FOURTH AMENDMENT OF LEASE



 



Exhibit 10.4


FOURTH AMENDMENT OF LEASE

AND SURRENDER AGREEMENT



     THIS FOURTH AMENDMENT OF LEASE AND SURRENDER AGREEMENT (hereinafter
referred to as the “Agreement”) made as of the 16th day of July, 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, as further amended by Second Amendment to Lease dated as of
December 28, 1999 (hereinafter referred to as the “Second Amendment”), and as
further amended by Third Amendment of Lease and Partial Surrender Agreement
dated as of May 16, 2003 (hereinafter referred to as the “Third 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 elevator #F-4 (hereinafter collectively referred to as the “14th
Premises”), and the fifteenth (15th) floor, loading bay #22 and freight
elevator #F-6 (although the Lease referred to same as #F-7) (hereinafter
collectively referred to as the “15th Premises”) in the building located at 450
West 33rd Street, New York,

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New York (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”. Pursuant to the Third Amendment,
Tenant is obligated to surrender possession of a portion of the Original
Premises consisting of the 12th Premises on or before July 31, 2003 in
accordance with the terms of the Third Amendment. For purposes of this
Agreement, but subject to the provisions of the Third Amendment, the 14th
Premises, the 15th Premises and the 16th Premises are hereinafter collectively
referred to as the “Existing Premises.” Tenant desires to surrender to
Landlord the Existing Premises (other than the 12th Premises in the event the
Third Amendment is terminated) 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 (i) October 31, 2003 (hereinafter
referred to as the “First Effective Date”), with respect only to a portion of
the Existing Premises consisting of the entire 15th Premises (hereinafter
referred to as the “First Surrender Space”), (ii) October 31, 2003 (hereinafter
referred to as the “Second Effective Date”) with respect only to a portion of
the Existing Premises consisting of the entire 16th Premises (hereinafter
referred to as the “Second Surrender Space”) and (iii) November 30, 2003
(hereinafter referred to as the “Third Effective Date”), with respect to the
balance of the Existing Premises, but subject to the provisions of the Third
Amendment, consisting of the entire 14th Premises (hereinafter referred to as
the “Third Surrender Space”) (the First Surrender Space, the Second Surrender
Space and the Third Surrender Space are hereinafter sometimes referred to
individually or collectively as the “Surrender Space” and the First Effective
Date, the Second Effective Date and the Third Effective Date are sometimes
hereinafter referred to individually or collectively as the “Effective Date”),
the Lease, except as otherwise expressly provided below, and the leasehold
estate created thereby with respect to the First Surrender Space, the Second
Surrender Space and the

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Third Surrender Space, as the case may be, shall be deemed terminated and
expired as if the First Effective Date, the Second Effective Date and the Third
Effective Date, as applicable, were set forth in the Lease as the expiration
dates thereof with respect only to the First Surrender Space, the Second
Surrender Space and the Third Surrender Space, respectively, in accordance
with, and subject to, the provisions of this Agreement. Nothing contained
herein shall be deemed to affect Tenant’s obligations with respect to the
surrender of the 12th Premises in accordance with the terms of the Third
Amendment.


               (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 each of the First Effective Date, the Second
Effective Date and the Third Effective Date, such phrases shall be deemed to
exclude each of the First Surrender Space, the Second Surrender Space and the
Third Surrender Space, respectively. To the extent that the Third Amendment is
terminated in accordance with its terms, wherever in the Lease reference is
made to the “demised premises”, “leased premises” or a similar phrase from and
after the date of termination of the Third Amendment, such phrases shall be
deemed to be only the 12th Premises.



          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 with all of the terms, covenants and conditions of the
Lease on Tenant’s part to observe, perform and comply with respect to the First
Surrender Space, the Second Surrender Space and the Third Surrender Space
through and including the later of the First Effective Date, the Second
Effective Date and the Third Effective Date, respectively and the date(s)
(hereinafter referred to as the “First Surrender Date” with respect to the
First Surrender Space, the “Second Surrender Date” with respect to the Second
Surrender Space and the “Third Surrender Date” with
respect to the

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Third Surrender Space (the First Surrender Date, the Second Surrender Date
and the Third Surrender Date are sometimes hereinafter collectively referred to
as the “Surrender Date”)) on which Tenant quits and surrenders each of the
First Surrender Space, the Second Surrender Space and the Third Surrender
Space, as applicable, 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 each of the First Surrender Space, the Second Surrender Space
and the Third Surrender Space, as the case may be, which accrue or arise or
relate to matters occurring on or before the later of the First Effective Date
and the First Surrender Date with respect to the First Surrender Space, the
Second Effective Date and the Second Surrender Date with respect to the Second
Surrender Space and the Third Effective Date and the Third Surrender Date with
respect to the Third Surrender Space shall survive the First Effective Date,
the Second Effective Date and the Third Effective Date, as applicable, and the
First Surrender Date, the Second Surrender Date and the Third Surrender Date,
as applicable, including, without limitation, Tenant’s obligation under the
Lease with respect to the First Surrender Space, the Second Surrender Space and
the Third Surrender Space, as applicable to pay Operating Expenses (Landlord
hereby acknowledges and agrees that all fixed rent due under the Lease has been
paid by Tenant through June 30, 2003 and all additional rent (other than real
estate taxes and operating expenses not billed, but as to real estate taxes,
only with respect to the “true-up” of real estate taxes for the period from
January 1, 2003 through June 30, 2003, and as to operating expenses, only with
respect to the “true-up” of operating expenses for the 2002 calendar year)
under the Lease have been paid by Tenant through June 30, 2003, and, except as
otherwise expressly provided in this Agreement, that there are no other
outstanding amounts owing to Landlord as of the date of this Agreement) and,
and the curing of all violations, if any, and the closing out of all open
applications and delinquency


