st Floor Work
(such items of work described on Exhibit B-2 (A), the “Phase I Landlord’s
20th/21st Floor Work”), (ii) the Phase I Landlord’s
20th/21st Floor Work (and the performance and methods of performance thereof)
shall not require Tenant’s authorization and shall not be performed in accordance with the Final
Plans, but shall be performed by Landlord in accordance with plans, specifications, procedures or
methods determined by Landlord, in its sole discretion (provided that all such work shall comply
with all Requirements), and (iii) the Phase I Landlord’s 20th/21st Floor Work
shall be performed by Landlord at the cost and expense of Landlord, and Landlord’s
20th/21st Floor Contribution shall not be applied thereto, nor shall Tenant
be required to pay or make any Tenant’s Contribution in connection with any such Phase I Landlord’s
20th/21st Floor Work.




 









 





EXHIBIT B-2 (A)




Phase I Landlord’s 20th/21st Floor Work




     The following items of work shall be included in the Phase I Landlord’s
20th/21st  Floor Work:



     a. On each of the 20th and 21st floors, demolition of the premises leased to Tenant down to
“base-building” condition.



     b. Delivery of an ACP-5 for the premises leased to Tenant on each of the 20th and 21st floors.



     c. On each of the 20th and 21st floors, providing access to the electrical panel in a location
acceptable to Landlord.



     d. On each of the 20th and 21st floors, providing a sprinkler rig (only) in a location
acceptable to Landlord.



     e. On each of the 20th and 21st floors, providing two (2) base-building ceiling hung, ten (10)
ton, water source, package heat pump units, in their currently existing locations.



     f. On each of the 20th and 21st floors, providing up to seven (7) Class E connection points,
in locations acceptable to Landlord.



     g. Removing the interior staircases connecting floor 19 of the Building with floor 20 of the
Building, and repairing slab penetrations between floor 19 of the Building and floor 20 of the
Building.




 









 







SECOND AMENDMENT OF LEASE




                  SECOND AMENDMENT OF LEASE (this “Amendment”), dated as of October 31, 2006,
between MAGNOLIA ASSOCIATES, LTD., a Florida limited partnership, having an office c/o Reckson
Associates Realty Corp., 1350 Avenue of the Americas, New York, New York 10019 (“Landlord”)
and PZENA INVESTMENT MANAGEMENT, LLC, a Delaware limited partnership having an office at 120 West
45th Street, New York, New York 10036 (“Tenant”).



W I T N E S S E T H:




                  WHEREAS, Landlord and Tenant entered into that certain Lease dated February 4, 2003 (the
“Original Lease”), covering space on the 34th floor in the office building
located at 120 West 45th Street, New York, New York (the “Building”), as more
fully described in the Original Lease (the “Original Premises”), at the rent and on the
other terms and conditions set forth in the Original Lease.



                  WHEREAS, Landlord and Tenant entered into that certain Amendment of Lease (the “First
Amendment”) dated March 31, 2005 in which Tenant (i) surrendered to Landlord and vacated the
Original Premises and (ii) leased additional premises, consisting of the entire rentable area of
the twentieth (20th) and twenty-first (21st) floors of the Building
comprising in total 24,958 rentable square feet (the “Current Premises”); and



                  WHEREAS, Tenant desires to lease additional premises, consisting of the entire rentable area
of the fifteenth (15th) floor of the Building comprising 10,010 rentable square feet, as shown on
the floor plan attached hereto as Exhibit A-3 and made a part hereof (the “15th Floor
Space”), and Landlord is agreeable thereto on the terms and conditions hereinafter set forth.



                  NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Amendment, Landlord and Tenant agree as follows:



SECTION 13 DEFINITIONS, EFFECTIVE DATE.




                  13.1 Capitalized terms used herein and not otherwise defined shall have the meanings ascribed
to them in the Original Lease and First Amendment (collectively, the “Lease”). The
provisions of this Amendment shall supersede any inconsistent provisions contained in the Lease,
regardless of whether such inconsistent provisions are contained in the body of the Lease or in any
rider, exhibit or schedule thereto, or in any amendment, modification, letter, notice or other
written instrument executed in connection therewith or sent pursuant thereto. Effective as of the
Effective Date (as hereinafter defined) (i) any and all exhibits to this Amendment shall be deemed
incorporated into, and made a part of, the Lease, (ii) all references in the Lease to the “Lease,”
or similar references, shall mean the Lease as amended and modified by this Amendment, and (iii)
all references in the Lease, as amended by this Amendment, to the “Term” (or words of similar
import) shall be deemed to refer to the 15th Floor Term (hereafter defined); during the period from
and after the 15th Floor Commencement Date (hereafter defined) through and including the Expiration
Date (hereafter defined), all



 









 






references in the Lease, as amended by this Amendment, to the “Premises” (or words of similar
import) shall be deemed to include the 15th Floor Space and the Current Premises.



                  13.2 Each of Landlord and Tenant hereby confirms and agrees that, except for the Original
Lease and First Amendment, there are not, as of the date hereof and prior to the execution of this
Amendment, any amendments, modifications, written instruments or other oral or written agreements
which amend or modify the provisions of the Original Lease and First Amendment in any manner.



