THIRD AMENDMENT OF LEASE



 


Exhibit 10.3


THIRD AMENDMENT OF LEASE

AND PARTIAL SURRENDER AGREEMENT



          THIS THIRD AMENDMENT OF LEASE AND PARTIAL SURRENDER AGREEMENT (hereinafter
referred to as the “Agreement”) made as of the 16th day of May, 2003 by and
between 450 WESTSIDE PARTNERS, L.L.C., a Delaware limited liability company
having an office c/o Max Capital Management Corp., 230 Park Avenue, New York,
New York 10169 (hereinafter referred to as “Landlord”) and DOUBLECLICK, INC., a
Delaware corporation having an office at 450 West 33rd Street, New York, New
York 10001 (hereinafter referred to as “Tenant”).



Statement of Facts



          Pursuant to that certain Agreement of Lease dated as of January 26, 1999
(hereinafter referred to as the “Original Lease”) between John Hancock Mutual
Insurance Company (hereinafter referred to as “Hancock”), Landlord’s
predecessor in interest, and Tenant, as amended by that certain Amendment of
Lease made as of January 26, 1999 (hereinafter referred to as
the “Amendment”)
and letter agreement, made as of January 26, 1999, as further modified by
letter agreement dated June 8, 1999, letters dated June 18, 1999, June 29, 1999
and July 12, 1999, and as further amended by a Second Amendment to Lease dated
as of December 28, 1999 (hereinafter referred to as the “Second Amendment”)
between Landlord and Tenant (the Original Lease, as amended, is hereinafter
collectively referred to as the “Lease”), Tenant is the tenant of certain
premises consisting of space on the sixteenth (16th) floor, loading bay #21 and
freight elevator #F-8, the mezzanine and the area on the east and west sides of
the rooftop/setback outside the windowed portions of the 16th floor
(hereinafter collectively referred to as the “16th Premises”), the twelfth
(12th) floor, loading bay #18 and freight elevator #F-13 (hereinafter
collectively referred to as the “12th Premises”), the fourteenth (14th) floor
and freight elevator #F-4 (hereinafter collectively referred to as the “14th
Premises”), and the fifteenth (15th) floor, loading bay #22 and freight
elevator #F-7 (hereinafter collectively referred to as the “15th Premises”) in
the building located at 450 West 33rd Street, New York, New
York

1






 




(hereinafter referred to as the “Building”) upon terms and conditions more
fully set forth in the Lease. The 16th Premises, the 12th Premises, the 14th
Premises and the 15th Premises are hereinafter collectively referred to as the
“Original Premises”. Tenant desires to surrender to Landlord a portion of the
Original Premises and to otherwise amend the Lease as more fully hereinafter
set forth. Unless otherwise specifically indicated, all capitalized terms used
herein shall have the meanings ascribed to them in the Lease.


          NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, it is agreed as follows:



TERMS



          1. (a) Effective at 11:59 p.m. on July 31, 2003 (hereinafter referred to
as the “Effective Date”), with respect only to a portion of the Original
Premises consisting of the 12th Premises (hereinafter referred to as the
“Surrender Space”), the Lease, except as otherwise expressly provided below,
and the leasehold estate created thereby with respect to the Surrender Space
shall be deemed terminated and expired as if the Effective Date were set forth
in the Lease as the expiration date thereof with respect only to the Surrender
Space in accordance with, and subject to the provisions of this Agreement.
Notwithstanding anything contained herein to the contrary, the Lease shall
continue in full force and effect with respect to the 16th Premises, the 14th
Premises and the 15th Premises (hereinafter collectively referred to as the
“Remaining Space”) in accordance with the terms of the Lease, which Remaining
Space shall then constitute the demised premises (as such term is defined in
the Lease).



               (b) Except as otherwise expressly provided in this Agreement, wherever in
the Lease reference is made to the “demised premises”, “leased premises” or a
similar phrase, from and after the Effective Date, such phrases shall be deemed
to exclude the Surrender Space.



          2. (a) Except as expressly set forth in this Agreement and subject to the
further provisions of this Paragraph 2 and Paragraph 3, Tenant shall remain
obligated to comply

2






 





with all of the terms, covenants and conditions of the Lease on Tenant’s
part to observe, perform and comply with respect to the Surrender Space
(including, without limitation, Tenant’s obligation to pay fixed rent and
additional rent (as such terms are defined in the Lease)) through and including
the later of the Effective Date and the date (hereinafter referred to as the
“Surrender Date”) on which Tenant quits and surrenders the Surrender Space in
the manner set forth in Paragraphs 3 and 4 below, and all of Tenant’s
obligations and liabilities under the Lease and this Agreement with respect to
the Surrender Space, which accrue or arise or relate to matters occurring on or
before the later of the Effective Date and the Surrender Date shall survive the
Effective Date and the Surrender Date including, without limitation, Tenant’s
obligation under the Lease with respect to the Surrender Space, Tenant’s
obligation to pay Operating Expenses (which Tenant acknowledges and agrees that
neither Landlord has billed Tenant nor has Tenant paid the same to Landlord
with respect to the 2002 calendar year) and the outstanding electricity charges
in the amount of $411,000.00 (which covers all charges prior to March 1, 2003),
and the curing of all violations, if any, and the closing out of all open
applications and delinquency notices, if any, (except as otherwise provided in
Paragraph 2(b) below) relating to Tenant’s use and occupancy of the Surrender
Space and Tenant’s obligation under the Lease with respect to the Surrender
Space (and any liability resulting from Tenant’s failure to perform such
obligation) to indemnify, defend and hold Landlord harmless under the Lease for
all liabilities, obligations, suits, claims, fines, damages, penalties, costs,
charges and expenses (hereinafter collectively referred to as “Damages”)
(including, without limitation, attorneys’ fees and disbursements) which may be
imposed upon, incurred or paid by, or asserted against Landlord under the Lease
with respect to the Surrender Space, or for which Landlord may become, or is,
liable, that are imposed by, or incurred or paid to, or asserted by,
third

3






 




parties, including, without limitation, Damages resulting from (i)
injuries to persons occurring at the Surrender Space on or prior to the later
of the Effective Date and the Surrender Date; and (ii) Tenant’s failure to have
paid for any work performed at, or materials or supplies installed at or
furnished to, the Surrender Space on or prior to the later of the Effective
Date and the Surrender Date, at the request of, or for the benefit of, Tenant
or any person or entity claiming by, through or under Tenant.