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notices, if any, (except as otherwise provided in Paragraph 2(b) below)
relating to Tenant’s use and occupancy of the Second Surrender Space and the
Third Surrender Space (other than with respect to elevator #F-4 and the Unit C
Premises), as applicable, and Tenant’s obligation under the Lease with respect
to the First Surrender Space, the Second Surrender Space and the Third
Surrender Space, as applicable, (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 First
Surrender Space, the Second Surrender Space and the Third Surrender Space, as
applicable, or for which Landlord may become, or is, liable, that are imposed
by, or incurred or paid to, or asserted by, third parties and for which Tenant
would otherwise be liable for under the Lease, including, without limitation,
Damages resulting from (i) injuries to persons occurring at the First Surrender
Space, the Second Surrender Space and the Third Surrender Space, as the case
may be, on or prior to the later of the First Effective Date, the Second
Effective Date and the Third Effective Date, respectively, and the First
Surrender Date, the Second Surrender Date and the Third Surrender Date,
respectively; (ii) Tenant’s failure to have paid for any work performed at, or
materials or supplies installed at or furnished to, the First Surrender Space,
the Second Surrender Space and/or the Third Surrender Space, as the case may
be, on or prior to the later of the First Effective Date, the Second Effective
Date and the Third Effective Date, respectively, and the First Surrender Date,
the Second Surrender Date and the Third Surrender Date, respectively, at the
request of, or for the benefit of, Tenant or any person or entity claiming by,
through or under Tenant; and (iii) Landlord’s inability to
obtain an

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amendment to the certificate of occupancy for the Building because of any
act or omission by Tenant (other than with respect to the First Surrender Space
and the Unit C Premises), to the extent Tenant would be liable under the Lease
for such Damages. Notwithstanding the foregoing, Tenant shall remain obligated
to pay the fixed rent under the Lease with respect to (i) the First Surrender
Space through the date which is eleven (11) months after the First Surrender
Date, (ii) the Second Surrender Space through the date which is eleven (11)
months after the Second Surrender Date and (ii) the Third Surrender Space
through the date which is eleven (11) months after the Third Surrender Date,
which shall be paid from the proceeds of the L/C as provided in subparagraph
5(a)(iv).


               (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, (w) with respect to
the First Surrender Space and the Unit C Premises, or (x) if the violation was
not caused by the act or omission of Tenant or any person claiming by, through
or under Tenant, or (y) if the application was not opened by Tenant, or any
person claiming by, through or under 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 (or any substitute vendor other than
any substitute vendor employed by or on behalf of Tenant, its employees, agents
or

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contractors) and for any further work to be performed by Fire Quench (or
any substitute vendor other than any substitute vendor employed by or on behalf
of Tenant, its employees, agents or contractors) from and after the date of
this Agreement solely with respect to the Surrender Space or elsewhere in the
Building so as, except as otherwise expressly set forth herein, to make the
Surrender Space (other than the 15th Premises and the Unit C Premises)
compliant with all applicable laws, rules, regulations and codes of any and all
governmental and/or quasi-governmental agencies or entities having jurisdiction
with respect thereto. Tenant represents and warrants to Landlord that as of
the date hereof (i) no 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 portion(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. Notwithstanding the foregoing or anything
contained in this Agreement to the contrary, Landlord acknowledges and agrees
that Tenant shall have no obligation to cure violation #38138045M issued with
respect to freight elevator #F-8 for failure to maintain.


               (c) Nothing contained in this Agreement shall be deemed to extend the
applicable Effective Date or otherwise permit Tenant to hold-over its occupancy
or possession of any portion of either Surrender Space beyond October 31, 2003
with respect to the First Surrender Space and the Second Surrender Space and
November 30, 2003 with respect to the

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Third Surrender Space.


          3. (a) (i) Subject to the other provisions of this Agreement, on or before
the First Effective Date, the Second Effective Date and the Third Effective
Date, as the case may be, Tenant shall quit and surrender the First Surrender
Space, the Second Surrender Space and the Third Surrender Space, respectively,
broom clean, in good order and condition, ordinary wear and tear excepted, free
of all tenants, subtenants and other occupants and Tenant shall, as applicable
to each relevant portion of the Surrender Space, (i) substantially perform and
complete the items of work described on Exhibit C 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 lobbies on the fourteenth (14th), fifteenth (15th) and
sixteenth (16th) floors 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 (other than the 15th Premises, the Unit C Premises and elevator #F-4)
(but, in any event, only to the extent the 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 of the 16th
Premises, the perimeter heating unit located in the south east corner
mechanical room of the 14th Premises, the four (4) 100 ton air-conditioning,
ventilation and heating units on each of the 14th Premises and the 16th
Premises, freight elevators #F-6 and #F-8, and the equipment located in each of
the kitchen(s), the fitness center and the athletic area(s), (iv) repair any
damage (other than mere cosmetic, immaterial damage) to the Surrender Space
resulting from Tenant’s removal of its equipment therefrom, removal of any of
its trade equipment, trade fixtures and personal property therefrom
and any

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signage as set forth in item (ii) above, and (v) in all other respects,
except as otherwise set forth in this Paragraph 3(a) and elsewhere in this
Agreement, surrender each of the First Surrender Space, the Second Surrender
Space and the Third Surrender Space to Landlord in accordance with the
applicable provisions of the Lease, as if the First Effective Date, the Second
Effective Date and the Third Effective Date, as applicable, were the expiration
dates thereof with respect to the First Surrender Space, the Second Surrender
Space and the Third Surrender Space, respectively, 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 First Effective Date and the
First Surrender Date with respect to the First Surrender Space, the later to
occur of the Second Effective Date and the Second Surrender Date with respect
to the Second Surrender Space and the later to occur of the Third Effective
Date and the Third Surrender Date with respect to the Third Surrender Space,
Tenant shall not remove the furniture (hereinafter referred to as the “FF&E”)
existing in each Surrender Space as indicated on Exhibit B-1 annexed hereto and
made a part hereof, as applicable, as of the date hereof, title to such FF&E is
being transferred and conveyed to Associated Press by Tenant pursuant to that
certain agreement dated as of the date hereof (hereinafter referred to as the
“FF&E Agreement”) between Associated Press and Tenant, a copy of which is
annexed hereto as Exhibit B-2, and shall leave the FF&E in each Surrender Space
in the condition same are in as of the date hereof, reasonable wear and tear
excepted.