                  13.3 The Lease shall be deemed amended on the terms and conditions hereinafter set forth
effective as of the date hereof (the “Effective Date”).



SECTION 14 FIFTEENTH FLOOR SPACE.




                  14.1 Demise; Premises. Landlord hereby leases and demises to Tenant, and Tenant
hereby hires and takes from Landlord, the 15th Floor Space upon all of the terms and conditions of
the Lease, as modified and amended by this Amendment, for a term of approximately eight (8) years
and eight (8) months (the “15th Floor Term”) (i) commencing on the later of (x) March 1,
2007 or (y) the date Landlord obtains exclusive possession of the 15th Floor Space and tenders
delivery of the same in the condition required under Section 2.3 herein to Tenant (the
“15th Floor Commencement Date”) and (ii) ending on the 20th/21st
Floor Space Expiration Date (which the parties stipulate is October 31, 2015 and may also be
referred to herein as the “Expiration Date”), or sooner termination of the Lease, both
dates inclusive. Effective as of the 15th Floor Commencement Date, the 15th Floor Space shall be
added to the Premises and shall constitute part thereof for all purposes of the Lease (subject,
however, to the provisions of this Amendment), and (together with the Current Premises) shall be
included in the Premises, and Exhibit A-3 hereof shall be added to Exhibit A-2
annexed to the First Amendment, and Exhibit A of the Original Lease shall be amended by the
addition of Exhibit A-3. Landlord and Tenant agree that, for all purposes of the Original Lease
and this Amendment, the square footage of the 15th Floor Space is conclusively deemed to be 10,010
rentable square feet.



                  14.2 Delivery. (a) Landlord shall use commercially reasonable efforts to cause the
tenant(s) occupying the 15th Floor Space (or any part thereof) on the date hereof to
vacate such space prior to March 1, 2007. However, anything in this Lease to the contrary
notwithstanding, Landlord shall not be liable for failure to deliver possession of the 15th Floor
Space to Tenant on any particular date for any reason whatsoever, including the failure of the
current occupant(s) of the 15th Floor Space, if any, to vacate the 15th Floor Space in a timely
manner, and such failure by Landlord shall not be construed to extend the Term of the Lease for the
15th Floor Space or the Current Premises and shall not impair the validity of the Lease
or this Amendment, nor shall Tenant’s obligations under the Lease and/or this Amendment be affected
thereby provided, however, that if Landlord’s inability to deliver the 15th Floor Space
as required hereunder continues beyond October 31, 2007 (the “15th Floor Required
Delivery Date”), then Landlord shall have no liability to Tenant by reason thereof, except
that Tenant shall have, as Tenant’s sole remedy, a one-time right to terminate this Amendment
provided that (1) Tenant shall exercise such right by giving written notice (the “Tenant
15th Floor Termination Notice”) to Landlord within fifteen (15) business days after
the 15th Floor Required Delivery



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Date (with time being of the essence) and (2) the Tenant 15th Floor Termination
Requirements (as hereinafter defined) have been and remain fulfilled and satisfied. If Tenant
shall duly give the Tenant 15th Floor Termination Notice and the other Tenant
15th Floor Termination Requirements have been and remain satisfied, then this Amendment
shall terminate and expire on the date that Landlord receives Tenant’s 15th Floor
Termination Notice (the “15th Floor Termination Date”) with the same force and
effect as if such date had been the date originally set forth in the Lease and this Amendment as
the Expiration Date. For purposes of this Section 2.2(c), the “Tenant 15th
Floor Termination Requirements” shall mean the following:




	 	(i)	 	Tenant has duly given the Tenant
15th Floor Termination Notice to Landlord within fifteen
(15) business days after the 15th Floor Required Delivery
Date (with the time being of the essence);
	 
	 	(ii)	 	Tenant shall not have taken occupancy of, or
commenced to use or occupy (for any purpose) all or any part of the
15th Floor Space; and
	 
	 	(iii)	 	the Lease, as amended by this Amendment, is in
full force and effect and no Event of Default has occurred as of the
15th Floor Termination Date.




If Tenant shall terminate this Amendment, this Amendment shall be of no force and effect, but the
Original Lease, as amended by the First Amendment shall continue unaffected and in full force and
effect. Subject to the terms and provisions hereof, Landlord shall deliver possession of the 15th
Floor Space to Tenant and Tenant shall accept possession of the 15th Floor Space immediately upon
the date on which Landlord gives notice (the “Possession Date Notice”) to Tenant that the
15th Floor Space is available for Tenant’s occupancy and Tenant shall be deemed to have
accepted such possession on such date provided, however, that such date shall not occur prior to
March 1, 2007. There shall be no postponement of the 15th Floor Commencement Date, or the 15th
Floor Rent Commencement Date for any delay in the delivery of possession and/or occupancy of the
15th Floor Space to Tenant, or otherwise in the achievement of such dates, which results from any
Tenant Delay. The provisions of this Section 2.2 are intended to constitute “an express
provision to the contrary” within the meaning of Section 223-a of the New York Real Property Law or
any successor Requirements. Notwithstanding anything to the contrary in the Lease, as amended by
this Amendment, (i) the Possession Date Notice may be delivered orally and (ii) the Possession Date
Notice shall be deemed given on the earlier to occur of (a) the date of actual giving of such
notice and (b) if such notice is in written form and given pursuant to Article 27 of the
Lease, the date such notice would be deemed given pursuant to Article 27 of the Lease.