               (b) Notwithstanding the provisions of subparagraph (a) above, Tenant shall
have no obligation to cure any violations, to close out any open applications
or to discharge any delinquency notices as set forth above, (x) if the
violation was not caused by the act or omission of Tenant or any person or
entity claiming by, through or under Tenant, or (y) if the application was not
opened by Tenant or any person or entity claiming by, under or through Tenant,
or (z) if the issue surrounding the delinquency notice was not caused by, as
the case may be, the act or omission of Tenant or any person or entity claiming
by, through or under Tenant, including, but not limited to, Tenant’s
contractors and consultants. To the extent such violation, open application
and/or delinquency notice is attributable to Tenant’s acts or omissions, then
Tenant shall be liable for, and shall pay as additional rent in accordance with
the terms of the Lease, as amended, its proportionate share of the cost and
expense incurred by Landlord to cure or close out the same, except that
Landlord shall be responsible for any further costs payable to Fire Quench and
for any further work to be performed by Fire Quench from and after the date of
this Agreement solely with respect to the Surrender Space or elsewhere in the
Building so as to make the Surrender Space compliant with all applicable laws,
rules, regulations and codes of any and all governmental and/or
quasi-governmental agency or entity having jurisdiction with respect thereto.
Tenant represents and warrants to Landlord that as of the date hereof (i) no

4






 





money is due and owing from Tenant to Fire Quench for work performed by
Fire Quench on behalf of, or at the request of, Tenant with respect to the
Surrender Space or any other portion(s) of the Original Premises and (ii) no
further work has been contracted for between Tenant and Fire Quench to be
performed from and after the date of this Agreement with respect to the
Surrender Space or any other portions(s) of the Original Premises. The parties
hereto acknowledge and agree that if at any time after the date of this
Agreement Tenant contracts with Fire Quench or any other person or entity to
cure any violation or close out any open application with respect to the
Surrender Space, Tenant shall be responsible for the costs and expenses
incurred in connection therewith.


               (c) Subject to the provisions of Paragraph 5(d) below, nothing contained
in this Agreement shall be deemed to extend the Effective Date or otherwise
permit Tenant to hold over its occupancy or possession of any portion of the
Surrender Space beyond December 31, 2003.



          3. (a) Subject to the other provisions of this Agreement, on or before the
Effective Date, Tenant shall quit and surrender the Surrender Space broom
clean, in good order and condition, ordinary wear and tear excepted, free of
all tenants, subtenants and other occupants and Tenant shall (i) substantially
perform and complete the items of work described on Exhibit B annexed hereto,
at its expense, as “Tenant’s Work”, (ii) except as otherwise set forth in this
Paragraph 3(a), remove all of Tenant’s trade equipment, trade fixtures and
personal property therefrom, including, without limitation, any signage located
in the elevator lobby on the twelfth (12th) floor of the Building, (iii)
surrender the Surrender Space with all mechanical, electrical and plumbing
fixtures, equipment and systems (hereinafter collectively referred to as the
“Systems”) in working order and condition (but, in any event, only to the
extent the

5






 





preservation of the Systems is not Landlord’s obligation under the Lease),
including, without limitation, the two (2) perimeter heating units located in
the mechanical room on the twelfth (12th) floor, the four (4) 100 ton
air-conditioning, ventilation and heating units on the twelfth (12th) floor and
the Generator (including the transfer switch), the Fuel Tank (as such terms are
defined in the Lease), and the conduit as shown on the plan annexed hereto as
Exhibit C (which Tenant represents and warrants is free of asbestos), (iv)
repair any damage (other than minor scratches, stains and other mere cosmetic,
immaterial damage) to the Surrender Space resulting from Tenant’s removal of
any of its trade equipment, trade fixtures and personal property therefrom, and
(v) in all other respects, except as otherwise set forth in this Paragraph
3(a), surrender the Surrender Space to Landlord in accordance with the
applicable provisions of the Lease, as if the Effective Date were the
expiration date thereof with respect to the Surrender Space subject to Tenant’s
obligations under the Lease as set forth in Paragraph 2 above and this
Paragraph 3. As of the later to occur of the Effective Date and the Surrender
Date, Tenant shall abandon and not remove the furniture and telephone headsets
(hereinafter referred to as the “FF&E”) existing in the Surrender Space as of
the date hereof, as more particularly set forth on Exhibit A annexed hereto and
made a part hereof and shall leave the FF&E in the Surrender Space in the
condition same are in as of the date hereof, reasonable wear and tear excepted.
The obligations of Tenant with respect to the surrender of the Surrender Space
(including the performance of Tenant’s Work) as set forth in this Paragraph
3(a) are hereinafter collectively referred to as the “Delivery Conditions”.


               (b) Tenant hereby agrees that Landlord shall not have any accountability
with respect to the FF&E and Tenant agrees to indemnify, defend and hold
Landlord harmless for all Damages which may be imposed upon, incurred or paid
by or asserted