                    (ii) Upon execution of this Agreement by Landlord and Tenant, Tenant shall
pay to Associated Press (as hereinafter defined), on behalf of Landlord, the
sum of $8,374,840.39 (hereinafter referred to as the “Associated Press
Construction Reimbursement”) on account of the Associated Press’ work to the
Surrender Space (hereinafter referred to as the “AP Work”) in accordance with
the terms of the Associated Press Lease,

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including architect’s fees, engineering fees, space planning fees and
filing fees and expenses and other typical “soft costs” in respect of the AP
Work. Additionally, together with its execution and delivery of this
Agreement, Tenant shall pay to Landlord the sum of $38,703.14, representing the
costs to be incurred by Landlord to replace the louvers that Tenant was
otherwise obligated to remove pursuant to item (c)(i) of the First Surrender
Space and Second Surrender Space Work as set forth on Exhibit A and such
payment shall be in lieu of Tenant performing such work.


                    (iii) With respect to the Unit C Premises (as such term is defined in the
Second Amendment), after Tenant has completed the removal and/or abatement of
Hazardous Materials (as such term is defined in the Second Amendment), Tenant
shall send to Landlord a copy of receipted invoices therefor accompanied by
four (4) original ACP-5 certificates and other supporting environmental reports
required by all laws, rules and regulations of any governmental agency,
Building Department (as such term is defined in the Second Amendment), and/or
any other entity having jurisdiction with respect thereto evidencing that such
Hazardous Materials have been removed and/or abated. Tenant further agrees to
provide to Landlord upon completion of the removal and/or abatement of
Hazardous Materials for the 15th Premises four (4) original ACP-5 certificates
and other supporting environmental reports required by all laws, rules and
regulations of any governmental agency, Building Department and/or any other
entity having jurisdiction with respect thereto evidencing that such Hazardous
Materials have been removed and/or abated. Landlord shall cooperate with
Tenant, at Tenant’s expense, in obtaining such evidence by promptly executing
any documents in connection therewith required to be executed by Landlord. In
the event the costs to remove or abate Hazardous Materials in the Unit C
Premises is less than $32,614.00, Tenant, within thirty (30)

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days after delivery of notice by Landlord shall pay to Landlord the
difference between $32,614.00, and the actual cost to Tenant for such removal
or abatement.


                    (iv) (A) The obligations of Tenant with respect to the surrender of the
Surrender Space (including, without limitation, the substantial performance of
Tenant’s Work and Tenant’s obligations set forth in subparagraphs (ii) and
(iii) above) as set forth in this Paragraph 3(a), (B) the covenants, warranties
and representations set forth in Paragraph 4(a), (C) the obligations contained
in the last sentence of Paragraph 7, and (D) the obligations contained in
Paragraph 9 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 against Landlord, or for which Landlord may become, or is,
liable with respect to the FF&E for any period prior to the (i) later to occur
of the First Effective Date and the First Surrender Date with respect to the
First Surrender Space, (ii) later to occur of the Second Effective Date and the
Second Surrender Date with respect to the Second Surrender Space and (iii)
later to occur of the Third Effective Date and the Third Surrender Date with
respect to the Third Surrender Space, except for any Damages resulting from
Landlord’s gross negligence or willful misconduct. No part of the Termination
Fee (as defined in Paragraph 10 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 (x) the First Effective Date and the
First Surrender Date with respect to the First Surrender Space, (y) the Second
Effective Date and the Second Surrender Date with respect to the Second
Surrender Space and (z) the Third Effective Date and the Third Surrender Date
with respect to the Third Surrender Space any of the items constituting the
FF&E have been

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removed from the First Surrender Space, the Second Surrender Space or the
Third Surrender Space, as applicable, 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 First Surrender Space,
the Second Surrender Space or the Third Surrender Space, as applicable, and
such obligation(s) shall survive the later to occur of (x) the First Effective
Date and the First Surrender Date with respect to the First Surrender Space,
(y) the Second Effective Date and the Second Surrender Date with respect to the
Second Surrender Space and (z) the Third Effective Date and the Third Surrender
Date with respect to the Third Surrender Space, as applicable. During the
period commencing on the date hereof through the later to occur of (i) the
First Effective Date and the First Surrender Date with respect to the First
Surrender Space, (ii) the Second Effective Date and the Second Surrender Date
with respect to the Second Surrender Space and (iii) the Third Effective Date
and the Third Surrender Date with respect to the Third Surrender Space, Tenant
shall use the FF&E and the Systems as applicable to the First Surrender Space,
the Second Surrender Space or the Third Surrender Space, as the case may be,
solely for the conduct of its business and in a careful and proper manner. On
or before the First Surrender Date as to the First Surrender Space, the Second
Surrender Date as to the Second Surrender Space and the Third Surrender Date as
to the Third Surrender Space, Tenant shall deliver to Associated Press 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 (i) the First
Effective Date or the First Surrender Date, if later, with respect to the First
Surrender Space, (ii) the Second Effective Date or the Second Surrender Date,
if later, with respect to the Second Surrender Space and (iii) the Third
Effective Date or the Third Surrender Date, if later, with respect to the Third
Surrender

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Space, Landlord and Associated Press shall have the right to enter upon
the applicable 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 First 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.


               (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 in the First Surrender Space, the Second
Surrender Space and/or the Third Surrender Space, then the respective Effective
Date and the respective dates for any penalties set forth in subparagraph
5(a)(ii) hereof 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, provided that Tenant has given Landlord written notice that by
reason of Landlord’s unreasonable delay in responding to Tenant’s submission of
any plans required to be submitted by Tenant, Tenant was delayed in performing
Tenant’s Work to the First Surrender Space, the Second Surrender Space and/or
the Third Surrender Space, as the case may be. 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, Associated