                  (b) Notwithstanding anything to the contrary set forth in the Lease, as modified by this
Amendment, Landlord and Tenant agree that (i) prior to the 15th Floor Commencement Date,
Tenant shall have no right to enter, possess, use or occupy the 15th Floor Space for any purpose
whatsoever, and (ii) as respects the 15th Floor Space only, prior to the 15th Floor
Commencement Date, (x) Tenant shall have no obligation to comply with the provisions of Section
7.2 or Section 9.1(a) of the Original Lease, (y) Tenant shall have no obligation to
obtain the insurance policies required under Article 13 of the Original Lease as amended by
the First



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Amendment or this Amendment, and (z) Tenant shall have no obligations or liabilities pursuant
to Article 32 of the Original Lease as amended by the First Amendment or this Amendment,
except for any Losses arising from or in connection with (A) the negligence or willful misconduct
of Tenant or any Tenant Party or (B) any work or thing whatsoever done by Tenant or any Tenant
Party, if Tenant or such Tenant Party enters upon any portion of the 15th Floor Space for the
purpose of performing any work or otherwise prior to the 15th Floor Commencement Date
(it being understood that Landlord shall have sole discretion as to whether any such entry shall be
permitted prior to the 15th Floor Commencement Date).



                  14.3 Condition. Tenant has inspected the 15th Floor Space and agrees (i) to accept
possession of the 15th Floor Space in the “as is” condition of such space existing on the 15th
Floor Commencement Date, subject to the provisions of Section 14 of the Original Lease,
(ii) that neither Landlord nor Landlord’s agents have made any representations or warranties with
respect to the 15th Floor Space, and (iii) that Landlord shall have no obligation to perform any
work, supply any materials, incur any expense or cost or make any installations, alterations or
improvements to the 15th Floor Space to prepare the 15th Floor Space for Tenant’s occupancy thereof
subject to the provisions of Section 14 of the Original Lease. Landlord shall deliver
possession of the 15th Floor Space vacant and broom clean. Tenant’s occupancy of any portion of
the 15th Floor Space shall be conclusive evidence, as against Tenant, that Tenant has accepted, in
its then current condition, possession of the entire 15th Floor Space, and the Building and the
15th Floor Space are in a good and satisfactory condition as required by this Amendment.



SECTION 15 RENT; OPERATING EXPENSES; INSURANCE FOR THE 15th FLOOR SPACE.




                  15.1 Fixed Rent for the 15th Floor Space. In addition to the Fixed Rent set forth in
the Lease, for the period commencing on the date which is five (5) months after the 15th Floor
Commencement Date (the “15th Floor Rent Commencement Date”), and continuing thereafter
until the Expiration Date, Tenant shall pay Fixed Rent with respect to the 15th Floor Space as
follows: (a) Seven Hundred Fifty Thousand Seven Hundred Fifty Dollars ($750,750) per annum
($62,562.50) per month) commencing on the 15th Floor Rent Commencement Date through and including
June 30, 2011; and (b) Eight Hundred Thousand Eight Hundred Dollars ($800,800) per annum
($66,733.33) per month) from July 1, 2011 through and including the Expiration Date, which Fixed
Rent shall be paid in advance, in equal monthly installments on the first day of each calendar
month and otherwise in accordance with the provisions of the Lease governing payment of Fixed Rent.
If the 15th Floor Rent Commencement Date is not the first day of a calendar month, the Fixed Rent
in respect of the 15th Floor Space for the month in which the 15th Floor Rent Commencement Date
occurs shall be prorated for the number of days of the term of the Lease in respect of the 15th
Floor Space that occur within said month. The provisions of this Section 3.1 shall apply
only to the 15th Floor Space and nothing contained in this Section 3.1 shall modify or
otherwise affect Tenant’s obligations to pay Fixed Rent for any other portions of the Premises.



                  15.2 Intentionally Omitted.



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                  15.3 Operating Expenses for the 15th Floor Space. In addition to the payment of
Tenant’s Operating Payment in respect of the Current Premises pursuant to the Lease, from and after
the 15th Floor Rent Commencement Date, Tenant shall pay to Landlord, as Additional Rent, an
additional payment on account of Operating Expenses (the “15th Floor Additional Operating
Payment”) in respect of the 15th Floor Space. Landlord and Tenant agree that the provisions of
Article 8 of the Original Lease shall otherwise be applicable to the determination of
Operating Expenses in respect of the 15th Floor Space and the obligation of Tenant to pay the 15th
Floor Additional Operating Payment, except that (in respect of the 15th Floor Additional Operating
Payment only) (i) the Base Operating Year shall be the Computation Year commencing on January 1,
2007 and ending on December 31, 2007 provided, however, if Landlord delivers the 15th
Floor Space on or after September 1, 2007, the Base Operating Year shall be the Computation Year
commencing January 1, 2008 and ending on December 31, 2008, and (ii) Tenant’s proportionate share
shall be an additional 2.346% (which Landlord and Tenant stipulate and agree is based upon the 15th
Floor Space containing 10,010 rentable square feet and the Building containing 426,755 rentable
square feet for purposes of computing Operating Expenses). The provisions of this Section
3.3 shall apply only to the 15th Floor Space and the 15th Floor Additional Operating Payment,
and nothing contained in this Section 3.3 shall affect the Tenant’s Operating Payment (or
Tenant’s obligations in respect thereof) in respect of any other portion of the Premises.