6






 





against Landlord, or for which Landlord may become, or is, liable with
respect to the FF&E for any period prior to the later to occur of the Effective
Date and the Surrender Date, except for any Damages resulting from Landlord’s
gross negligence or willful misconduct. No part of the Termination Fee (as
defined in Paragraph 8 hereof) is in respect of, or is being allocated to, the
FF&E, and Tenant shall cooperate with Landlord in substantiating the same. If
prior to the later to occur of the Effective Date and the Surrender Date any of
the items constituting the FF&E have been removed from the Surrender Space or
there occurs damage to the FF&E causing the same not to be in its present
condition as of the date hereof, reasonable wear and tear excepted, then Tenant
shall promptly make such repairs to the FF&E and/or return any items of the
FF&E to the Surrender Space, as applicable, and such obligation(s) shall
survive the later to occur of the Effective Date and the Surrender Date.
During the period commencing on the date hereof through the later to occur of
the Effective Date and the Surrender Date, Tenant shall use the FF&E and the
Systems solely for the conduct of its business and in a careful and proper
manner. On or before the Surrender Date, Tenant shall deliver to Saint
Vincents (as hereinafter defined) any warranties in its possession in effect
for the FF&E and a copy of same to Landlord. Upon reasonable advance notice at
any time prior to the Effective Date or the Surrender Date, if later, Landlord
shall have the right to enter upon the Surrender Space (in accordance with the
terms of the Lease) to inspect the FF&E and the Systems. Tenant shall not
hereinafter take any action which will result in any liens or encumbrances on
the FF&E. Tenant represents that it is the sole owner of the FF&E and has good
title to the same and, as of the Surrender Date, there will be no liens or
encumbrances on the FF&E and none of the same will be subject to any
conditional sale, lease, judgment, or financing arrangement.


7






 


               (c) Tenant’s Work shall be performed in accordance with all applicable
provisions of the Lease, including, without limitation, Articles 3 and 45
thereof, as if a “change” or a “Tenant’s Change” (as such terms are defined in
Article 45 of the Lease). If Landlord unreasonably delays in responding to
Tenant’s submission of any plans required to be submitted in connection with
Tenant’s performance of Tenant’s Work, then the Effective Date shall be
postponed by one (1) day for each day beyond the expiration of the time period
required for Landlord to respond to any Tenant’s plans set forth in the Lease
that Landlord has failed to respond to such Tenant’s plans. For the purposes
of this Agreement only, references to “ten (10) business days” in subsections
45(a)(v) and (vii) of the Lease shall be deemed to be references to five (5)
business days”.



               (d) Tenant shall send to Landlord, Landlord’s attorneys, Saint Vincents
and Saint Vincents’ attorneys a notice (hereinafter referred to as the
“Completion Notice”) specifying the date (hereinafter referred to as the
“Substantial Completion Date”) on which Tenant’s Work is substantially complete
and the other Delivery Conditions are satisfied (it being agreed that the
Completion Notice may be sent by telecopier (with written confirmation of
delivery) to Landlord, Landlord’s attorneys, Saint Vincents and Saint Vincents’
attorneys at the addresses and telecopier numbers provided in Paragraph 16
below). For purposes hereof, Tenant’s Work shall be deemed substantially
complete notwithstanding the fact that minor or insubstantial details of
construction, mechanical adjustment or decoration remain to be performed, the
noncompletion of which does not materially interfere with Saint Vincents’ use
of the Surrender Space and does not result in Landlord being liable to Saint
Vincents for any Delay Payment (as hereinafter defined). The Substantial
Completion Date set forth in the Completion Notice shall be conclusive and
binding upon Landlord unless, solely by giving Tenant notice

8






 





(hereinafter referred to as the “Dispute Notice”) within twelve (12)
business days after the later of (i) the date on which Tenant gives the
Completion Notice to Landlord, and (ii) the Substantial Completion Date set
forth in the Completion Notice, Landlord disputes the fact that on or before
the Substantial Completion Date set forth in the Completion Notice the
Substantial Completion Date actually occurred, which Dispute Notice shall
provide the particular items of Tenant’s Work (in as much detail as reasonably
possible) that are not substantially complete and which Delivery Conditions
have not been satisfied. The notice sent by Tenant shall not be effective as a
Completion Notice unless it notifies Landlord that if Landlord does not send
the Dispute Notice within such twelve (12) business day period, the Substantial
Completion Date set forth in the Completion Notice shall be conclusive and
binding upon Landlord. If any items of Tenant’s Work are not disputed in said
Dispute Notice, such non-disputed items shall be deemed substantially
completed. Pending the resolution of a dispute over the Substantial Completion
Date, for all purposes under this Agreement, the Substantial Completion Date
shall be deemed to be the date set forth in the Completion Notice. If Landlord
and Tenant cannot resolve such dispute within ten (10) days after Landlord
sends the Dispute Notice to Tenant, such dispute shall be resolved by
arbitration in accordance with subsection (I)(2) of Article Fourth of the
Second Amendment. If the dispute (whether by agreement or arbitration is
resolved in Landlord’s favor, then the Substantial Completion Date shall be as
determined by such agreement or arbitration and any payments based on the
occurrence of the Substantial Completion Date made by Tenant under this
Agreement shall be adjusted accordingly. If such dispute shall be resolved by
arbitration, and it is determined that on or before the Substantial Completion
set forth in the Completion Notice, the Substantial Completion Date did not
actually occur, then the arbitration shall also determine whether the
Substantial Completion Date

9






 




nevertheless occurred after the date set forth in the Completion Notice.
If the arbitration determines that the Substantial Completion Date did, in fact
occur, then the date thereof so determined shall be the Substantial Completion
Date without any requirement that Landlord be given another Completion Notice.
If Tenant agrees with all or any portion of Landlord’s Dispute Notice, Tenant
shall provide Landlord with an additional notice advising Landlord that such
initially incomplete portions of Tenant’s Work are substantially completed and
Landlord shall have three (3) business days to dispute said substantial
completion, otherwise same shall be deemed substantially completed.


