Exhibit 10.14


	
   

  



 


BP 599 LEXINGTON AVENUE LLC,


 


Landlord,


 


TO


 


RAMIUS CAPITAL GROUP, LLC,


 


Tenant


 


 


LEASE


 


	
   

  



 


Premises at:


 


599 Lexington Avenue


	
  New York, New York

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1 BASIC LEASE
  PROVISIONS AND ENUMERATION OF EXHIBITS

  	
  1

  
	
   

  	
   

  
	
  1.1

  	
  INTRODUCTION

  	
  1

  
	
  1.2

  	
  BASIC
  DATA

  	
  1

  
	
  1.3

  	
  ENUMERATION
  OF EXHIBITS

  	
  3

  
	
  1.4

  	
  OTHER DEFINITIONS

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 PREMISES

  	
  7

  
	
   

  	
   

  
	
  2.1

  	
  DEMISE — PREMISES

  	
  7

  
	
  2.2

  	
  APPURTENANT
  RIGHTS AND RESERVATIONS

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 LEASE TERM

  	
  8

  
	
   

  	
   

  
	
  3.1

  	
  COMMENCEMENT DATE

  	
  8

  
	
  3.2

  	
  EXPIRATION DATE

  	
  9

  
	
  3.3

  	
  COMMENCEMENT DATE AGREEMENT

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 COMPLETION OF
  THE PREMISES

  	
  9

  
	
   

  	
   

  
	
  4.1

  	
  PERFORMANCE
  OF WORK

  	
  9

  
	
  4.2

  	
  QUALITY
  AND PERFORMANCE OF WORK

  	
  10

  
	
  4.3

  	
  TENANT
  ENTRY

  	
  10

  
	
  4.4

  	
  LANDLORD’S
  CONTRIBUTIONS

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 ANNUAL FIXED
  RENT AND FIRST MONTH’S RENT

  	
  11

  
	
   

  	
   

  
	
  5.1

  	
  FIXED
  RENT

  	
  11

  
	
  5.2

  	
  PAYMENT
  OF FIRST MONTH’S RENT

  	
  11

  
	
  5.3

  	
  ADDITIONAL
  RENT

  	
  11

  
	
  5.4

  	
  LATE
  PAYMENT

  	
  12

  
	
  5.5

  	
  RENT
  CONCESSION

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 ESCALATION

  	
  13

  
	
   

  	
   

  
	
  6.1

  	
  TAX
  ESCALATION

  	
  13

  
	
  6.2

  	
  OPERATING
  EXPENSE ESCALATION

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 REPAIRS AND
  SERVICES

  	
  24

  
	
   

  	
   

  
	
  7.1

  	
  LANDLORD’S
  OBLIGATION TO REPAIR

  	
  24

  
	
  7.2

  	
  TENANT’S
  REPAIRS AND MAINTENANCE

  	
  25

  
	
  7.3

  	
  SERVICES

  	
  26

  
	
  7.4

  	
  LANDLORD’S
  FAILURE TO REPAIR OF PROVIDE SERVICES

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 ALTERATIONS

  	
  26

  
	
   

  	
   

  
	
  8.1

  	
  TENANT’S
  RIGHTS

  	
  26

  
	
  8.2

  	
  CONFORMITY
  WITH LAW

  	
  28

  
	
  8.3

  	
  PERFORMANCE
  OF WORK, GOVERNMENTAL APPROVALS, INSURANCE

  	
  29

  
	
  8.4

  	
  LIENS

  	
  30

  
	
  8.5

  	
  VIOLATIONS; DISRUPTION

  	
  30

  
	
  8.6

  	
  TENANT’S PROPERTY

  	
  31

  
	
  8.7

  	
  SURVIVAL

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 LAWS,
  ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES

  	
  32

  
	
   

  	
   

  
	
  9.1

  	
  CERTIFICATE
  OF OCCUPANCY

  	
  32

  
	
  9.2

  	
  TENANT’S
  OBLIGATIONS

  	
  32

  
	
  9.3

  	
  TENANT’S
  RIGHT TO CONTEST

  	
  33

  



 


i

















 


	
  9.4

  	
  WINDOW
  CLEANING

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 USE

  	
  34

  
	
   

  	
   

  
	
  10.1

  	
  OFFICE
  USE

  	
  34

  
	
  10.2

  	
  ADDITIONAL
  PERMITTED USES

  	
  34

  
	
  10.3

  	
  RESTRICTIONS

  	
  34

  
	
  10.4

  	
  PROHIBITED
  USES

  	
  35

  
	
  10.5

  	
  LICENSES
  AND PERMITS

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 INDEMNITY
  AND INSURANCE

  	
  36

  
	
   

  	
   

  
	
  11.1

  	
  TENANT’S
  INDEMNITY

  	
  36

  
	
  11.2

  	
  COMMERCIAL
  GENERAL LIABILITY INSURANCE

  	
  37

  
	
  11.3

  	
  OTHER
  INSURANCE

  	
  37

  
	
  11.4

  	
  CERTIFICATES
  OF INSURANCE

  	
  38

  
	
  11.5

  	
  NO VIOLATION
  OF BUILDING POLICIES

  	
  38

  
	
  11.6

  	
  TENANT
  TO PAY PREMIUM INCREASES

  	
  38

  
	
  11.7

  	
  WAIVER
  OF SUBROGATION

  	
  38

  
	
  11.8

  	
  LANDLORD’S
  INDEMNITY

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 FIRE,
  CASUALTY OR TAKING

  	
  40

  
	
   

  	
   

  
	
  12.1

  	
  RIGHT
  TO TERMINATE LEASE

  	
  40

  
	
  12.2

  	
  RESTORATION
  OF THE PREMISES

  	
  41

  
	
  12.3

  	
  PAYMENT
  OF RENT FOLLOWING CASUALTY

  	
  41

  
	
  12.4

  	
  UNINSURED
  CASUALTY

  	
  42

  
	
  12.5

  	
  LANDLORD
  NOT TO INSURE ALTERATIONS OR TENANT’S PROPERTY

  	
  42

  
	
  12.6

  	
  EMINENT
  DOMAIN — COMPLETE OR SUBSTANTIAL TAKING

  	
  42

  
	
  12.7

  	
  EMINENT
  DOMAIN — PARTIAL TAKING

  	
  43

  
	
  12.8

  	
  LANDLORD
  TO RECEIVE ENTIRE AWARD

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 ASSIGNMENT,
  SUBLETTING, MORTGAGING

  	
  44

  
	
   

  	
   

  
	
  13.1

  	
  LANDLORD’S
  CONSENT REQUIRED

  	
  44

  
	
  13.2

  	
  OFFER
  NOTICE

  	
  46

  
	
  13.3

  	
  LANDLORD’S
  RIGHT TO UNDERLET

  	
  47

  
	
  13.4

  	
  LANDLORD’S
  RIGHT TO TERMINATE

  	
  49

  
	
  13.5

  	
  ADDITIONAL
  CONDITIONS

  	
  50

  
	
  13.6

  	
  LANDLORD
  MAY COLLECT RENT FROM SUBTENANT OR ASSIGNEE

  	
  53

  
	
  13.7

  	
  ASSUMPTION
  OF LEASE

  	
  53

  
	
  13.8

  	
  TENANT’S
  INDEMNIFICATION

  	
  53

  
	
  13.9

  	
  TIME
  LIMITATION; AMENDMENTS

  	
  53

  
	
  13.10

  	
  ADDITIONAL
  RENT DUE UPON ASSIGNMENT OR SUBLETTING

  	
  54

  
	
  13.11

  	
  LIABILITY
  NOT DISCHARGED

  	
  55

  
	
  13.12

  	
  EFFECT
  OF LISTING OF NAMES

  	
  55

  
	
  13.13

  	
  SPECIAL
  RIGHTS FOR ELIGIBLE SUBTENANTS

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 NO LIABILITY
  OR REPRESENTATIONS BY LANDLORD; FORCE MAJEURE

  	
  57

  
	
   

  	
   

  
	
  14.1

  	
  NO
  LIABILITY

  	
  57

  
	
  14.2

  	
  NO
  REPRESENTATIONS BY LANDLORD

  	
  59

  
	
  14.3

  	
  FORCE
  MAJEURE

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 ENTRY, RIGHT
  TO CHANGE PUBLIC PORTIONS OF THE BUILDING

  	
  59

  
	
   

  	
   

  
	
  15.1

  	
  LANDLORD’S
  RIGHT OF ENTRY

  	
  59

  
	
  15.2

  	
  LANDLORD’S
  RIGHT TO CHANGE ENTRIES, ETC.

  	
  61

  
	
  15.3

  	
  EXCAVATION

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16 ELECTRICITY

  	
  61

  
	
   

  	
   

  
	
  16.1

  	
  TENANT
  TO PURCHASE ELECTRICITY

  	
  61

  



 


ii

















 


	
  16.2

  	
  LANDLORD
  NOT LIABLE

  	
  63

  
	
  16.3

  	
  TENANT
  NOT TO OVERLOAD CIRCUITS

  	
  64

  
	
  16.4

  	
  TENANT
  NOT TO EXCEED CAPACITY; LIGHT BULBS

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17
  SUBORDINATION; ASSIGNMENT OF RENTS

  	
  64

  
	
   

  	
   

  
	
  17.1

  	
  SUBORDINATION
  TO MORTGAGES, ETC.

  	
  64

  
	
  17.2

  	
  RIGHTS
  OF MORTGAGEES, ETC.

  	
  65

  
	
  17.3

  	
  MODIFICATIONS
  REQUIRED BY LENDERS

  	
  65

  
	
  17.4

  	
  ASSIGNMENT
  OF LEASE TO MORTGAGEE, ETC.

  	
  65

  
	
  17.5

  	
  SUBORDINATION
  OF MORTGAGE, ETC.

  	
  66

  
	
  17.6

  	
  NON-DISTURBANCE
  AGREEMENT

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE 18 CERTAIN
  ADDITIONAL TENANT COVENANTS

  	
  66

  
	
   

  	
   

  
	
  ARTICLE 19 TENANT’S
  DEFAULT; LANDLORD’S REMEDIES

  	
  68

  
	
   

  	
   

  
	
  19.1

  	
  TENANT’S
  DEFAULT

  	
  68

  
	
  19.2

  	
  TERMINATION

  	
  70

  
	
  19.3

  	
  RE-ENTRY;
  CONTINUED LIABILITY; RELETTING

  	
  72

  
	
  19.4

  	
  LIQUIDATED
  DAMAGES

  	
  74

  
	
  19.5

  	
  RIGHTS
  IN THE EVENT OF TENANT’S BANKRUPTCY

  	
  74

  
	
  19.6

  	
  WAIVER
  OF REDEMPTION, ETC.

  	
  74

  
	
  19.7

  	
  ADDITIONAL
  RIGHTS OF LANDLORD

  	
  75

  
	
  19.8

  	
  LANDLORD’S
  DEFAULT

  	
  76

  
	
  19.9

  	
  FEES

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20
  MISCELLANEOUS

  	
  76

  
	
   

  	
   

  
	
  20.1

  	
  WAIVER

  	
  76

  
	
  20.2

  	
  CONSENTS;
  ARBITRATION

  	
  77

  
	
  20.3

  	
  QUIET
  ENJOYMENT

  	
  78

  
	
  20.4

  	
  SURRENDER

  	
  78

  
	
  20.5

  	
  BROKER

  	
  79

  
	
  20.6

  	
  INVALIDITY
  OF PARTICULAR PROVISIONS

  	
  79

  
	
  20.7

  	
  PROVISIONS
  BINDING, ETC.

  	
  79

  
	
  20.8

  	
  NO
  RECORDING

  	
  80

  
	
  20.9

  	
  NOTICES

  	
  80

  
	
  20.10

  	
  WHEN
  LEASE BECOMES BINDING

  	
  80

  
	
  20.11

  	
  HEADINGS

  	
  81

  
	
  20.12

  	
  SUSPENSION
  OF SERVICES

  	
  81

  
	
  20.13

  	
  RULES
  AND REGULATIONS

  	
  81

  
	
  20.14

  	
  DEVELOPMENT
  RIGHTS

  	
  82

  
	
  20.15

  	
  ESTOPPEL
  CERTIFICATES

  	
  82

  
	
  20.16

  	
  SELF-HELP

  	
  83

  
	
  20.17

  	
  HOLDING
  OVER

  	
  83

  
	
  20.18

  	
  RENT
  CONTROL

  	
  84

  
	
  20.19

  	
  COUNTERPARTS

  	
  84

  
	
  20.20

  	
  ENTIRE
  AGREEMENT

  	
  84

  
	
  20.21

  	
  NO
  PARTNERSHIP

  	
  84

  
	
  20.22

  	
  SECURITY
  DEPOSIT

  	
  84

  
	
  20.23

  	
  FINANCIAL
  STATEMENTS

  	
  87

  
	
  20.24

  	
  GOVERNING
  LAW, ETC.

  	
  87

  
	
  20.25

  	
  NOTICE
  OF SUBWAY IMPROVEMENT AGREEMENTS

  	
  88

  
	
  20.26

  	
  CONFIDENTIALITY
  OF LEASE

  	
  88

  
	
  20.27

  	
  PATRIOT
  ACT AND EXECUTIVE ORDER 13224

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE 21 OPTIONS TO
  EXTEND

  	
  89

  
	
   

  	
   

  
	
  21.1

  	
  TENANT’S
  OPTIONS

  	
  89

  



 


iii

















 


	
  21.2

  	
  EXTENDED
  TERM RENT

  	
  90

  
	
  21.3

  	
  EXTENDED
  TERM RENT DETERMINATION

  	
  90

  
	
  21.4

  	
  RETROACTIVE
  ADJUSTMENTS

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE 22 AUTOMATIC
  EXPANSION

  	
  93

  
	
   

  	
   

  
	
  22.1

  	
  ADDITION
  OF SPACE

  	
  93

  
	
  22.2

  	
  CONDITION
  AND LANDLORD’S AUTOMATIC EXPANSION SPACE CONTRIBUTION

  	
  94

  
	
  22.3

  	
  RENT
  FOR AUTOMATIC EXPANSION SPACE

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23 RIGHT TO
  LEASE ADDITIONAL SPACE

  	
  95

  
	
   

  	
   

  
	
  23.1

  	
  TENANT’S
  RIGHTS TO ADDITIONAL SPACE

  	
  95

  
	
  23.2

  	
  NON-AVAILABILITY
  OF SPACE

  	
  96

  
	
  23.3

  	
  RENT
  FOR OFFERED SPACE

  	
  96

  
	
   

  	
   

  	
   

  
	
  ARTICLE 24 23RD FLOOR
  OPTIONS TO EXPAND

  	
  97

  
	
   

  	
   

  
	
  24.1

  	
  TENANT’S
  RIGHTS

  	
  97

  
	
  24.2

  	
  CONDITION
  OF THE 23RD FLOOR EXPANSION SPACE

  	
  99

  
	
  24.3

  	
  RENT
  FOR 23RD FLOOR EXPANSION SPACE

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE 25 18TH FLOOR
  OPTION TO EXPAND

  	
  100

  
	
   

  	
   

  
	
  25.1

  	
  TENANT’S
  18TH FLOOR RIGHTS

  	
  100

  
	
  25.2

  	
  CONDITION
  OF 18TH FLOOR EXPANSION SPACE

  	
  101

  
	
  25.3

  	
  RENT
  FOR 18TH FLOOR EXPANSION SPACE

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE 26 ROOF RIGHTS

  	
  102

  



 


iv

















 


THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in the
building (the “Building”) known as, and with an address at, 599 Lexington
Avenue, New York, New York 10022.


 


The parties to this instrument hereby agree with each
other as follows:


 


ARTICLE 1


 


BASIC LEASE PROVISIONS
AND ENUMERATION OF EXHIBITS


 


1.1                                 INTRODUCTION.  The following sets forth the basic data and
identifying Exhibits, elsewhere hereinafter referred to in this Lease, and,
where appropriate, constitutes definitions of the terms hereinafter listed.


 


1.2                                 BASIC DATA.


 


	
  Date:

  	
  June 22, 2007

  
	
   

  	
   

  
	
  Landlord:

  	
  BP 599 LEXINGTON
  AVENUE LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
  Present Mailing Address
  of Landlord:

  	
  c/o Boston
  Properties Limited Partnership

  599 Lexington
  Avenue, Suite 1800

  New York, New York
  10022

  
	
   

  	
  Attn.:

  	
  Robert E.
  Selsam,

  
	
   

  	
   

  	
  Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Matthew W. Mayer

  
	
   

  	
  Senior Vice
  President - Regional General Counsel

  
	
   

  	
  Boston
  Properties Limited Partnership

  
	
   

  	
  599 Lexington
  Avenue, Suite 1800

  
	
   

  	
  New York, New
  York 10022

  
	
   

  	
   

  
	
  Landlord’s Construction
  Representative:

  	
  Thomas Hill

  Senior Vice
  President

  Boston
  Properties Limited Partnership

  599 Lexington
  Avenue, Suite 1800

  New York, New York
  10022

  
	
   

  	
   

  
	
  Tenant:

  	
  RAMIUS CAPITAL
  GROUP, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  



 


1

















 


	
  Present Mailing Address
  of Tenant: 

  	
  Chrysler Center

  666 Third Avenue

  New York, New
  York 10017

  Attn.: Marran H.
  Ogilvie - General Counsel

  
	
   

  	
   

  
	
  Tenant’s Construction Representative:

  	
  [To be designated]

  
	
   

  	
   

  
	
  Commencement
  Date:

  	
  As defined in
  Article 3 hereof.

  
	
   

  	
   

  
	
  Rent
  Commencement Date:

  	
  As defined in
  Article 5 hereof.

  
	
   

  	
   

  
	
  Expiration Date:

  	
  August 31,
  2022.

  
	
   

  	
   

  
	
  Lease Term:

  	
  As defined in
  Article 3 hereof.

  
	
   

  	
   

  
	
  Lease Year:

  	
  A period of
  twelve (12) consecutive calendar months, commencing on the first day of January in
  each year, except that the first Lease Year of the Lease Term shall be the
  period commencing on the Commencement Date and ending on the succeeding
  December 31, and the last Lease Year of the Lease Term shall be the
  period commencing on January l of the calendar year in which the Lease
  Term ends and ending with the Expiration Date.

  
	
   

  	
   

  
	
  Building:

  	
  The building and
  other improvements erected on the Land known as and by the street number 599
  Lexington Avenue, New York, New York.

  
	
   

  	
   

  
	
  Premises:

  	
  Initially, the
  19th Floor Premises, the 20th Floor Premises and the 21st Floor Premises as
  described and depicted in Exhibit B hereto.

  
	
   

  	
   

  
	
  Annual Fixed
  Rent:

  	
  As set forth on
  Exhibit H hereto and made a part hereof.

  
	
   

  	
   

  
	
  Additional Rent:

  	
  All charges and
  other sums payable by Tenant as set forth in this Lease, other than and in
  addition to Annual Fixed Rent.

  
	
   

  	
   

  
	
  Tenant’s Share:

  	
  Initially, 6.81%
  with respect to Operating Expenses and 6.71% with respect to Taxes, each
  being equal to a fraction, the numerator of which is the rentable area of the
  Premises and the denominator of which is the rentable area of the Building
  for purposes of Operating Expenses or for

  



 


2

















 


	
   

  	
  purposes of
  Taxes, as appropriate, all as determined in accordance with Exhibit B-1
  attached hereto.

  
	
   

  	
   

  
	
  Security
  Deposit:

  	
  An amount equal
  to twelve (12) months of Annual Fixed Rent calculated at the initial rate of
  Annual Fixed Rent applicable to each portion of the then current Premises,
  i.e., initially, Six Million Seven Hundred Forty-Five Thousand Five Hundred
  Sixty-Nine and 00/100 Dollars ($6,745,569.00), subject to increase and
  reduction as otherwise provided in this Lease.

  
	
   

  	
   

  
	
  Broker:

  	
  CB Richard
  Ellis, Inc.

  



 


1.3                                 ENUMERATION OF EXHIBITS.  The following Exhibits are a part of this
Lease, are incorporated herein by reference, attached hereto, and are to be
treated as a part of this Lease for all purposes.  Undertakings contained in such Exhibits are
agreements on the part of Landlord and Tenant, as the case may be, to perform
the obligations stated therein.


 


	
  Exhibit A

  	
  —

  	
   

  	
  Description of
  the Land.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  —

  	
   

  	
  Floor Plans of
  Premises.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
  —

  	
   

  	
  Rentable Area.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
   

  	
  Work Letter.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  —

  	
   

  	
  Landlord’s
  Services.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
   

  	
  Rules and
  Regulations.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  —

  	
   

  	
  Form of
  Letter of Credit.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  —

  	
   

  	
  Form of
  Commencement Date Agreement.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  —

  	
   

  	
  Schedule of
  Annual Fixed Rent.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  —

  	
   

  	
  Form of
  Landlord Non-Disturbance Agreement.

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit J

  	
  —

  	
   

  	
  Form of
  Mortgagee Subordination, Nondisturbance and Attornment Agreement.

  



 


3

















 


1.4                                 OTHER DEFINITIONS.  The following additional terms, wherever used
in this Lease (unless the context requires otherwise), shall have the
respective meanings specified in the Sections of this Lease set forth below
after such Terms:


 


	
  “18th Floor Expansion Date”

  	
  Section 25.1

  
	
  “18th Floor Expansion Option”

  	
  Section 25.1

  
	
  “18th Floor Expansion Space”

  	
  Section 25.1

  
	
  “19th Floor Commencement Date”

  	
  Section 3.1

  
	
  “19th Floor Premises”

  	
  Exhibit B

  
	
  “19th Floor Rent Commencement Date”

  	
  Section 5.5

  
	
  “19th Floor Rent Concession Period”

  	
  Section 5.5

  
	
  “20th and 21st Floor Commencement Date”

  	
  Section 3.1

  
	
  “20th Floor Rent Commencement Date”

  	
  Section 5.5

  
	
  “20th Floor Rent Concession Period”

  	
  Section 5.5

  
	
  “21st Floor Rent Commencement Date”

  	
  Section 5.5

  
	
  “21st Floor Rent Concession Period”

  	
  Section 5.5

  
	
  “20th Floor Premises”

  	
  Exhibit B

  
	
  “21st Floor Premises”

  	
  Exhibit B

  
	
  “23rd Floor Expansion Date”

  	
  Section 24.1

  
	
  “23rd Floor Expansion Options”

  	
  Section 24.1

  
	
  “23rd Floor Expansion Space”

  	
  Section 24.1

  
	
  “23rd Floor Suite A Automatic Expansion Space”

  	
  Section 22.1

  
	
  “23rd Floor Suite B Automatic Expansion Space”

  	
  Section 22.1

  
	
  “23rd Floor Unit 1 Expansion Space”

  	
  Section 24.1

  
	
  “23rd Floor Unit 2 Expansion Space”

  	
  Section 24.1

  
	
  “23rd Floor Unit 3 Expansion Space”

  	
  Section 24.1

  
	
  “AAA”

  	
  Section 6.2

  
	
  “Affiliate”

  	
  Section 13.1

  
	
  “Alterations”

  	
  Section 8.1

  
	
  “AML Procedures”

  	
  Section 20.27

  
	
  “Attornment Event”

  	
  Section 13.13

  
	
  “Automatic Expansion Date”

  	
  Section 22.1

  
	
  “Automatic Expansion Space”

  	
  Section 22.1

  
	
  “Average Rate”

  	
  Exhibit D

  
	
  “Base Operating Expenses”

  	
  Section 6.2

  
	
  “Base Operating Year”

  	
  Section 6.2

  
	
  “Base Taxes”

  	
  Section 6.1

  
	
  “Building Standard”

  	
  Exhibit C

  
	
  “CPI”

  	
  Exhibit D

  
	
  “Critical Area”

  	
  Section 7.4

  
	
  “Date of the taking”

  	
  Section 12.6

  
	
  “Designation Date”

  	
  Section 22.1

  
	
  “Due date”

  	
  Section 5.4

  
	
  “Electricity Charge”

  	
  Section 16.1

  
	
  “Eligible Sublease”

  	
  Section 13.13

  
	
  “Event of Default”

  	
  Section 19.1

  
	
  “Excess Operating Expenses”

  	
  Section 6.2

  



 


4

















 


	
  “Expansion Notice Date”

  	
  Section 24.1

  
	
  “Extension Option”

  	
  Section 21.1

  
	
  “Extended Term”

  	
  Section 21.1

  
	
  “Fair Market Rent”

  	
  Section 21.3

  
	
  “Fair Market Rent Proposal”

  	
  Section 21.3

  
	
  “First Penalty Period”

  	
  Section 3.1

  
	
  “First Refusal Space”

  	
  Section 23.1

  
	
  “Force Majeure”

  	
  Section 14.3

  
	
  “Fourth Penalty Period”

  	
  Section 3.1

  
	
  “GAAP”

  	
  Section 6.2

  
	
  “Initial Tonnage”

  	
  Exhibit D

  
	
  “Initiating Party”

  	
  Section 21.3

  
	
  “Land”

  	
  Section 2.1

  
	
  “Landlord Parties”

  	
  Section 11.7

  
	
  “Landlord’s 18th Floor Expansion Notice”

  	
  Section 25.1

  
	
  “Landlord’s 23rd Floor Expansion Acceleration
  Notice”

  	
  Section 24.1

  
	
  “Landlord’s 30-Day Completion Period”

  	
  Section 12.2

  
	
  “Landlord’s Contribution”

  	
  Exhibit C

  
	
  “Landlord’s Demolition Contribution”

  	
  Exhibit C

  
	
  “Landlord’s Non-Disturbance Agreement”

  	
  Section 13.13

  
	
  “Landlord’s Service Failure”

  	
  Section 7.4

  
	
  “Laws”

  	
  Section 6.2

  
	
  “Lease Interest Rate”

  	
  Section 5.4

  
	
  “Letter”

  	
  Section 20.22

  
	
  “Letter of Credit”

  	
  Section 20.22

  
	
  “Lien”

  	
  Section 8.4

  
	
  “Notice”

  	
  Section 20.9;
  Exhibit C

  
	
  “Notice of Intent to Terminate”

  	
  Section 12.2

  
	
  “Marketing Notice”

  	
  Section 13.2

  
	
  “Material Portion”

  	
  Section 7.4

  
	
  “Minor Alterations”

  	
  Section 8.1

  
	
  “Mortgagee”

  	
  Section 17.1

  
	
  “Net Effective Consideration”

  	
  Section 13.5

  
	
  “Occupancy Requirement”

  	
  Section 21.1

  
	
  “OFAC”

  	
  Section 20.27

  
	
  “Offer Notice”

  	
  Section 13.2

  
	
  “Offered Space”

  	
  Section 23.1

  
	
  “Operating Days”

  	
  Exhibit D

  
	
  “Operating Expenses”

  	
  Section 6.2

  
	
  “Operating Hours”

  	
  Exhibit D

  
	
  “Operating Statement”

  	
  Section 6.2

  
	
  “Operating Year”

  	
  Section 6.2

  
	
  “Original Delivery Date”

  	
  Section 3.1

  
	
  “Original Tenant”

  	
  Section 13.1

  
	
  “Outside Date”

  	
  Section 3.1

  
	
  “Overlandlord”

  	
  Section 17.1

  



 


5

















 


	
  “Overtime Service”

  	
  Exhibit D

  
	
  “Plans and Specifications”

  	
  Exhibit C

  
	
  “Pre-Built Lease”

  	
  Section 24.1

  
	
  “Pre-Built Lease Expiration Date”

  	
  Section 24.1

  
	
  “Prime Rate”

  	
  Section 5.4

  
	
  “Prohibited Person”

  	
  Section 20.27

  
	
  “Property”

  	
  Section 6.2

  
	
  “Pro-Rata Fraction”

  	
  Section 22.2

  
	
  “Qualified Appraiser”

  	
  Section 21.3

  
	
  “RamiusB Space”

  	
  Section 22.1

  
	
  “Reduction Date”

  	
  Section 20.22

  
	
  “Reduction Period”

  	
  Section 20.22

  
	
  “rent”

  	
  Section 5.3

  
	
  “Rent Commencement Date”

  	
  Section 5.5

  
	
  “Rent Concession Period”

  	
  Section 5.5

  
	
  “Replacement Letter”

  	
  Section 20.22

  
	
  “Responding Party”

  	
  Section 21.3

  
	
  “Rules and Regulations”

  	
  Section 20.13

  
	
  “Second Penalty Period”

  	
  Section 3.1

  
	
  “SNDA”

  	
  Section 17.6

  
	
  “Space Occupant”

  	
  Section 13.1

  
	
  “Special Lease Rights”

  	
  Section 13.13

  
	
  “Special Permit”

  	
  Section 20.24

  
	
  “substantially all of the Premises”

  	
  Section 13.3

  
	
  “substantially the entire remaining Lease Term”

  	
  Section 13.3

  
	
  “Specialty Alterations”

  	
  Section 8.1

  
	
  “Tax Excess”

  	
  Section 6.1

  
	
  “Taxes”

  	
  Section 6.1

  
	
  “Tax Expenses”

  	
  Section 6.1

  
	
  “Tax Refund”

  	
  Section 6.1

  
	
  “Tax Year”

  	
  Section 6.1

  
	
  “Telecommunications Equipment”

  	
  Article 26

  
	
  “Tenant Parties”

  	
  Section 11.7

  
	
  “Tenant’s Architect”

  	
  Exhibit C

  
	
  “Tenant’s Cost”

  	
  Exhibit C

  
	
  “Tenant’s Property”

  	
  Section 8.6

  
	
  “Tenant’s Work”

  	
  Exhibit C

  
	
  “Third Penalty Period”

  	
  Section 3.1

  
	
  “Third Qualified Appraiser”

  	
  Section 21.3

  
	
  “Transfer Notice”

  	
  Section 13.2

  
	
  “Transit Authority Agreement”

  	
  Section 20.24

  
	
  “Underlying Lease”

  	
  Section 17.1

  
	
  “Work Letter”

  	
  Exhibit C

  



 


6














 


ARTICLE
2


 


PREMISES


 


2.1                                 DEMISE — PREMISES.  Landlord hereby demises and leases to Tenant,
and Tenant hereby takes and hires from Landlord, a portion of the Building
erected on the land (the “Land”) more particularly described in Exhibit A
hereto, which portion of the Building (the “Premises”) is depicted in the floor
plan(s) annexed hereto as Exhibit B, for the term hereinafter stated,
for the rent hereinafter reserved and upon and subject to the covenants,
agreements, terms, conditions, limitations, exceptions and reservations
contained in this Lease.


 


2.2                                 APPURTENANT RIGHTS AND
RESERVATIONS.


 


(a)                                  Tenant shall
have, as appurtenant to the Premises, the non-exclusive right to use in common
with others, subject to reasonable rules of general applicability to each
tenant of the Building from time to time made by Landlord of which Tenant is
given notice:  (i) the common
lobbies, corridors, stairways and elevators of the Building, (ii) if the
Premises includes less than the rentable floor area of any floor, the common
toilets, corridors and elevator lobby of such floor and (iii) subject to
the terms of the Work Letter and Article 8
hereof, a reasonable amount of space in Building shafts and conduits and in
communication and electrical closets located on the floors of the Premises for
Tenant’s reasonable telecommunications requirements including, without
limitation, a reasonably sufficient pathway from the point where such
telecommunications lines enter the Building to the Premises and from the
Premises to its Telecommunications Equipment (as defined in Article 26
hereof) on the roof.


 


(b)                                 Landlord
reserves the right from time to time: 
(i) to install, use, maintain, repair, replace and relocate, for
service to the Premises and/or other parts of the Building, shafts, pipes,
ducts, conduits, wires, risers and other facilities and appurtenant fixtures,
in the Premises or in other parts of the Building, and (ii) to alter or
relocate other common facilities, whether located in the Premises or in other
parts of the Building; provided that, with respect to clauses (i) and
(ii):  (A) any replacements,
substitutions or alterations are, in the reasonable opinion of Landlord,
substantially equivalent to or better than then-existing facilities,
(B) installations, replacements and relocations shall be located so far as
practicable in the central core area of the Building, above ceiling surfaces,
below floor surfaces, within perimeter walls of the Premises or otherwise in
boxed enclosures immediately adjacent to perimeter walls, (C) all such
work within the Premises shall be performed at such times and in such manner,
as to create the least practicable interference with Tenant’s use of the
Premises, it being understood that the foregoing shall in no event obligate
Landlord to do such work on an “overtime” basis unless such work will
materially interfere with Tenant’s business operations in the Premises,
provided, however, that Landlord shall not be required to perform such work on
an “overtime” basis to the extent that such work was requested by Tenant or
would not have been needed but for a violation by Tenant of its obligations
under this Lease, (D) no such work shall reduce the square footage of the
floor area of the Premises in excess of one-half percent (1/2%) (unless Landlord
shall make an appropriate reduction in Annual Fixed Rent to reflect such excess
reduction in square footage of the Premises), (E) other than as required
by law, no such work shall reduce the usable square footage of the floor area
of the Premises by more than one percent (1%), (F) Landlord shall repair
or restore, as appropriate, the portions of the Premises affected by such work
and (G) such


 


7

















 


installations, replacements and relocations shall not materially
adversely interfere with the use or manner of use of the Premises permitted
under this Lease, it being agreed that any material adverse interference with
Tenant’s use of any Critical Areas (as such term is defined below) which
prevents Tenant from conducting its normal business operations in the Premises
as a whole shall be deemed to constitute material adverse interference with the
Premises as a whole.  Except in the case
of emergencies, Landlord agrees to give Tenant reasonable advance notice of any
of the foregoing activities which require work in the Premises.