                  15.4 Taxes for the 15th Floor Space. In addition to the payment of Tenant’s Tax
Payment in respect of the Current Premises pursuant to the Lease, from and after the 15th Floor
Rent Commencement Date, Tenant shall pay to Landlord, as Additional Rent, an additional payment on
account of Taxes (the “15th Floor Additional Tax Payment”) in respect of the 15th Floor
Space. Landlord and Tenant agree that the provisions of Article 8 of the Original Lease
shall otherwise be applicable to the determination of Taxes in respect of the 15th Floor Space and
the obligation of Tenant to pay the 15th Floor Additional Tax Payment, except that (in respect of
the 15th Floor Additional Tax Payment only) (i) Base Taxes shall be the average of (x) the Taxes
for the Tax Year commencing July 1, 2006 and ending June 30, 2007 and (y) the Taxes for the Tax
Year commencing July 1, 2007 and ending June 30, 2008 provided, however, if Landlord delivers the
15th Floor Space on or after September 1, 2007 Base Taxes shall be the Taxes for the Tax
Year commencing on July 1, 2007 and ending June 30, 2008; and (ii) Tenant’s proportionate share
shall be an additional 2.256% (which Landlord and Tenant stipulate and agree is based upon the 15th
Floor Space containing 10,010 rentable square feet and the 443,750 rentable square feet for
purposes of computing Taxes). The provisions of this Section 3.4 shall apply only to the
15th Floor Space and the 15th Floor Additional Tax Payment, and nothing contained in this
Section 3.4 shall affect the Tenant’s Tax Payment (or Tenant’s obligations in respect
thereof) in respect of any other portion of the Premises.



                  15.5 Electricity for the 15th Floor Space. Landlord and Tenant agree that, commencing
on the 15th Floor Commencement Date, Tenant shall obtain electricity for the 15th Floor Space
directly from the public utility servicing the Building and, accordingly, the provisions of
Article 17 of the Original Lease shall be applicable to the 15th Floor Space in addition to
the Current Premises.



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SECTION 16 LANDLORD’S 15th FLOOR CONTRIBUTION.




                  16.1 Landlord’s 15th Floor Contribution. Landlord agrees to pay Tenant toward the cost
of the Tenant’s 15th Floor Work (as hereafter defined) an amount not to exceed Landlord’s 15th
Floor Contribution (as hereafter defined) provided that as of the date on which Landlord is
required to make payment pursuant to Section 4.2, (i) the Lease, as amended by this
Amendment, shall be in full force and effect and (ii) no Event of Default shall have occurred and
be continuing. Tenant shall pay all costs of Tenant’s 15th Floor Work in excess of
Landlord’s Contribution. “Landlord’s 15th Floor Contribution” shall be in the aggregate
amount of Four Hundred Fifty Thousand Four Hundred and Fifty Dollars ($450,450.00). “Tenant’s
15th Floor Work” shall include the work to be performed by or on behalf of Tenant to
prepare the 15th Floor Space for Tenant’s initial occupancy so that such space is
substantially similar to the Current Premises. Landlord’s Contribution shall be payable on account
of labor directly related to the 15th Floor Work and materials delivered to the
15th Floor Space in connection with Tenant’s 15th Floor Work including, without
limitation, (i) actual architectural, consulting and engineering fees and costs incurred by Tenant
in connection therewith and (ii) costs of electricity and other utilities incurred in connection
therewith. Tenant’s 15th Floor Work is deemed to be an Alteration under the Lease and
Tenant shall obtain Landlord’s approval for Tenant’s 15th Floor Work and perform such work in
accordance with the terms of the Lease. Tenant shall not be entitled to receive any portion of
Landlord’s 15th Floor Contribution not actually expended in the performance of the Tenant’s 15th
Floor Work, nor shall Tenant have any right to apply any unexpended portion of Landlord’s 15th
Floor Contribution as a credit against Fixed Rent, Additional Rent or any other obligation of
Tenant under the Lease, as amended by this Amendment; provided, however (and subject to the first
sentence of this Section 4.1) that if, after payment of all costs of Tenant’s 15th Floor
Work hereof, there shall be any unexpended balance of Landlord’s 15th Floor Contribution, then such
balance shall be applied to reimburse Tenant for costs incurred by Tenant for installing Tenant’s
initial telecommunications and computer data wiring and initial built-in furniture (if any) in the
15th Floor Space, provided that Tenant provides to Landlord, not later than sixty (60) days after
Tenant substantially completes Tenant’s 15th Floor Work (the “Substantial Completion Date”)
(with TIME OF THE ESSENCE), a request for such reimbursement accompanied by evidence reasonably
satisfactory to Landlord substantiating that such work has been performed and completed and that
such costs actually have been incurred and paid by Tenant; but Tenant shall pay the costs for such
wiring and built-in furniture to the extent that the unexpended balance of Landlord’s 15th Floor
Contribution (if any), after payment of the costs and expenses to which said Landlord’s 15th Floor
Contribution otherwise is to be applied. Such reimbursement out of the unexpended balance of
Landlord’s 15th Floor Contribution shall be provided by Landlord to Tenant not later than thirty
(30) days after request by Tenant for such reimbursement made as and when provided herein,
accompanied by such substantiating evidence.