          4. (a) Tenant hereby covenants, represents and warrants to Landlord that:
(i) Tenant has not committed, permitted or suffered any act or deed whereby the
Surrender Space (or any portion(s) thereof), or the security deposited under
the Lease, if any, have been, or may be, pledged, hypothecated, encumbered,
assigned, conveyed or otherwise transferred other than in accordance with
Section 56N of the Lease, (ii) Tenant has not sublet, underlet or otherwise
transferred, in any manner whatsoever, any present or future possession, use or
occupancy right in or to all or any portions of the Surrender Space other than
in accordance with Section 56N of the Lease, (iii) as of the Surrender Date,
the Surrender Space shall be free of all tenants, subtenants and other
occupants and all leases and subleases, and there shall be no other persons or
entities claiming, or who or which may claim, any rights of possession,
occupancy or use of the Surrender Space or any portions thereof, (iv) Tenant
shall not commit, permit or suffer any such act or deed referred to in clause
“(i)” above, and shall not so further sublet, underlet or otherwise transfer
any such present or future possession, use or occupancy right, (v) freight
elevator #F-13 is, and will be on the Effective Date, in working order and
condition, and (vi) loading bay #18 will, on the Surrender Date, be in broom
clean condition

10






 





               (b) Tenant shall terminate any sublease or other agreement entered into
between Tenant and the New York City Industrial Development Agency (hereinafter
referred to as the “NYCIDA”) with respect to the Surrender Space and/or
Tenant’s improvements to the Surrender Space and any sub-sublease or other
agreement entered into between the NYCIDA and Tenant with respect to the
Surrender Space and/or such Tenant’s improvements to the Surrender Space, the
effective date of such termination shall be on or before the day immediately
preceding the Surrender Date. On or prior to the Surrender Date, Tenant shall
deliver to Landlord fully executed copies of such termination letters or
agreements or other evidence reasonably acceptable to Landlord that the
Surrender Space and/or such Tenants improvements are no longer subject to any
such sublease, sub-sublease or other agreement.



          5. (a) (i) In the event Tenant shall not surrender possession of the
Surrender Space to Landlord in the manner set forth in Paragraphs 3 and 4 above
on or before the Effective Date, the parties hereby agree that Tenant’s
occupancy of the Surrender Space after the expiration of the Effective Date
shall be under a holdover occupancy arrangement commencing on the first day
after the Effective Date, which arrangement shall be upon all of the terms set
forth in the Lease, including, without limitation, the payment of fixed rent
and additional rent through the Surrender Date (without regard to Article 50
thereof).



                    (ii) Landlord and Tenant acknowledge that Saint Vincents Catholic Medical
Centers of New York (hereinafter referred to as “Saint Vincents”) has entered
into a lease (hereinafter referred to as the “Saint Vincents Lease”) with
Landlord covering the Surrender Space. Pursuant to the terms of the Saint
Vincents Lease, (A) Landlord is obligated to deliver possession of the
Surrender Space to Saint Vincents on August 1, 2003, and (B) if Landlord fails
to deliver possession of the Surrender Space to Saint Vincents by (1) January
1,

11






 




2004, Saint Vincents is entitled to an abatement of fixed rent in the
amount of $7,987.38 for each day from and after January 1, 2004 through January
31, 2004 that Landlord fails to deliver the Surrender Space to Saint Vincents
(such amount being herein referred to as the “First Delay Payment”), (2)
February 1, 2004, Saint Vincents is entitled to an abatement of fixed rent in
the amount of $11,981.07 for each day from and after February 1, 2004 through
March 31, 2004 that Landlord fails to deliver the Surrender Space to Saint
Vincents (such amount being herein referred to as the “Second Delay Payment”)
and (3) April 1, 2004, Saint Vincents is entitled to an abatement of fixed rent
in the amount of $15,974.76 for each day from and after April 1, 2004 that
Landlord fails to deliver the Surrender Space to Saint Vincents (such amount
being herein referred to as the “Third Delay Payment”) (the First Delay
Payment, the Second Delay Payment and the Third Delay Payment being herein
collectively referred to as the “Delay Payment”). In accordance with the
foregoing and notwithstanding anything contained in this Agreement to the
contrary, if Tenant fails to deliver the Surrender Space to Landlord by
December 31, 2003 in accordance with the terms and provisions of this Agreement
with all Tenant’s Work substantially complete, then, in addition to Tenant’s
obligations set forth in subparagraph (a)(i) above, Tenant shall be liable to
Landlord, as Landlord’s sole remedy and as liquidated damages, in the amount of
the applicable Delay Payment, but Tenant shall only be liable for so much of
the applicable Delay Payment as is caused by Tenant’s failure to so deliver the
Surrender Space and substantially complete Tenant’s Work (the payments required
to be made by Tenant under subparagraph 5(a)(i) above and this subparagraph
5(a)(ii) are referred to as the “Holdover Charges”).


                    (iii) Landlord and Tenant acknowledge that Landlord is holding a letter of
credit (hereinafter referred to as the “L/C”) in the amount of $11,000,000.00
and that


12






 





according to the terms of the L/C, the final expiration date thereof is
January 26, 2010. In addition to Landlord’s rights under the Lease to draw
down upon the L/C, Tenant acknowledges and agrees that Landlord has the right
to draw down upon the L/C from time to time, or to retain the proceeds thereof
(if Landlord has theretofore drawn down upon the L/C) in accordance with the
terms of the Lease, if Tenant has not delivered the Surrender Space to Landlord
with the Delivery Conditions satisfied and Tenant’s Work substantially complete
by December 31, 2003, and receive the applicable Delay Payment. Tenant further
acknowledges and agrees that Landlord shall be entitled to draw down on the L/C
in accordance with the terms thereof in the event that the issuing bank of the
L/C sends to Landlord or Tenant (and in such case Tenant shall immediately send
a copy of same to Landlord) a notice that it elects not to renew or extend the
L/C and Landlord will hold the proceeds thereof in accordance with the
provisions of the Lease. Tenant agrees to cooperate with Landlord and execute
any document requested by Landlord in connection with Landlord’s use of the
proceeds of the L/C and its presentment of such L/C to the issuing bank for
payment in accordance with the terms of the Lease and this Agreement.


               (b) Notwithstanding anything to the contrary contained in this Agreement,
the acceptance of any Holdover Charges paid by Tenant pursuant to subparagraph
5(a)(i) above shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding at any time after December 31, 2003 but
before Saint Vincents terminates its lease as provided in Paragraph 5(d) below,
and the preceding sentence shall be deemed to be an “agreement expressly
providing otherwise” within the meaning of Section 232-c of the Real Property
Law of the State of New York.

13






 





               (c) All damages to Landlord as expressly set forth in this Agreement by
reason of the holding over by Tenant may be the subject of a separate action
and need not be asserted by Landlord in any summary proceedings against Tenant.