 


ARTICLE
3


 


LEASE
TERM


 


3.1                                 COMMENCEMENT DATE.


 


(a)                                  The term of
this Lease and the estate hereby granted (the “Lease Term”) shall commence on
(i) August 1, 2007 for the 20th Floor Premises and the 21st Floor
Premises (the “20th and 21st Floor Commencement Date”), and
(ii) September 1, 2007 for the 19th Floor Premises (the “19th Floor
Commencement Date”), provided that the respective Premises shall have been
delivered to Tenant on the applicable Commencement Date.  The 19th Floor Commencement Date and the 20th
and 21st Floor Commencement Date are sometimes each referred to herein as a
“Commencement Date” and collectively as the “Commencement Dates”. Landlord shall
use reasonable efforts to deliver possession of the applicable Premises to
Tenant on the applicable Commencement Date (each an “Original Delivery
Date”).  If Landlord fails to deliver
possession of the applicable Premises on the applicable Commencement Date for
any reason beyond Landlord’s reasonable control, Landlord shall use reasonable
efforts to deliver possession of the applicable Premises to Tenant as soon
thereafter as shall be reasonably possible and such Commencement Date shall be
deemed to be the first (1st) day thereafter that actual possession is so
delivered (provided that Landlord shall have given Tenant not less than ten
(10) Operating Days prior notice of such revised delivery date) and,
except as otherwise set forth in Section 3.1(b) through
(f) below, the postponement of the applicable Commencement Date shall be
Tenant’s sole remedy at law or in equity (Tenant hereby waiving any right to
rescind this Lease and/or to recover any damages for such delay, except as
otherwise set forth in Section 3.1(b) through (f) below), but in
no event shall the 20th and 21st Floor Commencement Date be later than the 19th
Floor Commencement Date.  The foregoing
is intended to be “an express provision to the contrary” under
Section 223-a of the New York Real Property Law or any successor statute of
similar import.


 


(b)                                 If the 19th
Floor Commencement Date shall occur more than thirty (30) days after the 20th
and 21st Floor Commencement Date (the “Outside Date”), which Outside Date shall
be extended by reason of Force Majeure (but not by reason of a holdover by the
then existing tenant therein), the 20th Floor Rent Concession Period
(hereinafter defined) and the 21st Floor Rent Concession Period (hereinafter
defined) shall be increased by one (1) day for each day beyond the Outside
Date that Landlord fails to deliver possession of the 19th Floor Premises.


 


(c)                                  If a
Commencement Date shall occur more than thirty (30) but within sixty (60) days
(the “First Penalty Period”) after the applicable Original Delivery Date, which
Original Delivery Date shall be extended by reason of Force Majeure (but not by
reason of a


 


8

















 


holdover
by the then existing tenant therein), the Rent Concession Period applicable to
such portion of the Premises shall be increased by one-half (1/2) day for each
day during the First Penalty Period that Landlord fails to deliver possession
of such portion of the Premises.


 


(d)                                 If a
Commencement Date shall occur more than sixty (60) but within ninety (90) days
(the “Second Penalty Period”) after the applicable Original Delivery Date,
which Original Delivery Date shall be extended by reason of Force Majeure (but
not by reason of a holdover by the then existing tenant therein), the Rent
Concession Period applicable to such portion of the Premises shall be increased
by one (1) day for each day during the Second Penalty Period that Landlord
fails to deliver possession of such portion of the Premises.


 


(e)                                  If a
Commencement Date shall occur more than ninety (90) but within one hundred
twenty (120) days (the “Third Penalty Period”) after the applicable Original
Delivery Date, which Original Delivery Date shall be extended by reason of
Force Majeure (but not by reason of a holdover by the then existing tenant
therein), the Rent Concession Period applicable to such portion of the Premises
shall be increased by one and one-half (1 1/2) days for each day during the
Third Penalty Period that Landlord fails to deliver possession of such portion
of the Premises.


 


(f)                                    If a
Commencement Date shall occur more than one hundred twenty (120) days after the
applicable Original Delivery Date (the “Fourth Penalty Period”), which Original
Delivery Date shall be extended by reason of Force Majeure (but not by reason
of a holdover by the then existing tenant therein), the Rent Concession Period
applicable to such portion of the Premises shall be increased by two
(2) days for each day during the Fourth Penalty Period that Landlord fails
to deliver possession of such portion of the Premises.


 


3.2                                 EXPIRATION DATE.  The Lease Term shall end on the Expiration
Date, as the same may be extended pursuant to the provisions of Article 21
below, or shall end on such earlier date upon which the Lease Term may expire
or be terminated pursuant to any of the conditions of limitation or other
provisions of this Lease or pursuant to law.


 


3.3                                 COMMENCEMENT DATE AGREEMENT.  As soon as may be convenient after each
Commencement Date and Rent Commencement Date has been determined, Landlord and
Tenant agree to join with each other in the execution of a written agreement,
in the form of Exhibit G hereto, in which each Commencement Date, Rent
Commencement Date and specified Lease Term of this Lease shall be stated, but
the failure by either party to so execute or deliver such agreement shall not
in any way reduce the respective obligations or rights of Landlord or Tenant
under this Lease.


 


ARTICLE
4


 


COMPLETION
OF THE PREMISES


 


4.1                                 PERFORMANCE OF WORK


 


(a)                                  Tenant has
inspected the Premises and except as otherwise described in this
Section 4.1, the Premises are being leased in “AS IS” broom clean
condition, without


 


9

















 


representation
or warranty by Landlord.  Tenant
acknowledges that, except as otherwise described in this Section 4.1, any
work necessary to prepare the Premises for Tenant’s occupancy shall be
performed solely by Tenant in accordance with the provisions of this Lease,
including, without limitation, Exhibit C attached hereto.


 


(b)                                 On or before
each Commencement Date, Landlord shall provide Tenant with ACP-5 documentation
confirming that there is no asbestos or asbestos-containing material requiring
remediation within the applicable portion of the Premises.


 


(c)                                  Landlord
represents that, on each Commencement Date (i) the applicable portion of the
Premises shall be free of hazardous substances which would violate applicable
laws or governmental regulations and (ii) the applicable portion of the
Premises and the Building shall be free of violations of law or governmental
regulations which would prevent Tenant from obtaining permits for, or
performing, Tenant’s Work.


 


(d)                                 Landlord shall
make all of the mid-rise passenger elevators servicing the 19th Floor Premises
operational prior to the date that Tenant occupies the 19th Floor Premises for
the conduct of its business.


 


(e)                                  Landlord shall
make available to Tenant in connection with Tenant’s Work, a connection point
on each floor of the Premises to the Building sprinkler riser and a reasonable
number of connection points to the Building fire/life safety system.


 


4.2                                 QUALITY AND PERFORMANCE OF
WORK.  All construction work required
or permitted by this Lease shall be done in a good and workmanlike manner and
in compliance with all applicable laws and requirements of public authorities
and insurance bodies related to, or arising out of the performance of, such
construction work.  Each party may
inspect the work of the other upon advance notice at reasonable times (except
in the event of an emergency), and the Construction Representative of each
party shall be authorized to give notice of any approvals and other actions on
the party’s behalf required to be given in connection with design and
construction.


 


4.3                                 TENANT ENTRY.  Prior to the Commencement Date, Landlord
shall permit Tenant to access the (a) 19th Floor Premises and the 20th
Floor Premises upon reasonable prior notice to Landlord during non-Operating
Hours (provided that Landlord shall use reasonable efforts to provide access
during Operating Hours upon Tenant’s request) and (b) the 21st Floor Premises
on an as needed basis upon reasonable prior notice to Landlord, in all events
solely for the purpose of inspecting the same and taking measurements in
preparation for the performance of Tenant’s Work.  Any such entry shall be at Tenant’s sole risk
and subject to the rights of any existing occupant, and Landlord shall not be
responsible for any damage or loss to property or installations placed in the
Premises or caused by Tenant.  In
addition, in no event shall Tenant make use of any labor in the Building or
otherwise suffer or permit any action to be taken which would result in labor
difficulties or otherwise delay the performance of any other work.  Tenant shall indemnify and hold Landlord
harmless from and against any and all loss, costs, damages, liabilities,
expenses and claims resulting from Tenant’s entry onto the Premises prior to
the Commencement Date.


 


10

















 


4.4                                 LANDLORD’S CONTRIBUTIONS.  Landlord agrees to pay to Tenant, as a
contribution towards Tenant’s Cost (as defined in Exhibit C), Landlord’s
Contribution and Landlord’s Demolition Contribution (as defined in
Exhibit C), subject to the terms and conditions of Exhibit C.


 


ARTICLE
5


 


ANNUAL
FIXED RENT AND FIRST MONTH’S RENT


 


5.1                                 FIXED RENT.  Tenant agrees to pay to Landlord on the
Commencement Date (but subject to the provisions of Section 5.2 and
Section 5.5) and thereafter monthly, in advance, on the first day of each
and every calendar month during the Lease Term, a sum equal to one-twelfth of the
Annual Fixed Rent specified in Section 1.2 hereof in lawful money of the
United States, without any set-off or deduction whatsoever, except as otherwise
expressly set forth in this Lease.  Until
notice of some other designation is given, Annual Fixed Rent and all other
charges for which provision is herein made shall be paid by remittance to or to
the order of “BP 599 Lexington Avenue LLC” at the following address:  BP 599 Lexington Avenue LLC, P.O. Box
823290, Philadelphia, PA 19182-3290 (but in no event shall the address for the
payment of rent by mail be located outside the continental United States of
America).  Except to the extent Landlord
and Tenant shall otherwise mutually agree, all remittances by Tenant shall be
drawn on a member bank or participant bank of The Clearing House Association,
or on such other bank with offices in Manhattan as may be reasonably approved
by Landlord and which provides similar availability of usable funds to
Landlord.  Any payment by wire transfer
should be directed as follows:  Wells
Fargo Bank, N.A., National Bank, San Francisco, CA 94105, ABA # 121 000 248,
Account # 4121486716, Account Name:  BP
599 Lexington Avenue LLC FBO JPMorgan Chase.


 


5.2                                 PAYMENT OF FIRST MONTH’S
RENT.  Tenant has, simultaneously
with the execution and delivery of this Lease, paid to Landlord an amount equal
to one-twelfth of the Annual Fixed Rent for the entire Premises, to be applied
to the first installment(s) of Annual Fixed Rent due under this
Lease.  Landlord shall hold the amount
paid by Tenant under this Section 5.2 in trust until the same is applied
pursuant to this Section or any other provision of this Lease.


 


5.3                                 ADDITIONAL RENT.  All amounts over and above, or in addition
to, the Annual Fixed Rent which are payable by Tenant to Landlord under the
terms of this Lease or otherwise in connection with the use and occupancy of
the Premises including, without limitation, sums payable for work requested by
Tenant and performed by Landlord or Landlord’s agents, shall be deemed
Additional Rent hereunder and shall be paid by Tenant in lawful money of the
United States, without any set-off or deduction whatsoever, except as otherwise
expressly set forth in this Lease, and otherwise in the same manner as an
installment of the Annual Fixed Rent as elsewhere provided in this Lease; and
Landlord shall have all the rights and remedies in the event of the non-payment
thereof as it would have had in the event of the non-payment of any installment
of the Annual Fixed Rent.  Tenant’s
obligation to pay any Annual Fixed Rent or any Additional Rent which shall have
theretofore become due and payable shall survive the expiration or earlier
termination of this Lease.  (The Annual
Fixed Rent and Additional Rent are sometimes collectively referred to in this
Lease as “rent.”)  Rent for any partial
months during 


 


11

















 


the Lease Term shall be
prorated on a per diem basis.  Except as
otherwise expressly set forth in this Lease, to the extent that Tenant shall
fail to dispute any invoice for Additional Rent within twelve (12) months after
receipt thereof, such invoice shall be conclusive and binding upon Tenant and
Tenant shall be deemed to have waived any right to dispute the same.


 


5.4                                 LATE PAYMENT.


 


(a)                                  If Landlord shall not have
received any payment or installment of rent on or before the “due date”
(hereinafter defined), the amount of such payment or installment shall bear
interest from the due date through and including the date such payment or
installment is received by Landlord, at a rate (the “Lease Interest Rate”)
equal to the lesser of (i) the rate announced by Citibank, N.A. or its
successor from time to time as its prime or base rate (the “Prime Rate”), plus
two percent (2%), or (ii) the maximum applicable legal rate, if any;
provided, however, that no interest shall be due with respect to the first late
payment in any Lease Year, unless such payment is made more than ten
(10) days after the applicable due date. 
Such interest shall be deemed Additional Rent and shall be paid by
Tenant to Landlord upon demand.


 


(b)                                 If Tenant shall not have received any payment or installment due and
owing from Landlord on or before the “due date”, including, without limitation,
any portion of Landlord’s Contribution, the amount of such payment or
installment shall bear interest from the thirtieth (30th) day after Tenant
gives Landlord written notice that such payment is due through and including
the date such payment or installment is received by Tenant, at a rate equal to
the lesser of (i) the Lease Interest Rate or (ii) the maximum
applicable legal rate, if any.


 


(c)                                  The “due date” is the date on which any payment or installment of any
financial obligation as set forth in this Lease first becomes payable by Tenant
or Landlord under this Lease.


 


5.5                                 RENT CONCESSION.  Anything contained in this Article to
the contrary notwithstanding, provided no Event of Default exists, Landlord
hereby waives payment of Annual Fixed Rent:


 


(a)                                  for the 19th
Floor Premises, for the period (the “19th Floor Rent Concession Period”) from
and including the 19th Floor Commencement Date through and including the date
preceding the date which is one hundred ninety-six (196) days after the 19th
Floor Commencement Date (the “19th Floor Rent Commencement Date”);


 


(b)                                 for the 20th
Floor Premises, for the period (the “20th Floor Rent Concession Period”) from
and including the 20th and 21st Floor Commencement Date through and including
the date preceding the date which is one hundred ninety-six (196) days after
the 20th and 21st Floor Commencement Date (the “20th Floor Rent Commencement
Date”); and


 


(c)                                  for the 21st
Floor Premises, for the period (the “21st Floor Rent Concession Period”) from
and including the 20th and 21st Floor Commencement Date through


 


12

















 


and
including the date preceding date which is one hundred eighty-one (181) days
after the 20th and 21st Floor Commencement Date (the “21st Floor Rent
Commencement Date”).


 


The
19th Floor Rent Concession Period, the 20th Floor Rent Concession Period and
the 21st Floor Rent Concession Period are sometimes individually referred to
herein as a “Rent Concession Period”. 
The 19th Floor Rent Commencement Date, the 20th Floor Rent Commencement
Date and the 21st Floor Rent Commencement Date are sometimes individually
referred to herein as a “Rent Commencement Date”.


 


ARTICLE
6


 


ESCALATION


 


6.1                                 TAX ESCALATION.


 


6.1.1                        DEFINITIONS.  For the purposes of this Section 6.1,
the following terms shall have the respective meanings set forth below:


 


(a)                                  “Taxes” shall
mean the aggregate amount of all real estate and personal property taxes and
any general or special assessments (exclusive of penalties thereon but
inclusive of interest on assessments payable in installments) assessed or imposed
upon or with respect to the Building and the Land and including, without
limitation, (i) taxes or assessments made upon or with respect to any
development rights now or hereafter appurtenant to or used in connection with
the construction of the Building, (ii) any fee, tax or charge imposed by
any governmental authority for, on or in respect of any vaults, vault space or
other space within or outside the boundaries of the Land, (iii) any
assessments for public improvement or benefit to the Building, the Land, or the
locality in which the Land is situated, and (iv) any tax, assessment or
charge imposed on or with respect to any fixtures, equipment or personal
property serving or used in connection with the Building or the Land.  There shall be excluded from Taxes all
income, estate, succession, inheritance, transfer and franchise taxes imposed
upon Landlord; provided, however, that if at any time during the Lease Term the
method of taxation of real estate shall be changed and as a result any other
tax or assessment, however denominated and including, without limitation, any
franchise, income, profit, use, occupancy, gross receipts or rental tax, shall
be imposed upon Landlord or the owner of the Building and the Land, or the
rents or income therefrom, in substitution for or in addition to, in whole or
in part, any of the taxes or assessments listed in the preceding sentence, such
other tax or assessment shall be included in and deemed part of Taxes, but only
to the extent that the same would be payable if the Building, the Land and all
appurtenances thereto (including development rights) were the only property of
Landlord.  The amount of any special
assessments for public improvements or benefits to be included in Taxes for any
year, in the case where the same may, at the option of the taxpayer, be paid in
installments, shall be limited to the amount of the installment due in respect
of such year, together with any interest payable in connection therewith (other
than interest payable by reason of the delinquent payment of such installment).


 


(b)                                 “Tax Year”
shall mean each period from July 1 through June 30 (or such other
fiscal period as may hereafter be adopted by the City of New York as the fiscal


 


13

















 


year for any tax, levy or charge included in Taxes), any part or all of
which occurs during the Lease Term.


 


(c)                                  “Base Taxes”
shall mean the actual Taxes for the 2008 calendar year, which shall mean the
sum of (i) fifty percent (50%) of the actual Taxes for the Tax Year
commencing on July 1, 2007 and ending on June 30, 2008, plus
(ii) fifty percent (50%) of the actual Taxes for the Tax Year commencing
on July 1, 2008 and ending on June 30, 2009.


 


(d)                                 “Tax Expenses”
shall mean all expenses, including, without limitation, reasonable attorney’s
fees and disbursements and experts’ and other witnesses’ fees, incurred by
Landlord in seeking to reduce the amount of any assessed valuation of the Land
and/or Building, in contesting the amount or validity of any Taxes, or in
seeking a refund of Taxes for any Tax Year falling within the Lease Term.


 


6.1.2                        TENANT’S SHARE
OF TAXES.  From and
after the Commencement Date, if the Taxes for any full Tax Year falling within
the Lease Term shall exceed the Base Taxes, or if, in the case of a Tax Year
only a fraction of which is included in the Lease Term, an amount of the Taxes
for such Tax Year multiplied by such fraction exceeds the Base Taxes multiplied
by such fraction (the amount of such excess in either case being hereafter referred
to as the “Tax Excess”), then Tenant shall pay to Landlord, as Additional Rent,
Tenant’s Share of the Tax Excess.  From
and after the Commencement Date, Tenant shall also pay to Landlord, as
Additional Rent, Tenant’s Share of Tax Expenses applicable to the reduction of
Taxes for a Tax Year for which Tenant shall have been required to pay Tenant’s
Share of the Tax Excess.  Tenant’s Share
of the Tax Excess and Tax Expenses for each Tax Year shall be payable in monthly
installments as follows:


 


(a)                                  Estimated
payments by Tenant on account of Taxes and Tax Expenses shall be made on the
first day of each and every calendar month during the Lease Term, and otherwise
in the same fashion herein provided for the payment of Annual Fixed Rent.  The monthly amount so to be paid to Landlord
shall be sufficient to provide Landlord by the time Taxes and Tax Expenses are
due a sum equal to Tenant’s required payments, as estimated by Landlord from
time to time, on account of Taxes and Tax Expenses for the then current Tax
Year.  Promptly after receipt by Landlord
of bills for such Taxes and Tax Expenses, Landlord shall advise Tenant of the
amount thereof and the computation of Tenant’s payment on account thereof.  If estimated payments theretofore made by
Tenant for the Tax Year covered by such bills exceed the required payments on
account thereof for such Tax Year, Landlord shall, within thirty (30) days
after the determination of such overpayment has been made, credit the amount of
overpayment against subsequent obligations of Tenant on account of Taxes and
Tax Expenses (or refund such overpayment if the Lease Term has ended and Tenant
has no further obligation to Landlord); but if the required payments on account
thereof for such Tax Year are greater than estimated payments theretofore made
on account thereof for such Tax Year, Tenant shall make payment to Landlord
within thirty (30) days after being so advised by Landlord.  Tenant’s Share of Tax Expenses for each Tax
Year shall, at Landlord’s option, be payable on a monthly basis as provided
above, or at such other time as Landlord shall render a statement therefor,
provided that no payment shall be due on less than thirty (30) days notice.


 


14

















 


(b)                                 If the Taxes
for any Tax Year shall equal or be less than the Base Taxes, Tenant shall not
be obligated to make any payments to Landlord pursuant to this Section 6.1
in respect of a Tax Excess for such Tax Year, but in no event shall Tenant be
entitled to any refund or reduction in the Annual Fixed Rent by reason of such
fact.


 


(c)                                  It is
understood that the provisions of this Section 6.1 are based upon the
method of payment of New York City real property taxes in effect at the date of
this Lease, to wit, in semi-annual installments in advance on the first days of
July and January of each Tax Year. 
If such method of payment is hereafter changed, Landlord shall have the
right to change the method by which Tenant pays Tenant’s Share of a Tax Excess
to a method of periodic payments which provides Landlord with the full amount
of Tenant’s Share of such Tax Excess in respect of any installment of Taxes by
the date on which such installment becomes due, provided that a majority of all
of the tenants in the Building shall be similarly obligated.


 


6.1.3                        Only Landlord
shall have the right to institute tax reduction or other proceedings to reduce
the assessed valuation of the Land and Building.  Should Landlord be successful in any such
reduction proceedings and obtain a rebate, credit or reduction in assessment or
tax payment (with any of the foregoing being hereinafter referred to as a “Tax
Refund”) for any Tax Year or Years in respect of which Tenant shall have made a
payment to Landlord, pursuant to this Section 6.1, Landlord shall credit
Tenant’s Share of such Tax Refund (or, in the case of a Tax Refund for a Tax
Year, only a fraction of which is included in the Lease Term, such fraction
thereof) against the monthly installment or installments of Annual Fixed Rent
next falling due under this Lease, or if the Lease Term has then expired and
Tenant has no further obligations to Landlord, such amount shall be refunded by
Landlord to Tenant within thirty (30) days after Landlord’s receipt of such Tax
Refund.  In calculating the amount of any
such credit or payment, Landlord shall have the right to deduct from such Tax
Refund all of Landlord’s reasonable and actual Tax Expenses for such Tax Year
incurred by Landlord in obtaining the same, to the extent not previously paid
by Tenant or other tenants in the Building (so that no double recovery of Tax
Expenses shall be permitted).  The
provisions of this subsection 6.1.3 shall survive the expiration of the Lease
Term.


 


6.2                                 OPERATING EXPENSE ESCALATION.


 


6.2.1                        DEFINITIONS.  For the purposes of this Section 6.2,
the following terms shall have the respective meanings set forth below:


 


(a)                                  “Base Operating
Expenses” shall mean the actual Operating Expenses for the Base Operating Year.


 


(b)                                 “Base Operating
Year” shall mean the calendar year commencing on January 1, 2008 and
ending on December 31, 2008.


 


(c)                                  “Operating
Expenses” shall mean the aggregate of all reasonable costs and expenses
(including taxes, if any, thereon) actually paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the operation and maintenance of the Property (as hereinafter defined),
including all reasonable expenses incurred by Landlord as a result of its
compliance with any of its obligations under Sections 7.1


 


15

















 


and 7.3 hereof, but excluding those items set forth as excluded from
Operating Expenses at the end of this subsection 6.2.1(b) or otherwise
limited elsewhere in this subsection 6.2.1(b). 
Operating Expenses shall be calculated on the accrual basis of
accounting (but subject to the further provisions of this Section 6.2) and
shall include, without limitation, the following expenses:


 


(i)                                     salaries,
wages, medical, surgical and general welfare benefits (including group life
insurance), pension and welfare payments or contributions and all other fringe
benefits paid to, for or with respect to all persons (whether they be employees
of Landlord or its managing agent, and, with respect to employees who are not
employed on a full-time basis with respect to the Property, only a pro rata
portion of expenses allocable to the time any such employee is employed with
the Property shall be included in Operating Expenses) for their services in the
operation (including, without limitation, security services), maintenance,
repair, or cleaning of the Property (but only if and to the extent that the
same shall not be included in the management fees payable by Landlord), and
payroll taxes, workers’ compensation, uniforms and dry cleaning costs for such
persons;


 


(ii)                                  payments under
service contracts with independent contractors for operating (including,
without limitation, providing security services), maintaining, repairing or
cleaning of the Property or any portion thereof or any fixtures or equipment
therein, including, without limitation any escalators and/or elevators that may
be required under the Special Permit and/or the Transit Authority Agreement;


 


(iii)                               all costs or
charges for steam, heat, ventilation, air conditioning and water (including
sewer rents) furnished to the Property and/or used in the operation of the
Property and all costs or charges for electricity furnished to the public and
service areas of the Property and/or used in the operation of the service
facilities of the Property, including any taxes on any such utilities;


 


(iv)                              repairs and
replacements which are appropriate to the continued operation of the Property
as a first-class Manhattan office building, provided that to the extent the
cost of any such repair and/or replacement is required to be capitalized under
generally accepted accounting principles consistently applied (“GAAP”), such
cost shall not be included in Operating Expenses except as set forth in
subsection (x) of this Section 6.2.1(b), and, with respect to replacements,
the amortized cost thereof shall be included in Operating Expenses only if and
to the extent that a prudent owner of a first-class Manhattan office building
would install the relevant replacements in lieu of performing further repairs
to the replaced items;


 


(v)                                 costs of lobby
decoration, painting and decoration of non-tenant areas;


 


(vi)                              cost of snow
removal and landscaping in and about the Property;


 


16






 


 


 


 










 


(vii)                           cost of building and cleaning supplies and equipment,
cost of replacements for tools and equipment used in the operation, maintenance
and repair of the Property and charges for general telephone service for the
Building;


 


(viii)                        financial expenses incurred in connection with the
operation of the Property, such as insurance premiums (including, without
limitation, liability insurance, fire and casualty insurance, rent insurance
and any other insurance that is then generally carried by owners of comparable
first-class office buildings in Manhattan), reasonable attorneys’ fees and
disbursements (excluding any such fees and disbursements incurred in applying
for any Tax Refund or in connection with leasing of space in the Property, or
in connection with any disputes between Landlord and any tenant or other
occupant of space in the Property), auditing and other professional fees and
expenses, Landlord’s reasonable home office accounting charges reasonably
allocated to the Building (provided however that such charges shall not be
included in Operating Expenses if the services are actually being provided by
third parties and such third party costs are included in Operating Expenses),
association dues and any other ordinary and customary financial expenses incurred
in connection with the operation of the Property;


 


(ix)                                management fees payable to a management
company which is unrelated to Landlord or, if to a management company which is
owned or affiliated with Landlord or Landlord’s principals, (1) the annual
management fee shall not exceed two percent (2%) of the aggregate rents and
additional rents (excluding rent attributable to the actual cost of electric
power) paid to Landlord by tenants of the Building in such Operating Year, and (2) an
amount equal to the same percentage of the aggregate rents and additional rents
(excluding rent attributable to the actual cost of electric power) paid to
Landlord by tenants of the Building in the Base Operating Year shall be deemed
to be the annual management fee for the Base Operating Year, so that Tenant
shall be responsible only for the incremental increases in the amount of such
management fee above the amount included in the Base Operating Expenses;


 


(x)                                   the cost of capital improvements made by
Landlord either (1) reasonably anticipated by Landlord to reduce Operating
Expenses (based on Landlord’s estimate that the savings in Operating Expenses
are likely to exceed the annual amortization of such capital improvement), or (2) pursuant
to a requirement of law, ordinance, order, rule or regulation of any
public authority having jurisdiction of the Property (collectively, “Laws”)
hereafter enacted or promulgated (including the cost of compliance with Laws
enacted or promulgated prior to the date of this Lease if such compliance is
required for the first time by reason of any amendment, modification or
reinterpretation thereof which is imposed or enacted after the date of this
Lease), in either case calculated as follows: 
the cost of any such capital improvement shall be included in Operating
Expenses for the Operating Year in which such improvement was made, provided
that to the extent the cost of such capital improvement is required to be
capitalized under GAAP, such cost shall be amortized on a straight-line basis
over the useful life thereof utilized under GAAP, and the annual amortization
of such capital improvement, together with interest on the unamortized balance
of such cost at the Prime Rate shall be included in Operating Expenses;


 


17

















 


(xi)                                rental payments made for equipment used
in the operation and maintenance of the Property;


 


(xii)                             the cost of governmental licenses and permits, or
renewals thereof, necessary for the operation of the Property; and


 


(xiii)                          all other reasonable and necessary expenses paid in
connection with the operation, maintenance, repair and cleaning of the Property
which are properly chargeable against income.


 


Any cost or expenses of the nature described above
shall be included in Operating Expenses for any Operating Year no more than
once, notwithstanding that such cost or expenses may fall under more than one
of the categories listed above.  Subject
to the limitation set forth in subdivision (ix) above, Landlord may use
related or affiliated entities to provide services or furnish materials for the
Property provided that the rates or fees charged by such entities are
competitive with those charged by unrelated or unaffiliated entities in the
Borough of Manhattan for the same services or materials, and any rates and fees
charged by such entities shall reflect only the services or materials furnished
for this Property.


 


The following costs and expenses shall be excluded
from Operating Expenses:


 


(1)                                  Taxes and Tax Expenses;


 


(2)                                  franchise, income, transfer gains,
inheritance or other personal taxes imposed upon Landlord;


 


(3)                                  mortgage or other interest and/or debt
service on the Property as a result of financing and refinancing;


 


(4)                                  legal fees, space planner’s fees,
architect’s fees, leasing and brokerage commissions, advertising and
promotional expenditures and any other expense incurred in connection with
leasing of space in the Property (including new leases, lease amendments, lease
terminations and lease renewals);


 


(5)                                  capital improvements to the Property
other than those provided in clause (iv) and clause (x) above;


 


(6)                                  the cost of electrical energy furnished
directly to tenants of the Property or any other space leased or available for
lease in the Property;


 


(7)                                  the cost of tenant installations ,
improvements or other alterations, and decorations incurred in connection with
preparing space for any tenant, including any utilities, fees or services
incurred in connection with the performance of such work or other consideration
paid by Landlord on account of, with respect to, or in lieu of, such work;


 


18

















 


(8)                                  salaries and fringe benefits of personnel
above the grade of building manager;


 


(9)                                  rent and other payments payable under any
Underlying Lease;


 


(10)                            the cost of any items to the extent to
which such cost is reimbursed (or reimbursable) to Landlord by tenants of the
Property (other than pursuant to this Section 6.2), insurance or
condemnation proceeds or third parties;


 


(11)                            depreciation of the building,
amortization (except as provided in clauses (iv) and (x) above) and
other non-cash charges.


 


(12)                            the cost of repairs or replacements
incurred by reason of fire or other casualty, or condemnation, except to the
extent of commercially reasonable insurance deductibles to the extent
applicable to an insured loss;


 


(13)                            legal and other professional or
consulting fees incurred in disputes with tenants, and all legal, arbitration
and auditing fees other than legal, arbitration and auditing fees reasonably
incurred (i) in connection with the maintenance and operation of the
Property, or (ii) in connection with the preparation of statements
required pursuant to rental escalation or additional rent provisions;


 


(14)                            the cost of performing work or furnishing
services to or for any tenant other than Tenant, at Landlord’s expense, to the
extent such work or service is in excess of any work or service Landlord is
obligated to provide to Tenant or generally to other tenants in the Building at
Landlord’s expense;


 


(15)                            costs incurred with respect to a sale of
all or any portion of the Building or any interest therein or in connection
with the purchase or sale of any air or development rights;


 


(16)                            interest, fines or penalties for late
payment by Landlord, if any, except to the extent incurring such expense is a
reasonable business expense under the circumstances or caused by a
corresponding late payment by Tenant,


 


(17)                            costs to clean-up, contain, abate, remove
or otherwise remedy (but not costs to test and monitor) hazardous wastes or
asbestos-containing materials from the Building unless the wastes or
asbestos-containing materials (A) were introduced to the Building by a
Tenant Party or (B) are required to be cleaned-up, contained, abated,
removed or otherwise remedied by Laws hereafter enacted or promulgated or the
requirement of any insurance carrier or insurance rating organization or
underwriting board hereafter enacted or promulgated, whether or not such
insurance requirement is mandatory (including the cost of compliance with Laws
and insurance requirements enacted or promulgated prior to the date of this
Lease if such compliance is required for the first time by reason of any
amendment, modification or reinterpretation thereof which is imposed or enacted
after the date of this Lease);


 


19

















 


(18)                            the cost of acquisition of sculptures,
painting or other objects of fine art in the Building other than the cost of
maintaining such art;


 


(19)                            the costs of any judgment, settlement or
arbitration award resulting from any negligence or misconduct of Landlord, or
of Landlord’s agents, servants, employees, contractors, suppliers, or other
tenants;


 


(20)                            any bad debt loss, rent loss or reserves
for bad debts or rent loss;


 


(21)                            costs incurred by Landlord to cure any
misrepresentation made in this Lease by Landlord to Tenant and Landlord’s
breach of this Lease;


 


(22)                            expenses relating solely and exclusively
to the operation of the retail space in the Building;


 


(23)                            costs associated with the operation of
the business of the entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Property, including, without
limitation, accounting and legal expenses, costs of selling, syndicating, financing,
mortgaging or hypothecating Landlord’s interest in the Property, costs of any
disputes between Landlord and its employees, or building managers;


 


(24)                            any incremental costs incurred by
Landlord in connection with Landlord’s breach of any of Landlord’s covenants,
agreements or indemnities made in this Lease; and


 


(25)                            the imputed cost of rent of any office
space in the Building which is utilized as the management office of the
Property.


 


Operating Expenses shall
be net of rebates, credits and similar items of which Landlord or any affiliate
of Landlord receives the benefit, including, without limitation, all amounts
received by Landlord through proceeds of insurance or condemnation awards to
the extent they are compensation for, or reimbursement of, sums previously
included in Operating Expenses hereunder.


 


If Landlord is not furnishing any particular work or
service (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or service
in lieu of the performance thereof by Landlord, Operating Expenses for any
Operating Year during all or any part of which such work or service is not so
furnished by Landlord shall be increased by an amount equal to the additional
Operating Expenses which reasonably would have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant.


 


In determining the amount of Operating Expenses for
any Operating Year, if less than ninety-five percent (95%) of the rentable area
of the Building shall have been occupied by


 


20

















 


tenant(s) at any time during such Operating Year
(including the Base Operating Year), Operating Expenses shall be determined for
such Operating Year to be an amount equal to the Operating Expenses which would
normally be expected to have been incurred had such occupancy been ninety-five
percent (95%) throughout such Operating Year.


 


(d)                                 “Operating Year” shall mean the Base
Operating Year and each subsequent calendar year, any part or all of which
falls within the Lease Term.