                  16.2 Payment of Landlord’s 15th Floor Contribution.



     (a) Provided the Lease, as amended by this Amendment, shall be in full force and effect and no
Event of Default exists, Landlord shall make progress payments to Tenant of Landlord’s
15th Floor Contribution on a monthly basis for the work performed to date and/or for
materials delivered to the job site during the previous month, as described in a requisition to be
delivered by Tenant to Landlord (each a “Requisition”), less a retainage of ten



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percent (10%) (“Retainage”), which progress payments shall be made upon completion of
the work (or actual delivery of the materials, as the case may be) described in the contractor’s or
materialman’s invoice. Notwithstanding anything to the contrary in the Lease, as amended by this
Amendment, but subject to Landlord’s right to holdback Retainage as provided herein, each of
Landlord’s payments shall be limited to that fraction of the total amount of such payment, the
numerator of which shall be the amount of Landlord’s 15th Floor Contribution, and the
denominator of which shall be the total contract (or reasonably estimated) price for the
performance of all of Tenant’s 15th Floor Work, shown on all plans and specifications
approved by Landlord. Landlord shall make such progress payments within thirty (30) days after
receipt of a complete Requisition therefor signed by the chief financial officer or managing
partner of Tenant (but not more frequently than one time per month), which Requisition shall set
forth the names of each contractor, subcontractor or materialman to whom payment is due and the
amount due to each of them, and shall include (i) a written certification from Tenant’s architect
(the “Architect’s Certification”) evidencing that the portion of Tenant’s 15th
Floor Work described in such Requisition has been performed and completed in accordance with the
plans and specifications previously approved by Landlord and that all materials have actually been
delivered, (ii) copies of any invoices evidencing the work performed and/or materials delivered
which are the subject of such Requisition, (iii) with the exception of the first Requisition,
copies of waivers of lien from all contractors, subcontractors and materialmen covering all work
and materials which were the subject of all previous Requisitions, and such other proof of full
payment of all work and materials which were the subject of all previous Requisitions, as Landlord
shall reasonably require, (iv) with the exception of the first Requisition, copies of paid invoices
covering all work and materials which were the subject of all previous Requisitions and payments by
Landlord, and (v) with the exception of the first Requisition, proof of the satisfactory completion
of all required inspections, if any, and the issuance of any required approvals and sign-offs by
Governmental Authorities, if any, with respect with the work that has been completed. Landlord
hereby agrees to disburse to Tenant the Retainage upon submission of a final Requisition by Tenant
to Landlord therefor signed by the chief financial officer or managing partner of Tenant, with
accompanying documentation, including (A) satisfactory evidence of completion of construction of
the entirety of the work of Tenant’s 15th Floor Work, and the satisfactory completion of
all required inspections and issuance of any required approvals and signoffs of Governmental
Authorities with respect thereto, (B) satisfactory evidence of payment in full for all work
performed and materials delivered in connection with Tenant’s 15th Floor Work, (C) all
final lien waivers from all contractors, subcontractors and materialmen who performed work and/or
delivered materials to the 15th Floor Space in connection with Tenant’s 15th
Floor Work, (D) proof of the satisfactory completion of all required inspections and the issuance
of any required approvals and sign-offs by Governmental Authorities with respect thereto, (E) final
“as built” plans and specifications for Tenant’s 15th Floor Work as required pursuant to
Section 5.1(c) of the Original Lease, and (F) such other documents and information as
Landlord may reasonably request. It is agreed that Landlord shall have the right (but not the
obligation), out of each progress payment, prior to disbursing such progress payment to Tenant, to
pay to itself a proportionate share of any reasonable out-of-pocket costs and expenses incurred by
Landlord, or by any third-party on behalf of Landlord, in connection with Landlord’s review of
plans, specifications, lien waivers, certificates, permits and other construction documents
pursuant to Section 5.6 of the Original Lease and/or Landlord’s provision of services
pursuant to Section 5.6 and/or this Section 4.2.