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Press and Associated Press’ attorneys a notice (hereinafter referred to as
the “Completion Notice”) specifying the date(s) (hereinafter referred to as the
“Substantial Completion Date(s)”) on which Tenant’s Work with respect to the
First Surrender Space, the Second Surrender Space and the Third Surrender
Space, as applicable, is substantially complete and the other Delivery
Conditions applicable to such portions of each Surrender Space are satisfied
(it being agreed that the Completion Notice may be sent by telecopier (with
written confirmation of delivery) to Landlord, Landlord’s attorneys, Associated
Press and Associated Press’ attorneys at the addresses and telecopier numbers
provided in Paragraph 15 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 Associated Press’ use of the office space portions of the First
Surrender Space, the Second Surrender Space and the Third Surrender Space, as
applicable, and does not result in Landlord being liable to Associated Press
for any Delay Payment (as hereinafter defined) as set forth in the Associated
Press Lease (in the form executed as of the date hereof). The respective
Substantial Completion Date set forth in the respective Completion Notice shall
be conclusive and binding upon Landlord as to the First Surrender Space, the
Second Surrender Space and the Third Surrender Space, as applicable, unless,
solely by giving Tenant notice (hereinafter referred to as the “Dispute
Notice”) within five (5) business days after the later of (i) the date on which
Tenant gives a Completion Notice to Landlord for each of the First Surrender
Space, the Second Surrender Space and the Third Surrender Space, as applicable,
and (ii) the Substantial Completion Dates set forth in such Completion Notices,
Landlord disputes the fact that on or before the Substantial Completion Date(s)
set forth in the Completion Notice(s) the Substantial Completion
Date(s)

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actually occurred as to the First Surrender Space, the Second Surrender
Space and the Third Surrender Space, as applicable, 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 and Associated Press that if
Landlord does not send the Dispute Notice within such five (5) business day
period, the Substantial Completion Date set forth in the respective 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 any
of the Substantial Completion Date(s), for all purposes under this Agreement,
the Substantial Completion Date(s) shall be deemed to be the date(s) set forth
in the Completion Notice(s). If Landlord, Tenant and Associated Press cannot
resolve such dispute within ten (10) days after Landlord sends the Dispute
Notice to Tenant, such dispute shall be resolved among Landlord, Tenant and
Associated Press by arbitration in accordance with the provisions contained in
Article 34 of the Associated Press Lease, a copy of such Article is annexed
hereto as Exhibit E and made a part hereof. If the dispute (whether by
agreement or arbitration) is resolved in Landlord’s favor, then the Substantial
Completion Date(s) shall be as determined by such agreement or arbitration and
any payments based on the occurrence of the Substantial Completion Date(s) made
by Tenant under this Agreement, including any Delay Payments, shall be adjusted
accordingly, and any amounts due Landlord shall promptly be paid by Tenant to
Landlord. If such dispute shall be resolved by arbitration, and it is
determined that on or before the Substantial Completion Date(s) set forth in
the Completion Notice(s), the Substantial Completion Date(s) did not actually
occur, then the arbitration shall also determine

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whether the Substantial Completion Date(s) nevertheless occurred after the
date set forth in the Completion Notice(s). If the arbitration determines that
the Substantial Completion Date in question did, in fact occur, then the date
thereof so determined shall be the Substantial Completion Date as to the First
Surrender Space, the Second Surrender Space or the Third Surrender Space, as
the case may be, 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.


               (e) If on or before the Outside Date (as such term is hereinafter
defined), Tenant’s Work with respect only to the 15th Premises and/or the Unit
C Premises is not substantially complete and Tenant is not then diligently
prosecuting such Tenant’s Work to substantial completion, then Tenant
acknowledges and agrees that Associated Press shall have the right to complete
the items of Tenant’s Work with respect only to the 15th Premises and/or the
Unit C Premises that had not been completed prior to the Outside Date, by
Landlord notifying Tenant, at least five (5) days prior to Associated Press
commencing such Tenant’s Work, of Associated Press’ intention to so complete
such Tenant’s Work (such notice being herein referred to as a “Self-Help
Notice”). If Landlord so notifies Tenant and thereafter Associated Press
performs such Tenant’s Work, Tenant shall pay to Landlord (hereinafter referred
to as the “Tenant’s Work Reimbursement Cost”), to the extent reasonably paid by
Associated Press, the out-of-pocket costs of performing such Tenant’s Work
within fifteen (15) days after Landlord’s demand therefor, which demand
(hereinafter referred to as the “Tenant’s




16










 



Work Reimbursement Notice”) shall describe, in reasonable detail, the
items which comprise the Tenant’s Work Reimbursement Cost, and shall be
accompanied by receipted bills, invoices and such other information or
documents reasonably required by Tenant to verify the Tenant’s Work
Reimbursement Cost.


               (f) Within the fifteen (15) day period commencing on the later of (i) the
date on which Landlord delivers to Tenant the Tenant’s Work Reimbursement
Notice, and (ii) the date on which Landlord delivers to Tenant the bills,
invoices, receipts and other information or documentation reasonably required
by Tenant as hereinbefore provided, Tenant may dispute the correctness of the
Tenant’s Work Reimbursement Cost set forth therein, specifying (to the extent
known to Tenant) the particular respects in which such Tenant’s Work
Reimbursement Notice is incorrect. If Landlord and Tenant fail to settle such
dispute within thirty (30) days after Tenant notifies Landlord of such dispute,
such dispute shall be determined by arbitration in accordance with subsection
(I)(2) of Article Fourth of the Second Amendment. Pending the resolution of
such dispute by agreement between Landlord and Tenant or by arbitration as
aforesaid, Tenant shall not be obligated to pay to Landlord any portion of the
Tenant’s Work Reimbursement Cost that Tenant has reasonably and in good faith
disputed. If as a result of such arbitration or agreement it is determined
that the portion of the Tenant’s Work Reimbursement Cost paid by Tenant is less
than the amount owed by Tenant, then the underpayment (plus the interest
thereon described in subsection (e) above), shall be paid to Landlord within
twenty (20) days after the arbitration decision is rendered and received by
Landlord or the dispute is resolved by agreement. If as a result of such
arbitration or such agreement it is determined that the portion of the Tenant’s
Work Reimbursement Cost paid by Tenant is more than the amount owed by Tenant,
then the overpayment (including interest



17






 





thereon as described in subparagraph (e) above) to the extent paid by
Tenant shall be refunded by Landlord to Tenant within twenty (20) days after
the arbitration decision is rendered and received by Landlord or resolved by
such agreement.


               (g) If all of Tenant’s Work with respect to the 15th Premises and the Unit
C Premises is not substantially complete by the Outside Date and Landlord gives
Tenant the Self-Help Notice, the applicable Delay Payment(s) shall continue in
accordance with, and subject to, subparagraph 5(a)(ii) and shall end as to the
15th Premises and/or the Unit C Premises, as the case may be, on the date that
Associated Press substantially completes Tenant’s Work with respect to such
area of the Surrender Space, except that regardless of whether the item(s) of
Tenant’s Work in question with respect to the 15th Premises and the Unit C
Premises have been substantially completed by Associated Press by the date that
is sixty (60) days after the date on which Landlord has given the Self-Help
Notice to Tenant, all Delay Payments with respect to the 15th Premises and the
Unit C Premises which have not theretofore ended shall end on the date that is
sixty (60) days after the date on which Landlord has given the Self-Help Notice
to Tenant.