 


(e)                                  “Property” shall mean the Land, the
Building, and any other land contiguous to the Land, and any improvements
constructed on such land, whether above or below ground, which Landlord may
operate or maintain or may contribute to the cost of the operation or
maintenance thereof including, without limitation, such costs which Landlord is
required to incur under the Special Permit and/or the Transit Authority Agreement.


 


6.2.2                        TENANT’S SHARE OF OPERATING EXPENSES. 
If the Operating Expenses for any full Operating Year falling within the
Lease Term shall exceed the Base Operating Expenses or if, in the case of an
Operating Year only a fraction of which is included in the Lease Term, the
amount of the Operating Expenses for such Operating Year multiplied by such
fraction exceeds the Base Operating Expenses multiplied by such fraction (the
amount of such excess in either case being hereafter referred to as the “Excess
Operating Expenses”), then Tenant shall pay to Landlord, as Additional Rent,
Tenant’s Share of the Excess Operating Expenses for such Operating Year or
portion thereof.  Tenant’s Share of the
Excess Operating Expenses for each Operating Year shall be payable in monthly
installments as follows:


 


(a)                                  Estimated payments by Tenant on account
of Operating Expenses shall be made on the first day of each and every calendar
month during the Lease Term, and otherwise in the same fashion herein provided
for the payment of Annual Fixed Rent. 
The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year with a sum equal to Tenant’s
required payments, as reasonably estimated by Landlord from time to time, on
account of Operating Expenses for such Operating Year.  Within one hundred eighty (180) days after
the end of each Operating Year, Landlord shall submit to Tenant a reasonably
detailed accounting of Operating Expenses for such Operating Year (the “Operating
Statement”).  If estimated payments
theretofore made for such Year by Tenant exceed Tenant’s required payment on
account therefor for such Operating Year, according to such accounting,
Landlord shall credit the amount of overpayment against subsequent obligations
of Tenant with respect to rents next coming due (or refund such overpayment if
the Lease Term has ended and Tenant has no further obligation to Landlord);
but, if the required payments on account thereof for such Operating Year are
greater than the estimated payments (if any) theretofore made on account
thereof for such Operating Year, Tenant shall make payment to Landlord within
thirty (30) days after being so advised by Landlord.


 


(b)                                 If the Operating Expenses for any
Operating Year (as adjusted, if applicable, pursuant to the last two (2) paragraphs
of subsection 6.2.1(b)) shall equal or be less than the Base Operating
Expenses, Tenant shall not be obligated to make any payments to


 


21

















 


Landlord pursuant to this Section 6.2 in respect
of such Operating Year, but in no event shall Tenant be entitled to any refund
or reduction in the Annual Fixed Rent by reason of such fact.


 


(c)                                  Landlord’s failure to render an
accounting of Operating Expenses with respect to any Operating Year shall not
prejudice Landlord’s right to thereafter render an accounting with respect
thereto or with respect to any subsequent Operating Year, nor shall the
rendering of an accounting prejudice Landlord’s right to thereafter render a corrected
accounting for that Operating Year. 
Nothing herein contained shall restrict Landlord from issuing an
accounting at any time there is an increase in Operating Expenses during any
Operating Year or any time thereafter. 
Notwithstanding the foregoing provisions of this Section 6.2.2(c),
if Landlord has not issued an accounting within three (3) years after the
end of an Operating Year, Tenant may give Landlord a notice thereof and if
Tenant gives such notice, and, such failure continues for thirty (30) days
following such notice, Tenant shall give Landlord a second notice of such
failure which notice shall set forth in bold capital letters the following
statement:  “IF
LANDLORD FAILS TO DELIVER AN ACCOUNTING OF OPERATING EXPENSES TO TENANT WITHIN
TEN (10) OPERATING DAYS AFTER RECEIPT OF THIS NOTICE, LANDLORD SHALL HAVE
WAIVED ITS RIGHT TO ISSUE AN ACCOUNTING”.  If Landlord does not so issue an accounting
within ten (10) Operating Days after Landlord’s receipt of such second
notice, Landlord shall have waived the right to issue an accounting for the
Operating Year to which, in whole or in part, such accounting relates.


 


6.2.3                        Within thirty (30) days after Tenant’s request sent
within nine (9) months after Tenant’s receipt of an annual Operating
Statement, and without Tenant having to specify that Tenant is disputing any
part of such Operating Statement, Landlord agrees to grant Tenant, its
accountants and representatives, reasonable access to so much of Landlord’s
books and records, at the place where they are regularly maintained in New
York, New York or Boston, Massachusetts, as may be required for the purposes of
verifying the items included therein as Operating Expenses, and to have and
make copies of any and all bills and vouchers relating thereto (subject to
reimbursement by Tenant for the cost of such copies).  Every Operating Statement given by Landlord
pursuant to Article 6 hereof shall be conclusive and binding upon Tenant
unless Tenant shall notify Landlord within one (1) year after the receipt
of such Operating Statement that Tenant disputes the correctness thereof
(provided that Landlord shall have timely provided the reasonable access to
Landlord’s books and records set forth herein), which notice to Landlord shall
specify in reasonable detail the particular respects in which the Operating
Statement is claimed to be incorrect and include a complete copy of the results
of such audit; provided, however, that, with respect to the Operating Statement
for the Base Operating Year, such 9-month and 1-year periods shall not begin
until after the Operating Statement for the Operating Year immediately
following the Base Operating Year has been delivered to Tenant.  Upon Tenant’s delivery of any Operating
Expenses dispute notice, Landlord and Tenant shall proceed in good faith to
settle the dispute.


 


If Landlord and Tenant shall be unable to resolve such
dispute within sixty (60) days following the delivery of such notice to
Landlord, Landlord shall designate a Certified Public Accountant who has not
been engaged by Landlord (or any affiliate of Landlord) within the previous
three (3) years and is reasonably satisfactory to Tenant (the “Arbiter”)
who shall be a member of an independent certified public accounting firm or a
senior officer of a nationally


 


22

















 


recognized business consulting firm (which accounting
or consulting firm shall have at least twenty (20) accounting professionals)
and shall have practiced as a certified public accountant for at least ten (10) years,
whose determination made in accordance with this Section 6.2.3 shall be
binding upon the parties, and any such determination so made in accordance
herewith may be entered as a judgment in any court of competent
jurisdiction.  If Landlord fails to designate
an Arbiter within one hundred twenty (120) days after the delivery of the
results of Tenant’s audit, or if Landlord’s designee is not reasonably
satisfactory to Tenant, Tenant shall have the right to suggest an Arbiter, and
if such person is not reasonably acceptable to Landlord, either party may
petition the New York City office of the American Arbitration Association (or
its successor) (the “AAA”) for the appointment of an Arbiter.  The Arbiter shall make a determination (and,
if appointed by the AAA, be appointed) by an Expedited Procedures arbitration
under the Commercial Arbitration Rules of the AAA. In rendering such
determination such Arbiter shall not add to, subtract from or otherwise modify
the provisions of this Lease.  Except as
otherwise set forth herein, Tenant shall pay the fees and expenses of the
Arbiter.  Tenant, pending the resolution
of any contest pursuant to the terms hereof shall continue to pay all sums as
determined to be due in the first instance by Landlord.  If it is finally agreed or determined that
the aggregate amount paid by Tenant to Landlord on account of Tenant’s Share of
Excess Operating Expenses exceeded the amounts to which Landlord was entitled
hereunder, Landlord shall credit the amount of such excess against the rent
next due and payable, unless this Lease shall have expired, in which event
Landlord shall promptly refund such excess to Tenant, and (x) if Landlord’s
original determination of Tenant’s Share of Excess Operating Expenses is
determined to have been overstated by five percent (5%) or more, Landlord shall
credit or pay to Tenant interest thereon at the Prime Rate from the day
immediately following the relevant over-payment or over-payments made by Tenant
until the day that such over-payment shall have been refunded or credited in
full to Tenant, and (y) if Landlord’s original determination of Tenant’s
Share of Excess Operating Expenses is determined to have been overstated by
$25,000 (such amount to be increased annually by the percentage increase in the
CPI) or more, Landlord shall pay the fees and expenses of the Arbiter.  If it is finally agreed or determined that
the amounts paid by Tenant to Landlord on account of Tenant’s Share of Excess
Operating Expenses were less than the amounts to which Landlord was entitled
hereunder, Tenant shall pay to Landlord the amount of such shortfall within
thirty (30) days of the date Tenant is notified of the error.


 


In connection with examining Landlord’s books and
records hereunder, Tenant covenants and agrees that Tenant will (a) not
employ any person or firm who is to be compensated, in whole or in part, on a
contingency fee basis and (b) maintain the information obtained from such
examination in strict confidence (other than to Tenant’s officers, employees,
shareholders, partners or members, attorneys, accountants and other
professional consultants who have been advised of the confidentiality
provisions contained herein and agree to be bound by the same), except (i) to
the extent reasonably necessary in connection with any action or proceeding to
enforce this Lease or any provision thereof, (ii) to the extent legally
compelled (by deposition, interrogatory, subpoena, civil investigative demand
or similar legal process) to disclose such information, (iii) to the extent
required by securities laws or compliance provisions of other requirements of
law or any securities, bond or commodities exchange, (iv) to Landlord or
Landlord’s agents or employees, and (v) Tenant may disclose to any
prospective lender, merger partner and lateral candidates who have been advised
of the confidentiality provisions contained herein and agree to be bound by the
same, for a valid business purpose other than disclosure of


 


23

















 


such information concerning Landlord, solely the
amount of Tenant’s Share of Excess Operating Expenses and Tenant’s Share of
Taxes, whether there is a dispute and the parameters of the high and low range
of such amounts.  The foregoing
confidentiality requirement shall not apply to information that has otherwise
become available to the public.


 


6.2.4                        The imposition on Landlord by any portion of this
Lease of an obligation to perform any work, repairs or other acts with respect
to the Property shall not be construed as preventing Landlord from including
the cost of such work, repairs or other acts in Operating Expenses, to the
extent the same is otherwise properly includible therein pursuant to this Section 6.2.


 


ARTICLE 7


 


REPAIRS AND
SERVICES


 


7.1                                 LANDLORD’S OBLIGATION TO REPAIR.  Throughout the
Lease Term, Landlord will maintain the Building in a manner consistent with a
first class office building in midtown Manhattan, and, except as otherwise
provided in this Lease, Landlord shall, throughout the Lease Term, keep and
maintain in good order, condition and repair:


 


(a)                                  the roof, the exterior and load bearing
walls (including exterior windows), the foundation, the structural floor slabs
and other structural elements of the Building; and


 


(b)                                 the common areas and facilities of the
Building, including the lobby of the Building, common elevator lobbies, (but
excluding elevator lobbies on floors leased entirely by a single tenant), core
lavatories (but excluding any Alterations made by Tenant to core lavatories
located on floors leased entirely to Tenant), fire stairs, HVAC (including base
building equipment associated with the HVAC such as finned tube radiators and
hot water coils), plumbing, Building electrical system (other than items
installed by tenants or the utility companies) and other Building systems and
equipment servicing the Premises (other than any supplementary or accessory
HVAC, and telecommunication/computer systems and/or any item of such equipment
exclusively serving the Premises).


 


Landlord shall not be responsible to make any
improvements or repairs to the Building or the Premises other than as expressly
provided in this Section 7.1, unless expressly otherwise provided in this
Lease.  Tenant shall promptly give
Landlord notice of any damage to the Premises or the Building (whether or not
caused by Tenant) or of any defects in any portion thereof or in any fixtures
or equipment therein promptly after Tenant first learns thereof (to the extent
that Landlord does not already have knowledge thereof), but Tenant’s failure to
do so shall not, in and of itself, result in any liability of Tenant (unless
such failure was unreasonable under the circumstances) nor relieve Landlord of
any of its obligations under this Lease. 
In making any repairs, alterations, additions or improvements in the
Premises, Landlord shall, use reasonable efforts to minimize interference with
Tenant’s use and occupancy of the Premises; provided, however, that Landlord
shall have no obligation to employ contractors or labor at so-called “overtime”
or other premium pay rates or to incur any other overtime costs or expenses
whatsoever unless such work will materially interfere with Tenant’s business
operations in the Premises, provided, however, that Landlord shall not be
required to perform such work on an 


 


24

















 


“overtime” basis to the extent that such work was
requested by Tenant or would not have been needed but for a violation by Tenant
of its obligations under this Lease.


 


7.2                                 TENANT’S REPAIRS AND MAINTENANCE.


 


(a)                                  Subject to the provisions of Article 12
below, Tenant covenants and agrees that, from and after the date that
possession of the Premises is delivered to Tenant and until the end of the
Lease Term, Tenant, at its expense, will keep neat and clean and maintain in
good order, condition and repair the Premises, Alterations and all fixtures or
facilities contained in the Premises which do not constitute part of the common
areas or the Building systems, including, without limitation, any distribution
conduits for the HVAC system serving the Premises, any supplemental air
conditioning units, any private lavatory and any Alterations made by Tenant to
any core lavatories located on floors leased entirely to Tenant, shower,
toilet, washbasin and kitchen facilities, and all plumbing serving or connected
to such systems or facilities, and will make all required repairs thereto
and/or replacements of portions thereof, excepting only for those repairs or
replacements for which Landlord is responsible under the terms of Section 7.1
or Article 12 of this Lease.  Tenant
shall not permit or commit any waste, and, notwithstanding anything to the
contrary set forth in Section 7.1, Tenant shall be responsible for the
cost of all repairs and replacements to the Premises, the Building and the
facilities of the Building, whether ordinary or extraordinary, structural or,
non-structural, when necessitated by Tenant’s, or its subtenant’s or assignee’s,
moving property in or out of the Building or installation or removal of furniture,
fixtures or other property or by the performance by Tenant, or its subtenant or
assignee, of any alterations or other work in the Premises, or when
necessitated by the acts, omission, misuse, neglect or improper conduct of
Tenant, its assignee or subtenant, or its or their agents, employees,
contractors or invitees or the use or occupancy or manner of use or occupancy
of the Premises other than in accordance with the terms of this Lease.  Notwithstanding the foregoing, Tenant shall
not be responsible for any such repairs to the extent required by Landlord’s
negligence or the negligence or other fault of Landlord’s employees, agents or
contractors.  All of said repairs and any
restorations or replacements required in connection therewith shall be of a
quality and class at least equal to the original work or installations and
shall be done in a good and workmanlike manner to the reasonable satisfaction
of Landlord.


 


(b)                                 If material repairs or replacements are
required to be made by Tenant pursuant to the terms hereof, Landlord may demand
that Tenant make the same forthwith, and (except in cases of emergency, where
no notice or demand shall be required) if Tenant refuses or neglects to
commence such material repairs or replacements within thirty (30) days after
such demand or to complete the same with reasonable diligence thereafter,
Landlord may (but shall not be required to do so) make or cause such material
repairs or replacements to be made and shall not be responsible to Tenant for
any loss or damage that may accrue to Tenant’s stock or business by reason
thereof provided that Landlord shall use reasonable efforts to minimize
interference with the conduct of Tenant’s business and any such loss or damage
(but Landlord shall have no obligation to employ contractors or labor at
so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever).  If
Landlord makes or causes such repairs or replacements to be made, Tenant agrees
that Tenant will forthwith, on demand, pay to Landlord as Additional Rent the
cost thereof, together with interest thereon at the Lease Interest Rate.


 


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7.3                                 SERVICES.  Subject to the provisions of Sections 14.3
and 20.12, Landlord agrees to provide those services to the Building and the
Premises as set forth in Exhibit D annexed hereto.


 


7.4                                 LANDLORD’S FAILURE TO REPAIR OF PROVIDE SERVICES.  Anything in this
Lease to the contrary notwithstanding, provided no Event of Default exists, if
solely by reason of Landlord’s negligence or willful misconduct, Landlord shall
be unable to supply services or to make repairs which Landlord is obligated
under the terms of this Lease to supply or to make (“Landlord’s Service Failure”)
for more than ten (10) consecutive Operating Days after notice from Tenant
to Landlord, and as a result of such failure the Premises are rendered
untenantable, or any portion thereof that comprises at least five thousand
(5,000) square feet (“Material Portion”) is rendered untenantable, and Tenant
cannot and does not use the Premises, or such Material Portion, as the case may
be, for the conduct of its business, then in the event (a) a Material
Portion is untenantable, as Tenant’s sole and exclusive remedy, Tenant’s
obligation to pay Annual Fixed Rent and Additional Rent on account of Taxes and
Operating Expenses shall be reduced in the proportion in which the area of the
Material Portion which is unusable bears to the total area of the Premises or (b) the
entire Premises are rendered untenantable, as Tenant’s sole and exclusive
remedy, Tenant’s obligation to pay Annual Fixed Rent and Additional Rent on
account of Taxes and Operating Expenses shall be abated, in the case of (a) or
(b) above, for the period commencing on the eleventh (11th) Operating Day
after such notice to Landlord until such condition is cured by Landlord or
Tenant recommences use of the Premises or the affected Material Portion
thereof.  For purposes of the foregoing,
a Landlord’s Service Failure which renders a portion of the Premises critical
to Tenant’s continued normal business operations untenantable including,
without limitation, Tenant’s server room and/or trading floor(s) (a “Critical
Area”), shall be deemed to have rendered the entire Premises untenantable provided
that Tenant cannot and does not use the Premises for the normal conduct of
Tenant’s business.


 


ARTICLE 8


 


ALTERATIONS


 


8.1                                 TENANT’S RIGHTS.  Tenant may from time to time during the Lease
Term, at its expense, make such alterations, additions, installations,
substitutions, improvements and decorations (collectively, with Tenant’s Work,
referred to as “Alterations”) in and to the Premises as Tenant may consider
necessary or desirable for the conduct of its business in the Premises, subject
to the following conditions:


 


(a)                                  the outside appearance or the strength of
the Building or any of its structural parts shall not be adversely affected;


 


(b)                                 no part of the Building outside of the
Premises shall be physically and adversely affected;


 


(c)                                  no other tenant or occupant of the
Building, and no common area of the Building, shall be adversely affected,
other than to a de minimis extent;


 


26














 


(d)                                 the proper and economical functioning of
the Building systems or facilities of the Building or any portion thereof shall
not be adversely affected, other than to a de minimis
extent;


 


(e)                                  before proceeding with any Alterations,
other than those that are considered Minor Alterations (as such term is defined
below), Tenant shall obtain Landlord’s written consent, which consent shall not
be unreasonably withheld or delayed provided the conditions of this Article 8
are satisfied, and submit to Landlord for approval plans and specifications for
the work to be performed.  Within ten (10) Operating
Days after its receipt of a submission of plans and specifications, Landlord
shall either consent thereto or specify any objections thereto.  If Landlord does not respond to Tenant’s
request for consent or approval within such ten (10) Operating Day period,
then Tenant shall have the right to give Landlord a second notice requesting
such consent and, provided such second request for approval shall prominently
specify that Landlord’s failure to approve or disapprove the same within five (5) Operating
Days after Landlord’s receipt thereof constitutes an approval thereof, then in
the event Landlord fails to approve or disapprove such plans and specifications
within such 5 Operating Day period, Landlord shall be deemed to have approved
the same.  Landlord may as a condition of
its consent require Tenant (i) to perform all such work at such times and
in such manner as to create the least practicable interference with the use of
the Building by the other tenants and occupants thereof, including, but without
limitation, on an “overtime” basis, (ii) to make revisions in and to its
plans and specifications, and/or (iii) to agree to remove, at or prior to
the Expiration Date, any item of work shown on such plans of an unusual nature,
such as, but not limited to, internal stairways, pantries, lavatories, vaults,
special flooring for computer areas and the like (“Specialty Alterations”), and
to restore the affected portion of the Premises, provided that Landlord
identifies such Specialty Alterations at the time of giving Landlord’s consent
to such Alterations.  Notwithstanding the
foregoing, Tenant shall have no obligation to submit such plans and
specifications or obtain Landlord’s approval in connection with Alterations
that are (x) those of a decorative nature such as painting, wall coverings
and floor coverings and (y) non-structural Alterations which do not affect
Building systems such that the aggregate amount of the costs and expenses for
such non-structural Alterations is less than $250,000 (each, a “Minor
Alteration”), provided that (A) Tenant gives Landlord at least ten (10) days’
prior notice describing such work in reasonable detail, including plans and
specifications, if any, which Tenant has prepared and (B) a building,
alteration or other governmental permit is not required or otherwise filed in
connection therewith.  Notwithstanding
clause (i) above, Tenant shall not be obligated to do such work on an “overtime”
basis except to the extent such work involves core drilling, demolition,
hammering or other activities which, as reasonably determined by Landlord, may
adversely affect the use of the common areas of the Building or the operation
of the Building, result in a reduction of Building services required to be
provided by Landlord pursuant to this Lease, require access to space in the
Building occupied by other tenants, or, other than to a de minimis
extent, interfere with or disturb the use and occupancy of the Building by
other tenants and occupants;


 


(f)                                    before proceeding with any Alterations
for which consent is required by Landlord, any required consent from any
Mortgagee and/or Overlandlord shall have been obtained (Landlord agreeing to
use commercially reasonable efforts to obtain such consent within the same ten (10) day
period that Landlord shall have to consent or submit its objections


 


27

















 


thereto provided that in no event shall Landlord be
required to make any material expenditures or concessions to obtain such
consent);


 


(g)                                 in performing the work involved in such
Alterations, Tenant shall perform, observe and comply with all of the
conditions and covenants set forth in the provisions of this Article;


 


Notwithstanding anything herein to the contrary,
Landlord shall not unreasonably withhold its consent to the following Specialty
Alterations: (1) structural reinforcement of certain portions of the
floors of the Premises as may be reasonable, and Landlord shall cooperate with
Tenant to afford Tenant reasonable access to such other floor(s) of the
Building as necessary in order to perform such structural reinforcement,
provided that such work shall in no event decrease the height of the hung
ceiling of such other floor(s) or necessitate the relocation other wiring
or equipment located within the ceiling, and subject in any event to the rights
of other tenants and the other provisions of this Section 8.1; (2) internal
stairways and associated slab penetrations to connect contiguous floors of the
Premises; (3) a reasonable number of additional bathrooms including
showers therein provided, however, the locations of such bathrooms and showers
shall be reasonably approved by Landlord; and (4) raised floor areas;
provided that Tenant shall remove such Specialty Alterations upon the
Expiration Date or earlier termination of the Lease Term except as set forth in
the last sentence of this paragraph or unless otherwise specified in writing by
Landlord.  In addition, Tenant shall have
the right, at its sole cost and expense, subject to all applicable laws and
governmental regulations, to close off the low-rise elevator bank servicing the
Premises and utilize such elevator lobby space as part of the Premises.  If Tenant elects to close off such low-rise
elevator bank and thereafter elects to lease any of the Offered Space on the
eighteenth (18th) floor of the Building or the 18th Floor Expansion Space,
Tenant, at its sole cost and expense, shall have the right, subject to all applicable
laws and governmental regulations, re-open such elevator bank cause the
low-rise elevators to service the Premises. 
Notwithstanding anything herein to the contrary, upon the expiration or
termination of this Lease Tenant shall not be required to remove or restore a
reasonable number of standard office pantries, one internal stairway per floor,
supplemental HVAC units approved by Landlord under this Lease, any equipment
and installation used to bring additional power to which Tenant is entitled
under this Lease to the Premises.


 


Landlord’s review and approval of Tenant’s plans and
specifications and consent to the performance of the work described therein
shall not be deemed an agreement by Landlord that such plans, specifications
and work conform with applicable law and insurance requirements, nor shall it
be deemed a waiver by Landlord of compliance by Tenant with any provisions of
this Lease, nor shall it impose upon Landlord any liability or obligation with
respect to such work or the performance thereof.


 


8.2                                 CONFORMITY WITH LAW.  Tenant covenants and agrees that any
Alterations made by it to or upon the Premises shall be done in a good and
workmanlike manner and in conformity and compliance with all applicable laws,
ordinances, regulations and requirements of all public authorities having
jurisdiction, and with all applicable requirements of insurers and insurance
rating or underwriting organizations, that new materials and equipment of at
least 


 


28

















 


equal
quality and class to the original installations in the Building shall be
employed therein, that the structure of the Building shall not be endangered or
impaired thereby.


 


8.3                                 PERFORMANCE OF WORK, GOVERNMENTAL APPROVALS, INSURANCE.


 


(a)                                  All Alterations and installation of
furnishings by Tenant (i) shall be coordinated with any work being
performed by Landlord and in such manner as to maintain harmonious labor
relations and not to damage the Building or interfere with or delay Building
construction or operation or increase the cost thereof, (ii) shall not
interfere with the use or occupancy of any other tenant or occupant of the
Building by more than a de minimis extent,
(iii) to the extent connected to or involving any portion of the life
safety systems or Building management system of the Building, shall be
performed by a contractor designated by Landlord in its sole and absolute
discretion provided that the charges of such contractor shall be reasonable in
relation to the charges of contractors providing similar services in other
first class office buildings in midtown Manhattan, and (iv) with respect
to all Alterations and installations which are not the subject of the foregoing
clause (iii), shall be performed by contractors and major trade subcontractors
first reasonably approved by Landlord, such approval not to be unreasonably
withheld or delayed.


 


(b)                                 Tenant shall procure all necessary
governmental permits, licenses and certificates and shall make all required
filings of plans with governmental authorities before making any Alterations
and shall obtain all required governmental approvals upon the completion
thereof.  Landlord shall, at no cost to
Landlord, execute any applications for permits (if the provisions of any
applicable law or legal requirement requires that Landlord join in such
application) necessary in connection with any Alterations regardless of whether
or not Landlord’s approval for such Alterations shall have been obtained;
provided, however, that Landlord’s execution of any such application shall not
be deemed to constitute Landlord’s consent to the performance of the work
described therein, nor an agreement by Landlord that such plans, specifications
and work conform with applicable law and insurance requirements, nor a waiver
by Landlord of compliance by Tenant with any provisions of this Lease, nor
shall it impose upon Landlord any liability or obligation with respect to such
work or the performance thereof.  Tenant
shall use an expediter designated by Landlord in connection with making such
filings and obtaining such permits, licenses, certificates and approvals
provided that the fees charged by such expeditor shall be reasonable in
relation to the charges for similar services provided by similar expeditors
providing similar services to first class office buildings in midtown
Manhattan.  At any and all times during
the period of construction of any Alterations, Landlord shall be entitled to
have a representative or representatives on the site to inspect such
Alterations, and such representative or representatives shall have free and
unrestricted access to any and every part of the Premises.  Landlord shall use reasonable efforts to (i) give
Tenant advance notice of such access (except in the event of an emergency) and (ii) minimize
interference with Tenant’s Work during such access.  Tenant shall keep commercially reasonable
records of the cost of any Alterations in and to the Premises for a period of
six (6) years following any such expenditure (or, at Tenant’s option,
deliver copies of such records to Landlord), and shall, if requested by
Landlord, make the same available to Landlord for use in connection with any
proceeding to review the assessed valuation of the Building or any proceedings
to acquire the Land and Building for public or quasi-public use.


 


29

















 


(c)                                  Tenant agrees to save harmless and
indemnify Landlord and all other Landlord Parties from and against any and all
injury, loss, claims, damage and expense (including reasonable attorneys’ fees
and disbursements actually incurred by Landlord) to any person or property
resulting from the performance of any Alterations.  In addition, over and above the insurance
required to be carried by Tenant pursuant to the provisions of Section 11.2
hereof, Tenant shall carry or cause each contractor to carry worker’s
compensation insurance in statutory amounts covering the employees of all
contractors and subcontractors, and comprehensive general liability insurance
and property damage insurance which provides coverage in respect of the added
risks of construction with such limits as Landlord may reasonably require, but
in no event less than Five Million Dollars ($5,000,000) for injuries arising
out of any one incident, and One Million Dollars ($1,000,000) for any property
damage (all such insurance to be written by companies reasonably approved by
Landlord and naming Landlord, and such other parties as may be reasonably
designated by Landlord, as additional insured parties) and to deliver to Landlord
certificates of all such insurance.


 


(d)                                 In connection with the making of any
Alterations, (i) Tenant shall make all arrangements for, and shall pay all
reasonable expenses incurred by Landlord in connection with, Tenant’s use of
the freight elevator(s) serving the Premises during non-Operating Hours
(it being agreed that Landlord shall reasonably cooperate with Tenant in
connection with the use of the freight elevator(s) serving the Premises),
and (ii) Landlord shall not impose any supervisory charges in connection
with the performance of Alterations, provided, however, Tenant shall promptly
reimburse Landlord within thirty (30) days after Landlord’s demand, as
Additional Rent, for any and all reasonable, actual out-of-pocket costs and
expenses incurred by Landlord in connection with the review of Tenant’s plans
and specifications for any such Alterations by any third-party architect,
engineer or other consultant retained by Landlord.  Notwithstanding anything to the contrary
contained herein or in Exhibit D attached hereto, solely in connection
with Tenant’s initial move-in to the Premises, Tenant shall be entitled to
eight (8) hours of use of the freight elevator(s) during
non-Operating Hours free of charge for each floor of the Premises.


 


8.4                                 LIENS.  Tenant shall promptly pay and discharge all
costs and expenses of any work done in or on the Premises by Tenant or its
subtenants, and its and their agents, employees or contractors, and shall not
do or fail to do any act which shall or may render the Building or any part
thereof, or the Premises or any part thereof subject to any mechanic’s lien or
other lien or security agreement or charge or chattel mortgage or conditional
bill of sale or title retention agreement (hereinafter collectively called “Lien”),
and if any Lien be filed against the Building, the Premises, any Alterations,
or any portion of any of the foregoing, Tenant shall, at Tenant’s own cost and
expense, cause the same to be removed of record by bonding or otherwise within
thirty (30) days after having notice of the filing of any such Lien; and, in
default thereof, Landlord may, in addition to any other rights and remedies it
may have by reason of Tenant’s default, cause any such Lien to be removed of
record by bond, and Tenant shall reimburse Landlord as Additional Rent for all
costs and expenses incidental to the removal of any such Lien by bonding
incurred by Landlord, together with interest thereon at the Lease Interest
Rate.


 


8.5                                 VIOLATIONS; DISRUPTION.  Tenant, at its expense, and with diligence
and dispatch, shall cause to be discharged or cancelled all notices of
violation arising from any Alterations which are issued by the Department of
Buildings of The City of New York or any 


 


30

















 


other
public or quasi-public authority having jurisdiction.  Nothing contained in this Section 8.5
shall prevent Tenant from contesting, in good faith and at its own expense, any
such notices of violation, provided that Tenant shall comply with the
provisions of Section 9.3 hereof. 
In addition, Tenant shall not exercise any of its rights under this Article 8
in such manner as would create any work stoppage, picketing, labor disruption
or dispute or a violation of any of Landlord’s union contracts affecting the
Land or Building, or which would unreasonably interfere with the business of
Landlord or of any tenant or occupant of Building.  In the event of the Tenant’s failure to
comply with the preceding sentence, Tenant shall, promptly upon notice from
Landlord, cease all manner of exercise of such rights which give rise to such
failure to comply.  If Tenant shall fail
to cease such manner of exercise of its rights as aforesaid, Landlord, in
addition to any other rights available to it under this Lease and pursuant to
law, shall have the right to seek an injunction without notice to the
Tenant.  Landlord represents that there
are no notices of violations which remain uncured and which would prevent
Tenant from obtaining permits for, or performing, Tenant’s Work.  Landlord shall promptly after written notice
from Tenant take reasonable action against any other occupant of the Building
whose construction or other activities unreasonably interfere with Tenant’s
ability to perform Tenant’s Work or any Alterations in the Premises.


 


8.6                                 TENANT’S PROPERTY.  Except as otherwise provided in this Section 8.6,
all work, construction, repairs, Alterations, other improvements or
installations made to or upon the Premises (including, but not limited to, the
construction performed by Landlord or Tenant under Article 4 and Exhibit C),
whether or not at the expense of Tenant, shall become part of the Premises and
shall become the property of Landlord upon the Expiration Date or earlier
termination of the Lease Term, and remain upon and be surrendered with the
Premises as a part thereof upon the Expiration Date or earlier termination of
the Lease Term:


 


(a)                                  All personal property not permanently
affixed to the Building, including moveable partitions, business and trade
fixtures, machinery and equipment, communications and office equipment, whether
or not attached to or built into the Premises, which are installed in the
Premises by or for the account of Tenant, at Tenant’s expense and can be
removed without more than de minimis
damage to the Building, and all furniture, furnishings and other moveable
articles of personal property owned by Tenant and located in the Premises (all
of which are herein referred to as “Tenant’s Property”) shall remain the
property of Tenant and may be removed by Tenant or any person claiming under
Tenant at any time or times during the Lease Term and (with the exception of
special cabinet work or property which is built into the Premises and
custom-fitted furniture or cabinetry) shall be removed by Tenant at the expiration
or earlier termination of the Lease Term. 
Tenant shall repair any damage to the Premises caused by the removal by
Tenant or any person claiming under Tenant of any Tenant’s Property from the
Premises.


 


(b)                                 At the Expiration Date or earlier termination
of the Lease Term, unless otherwise specified in writing by Landlord, Tenant
shall remove from the Premises any Specialty Alterations made to the Premises
for which such removal was made a condition of such consent under Section 8.1
or Exhibit C.  Upon such removal
Tenant shall restore the Premises to their condition prior to installation of
such Specialty Alterations and repair any damage caused by such removal and
restoration.


 


31

















 


(c)                                  Any items of Tenant’s Property (except
money, securities and like valuables) which remain on the Premises after the
Expiration Date or earlier termination of the Lease Term may, at the option of
Landlord, be deemed to have been abandoned and in such case may either be retained
by Landlord as its property or may be disposed of without accountability, at
Tenant’s expense, in such manner as Landlord may see fit.