               (d) Landlord has advised Tenant that Saint Vincent has the right to
terminate the Saint Vincents Lease if Tenant fails to surrender possession of
the Surrender Space and, as a result, Landlord is unable to deliver possession
of the Surrender Space to Saint Vincent by July 31, 2004, as such date may be
postponed, due to force majeure, up to May 1, 2005. In the event Saint
Vincents terminates the Saint Vincents Lease as a result of Tenant’s failure to
surrender possession of the Surrender Space by July 31, 2004 (as such date may
be postponed) then, except as otherwise provided herein, this Agreement shall
automatically terminate and be deemed null and void and of no further force and
effect, neither party shall have any further rights or obligations hereunder
(except for Landlord’s obligation to pay the commission due the Broker and
Studley (as hereinafter defined) out of the $3,305,589.00 portion of the
Termination Fee held back by Landlord as described below, as more particularly,
and in the manner, set forth in Paragraph 12 hereof and subparagraph 5A(iii)
above, which shall survive the Effective Date and the Surrender Date (or any
termination of this Agreement as provided herein) and Landlord shall return to
Tenant the Termination Fee (less the sum of $3,305,589.00, and less any amounts
paid on account of the Delay Payments and less Landlord’s legal fees to the
extent not previously paid by Tenant (as set forth in Paragraph 8(b) below))
within thirty (30) days following such termination, and all of Tenant’s right,
title and interest in and to the Surrender Space shall be reinstated
retroactive to the Effective Date and Tenant shall have no remedy against
Landlord resulting from such termination and Tenant shall remain in occupancy
of the Surrender Space (or

14






 





have the right to reoccupy the Surrender Space) pursuant to the terms of
the Lease as if this Agreement had not been executed.


          6. Effective on the Surrender Date, the Lease shall be deemed further
amended or certain of the terms thereof restated, as the case may be, as
follows:



               (a) Sections I, J, N, and O of Article Second of the Amendment and
Sections (A)(5) and (A)(6) of Article Third of the Second Amendment shall be
deemed deleted from the Lease.



               (b) Deleted prior to execution.



               (c) The provisions of Section 52(I) of the Lease shall not be applicable
to the Surrender Space.



               (d) The addresses for copies of notices to Landlord set forth in Article
Fifteenth of the Amendment is hereby deleted and the following shall be
substituted in lieu thereof:




	 
	“a copy to
Greenberg Traurig, LLP, 200 Park Avenue,

New York, New York 10166, Attention: Barry E.
Shimkin, Esq.”



               (e) (i) Landlord and Tenant mutually acknowledge that Landlord granted to
Tenant a license to install, and Tenant installed, a Generator, a Fuel Tank and
a transfer switch (as such terms are defined in Section 39H of the Lease)
solely for service with respect to the 12th Premises. Except as otherwise
provided in subparagraph (ii) below, effective as of the Surrender Date,
Tenant’s license to use the Generator installed by Tenant, the Fuel Tank and
the transfer switch and Tenant’s license for access to the Tank Area and the
Switch Area shall terminate, all of which shall remain in their location
existing as of the date hereof. Tenant represents and warrants that the
Generator, the Fuel Tank and the transfer switch are in good working order and
condition, and, on or before the Effective Date, Tenant shall deliver
all

15






 




warranties, permits and maintenance contracts, in its possession, in
connection with the Fuel Tank, the Generator and the transfer switch to
Landlord.


                    (ii) From and after the Surrender Date, Landlord shall provide to Tenant
(hereinafter referred to as the “Generator Service”) 1250 kw of power from the
Generator, at Tenant’s cost and expense (as herein provided) for the sole
purpose of providing emergency electrical service to the Demised Premises.
Landlord agrees that it shall not, at any time during the term of the Lease,
sell or provide more than 2500 kw, in the aggregate, of generator service to
the tenant(s) and/or occupant(s) of the Building. If at any time during the
term of the Lease one (1) of the two (2) Generators fails to operate, then
Landlord and Tenant agree that Landlord’s obligation to provide Generator
Service to Tenant shall be subordinate to Landlord’s obligation to provide
Generator Service to Saint Vincents. Landlord agrees to supply fuel to the
Generator and to maintain, repair, use and operate the Generator, the Fuel Tank
and the transfer switch in good working order and Tenant shall pay its
proportionate share for the cost and expense of such fuel consumption
(hereinafter referred to as the “Fuel Cost and Expense”). Tenant’s
proportionate share of the Fuel Cost and Expense shall be computed on the basis
of a fraction, the numerator of which is the capacity allocated to Tenant
(i.e., 1250 kw of power) and the denominator of which is the total power of
generator service provided to all tenants or occupants of the Building
(including Tenant) at the time the Generator Service is provided to Tenant.
Notwithstanding the foregoing, if any party (other than Tenant) permitted to
use the Generator uses the Generator for purposes other than emergency back-up
power, the Fuel Cost and Expense payable by Tenant shall be equitably adjusted
to approximate emergency power usage only. Landlord shall, at all times during
the term of the Lease (except if Tenant elects to discontinue its use of the
Generator as provided more fully below), maintain a

16






 




maintenance contract for the Generator, the Fuel Tank and the transfer
switch. Landlord agrees that any such maintenance contracts entered into by
Landlord in connection with the Generator, the Fuel Tank and the transfer
switch shall be competitive so that the costs associated with such maintenance
contracts shall be reasonable and Tenant shall pay to Landlord its
proportionate share of the cost and expense incurred by Landlord with respect
to such maintenance contracts (hereinafter referred to as the “Maintenance Cost
and Expense”). Tenant’s proportionate share of the Maintenance Cost and
Expense shall mean 50%, which has been computed on the basis of a fraction, the
numerator of which is the Generator Service (i.e., 1250 kw of power) and the
denominator of which is the total power of the Generator (i.e., 2500 kw of
power). Tenant shall pay to Landlord Tenant’s respective proportionate shares
of each of the Fuel Cost and Expense and the Maintenance Cost and Expense as
additional rent in accordance with the terms of the Lease. Notwithstanding the
foregoing, Tenant shall have the right to discontinue its use of the Generator,
the Fuel Tank and the transfer switch upon notice to Landlord and, from and
after the date of such discontinuance, Tenant shall thereafter have no further
obligations with respect to the Generator, the Fuel Tank and the transfer
switch, except that Tenant shall remain obligated to pay the Fuel Cost and
Expense and the Maintenance Cost and Expense incurred prior to the date Tenant
has discontinued use of the Generator, the Fuel Tank and the transfer switch.