               (h) For the purposes of this Agreement, the term “Outside Date” means
February 1, 2004, except that for each day after June 18, 2003 that this
Agreement has not been fully executed and delivered (including the delivery of
all payments required by Tenant hereunder) to Landlord and Tenant the Outside
Date shall be extended by one (1) day for each day after June 18, 2003 that
this Agreement has not been fully executed and delivered, along with the
delivery of the requisite payments required by Tenant hereunder.



          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



18






 





be, pledged, hypothecated, encumbered, assigned, conveyed or otherwise
transferred other than in accordance with Section 56N of the Lease and other
than a certain license with respect to a portion of the Third Surrender Space
pursuant to a License Agreement (hereinafter referred to as the “License
Agreement”) with Saint Vincents Catholic Medical Centers of New York
(hereinafter referred to as “Saint Vincents”), (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 and
other than in accordance with the License Agreement, (iii) as of each Surrender
Date with respect to the applicable Surrender Space, such 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, or who or which may
claim, any rights of possession, occupancy or use of the applicable 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-6 is, and will be
on the First Surrender Date, in working order and condition, (vi) freight
elevator #F-8 is, and will be on the Second Surrender Date, in working order
and condition, (vii) loading bay # 22 will, on the First Surrender Date, be in
broom clean condition, (viii) loading bay # 21 will, on the Second Surrender
Date, be in broom clean condition, (ix) elevator #F-4 will, on the Third
Surrender Date, be in its present as-is condition as of the date of this
Agreement, (x) the kitchen(s) in the Surrender Space is/are currently being
used, or has/have been used in the past, for food cooking and preparation; the
fitness center in the Surrender Space is currently being used, or has been used
in the past, for the use of fitness and exercise equipment and workout rooms;
the athletic area in the Surrender Space is currently being used, or has been


19






 


used in the past, as a basketball court, volleyball court and/or for other
athletic facilities; the terrace area on the Surrender Space is currently being
used, or has been used in the past, for the placement of, and sitting on,
chairs for eating, reading, lounging, meetings and social gatherings; and the
mezzanine on the 16th Premises is currently being used for office purposes,
(xi) the kitchen(s) in the Surrender Space and the equipment contained therein
is/are, and will be on the First Surrender Date for the First Surrender Space,
the Second Surrender Date for the Second Surrender Space and the Third
Surrender Date with respect to the Third Surrender Space, in compliance with
all applicable laws and/or requirements of public authorities that are
applicable to the use of the kitchen(s) and such equipment as a kitchen for
food cooking and preparation, (xii) Tenant has not cut the slab between the
15th Premises and the 16th Premises as provided in Section (c)(3) of Article
12th of the Second Amendment, (xiii) Tenant has no actual knowledge (without
independent inquiry) of any odor problem with respect to the fitness center,
the kitchen or the athletic area as of the date of this Agreement, and (xiv)
Tenant has no actual knowledge (without independent inquiry) of any water
leakage problem that has not been corrected with respect to the floors of the
fitness center as of the date of this Agreement.


               (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 (x) the First Surrender Date as to the First Surrender Space, (y) the
Second Surrender Date as to the Second Surrender Space and (z) the Third
Surrender Date as



20






 





to the Third Surrender Space. On or prior to (x) the First Surrender Date
as to the First Surrender Space, (y) the Second Surrender Date as to the Second
Surrender Space and (z) the Third Surrender Date as to the Third Surrender
Space, Tenant shall deliver to Landlord fully executed copies of such
termination letters or agreements or other evidence reasonably acceptable to
Landlord that the applicable portion of the Surrender Space and/or such Tenants
improvements are no longer subject to any such sublease, sub-sublease or other
agreement.


               (c) (i) For purposes of this Agreement, a “Landlord Violation” shall mean
a violation of applicable law and/or requirement of public authority, the
compliance with which is the express obligation of Landlord that (A) has been
noted or issued on, before or after the date of this Agreement, (B) was not
caused by the act or omission of any tenant of the Building, and (C)(i)
actually delays or prevents Associated Press from obtaining any alteration
permits required by the applicable governmental authority, and such delay or
prevention actually delays or prevents (x) the performance of any change that
Associated Press is permitted to make in accordance with, and subject to, the
applicable provisions of the Associated Press Lease, or (y) the lawful
occupancy of any portion of the Surrender Space (in accordance with, and
subject to, the applicable provisions of the Associated Press Lease) upon
completion of any AP Work that Associated Press is permitted to make in
accordance with, and subject to, the applicable provisions of the Associated
Press Lease (it being understood that the imposition by any governmental
authority of conditions requiring the cure of any Landlord’s Violation as a
condition precedent to obtaining any such alteration permits which shall so
delay Associated Press from obtaining any alteration permits shall be deemed
such a delay or prevention of Associated Press from obtaining the alteration
permit(s) in question), or (D) actually delays or prevents Associated Press
from obtaining any use permits required by the applicable



21






 





governmental authority, and such delay or prevention actually delays or
prevents the lawful occupancy of the applicable portion of the Surrender Space
for the corresponding use in accordance with, and subject to, the applicable
provisions of the Associated Press Lease.