 


(d)                                 If at any time during the Lease Term,
Tenant ceases using any wiring or cabling installed by or on behalf of Tenant
in any portion of the Premises or in any other portions of the Building (other
than a cessation that is temporary and where Tenant intends to resume using
such wiring or cables within a reasonable period of time after such cessation),
Tenant shall promptly give written notice to Landlord of such cessation and,
subject to the applicable requirements of this Lease, shall promptly remove
such unused wiring and cabling at Tenant’s sole cost and expense.  In order for Landlord and Tenant to (i) identify
any wiring or cabling installed by or on behalf of Tenant in any portion of the
Premises or in any other portions of the Building and/or (ii) trace the
starting and terminating points of such wiring and cabling, Tenant shall cause
such wiring and cabling to be labeled and tagged, when installed, with
appropriate identification marks and shall maintain, during the Lease Term for
all then existing wiring and cabling, “as installed” drawings containing a
guide or key to such marks and showing the routing of such wiring and
cabling.  Upon Landlord’s request, Tenant
shall provide to Landlord and Landlord’s representatives and contractors
reasonable access to such “as installed” drawings for inspection and
copying.  Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not have any obligation, upon
the expiration or earlier termination of this Lease, to remove any wiring or
cabling installed by or on behalf of Tenant in any portion of the Premises or
in any other portions of the Building, as long as Tenant has complied with the
obligations set forth in this paragraph.


 


8.7                                 SURVIVAL.  The provisions of this Article 8 shall
survive the expiration or sooner termination of this Lease.


 


ARTICLE 9


 


LAWS, ORDINANCES,
REQUIREMENTS OF PUBLIC AUTHORITIES


 


9.1                                 CERTIFICATE OF OCCUPANCY.  Landlord covenants and agrees that throughout
the Lease Term, the certificate of occupancy issued for the Building will
permit the Premises to be used and occupied for general office purposes.


 


9.2                                 TENANT’S OBLIGATIONS.


 


(a)                                  Tenant shall, at its expense, comply with
all laws and requirements of public authorities and all requirements of
insurance bodies now or hereafter in effect which shall, with respect to the
Premises or the occupancy, use or manner of use of the Premises or to any
abatement of nuisance, impose any violation, order or duty upon Landlord or
Tenant, including without limitation, any violation, order or duty arising from
(i) Tenant’s use of the Premises, (ii) the manner of conduct of
Tenant’s business in the Premises or the operation by Tenant of its
installations, equipment or other property thereon, (iii) any cause or
condition created by or at the instance of Tenant, (iv) the making or
performance of any Alterations, installations or other


 


32

















 


work by Tenant in or on the Premises, including,
without limitation, any Tenant’s Work, or (v) the breach by Tenant of any
of its obligations under this Lease; and Tenant shall make all repairs or
Alterations required thereby, whether structural (in which event all such
repairs or Alterations shall be performed by Landlord and the reasonable cost
thereof shall be paid by Tenant) or nonstructural, ordinary or
extraordinary.  Notwithstanding the
foregoing, Tenant shall not be required to make any Alterations pursuant to the
foregoing clauses (i) or (ii) unless the same are required by reason
of (A) Tenant’s particular manner of use of the Premises other than for
normal and customary ordinary office purposes or (B) any ancillary use
permitted hereunder.  In addition to the
foregoing, Tenant agrees to participate in all fire and other safety compliance
procedures instituted by Landlord and/or public authorities for the Building.


 


(b)                                 Without limiting the foregoing, Tenant also
agrees to comply with the following regulations which are set forth in the
Special Permit, along with the other regulations set forth therein:


 


(1)                                  “The off-street loading berths shall be
used for all truck and service vehicle loading and unloading for the proposed
building, including all deliveries to the owners, tenants and users thereof.


 


(2)                                  “‘NO STANDING, 7:00 A.M. to 7:00 P.M.,
except commercial, vehicles loading and unloading Monday through Saturday’,
along the entire northerly curb of 53rd Street between Lexington and Third
Avenues.


 


(3)                                  “‘NO STANDING, 7:00 A.M. to 7:00 P.M.,
Monday through Saturday’, along the southerly curb of 53rd Street from Third
Avenue to a point approximately 150 feet east of Lexington Avenue.


 


(4)                                  “‘NO STOPPING ANYTIME’ along the
southerly curb of 53rd Street from Lexington Avenue to a point approximately
150 feet east of Lexington Avenue.


 


(5)                                  “‘TOWAWAY ZONE’ for the entire block
between Lexington and Third Avenues.”


 


9.3                                 TENANT’S RIGHT TO CONTEST.  If Tenant receives notice of any violation of
any law or requirement of public authority or requirement of insurance bodies
applicable to the Premises, it shall give prompt notice thereof to
Landlord.  Tenant may, at its expense,
contest the validity or applicability of any such law or requirement of public
authority or requirement of insurance bodies by appropriate proceedings
prosecuted diligently and in good faith, and may defer compliance therewith,
provided that (i) Landlord is not thereby subjected to criminal
prosecution or criminal or civil penalty of any nature, (ii) no unsafe or
hazardous condition remains unremedied, (iii) the Premises, or any part
thereof, shall not be subject to being condemned or vacated by reason of such
non-compliance or such contest, (iv) no insurance policy carried in
respect of the Property by Landlord is cancelled and no premium for any such
policy is increased by reason of such non-compliance or such contest, and (v) such
non-compliance or contest shall not constitute or result in any violation of
any Underlying Lease 


 


33

















 


or any
mortgage on the Building or on an Underlying Lease thereof, and Tenant complies
with all requirements of all such Underlying Leases or mortgages including
those, if any, relating to the furnishing of security.  Tenant hereby agrees to indemnify and save
Landlord harmless from and against any loss, liability, damage and expense
arising out of any such deferral of compliance or contest, including, without
limitation, reasonable attorneys’ fees and disbursements and other expenses
reasonably and actually incurred by Landlord, and Tenant shall keep Landlord
advised as to all settlements of such contest. 
Landlord agrees to execute any document reasonably required by Tenant in
order to permit Tenant effectively to carry on any such contest, provided
Landlord is not thereby subjected to any cost or expense or exposed to any
liability or obligation on account thereof.


 


9.4                                 WINDOW CLEANING.  Tenant will not clean, nor require, permit,
suffer or allow any window in the Premises to be cleaned, from the outside in
violation of Section 202 of the New York Labor Law or of the rules of
the New York City Board of Standards and Appeals or of any other board or body
having or asserting jurisdiction.


 


ARTICLE 10


 


USE


 


10.1                           OFFICE USE.  Tenant shall use and occupy the Premises only
for executive, administrative and general offices in connection with Tenant’s
business and for uses ancillary thereto as described in Section 10.2 and
for no other purpose.  Subject to the
other provisions of this Lease (including all exhibits) and the Rules and
Regulations, Tenant shall have access to the Premises twenty-four (24) hours
per day, seven (7) days per week.


 


10.2                           ADDITIONAL PERMITTED USES.  Tenant may, in addition to using the Premises
for the purposes permitted by Section 10.1 but subject to Tenant’s
compliance in respect thereof with the provisions of Section 9.2, also use
portions of the Premises for the installation, maintenance and operation in the
Premises of (i) electronic data processing equipment, word processing
equipment and business machines, (ii) duplicating equipment, (iii) a
trading floor and (iv) other reasonable ancillary uses customary for
securities traders and financial investment firms consistent with a first-class
office building in Manhattan, in each case used for purposes incidental to the
business of Tenant with electrical loads and floor loads not to exceed the
respective load capacities set forth in Exhibit D.


 


10.3                           RESTRICTIONS.  Tenant shall not suffer or permit the
Premises or any part thereof to be used in any manner, or anything to be done
therein, or suffer or permit anything to be brought into or kept in the
Premises, which would in any way (i) violate any law or requirement of
public authorities or requirement of insurance bodies, (ii) cause
structural injury to the Building or any part thereof, (iii) interfere
with the normal operation of the HVAC, plumbing, electrical or other mechanical
or electrical systems of the Building or the elevators installed therein, (iv) constitute
a public or private nuisance, (v) alter the appearance of the exterior of
the Building, (vi) affect in any adverse way any portion of the interior
of the Building other than the Premises (other than to a de minimis extent), (vii) interfere
with the use or occupancy of any other tenant or occupant of the Building
(other than to a de minimis extent),
(viii) create any offensive odors or noise or (ix) result in the
leakage of fluid or the growth of 


 


34

















 


mold.  Tenant shall not solicit other occupants of
the Building to use wireless internet service that emanates from the
Premises.  Tenant shall reasonably
cooperate with Landlord and other tenants and occupants to resolve any
interference issues relating to Tenant’s wireless internet service (if any)
emanating beyond the Premises or otherwise interfering in any material respect
with any Building systems.


 


10.4                           PROHIBITED USES.  Without limiting the restriction on use set
forth in Section 10.1, Tenant shall not under any circumstance use or
permit the use of the Premises or any part thereof for any of the following
which are expressly prohibited:


 


(a)                                  sale at retail of any products or
materials whatsoever (with the exception of vending machines for use by Tenant’s
employees);


 


(b)                                 the conduct of a public auction of any
kind;


 


(c)                                  the conduct of a commercial bank, trust
company, savings bank, safe deposit or savings and loan association or any
branches of any of the foregoing or a loan company business (except for the
conduct of a credit union or benefit plan for Tenant’s employees) in each case
on a walk-in basis open to the public;


 


(d)                                 the issuance and sale of traveller’s
checks, foreign drafts, letters of credit, foreign exchange or domestic money
orders or the receipt of money for transmission in each case on a walk-in basis
open to the public;


 


(e)                                  an employment agency, other than an
executive search firm or other similar staffing agency provided that the invitees
of same are limited to appointments and the Premises are not open to the public
on a walk-in basis);


 


(f)                                    offices or agencies of a foreign
government or political subdivisions thereof;


 


(g)                                 offices of any governmental bureau or
agency of the United States or any state or political subdivision thereof;


 


(h)                                 offices of any charitable, religious,
union or other not-for-profit or any tax exempt entity within the meaning of
Section 168(j)(4)(A) of the Internal Revenue Code of 1986, as amended, or any
successor statute, or rule or regulation applicable thereto;


 


(i)                                     offices of any public utility company,
other than corporate, executive or legal staff offices;


 


(j)                                     data processing services rendered
primarily to others than Tenant and which are not strictly ancillary to Tenant’s
business;


 


(k)                                  health care professionals other than for
the purpose of providing health care services for Tenant’s employees;


 


35

















 


(l)                                     schools or other training or educational
uses (other than those which are strictly ancillary to the Tenant’s business,
such as periodic training of Tenant’s personnel and Space Occupants);


 


(m)                               a clerical support business rendering
clerical support services primarily to others than Tenant or performing
functions other than those which are strictly ancillary to Tenant’s business;


 


(n)                                 reservation centers for airlines or for
travel agencies;


 


(o)                                 broadcasting centers for communications
firms, such as radio and television stations;


 


(p)                                 any pornographic or obscene purposes, any
commercial sex establishment, any pornographic, obscene, nude or semi-nude
performances, modeling, materials, activities or sexual conduct or any other
use that has or could reasonably be expected to have a material adverse effect
on Landlord’s financial condition, the value of the Building or the income
therefrom;


 


(q)                                 a showroom; and


 


(r)                                    any other use or purpose which, in the
reasonable judgment of Landlord, is not in keeping with the character and
dignity of the Building or which is prohibited under the Rules and
Regulations.


 


10.5                           LICENSES AND PERMITS.  If any governmental license or permit, other
than a certificate of occupancy shall be required for the proper and lawful
conduct of Tenant’s business in the Premises, or any part thereof, including,
specifically, but without limitation, any place of assembly permit, Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same to Landlord for inspection. 
Tenant shall at all times comply with each such license and permit and
shall not at any time use or occupy, or suffer or permit anyone to use or
occupy, the Premises, or do or permit anything to be done in the Premises, in
violation of the certificate of occupancy for the Building.


 


ARTICLE 11


 


INDEMNITY AND
INSURANCE


 


11.1                           TENANT’S INDEMNITY.  Subject to Section 11.7 hereof, to the
maximum extent permissible by law, Tenant agrees to indemnify and save harmless
the Landlord Parties (as hereinafter defined) from and against all claims of
whatever nature to the extent arising from (a) the use, occupancy, conduct
or management of the Premises or any business thereon, (b) any work or
thing whatsoever done, or any condition created (other than by any of the
Landlord Parties) in or about the Premises or (c) any negligent or
otherwise wrongful act or omission (where there is a duty to act) of Tenant or
any of its subtenants, licensees or (while on the Property) invitees or its or
their employees, agents or contractors, whether resulting in injury or death to
persons or damage to property or otherwise to the extent same occurs on the
Property.


 


36














 


The foregoing indemnity and hold harmless agreement
shall include all reasonable out-of-pocket costs, expenses and liabilities
(including, without limitation, reasonable attorneys’ fees and disbursements)
actually incurred by the Landlord Parties or any them in or in connection with
any such claim or any action or proceeding brought thereon, and the defense
thereof.  In case any action or
proceeding shall be brought against the Landlord Parties or any of them by reason
of any such claim, Tenant, upon notice from Landlord, shall resist and defend
such action or proceeding on behalf of the applicable Landlord Parties by
counsel for the insurer (if such claim is covered by insurance) or otherwise by
counsel reasonably satisfactory to Landlord. 
In no event shall Tenant be obligated to indemnify or save harmless the
Landlord Parties or any of them from or in respect of any claim or matter which
results from the negligence or wrongful conduct of any such party or parties.


 


11.2                           COMMERCIAL GENERAL LIABILITY INSURANCE.  Tenant agrees to
maintain in full force and effect from the first Commencement Date or such
earlier date upon which Tenant first enters the Premises or any portion thereof
for any reason, throughout the Lease Term and thereafter, so long as Tenant is
in occupancy of any part of the Premises, a policy of commercial general
liability and property damage insurance, with deductibles, exclusions and
exceptions which are commercially reasonable, under which Landlord and Landlord’s
managing agent (and such other persons as Landlord may reasonably request by
notice to Tenant from time to time as additional insureds) and Tenant are named
as insureds, in the broadest form of such coverage from time to time generally
available in New York City, and under which policy the insurer agrees to
indemnify and hold Landlord, and those designated by Landlord as additional
insureds, harmless from and against all cost, expense and/or liability arising
out of or based upon any and all claims for which provision is made in Section 11.1
hereof.  Each such policy shall be issued
by one or more insurers in a financial size category of not less than VIII and
with general policy holders ratings of not less than A-, as rated in the most
current available A.M. Best insurance reports, or the then equivalent
thereof, and licensed to do business in the State of New York and authorized to
issue such policies.  Each policy of
insurance procured by Tenant shall contain endorsements providing that (i) such
policy shall be noncancellable and non-amendable with respect to Landlord and
Landlord’s said designees without thirty (30) days’ prior notice to Landlord
and such designees, and (ii) Tenant shall be solely responsible for the
payment of premiums therefor notwithstanding that Landlord or any such designee
is or may be named as an additional insured. 
As of the Commencement Date hereof, the minimum limits of liability of
such insurance shall be Five Million Dollars ($5,000,000) combined single
limit, and from time to time during the Lease Term such limits shall be
increased to the prevailing level customarily carried with respect to similarly
sized premises in similar properties in New York City.


 


11.3                           OTHER INSURANCE.  Tenant agrees to maintain in full force and
effect from the first Commencement Date or such earlier date upon which Tenant
first enters the Premises or any portion thereof for any reason, throughout the
Lease Term and thereafter, so long as Tenant is in occupancy of any part of the
Premises (a) “all risk” insurance in an amount sufficient to cover the
cost of personal property, trade fixtures, furniture, furnishings, equipment
and other Tenant’s Property, Alterations and any paneling or other wall
finishes or coverings other than normal painting, (b) workers’
compensation insurance, as required by law, (c) a New York Disability
Benefits Law Policy and (d) such other insurance in such amounts as
Landlord or any Mortgagee or Overlandlord reasonably requests from time to time
provided that such insurance 


 


37

















 


is
then typically required of tenants in comparable first-class office buildings
in Manhattan.  Such policies shall be
written by an insurer of the Best financial size category and general policy
holders rating specified in Section 11.2, licensed to do business in the
State of New York and authorized to issue such policies.


 


11.4                           CERTIFICATES OF INSURANCE.  On or before the first Commencement Date or
such earlier date upon which Tenant first enters the Premises or any portion
thereof for any reason, Tenant shall furnish Landlord with certificates
evidencing the aforesaid insurance coverage, and renewal certificates shall be
furnished to Landlord at least ten (10) days prior to the expiration date
of each policy for which a certificate was theretofore furnished.


 


11.5                           NO VIOLATION OF BUILDING POLICIES.  Tenant shall not
knowingly commit or permit any violation of the policies of fire, boiler,
sprinkler, water damage or other insurance covering the Building and/or the
fixtures, equipment and property therein carried by Landlord, or do or permit
anything to be done, or keep or permit anything to be kept, in the Premises,
which in case of any of the foregoing, (i) would result in termination of
any such policies, (ii) would adversely affect Landlord’s right of
recovery under any of such policies or (iii) would result in reputable and
independent insurance companies refusing to insure the Building or the property
of Landlord in amounts reasonably satisfactory to Landlord.  The use of the Premises for the purposes
approved herein shall not breach the provisions of this Section 11.5.


 


11.6                           TENANT TO PAY PREMIUM INCREASES.  If, because of
anything done, caused or permitted to be done, or omitted by Tenant, the rates
for liability, fire, boiler, sprinkler, water damage or other insurance (with
all extended coverage) on the Building or on the property and equipment of
Landlord shall be higher than they otherwise would be, Tenant shall reimburse
Landlord for the additional insurance premiums thereafter paid by Landlord
which shall have been charged because of the aforesaid reasons, such
reimbursement to be made from time to time within thirty (30) days after
Landlord’s demand therefor.  In any
action or proceeding wherein Landlord and Tenant are parties, a schedule or “make
up” of insurance rates for the Building or Premises issued by the New York Fire
Insurance Exchange, or other body establishing fire insurance rates for said
Building shall be conclusive evidence of the facts therein stated and of the
several items and charges in the insurance rates then applicable to the
Building or Premises.


 


11.7                           WAIVER OF SUBROGATION.  The parties hereto (and in the case of
Tenant, its subtenants and other occupants of the Premises) waive and release
any and all rights of recovery against the other, and in the case of Landlord,
against all “Tenant Parties” (hereinafter defined), and in the case of Tenant,
against all “Landlord Parties” (hereinafter defined), for loss of or damage to
the property of the waiving/releasing party to the extent such loss or damage
is insured against under any insurance policy carried by Landlord or Tenant (or
subtenant or occupant), or which would have been so insured had the other party
carried the insurance it was required to hereunder.  In addition, the parties hereto (and in the
case of Tenant, its subtenants and other occupants of the Premises) (i) shall
procure an appropriate clause in, or endorsement on, any fire or extended
coverage insurance policy covering the Premises, the Building and personal
property, fixtures and equipment located thereon or therein, pursuant to which
the insurance companies waive subrogation or consent to a waiver of right of
recovery and (ii) subject to obtaining such clauses or endorsements of
waiver of subrogation or consent to a 


 


38

















 


waiver
of right of recovery, hereby agree not to make any claim against or seek to
recover from the other for any loss or damage to its property or the property
of others resulting from fire or other hazards covered by such fire and
extended coverage insurance; provided, however, that the release
and covenant not to sue herein contained shall be limited by and coextensive
with the terms and provisions of the waiver of subrogation clause or
endorsements or clauses or endorsements consenting to a waiver of right of
recovery.  In the event that Landlord or
Tenant (and in the case of Tenant, its subtenants and other occupants of the
Premises) shall be unable at any time to obtain one of the provisions referred
to above in any of its insurance policies, Landlord and/or Tenant (and in the
case of Tenant, its permitted subtenants and other permitted occupants of the
Premises), as the case may be, shall be named as an additional insured.  Tenant, and its subtenants and other
occupants, acknowledge that Landlord will have no obligation to carry insurance
on nor be responsible for damage to, Alterations (if any), Tenant’s Property or
other personal property, and that Landlord will have no obligation to carry
insurance against, nor be responsible for, any loss suffered by Tenant,
subtenants or other occupants due to interruption of Tenant’s, or any subtenant’s
or occupant’s business.  For the purposes
of this Lease, the term “Landlord Parties” shall mean Landlord, any affiliate
of Landlord, Landlord’s managing and leasing agents for the Building, Landlord’s
asset manager for the Building, the New York City Transit Authority, each
Overlandlord, each Mortgagee, and each of their respective direct and indirect
partners, officers, shareholders, directors, members, trustees, beneficiaries,
employees, principals, contractors, licensees, agents and representatives.  For the purposes of this Lease, the term “Tenant
Parties” shall mean Tenant, any affiliate of Tenant, any permitted subtenant,
any permitted assignee, or any other permitted occupant of the Premises, and
each of their respective direct or indirect partners, officers, shareholders,
directors, members, trustees, beneficiaries, employees, principals,
contractors, licensees, agents and representatives.


 


11.8                           LANDLORD’S INDEMNITY.  Subject to Section 11.7 hereof, to the
maximum extent permitted by law, Landlord shall indemnify, defend and hold
harmless the Tenant Parties from and against any and all claims against any of
such parties to the extent arising from (i) the performance by Landlord or
any of its employees, agents or contractors of any alterations, improvements,
repairs or other work in the Building or the Premises and (ii) any negligent
or otherwise wrongful act or omission (where there is a duty to act) of
Landlord or any of its employees, agents or contractors whether resulting in
injury or death to persons or damage to property or otherwise to the extent
same occurs on the Property, except, in each case, to the extent that any such
claim results from the negligence or willful misconduct of any Tenant Party;
provided, however, that in no event shall Landlord be liable for any loss of
business or other consequential damages.


 


The foregoing indemnity and hold harmless agreement shall include all
reasonable out-of-pocket costs, expenses and liabilities (including, without
limitation, reasonable attorneys’ fees and disbursements) actually incurred by
the Tenant Parties or any of them in or in connection with any such claim or
any action or proceeding brought thereon, and the defense thereof.  In no event shall Landlord be obligated to
indemnify or save harmless the Tenant Parties or any of them from or in respect
of any claim to the extent the same results from the negligence or wrongful
conduct of the Tenant Parties or any of them. 
In case any action or proceeding shall be brought against the Tenant
Parties or any of them by reason of any such claim, Landlord, upon notice from
Tenant, shall resist and defend such action or proceeding on behalf of the
applicable


 


39

















 


Tenant Parties by
counsel for the insurer (if such claim is covered by insurance) or otherwise by
counsel reasonably satisfactory to Tenant.


 


ARTICLE 12


 


FIRE, CASUALTY OR TAKING


 


12.1                           RIGHT TO TERMINATE LEASE.  Tenant shall give prompt notice to Landlord
in case of fire or other casualty in the Premises.  If (a) so much of the Building is
damaged or rendered untenantable (whether or not the Premises or a portion
thereof shall be damaged) by fire or other cause that Landlord shall determine
not to restore the same or to demolish the remainder thereof; or (b) if
the Premises shall suffer damage or be rendered untenantable by fire or other
casualty and Landlord shall reasonably determine (i) that such portion of
the Premises cannot be reasonably expected to be restored or rendered
tenantable under a normal working schedule within a period of twelve (12)
months after the occurrence of such damage or destruction or (ii) that
each Overlandlord and Mortgagee will not permit Landlord to apply the net
proceeds of Landlord’s insurance to the restoration of the Building or the
Premises and any such refusal to grant permission shall not have been
occasioned or permitted by reason of a default by Landlord under any Mortgage
or Underlying Lease unrelated to a default by Tenant under this Lease, then and
in any such event Landlord shall have the right to terminate this Lease by
notice to Tenant given within ninety (90) days of the occurrence of such fire
or other casualty, provided that Landlord shall not terminate this Lease
pursuant to the foregoing clause (ii) if Landlord in fact restores the
Building.  If either (y) the
Premises shall be totally or substantially damaged or rendered wholly or
substantially untenantable (whether or not any other portions of the Building
shall be damaged) or (z) the Building shall be substantially damaged, so
that Tenant’s access to and use and enjoyment of the Premises shall be rendered
substantially impossible, whether or not the Premises shall be damaged, and in
case of either (y) or (z) Landlord determines that the same cannot
reasonably be expected to be restored or rendered tenantable under a normal
working schedule within a period of twelve (12) months after the occurrence of
such damage or destruction, then Landlord shall promptly notify Tenant of such
fact, and within thirty (30) days thereafter either Landlord or Tenant may
terminate this Lease by notice to the other party.  If during the last year of the Lease Term the
Building or the Premises shall be damaged by fire or casualty, and if such fire
or casualty damage, whether to the Premises or the Building, cannot reasonably
be expected to be repaired or restored within ninety (90) days from the time
that repair or restoration work would commence or prior to the Expiration Date,
whichever first occurs, then Landlord or Tenant shall have the right, by giving
notice to the other not later than thirty (30) days after the occurrence of
such damage, to terminate this Lease.  If
either Landlord or Tenant shall give notice of termination pursuant to this
Section, the Lease Term shall expire by lapse of time upon the date which is
thirty (30) days after such notice is given and Tenant shall vacate the
Premises and surrender the same to Landlord. 
Upon the termination of this Lease under the conditions provided for in
this Section, Tenant’s liability for rent shall cease as of the date of such
termination, subject, however, to abatement thereof between the date of such
casualty and the date of such termination pursuant to Section 12.3
below.  Tenant hereby expressly waives
the provisions of Section 227 of the Real Property Law or any like law
which may hereafter be enacted and agrees that the foregoing provisions of this
Article shall govern and control in lieu thereof, this Article being
an express agreement governing any case of damage or destruction of the
Premises by fire or other casualty.


 


40

















 


12.2                           RESTORATION OF THE PREMISES.  If the Building or any portion thereof is
damaged by fire or other casualty and this Lease is not terminated pursuant to Section 12.1,
Landlord, promptly after such damage and the determination of the net amount of
insurance proceeds available, shall use due diligence to restore the Premises
and the Building as nearly as possible to their condition prior to such fire or
other casualty.  Notwithstanding the foregoing,
Landlord shall not be obligated to expend for such repairs and restoration any
amount in excess of the net insurance proceeds made available to Landlord after
deduction therefrom of Landlord’s expenses in obtaining such proceeds and any
amounts applied by any Overlandlord or Mortgagee to obligations other than
restoration of the Building, provided that any such shortfall shall not have
been occasioned by reason of a default by Landlord under any Mortgage or
Underlying Lease unrelated to a default by Tenant under this Lease.  If such proceeds shall be insufficient to
effect such restoration and Landlord elects not to effect such restoration,
Landlord shall promptly notify Tenant of such fact, and within thirty (30) days
thereafter, Tenant may terminate this Lease by notice to Landlord and the Lease
shall terminate as of the date of such notice with the same force and effect as
if such date were the date originally established as the Expiration Date
hereof.  In no event shall Landlord be
obligated to repair or restore Tenant’s Work, Alterations, Tenant’s Property or
paneling or other finishes, carpeting or wall coverings.


 


Where Landlord is obligated or otherwise elects to
effect restoration of the Premises, unless such restoration is completed within
twelve (12) months from the date of the casualty (such period to be subject,
however, to extension where the delay in completion of such work is due to
causes beyond Landlord’s reasonable control (but in no event beyond eighteen
(18) months from the date of the casualty)), Tenant shall have the right to
deliver to Landlord a written non-binding notice of Tenant’s intent to
terminate this Lease (a “Notice of Intent to Terminate”).  Following Tenant’s delivery of any such
Notice of Intent to Terminate, Landlord shall have thirty (30) days (“Landlord’s
30-Day Completion Period”) to substantially complete such restoration.  If Landlord shall have failed to
substantially complete such restoration within Landlord’s 30-Day Completion
Period, Tenant shall then have the right to deliver to Landlord, not later than
thirty (30) days after the expiration of Landlord’s 30-Day Completion Period, a
written notice of termination, and such termination to take effect as of the
date of delivery with the same force and effect as if such date were the date
originally established as the Expiration Date hereof.  If at any time during such 12 month period
(as extended) Landlord reasonably believes that such restoration shall not be
completed within such period, Landlord shall give notice to Tenant of such
reason, and Tenant shall have the right to terminate this Lease within thirty
(30) days after such notice is given, such termination to take effect as of the
thirtieth (30th) day after such notice is given, with the same force and effect
as if such date were the date originally established as the Expiration Date
hereof.


 


12.3                           PAYMENT OF RENT FOLLOWING CASUALTY.  Until this Lease is
terminated pursuant to Section 12.1 or, if this Lease is not so
terminated, until (a) the expiration of such time as is reasonably
required for Tenant to restore Tenant’s Alterations (but in no event more than
one-hundred eighty (180) days after Landlord’s restoration work has been
completed pursuant to Section 12.2) or (b) the date Tenant completes
restoration of Tenant’s Alterations, whichever of (a) or (b) is
earlier, the Annual Fixed Rent and Tenant’s Share of Taxes and Operating
Expenses shall be apportioned or adjusted according to the part of the Premises
which is usable by Tenant. 
Notwithstanding the foregoing, if a Critical Area shall be subject to a
casualty, the rent for the whole of the Premises shall be abated as of the date
of such casualty so 


 


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that a
casualty affecting a Critical Area is deemed a casualty affecting the whole of
the Premises provided that Tenant cannot and does not use the whole of the
Premises for the normal conduct of Tenant’s business.  No damages, compensation or claims shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Premises or of the
Building.  If rent abates in respect of
all or any portion of the Premises and Tenant reoccupies the Premises or such
portion, thereof, or any part thereof, for the conduct of Tenant’s business
operations during the period in which restoration work is taking place and
prior to the date that the same is made completely tenantable, the Annual Fixed
Rent allocated to the space so reoccupied shall be payable, and Tenant’s Share
shall increase by the portion thereof allocable to such space, from the date
which is five (5) Operating Days after notice from Landlord that such
space is ready for reoccupancy. 
Notwithstanding anything in this Section to the contrary, if
Landlord shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) payable by reason of any damage to the Building or the
Premises under Landlord’s insurance policies by reason of any action or
inaction by Tenant or failure by Tenant to comply with any of the provisions of
this Lease (including without limitation Sections 9.3 and 11.5 hereof), then
without prejudice to any other remedy which may be available against Tenant,
the abatement of rent provided for in this Section 12.3 shall not be
effective to the extent of the uncollected insurance proceeds, and the amount
of any abatement theretofore taken by Tenant shall be immediately payable to
Landlord within thirty (30) days after demand therefor.


 


12.4                           UNINSURED CASUALTY.  Notwithstanding anything to the contrary
contained in this Lease, if the Building or the Premises shall be substantially
damaged by fire or casualty as the result of a risk not covered by the forms of
casualty insurance at the time maintained by Landlord and such fire or casualty
damage cannot, in the ordinary course, reasonably be expected to be repaired
within thirty (30) days from the time that repair work would commence, Landlord
may, at its election, terminate the Lease Term by notice to Tenant given within
thirty (30) days after such loss.  If
Landlord shall give such notice, then this Lease shall terminate as of the date
of such notice with the same force and effect as if such date were the date
originally established as the Expiration Date hereof.


 


12.5                           LANDLORD NOT TO INSURE ALTERATIONS OR TENANT’S PROPERTY.  Landlord is not
required to carry insurance of any kind on Tenant’s Work, Alterations, Tenant’s
Property or Tenant’s paneling or other finishes, carpeting or wall coverings or
any telephone, computer or communications systems, cabinet work or special
decorative effects and shall not be obligated to repair any damage thereto or
to replace the same.


 


12.6                           EMINENT DOMAIN — COMPLETE OR SUBSTANTIAL TAKING.  If all or
substantially all of the Building or of the Premises shall be taken by
condemnation or in any other manner for any public or quasi-public use or
purpose (other than for temporary use or occupancy), the Lease Term shall
forthwith cease and terminate as of the date of vesting of title by reason of
such taking (which date is hereinafter referred to as the “date of the taking”),
and the rent shall be apportioned as of such date.  If such portion of the Building shall be so
taken so that substantial structural alterations or reconstruction of the
Building shall be necessary as a result of such taking (whether or not the
Premises be affected), which alterations or reconstruction Landlord determines
will take at least 180 days to complete, Landlord may, at its option, terminate
this Lease and the Lease Term and estate hereby granted as of the date of such 


 


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vesting
of title by notifying Tenant in writing of such termination within sixty (60)
days following the date of the taking.


 


12.7                           EMINENT DOMAIN — PARTIAL TAKING.  If any part, but
less than all or substantially all, of the Premises shall be so taken and this
Lease shall not be terminated pursuant to Section 12.6, then the part so
taken shall no longer constitute part of the Premises but this Lease shall
otherwise remain unaffected by such taking; provided, however, that Tenant may
elect to terminate the Lease Term in the event of:


 


(i)                                     a taking of more than twenty-five percent
(25%) of the total rentable area of the Premises, or


 


(ii)                                  a taking that has a material adverse
effect on Tenant’s access to the Building or the Premises, if Landlord
determines that it will be unable to provide or in fact fails to provide
adequate alternative access to the Premises within one hundred eighty (180)
days thereafter, or


 


(iii)                               a taking that results in the practical taking of the
whole of the Premises with respect to Tenant’s use for the operation of Tenant’s
business,


 


by giving notice of such election to Landlord not
later than sixty (60) days after Tenant’s receipt from Landlord of notice of such
taking or the date of such taking, whichever first occurs, or not later than
thirty (30) days after such one hundred eightieth day, as the case may be.  If notice of termination of this Lease shall
be given pursuant to this Section, then upon such date as may be specified by
Tenant by notice to Landlord, which date shall be not earlier than thirty (30)
and not later than sixty (60) days after the date of Tenant’s notice, the Lease
Term shall terminate as of the date specified in such notice and the rent shall
be apportioned as of such date of termination. 
Upon a partial taking and this Lease continuing in force as to any part
of the Premises,


 


(a)                                  the Annual Fixed Rent and Tenant’s Share
of Taxes and Operating Expenses shall be equitably reduced for the remainder of
the Lease Term, according to the nature and extent of the loss of use of the
Premises suffered by Tenant; and


 


(b)                                 Landlord shall, at its expense, restore
with reasonable diligence the remaining portions of the Premises as nearly as
practicable to the same condition as it was in prior to such condemnation or
taking; provided, however, that Landlord shall not be obligated to expend for
such restoration and for restoration of the remainder of the Building any
amount in excess of the net condemnation proceeds actually received by
Landlord.  If such proceeds shall be
insufficient to effect such restoration and Landlord elects not to effect such
restoration, Landlord shall promptly notify Tenant of such fact, and within
thirty (30) days thereafter, Tenant may terminate this Lease by notice to
Landlord and the Lease shall terminate as of the date of such notice with the
same force and effect as if such date were the date originally established as
the Expiration Date hereof.  Proceeds of
any award applied by the holder of any mortgage to reduction of the
indebtedness secured thereby shall be deemed to have been received by Landlord.