                    (iii) Deleted prior to execution.



                    (iv) Landlord reserves the right, by giving reasonable advance notice to
Tenant, to temporarily suspend service of the Generator, the Fuel Tank and/or
any systems, services or utilities serving the Generator and/or the Fuel Tank
whenever and for so long as may become necessary (A) in order to allow the
making of any and all repairs, replacements, changes, modifications,
improvements, or substitutions (hereinafter collectively

17






 




referred to as “Generator Repairs”) to the Generator, the Fuel Tank, the
Generator Area, the Fuel Tank Area or any other portion of the Building, which
Landlord, in Landlord’s discretion, deems necessary, or which Landlord is
otherwise obligated to make or perform, (B) if the whole or any portion of the
Generator Area, the Fuel Tank Area or the Building shall be damaged or
destroyed by fire or other casualty, or acquired or condemned for any public or
quasi-public use or purpose, or (C) if Landlord is prohibited, prevented or
limited from using the Generator Area and/or the Fuel Tank Area on account of
any laws and/or requirements of public authorities or requirements of insurance
bodies, or by reason of strikes, labor troubles, accidents, emergencies,
inability to obtain insurance at commercially reasonable rates (unless Tenant
agrees to pay, and actually pays, fifty (50%) percent of any additional
insurance premiums charged for such use of the Generator Area and/or the Fuel
Tank Area), or any other similar cause beyond Landlord’s reasonable control.
If Landlord temporarily suspends service of the Generator, the Fuel Tank and/or
any systems, services or utilities serving the Generator and/or the Fuel Tank
pursuant to, and in accordance with, this subparagraph, the period for which
such service is suspended shall be reasonable with respect to the particular
reason for such temporary suspension of service and, except as may otherwise be
expressly provided in the Lease with respect to any suspension of services
provided to Tenant, Landlord shall not be subject to any liability nor shall
Tenant be entitled to any compensation or abatement of the fixed rent or
additional rent under the Lease with respect to the temporary suspension of
service set forth in this subparagraph (iv) nor shall such revocation be deemed
a constructive or actual eviction from any portion of the Demised Premises.
Landlord agrees to use commercially reasonable efforts to resume the service of
the Generator, the Fuel Tank and/or the systems, services or utilities serving
the Generator and/or the Fuel Tank as soon as possible. Tenant is hereby
authorized to enter the Generator Area from

18






 



time to time (but not more often than four (4) times a year), upon prior
written notice to Landlord, to arrange for the visual inspection and
performance of preventative maintenance tests or emergency power tests (a/k/a
pull the plug test) by licensed technicians consistent with Tenant’s practices
as of the date of this Agreement, provided that no such inspection or test
shall be performed by Tenant without the presence of Landlord’s agent, employee
or other representative.


                    (v) If Landlord does temporarily suspend service of the Generator, the
Fuel Tank and/or any systems, services or utilities serving the Generator
and/or the Fuel Tank in accordance with subparagraph (iv) above, then Tenant
shall have the right, at its sole cost and expense and upon prior written
notice to Landlord, to install, operate, maintain and use a back-up generator
together with a fuel oil storage tank and related equipment (including a
transfer switch), mountings, supports and risers (herein collectively referred
to as the “Temporary Generator”) to receive not more than 1250 kw of power and
for use only during the period that Landlord temporarily suspends the service
of the Generator, the Fuel Tank and/or any systems, services or utilities
serving the Generator and/or Fuel Tank until the date that Landlord resumes
such service. The size and capacity of the Temporary Generator and the
location of same shall be designated by Landlord, in its sole discretion (which
space designated shall be feasible for such Temporary Generator installation)
or Tenant may use as a Temporary Generator an outdoor truck mounted portable
generator. Only Tenant and authorized licensed electrical engineers and
electrical contractors approved in advance by Landlord pursuant to Articles 3
and 45 of the Lease will be permitted to have access to the area in which the
Temporary Generator is installed. Landlord shall provide reasonably sufficient
space in the shafts of the Building, the approximate location of which shall be
reasonably acceptable to

19






 





Landlord and Tenant, to allow Tenant, at Tenant’s sole cost and expense,
to run electrical wiring from the Temporary Generator to the Demised Premises.
The installation of the Temporary Generator shall constitute a Tenant’s Change
and shall be performed at Tenant’s sole cost and expense in accordance with,
and subject to, the provisions of the Lease, including, without limitation,
Articles 3 and 45 thereof and notwithstanding anything contained in the Lease
to the contrary, Tenant’s right to install the Temporary Generator shall be
subject to the prior approval by Landlord of plans and specifications for the
Temporary Generator and the manner in which the Temporary Generator is
installed in each case in accordance with the terms of the Lease. All of the
applicable provisions of the Lease shall apply to the installation, use,
operation and maintenance of the Temporary Generator, including, without
limitation, provisions relating to compliance with laws, insurance, indemnity,
Hazardous Materials, repairs and maintenance.


                    (vi) Tenant shall install, maintain, operate, repair and use the Temporary
Generator, all at its sole cost and expense, only during the period provided in
subparagraph (v) above and in such a manner so as not to cause any unreasonable
interference to other tenants, occupants, licensees of the Building or to
Landlord or damage to or interference with the operation of the Building or any
Building systems.



                    (vii) Landlord may, at its option, at any time during the period in which
Tenant is entitled to maintain the Temporary Generator, after reasonable prior
notice to Tenant (except in the event of an emergency when no notice shall be
required) relocate the Temporary Generator to another area of the Building,
provided that such relocation does not cause the electrical service provided by
the Temporary Generator to be interrupted or impaired and such relocation shall
be performed at Landlord’s sole cost and expense.