                    (ii) Notwithstanding anything contained in this Agreement to the contrary,
if the delay or prevention is of the performance of any AP Work to the
Surrender Space (other than the athletic area and the terrace area) that
Associated Press is permitted or required to make in accordance with, and
subject to, the applicable provisions of the Associated Press Lease, or of the
lawful occupancy of any portion of the Surrender Space (other than the athletic
area or the terrace area) (in accordance with, and subject to, the applicable
provisions of the Associated Press Lease) upon completion of the AP Work that
Associated Press is permitted or required to make in accordance with, and
subject to, the applicable provisions of the Associated Press Lease, and
provided such Landlord’s Violation resulted from any act or omission of Tenant,
then Tenant shall pay Landlord an amount equal to the Violation Credit Amount
(as such term is herein defined). For the purposes of this Paragraph, a
“Violation Credit Amount” means the number of rentable square feet of the
Surrender Space (other than the athletic area or the terrace area or any other
area not included as “rentable square feet” under the Associated Press Lease)
that Associated Press is, or will be, delayed or prevented from initially
lawfully occupying as a result of a delay or prevention in the performance of
any AP Work that Associated Press is permitted or required to make in
accordance with, and subject to, the applicable provisions of the Associated
Press Lease, multiplied by $.08, for each day of the period after the tenth
(10th) day after Landlord’s receipt of the Violations Notice that Associated
Press is delayed or prevented from performing the Associated Press Work in
question, or in so lawfully occupying the portions of the Surrender Space in
question, in either case, solely as a



22






 





result of a Landlord Violation caused by the act or omission of Tenant.
Notwithstanding anything contained in Paragraph 5(c) of this Agreement to the
contrary, Tenant shall have no obligation to pay any Violation Credit Amount
with respect to any portion of the Surrender Space that Associated Press is
actually performing the AP Work or is actually occupying for business purposes.


          5. (a) (i) In the event that all the Delivery Conditions are not satisfied
with respect to each of the First Surrender Space, the Second Surrender Space
and the Third Surrender Space to Landlord in the manner set forth in Paragraphs
3 and 4 above on or before the applicable Effective Date, the parties hereby
agree that Tenant’s occupancy of such Surrender Space(s) after the expiration
of the applicable Effective Date shall be under a holdover occupancy
arrangement commencing on the first day after such applicable 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 (A) First Surrender Date with respect to the First Surrender Space,
(B) Second Surrender Date with respect to the Second Surrender Space and (C)
Third Surrender Date with respect to the Third Surrender Space (without regard
to Article 50 thereof).



                    (ii) Landlord and Tenant acknowledge that Associated Press, Inc.
(hereinafter referred to as “Associated Press”) has entered into a lease
(hereinafter referred to as the “Associated Press Lease”) with Landlord
covering the Surrender Space. Pursuant to the terms of the Associated Press
Lease, (A) Landlord is obligated to deliver possession of the First Surrender
Space to Associated Press on November 1, 2003, the Second Surrender Space to
Associated Press on November 1, 2003 and the Third Surrender Space to
Associated Press on December 1, 2003, and (B) if Landlord fails to deliver
possession of (1) each of the First



23






 





Surrender Space and the Second Surrender Space to Associated Press by
December 1, 2003, Associated Press is entitled to a credit of fixed rent in the
amount (x) (hereinafter referred to as the “First Surrender Space Delay
Payment”) of $11,967.34 multiplied by the number of days during the period
(hereinafter referred to as the “First Surrender Space Abatement Period”)
commencing on December 1, 2003 and ending on the date next preceding the date
on which Tenant surrenders possession of the First Surrender Space in the
manner required by this Agreement, except that for each day after January 1,
2004 that Tenant has failed to surrender possession of the First Surrender
Space, such $11,967.34 shall be increased to $15,956.45, and, in addition to
Tenant’s obligation to continue to pay the fixed rent as set forth in
subparagraph 2(a) of this Agreement, Tenant shall be obligated to pay Landlord
the First Surrender Space Delay Payment, and (y) (hereinafter referred to as
the “Second Surrender Space Delay Payment”) of $8,403.99 multiplied by the
number of days during the period (hereinafter referred to as the “Second
Surrender Space Abatement Period”) commencing on December 1, 2003 and ending on
the date next preceding the date on which Tenant surrenders possession of the
Second Surrender Space in the manner required by this Agreement, except that
for each day after January 1, 2004 that Tenant has failed to surrender
possession of the Second Surrender Space, such $8,403.99 shall be increased to
$11,205.31. The First Surrender Space Delay Payment and the First Surrender
Space Abatement Period, and the Second Surrender Space Delay Payment and the
Second Surrender Space Abatement Period shall all end on January 31, 2004.
Notwithstanding the foregoing, if by January 31, 2004 Tenant has failed to
surrender possession of the First Surrender Space, the Second Surrender Space
or the Third Surrender Space in the condition required by this Agreement, then,
in the case where Tenant has failed to surrender possession of only the First
Surrender Space, the Second Surrender Space or the Third Surrender


24






 


Space in the condition required by this Agreement, then Tenant shall be
obligated to pay Landlord a Delay Payment in an amount equal to $43,118.21 per
day for each day from and after February 1, 2004 that Tenant has failed to
surrender possession of only the First Surrender Space, the Second Surrender
Space or the Third Surrender Space; and in the case where Tenant has failed to
surrender possession of only the First Surrender Space and the Second Surrender
Space in the condition required by this Agreement, then Tenant shall be
obligated to pay Landlord a Delay Payment in an amount equal to $59,074.66 per
day for each day from and after February 1, 2004 that Tenant has failed to
surrender possession of only the First Surrender Space and the Second Surrender
Space; in the case where Tenant has failed to surrender possession of only the
First Surrender Space and the Third Surrender Space in the condition required
by this Agreement, then Tenant shall be obligated to pay Landlord a Delay
Payment in the amount of $59,074.66 per day for each day from and after
February 1, 2004 that Tenant has failed to surrender possession of the First
Surrender Space and the Third Surrender Space; in the case where Tenant has
failed to surrender possession of only the Second Surrender Space and the Third
Surrender Space in the manner required by this Agreement, then Tenant shall be
obligated to pay Landlord a Delay Payment in an amount equal to $54,323.25 per
day for each day from and after February 1, 2004 that Tenant has failed to
surrender possession of only the Second Surrender Space and the Third Surrender
Space; and in the case where Tenant has failed to surrender possession of the
First Surrender Space, the Second Surrender Space and the Third Surrender Space
in the condition required by this Agreement, then Tenant shall be obligated to
pay Landlord a Delay Payment in an amount equal to $70,279.97 per day for each
day from and after February 1, 2004 that Tenant has failed to surrender
possession of the First Surrender Space, the Second Surrender Space and the
Third Surrender Space. The First Surrender Space


25






 


Delay Payment, the Second Surrender Space Delay Payment and the Third
Surrender Space Delay Payment are sometimes herein collectively referred to as
the “Delay Payment”.