 


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(c)                                  If a Critical Area shall be so taken and
on account thereof Tenant cannot and does not use the entire Premises for the
normal conduct of Tenant’s business, the rent shall be abated as of such date
of the taking, and such abatement shall continue until (i) Tenant shall be
able to relocate all components of Tenant’s business that occupy the Critical
Areas affected by the taking to another portion the Premises not subject to the
taking, or (ii) Tenant reasonably determines that the components of the
Critical Area cannot reasonably be relocated to the remaining portions of the
Premises, and in such event Tenant may, at its option, terminate this Lease and
the Lease Term by notifying Landlord in writing of such termination within
sixty (60) days following the date of the taking.


 


12.8                          LANDLORD TO RECEIVE ENTIRE AWARD.  In the event of any
condemnation or taking hereinabove mentioned of all or a part of the Building
(whether or not the Premises be affected) Landlord shall be entitled to receive
the entire award in the condemnation proceeding, including any award made for
the value of the estate vested by this Lease in Tenant, and Tenant hereby
expressly assigns to Landlord any and all right, title and interest of Tenant
now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award.  The foregoing, however, shall not be deemed
to preclude Tenant from recovering a separate award for Tenant’s moving
expenses and Tenant’s Property, but only provided that such award does not
reduce and is not payable out of the amount for the Land and the Building.


 


ARTICLE 13


 


ASSIGNMENT, SUBLETTING, MORTGAGING


 


13.1                          LANDLORD’S CONSENT REQUIRED.


 


(a)                                  Except as specifically permitted by this
Article, Tenant shall not, by operation of law or otherwise, assign, mortgage
or encumber this Lease, or sublet or permit the Premises or any part thereof to
be used by others.  If and so long as
Tenant is a corporation with fewer than five hundred (500) shareholders or a
limited liability company or a partnership, an assignment, within the meaning
of this Article 13, shall be deemed to include one or more sales or
transfers of stock or membership or partnership interests, by operation of law
or otherwise, or the issuance of new stock or membership or partnership
interests, by which an aggregate of more than fifty percent (50%) of Tenant’s
stock or membership or partnership interests shall be vested in a party or
parties who are not stockholders or members or partners as of the date
hereof.  For the purpose of this Section 13.1,
ownership of stock or membership or partnership interests shall be determined
in accordance with the principles set forth in Section 544 of the Internal
Revenue Code of 1986, as amended from time to time, or the corresponding
provisions of any subsequent law.  In
addition, the merger or consolidation of Tenant into or with any other entity,
or the sale of all or substantially all of its assets, shall be deemed to be an
assignment within the meaning of this Article 13.  The limitations set forth in this Section 13.1(a) shall
be deemed to apply to subtenant(s), assignee(s) and guarantor(s) of
this Lease.


 


(b)                                 Anything in the foregoing Section 13.1(a) to
the contrary notwithstanding, (i) transactions with an entity into or with
which Tenant is merged or consolidated, (ii) transactions with an entity
to which all or substantially all of Tenant’s assets (including this 


 


44

















 


Lease) or stock are
transferred as a going concern, or (iii) an assignment of this Lease or a
subletting of the Premises to an entity which controls or is controlled by
Tenant or is under common control with Tenant (an “Affiliate”) which does not
result in a physical demise of separate space, shall not require Landlord’s
consent under this Article 13; provided that, with respect to transactions
described in clause (i) or clause (ii) above: (A) the successor
to Tenant has a tangible net worth computed in accordance with GAAP at least
equal to the tangible net worth of Tenant immediately prior to such merger,
consolidation or transfer, (B) the creditworthiness, earnings and earnings
forecast of the successor to Tenant shall be comparable to that of Tenant
immediately prior to the date of such merger, consolidation or sale of Tenant’s
stock or assets, as the case may be and (C) proof reasonably satisfactory
to Landlord (which may reasonably estimated) of such tangible net worth,
creditworthiness and earnings shall have been delivered to Landlord at least
ten (10) days prior to the effective date of any such transaction; and
provided that, with respect to transactions described in clause (i), (ii) or
(iii) above: (1) a copy of any applicable instrument of assignment or
sublease shall have been delivered to Landlord at least ten (10) days
prior to the effective date of any such transaction (unless such transaction is
a sublease, license or space sharing arrangement with an Affiliate which does
not result in a physical demise of separate space), (2) any successor to
Tenant agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant
hereunder, (3) in no event shall Tenant be released from its obligations
under this Lease, (4) any such transfer or transaction is for a legitimate
business or tax purpose of Tenant other than a transfer of Tenant’s interest in
this Lease, (5) the successor or Affiliate of Tenant shall be of good
reputation and engaged in a business or activity which is in keeping with the
standards of the Building and (6) the provisions of Section 13.5(b),
(e), (f), (g), (h), (j) and (k) and Section 13.7 hereof shall be
satisfied.  If any Affiliate to whom
Tenant shall have assigned this Lease or sublet all or any portion of the
Premises shall thereafter cease to be an Affiliate of Tenant, then the
continuation of such entity’s tenancy or occupancy for a period in excess of
six (6) months after the date such entity ceased to be an Affiliate of
Tenant shall be subject to Landlord’s consent pursuant to this Article 13.  The Tenant originally named in this Lease
together with any permitted successors and assigns under this Section 13.1(b) is
sometimes referred to herein as “Original Tenant”.


 


(c)                                  Anything in the foregoing Section 13.1(a) to
the contrary notwithstanding, Landlord shall not unreasonably withhold or delay
its consent to the occupancy of offices within the Premises by any individual
or business entity who or which is a client, service provider or otherwise has
a bona fide material business relationship with Tenant (a “Space Occupant”),
provided that (i) each Space Occupant shall be of good reputation, and
engaged in a business or activity which is in keeping with the standards of the
Building and which is a permitted use in accordance with the provisions of Article 10
hereof, (ii) the Space Occupants shall not occupy, in the aggregate, more
than ten percent (10%) of the rentable area of the Premises actually occupied by
Tenant, (iii) the portions of the Premises occupied by the Space Occupants
shall be physically part of, and not separately demised from, the remainder of
the Premises occupied by Tenant, (iv) no Space Occupant shall have a
separate entrance, (v) no Space Occupant shall have any signage outside of
the Premises, nor any listing on the Building’s lobby directory, and (vi) Tenant
shall give Landlord a Space Occupant Notice (as hereinafter defined) with
respect to each such Space Occupant at least thirty (30) days prior to the
commencement of such Space Occupant’s occupancy in the Premises.  Each such occupancy shall be subject and
subordinate to this Lease 


 


45

















 


and to the matters to
which this Lease is or shall be subordinate, shall be terminable on not more
than thirty (30) days notice, and in the event of the termination of this
Lease, such occupancy shall immediately terminate.  Occupancy by a Space Occupant shall not be
deemed to vest in such Space Occupant any right or interest in this Lease nor
shall it relieve, release, impair or discharge any of Tenant’s obligations
hereunder.  Any occupancy agreement which
provides for the subtenant an entrance and reception area separate from those
used by Tenant, shall be deemed to be “ordinary subletting” which ordinary subletting
shall be governed by the remaining provisions of Article 13 hereof.  Each “Space Occupant Notice” given by Tenant
to Landlord pursuant to this Section 13.1 shall include (A) the name
and the nature of the business or occupation of such Space Occupant and (B) the
material terms of such Space Occupant’s occupancy.  The rights granted by this Section 13.1(c) are
personal to Original Tenant and shall not be transferred, assigned or exercised
by any other party.


 


(d)                                 Anything in the foregoing Section 13.1(a) to
the contrary notwithstanding, occupancy of a portion of the Premises by an
Affiliate that does not result in a physical demise of separate space shall not
require Landlord’s consent or notice to Landlord.  For the avoidance of doubt, occupancy by such
an Affiliate of an entire floor of the Premises, or so much of a floor that
then constitutes the entire portion of the Premises located on such floor,
shall not constitute a physical demise of separate space.  Upon Landlord’s request from time to time,
Tenant shall provide Landlord with a list of Affiliates in the Premises.


 


(e)                                  Anything in the foregoing Section 13.1(b) to
the contrary notwithstanding, JT Partners LLC shall be deemed to be an
Affiliate of Tenant so long as Tenant owns at least twenty percent (20%) of the
voting securities thereof.


 


13.2                          OFFER NOTICE.


 


(a)                                  If Tenant shall have received and negotiated a bona fide
written offer from an independent third party which it desires to accept to
sublet all or any part of the Premises or to assign this Lease, Tenant shall
submit to Landlord a notice (any such notice being hereinafter called an “Offer
Notice”) containing the following:


 


(i)                                     the name and address of the proposed
subtenant or assignee and a brief description of such person’s or entity’s
business, current financial information in respect of such person or entity
(including, without limitation, its most recent balance sheet and income
statements certified by its chief financial officer or a certified public
accountant), the identity of any broker entitled to a commission in respect of
such subletting or assignment and the commission, if any, payable to such
broker, and any other information reasonably requested by Landlord; and


 


(ii)                                  a duplicate original of the offer,
together with an executed copy of the proposed instrument of assignment or
sublease (both containing, in the case of an assignment, a provision for
assumption by the assignee of all of the terms, covenants, conditions and
agreements herein contained on the Tenant’s part to be performed for the Lease
Term), the effective date of which shall be at least thirty (30) Operating Days
but not more than ninety (90) Operating Days after the date of the giving of
such notice, which shall be conditioned on Landlord’s consent thereto and which
shall comply with the provisions of Section 13.5; and


 


46

















 


(iii)                               executed copies of all other agreements,
if any, relating to the proposed assignment or sublease and, if not fully
disclosed by such agreements, a statement of all consideration to be received
by Tenant for or in connection with such assignment or sublease (including,
without limitation, any payment to be made for Tenant’s Property or leasehold
improvements) and the terms of payment therefor.


 


(b)                                 Notwithstanding anything to the contrary
contained in this Section 13.2, if Tenant shall at any time or times
during the term of this Lease desire to assign this Lease or sublet all or any
portion of the Premises to an independent third party, but shall not have
entered into an instrument of assignment or sublease with such party, Tenant
shall have the right to preempt the provisions of the foregoing Section 13.2(a) by
submitting a notice to Landlord indicating Tenant’s intent to enter into a
sublease and/or an assignment and a description of all of the material economic
terms and conditions of the proposed subletting or assignment (including,
without limitation, with respect to a subletting, a description of the portion
of the Premises proposed to be sublet, the proposed fixed rent, additional
rent, base amounts or years, if any, free rent and other concessions, if any,
the term, the party responsible for the cost of physical separation, and other
similar, material proposed terms and conditions) (any such notice being
hereinafter called a “Marketing Notice”). 
Said Marketing Notice to Landlord shall be in lieu of any Offer Notice.


 


13.3                          LANDLORD’S RIGHT TO UNDERLET.  Upon receipt of any Offer Notice or Marketing
Notice (each a “Transfer Notice”) pursuant to which Tenant proposes to sublet
all or any part of the Premises for the entire or substantially the entire
remaining Lease Term (for the purposes of this Article 13, “substantially
the entire remaining Lease Term” shall mean a term expiring during the last
twelve (12) months of the Lease Term, and “substantially all of the Premises”
shall mean at least ninety percent (90%) of the Premises), Landlord shall have
the option with respect to each such Offer Notice, exercisable by Landlord in
writing within thirty (30) days after receipt of such Offer Notice, or within
sixty (60) days after receipt of such Marketing Notice, to underlet from Tenant
the space which Tenant so desires to sublet, for the term for which Tenant
desires to sublet it and for a rent and other economic terms equal to (i) the
rent and other economic terms upon which Tenant proposes to sublet such space,
as set forth in the Transfer Notice, minus (ii) any profit to which
Landlord would have been entitled under Section 13.10 hereof had Landlord
consented to the transaction upon the terms set forth in the Transfer
Notice.  Such underlease shall in all
other respects be upon the covenants, agreements, terms, provisions and
conditions contained in this Lease except as hereinafter provided and except
for such thereof which are irrelevant or inapplicable.  Without limiting the foregoing, it is hereby
expressly agreed that:


 


(a)                                  such underlease to Landlord shall give
the undertenant the unqualified and unrestricted right, without Tenant’s
permission, (x) to assign such underlease or any interest therein and/or
to underlet from time to time the space covered by such underlease or any parts
of such space for any purpose, or purposes that the undertenant, in the
undertenant’s uncontrolled discretion, shall deem suitable or appropriate,
except that Landlord agrees that any such underlease will not be assigned
except simultaneously with an assignment of Landlord’s interest under this
Lease 


 


47

















 


so that at all
times the Landlord under this Lease and the undertenant under said underlease
shall be the same person, corporation or other entity, and each assignor of
such underlease shall thereafter be released of all obligations under such
underlease, and (y) to make any and all changes, alterations and
improvements in the space covered by such underlease deemed desirable by the
undertenant that do not have a material adverse impact on any portion of the
Premises retained by Tenant;


 


(b)                                 such underlease shall provide that (x) any
assignee or subtenant of the undertenant may, at the election of the
undertenant, be permitted to make alterations, decorations and installations in
such space or any part thereof provided that the same do not have a material
adverse impact on any portion of the Premises retained by Tenant, (y) any
such alterations, decorations and installations therein made by any assignee or
subtenant of the undertenant may be removed, or left, in whole or in part, by
such assignee or subtenant, at its option, prior to or upon the expiration or
other termination provided that if the Offer Notice specifies that the
subtenant must remove such alterations, decorations and installations and
restore such space to its condition immediately prior to such sublease, then
Landlord shall, or shall cause such assignee or subtenant, at its expense, to
repair the damage and injury to such space so underlet caused by such removal
and restore such space to its condition immediately prior to such assignment or
sublet, and (z) in no event shall Tenant have any end of term restoration
obligations with respect to any such alterations, decorations and
installations;


 


(c)                                  such underlease shall also provide that
the parties to such underlease expressly negate any intention that any estate
created under such underlease be merged with any other estate held by either of
said parties;


 


(d)                                 Tenant shall and will at all times at its
expense provide and permit an appropriate and lawful means of ingress and
egress from such space so underlet by Tenant to Landlord, such means of ingress
or egress to be specified by Tenant in the Transfer Notice with respect to such
space (to the extent that such means of ingress and egress are not controlled
by or the responsibility of Landlord hereunder);


 


(e)                                  Landlord, at Tenant’s expense (unless
otherwise set forth in the Transfer Notice), may make such Alterations as may
be required or reasonably deemed necessary by Landlord physically to separate
the underleased space from the balance of the Premises and to comply with all
laws and requirements of public authorities relating to such separation;


 


48

















 


(f)                                    the occupant or occupants of all or any
part or parts of such space shall, in common with Tenant, have the use of
toilet and other common facilities on the floor on which such space is located;


 


(g)                                 at the expiration of such underlease,
Tenant shall accept the space covered thereby in its then existing condition
provided that Landlord shall have performed Landlord’s obligations to keep and
maintain such space in good order and condition except for ordinary wear and
tear, provided that Landlord or the undertenant, at its expense, shall restore
such space at the expiration or earlier termination of the underlease to its
condition immediately prior to such underlease if set forth as a condition of
the Transfer Notice, and in the event of Landlord’s or undertenant’s failure to
perform any of such obligations, Tenant may do the same, and Landlord shall
reimburse Tenant for the reasonable costs incurred by Tenant in connection
therewith within thirty (30) days after Tenant’s demand therefor (but in the
event of Landlord’s or undertenant’s failure to perform any of such obligations
Tenant shall have no right to terminate this Lease either in whole or as to
such part of the space covered by the underlease);


 


(h)                                 no default by Landlord under such
underlease or by anyone claiming through such underlease shall be deemed to
constitute a default under this Lease; and


 


(i)                                     during the term of such underletting,
Tenant shall be relieved and released from all maintenance, repair, insurance
and indemnity obligations set forth in this Lease, as the same pertain to the
underlet space.


 


Provided that such
Transfer Notice shall prominently specify on its face that Landlord’s failure
to exercise or waive its right to underlet within thirty (30) days or sixty
(60) days, as applicable, after Landlord’s receipt thereof constitutes a waiver
of Landlord’s right to underlet pursuant to this Section 13.3, then if
Landlord fails to exercise or waive its right to underlet within such 30-day
period or 60-day period, as applicable, Landlord shall be deemed to have waived
its right to underlet with respect to such Transfer Notice.


 


13.4                          LANDLORD’S RIGHT TO TERMINATE.  Upon receipt of any Transfer Notice in which
Tenant proposes to assign this Lease (which shall include, for purposes of this
Section 13.4, a proposed subletting of all or substantially all of the
Premises for the entire or substantially the entire remaining Lease Term), or
in which Tenant proposes to sublet less than substantially all of the Premises
for the entire or substantially the entire remaining Lease Term, then and in
such event Landlord shall have the right, exercisable by notice to Tenant given
within thirty (30) days after receipt of any such Offer Notice, or within sixty
(60) days after receipt of any such Marketing Notice and in addition to the
other rights granted Landlord under this Article 13, (i) in the case
of an assignment, to terminate this Lease, in which event this Lease shall
terminate on the date fixed in Landlord’s notice, which shall not be less than
thirty (30) nor more than ninety (90) days after the giving of such notice,
with the same force and effect as if the termination date fixed in Landlord’s
notice were the date originally fixed in this Lease as the Expiration Date, or 


 


49

















 


(ii) in the case of a subletting
of less than substantially all of the Premises, to terminate this Lease with
respect to the space proposed by Tenant to be sublet, in which event on the
date fixed in Landlord’s notice, which shall not be less than thirty (30) nor
more than ninety (90) days after the giving of such notice, such space shall no
longer be part of the Premises or covered by this Lease and the rentable area
of the Premises, the Annual Fixed Rent and Tenant’s Share of Taxes and
Operating Expenses shall be appropriately reduced.


 


Provided that such Transfer Notice shall prominently
specify on its face that Landlord’s failure to exercise or waive its right to
terminate within thirty (30) days or sixty (60) days, as applicable, after
Landlord’s receipt thereof constitutes a waiver of Landlord’s right to
terminate pursuant to this Section 13.4, then if Landlord fails to
exercise or waive its right to terminate within such 30-day period or 60-day
period, as applicable, Landlord shall be deemed to have waived its right to
terminate with respect to such Transfer Notice.


 


13.5                          ADDITIONAL CONDITIONS.  If Landlord does not timely exercise any
option granted to Landlord by Sections 13.3 and 13.4 with respect to a proposed
sublease or assignment which is the subject of an Transfer Notice, Landlord
agrees that Landlord will not unreasonably withhold, delay or condition its
consent to such proposed sublease or assignment provided that the terms of the
instrument of sublease or assignment conform to the Transfer Notice in all
material respects and the following further conditions shall be satisfied:


 


(a)                                  the Premises or any part thereof shall
not, without Landlord’s prior consent, have been listed or otherwise publicly
advertised for subletting at a rental rate less than the rental rate being
sought by Landlord for space in the Building provided that Landlord shall,
within ten (10) days after Tenant so requests, have informed Tenant of the
rental rate being sought by Landlord for such space, and all advertisements of
the Premises or any portion thereof for subletting shall have been approved by
Landlord, in its reasonable discretion (it being agreed, however, that Landlord’s
consent shall not be required for Tenant to list the Premises or any portion
thereof with brokers, or for Tenant or such brokers to distribute flyers with
respect to the availability of the Premises or any portion thereof, subject to
the foregoing proviso concerning the rental rate).  The foregoing, however, shall not be deemed
to prohibit Tenant from negotiating or consummating a sublease at a lower
rental rate;


 


(b)                                 Tenant shall not then be in default under
this Lease with respect to any monetary obligations under this Lease (of which
default Tenant shall have received notice), or in default beyond the expiration
of any applicable notice and cure period with respect to any non-monetary
obligation of Tenant under this Lease;


 


(c)                                  the proposed subtenant or assignee shall
have a financial standing, be of a character, be engaged in a business, and
propose to use the Premises or portion thereof to be sublet in a manner, in
keeping with the standards in such respect of the other tenancies in the
Building, and any sublease shall provide that, upon Landlord’s request from
time to time, subtenant shall deliver to Landlord a copy of subtenant’s most
recent financial statements certified by an officer of subtenant, provided,
however, that Landlord agrees that any such financial statement will be treated
as strictly confidential in accordance with Section 20.23;


 


50

















 


(d)                                 provided that there is comparable space
available in the Building (and, solely in connection with a subletting of the
Automatic Expansion Space, such comparable space is available for a comparable
term), the proposed subtenant or assignee shall not then be a tenant, subtenant
or assignee of any space in the Building; nor, in any event, shall the proposed
subtenant or assignee be a person or entity with whom Landlord is then actively
negotiating to lease space in the Building;


 


(e)                                  the proposed subtenant or assignee shall
not occupy and use or propose to occupy and use the Premises for any purpose
prohibited under Section 10.4;


 


(f)                                    the character of the business to be
conducted or the proposed use of the Premises by the proposed subtenant or
assignee shall not (i) be likely to increase Landlord’s operating expenses
beyond that which Landlord now incurs for use by Tenant by more than a de minimis extent; (ii) increase the burden on
elevators or other Building systems over the burden prior to such proposed
subletting by more than a de minimis
extent; or (iii) violate or be likely to violate any provisions or
restrictions contained herein relating to the use or occupancy of the Premises;


 


(g)                                 any proposed sublease shall state that it
is expressly subject to all of the obligations of Tenant under this Lease and,
except as otherwise expressly permitted by Section 13.13(d) below,
shall contain the further condition and restriction that the sublease shall not
be assigned, encumbered or otherwise transferred or the subleased premises
further sublet by the sublessee in whole or in part, or any part thereof
suffered or permitted by the sublessee to be used or occupied by others,
without the prior written consent of Landlord in each instance;


 


(h)                                 any proposed sublease shall provide that
it is subject and subordinate to this Lease and to the matters to which this
Lease is or shall be subordinate, and that (subject to the provisions of Section 13.13
below) in the event of the termination of this Lease, or the re-entry or
dispossession of Tenant by Landlord under this Lease, such subtenant shall, at
Landlord’s option, attorn to Landlord as its sublessor pursuant to the then
applicable terms of such sublease for the remaining term thereof, except that
Landlord shall not be (i) liable for any previous act or omission of
Tenant as sublessor under such sublease, (ii) subject to any offset which
theretofore accrued to such subtenant against Tenant, or (iii) bound by
any previous modification of such sublease not consented to in writing by
Landlord or by any previous prepayment of rent more than one month in advance;


 


(i)                                     no subletting shall be for a term of less
than two (2) years (provided, however, that if less than two (2) years
remains in the Lease Term, such sublease may be for the balance of the Lease
Term); provided, however, that the foregoing provision shall not apply to the
Automatic Expansion Space during the first five (5) years after the
Automatic Expansion Date;


 


(j)                                     in no event shall (i) there be more
than five (5) occupants (including Tenant) on any full floor of the
Premises, (ii) any partial floor of the Premises be demised into units
consisting of less than three thousand five hundred (3,500) rentable square
feet, nor (iii) there be more than one (1) occupant (including
Tenant) on any partial floor of the 


 


51

















 


Premises
consisting of three
thousand five hundred (3,500) rentable square feet or
less.  Notwithstanding the foregoing
restrictions as to the size of units, Tenant shall have the right to (x) create
and sublease one unit consisting
of not less than three thousand (3,000) rentable square feet and (y) sublease
any unit of the Automatic Expansion Space which, when delivered to Tenant,
consists of less than three thousand five hundred (3,500) rentable square feet
provided that such unit has not, prior to such subletting, been integrated into
the balance of the Premises on such floor (i.e., demising walls removed, etc.);
and


 


(k)                                  Tenant shall reimburse Landlord on demand
for any costs that may be reasonably incurred by Landlord in connection with
said sublease or assignment, including, without limitation, the costs of making
investigations as to the acceptability of the proposed subtenant or assignee
and reasonable legal costs incurred in connection with the granting of any
consent.


 


Tenant agrees to
furnish Landlord such information in addition to the information set forth in
the Transfer Notice as Landlord may reasonably and timely request in connection
with the proposed sublease or assignment. 
If Landlord shall fail to respond to Tenant’s request for consent before
(x) the expiration of Landlord’s 30-day or 60-day recapture period, as
applicable, or (y) thirty (30) days after Landlord’s receipt of a copy of
the fully executed instrument of sublease or assignment, whichever of (x) or
(y) is later, then Tenant shall have the right to give Landlord a second
notice requesting such consent and, provided such second request for approval
shall prominently specify that Landlord’s failure to consent to or disapprove
the same within five (5) Operating Days after Landlord’s receipt thereof
constitutes Landlord’s consent thereto, then in the event Landlord fails to
consent to or disapprove within such 5-Operating Day period, Landlord shall be
deemed to have consented to the same.


 


For purposes of
this Section 13.5, a sublease or assignment shall be deemed to conform to
a Transfer Notice in all material respects if the sublease or assignment is for
a Net Effective Consideration (as hereinafter defined) of not less than
ninety-five percent (95%) of the Net Effective Consideration of the proposed
sublease or assignment set forth in such Transfer Notice, and on such other
terms and conditions as are substantially the same as, but not substantially
more favorable to the proposed sublessee or assignee than, those contained in
such Transfer Notice.  The term “Net
Effective Consideration” shall mean for purposes of this Section 13.5, the
net present value, determined as of the effective date of the proposed
transaction, using a discount rate of ten percent (10%), of the aggregate of
all rent and additional rent for taxes, operating expenses and electricity (as
reasonably estimated at the time) and other consideration payable under the
proposed sublease or assignment, discounted from the date such payment would
have been made under the proposed sublease or assignment to the commencement
date of the proposed sublease or the effective date of the proposed assignment,
after deducting therefrom the amount of all inducements (such as, by way of
example only, work allowances, work letters or rent abatements) that are (or
will be) granted by Tenant to such subtenant or assignee in respect thereof,
discounted, using a discount rate of ten percent (10%), from the date that such
inducements were to have been given under the proposed sublease or assignment
to the commencement date of the proposed sublease or the effective date of the
proposed assignment.  If after having
submitted a Transfer Notice, Tenant shall desire to sublet or to assign this
Lease for a Net Effective Consideration of less than ninety-five percent (95%)
of the Net Effective 


 


52

















 


Consideration of the
proposed assignment or sublease set forth in Tenant’s original Transfer Notice,
Tenant shall submit an additional Transfer Notice to Landlord as provided in Section 13.2.


 


13.6                          LANDLORD MAY COLLECT RENT FROM SUBTENANT OR ASSIGNEE.  If this Lease shall
be assigned, or if the Premises or any part thereof be sublet or occupied by
any person or persons other than Tenant, Landlord may, after default by Tenant
beyond any applicable notice and cure period, collect rent from the assignee,
subtenant or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, subletting, occupancy or collection of rent
shall be deemed a waiver of the covenants in this Article, nor shall it be
deemed acceptance by Landlord of the assignee, subtenant or occupant as a
tenant, or a release of Tenant from the full performance by Tenant of all the
terms, conditions and covenants of this Lease.


 


13.7                          ASSUMPTION OF LEASE.  Each permitted assignee or transferee shall
assume and be deemed to have assumed the obligations of Tenant under this Lease
to be performed, or arising or accruing, on and after the effective date of
such assignment or transfer and shall be and remain liable jointly and
severally with Tenant for the payment of Annual Fixed Rent and Additional Rent,
and for the due performance of all the terms, covenants, conditions and
agreements herein contained on Tenant’s part to be performed for the Lease
Term.  No assignment (except for
assignments permitted subject to and in accordance with Section 13.1(a) or
13.1(b) hereof) shall be binding on Landlord unless such assignee or
Tenant shall deliver to Landlord a duplicate original of the instrument of
assignment which contains a covenant of assumption by the assignee of all of
the obligations aforesaid and shall obtain from Landlord the aforesaid written
consent, prior thereto.  No assignment in
whole or in part of this Lease shall release Tenant or any assignee of Tenant
of its continuing liability under this Lease.


 


13.8                          TENANT’S INDEMNIFICATION.  If Landlord shall fail or refuse to give its
consent to any proposed assignment or sublease, or if Landlord shall exercise
any of its options set forth in Sections 13.3 and 13.4, Tenant shall indemnify
and hold harmless Landlord from and against any and all loss, liability, costs
and expenses (including, without limitation, reasonable attorneys’ fees)
asserted against, imposed upon or incurred by Landlord by reason of any claims
made against Landlord by the proposed assignee or sublessee or by any brokers,
finders or other persons for commissions or other compensation in connection
with the proposed assignment or sublease. 
The foregoing indemnity shall not apply to claims by any brokers,
finders or other persons for commissions or other compensation in connection
with a leasing or underletting by Landlord to a customer or client of such
broker, finder or other person.


 


13.9                          TIME LIMITATION; AMENDMENTS.  If Landlord grants its consent to an
assignment or sublease and such assignment or sublease does not become
effective for any reason within one hundred twenty (120) days after the
granting of such consent, or if such assignment or sublease is modified or
amended prior to its becoming effective, then and in either such event Landlord’s
consent shall be deemed to have been withdrawn and Tenant shall not have the
right to assign this Lease or to sublease all or any portion of the Premises
without once again complying with all of the provisions and conditions of
Sections 13.1, 13.2, 13.3, 13.4, 13.5 and 13.6. 
In no event shall Tenant agree to materially modify or amend the
economic terms (e.g., rent, concessions, term, size of space) of such
assignment or sublease or materially modify 


 


53

















 


any other terms of such assignment or
sublease to which Landlord has consented without Landlord’s prior written
consent, which consent shall not be unreasonably withheld or delayed.  For purposes of this Section 13.9, the
economic terms of a sublease or assignment shall be not be deemed to have been
materially modified if the sublease or assignment is for a Net Effective
Consideration of not less than ninety-five percent (95%) of the Net Effective
Consideration of the proposed sublease or assignment to which Landlord
consented.


 


13.10                    ADDITIONAL RENT DUE UPON ASSIGNMENT OR SUBLETTING.  If Landlord shall not
exercise any of its options set forth in Sections 13.3 and 13.4 and shall give
its consent to any assignment of this Lease or to any sublease (except with
respect to assignments or to any sublease permitted pursuant to Section 13.1(b) above),
Tenant shall, as consideration therefor, pay to Landlord as Additional Rent the
following amounts:


 


(a)                                  in the case of any assignment, an amount
equal to fifty percent (50%) of all sums and other considerations paid to or
for the benefit of Tenant by the assignee for or by reason of such assignment
(including, but not limited to, sums paid for the sale of any of Tenant’s
Property, fixtures or leasehold improvements); or


 


(b)                                 in the case of a sublease, fifty percent
(50%) of the excess, if any, of (i) any rents, additional charges or other
consideration paid under the sublease or any agreement relating thereto to or
for the benefit of Tenant by the subtenant (including, but not limited to, sums
paid for the sale of any of Tenant’s Property, fixtures or leasehold improvements)
over (ii) the rents accruing during the term of the sublease in respect of
and allocable to the subleased space pursuant to the terms of this Lease.


 


Amounts due to
Landlord pursuant to this Section 13.10 shall be paid to Landlord as
Additional Rent at the time such payments are paid by the assignee or subtenant
to Tenant.  The following, to the extent
actually incurred by Tenant directly in connection with the assignment or
subletting, may be deducted from the rents, charges and other consideration
received by Tenant in connection with the assignment or subletting prior to the
computation of profits hereunder:


 


(1)                                 the cost of any improvements paid for by
Tenant in connection with the assignment or sublease (excluding Tenant’s Work),
but in the case of a sublease for less than the entire remaining Lease Term,
such cost shall be proportionately reduced to the extent the useful life of
such improvements exceeds the term of the sublease;


 


(2)                                 improvement allowances (but only sums not
funded with Landlord’s Contribution);


 


(3)                                 reasonable attorneys’ fees;


 


(4)                                 brokerage or leasing commissions to an
independent third-party broker; and


 


(5)                                 in the case of an assignment only, free
rent (provided such free rent is not either (A) with respect to a period
prior to which such subtenant is in 


 


54

















 


actual occupancy
of the Premises, or (B) with respect to any period which is the subject of
the free rent provided in Section 5.5 above).


 


13.11                    LIABILITY NOT DISCHARGED.
 The joint and several liability of
Tenant and any assignee or successor of Tenant under this Lease, or any
guarantor of Tenant’s obligations under this Lease, shall not be discharged,
released or impaired in any respect by: (i) any agreement or stipulation
made by Landlord modifying any of the obligations contained in this Lease, but
in no event shall Tenant’s continued liability exceed what its continuing
liability would have been had the Lease not been modified except for those
modifications, if any, which were consented to by Tenant; or (ii) or by
any waiver or failure by Landlord to enforce any of the obligations of this
Lease, except that Tenant shall have no liability with respect to any actual
obligation that has been expressly waived in writing by Landlord.


 


13.12                    EFFECT OF LISTING OF NAMES.  The listing of any name other than Tenant on
the door of the Premises, on the Building directory or otherwise shall not
operate to vest any right or interest in this Lease or in the Premises in any
other person or entity, nor shall such listing be deemed to be the consent of
Landlord to any assignment or transfer of this Lease or to any sublease of the
Premises or any portion thereof or to the use or occupancy of the Premises or
any portion thereof by others.