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     (b) If Tenant does not pay a contractor, subcontractor or materialman within the time periods
provided in the contract with such contractor, subcontractor or materialman, Landlord shall have
the right after ten (10) days notice to Tenant, but shall not be obligated, to promptly pay to such
contractor, subcontractor or materialman all sums so due from Tenant and Landlord thereafter shall
have all remedies available to Landlord at law or in equity for collection of all sums so paid by
Landlord and due to Landlord from Tenant provided, however, if Tenant shall furnish evidence to
Landlord within such ten (10) day period that it is contesting such payment and provides evidence
satisfactory to Landlord that Tenant is bonding any lien arising from such non-payment, then
Landlord shall not have the right to make such payment unless a lien is filed against the
15th Floor Space or the Building and such lien is not discharged pursuant to Section
5.4 of the Original Lease in which case Landlord shall have the right to make such payment in
addition to any other rights or remedies Landlord may have under the Lease, in equity or pursuant
to law. In addition, Tenant agrees that any such payment made by Landlord shall be collectable as
Additional Rent pursuant to the Lease, as amended by this amendment, and, in default of payment
thereof, Landlord shall (in addition to all other remedies) have the same rights as in the event of
default of payment of Rent under the Lease. Tenant shall reimburse Landlord (to the extent
Landlord has not paid itself any such costs under the last sentence of Section 4.2(a)
above), as Additional Rent, for all reasonable out-of-pocket costs and expenses incurred by
Landlord, or by any third-party on behalf of Landlord, in connection with Landlord’s review of
plans, specifications, lien waivers, certificates, permits and other construction documents
pursuant to Section 5.6 and/or this Section 4.2 and/or Landlord’s provision of
services pursuant to Section 5.6.



     (c) The right to receive Landlord’s 15th Floor Contribution is for the exclusive
benefit of Tenant, and in no event shall such right be assigned to or be enforceable by or for the
benefit of any third party, including any contractor, subcontractor, materialman, laborer,
architect, engineer, attorney or any other Person.



SECTION 17 SECURITY DEPOSIT




                  17.1 On the date hereof, the amount of the Security Deposit described in the Original Lease
and First Amendment shall be increased by $750,750.00 (“15th Floor Security
Deposit”) (by Tenant either by making a cash deposit with Landlord or delivering an additional
Letter of Credit which in all respects complies with and shall be governed by the terms, conditions
and requirements of Section 34.2 of the Original Lease and all other applicable terms and
conditions of the Original Lease) so that the Security Deposit under the Original Lease and First
Amendment, as amended hereby, from and after the Effective Date shall be in the total amount of One
Million Nine Hundred Ninety Eight Thousand Six Hundred Fifty and 00/100 Dollars ($1,998,650.00),
subject to reduction as provided in the First Amendment and as hereinafter provided (such increased
Security Deposit, the “Additional Increased Security Deposit”). Except as otherwise
specifically provided herein, from and after the Effective Date, all references in the Original
Lease, as amended hereby, to the “Security Deposit” shall be deemed to also refer to the
15th Floor Security Deposit. Except as otherwise specifically provided herein, the
provisions of Article 34 of the Original Lease shall govern and apply to the
15th Floor Security Deposit and, except as otherwise herein specifically provided, all
terms and provisions of the Original Lease respecting the Security Deposit shall apply to the
15th Floor Security Deposit.



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                  17.2 Subject to the provisions of and satisfaction of all of the conditions set forth in
Section 34.5(b) and (c) of the Original Lease, the 15th Floor Security Deposit
shall be reduced on each of the following reduction dates (the “15th Floor Reduction
Dates”) as follows:




     (a) On September 1, 2009, the 15th Floor Security Deposit shall be
reduced to $500,500.




     (b) On September 1, 2011, the 15th Floor Security Deposit shall be
reduced to $250,250.




     (c) On September 1, 2013, the 15th Floor Security Deposit shall be
reduced to $0.00.



                  17.3 The provisions of Section 34.5(a) of the Original Lease shall continue to be void
and of no force or effect (as provided in the First Amendment), but the provisions of Section
34.5(b) and Section 34.5(c) of the Original Lease shall continue in full force and
effect and shall apply to the 15th Floor Security Deposit. Section 5 of the
First Amendment shall not be affected or changed in any manner whatsoever by the terms of this
Amendment and the terms of Section 5.2 of the First Amendment shall not in any way apply
to this Amendment.



SECTION 18 INTENTIONALLY OMITTED




SECTION 19 NO OTHER MODIFICATIONS; RATIFICATION.




                  19.1 Except as specifically modified and amended by this Amendment, there are no other changes
or modifications to the Lease and all of the terms, covenants and conditions of the Lease, as
modified and amended by this Amendment, are hereby ratified and confirmed and shall continue to be
and remain in full force and effect.



SECTION 20 BROKERS.




                  20.1 Each of Landlord and Tenant represents and warrants to the other that it has not dealt
with any broker in connection with this Amendment other than Studley, Inc. and RANY Management
Group, Inc. (the “Brokers”) and that, to the best of its knowledge and belief, no other
broker, finder or like entity procured or negotiated this Amendment or is entitled to any fee or
commission in connection herewith. Each of Landlord and Tenant shall indemnify, defend, protect
and hold the other party harmless from and against any and all Losses (as defined in Section
32.1(b) of the Original Lease) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than the Brokers) arising out of any
dealings claimed to have occurred between the indemnifying party and the claimant in connection
with this Amendment, or the above representation being false. Landlord shall be responsible for
the commission due and payable to the Brokers in connection with this Amendment pursuant to a
separate agreement.



SECTION 21 NOTICES.




                  21.1 All bills, statements, consents, notices, demands, requests, approvals or other
communications to be given under the Lease as modified by this Amendment shall be



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given in accordance with the provisions of Article 27 of the Original Lease and
Section 9 of the First Amendment.