                    (iii) Notwithstanding the foregoing, (A) the First Surrender Space
Abatement Period shall be reduced by the number of days that the First
Surrender Space shall not be delivered to Landlord in the manner required by
this Agreement as a result of any of the events or conditions described in
Articles 9 and 10 of the Lease or by the damage, destruction or condemnation of
all or a portion of the building to which DoubleClick is moving from the
Building, (B) the Second Surrender Space Abatement Period shall be reduced by
the number of days that the Second Surrender Space shall not be delivered to
Landlord in the manner required by this Agreement as a result of any of the
events or conditions described in Articles 9 and 10 of the Lease or by the
damage, destruction or condemnation of all or a portion of the building to
which DoubleClick is moving from the Building and (C) the Third Surrender Space
Abatement Period shall be reduced by the number of days that the Third
Surrender Space shall not be delivered to Landlord in the manner required by
this Agreement as a result of any of the events or conditions described in
Article 9 and 10 of the Lease or by damage or destruction or condemnation of
all or a portion of the building to which Tenant is moving from the Building,
and any other abatement periods described in subparagraph 5(a)(ii) shall be
reduced by the number of days that the First Surrender Space, the Second
Surrender Space and the Third Surrender Space has not been delivered by Tenant
in the condition required by this Agreement, as a result of any of the events
or conditions described in Article 9 and 10 of the Lease or by damage,
destruction or condemnation of all or a portion of the building to which Tenant
is moving from the Building. In addition to Tenant’s obligation to continue to
pay the fixed rent as set forth in subparagraph 2(a) of this Agreement, Tenant
shall be obligated to pay Landlord the



26






 





Third Surrender Space Delay Payment, but Tenant shall only be liable for
so much of the First Surrender Space Delay Payment, the Second Surrender Space
Delay Payment and/or the Third Surrender Space Delay Payment as is caused by
Tenant’s failure to so deliver the First Surrender Space, the Second Surrender
Space and/or the Third 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”).


                    (iv) 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,
which, pursuant to the terms of the Third Amendment was to be reduced to
$6,000,000.00, and that according to the terms of the L/C, the final expiration
date thereof is January 26, 2010. Landlord and Tenant acknowledge and agree
that effective as of the date of this Agreement, subparagraph 6(f) of the Third
Amendment is deleted in its entirety and accordingly, Tenant shall no longer be
entitled to reduce the amount of the Letter of Credit pursuant to the terms
thereof. 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 12th Premises to Landlord in
accordance with the terms of the Third Amendment and if Tenant has not
delivered each Surrender Space to Landlord with the Delivery Conditions
satisfied and Tenant’s Work substantially complete on or before the respective
dates set forth in subparagraph (ii) above, and receive the First Surrender
Space Delay Payment, the Second Surrender Space Delay Payment and/or the Third
Surrender Space Delay Payment, as the case may be. 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



27






 





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. Within thirty (30) days of the satisfaction of
Tenant’s obligations hereunder, Landlord agrees to return to Tenant the L/C, as
same has been modified in accordance with Landlord’s right to draw down on such
L/C, together with any signed instrument required by the issuer of the L/C to
evidence the early termination thereof. Further, if Landlord is then holding
cash proceeds of the L/C in any such reduced amount, such cash proceeds shall
be returned to Tenant within thirty (30) days of the satisfaction of Tenant’s
obligations hereunder. Once Tenant satisfies its obligations set forth in this
Agreement, other than its obligation to pay fixed rent as set forth in the last
sentence of Paragraph 2(a) above, Landlord acknowledges and agrees that the L/C
shall reduce to the amount of $7,936,878.00 and Landlord shall draw down on the
L/C on a monthly basis to pay such fixed rent then due, and from after the date
Landlord commences to draw down on the proceeds of such L/C pursuant to
Paragraph 2(a) above and this subparagraph 5(a)(iv), Tenant shall have no
obligation to restore the L/C to the sum of $7,936,878.00.


               (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 (i) October 31, 2003
with respect to the First Surrender Space, (ii) October 31, 2003 with respect
to the Second Surrender Space and (iii)



28






 





December 31, 2003 with respect to the Third Surrender Space, and the
preceding sentence shall be deemed to be an “agreement expressly providing
otherwise” within the meaning of Section 232-c of the Real Property Law of the
State of New York.


               (c) All damages to Landlord 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.



          6. If the Third Amendment is terminated, then all of Tenant’s right, title
and interest in and to the 12th Premises shall be deemed reinstated retroactive
to the effective date set forth in the Third Amendment, Tenant shall remain in
occupancy of the 12th Premises (or have the right to reoccupy the 12th
Premises) pursuant to the terms of the Lease applicable to the 12th Premises
and the Lease shall be deemed further amended or certain of the terms thereof
restated, as the case may be, as follows:



               (a) Sections (A)(2), (A)(3), (B), (C), and (D)(1) of Article Third of the
Second Amendment, Sections (A), (B)(4), (B)(5), (B)(6), (B)(7), (B)(8), (C),
(G), (H), (I)(3), (J), and (K) of Article Fourth of the Second Amendment,
Articles Seventh, Ninth, Twelfth and Fourteenth of the Second Amendment, and
Sections 52(K) and 52(I) of the Lease shall be deemed deleted from the Lease.



               (b) The term “Tenant’s Proportionate Tax Share” as set forth in subsection
42(A)(iii) of the Lease with respect to the 12th Premises shall be 7.126%.



               (c) The term “Tenant’s Proportionate Operating Share” as set forth in
subsection 43(A)(6) of the Lease with respect to the Remaining Space shall be
7.126%.