 


13.13                    SPECIAL RIGHTS FOR ELIGIBLE SUBTENANTS.


 


(a)                                  Provided that there then exists no Event
of Default (or any monetary default of which Landlord has given Tenant notice),
Landlord shall promptly after Tenant’s written request (which request shall be
accompanied by an executed counterpart of the Eligible Sublease (as hereinafter
defined) and such other information and certifications as Landlord may
reasonably request in order to determine that the conditions of this Section 13.13
have been satisfied) deliver to Tenant and the subtenant under the Eligible
Sublease a non-disturbance agreement in substantially the form attached hereto
as Exhibit I, providing in substance that, as long as no default beyond
any applicable notice and grace period exists on the part of such subtenant and
subject to the satisfaction of the condition precedent set forth in clause (iii) below,
Landlord will not name or join such subtenant as a party defendant or otherwise
in any suit, action or proceeding to enforce any rights granted to Landlord
under this Lease and to the further effect that if this Lease shall terminate
or be terminated by reason of Tenant’s default hereunder or by the rejection of
this Lease pursuant to Title 11 U.S.C. §365 (any such termination being herein
called an “Attornment Event”), then Landlord will recognize such subtenant as
the direct tenant of Landlord on the terms and conditions of the Eligible
Sublease, as the same will be deemed amended upon such Attornment Event as
hereinafter provided (a “Landlord’s Non-Disturbance Agreement”).  Following the subtenant’s execution and
delivery of the Landlord’s Non-Disturbance Agreement, Landlord shall promptly
execute and deliver a counterpart to the subtenant.  Landlord’s reasonable costs and expenses in
connection with the foregoing (including, without limitation, reasonable
attorney’s fees), to the extent actually incurred, shall be paid by
Tenant.  Landlord’s Non-Disturbance
Agreement shall provide, inter alia,
that, upon an Attornment Event:


 


(i)                                            if applicable from time to time, the
fixed rent and additional rent under the Eligible Sublease shall be increased
(but not decreased) so that it is equal (after taking into account any credits,
offsets, deductions or entitlements given subtenant) on a 


 


55

















 


rentable square
foot basis to the Annual Fixed Rent and Additional Rent which would have been
payable under this Lease with respect to the Premises had this Lease not been
terminated;


 


(ii)                                         the Eligible Sublease shall be deemed
further amended such that the terms and provisions thereof shall be restated to
be the terms and provisions of this Lease (except that (A) the length of
term (including renewals, other than renewals which would extend beyond the
then Expiration Date of this Lease) shall remain as set forth in the Eligible
Sublease, (B) the fixed rent and additional rent shall be as set forth in
clause (i) hereof, if the same is applicable, or as set forth in the
Eligible Sublease if clause (i) is not applicable, (C) any Special
Lease Rights (as hereinafter defined) relative to the Eligible Sublease shall
not be included in the Eligible Sublease as amended, and (D) if the
Eligible Sublease contains one or more provisions which are more restrictive on
the subtenant thereunder than the corresponding provision(s) of this Lease
is on Tenant hereunder, then such more restrictive sublease provision shall
continue to be included in the Eligible Sublease as amended in lieu of the
corresponding provision of this Lease); and


 


(iii)                                      as a condition precedent to Landlord’s
recognition of the Eligible Sublease, the subtenant under the Eligible Sublease
shall, within ten (10) days after the Attornment Event, deliver to
Landlord either (A) proof reasonably satisfactory to Landlord that such
subtenant has a net worth and creditworthiness computed in accordance with GAAP
at least equal to the net worth and creditworthiness of such subtenant at the
time of the execution and delivery of Landlord’s Non-Disturbance Agreement or (B) a
security deposit (or letter of credit) in an amount equal to twelve (12) months
of fixed rent under the Eligible Sublease (as the same may have been increased
to coincide with the Annual Fixed Rent payable hereunder pursuant to clause (i) above).


 


(b)                                 As used herein, the following terms shall
have the following meanings:


 


(i)                                            “Eligible Sublease” shall mean any
sublease entered into by Original Tenant as sublandlord which (A) demises
full floor(s) of the Premises, (B) has an initial sublease term (i.e.
not including any renewals) of at least five (5) years, (C) demises
subleased premises which are either contiguous to leasable space in the
Building other than the Premises or are either the highest or lowest floors
which are part of the Premises, and (D) demises subleased premises to a
subtenant with a net worth and creditworthiness computed in accordance with
GAAP reasonably acceptable to Landlord and Landlord’s Mortgagee and/or
Overlandlord.


 


(ii)                                         “Special Lease
Rights”, relative to an Eligible Sublease upon an Attornment Event, shall mean (A) rights
under this Lease to expand the size of the Premises, to extend the Lease Term,
and any rights under this Lease which are limited to Original Tenant or
dependent upon occupancy of Original Tenant, and any rights dependent upon
leasing or occupancy requirements to the extent such requirements are not
satisfied by the Eligible Sublease or the subtenant thereunder, and any and all
rights of the Tenant under this Lease which the subtenant under such Eligible
Sublease would not have as a direct tenant under this Lease assuming this Lease
were assigned to such subtenant prior to such 


 


56

















 


Attornment Event, and (B) any and all rights of the Tenant under
this Lease which the subtenant under the Eligible Sublease does not then have
as the subtenant under the Eligible Sublease.


 


(c)                                  Notwithstanding anything to the contrary
herein contained, it is understood and agreed that Landlord shall have no
obligation to deliver a Landlord’s Non-Disturbance Agreement while any Event of
Default (or any monetary default of which Landlord has given Tenant notice)
shall exist hereunder.


 


(d)                                 Notwithstanding anything to the contrary
contained in Section 13.5(g) above, an Eligible Sublease may permit
the subtenant thereunder to further sublease the subleased space or to assign
its rights thereunder provided that (i) all of the conditions of Article 13
including, without limitation, Section 13.5 (except as otherwise expressly
permitted hereby), shall be satisfied with respect to such further subleasing
or assignment, (ii) Section 13.10 hereof shall be directly applicable
thereto such that Landlord shall be entitled to receive fifty percent (50%) of
any and all profits accruing to any and all parties with respect to such
further subleasing or assignment (whether calculated over rents accruing under
the sublease and/or rents accruing under this Lease), and (iii) upon a
receipt of any Transfer Notice with respect to such transaction, Landlord shall
in all events have the rights to underlet or terminate in accordance with Section 13.3
and Section 13.4 with respect thereto.


 


(e)                                  This Section 13.13 is solely for the
benefit of subtenants of Original Tenant under Eligible Subleases.


 


ARTICLE 14


 


NO LIABILITY OR REPRESENTATIONS BY LANDLORD; FORCE
MAJEURE


 


14.1                          NO LIABILITY.


 


(a)                                  Neither Landlord nor any other Landlord
Parties shall be liable for (i) any damage to property of Tenant or of
others entrusted to employees of the Building, nor for the loss of or damage to
any property of Tenant by theft; (ii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks in or from any part of the Building
or the Property or from the pipes, appliances or plumbing or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, unless caused or due to the negligence or willful
misconduct of Landlord, its agents, servants or employees or the failure of
Landlord to perform its obligations under this Lease within a reasonable time
after notice of such failure from Tenant; nor shall Landlord and its agents or
employees be liable for any such damage caused by other tenants or persons in
the Building or caused by operations in construction of any private, public or
quasi-public work unless caused or due to the negligence or willful misconduct
of Landlord, its agents, servants or employees or the failure of Landlord to
perform its obligations under this Lease within a reasonable time after notice
of such failure from Tenant, (iii) any latent defect in the Premises, the
Building or other improvements on the Property (provided that the foregoing
shall not derogate from Landlord’s repair obligations under Section 7.1 of
this Lease); or (iv) any injury or damages for which Tenant is reimbursed
under its insurance policies.


 


57














 


(b)                                 If at any time any windows of the
Premises are temporarily or permanently closed, darkened or bricked up as a
result of causes beyond Landlord’s reasonable control, or are temporarily
closed or darkened by Landlord as a result of causes beyond Landlord’s
reasonable control, Landlord shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction.


 


(c)                                  Landlord shall have no responsibility or
liability for the ventilating conditions and/or temperature of the Premises
during the hours or days Landlord is not required to furnish heat, ventilation
or air-conditioning pursuant to Exhibit D or pursuant to Sections 14.3 or
20.12, Landlord having informed Tenant that the windows of the Premises and the
Building may be sealed, and that the Premises may become uninhabitable and the
air therein may become unbreathable during such times.  Insofar as air temperature and ventilation
are concerned, any use or occupancy of the Premises during the hours or days
Landlord is not so required to, or pursuant to Section 14.3 or 20.12 does
not furnish heat, ventilation or air-conditioning to the Premises shall be at
the sole risk, responsibility and hazard of Tenant.  Such condition of the Premises shall not
constitute nor be deemed to be a breach or a violation of this Lease or of any
provision hereof, nor shall it be deemed an eviction, nor shall Tenant claim or
be entitled to claim any abatement of rent (except as otherwise stated herein)
nor make any claim for any damages or compensation by reason of such condition
of the Premises.  Notwithstanding the
foregoing, nothing contained in this Section 14.1(c) shall be
construed to relieve or exculpate Landlord from any of the obligations of
Landlord set forth elsewhere in this Lease concerning air-conditioning of the
Premises during non-Operating Hours and Tenant’s installation of supplemental
air-conditioning for the Premises.


 


(d)                                 Tenant shall neither assert nor seek to
enforce any claim against any of Landlord’s assets other than Landlord’s
interest in the Land, the Building and the Property, and Tenant agrees to look
solely to such interest for the satisfaction of any liability of Landlord under
this Lease, it being specifically agreed that neither Landlord, nor any
successor holder of Landlord’s interest hereunder, nor any general or limited
partner of Landlord or any such successor (if Landlord or such successor is a
partnership) nor any shareholder of Landlord or any such successor (if Landlord
or such successor is a corporation) shall ever be personally liable for any
such claim or liability.  Landlord shall
in no event be liable for any loss of business or any indirect or consequential
damages under this Lease.  Tenant shall
in no event be liable for any loss of business or any indirect or consequential
damages under this Lease except as expressly provided Section 19.3(b),
19.4 and/or 20.17 hereof.  Landlord’s
interest in the Land, the Building and the Property shall mean: (x) the
rent or other consideration received by Landlord pursuant to any lease, license
or other occupancy agreement for space in the Building or Property, (y) the
net proceeds of a sale, financing or refinancing of the Building or Property
(or any portion thereof) or of Landlord’s estate or interest therein (or any
portion thereof), and (z) any insurance proceeds or condemnation awards
paid with respect to any portion of the Building or Property (but only if and
to the extent that the same shall be in excess of any restoration costs, and
net of all costs of obtaining such proceeds or awards).


 


58

















 


14.2                          NO REPRESENTATIONS BY LANDLORD.  Tenant expressly
acknowledges and agrees that Landlord has not made and is not making, and
Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except for those expressly
set forth in this Lease and the Exhibits annexed hereto or in any other written
agreement which may be made between the parties hereto concurrently with the
execution and delivery of this Lease and which shall expressly refer to this
Lease.  No rights, easements or licenses
are acquired by Tenant by implication or otherwise except as expressly set
forth in the provisions of this Lease.


 


14.3                          FORCE MAJEURE.


 


(a)                                  This Lease and the obligation of Tenant to pay rent
hereunder and perform and comply with all of the other covenants and agreements
hereunder on the part of Tenant to be performed and complied with shall in no
way be affected, impaired or excused because of Landlord’s delay or failure to
perform or comply with any of the covenants or provisions hereunder on the part
of Landlord to be performed or complied with, or because Landlord is unable to
fulfill any of its obligations under this Lease or is unable to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures, if Landlord is prevented or delayed from so doing (i) by reason
of strikes or labor troubles, (ii) by reason of governmental preemption in
connection with a national emergency, (iii) by reason of any rule, order
or regulation of any government agency or any department or subdivision
thereof, whether in connection with a drought, energy shortage or other like
event or otherwise, (iv) by reason of any fact, condition or circumstance
related to war, terrorism or other emergency, (v) by reason of fire,
casualty or other acts of God or (vi) by reason of any other cause
whatsoever beyond Landlord’s reasonable control (collectively, “Force Majeure”).  Landlord shall in each instance exercise
reasonable diligence to effect performance when and as soon as possible or
practicable.


 


(b)                                 Tenant shall not be deemed to have failed
or delayed in making any required repairs or replacements or performing any non
monetary obligations hereunder if Tenant is unable to make or is delayed in
making any such repair or replacement or performing any such non monetary
obligation due to reasons of Force Majeure. 
The foregoing, however, specifically excludes causes due to Tenant’s
financial condition.  Tenant shall in
each instance exercise reasonable diligence to effect performance when and as
soon as possible or practicable.  In no
event or under any circumstance shall any such delay or failure in making such
repairs and replacements or performing such non monetary obligations relieve
Tenant of any of its monetary obligations under the terms of this Lease.


 


ARTICLE 15


 


ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING


 


15.1                          LANDLORD’S RIGHT OF ENTRY.  Landlord shall have the right, without being
deemed thereby to evict Tenant from the Premises or any part thereof or
otherwise to violate any of the terms of this Lease or any of Tenant’s rights
hereunder,


 


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(a)                                  to enter and pass through the Premises or
any part or parts thereof,


 


(i)                                     to examine the Premises and to show them
to the fee owners, Overlandlord or Mortgagee (both as hereafter defined) and to
prospective purchasers, mortgagees or lessees of the Building as an entirety,


 


(ii)                                  for the purpose of performing such
maintenance and making such repairs or changes in or to the Premises or in or
to the Building or its facilities as may be provided for or permitted by this
Lease or as may be mutually agreed upon by the parties or as Landlord may be
required to make by laws and requirements of public authorities,


 


(iii)                               at such times as such entry shall be
required by circumstances of emergency affecting the Premises or the Building,
provided that in such event, if practicable, Landlord or its agents shall be
accompanied by a designated representative of Tenant or a member of the police,
fire, water or other municipal department concerned or of a recognized
protection company or of a public utility which is concerned and Landlord shall
use reasonable efforts to safeguard and secure the Premises,


 


(iv)                              to exhibit the Premises or any portion
thereof to prospective tenants or occupants (A) during the last twelve
(12) months of the Lease Term, (B) during the last eighteen (18) months of
the Lease Term if Landlord is marketing the Premises as part of a larger block
of space, (C) at any time during the Lease Term while there exists an
Event of Default of Tenant hereunder or (D) during any period in which Landlord
may exercise a right to underlease the space in question or to terminate this
Lease, and


 


(v)                                 for the purpose of photographing the
Premises for use by Landlord and/or Landlord’s affiliates in connection with
promotional and marketing materials, provided, however, that Tenant shall have
the right to approve any such photographs (such approval not to be unreasonably
withheld or delayed) and in no event will any such photographs, promotional or
marketing materials identify Tenant or the floor(s) of the Premises, and


 


(b)                                 to take such reasonable quantities of
materials into and upon the Premises that may be reasonably required for any
repairs, changes or maintenance of the Premises only and to store the same
therein for a reasonable time as reasonably required in connection with the
completion of such repairs, changes or maintenance.


 


Landlord’s rights
under this Section shall be exercised in such manner as to create the
least practicable interference with Tenant’s use of the Premises; provided,
however, that the foregoing shall not obligate Landlord to perform any work on
an “overtime” basis unless such work will materially interfere with Tenant’s
business operations in the Premises, provided, however, that Landlord shall not
be required to perform such work on an “overtime” basis to the extent that such
work was requested by Tenant or would not have been needed but for a violation
by Tenant of its obligations under this Lease. 
Except in the case of an emergency which makes notice to Tenant
impractical, any entry on the Premises by Landlord pursuant to this Section 15.1
shall be made after reasonable notice to Tenant.  Landlord, at Landlord’s own cost and expense,
shall promptly repair any damage to the Premises (including, without
limitation, Tenant’s 


 


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Property) resulting from
Landlord’s actions in the Premises unless necessitate by a circumstances beyond
Landlord’s reasonable control or a violation by Tenant of its obligations under
this Lease.


 


15.2                          LANDLORD’S RIGHT TO CHANGE ENTRIES, ETC.  Landlord shall have
the right at any time without thereby creating any actual or constructive
eviction or incurring any liability to Tenant therefor, and without abatement
in rent, to change the arrangement or location of lobbies, entrances,
passageways, doors, doorways, stairways, elevators, corridors and other like
portions of the Building outside of the Premises, provided that such change
does not interfere with Tenant’s access to the Premises.  The foregoing shall not abrogate Landlord’s
obligations under Section 4.1(d) hereof, and Landlord shall be
obligated to provide mid-rise passenger elevator service to the 19th Floor
Premises throughout the Lease Term.


 


15.3                          EXCAVATION.  In the event that an excavation or any construction
should be made for building or other purposes upon land adjacent to the
Building, or should be authorized to be made, Tenant shall, if necessary,
afford to the person or persons causing or authorized to cause such excavation
or construction, license to enter upon the Premises for the purpose of doing
such work as shall reasonably be necessary to protect or preserve the wall or
walls of the Building, or the Building, from injury or damage and to support
them by proper foundations, pinning and/or underpinning, or otherwise.


 


ARTICLE 16


 


ELECTRICITY


 


16.1                          TENANT TO PURCHASE ELECTRICITY.


 


(a)                                  Landlord represents that the base
Building electrical system has the capacity to furnish electric service to the
Premises in accordance with the provisions of Exhibit D.  It is understood that transformers, panel
boxes and meters are furnished and installed in the Building by and at the
expense of the public utility company which provides electrical service to the
Building, and accordingly, Landlord’s obligation hereunder with respect thereto
shall be limited to using reasonable efforts to cause such utility to install
and, when appropriate, to maintain such transformers, panel boxes and
meters.  Landlord represents that all
such meters are installed in the Premises as of the date hereof and are in
working order.


 


(b)                                 Tenant shall obtain and pay for Tenant’s
entire separate supply of electric current to all full floors of the Premises
by direct application to and arrangement with the public utility company
servicing the Building, which current shall also serve the HVAC units in the
Premises.


 


(c)                                  (i)                                     Landlord shall furnish electricity to the Automatic
Expansion Space and all other partial floors of the Premises for a charge to
Tenant, as of the date of this Lease, equal to Three and 50/100 Dollars ($3.50)
per rentable square foot per annum (the “Electricity Charge”), which shall be
adjusted from time to time in accordance with the provisions of this Section 16.1
and shall be payable on the first day of each and every calendar 


 


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month during the
Lease Term, and otherwise payable in the same fashion herein provided for the
payment of Annual Fixed Rent.


 


(ii)                                  The Electricity Charge is based upon
Landlord’s assumption that Tenant’s initial electrical installation will be for
ordinary office electrical consumption (excluding data centers, trading floors
and the like)  and that, except for office
cleaning, Tenant will use electric energy only during Operating Hours.  Accordingly, (A) if Tenant’s initial
electrical installation exceeds such criteria, or (B) if Tenant makes
material use of electricity during hours other than Operating Hours, or (C) if
Tenant after completion of its initial installation adds or subtracts any machinery,
appliances or equipment which materially increases the aggregate electrical
load in the applicable space, the Electricity Charge shall be increased
proportionately to reflect any excess or increase in such use.  From time to time during the Lease Term,
Landlord may engage a reputable independent electrical consultant to make a
survey of the electric consumption in the applicable space to determine if
Tenant’s electric consumption exceeds the criteria set forth above.  If any such survey discloses that such use
exceeds the criteria set forth above, the Electricity Charge shall be increased
proportionately by the amount of such excess, effective as of the date of such
increase in electrical consumption.  Upon
delivery of such statement, (1) Tenant shall pay Landlord the amount of
such increase through the date of such statement, and (2) Tenant’s regular
monthly payments under this Lease shall be increased to reflect any such
increase in the Electricity Charge.  If
the Electricity Charge shall have been increased as hereinabove provided, and
thereafter a subsequent survey discloses that the cost to Landlord of the
Tenant’s annual electric consumption shall have decreased following the prior
survey, then the Electricity Charge shall be reduced by the amount of such
decrease, effective as of the date of such decrease, provided, however, that in
no event shall such Electricity Charge be reduced below the initial amount of
the Electricity Charge applicable to such space.  In such event, Landlord shall reimburse
Tenant for the amount of such decrease, and Tenant’s regular monthly payments
under this Lease shall be reduced to reflect any such decrease in the
Electricity Charge.  If Tenant objects to
the results of the survey conducted by the electrical consultant engaged by
Landlord, then the survey shall be submitted to an additional independent
electrical consultant mutually agreed upon by Landlord and Tenant and the
decision of such consultant shall be binding upon Landlord and Tenant. The cost
of any such surveys shall be shared equally by Landlord and Tenant.


 


(iii)                               If either (A) the public utility
rate schedule for the supply of electricity to the Building shall be increased
or superseded during the Lease Term (using the rate in effect on the date
hereof as the base rate), or (B) electricity or energy consumption shall
be measured by any other means, including, but not limited to, the cost of
private sources of energy, then the Electricity Charge shall be increased in
the same percentage effective from the effective date of such increase in the
public utility rate schedule.  If after
the Electricity Charge has been increased by reason of any such increase in the
public utility rate schedule such public utility rate schedule shall thereafter
decrease, then the Electricity Charge shall be decreased in the same percentage
effective from the effective date of such decrease, but in no event below the
initial amount of the Electricity Charge applicable to such space.


 


(d)                                 Landlord reserves the right to
discontinue furnishing electricity to the Automatic Expansion Space and/or
other partial floors of the Premises at any time upon not less 


 


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than thirty (30) days’
notice to Tenant provided, however, that Landlord shall not discontinue
furnishing electricity to the applicable portion of the Premises (i) until
Tenant shall have made arrangements to obtain electricity from the public
utility serving the Building (unless Tenant shall have failed to use reasonable
diligence to obtain such electrical service) and (ii) unless Landlord is
discontinuing furnishing electricity to all tenants on such floor of the
Building.  If Landlord, at Landlord’s
option, exercises such right of discontinuance as provided herein, this Lease
shall continue in full force and effect and shall be unaffected thereby, except
that, from and after the effective date of such discontinuance, (i) Tenant
shall arrange to obtain electricity directly from the public utility company
supplying electricity to the Building, (ii) all meters, equipment and
other facilities which may be required for Tenant to obtain electricity
directly from such public utility company shall be installed by Landlord, at
Landlord’s expense, and (iii) any such installation shall be maintained by
Tenant, at its expense, and shall be subject to such conditions as Landlord
and/or the public utility company may require, and Landlord shall not be liable
to Tenant therefor and the same shall not be deemed to be a lessening or
diminution of services within the meaning of any law, rule or regulation
now or hereafter enacted, promulgated or issued.


 


(e)                                  If any taxes or charges are or shall be
imposed upon Landlord or its agent in connection with the sale or resale of
electricity to Tenant, Tenant covenants and agrees that, where permitted by
law, Tenant’s pro-rata share of such taxes or charges shall be passed on to
Tenant and paid by Tenant to Landlord or its agent upon demand, as Additional
Rent, without set-off or deduction. At all times during the Lease Term, Tenant
shall comply with all present and future general rules, regulations, terms and
conditions applicable to service equipment, wiring and requirements in
accordance with the regulations of the public utility company supplying
electricity to the Building.


 


(f)                                    Subject to applicable laws, governmental
regulations and the approval of Con-Ed, Landlord shall not unreasonably
withhold its consent to Tenant, at its sole cost and expense, as part of Tenant’s
Work, intercepting within the Premises an existing dedicated 300 amp (277/480
volt) Con-Ed service riser which currently runs from the switchgear room in the
basement to the thirty-fourth (34th) floor of the Building in order to re-route
such service to exclusively serve the Premises. 
All such work shall be performed subject to and in accordance with Article 8
and Exhibit C of this Lease.


 


(g)                                 If, at any time during the Lease Term,
Tenant demonstrates to Landlord’s reasonable satisfaction that Tenant
reasonably requires electric capacity for the normal operation of Tenant’s
business in excess of the foregoing, then, subject to availability as
determined by Landlord in good faith (taking into consideration the need to
allocate or reserve power for other tenants in the Building), Landlord agrees to
make available, at Tenant’s sole cost and expense, such additional electrical
capacity, and Landlord reserves the right to charge Tenant a market rate fee in
connection therewith.


 


16.2                          LANDLORD NOT LIABLE.  Landlord shall not in any way be liable or responsible
to Tenant for any loss or damage or expense which Tenant may sustain or incur
if either the quantity or character of electric service is changed or
interrupted or is no longer 


 


63

















 


available or suitable for Tenant’s
requirements unless due to the negligence or willful misconduct of Landlord,
its agents, employees or contractors.


 


16.3                          TENANT NOT TO OVERLOAD CIRCUITS.  Provided that the
base Building electrical system actually has the capacity to furnish electric
service to the Premises in accordance with the provisions of Exhibit D, in
no event shall Tenant use or install any fixtures, equipment or machines the
use of which in conjunction with other fixtures, equipment and machines in the
Premises would result in an overload of the electrical circuits servicing the
Premises.


 


16.4                          TENANT NOT TO EXCEED CAPACITY; LIGHT BULBS.  Provided that the
base Building electrical system actually has the capacity to furnish electric
service to the Premises in accordance with the provisions of Exhibit D,
Tenant covenants and agrees that at all times its use of electric current shall
never exceed the capacity of the then existing feeders to the Building or the
risers or wiring installation.  Landlord
shall furnish, install and replace, as required, all lighting tubes, lamps,
bulbs and ballasts required in the Premises at Tenant’s sole cost and expense,
provided that prices for the same shall be consistent with similar charges for
similar items in Class A office Buildings in midtown Manhattan.  All lighting tubes, lamps, bulbs and ballasts
so installed shall become Landlord’s property upon the expiration or sooner
termination of this Lease.


 


ARTICLE 17


 


SUBORDINATION; ASSIGNMENT OF RENTS


 


17.1                          SUBORDINATION TO MORTGAGES, ETC.


 


(a)                                  Subject to the provisions of Section 17.6,
this Lease is and shall be subject and subordinate to any ground or underlying
lease (collectively called “Underlying Lease”) which may now or hereafter
affect the Building and/or the Land and to any amendment, modification, renewal
or extension of any such Underlying Lease. 
Subject to the provisions of Section 17.6, this Lease also is and
shall be subject and subordinate to all mortgages which may now or hereafter
affect any Underlying Lease, the Land and/or the Building, to each and every
advance made thereunder and to all renewals, modifications, amendments,
consolidations, replacements or extensions thereof.  The landlord or lessor under any Underlying
Lease is referred to herein as a “Overlandlord” and the secured party under any
such mortgage is referred to herein as a “Mortgagee”.  This clause shall be self-operative and no
further instrument of subordination shall be required by any Overlandlord or
Mortgagee.  In confirmation of such
subordination, Tenant, without cost or charge to Landlord, shall execute
promptly any certificate or instrument of subordination that Landlord may
reasonably request.  Landlord represents
that, as of the date of this Lease, there are no Underlying Leases affecting
the Building or the Land.


 


(b)                                 Tenant agrees that if any Overlandlord or
Mortgagee shall succeed to interest of Landlord under this Lease by foreclosure
or otherwise, and the Overlandlord or Mortgagee elects in its sole discretion
(subject to the terms of any applicable SNDA, as hereinafter defined), not to
cause this Lease to be terminated in connection therewith, this Lease shall not
be terminated or affected thereby but shall continue in full force and effect
as a direct 


 


64

















 


lease between
Overlandlord or Mortgagee and Tenant upon all of the terms, covenants and
conditions set forth in this Lease and, in such event, Tenant shall attorn to
Overlandlord or Mortgagee, subject to the terms of any applicable SNDA in
effect. Tenant shall not do nor suffer nor permit any action which would
constitute a default under any Underlying Lease or any mortgage which may now
or hereafter affect any Underlying Lease, the Land and/or the Building, or
cause any Underlying Lease to be terminated or forfeited by virtue of any right
of termination or forfeiture granted to the Overlandlord by such Underlying
Lease, provided that the foregoing shall not be construed to eliminate, reduce
or impair any of Tenant’s rights set forth in this Lease, by more than a de minimis extent, or to increase any of Tenant’s
obligations set forth in this Lease, by more than a de minimis
extent.


 


17.2                          RIGHTS OF MORTGAGEES, ETC.  In the event of any act or omission by
Landlord which would or may give Tenant the right to terminate this Lease or to
claim a partial or total eviction, Tenant will not exercise any such right
until


 


(a)                                  it has given written notice of any such
act or omission to Landlord, and to any Overlandlord or Mortgagee whose names
and addresses have previously been furnished to Tenant, and


 


(b)                                 a reasonable period of time for remedying
such act or omission shall have elapsed following such giving of notice during
which the parties to whom such notice has been given, or any of them, have not
commenced with reasonable diligence the remedying of such act or omission.


 


17.3                          MODIFICATIONS REQUIRED BY LENDERS.  If, in connection
with obtaining temporary or permanent financing for the Land and/or Building,
or any Underlying Lease, any lender shall request reasonable modifications of
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer the execution of an agreement of modification of this
Lease provided such modifications do not increase the monetary obligations of
Tenant hereunder or increase Tenant’s non-monetary obligations hereunder except
to a de minimis extent, or
adversely affect or diminish the leasehold interest hereby created, or Tenant’s
rights hereunder, except to a de minimis
extent.


 


17.4                          ASSIGNMENT OF LEASE TO MORTGAGEE, ETC.  With reference to
any assignment by Landlord of Landlord’s interest in this Lease, or the rents
payable hereunder, conditional in nature or otherwise, which assignment is made
to an Overlandlord or Mortgagee, Tenant agrees:


 


(a)                                  that the execution thereof by Landlord,
and the acceptance thereof by such Overlandlord or Mortgagee, shall never be
treated as an assumption by such Overlandlord or Mortgagee of any of the
obligations of Landlord hereunder, unless such Overlandlord or Mortgagee shall,
by notice sent to Tenant, specifically otherwise elect; and


 


(b)                                 that, except as aforesaid, such
Overlandlord, or Mortgagee shall be treated as having assumed Landlord’s
obligations hereunder only, in the case of a Mortgagee, upon foreclosure by
such Mortgagee and the taking of possession of the Premises, or, in the case of
an Underlying Lease, the assumption of Landlord’s position hereunder by such
Overlandlord, any 


 


65

















 


such assumption in each
such case to be limited as set forth in Section 14.1(d).  In no event shall the acquisition of title to
the Building and/or the Land by a purchaser which, simultaneously therewith,
leases the entire Building and/or the Land back to the seller thereof be
treated as an assumption, by operation of law or otherwise, of Landlord’s
obligations hereunder, but Tenant shall look solely to such seller-lessee, and
its successors from time to time in title, for performance of Landlord’s
obligations hereunder.  For all purposes,
such seller-lessee, and its successors in title, shall be the landlord
hereunder unless and until Landlord’s position shall have been assumed by such
purchaser-lessor.


 


17.5                          SUBORDINATION OF MORTGAGE, ETC., TO LEASE.  Notwithstanding
anything to the contrary set forth in this Article 17, if any Overlandlord
or Mortgagee shall file in the office of the Register of the City of New York,
New York County, an instrument in which such Overlandlord or Mortgagee shall
subordinate its Underlying Lease or mortgage to this Lease, then and in such
event such Underlying Lease or mortgage shall be subordinate to this Lease and
the provisions of this Article 17, insofar as they would subordinate this
Lease to that particular Underlying Lease or mortgage, shall be of no further
force or effect.


 


17.6                          NON-DISTURBANCE AGREEMENT.


 


(a)                                  Within forty-five (45) days after the
execution of this Lease, Landlord shall obtain and deliver to Tenant an
agreement in favor of Tenant from the holder of any existing Mortgagee and
Overlandlord, in substantially the form of Exhibit J attached hereto (the “SNDA”).  Landlord shall use reasonable efforts to
obtain such changes to the SNDA form attached hereto as Exhibit J as
Tenant shall reasonably request.  If
Landlord shall fail to obtain and deliver the SNDA within such forty-five (45)
day period, Tenant shall have the right, as its sole and exclusive remedy, to
terminate this Lease by giving written notice of Tenant’s desire to do so and,
upon the giving of such notice, this Lease shall terminate without further
liability or obligation on the part of either party unless, within five (5) Operating
Days after Landlord receives such notice, Landlord shall obtain and deliver the
SNDA to Tenant.


 


(b)                                 Anything in this Article 17 to the contrary
notwithstanding, this Lease shall not be subordinate to any future Underlying
Lease or future mortgage, unless and until a SNDA, in substantially the form of
Exhibit J attached hereto or in another form reasonably acceptable to
Tenant and such Mortgagee and/or Overlandlord, and executed by such Mortgagee
or Overlandlord, shall first be delivered to Tenant.  Landlord shall use reasonable efforts to
obtain such changes to the SNDA form attached hereto as Exhibit J as
Tenant shall reasonably request.


 


ARTICLE 18


 


CERTAIN ADDITIONAL TENANT COVENANTS


 


In addition to the
covenants contained elsewhere in this Lease, Tenant covenants, during the Lease
Term and for such further time as Tenant occupies any part of the Premises:


 


66

















 


(a)                                  to pay when due all Annual Fixed Rent and
Additional Rent and all charges for utility services rendered to the Premises
and service inspections therefor and, as further Additional Rent, all charges
for additional and special services rendered pursuant to Exhibit D;


 


(b)                                 to keep the Premises equipped with all
safety appliances (including without limitation fire extinguishers) required by
law or ordinance or any other regulation of any public authority, to procure
all licenses and permits so required because of any use made of the Premises or
any portion thereof by Tenant, and, if reasonably requested by Landlord, to do
any work so required because of such use, it being understood that the
foregoing provisions shall not be construed to broaden in any way the uses to
which Tenant is permitted to make of the Premises under the terms of this
Lease;


 


(c)                                  not to place a load upon any floor in the
Premises exceeding the floor load per square foot of area which such floor was
designed to carry and which is allowed by law; and not to move any safe, vault
or other heavy equipment in, about or out of the Premises except in such manner
and at such time as Landlord shall in each instance expressly authorize such
authorization not to be unreasonably delayed or conditioned.  Tenant’s business machines and mechanical
equipment shall be placed and maintained by Tenant at Tenant’s expense in
settings reasonably sufficient to absorb and prevent vibration or noise that
may be transmitted to the Building structure or to any other space in the
Building;


 


(d)                                 to pay promptly when due all taxes which
may be imposed upon personal property (including, without limitation, fixtures
and equipment) in the Premises by whomever assessed;


 


(e)                                  to observe and comply with, and to cause
its servants, employees, agents, visitors (while on the Property), licensees
and sublessees to comply with, the Rules and Regulations set forth in Exhibit E
hereto (as such rules and regulations may, from time to time, be amended
in accordance with Section 20.13 hereof);


 


(f)                                    to cause all of the windows in the
Premises to be kept closed; to keep unobstructed at all times all of the vents,
intakes, outlets and grills; and to comply with and observe all reasonable
regulations and requirements prescribed by Landlord for the proper functioning
of the heating, ventilating and air-conditioning system; and


 


(g)                                 not to, either directly or indirectly (i) conduct
business in the Premises in such a manner that would or may create or (ii) use
any contractors and/or labor and/or materials if the use thereof, would or may
create, any difficulty with other contractors and/or labor and/or materials
engaged or used by Tenant or Landlord or others in the construction,
maintenance and/or operation of the Building or any part thereof.  This provision shall apply prior to, as well
as during, the Lease Term.