20






 





                    (viii) Except to the extent caused by Landlord’s gross negligence or
willful misconduct, Landlord shall not have any obligations with respect to the
Temporary Generator or compliance with any laws or requirements of public
authorities relating thereto (including, without limitation, the obtaining of
any required permits or licenses, or the maintenance thereof), nor shall
Landlord be responsible for any damage that may be caused to the Temporary
Generator by any other tenant or occupant of the Building. Landlord makes no
representation with respect to the installation of a Temporary Generator or its
ability to provide back-up electrical service and Tenant agrees that, except to
the extent caused by Landlord’s gross negligence or willful misconduct,
Landlord shall not be liable to Tenant therefor. Any electrical service
required for Tenant’s use of the Temporary Generator shall be provided by
Landlord and paid for by Tenant.



                    (ix) During the period of Tenant’s use of the Temporary Generator, Tenant
shall (A), subject to the other provisions of the Lease, be solely responsible
for any damage caused to Landlord or any other entity, person or property as a
result of the installation, maintenance or use of the Temporary Generator, (B)
promptly pay any tax, license, permit or other fees or charges imposed pursuant
to any laws and/or requirements of public authorities relating to the
installation, maintenance or use of the Temporary Generator, (C) promptly
comply with all reasonable precautions and safeguards recommended by Landlord’s
insurance company and all federal, state or municipal governmental authorities
or agencies, and (D), at its sole cost and expense, (1) perform, or cause to be
performed, all necessary repairs or replacements to, or maintenance of, the
Temporary Generator, (2) promptly repair, or cause to be repaired, any and all
damage to the area of the Building in which the Temporary Generator is

21






 





installed and to any other part of the Building caused by or resulting
from the installation, maintenance, repair, operation or removal of the
Temporary Generator.


                    (x) Tenant acknowledges and agrees that the privileges granted Tenant
under subparagraph (v) shall merely constitute a license and shall not, now or
at any time after the installation of the Temporary Generator, be deemed to
grant Tenant a leasehold or other real property interest in the Building or any
portion thereof. The license granted to Tenant herein shall automatically
terminate and expire upon the date that is ten (10) business days after
Landlord provides notice to Tenant that it has resumed the service of the
Generator, the Fuel Tank and/or the systems, services or utilities serving the
Generator and/or the Fuel Tank or upon Tenant’s sooner election to terminate
said license by notice to Landlord and the termination of such license shall be
self-operative and no further instrument shall be required to effect such
termination and Tenant shall, at its sole cost and expense, remove the
Temporary Generator from the Building within five (5) days following the
termination of such license as set forth in the preceding sentence and repair
any damage to the Building resulting from such removal so as to place such area
of the Building, as closely as possible, in the same condition as existed
prior to the installation of the Temporary Generator. This obligation shall
survive the expiration or sooner termination of the Lease.



               (f) The amount of the Letter of Credit shall be reduced to $6,000,000.00.
Landlord agrees to execute an amendment to the Letter of Credit or otherwise
direct the Issuer of the Letter of Credit, as necessary, to facilitate the
reduction of the Letter of Credit.



          7. Landlord agrees to include in the Saint Vincents Lease an obligation on
the part of Saint Vincents, its successors and assigns to: (a) maintain the
electrical distribution

22






 




system existing as of the date hereof in the Surrender Space as it relates
to the DCK Service (as hereinafter defined) in its condition as of the date
hereof; (b) permit Tenant, its successors and assigns to have access from time
to time to the Surrender Space to gain access to the electrical riser (the “DCK
Riser”) in the Surrender Space that currently provides the 1200 amp high
voltage power (the “DCK Service”) to the rooftop air-conditioners (upon
reasonable advance notice from Tenant, its successors or assigns to Saint
Vincents, its successors or assigns), the use of which DCK Riser and DCK
Service are being retained exclusively by Tenant, and (c) permit Tenant, its
successors or assigns to tap into such DCK Riser from time to time during the
term of, and in accordance with, the terms of the Lease, as amended by this
Agreement, and Tenant agrees that any such access into the Surrender Space and
tap in into the DCK Riser shall be accomplished in a manner which minimizes any
interference with Saint Vincents’ use and occupancy of the Surrender Space and
does not reduce the usable space therein. Landlord shall have no obligations
or liabilities whatsoever with respect to Saint Vincents’ maintenance of the
electrical distribution system, failure to maintain the same, or failure to
provide access to the Surrender Space to gain access to the DCK Riser or
Tenant’s ability to tap into the DCK Riser as set forth in the preceding
sentence. Tenant acknowledges that neither Landlord, nor Landlord’s agent, has
made any representations or promises in regards to Saint Vincents’ compliance
with the obligations set forth in this Paragraph 7. Notwithstanding the
foregoing, Landlord agrees to provide in the Saint Vincents Lease that Tenant
is a third party beneficiary of the foregoing provisions set forth in this
Paragraph 7 with the right to commence a direct action against Saint Vincents
to compel performance with respect thereto.


          8. (a) In consideration of Landlord’s agreement to permit the termination
of the Lease with respect to the Surrender Space, Tenant shall pay to Landlord
the sum of

23






 


$13,682,723.00 (hereinafter referred to as the “Termination Fee”). Tenant
shall deliver to Landlord, together with its execution and delivery of this
Agreement, a check in the amount of the Termination Fee.


               (b) In further consideration of Landlord agreeing to enter into this
Agreement with Tenant, Tenant agrees to pay to Landlord the sum of $19,603.31,
representing the reimbursement to Landlord for Landlord’s actual legal fees
incurred in connection with the drafting, preparation, negotiation and
execution of this Agreement, plus all out-of-pocket third party costs and
expenses incurred by Landlord in connection therewith.



               (c) In the event the Surrender Date is later than the Effective Date and
provided that Tenant is not then in default of its obligation to pay fixed rent
and additional rent under the Lease, then the Termination Fee shall be adjusted
in accordance with the schedule annexed hereto as Exhibit D and Landlord agrees
to return the difference between the Termination Fee and the adjusted
Termination Fee within thirty (30) days of the later to occur of the Effective
Date and the Surrender Date.