SECTION 22 OPTION TO RENEW RESPECTING THE PREMISES




                  22.1 The provisions of Section 10 of the First Amendment shall be deleted and replaced
by the following:



                         “10.1 Option to Renew. Pzena Investment Management, LLC only, as Tenant, shall have
the one-time right, at its option, to renew the Lease, as amended by this Amendment (the
“Premises Renewal Option”), for the entire Premises, for a renewal term (“Premises
Renewal Term”) of five (5) years from and including November 1, 2015. The Premises Renewal
Term shall commence (“Premises Renewal Term Commencement Date”) on November 1, 2015 and
shall terminate on October 31, 2020. Tenant shall exercise the option described herein by giving
Landlord written notice of such election to renew (“Premises Renewal Notice”) not later
than April 30, 2014, and upon the giving of such notice the Lease, as amended by this Amendment,
shall thereupon be deemed renewed for the entire Premises for the Premises Renewal Term with the
same force and effect as if the Premises Renewal Term had originally been included in the term of
the Lease, as amended by this Amendment. Time is of the essence with respect to Tenant’s Renewal
Notice. The right of Tenant to renew the Lease, as amended by this Amendment, shall be conditioned
upon (i) there shall be no Event of Default at the time of the Premises Renewal Notice and as of
the Premises Renewal Term Commencement Date, (ii) the original Tenant named herein and its
Affiliates occupying, in the aggregate, not less than ninety percent (90%) of the total rentable
square footage of the Premises as of the date of the Premises Renewal Notice and the Premises
Renewal Term Commencement Date, and (iii) the Lease, as amended by this Amendment, being in full
force and effect at the time of the exercise of such option and as of the Premises Renewal Term
Commencement Date.



                  22.2 Terms of Lease. All of the terms, covenants and conditions of the Lease, as
amended by this Amendment shall continue in full force and effect during the Premises Renewal Term,
except that (i) the Fixed Rent for the Premises Renewal Term shall be in an amount equal to the
Fair Market Rent (as determined below), (ii) Tenant shall have no further right to renew the term
of the Lease, as amended by this Amendment, (iii) Base Taxes shall be the Taxes for the Tax Year
commencing July 1, 2015 and ending on June 30, 2016, and Base Expenses shall be the Operating
Expenses for the Computation Year commencing January 1, 2015 and ending December 31, 2015, (iv) the
Rent Commencement Date in respect of the Premises Renewal Term shall be the Premises Renewal Term
Commencement Date and Tenant shall not be entitled to any abatement of Fixed Rent (as such
abatement is provided in Section 3.1 of this Amendment or otherwise), and (v) Landlord
shall have no obligation to make any Landlord Contribution of any kind (including, without
limitation, any Landlord’s Restroom Contribution as referred to in the First Amendment) or perform
any Landlord’s Work of any kind, nor shall Landlord otherwise have any obligation to pay or
contribute to the payment for, or perform, any Alterations or any other work intended to prepare
the Premises for Tenant’s occupancy. Any termination, cancellation or surrender of the interest of
Tenant under the Lease, as amended by this Amendment, at any time during the Term hereof shall
terminate any right of renewal of Tenant hereunder. Upon the determination of the Fixed Rent in
accordance with Section 10.4 or Section 10.5 below for the Premises Renewal Term,
Landlord and Tenant, upon



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the demand of either of them, shall execute and deliver an instrument setting forth the Fixed
Rent for the Premises Renewal Term; but failure of the parties, or either of them, to so execute
and deliver such an instrument shall not affect the enforceability of the Fixed Rent for the
Premises Renewal Term, as determined as herein provided.



                  22.3 Fixed Rent. For purposes of determining the Fixed Rent payable during the
Premises Renewal Term, the Fair Market Rent of the Premises shall be equal to the fair market
annual rental value of the Premises as of the Premises Renewal Term Commencement Date, as
determined in accordance with the terms hereof. Not later than ninety (90) days prior to the
Premises Renewal Term Commencement Date, Landlord shall give notice (“Premises Valuation
Notice”) to Tenant setting forth the amount that Landlord determines to be the Fair Market Rent
for the Premises for the Premises Renewal Term. If Tenant shall dispute Landlord’s determination
of the Fair Market Rent, Tenant must (or Tenant shall be deemed to have accepted the Fair Market
Rent set forth in Landlord’s Premises Valuation Notice) give notice to Landlord of such dispute
within twenty (20) days of Tenant’s receipt of the Premises Valuation Notice (with time of the
essence). The parties shall then engage in good faith negotiations for ten (10) days to determine
the Fair Market Rent for the Premises for the Premises Renewal Term. In the event the parties
cannot resolve their dispute with regard to the Fair Market Rent for the Premises for the Premises
Renewal Term within such ten (10) day period, then the Lease, as amended by this Amendment, shall
be deemed renewed as respects the Premises and the Fair Market Rent for the Premises for the
Premises Renewal Term shall be determined by arbitration in accordance with Section 10.5
hereof. For the avoidance of doubt, Fair Market Rent is defined as the annual amount of fixed,
base rent that a willing lessee would pay and a willing lessor would accept for the Premises, paid
over the Premises Renewal Term, taking into account all reasonably relevant factors relating to the
premises in question.