 


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ARTICLE 19


 


TENANT’S DEFAULT; LANDLORD’S REMEDIES


 


19.1                          TENANT’S DEFAULT.  This Lease and the Lease Term are subject to
the limitation that Tenant shall be in default if, at any time during the Lease
Term, any one or more of the following events (herein called an “Event of
Default”) shall occur:


 


(a)                                  if Tenant shall fail to pay any
installment of the Annual Fixed Rent, or any Additional Rent, or any other
charges for which provision is herein made, or any part thereof, when the same
shall become due and payable and such failure shall continue for five (5) Operating
Days after notice thereof from Landlord to Tenant (provided that if Tenant
shall have failed to pay any such installment or other charge or portion
thereof when the same becomes due and payable two times during any Lease Year
and Landlord shall in each case have given Tenant notice of such failure, then
after such second time it shall be an Event of Default in the event Tenant
thereafter during such Lease Year fails to pay any such installment or other
charge or portion thereof on the date the same becomes due and payable, without
notice (or, in the case of other charges which are payable on or subsequent to
demand, further notice) from Landlord); or


 


(b)                                 if the Premises shall become abandoned
and such abandonment continues for more than thirty (30) days after written
notice from Landlord; provided that Tenant vacating the Premises shall not be
construed as an abandonment as long as Tenant is using commercially reasonable
efforts to secure and to maintain the Premises as usable office space in
accordance the standards of first class office buildings in Manhattan; or


 


(c)                                  if an assignment or subletting shall
occur or if Tenant’s interest in this Lease shall devolve upon or pass to any
person or entity, whether by operation of law or otherwise, and whether
directly or indirectly, except as expressly permitted by Article 13
hereof, or


 


(d)                                 if Tenant fails to maintain any of the
insurance required to be maintained by Tenant hereunder or to deliver certificates
thereof when required hereunder and Tenant fails to remedy such default within
five (5) Operating Days after notice by Landlord to Tenant specifying such
default; or


 


(e)                                  Tenant shall fail to perform or observe
some term or condition of this Lease which, because of its character, would
immediately jeopardize Landlord’s interest in the Property, the health or
safety of any person, the operation of the Building or any Building system, or
the business operations of any occupant, and such failure continues for two (2) Operating
Days after receipt of notice from Landlord to Tenant specifying such default;
or


 


(f)                                    if Tenant shall fail to perform or
observe any other term, covenant, or condition of this Lease on the part of
Tenant to be performed or observed and such failure shall continue for thirty
(30) days after notice thereof from Landlord to Tenant, or, if said default
shall reasonably require longer than thirty (30) days to cure, if Tenant shall
fail to commence to cure said default within thirty (30) days after receipt of
notice thereof and/or fail continuously to prosecute the curing of the same to
completion with due diligence, and in any event within such 


 


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period of time as will
prevent Landlord from being subjected to the risk of criminal liability or
termination of any Underlying Lease or foreclosure of any mortgage (provided
Tenant has notice of any such mortgage or Underlying Lease); or


 


(g)                                 if the estate hereby created shall be
taken on execution or by other process of law; or


 


(h)                                 (i)                                     if Tenant shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due;
or


 


(ii)                                  if Tenant shall commence or institute any
case, proceeding or other action (x) seeking relief on its behalf as
debtor, or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (y) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its property; or


 


(iii)                               if Tenant shall make a general assignment
for the benefit of creditors; or


 


(iv)                              if any case, proceeding or other action
shall be commenced or instituted against Tenant (x) seeking to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (y) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of its
property, which either (1) results in any such entry of an order for
relief, adjudication of bankruptcy or insolvency or such an appointment or the
issuance or entry of any other order having a similar effect or (2) remains
undismissed for a period of sixty (60) days; or


 


(v)                                 if any case, proceeding or other action
shall be commenced or instituted against Tenant seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its property which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or


 


(vi)                              if Tenant shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clauses (ii), (iii), (iv) or (v) above;
or


 


(vii)                           if a trustee, receiver or other custodian
is appointed for any substantial part of the assets of Tenant which appointment
is not vacated or effectively stayed within seven (7) Operating Days; or


 


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(i)                                   if Tenant fails, within five (5) Operating
Days after notice by Landlord to Tenant requesting the same, to timely deliver
a Replacement Letter in accordance with the terms of Section 20.22(a) hereof,
or to timely increase the Letter as required in connection with any expansion
of the Premises, or to restore the Letter to the face amount then required
under Section 20.22(b) hereof after Landlord has drawn upon the
Letter; or


 


(j)                                   if any material representation or
warranty made by Tenant herein or in any report, certificate, financial
statement or other instrument, agreement or document furnished to Landlord
shall have been false or misleading in any material respect as of the date the
representation or warranty was made.


 


19.2                          TERMINATION.


 


(a)                                  (i)                                     If an Event of Default described in Section 19.1(h) hereof
shall occur, or


 


(ii)                                  if an Event of Default described in
Sections 19.1(a),(b),(c),(d), (e), (f), (g), (i) or (j) shall occur
and Landlord, at any time thereafter while such Event of Default shall then be
continuing, at its option gives written notice to Tenant stating that this
Lease and the Lease Term shall expire and terminate on the date specified in
such notice, which date shall not be less than three (3) Operating Days
after the giving of such notice, then this Lease and the Lease Term and all
rights of Tenant under this Lease shall expire and terminate, as if the date on
which the Event of Default described in clause (i) above occurred, or the
date specified in the notice given pursuant to clause (ii) above, as the
case may be, were the date herein definitely fixed for the expiration of the
Lease Term (except that Tenant shall continue liable as hereinafter provided)
and Tenant immediately shall quit and surrender the Premises.


 


(b)                                 Anything contained herein to the contrary
notwithstanding, if such termination shall be stayed by order of any court
having jurisdiction over any proceeding described in Section 19.1(h) hereof,
or by federal or state statute, then, following the expiration of any such
stay, or if Tenant, or Tenant as debtor-in-possession or the trustee appointed
in any such proceeding (being collectively referred to as “Tenant” only for the
purposes of paragraphs (b) and (c) of this Section 19.2) shall
fail to assume Tenant’s obligations under this Lease within the period
prescribed therefor by law or within one hundred twenty (120) days after entry
of the order for relief or as may be allowed by the court, or, if Tenant shall
fail to provide adequate protection of Landlord’s right, title and interest in
and to the Premises or adequate assurance of the complete and continuous future
performance of Tenant’s obligations under this Lease, Landlord, to the extent
permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
three (3) days notice to Tenant and upon the expiration of said three (3) day
period this Lease shall cease and expire as aforesaid and Tenant shall
immediately quit and surrender the Premises as aforesaid.  Upon the termination of this Lease provided
above, Landlord, without notice, may re-enter and repossess the Premises using
such force for that purpose as may be necessary without being liable to
indictment, prosecution or damages therefor and may dispossess Tenant by
summary proceedings or otherwise.


 


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(c)                                  For the purposes of the preceding
paragraph (b), adequate protection of Landlord’s right, title and interest in
and to the Premises, and adequate assurance of the complete and continuous
future performance of Tenant’s obligations under this Lease, shall include,
without limitation, the following requirements:


 


(i)                                     that Tenant comply with all of its
obligations under this Lease;


 


(ii)                                  that Tenant pay to Landlord, on the first
day of each month occurring subsequent to the entry of such order, or the
effective date of such stay, a sum equal to the amount by which the Premises
diminished in value during the immediately preceding monthly period, but, in no
event, an amount which is less than the aggregate rent payable for such monthly
period;


 


(iii)                              that Tenant continue to use the Premises
in the manner required by this Lease;


 


(iv)                              that Landlord be permitted to supervise
the performance of Tenant’s obligations under this Lease;


 


(v)                                 that Tenant pay to Landlord within thirty
(30) days after entry of such order or the effective date of such stay, as
partial adequate protection against future diminution in value of the Premises
and adequate assurance of the complete and continuous future performance of
Tenant’s obligations under this Lease, an additional security deposit in an
amount equal to the Annual Fixed Rent then payable hereunder plus an amount
equal to all Additional Rent payable to Landlord for the preceding calendar
year;


 


(vi)                              that Tenant has and will continue to have
unencumbered assets after the payment of all secured obligations and administrative
expenses to assure Landlord that sufficient funds will be available to fulfill
the obligations of Tenant under this Lease;


 


(vii)                           that if Tenant assumes this Lease and
proposes to assign the same (pursuant to Title 11 U.S.C. § 365, or as the same
may be amended) to any person who shall have made a bona fide offer to accept
an assignment of this Lease on terms acceptable to such court having competent
jurisdiction over Tenant’s estate, then notice of such proposed assignment,
setting forth (x) the name and address of such person, (y) all of the
terms and conditions of such offer and (z) the adequate assurance to be
provided Landlord to assure such person’s future performance under this Lease,
including, without limitation, the assurances referred to in Title 11 U.S.C. §
365(b)(3), as it may be amended, shall be given to Landlord by Tenant no later
than thirty (30) days after receipt by Tenant of such offer, but in any event
no later than ten (10) days prior to the date that Tenant shall make application
to such court for authority and approval to enter into each assignment and
assumption, and Landlord shall thereupon have the prior right and option, to be
exercised by notice to Tenant given at any time prior to the effective date of
such proposed assignment, to accept, or to cause Landlord’s designee to accept,
an assignment of this Lease upon the same terms and conditions and for the 


 


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same consideration, if
any, as the bona fide offer made by such person less any brokerage commissions
which may be payable out of the consideration to be paid by such person for the
assignment of this Lease; and


 


(viii)                        that if Tenant assumes this Lease and
proposes to assign the same (pursuant to Title 11 U.S.C. § 365, or as the same
may be amended), and Landlord does not exercise its option pursuant to
paragraph (vii) of this Section 19.2(c), Tenant hereby agrees that:


 


(A)  such
assignee shall have a net worth not less than the net worth of Tenant as of the
Commencement Date, or such Tenant’s obligations under this Lease shall be
unconditionally guaranteed by a person having a net worth equal to Tenant’s net
worth as of the Commencement Date;


 


(B)  such
assignee shall not use the Premises except for general office purposes and
subject to all the restrictions contained in Article 10 hereof; 


 


(C)  such
assignee shall assume in writing all of the terms, covenants and conditions of
this Lease; and


 


(D)  in the
event that the Annual Fixed Rent paid by such assignee is greater than the
Annual Fixed Rent reserved hereunder, Tenant shall pay over to Landlord one-half
of such difference; and


 


(E)  if such
assignee makes a lump-sum payment to Tenant or Tenant’s trustee for the right
to assume this Lease, Tenant or Tenant’s trustee shall pay over to Landlord one-half
of such payment,


 


(d)                                 If, at any time, (i) Tenant shall
comprise two (2) or more persons, or (ii) Tenant’s obligations under
this Lease shall have been guaranteed by any person other than Tenant, or (iii) Tenant’s
interest in this Lease shall have been assigned, the word “Tenant”, as used in
clause (h) of Section 19.1, shall be deemed to mean any one or more
of the persons primarily or secondarily liable for Tenant’s obligations under
the Lease.  Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in said clause (h) shall be deemed paid as
compensation for the use and occupation of the Premises and the acceptance of
any such compensation by Landlord shall not be deemed an acceptance of rent or
a waiver on the part of Landlord of any rights under this Section.


 


(e)                                  The provisions of subdivisions (b) through
(d) of this Section 19.2 apply only in respect of the circumstances
described in subsection 19.1(h) and as such are not intended to constitute
modifications of any of the provisions of Article 13 except in such
circumstances.


 


19.3                          RE-ENTRY; CONTINUED LIABILITY; RELETTING.


 


(a)                                  If Tenant shall default in the payment of
any installment of Annual Fixed Rent or any Additional Rent on any date on
which the same becomes due and payable, and if such default shall continue for
five (5) Operating Days after Landlord shall have given Tenant 


 


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notice of such default,
or if this Lease shall be terminated pursuant to or as provided in Section 19.2,
Landlord and Landlord’s agents and employees may immediately or at any time
thereafter re-enter the Premises, or any part thereof in the name of the whole,
either by summary dispossess proceedings or by any suitable action or
proceeding at law or otherwise, without being liable to indictment, prosecution
or damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold, possess and enjoy the
Premises again.


 


(b)                                 If this Lease is terminated or if
Landlord shall re-enter the Premises as aforesaid, or in the event of the
termination of this Lease, or of re-entry, by or under any proceeding or action
or any provision of law by reason of an Event of Default hereunder on the part
of Tenant, Tenant covenants and agrees forthwith that,


 


(i)                                     the Annual Fixed Rent (excluding however,
the amount equal to the amount of Annual Fixed Rent which would have been
payable during the rent concession period set forth in Section 5.5 if the
Lease termination occurs after the end of the rent concession period) and
Additional Rent shall become due thereupon and be paid by Tenant up to the time
of such re-entry, dispossession and/or termination, together with such expenses
as Landlord may reasonably and actually incur for legal expenses, attorneys’
fees and disbursements, brokerage, and/or putting the Premises in good order,
or for preparing the same for reletting;


 


(ii)                                  Landlord may relet the Premises or any
part or parts thereof, either in the name of Landlord or otherwise (but shall
have no obligation to do so), for a term or terms, which may at Landlord’s
option be less than or exceed the period which would otherwise have constituted
the balance of the Term of this Lease and may grant concessions or free rent;


 


(iii)                               Tenant or the legal representatives of
Tenant shall also pay Landlord, as liquidated damages for the failure of Tenant
to observe and perform Tenant’s covenants herein contained, amounts equal to
the Annual Fixed Rent and Additional Rent which would have been payable by
Tenant had this Lease not been so terminated, or had Landlord not so reentered
the Premises, such payments to be made upon the due dates therefor specified
herein following such termination or re-entry and continuing until the
Expiration Date; provided, however, that if Landlord shall relet the Premises,
Landlord shall credit Tenant, up to the amount due from Tenant, with the net
rent received by Landlord for such reletting after deducting from the first
installments of such rent received the reasonable and actual expenses incurred
or paid by Landlord in terminating this Lease or in re-entering the Premises
and in securing possession thereof, as well as the expenses of reletting,
including legal expenses, attorneys’ fees and disbursements, brokerage
commissions, alteration costs and other expenses reasonably and actually
incurred by Landlord for keeping the Premises in good order or for preparing
the same for reletting.  Any suit brought
to collect the amount of the aforesaid damages for any month or months shall
not prejudice in any way the rights of Landlord to collect the damages for any
subsequent month or months by a similar proceeding.  Nothing contained herein shall be deemed to
require Landlord to postpone suit until the date when the Lease Term would have
expired if it 


 


73

















 


had not been so
terminated under or pursuant to Section 19.2, or under any provision of
law, or had Landlord not re-entered the Premises.


 


(c)                                  The terms “re-enter” and “re-entry,” as
used herein, are not limited to their technical legal meanings.


 


19.4                          LIQUIDATED DAMAGES.  Landlord may elect, as an alternative to the
damages and charges provided for in Section 19.3(b)(iii), and in lieu of
all other such damages thereafter accruing, to have Tenant pay the liquidated
damages provided for below, which election may be made by notice given to
Tenant at any time after the termination of this Lease under or pursuant to Section 19.2,
above, and whether or not Landlord shall have collected any damages as
hereinabove provided in Section 19.3. 
Upon such notice, Tenant shall promptly pay to Landlord, as liquidated
damages, in addition to any damages collected or due from Tenant from any
period prior to such notice, such a sum as at the time of such notice
represents the amount of the excess, if any, of (i) the discounted present
value, at a discount rate of six percent (6%), of the Annual Fixed Rent,
Additional Rent and other charges which would have been payable by Tenant under
this Lease for the remainder of the Lease Term if Tenant had fulfilled all of
its obligations hereunder, over and above (ii) the discounted present
value, at a discount rate of six percent (6%), of the Annual Fixed Rent,
Additional Rent and other charges that would be received by Landlord (after
deducting all reasonably estimated costs of reletting, including, without
limitation, brokerage fees, advertising, required tenant improvements and
concessions and attorneys’ fees) if the Premises were relet at the time of such
notice for the remainder of the Lease Term at the fair rental value thereof at
the time of such notice.


 


For the purposes
of this Article, if Landlord elects to require Tenant to pay liquidated damages
in accordance with this Section 19.4, (a) the total rent shall be
computed by assuming Tenant’s Share of Taxes and Operating Expenses under Article 6
to be the same as were payable for the twelve (12) calendar months (or if fewer
than twelve calendar months shall have elapsed since the date hereof, for the
partial year, but annualized) immediately preceding such termination or re-entry,
and (b) if the Premises or any part thereof shall have been relet by
Landlord for the unexpired portion of the Lease Term, or any part thereof,
before presentation of proof of such damages to any court, commission or
tribunal, the amount of rent received upon such reletting shall be prima facie
evidence of the fair rental value of the Premises, or part thereof, so relet
during the term of such reletting.


 


19.5                          RIGHTS IN THE EVENT OF TENANT’S BANKRUPTCY.  Nothing contained
in this Lease shall limit or prejudice the right of Landlord to prove for and
obtain, in proceedings for the termination of this Lease by reason of
bankruptcy or insolvency, an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings
in which, the damages are to be proved, whether or not the amount be greater,
equal to, or less than the amount of the loss or damages referred to above.


 


19.6                          WAIVER OF REDEMPTION, ETC.


 


(a)                                  Tenant, for itself and any and all
persons claiming through or under Tenant, including its creditors, upon the
termination of this Lease or expiration of the Lease Term in accordance with
the terms hereof, or in the event of entry of judgment for the 


 


74

















 


recovery of the
possession of the Premises in any action or proceeding, or if Landlord shall
reenter the Premises by process of law or otherwise, hereby waives any right of
redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights or
privileges which it or they may or might have under and by reason of any
present or future law or decision, to redeem the Premises or for a continuation
of this Lease for the Term of this Lease after having been dispossessed or
ejected therefrom by process of law, or otherwise.


 


(b)                                 If Tenant is in arrears in the payment of
Annual Fixed Rent or Additional Rent, Tenant waives its right, if any, to
designate the item against which any payments made by Tenant are to be credited
and Tenant agrees that Landlord may apply any payment made by Tenant to any
then or past due items as Landlord may see fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items against
which any such payment shall be credited.


 


(c)                                  Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by either against the
other on any matter whatsoever arising out of or in any way connected with the
Lease, the relationship of Landlord and Tenant and Tenant’s use or occupancy of
the Premises or any other claim (other than claim for personal injuries or
property damage).  It is further mutually
agreed that if Landlord commences any summary proceedings for non-payment of
rent, Tenant will not interpose and does hereby waive the right to interpose any
counterclaim of whatever nature or description in such proceeding (other than
mandatory counterclaims).


 


19.7                          ADDITIONAL RIGHTS OF LANDLORD.


 


(a)                                  In the event of a breach or threatened
breach by Tenant of any of its obligations under this Lease, Landlord shall
also have the right to obtain an injunction. 
The remedies to which Landlord may resort under this Lease are
cumulative (except as otherwise expressly limited pursuant to the terms of this
Lease) and are not intended to be exclusive of any other remedies to which
Landlord may be lawfully entitled at any time and Landlord may invoke any
remedies allowed at law or in equity as if specific remedies were not provided
for herein.


 


(b)                                 In the event of a breach or threatened
breach by Landlord of any of its obligations under this Lease, Tenant shall
also have the right to obtain an injunction. 
The remedies to which Tenant may resort under this Lease are cumulative
(except as otherwise expressly limited pursuant to the terms of this Lease) and
are not intended to be exclusive of any other remedies to which Tenant may be
lawfully entitled at any time and Tenant may invoke any remedies allowed at law
or in equity as if specific remedies were not provided for herein.


 


(c)                                  If this Lease shall terminate under or pursuant
to Section 19.2, or if Landlord shall re-enter the Premises under the
provisions of this Article, or in the event of the termination of this Lease,
or of re-entry by or under any summary dispossess or other proceeding or action
or any provision of law by reason of Tenant’s default hereunder, Landlord shall
be entitled to retain all moneys, if any, paid by Tenant to Landlord, whether
as advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any Annual Fixed 


 


75

















 


Rent or Additional Rent
due from Tenant at the time of such termination or re-entry or, at Landlord’s
option, against any damages payable by Tenant under this Article or
pursuant to law.


 


19.8                          LANDLORD’S DEFAULT.  Landlord shall in no event be in default in
the performance of any of Landlord’s obligations hereunder unless and until (i) Landlord
shall have failed to perform such obligations within thirty (30) days (or, if
an obligation is such that it cannot be performed within thirty (30) days,
Landlord shall have failed to commence with reasonable diligence performance of
the same within such thirty (30) day period) after notice by Tenant to Landlord
specifying wherein Landlord has failed to perform any such obligation, and (ii) Tenant
has given notice to all parties as required under Section 17.2 hereof and
such parties have not commenced the performance of such obligations within the
time provided in Section 17.2.


 


19.9                          FEES.  If, for any reason, any suit (or arbitration
in such instances as permitted under this Lease) is initiated between Landlord
and Tenant to interpret or enforce any provision of this Lease, the prevailing
party in such suit (or arbitration) shall be entitled to recover from the other
party its legal costs, expert witness expenses, and reasonable attorneys’ fees,
as fixed by the court (or arbitrator). 
Landlord shall be entitled to recover all reasonable costs and expenses,
reasonable attorneys’ fees and disbursements and other fees incurred by
Landlord in connection with the preservation and enforcement of Landlord’s
rights and remedies in connection with the Lease (i) if a default by
Tenant shall have occurred, regardless of whether any proceeding to enforce
this Lease has been commenced or (ii) in the event of any voluntary or
involuntary bankruptcy case, proceeding or action by or on behalf of Tenant,
including, without limiting the generality of the foregoing, any and all
expenses and attorneys’ fees incurred by Landlord related to (A) the
assumption or rejection of this Lease, including attempts by Tenant to extend
any deadlines related to such assumptions or rejections, (B) the filing of
proof(s) of claim by Landlord, and any defense of such proof(s) of
claim, (C) the assignment of this Lease and/or (D) the reorganization
or liquidation of Tenant.


 


ARTICLE 20


 


MISCELLANEOUS


 


20.1                          WAIVER.  Failure on the part of Landlord or Tenant to
complain of any action or non-action on the part of the other, no matter how
long the same may continue, shall never be a waiver by Tenant or Landlord,
respectively, of any of the other’s rights hereunder.


 


Further, no waiver
at any time of any of the provisions hereof by Landlord or Tenant shall be
construed as a waiver of any of the other provisions hereof, and a waiver at
any time of any of the provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. 
The consent or approval of Landlord or Tenant to or of any action by the
other requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord’s or Tenant’s consent or approval to or of any
subsequent similar act by the other.


 


No payment by
either party, or acceptance by the other party, of a lesser amount than shall
be due from the party obligated to make the payment shall be treated otherwise
than as a payment on account.  The
acceptance by a party of a check for a lesser amount with an 


 


76

















 


endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and the recipient may accept such
check without prejudice to any other rights or remedies which the recipient
party may have against the party obligated to make the payment .  Further, the acceptance by Landlord of Annual
Fixed Rent, Additional Rent or any other charges paid by Tenant under this
Lease shall not be or be deemed to be a waiver by Landlord of any default by
Tenant, whether or not Landlord knows of such default, except for such defaults
as to which such payment relates and then only to the extent of the amount of
such payment.  If Landlord and Tenant
shall now or hereafter enter into any agreement for the renewal of this Lease
at the expiration of the Lease Term, the execution of such renewal agreement
between Landlord and Tenant prior to the expiration of the Lease Term shall not
be considered a vested right in Tenant to such further term so as to prevent
Landlord from terminating this Lease and any such extension or renewal thereof
if Landlord became entitled so to do during the remainder of the original Lease
Term; and if Landlord shall so terminate this Lease, any such renewal or
extension previously entered into between Landlord and Tenant or the right of
Tenant to any such renewal or extension shall also be terminated thereby.  Any right herein contained on the part of
Landlord to terminate this Lease shall continue during any extension or renewal
hereof and any default or Event of Default which occurs and is not cured prior
to the commencement of a renewal term or extension of the Lease Term shall
continue as such in and during such renewal term or extension of the Lease
Term.


 


20.2                          CONSENTS; ARBITRATION.


 


(a)                                  Wherever in this Lease Landlord’s consent
or approval is required and Landlord has expressly agreed in writing that such
consent or approval shall not be unreasonably withheld, if Landlord shall
refuse such consent or approval Tenant in no event shall be entitled to and
shall not make any claim, and Tenant hereby waives any claim, for money damages
(nor shall Tenant claim any money damages by way of set-off, counterclaim or
defense) based upon any assertion by Tenant that Landlord unreasonably withheld
or unreasonably delayed its consent or approval.  Subject to the provisions of Sections 20.2(b) and
(c) below, Tenant’s sole remedy in such circumstance shall be an action or
proceeding to enforce any such provision by way of specific performance,
injunction or declaratory judgment. 
Where Landlord has not so expressly agreed in writing, it is the express
intent of the parties that any such consent shall be given or required only in
the sole, absolute and unfettered discretion of Landlord, and may be withheld
for any reason whatsoever.


 


(b)                                 If there is a dispute between Landlord
and Tenant as to the reasonableness of Landlord’s refusal to (1) consent
to a subletting or assignment under Section 13.5 or Section 13.6 of
this Lease or (2) approve plans and specifications submitted for work to
be performed by Tenant in the Premises under Section 8.1(e) and/or Exhibit C,
and in either event the applicable provisions of this Lease expressly require
that Landlord not unreasonably withhold its consent or approval, then Tenant
may, at its option, as its sole and exclusive remedy, within thirty (30) days
after notice of the withholding of consent or approval has been given by
Landlord to Tenant (time of the essence), submit such dispute to arbitration in
the City of New York under the Expedited Procedures provisions of the
Commercial Arbitration Rules of the AAA; provided, however, that with
respect to any such arbitration, (i) the arbitrator shall have no right to
award damages, (ii) the arbitrator shall have no power to vary or modify
the provisions of this Lease and jurisdiction is limited accordingly, (iii) the
decision and award of the arbitrator shall be final


 


77














 


and conclusive on
the parties, (iv) each party shall bear the expense of its own counsel and
witnesses in connection with such arbitration, and (v) all fees payable to
the AAA for services rendered in connection with the resolution of the dispute
shall be paid by the unsuccessful party.


 


(c)                                  If the applicable provisions of this
Lease expressly require that Landlord not unreasonably withhold its consent or
approval and the determination of any such arbitration pursuant to paragraph (b) above
shall be that Landlord was unreasonable in refusing to (1) give approval
under Section 13.5 or Section 13.6 of this Lease or (2) approve
plans and specifications submitted for work to be performed by Tenant in the
Premises under Section 8.1(e) and/or Exhibit C, Tenant’s sole
remedy arising out of such arbitrator’s determination shall be to proceed on
the basis that the requested consent or approval has been given.


 


20.3                           QUIET ENJOYMENT.  Landlord agrees that so long as an Event of
Default shall not have occurred and then be continuing, Tenant shall and may
peaceably hold and enjoy the Premises during the term of this Lease, without
interruption or disturbance from Landlord or persons claiming through or under
Landlord, subject, however, to the terms of this Lease and to the terms and
conditions of all Underlying Leases and all mortgages which now or hereafter
affect the Premises and the terms of any SNDA in effect.  This covenant shall be construed as running
with the Land to and against subsequent owners and successors in interest, and
is not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of Landlord’s interest in the Land and Building,
and this covenant and any and all other covenants of Landlord contained in this
Lease shall be binding upon Landlord and upon such subsequent owners and
successors in interest of Landlord’s interest under this Lease, to the extent
of their respective interests in the Land and Building, as and when they shall
acquire same and then only for so long as they shall retain such interest.


 


20.4                           SURRENDER.


 


(a)                                  No act or thing done by Landlord during
the Lease Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender shall be valid, unless in writing signed
by Landlord.  No employee of Landlord or
of Landlord’s agents shall have any power to accept the keys of the Premises
prior to the termination of this Lease; provided, however, that the foregoing
shall not apply to the delivery of keys to Landlord or its agents in its (or
their) capacity as managing agent or for purpose of emergency access.  In any event, however, the delivery of keys
to any employee of Landlord or of Landlord’s agents shall not operate as a
termination of this Lease or a surrender of the Premises.


 


(b)                                 Upon the expiration or earlier
termination of the Lease Term, or upon any re-entry by Landlord of the
Premises, Tenant shall quit and surrender the Premises to Landlord vacant,
broom clean and in good order, condition and repair, except for ordinary wear
and tear, damage by fire or other casualty, if any, and other conditions
requiring repair, if any, which are not the obligation of Tenant to repair
under the terms of this Lease, and Tenant shall remove all of Tenant’s Property
therefrom and shall restore the Premises to the extent required under any of
the other provisions of this Lease. 
Tenant shall repair any damage to the Premises occasioned by the removal
by Tenant or any person claiming under Tenant of any of Tenant’s Property and any
Specialty Alterations required to be removed pursuant to this Lease.  Tenant’s obligations pursuant to this
paragraph shall survive the expiration or sooner termination of the 


 


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


 


20.5                           BROKER.


 


(a)                                  Tenant warrants and represents to Landlord that Tenant has
not dealt with any broker in connection with the consummation of this Lease
other than the brokers, persons or firms designated in Section 1.2 hereof;
and in the event any claim is made against Landlord by any other broker or
agent alleging dealings with Tenant in connection with the consummation of this
Lease, Tenant shall defend Landlord against such claim, using counsel approved
by Landlord, such approval not to be unreasonably withheld, and save harmless
and indemnify Landlord on account of any loss, cost, damage and expense
(including, without limitation, reasonable attorneys’ fees and disbursements)
which may be actually suffered or incurred by Landlord by reason of such
claim.  Landlord agrees that it shall be
solely responsible for the payment of brokerage commissions to the brokers, persons
or firms designated in Section 1.2 hereof. 
The foregoing warranty, representation and indemnity shall not apply to
any affiliates, agents or employees of Landlord working for Landlord in a
brokerage capacity.


 


(b)                                 Landlord warrants and represents to
Tenant that Landlord has not dealt with any broker in connection with the
consummation of this Lease other than the brokers, persons or firms designated
in Section 1.2 hereof; and in the event any claim is made against Tenant
by any other broker or agent alleging dealings with Landlord in connection with
the consummation of this Lease, Landlord shall defend Tenant against such
claim, using counsel approved by Tenant, such approval not to be unreasonably
withheld, and save harmless and indemnify Tenant on account of any loss, cost,
damage and expense (including, without limitation, reasonable attorneys’ fees
and disbursements) which may be actually suffered or incurred by Tenant by
reason of such claim.


 


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


 


20.7                           PROVISIONS BINDING, ETC.  The obligations of this Lease shall run with the
Land, and except as herein otherwise provided, the terms hereof shall be
binding upon and shall inure to the benefit of the successors and assigns,
respectively, of Landlord and Tenant and, if Tenant shall be an individual,
upon and to his heirs, executors, administrators, successors and assigns.  Each term and each provision of this Lease to
be performed by Landlord and Tenant shall be construed to be both a covenant
and a condition.  The reference contained
herein to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Tenant, but has reference only to those instances in
which Landlord may hereafter give consent to a particular assignment as
required by the provisions of Article 13 hereof, and to those instances in



 


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which
Tenant may assign this Lease without Landlord’s consent in accordance with the
provisions of Article 13 hereof.


 


20.8                           NO RECORDING.  Tenant agrees not to record this Lease
(whether directly or indirectly), or a memorandum or short form of this Lease
or any other document related thereto.


 


20.9                           NOTICES.  Whenever, by the terms of this Lease, any
notice, demand, request, approval, consent or other communication (each of
which shall be referred to as a “notice”) shall or may be given either to
Landlord or to Tenant, such notice shall be in writing and shall be deemed
sufficiently given or rendered if (i) hand delivered, or (ii) sent by
reputable overnight delivery service, such as UPS or FedEx, as follows:


 


(i)                                     If intended for Landlord, addressed to
Landlord at the Present Mailing Address of Landlord set forth on the first page of
this Lease (or to such other address or addresses as may from time to time
hereafter be designated by Landlord by like notice), Attention:  Robert E. Selsam, with a copy to:


 


Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


One Financial Center


Boston, MA 02111


Attention: 
Stuart A. Offner, Esq.


 


(ii)                                  If intended for Tenant, addressed to
Tenant at the Present Mailing Address of Tenant set forth on the first page of
this Lease until the date that Tenant occupies the Premises for the conduct of
its business, and thereafter at the Premises, Attention:  Marran H. Ogilvie, Esq., with a copy to:


 


Stroock & Stroock & Lavan LLP


180 Maiden Lane


New York, NY 10038


Attention: 
Jacob Bart, Esq.


 


In no event shall the validity of any notice actually
given to Landlord or Tenant be affected by any failure to deliver copies of
such notices to counsel as hereinabove provided.  A notice shall be deemed to have been
given:  in the case of hand delivery, at
the time of delivery; in the case of overnight delivery, one (1) Operating  Day
after the date so dispatched.  Any notice
to be given by any party may be given by such party’s attorney.