          9.
  This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and all understandings and
agreements heretofore or simultaneously had between the parties are merged in
and are contained in this Agreement.



          10. Landlord and Tenant each represent and warrant to the other that it
has not relied upon any representation or warranty, express or implied, in
entering into this Agreement, except those which are set forth herein.



          11. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in that State.

24






 




          12. Landlord and Tenant covenant, warrant and represent that there was no
broker or finder instrumental in consummating this Agreement other than Newmark
& Company Real Estate, Inc. (hereinafter referred to as the “Broker”) and
Julien J. Studley, Inc. (hereinafter referred to as “Studley”) and that no
conversations or negotiations were had with any broker or finder other than the
Broker and Studley. Landlord and Tenant agree to indemnify and to hold each
other harmless from and against any claims or suits for a brokerage commission
or finder’s fee arising out of any conversations or negotiations had by Tenant
or Landlord with respect to the surrender of the Surrender Space and this
Agreement with any broker or finder other than the Broker and Studley.
Landlord agrees to pay the Broker and Studley a brokerage commission in
connection with the surrender of the Surrender Space and the terms of this
Agreement pursuant to separate agreements between Landlord and the Broker and
Landlord and Studley.



          13. All notices, consents and approvals required or permitted to be given
hereunder shall be (unless otherwise expressly provided herein) in writing and
shall be given by registered or certified mail, return receipt requested, or by
nationally recognized overnight courier service providing for receipted
delivery to the addresses set forth on the first page hereof, attention:
General Counsel unless the other party hereto shall be notified of another
address in writing. Copies of all notices to Tenant in connection with this
Agreement shall be sent, in the same manner to Loeb & Loeb LLP, 345 Park
Avenue. New York, New York 10154, attention: Scott I. Schneider, Esq. All
notices, consents, approvals payments and statements shall be deemed to have
been given three (3) days after same is mailed if mailed as aforesaid or upon
receipt or rejection if sent by overnight courier service as aforesaid.



          14. This Agreement may not be changed orally, and shall be binding upon
and inure to the benefit of the parties to it, their respective heirs,
successors and, as permitted, their

25






 




assigns. If any provision of this Agreement, or its application to any
situation, shall be invalid or unenforceable to any extent, the remainder of
this Agreement, or the application thereof to situations other than that as to
which it is invalid or unenforceable, shall not be affected thereby, and every
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.


          15. Tenant hereby covenants to pay (and comply with all laws in respect
of) any and all federal, state and local taxes which may be due and otherwise
payable with respect to the transactions contemplated by this Agreement (which
taxes shall include, but not be limited to, the New York City Real Property
Transfer Tax and the New York State Real Property Transfer Gains Tax) and to
prepare and file all instruments, applications and other documentation in
connection therewith. Tenant hereby indemnifies Landlord from any and all
liabilities, loss, obligations, damages, penalties, claims, costs and expenses,
including reasonable attorneys’ fees, which Landlord may incur in the event
Tenant fails to pay promptly when due any of such taxes or comply with any laws
in respect thereof.



          16. Notices to be provided by Tenant pursuant to this Agreement to
Landlord, Landlord attorneys, Saint Vincents, Saint Vincents’ attorney’s should
be sent to the respective parties at the following addresses:




	 	If to Landlord:




	 	450 Westside Partners L.L.C.

c/o Max Capital Management Corp.

230 Park Avenue

New York, New York 10169

Attention: Anthony Westreich

Telecopier No.: (212) 949-6413


If to Landlord’s attorneys:




	 	Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166



26






 



	 	Attention: Barry E. Shimkin, Esq.

Telecopier No.: (212) 801-6400


If to Saint Vincents:




	 	Saint Vincents Catholic Medical Centers of New York

130 West 12th Street

New York, New York 10001

Attention: Amy Grabino, Esq.

Telecopier No.: (212) 604-3285




	 	If Saint Vincents’ attorneys:




	 	Davis & Gilbert, LLP

1740 Broadway

New York, New York 10019

Attention: Gerald R. Uram, Esq.

Telecopier No.: (212) 974-7024



          17. Except as otherwise expressly provided in this Agreement, the Lease
shall remain and continue unmodified and in full force and effect in accordance
with its terms with respect to the Remaining Space.




	 	[signatures follow on next page]



27






 


     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	450 WESTSIDE PARTNERS, L.L.C.,	 	 
	 	 	a Delaware Limited Liability Company	 	 
	 	 	By:	 	Max/FW Management, L.L.C.
	 	 	 	 	By:	 	Max Capital Management Corp.,	 	 
	 	 	 	 	 	 	Manager	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	By:
	 	/s/ Anthony Westreich	 	 
	 	 	 	 	 	 	 	 	
	 	 
	 	 	 	 	 	 	 	 	Title: President	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	TENANT:	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	DOUBLECLICK, INC.	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Bruce Dalziel
	 	 	 	 	
 
	 	 	 	 	  Title: Chief Financial Officer 



28






 



Exhibit D



Termination Payment Schedule




	 	 	 	 	 
	EFFECTIVE DATE	 	TERMINATION FEE
	
	 	

	8/1/03 
	 	$	13,682,723.00	 
	9/1/03 
	 	$	13,649,181.00	 
	10/1/03
	 	$	13,615,889.00	 
	11/1/03
	 	$	13,582,845.00	 
	12/1/03
	 	$	13,550,047.00	 
	1/1/04 
	 	$	13,517,492.00	 
	2/1/04 
	 	$	13,485,180.00	 
	3/1/04 
	 	$	13,453,109.00	 
	4/1/04 
	 	$	13,421,277.00	 
	5/1/04 
	 	$	13,389,681.00	 
	6/1/04 
	 	$	13,358,321.00	 
	7/1/04 
	 	$	13,327,194.00	 
	8/1/04 
	 	$	13,296,298.00	 
	9/1/04 
	 	$	13,265,633.00	 
	10/1/04
	 	$	13,235,196.00	 
	11/1/04
	 	$	13,204,986.00	 
	12/1/04
	 	$	13,175,000.00	 
	1/1/05 
	 	$	13,145,238.00	 




29