               (d) Section 56(J)(1) of the Lease is hereby deleted from the Lease in its
entirety and the following shall be inserted in lieu thereof:



29






 






		
	 	              (1) Landlord shall supply condenser water free of charge
during “regular hours” (7:00 a.m. – 6:00 p.m.) of “business days”
(which term is used herein to mean all days except Saturdays,
Sundays and days (hereinafter referred to as “holidays”) observed
by the Federal or New York State government as legal holidays or
the building service employees’ union holidays) throughout the
year and at the rate of $50.00 per hour during “overtime hours”
(6:00 p.m. – 7:00 a.m.) for up to 400 tons to serve the 12th
Premises. Landlord shall also make available to Tenant during the
term of the lease supplemental condenser water to serve the 12th
Premises for up to thirty (30) tons (i.e., two (2) 15 ton units)
during regular hours and overtime hours free of charge on business
days and for all hours on holidays. With respect to any condenser
water required to supply any air-conditioning which Tenant may be
permitted to install in excess of 830 tons, Landlord shall make
available to Tenant, and Tenant shall pay for, as additional rent,
such additional condenser water at the rate of $.072 per ton per
hour during regular hours and overtime (or after) hours of
business days and for all hours on holidays.



               (e) The proportionate share set forth in subsection 56(J)(2) of the Lease
with respect to the Remaining Space shall be 7.126%.



               (f) The amount of the L/C shall be reduced to $5,000,000.00. Landlord
agrees to execute an amendment to the L/C or otherwise direct the Issuer of the
L/C, as necessary, to facilitate the reduction of the Letter of Credit.



          7. Landlord and Tenant agree that the dedicated passenger elevator cab
(hereinafter referred to as the “Dedicated Elevator”) in the high rise elevator
bank servicing the 12th, 14th 15th and 16th floors and the lobby of the
Building for the exclusive use of Tenant and its visitors and invitees pursuant
to Section (a) of Article Twelfth of the Second Amendment was relinquished by
Tenant prior to the date of this Agreement and Tenant represents to Landlord
that no work with respect to the Dedicated Elevator has been performed. To the
extent the sign afforded to Tenant in connection with the Dedicated Elevator
pursuant to Section (b) of Article Twelfth of the Second Amendment has not been
removed as of the date of this Agreement, then, within thirty (30) days of the
Third Surrender Date, Tenant shall remove such sign and repair any damage to
the lobby wall of the Building resulting from such removal.



30






 





          8. Tenant represents and warrants to Landlord that Tenant has not cut the
slab between the 15th Premises and the 16th floor of the Building, as provided
in Section (c)(3) of Article Twelfth of the Second Amendment.



          9. Prior to the Third Surrender Date, Tenant shall, to the extent
previously installed by or on behalf of Tenant and not removed as of the date
of this Agreement, remove the Lobby Name Sign, the Roof Signs and the Outdoor
Name Signs (as set forth in Article Ninth of the Second Amendment) and repair
any damage to any portion(s) of the Building resulting from such removal and
Tenant hereby relinquishes all rights to install any such Lobby Name Sign, Roof
Sign and/or Outdoor Name Sign regardless of whether the Third Amendment is
terminated.



          10. (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 $9,835,757.00 (hereinafter referred to as the “Termination Fee”).
Tenant shall deliver to Greenberg Traurig, LLP, together with its execution and
delivery of this Agreement, by wire transfer the Termination Fee to Landlord in
accordance with the wiring instructions set forth on Exhibit C annexed hereto.



               (b) In further consideration of Landlord agreeing to enter into this
Agreement with Tenant, Tenant agrees to pay to Landlord the sum of $48,000.00,
representing the reimbursement to Landlord for Landlord’s actual legal fees
incurred in connection with the drafting, preparation, negotiation and
execution of this Agreement and any and all other documents in connection with
the same, which includes 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 with
respect to any Surrender Space and provided that Tenant is not then in default
beyond the giving



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of notice (if required under the Lease and this Agreement) and the
expiration of all applicable cure periods of its obligation to pay any 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
Third Effective Date and the Third Surrender Date.


          11. 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.



          12. 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.



          13. 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.



          14. Landlord and Tenant covenant, warrant and represent that there was no
broker or finder instrumental in consummating this Agreement other than Cushman
& Wakefield, Inc., (hereinafter referred to as “Cushman”), Newmark Company Real
Estate, Inc. (“Newmark”), Colliers ABR, Inc. (“Colliers”) and Jones Lang
LaSalle Americas, Inc. (“JLL”) (Cushman, Newmark, Colliers and JLL are
hereinafter collectively referred to as the “Broker”) and that no conversations
or negotiations were had with any broker or finder other than the Broker.
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



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this Agreement with any broker or finder other than the Broker. Tenant
agrees to pay Cushman the sum of $1,063,254.61 as a brokerage commission in
connection with the Associated Press Lease.


          15. (a) 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, and if
to Tenant, 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.



               (b) Notices to be provided by Tenant pursuant to this Agreement to
Landlord, Landlord’s attorneys, Associated Press, and Associated Press’
attorneys 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



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	 	If to Landlord’s attorneys:




	 	Greenberg Traurig, LLP

200 Park Avenue

New York, New York 10166

Attention: Barry E. Shimkin, Esq.

Telecopier No.: (212) 801-6400




	 	If to Associated Press:




	 	Associated Press, Inc.

50 Rockefeller Center

New York, New York 10020

Attention: Director – Administrative Services

Telecopier No.: (212) 621-7028




	 	and




	 	Associated Press, Inc.

50 Rockefeller Center

New York, New York 10020

Attention: David Tomlin, Esq.

Telecopier No.: (212) 621-5456




	 	If to Associated Press’ attorneys:




	 	Davis & Gilbert, LLP

1740 Broadway

New York, New York 10019

Attention: Gerald R. Uram, Esq.

Telecopier No.: (212) 974-7024



          16. 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 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.



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          17. 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.



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



[signatures follow on next page]



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     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



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EXHIBIT D

Termination Payment Schedule



     If any portion of the Surrender Space is not delivered in accordance with
the scheduled delivery dates, then the Termination Fee shall be
adjusted/recalculated on a per diem basis in accordance with the “Timing
Sensitivity Matrix” (the “Matrix”) that follows; provided, however, that in
calculating such Termination Fee on the Matrix, the work allowance amount of
$4,923,434.00 (that was applicable to the 15th Floor under the Lease) shall be
deducted from each dollar amount on the Matrix. By way of example, if the
Third Surrender Space was delivered by December 1, 2003, and the First
Surrender Space was delivered by November 1, 2003, but the Second Surrender
Space was delivered on February 1, 2004, the adjusted Termination Fee would be
$9,639,632.00 (i.e., $14,563,066.00 - $4,923,434.00).



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