                  22.4 Arbitration. If Tenant shall dispute Landlord’s determination of the Fair Market
Rent for the Premises for the Premises Renewal Term pursuant to Section 10.4 of this
Amendment, such Fair Market Rent shall be determined by a single arbitrator appointed in accordance
with the American Arbitration Association Real Estate Valuation Arbitration Proceeding Rules. Such
arbitrator shall be impartial and shall have not less than ten (10) years’ experience in the County
of New York in a calling related with the leasing of commercial office space in office buildings
comparable to the Building, and the fees of such arbitrator, shall be shared equally by Landlord
and Tenant. Within thirty (30) days following the appointment of such arbitrator, each party shall
attend a hearing before such arbitrator wherein each party shall submit a report setting forth its
determination of the Fair Market Rent for the Premises for the Premises Renewal Term (which need
not be the same determination which the party submitted or proposed pursuant to Section
10.4), together with such information on comparable rentals or such other evidence as such
party shall deem relevant. The arbitrator shall, within thirty (30) days following such hearing
and submission of evidence, render its decision by selecting the determination of the Fair Market
Rent for the Premises for the Premises Renewal Term submitted to the arbitrator by either Landlord
or Tenant which, in the judgment of the arbitrator, most nearly reflects such Fair Market Rent
based on all relevant factors relating to the premises in question. It is expressly understood
that such arbitrator shall have no power or authority to select any Fair Market Rent for the
Premises for the Premises Renewal Term other than the Fair Market Rent submitted by Landlord or
Tenant, and the decision of such arbitrator shall be final and binding upon the parties hereto.
Prior to the determination of the arbitrator, Tenant shall



11









 






pay Rent in the amount equal to the lesser of the amount set forth in Landlord’s Premises
Valuation Notice and the amount submitted by Landlord to the arbitrator pursuant to this
Section 10.5, provided that during such period of time, if any prior to the determination
of the arbitrator and prior to such time as Landlord shall make such submission to the arbitrator,
Tenant shall pay Rent in an amount equal to the amount set forth in Landlord’s Premises Valuation
Notice. Following the arbitrator’s final determination, the amount of any overpayment or
underpayment shall be promptly adjusted between the parties.”



SECTION 23 INTENTIONALLY OMITTED




SECTION 24 MISCELLANEOUS.




                  24.1 This Amendment shall not be binding upon or enforceable against Landlord unless and until
Landlord shall have executed and unconditionally delivered to Tenant a fully executed counterpart
of this Amendment.



                  24.2 As used in this Amendment: (i) whenever the words “include”, “includes”, or “including”
appear, they shall be deemed to be followed by the words “without limitation”, (ii) all Section
references shall, unless otherwise expressly stated, be deemed references to the Sections of this
Amendment, (iii) whenever a financial obligation is stated to be at a party’s expense, such
obligation shall be at such party’s sole cost and expense, and (iv) wherever a period of time is
stated in this Amendment as commencing or ending on specified dates, such period of time shall be
deemed inclusive of such stated commencement and ending dates, and to commence at 12:00 a.m.
Eastern Time on such stated commencement date and to end at 11:59 p.m. Eastern Time on such stated
ending date.



                  24.3 This Amendment (i) contains the entire agreement between the parties hereto relating to
the transactions contemplated hereby, and all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged herein, (ii) may not be changed,
modified, terminated or discharged, in whole or in part, except by an agreement in writing,
executed by the party against which enforcement of the change, modification, termination or
discharge is sought, (iii) shall be construed, governed and enforced in accordance with the laws of
the State of New York, (iv) shall be interpreted and enforced in accordance with its provisions and
without the aid of any custom or rule of law requiring or suggesting construction against the party
drafting or causing the drafting of the provisions in question, and (v) may be executed in one or
more counterparts, each of which so executed and delivered shall be deemed an original, but all of
which taken together shall constitute but one and the same instrument.



                  24.4 The covenants, agreements, terms, provisions and conditions contained in this Amendment
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.



THE REST OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK.




12









 





IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and

year first above written.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	MAGNOLIA ASSOCIATES, LTD.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	Metropolitan Orlando GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:	 	Metropolitan Operating Partnership, L.P.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:
	 	Metropolitan Partners, LLC	 	 	 	 	 	 	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	                                                       /s/ William Elder
 	 
	 	Name:  	William Elder 	 
	 	Title:  	Senior Vice President and Co-Director 	 
	 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	PZENA INVESTMENT MANAGEMENT, LLC






	 	 	 	 	 
	 	 	 
	 	By:  	                           /s/ Richard S. Pzena
 	 
	 	Name:  	Richard S. Pzena 	 
	 	Title:  	Managing Member	 
	 
	 	Federal Tax ID No.: 13-3860154 
	 




13









 







EXHIBIT A-3




Floor Plans of the 15th Floor Space





     The floor plan which follows is intended solely to identify the general location of the 15th
Floor Space, and should not be used for any other purpose. All areas, dimensions and locations are
approximate, and any physical conditions indicated may not exist as shown.



[Exhibit Intentionally Omitted]