 


20.10                     WHEN LEASE BECOMES BINDING.  Employees or agents of Landlord have no
authority to make or agree to make a lease or any other agreement or
undertaking in connection herewith.  The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the Premises, and this
document shall become effective and binding only upon the execution and
delivery hereof by both Landlord and Tenant. 
All negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and may be modified or
altered only by written agreement between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or modify any
of the provisions hereof.


 


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20.11                     HEADINGS.  The Article and Section headings
throughout this Lease and the Table of Contents hereof are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease.


 


20.12                     SUSPENSION OF SERVICES.  Landlord reserves the right to interrupt,
curtail or suspend the services required to be furnished by Landlord under Section 7.3
and Exhibit D when the necessity therefor arises by reason of accident,
repairs, emergency, mechanical breakdown or governmental preemption or
restriction, or when required by any law, order or regulation of any Federal,
State, County or municipal authority, or as the result of the making by
Landlord of any additions, improvements or installations in the Building or for
any cause beyond the reasonable control of Landlord.  Landlord shall use reasonable diligence to
complete all required repairs or other necessary work as quickly as reasonably
possible so that Tenant’s inconvenience resulting therefrom may be for as short
a period of time as circumstances will reasonably permit.  Except as otherwise expressly set forth in
this Lease, no diminution or abatement of rent or other compensation shall or
will be claimed by Tenant as a result of, nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of, any such
interruption, curtailment or suspension.


 


20.13                     RULES AND REGULATIONS.


 


(a)                                  Landlord shall have the right, from time
to time during the term of this Lease, to make changes in, and additions to,
the rules and regulations set forth in Exhibit E provided that such
changes or additions


 


(i)                                     shall be similar to rules and
regulations of comparable first-class office buildings,


 


(ii)                                  shall not apply to matters other than
matters similar to those covered in the rules and regulations set forth in
Exhibit E, and


 


(iii)                               do not unreasonably interfere with the
use of the Premises by Tenant.


 


Said rules and regulations, as changed in
accordance with this Section from time to time, are hereinafter called the
“Rules and Regulations”.


 


(b)                                 The right to dispute the reasonableness
of any change in the Rules and Regulations upon Tenant’s part shall be
deemed waived unless the same is asserted by service of a notice upon Landlord
within thirty (30) days after notice is given to Tenant of the adoption of any
such change.  Any additional Rules and
Regulations shall not materially increase Tenant’s obligations under this Lease
nor materially reduce Tenant’s rights under this Lease


 


(c)                                  If Tenant’s use and occupancy of the
Premises is unreasonably interfered with by any violation of the Rules and
Regulations by one or more tenants in the Building then Landlord shall use
commercially reasonable efforts to enforce such Rules or Regulations
against such other tenant or tenants, as applicable. Subject to the foregoing, 


 


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Landlord shall not be liable to Tenant for violation
of the Rules and Regulations or of any other lease by other tenants or
occupants of the Building, or their servants, agents, visitors or
licensees.  Except as aforesaid, nothing
in this Lease shall be construed to impose upon Landlord any duty or obligation
to enforce the Rules and Regulations or terms, covenants or conditions in
any other lease against any other tenant. 
Notwithstanding the foregoing, Landlord shall not enforce against Tenant
any Rules and Regulations which Landlord shall not then be enforcing
generally against a majority of the other tenants of the Building.


 


20.14                     DEVELOPMENT RIGHTS.  Tenant hereby expressly and irrevocably
waives any and all right(s) it may have in connection with any zoning lot
merger or transfer of development rights with respect to the Premises
including, without limitation, any rights it may have to be a party to, to
contest, or to execute, any Declaration of Restrictions (as such term is
defined in Section 12-10 of the Zoning Resolution of the City of New York
effective December 15, 1961 and as subsequently amended) with respect to
the Premises, which would cause the Premises to be merged with or unmerged from
any other zoning lot pursuant to such Zoning Resolution or to any document of a
similar nature and purpose, and Tenant agrees that this Lease shall be subject
and subordinate to any Declaration of Restrictions or any other document of
similar nature and purpose now or hereafter affecting the Property.  In confirmation of such subordination and
waiver, Tenant shall execute and deliver promptly any certificate or instrument
that Landlord reasonably may request.


 


20.15                     ESTOPPEL CERTIFICATES.  Each party agrees, at any time and from time
to time, as reasonably requested by the other party, upon not less than ten (10) days’
prior notice, to execute and deliver to the other a written certified statement
executed and acknowledged by an appropriate individual representing such party (a) stating
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth all modifications), (b) setting forth the then
Annual Fixed Rent and Additional Rent, (c) setting forth the date to which
the Annual Fixed Rent, Additional Rent and other charges, if any, have been
paid, (d) stating whether or not, to the best knowledge of the signatory,
the other party is in default under this Lease, and if so, setting forth the
specific nature of all such defaults, (e) stating the amount of the
security deposit, if any, held by Landlord under this Lease, (f) stating
whether there are any subleases affecting the Premises, (g) stating the
address of the person to which all notices and communication under this Lease
shall be sent, (h) stating the Commencement Date(s), the Rent Commencement
Date(s) and the Expiration Date, (i) if applicable, stating whether
or not there are any amounts of contribution by Landlord towards the cost of
Tenant’s work not yet advanced to Tenant, (j) stating what portion of the
Premises Tenant is in possession and occupancy of pursuant to this Lease, (k) if
applicable, whether all work required to be completed by Landlord in connection
with preparing the Premises for Tenant’s initial occupancy has been completed
by Landlord, and (l) as to any other matters reasonably requested by the
party requesting such certificate.  The
parties acknowledge that any statement delivered pursuant to this Section 20.15
may be relied upon by others with whom the party requesting such certificate
may be dealing, which may, for Landlord, include, without limitation, any
purchaser or owner of the Land or the Building, or of Landlord’s interest
(directly or indirectly) in the Land or the Building or any Underlying Lease,
or by any Mortgagee or Overlandlord, or by any purchaser of the interest of any
Mortgagee or Overlandlord (directly or indirectly) in the Land or the Building,
or by any prospective or actual sublessee of the Premises or assignee of this
Lease, or permitted transferee of or successor to Tenant.  Together with its response to each such
request hereunder, Tenant shall provide to 


 


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Landlord
a similar written statement certified to Landlord with respect to each sublease
or other occupancy agreement from every subtenant and other occupant of the
Premises.


 


20.16                     SELF-HELP.  If Tenant shall at any time fail to make any
payment or perform any act which Tenant is obligated to make or perform under
this Lease, then Landlord, may, but shall not be obligated so to do, after
notice and expiration of the applicable cure period, or without notice to or
demand upon Tenant in the case of any emergency, and without waiving or
releasing Tenant from any obligations of Tenant in this Lease contained, make
such payment or perform such act which Tenant is obligated to make or perform
under this Lease in such manner and to such extent as Landlord shall reasonably
determine, and, in exercising any such rights, pay any reasonably necessary and
incidental costs and expenses, employ counsel and incur and pay reasonable
attorneys’ fees.  All sums so paid by
Landlord and all reasonable and necessary costs and expenses of Landlord
incidental thereto, together with interest thereon at the Lease Interest Rate,
shall be deemed to be Additional Rent and, except as otherwise in this Lease
expressly provided, shall be payable to Landlord within thirty (30) days after
demand, and Tenant covenants to pay any such sum or sums with interest as
aforesaid, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the nonpayment thereof
by Tenant as in the case of default by Tenant in the payment of Annual Fixed
Rent.


 


20.17                     HOLDING OVER.  If Tenant remains in possession of the
Premises after the expiration or other termination of the Lease Term, then, at
Landlord’s option, Tenant shall be deemed to be occupying the Premises as a
month-to-month tenant only, at a monthly rental equal to (a) during the
first month of any such holding over, one hundred fifty percent (150%) of the
greater of (x) the Annual Fixed Rent and any Additional Rent payable
hereunder during the last month of the Lease Term and (y) the then current
market rent for the Premises, and (b) thereafter, two hundred percent (200%)
of the greater of (x) the Annual Fixed Rent and any Additional Rent
payable hereunder during the last month of the Lease Term and (y) the then
current market rent for the Premises, and otherwise on the terms and conditions
set forth in this Lease, as far as applicable. 
Tenant shall also pay all Additional Rent payable under the terms of
this Lease, prorated for each month during which Tenant remains in
possession.  Such month-to-month tenancy
may be terminated by Landlord or Tenant, effective as of the last day of any
calendar month by delivery to the other of notice of such termination prior to
the first day of such calendar month. 
Landlord waives no rights against Tenant by reason of accepting any
holding over by Tenant and Tenant shall defend, indemnify and hold Landlord
harmless from and against any and all claims, losses and liabilities for
damages resulting from failure to surrender possession upon the Expiration
Date, including, without limitation, any claims made by any succeeding tenant
and any lost profits, and such obligations shall survive the expiration or
sooner termination of this Lease. 
Notwithstanding the foregoing, provided that Tenant does not hold over
in the Premises for more than one (1) month, Landlord hereby waives the
right to proceed against Tenant for any claims made by any succeeding tenant,
any lost profits and any other consequential damages relating to or arising
from such one (1) month period; it being the intended that if Tenant holds
over for more than one (1) month, Tenant shall be liable for any claims
made by any succeeding tenant, any lost profits and any other consequential
damages from the commencement of such holdover. 
The provisions of this Section 20.17 shall not in any way be deemed
to (i) permit Tenant to remain in possession of the Premises after the
Expiration Date or sooner termination of this Lease, or (ii) imply any
right of Tenant to use or occupy the 


 


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Premises
upon expiration or termination of this Lease and the Lease Term, and no
acceptance by Landlord of payments from Tenant after the Expiration Date or
sooner termination of the Lease Term shall be deemed to be other than on
account of the amount to be paid by Tenant in accordance with the provisions of
this Section 20.17.  Tenant’s
obligations under this Section 20.17 shall survive the expiration or
earlier termination of this Lease.


 


20.18                     RENT CONTROL.  If any of the Annual Fixed Rent or Additional
Rent payable under the terms and provisions of this Lease shall be or become
uncollectible, reduced or required to be refunded because of the laws and
requirements of any public authorities, Tenant shall enter into such agreement(s) and
take such other steps (without additional expense to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of
such legal rent restriction may be legally permissible (and not in excess of
the amounts reserved therefor under this Lease).  Upon the termination of such legal rent
restriction, (a) the rent shall become and thereafter be payable in
accordance with the amounts reserved herein for the periods following such
termination and (b) Tenant shall pay to Landlord, to the maximum extent
legally permissible, an amount equal to (i) the rent which would have been
paid pursuant to this Lease but for such legal rent restriction, less (ii) the
rent actually paid by Tenant during the period such legal rent restriction was
in effect.


 


20.19                     COUNTERPARTS.  This Lease may be executed in several
counterparts, each of which shall be deemed an original, and such counterparts
together shall constitute but one and the same instrument.


 


20.20                     ENTIRE AGREEMENT.  This Lease (including the Exhibits attached
hereto) constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof and supersedes all prior
dealings between them with respect to such subject matter, and there are no verbal
or collateral understandings, agreements, representations or warranties not
expressly set forth in this Lease.  No
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant, unless reduced to writing and signed by the
party or parties to be charged therewith.


 


20.21                     NO PARTNERSHIP.  The relationship of the parties hereto is
that of landlord and tenant and no partnership, joint venture or participation
is hereby created.


 


20.22                     SECURITY DEPOSIT.


 


(a)                                  Upon execution by Tenant of this Lease, Tenant shall furnish to Landlord, at Tenant’s sole
cost and expense, a clean, irrevocable and unconditional letter of credit (the “Letter
of Credit”), substantially in the form attached hereto as Exhibit F, drawn
in favor of Landlord on a bank with offices in Manhattan which has a financial
strength rating of A or better by A.M. Best.  Landlord hereby acknowledges that, as of the
date of this Lease, Bayerische Hypo- und Vereinsbank AG, satisfies the
foregoing requirements.  The Letter of
Credit shall have a face amount equal to the amount of the Security Deposit and
shall be assignable, upon request, to any Overlandlord, Mortgagee or successor
to Landlord at no additional charge. 
Tenant shall, not later than sixty (60) days prior to the expiration of
the term of the Letter of Credit or any replacement thereof, deliver to
Landlord a replacement letter of credit (a 


 


84

















 


“Replacement
Letter”), such that the Letter of Credit or a Replacement Letter shall be in
effect at all times after the date of this Lease until sixty (60) days beyond
the end of the Lease Term, and any extensions or renewals thereof, and
thereafter so long as Tenant is in occupancy of any part of the Premises.  Any Replacement Letter shall be in a face
amount at least equal to the Security Deposit then required hereunder.  The Letter of Credit and any Replacement
Letter are herein sometimes referred to simply as a “Letter”.  If Tenant fails to deliver to Landlord a
Replacement Letter within the time limits set forth in this paragraph (a), and
such failure shall continue for five (5) Operating Days after notice
thereof shall have been given by landlord to Tenant, Landlord may draw down the
full amount of the existing Letter without further notice or demand and retain
the proceeds thereof as substitute security, subject to the provisions of
paragraph (b) below.


 


(b)                                 During the Lease Term, and thereafter so
long as Tenant is in occupancy of any part of the Premises, Landlord shall hold
the Letter as security for the performance by Tenant of all obligations on the
part of Tenant hereunder.  If Tenant
defaults in respect of any of Tenant’s obligations hereunder after notice and
expiration of any applicable cure period, including but not limited to payment
of Annual Fixed Rent or Additional Rent, or if Tenant remains in occupancy of
any part of the Premises beyond the expiration of the Lease Term, Landlord
shall have the right from time to time, without notice and without prejudice to
any other remedy Landlord may have on account thereof, and upon presentation of
a certificate of demand, to draw upon any Letter and apply any funds so drawn
to Landlord’s damages arising from, or to cure, any default by Tenant, whether
such damages accrue before or after summary proceedings or other reentry by
Landlord.  If Landlord shall so apply any
funds, Tenant shall within five (5) Operating Days after demand by
Landlord restore the Letter to the face amount required under paragraph (a) above.  If after the expiration of the Lease Term (or
the applicable extension or renewal period, if any), Tenant has vacated the
Premises and there then exists no default by Tenant in any of the terms or
conditions hereof (other than a default which is de minimis),
Landlord shall return the Letter, or, if applicable, the remaining proceeds
thereof, to Tenant.  If Landlord conveys
Landlord’s interest under this Lease, any Letter or, if applicable, the
proceeds thereof, shall be turned over and assigned by Landlord to Landlord’s
grantee (or, at Landlord’s election, Tenant shall furnish Landlord’s successor
with a new Replacement Letter showing such successor as payee, provided that
the original Letter then outstanding shall be simultaneously returned to Tenant).  From and after any such transfer, assignment
or return, Tenant agrees to look solely to such grantee for proper application
of the funds in accordance with the terms of this Section and the return
thereof in accordance herewith. No Overlandlord or Mortgagee shall be
responsible to Tenant for the return or application of any such Letter, or, if
applicable, the proceeds thereof, whether or not it succeeds to the position of
Landlord hereunder, unless such Letter shall have been received in hand by, and
assigned to, such Overlandlord or Mortgagee.


 


(c)                                  For purposes hereof, “Reduction Date”
shall mean each of the third (3rd) through the twelfth (12th) anniversaries of
the 19th Floor Commencement Date, and “Reduction Period” shall mean each
Reduction Date plus the thirty (30) day period following such Reduction
Date.  Provided that: (1) during the
applicable Reduction Period, no Event of Default (or any monetary default of
which Landlord has given Tenant notice) shall exist; and (2) during the
applicable Reduction Period, Tenant’s chief financial officer shall certify in
writing to Landlord 


 


85

















 


that, as of the applicable Reduction Date, Tenant is
managing at least Five Billion and 00/100 Dollars ($5,000,000,000.00) of
investment funds for a market-based fee; then Tenant shall have the right
during each Reduction Period to reduce the amount of the Security Deposit (by
delivery of a Replacement Letter or an amendment to the existing Letter) as
follows:


 


(i)                                     During the first (1st) Reduction Period,
to an amount equal to eleven (11) months of Annual Fixed Rent calculated at the
initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(ii)                                  During the second (2nd) Reduction Period,
to an amount equal to ten (10) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(iii)                               During the third (3rd) Reduction Period,
to an amount equal to nine (9) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(iv)                              During the fourth (4th) Reduction Period,
to an amount equal to eight (8) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(v)                                 During the fifth (5th) Reduction Period,
to an amount equal to seven (7) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(vi)                              During the sixth (6th) Reduction Period,
to an amount equal to six (6) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(vii)                           During the seventh (7th) Reduction
Period, to an amount equal to five (5) months of Annual Fixed Rent
calculated at the initial rate of Annual Fixed Rent applicable to each portion
of the then current Premises;


 


(viii)                        During the eighth (8th) Reduction Period,
to an amount equal to four (4) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


(ix)                                During the ninth (9th) Reduction Period,
to an amount equal to three (3) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises; and


 


(x)                                   During the tenth (10th) Reduction Period,
to an amount equal to two (2) months of Annual Fixed Rent calculated at
the initial rate of Annual Fixed Rent applicable to each portion of the then
current Premises;


 


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In no event shall the Security Deposit under this
Lease ever be less than an amount equal to two (2) months of Annual Fixed
Rent calculated at the initial rate of Annual Fixed Rent applicable to each
portion of the then current Premises. 
Landlord shall cooperate reasonably with Tenant to effect any such
reductions of the amount of the Letter of Credit.


 


20.23                     FINANCIAL STATEMENTS.


 


(a)                                  Tenant represents and warrants to
Landlord that (i) the financial statements of Tenant heretofore delivered
to Landlord are true and correct and fairly reflect the financial condition and
results of operation of Tenant and (ii) as of the date of this Lease,
there has been no material adverse change in the condition, financial or
otherwise, of Tenant from the date of such financial statements which could
affect Tenant’s ability to perform its obligations hereunder.


 


(b)                                 Within twenty (20) days following
Landlord’s request therefore (made not more than once each calendar year),
Tenant shall deliver to Landlord a copy of Tenant’s financial statements for
Tenant’s fiscal year just ended, certified by an independent certified public
accountant as presenting fairly, in all material respects, the financial
condition of Tenant and the results of its operations in accordance with
GAAP.  Such statements delivered pursuant
hereto may be delivered to and relied upon by any Overlandlord or Mortgagee or
by other parties with whom Landlord may be dealing.  Except as required by Laws or compliance
provisions or other requirements of any securities, bond or commodities
exchange, Landlord and any such Overlandlord or Mortgagee shall maintain such
statements in confidence, provided that Landlord may disclose the same to
Landlord’s existing and prospective partners, lenders, accountants,
consultants, brokers, shareholders, investors, purchasers and attorneys subject
to similar confidentiality requirements. 
In the event Landlord is required by Laws, or by compliance provisions
or other requirements of any securities, bond or commodities exchange, to
provide Tenant’s financial statements, Landlord shall give Tenant prompt notice
of such requirement prior to making disclosure so that Tenant may seek an
appropriate protective order.  If failing
the entry of a protective order Landlord is compelled to make disclosure,
Landlord shall only disclose portions of the financial statement which Landlord
is required to disclose and will exercise reasonable efforts to obtain
assurance that confidential treatment will be accorded to the information so
disclosed.  The foregoing confidentiality
requirement shall not apply to information that has otherwise become available
to the public.


 


20.24                     GOVERNING LAW, ETC.  This Lease shall be governed by the laws of
the State of New York applicable to agreements made and to be wholly performed
within the State, as the same may from time to time exist.  Tenant hereby submits to the jurisdiction of
all state and federal courts located in the Borough of Manhattan, State of New
York, United States of America in connection with any claim or action relating
to this Lease and Tenant hereby waives any right to assert that such court(s) constitute
an inconvenient forum.  Tenant represents
that it is not entitled to immunity from judicial proceedings and agrees that,
in the event Landlord brings any suit, action or proceeding in New York or any
other jurisdiction to enforce any obligation or liability of Tenant arising,
directly or indirectly, out of or relating to this Lease, no immunity from such
suit, action or proceedings will be claimed by or on behalf of Tenant.


 


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20.25                     NOTICE OF SUBWAY IMPROVEMENT AGREEMENTS.  Tenant acknowledges
that it has been provided the opportunity to review and has actual notice of
the terms and conditions of each of the following documents:


 


(a)                                  City Planning Commission Special Permit
adopted April 12, 1984 by the Board of Estimate, restating the resolution
of the City Planning Commission adopted on February 6, 1984, Cal. No. 2
(the “Special Permit”); and


 


(b)                                 NYC Transit Authority Agreement, dated as
of February 6, 1984, between Landlord and the New York City Transit
Authority (the “Transit Authority Agreement”).


 


20.26                     CONFIDENTIALITY OF LEASE.  Tenant agrees that this Lease and the terms
contained herein will be treated as strictly confidential and except as
required by law Tenant shall not disclose the same to any third party (other
than Tenant’s officers, employees, shareholders, partners or members,
accountants, attorneys, brokers, other professional consultants, and any
prospective lender, merger partner and lateral candidates who have been advised
of the confidentiality provisions contained herein and agree to be bound by the
same), and, other than as herein provided, shall not be revealed in any manner
to any other person except upon the prior written consent of Landlord, except (a) in
connection with any action or proceeding to enforce this Lease or any provision
thereof, (b) to the extent legally compelled (by deposition,
interrogatory, subpoena, civil investigative demand or similar legal process)
to disclose such information, (c) to the extent required by securities
laws or compliance provisions of other requirements of law or any securities,
bond or commodities exchange, or (d) to Landlord or Landlord’s agents or
employees.  In the event Tenant is
required by law to provide this Lease or disclose any of its terms, Tenant
shall give Landlord prompt notice of such requirement prior to making
disclosure so that Landlord may seek an appropriate protective order.  If failing the entry of a protective order
Tenant is compelled to make disclosure, Tenant shall only disclose portions of
the Lease which Tenant is required to disclose and will exercise reasonable
efforts to obtain assurance that confidential treatment will be accorded to the
information so disclosed.  The foregoing
confidentiality requirement shall not apply to information that has otherwise
become available to the public.  The
inadvertent verbal disclosure of non-economic terms of this Lease by Tenant (or
Tenant’s officers, employees, shareholders, partners or members, accountants,
attorneys, brokers, other professional consultants, and any prospective lender,
merger partner and lateral candidates) shall not be grounds for termination of
this Lease.


 


20.27                     PATRIOT ACT AND EXECUTIVE ORDER 13224.  As an inducement to
Landlord to enter into this Lease, Tenant hereby represents and warrants
that:  (i) Tenant is not, nor is it
owned or controlled directly or indirectly by, any person, group, entity or
nation named on any list issued by the Office of Foreign Assets Control of the
United States Department of the Treasury (“OFAC”) pursuant to Executive Order
13224 or any similar list or any law, order, rule or regulation or any
Executive Order of the President of the United States as a terrorist, “Specially
Designated National and Blocked Person” or other banned or blocked person (any
such person, group, entity or nation being hereinafter referred to as a “Prohibited
Person”); and (ii) Tenant is an Investment Advisor (as such term is
defined in the Investment Advisors Act of 1940) registered under the Investment
Advisers Act of 1940 and has implemented and currently 


 


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maintains
anti-money laundering procedures (“AML Procedures”) that would materially
satisfy the requirements of the Bank Secrecy Act, as amended by the USA Patriot
Act of 2001.  To the best of Tenant’s
knowledge, none of Tenant’s shareholders/investors is named on any available
lists of known or suspected terrorists, terrorist organizations or of other
sanctioned persons issued by the government(s) of any jurisdiction(s) in
which the undersigned is doing business (including the List of Specially
Designated Nationals and Blocked Persons administered OFAC as such list may be
amended from time to time, or any law, regulation or Executive Order
administered by OFAC).  Tenant’s policy
is to retain or procure the retention of the evidence obtained in accordance
with the above procedures for period of not less than five (5) years from
the date on which the Investor withdraws from the Fund as required by and in
accordance with applicable AML procedures. 
In connection with the foregoing, it is expressly understood and agreed
that (x) any breach by Tenant of the foregoing representations and
warranties shall be deemed a default by Tenant under Section 19.1(e) of
this Lease and shall be covered by the indemnity provisions of Section 11.1
of this Lease, and (y) the representations and warranties contained in
this subsection shall be continuing in nature and shall survive the expiration or
earlier termination of this Lease.


 


ARTICLE 21


 


OPTIONS TO EXTEND


 


21.1                           TENANT’S OPTIONS.  Provided that at the time of each such
exercise and upon the commencement of the applicable Extended Term (i) there
then exists no Event of Default (or any monetary default of which Landlord has
given Tenant notice), (ii) this Lease is then in full force and effect and
(iii) Original Tenant (together with any Space Occupants) is in actual
occupancy of at least seventy-five percent (75%) of the Premises and is not then
listing, advertising or otherwise marketing for sublease such portion(s) of
the Premises as would cause Original Tenant (together with any Space Occupants)
to occupy less than seventy-five (75%) percent of the Premises (the condition
set forth in this clause (iii) being hereinafter referred to as the “Occupancy
Requirement”), Original Tenant shall have the right and option (each, an “Extension
Option”) to extend the Lease Term for two (2) extended terms of five (5) years
each (each, an “Extended Term”).  Each
Extended Term shall commence on the day immediately succeeding the Expiration
Date of the initial Lease Term or the prior Extended Term, as the case may be,
and shall end on the day immediately preceding the fifth (5th) anniversary of
the first (1st) day of such Extended Term. 
Original Tenant shall exercise each Extension Option by giving notice to
Landlord of its desire to do so not later than nineteen (19) months prior to
the Expiration Date of the initial Lease Term or the expiration of the then current
Extended Term, as the case may be. 
Provided the conditions set forth in the foregoing clauses (i), (ii) and
(iii) shall have been satisfied, the giving of such notice by Original
Tenant shall automatically extend the Lease Term for the applicable Extended
Term, and no instrument of renewal need be executed.  In the event that Tenant fails to give such
notice to Landlord, this Lease shall automatically terminate upon the
expiration of the Term then in effect, and Tenant shall have no further option to
extend the Lease Term, it being agreed that time is of the essence with respect
to the giving of such notice. Notwithstanding the foregoing, Landlord may waive
any or all of the conditions set forth in the foregoing clauses (i) and (iii) with
respect to any Extended Term, at its election and in its sole and absolute
discretion, by written notice to Tenant at any time prior to the Expiration
Date.  Each Extended Term shall be on all
the terms and conditions of this Lease, except that (A) 


 


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during
the first (1st) Extended Term, Tenant shall have only one (1) further
option to extend the Lease Term, (B) during the second (2nd) Extended
Term, Tenant shall have no further option to extend the Lease Term, and (C) the
rent for each Extended Term shall be determined as provided below.  In no event or under any circumstance shall
the Extension Options provided in this Article be interpreted to give
Tenant the option to extend beyond that point in time which is ten (10) years
following the Expiration Date of the initial Lease Term.  The Extension Options are personal to
Original Tenant and shall not be transferred, assigned or exercised by any
other party.


 


21.2                           EXTENDED TERM RENT.  The Annual Fixed Rent
for each Extended Term shall be the Fair Market Rent for the Premises as of the
commencement of such Extended Term. 
During each Extended Term, Tenant shall in all events pay Tenant’s Share
of Taxes and Operating Expenses as Additional Rent in accordance with Article 6 of this Lease provided that Base Taxes and Base Operating
Expenses shall be updated in connection with the determination of the Fair
Market Rent.


 


21.3                           EXTENDED TERM RENT DETERMINATION.


 


(a)                                  If, pursuant to the provisions of Section 21.1
hereof, Tenant has exercised validly an Extension Option, then, for purposes of
establishing the Annual Fixed Rent
payable by Tenant during such Extended Term under the provisions of Section 21.2
above, the term “Fair Market Rent” shall mean the then current fair market rental
value per annum for the Premises as of the commencement of the Extended Term,
provided, however, that in no event shall the Annual Fixed Rent for each year of the applicable Extended Term,
on a per rentable square foot basis, be less than the sum of the Annual Fixed Rent and Additional Rent
on account of Taxes and Operating Expenses, on a per rentable square foot
basis, in effect on the last day of the initial Lease Term (with respect to the
first Extended Term) or the immediately preceding Extended Term (with respect
to second Extended Term), as the case may be. 
A determination of the Fair Market Rent payable for the Premises during
the Extended Term shall be made in the manner described in Sections 21.3(b), (c) and
(d) below.


 


(b)                                 If Tenant shall have exercised an
Extension Option, then no later than six (6) months prior to the
Expiration Date of the initial Lease Term or the expiration of the then current
Extended Term, as the case may be, Landlord, in a notice given to Tenant, shall
specify its initial determination of the Fair Market Rent for the Premises
during the Extended Term.  Within twenty
(20) Operating Days after
receipt of Landlord’s notice, Tenant shall notify Landlord of Tenant’s initial
determination of the Fair Market Rent for the Premises.  If Tenant shall fail to notify Landlord of
Tenant’s initial determination of the Fair Market Rent for the Premises within
such twenty (20) Operating Day
period, then Landlord’s initial determination of the Fair Market Rent shall be
the Fair Market Rent for the Premises. 
If, within sixty (60) days after receipt of Tenant’s notice, Landlord
and Tenant fail to reach agreement on the determination of the Fair Market Rent
to be paid by Tenant for the Premises during the Extended Term, then either
Landlord or Tenant (the “Initiating Party”) shall initiate the proceedings for
such determination by notice to the other, and by designating in such notice
the name and address of a commercial real estate broker, consultant or
appraiser unaffiliated with the designating party and willing to act in such
determination and having at least ten (10) years’ experience in the
leasing of first-class office space in Manhattan (hereinafter called a “Qualified



 


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Appraiser”).  Within ten (10) days after receipt by
the other party (the “Responding Party”) of such notice, the Responding Party,
by notice given to the Initiating Party, shall designate the name and address
of another Qualified Appraiser willing so to act in such determination.  If the Responding Party shall fail, neglect
or refuse within said 10-day period to designate another Qualified Appraiser
willing so to act, the Qualified Appraiser designated by the Initiating Party
shall alone conduct the determination of the Fair Market Rent for the Premises
during the Extended Term.  If two (2) Qualified
Appraisers have been designated as aforesaid, such Qualified Appraisers shall
appoint an additional Qualified Appraiser (the “Third Qualified Appraiser”) who
is willing so to act in such determination, and notice of such designation
shall be given both to the Initiating Party and to the Responding Party.  If the two (2) Qualified Appraisers do
not, within a period of ten (10) days after the appointment of the latter
of them, agree upon and designate a Third Qualified Appraiser willing so to
act, either Qualified Appraiser previously designated may request the New York
Office of the American Arbitration Association to designate a Third Qualified
Appraiser willing so to act and a Third Qualified Appraiser so appointed shall,
for all purposes, have the same standing and powers as though the Third
Qualified Appraiser had been timely appointed by the Qualified Appraisers first
appointed.  In case of the inability or
refusal to serve of any person designated as a Qualified Appraiser, or in case
any Qualified Appraiser for any reason ceases to be such, a Qualified Appraiser
to fill such vacancy shall be appointed by the Initiating Party, Responding
Party, the Qualified Appraisers first appointed or the New York Office of the
American Arbitration Association, as the case may be, whichever made the
original appointment, or, if the party which made the original appointment
fails to fill such vacancy, upon application of any Qualified Appraiser who
continues to act or by the Initiating Party, the Responding Party or the New
York Office of the American Arbitration Association, and any Qualified
Appraiser so appointed to fill such vacancy shall have the same standing and
powers as though appointed originally. 
The resulting board of Qualified Appraisers, forthwith upon their
appointment, shall (i) hear the parties to this Lease and their respective
witnesses, and each of the parties shall upon the conclusion of their
presentation be required to submit a complete statement (the “Fair Market Rent
Proposal”) setting forth in detail all of the relevant economic terms of the
parties’ proposed determination of the Fair Market Rent (it being understood
that Landlord’s and Tenant’s respective proposed determinations may differ from
Landlord’s and Tenant’s initial determinations of the Fair Market Rent given to
the other party in accordance with the first two (2) sentences of this
clause (b) and, in such event, the Qualified Appraisers shall not take into
account any determinations of such Fair Market Rent previously given by
Landlord or Tenant, as the case may be, to the other party), (ii) examine
the records relating to the Building and such other documents and records as
may, in their judgment, be necessary and (iii) select in the manner
hereinafter provided, the Fair Market Rent for the Premises to become
applicable during the Extended Term.  In
determining the Fair Market Rent for the Premises during the Extended Term, the
parties, and any Qualified Appraisers shall take into account (A) the
presentation of the parties regarding the current fair market rental value of
the Premises, (B) Tenant’s payments under this Lease with respect to Taxes
and Operating Expenses as provided in Article 6 of this Lease provided
that Base Taxes and Base Operating Expenses shall be updated in connection with
the determination of the Fair Market Rent, and (C) all other factors
relevant to the determination of the fair market rental value of the Premises.


 


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(c)                                  If, pursuant to the preceding provisions,
there is only one (1) Qualified Appraiser, the determination of Fair
Market Rent for the Premises shall be determined by such sole Qualified
Appraiser selecting the Fair Market Rent Proposal in accordance with the
provisions of subsections (i) and (ii) below.  Where, however, there exists a board of three
(3) Qualified Appraisers, as is contemplated hereby, then the Fair Market
Rent for the Premises shall be determined by majority vote of such board, all
in accordance with the following:


 


(i)                                     If the higher Fair Market Rent Proposal
(on a net effective basis, amortizing any free rent, allowances or other
concessions) is one hundred five percent (105%) or less of the lower Fair Market
Rent Proposal, then the Qualified Appraisers shall determine the arithmetic
average of such two Fair Market Rent Proposals which shall constitute the Fair
Market Rent for the Premises during the Extended Term.


 


(ii)                                  If the higher Fair Market Rent Proposal
(on a net effective basis, amortizing any free rent, allowances or other
concessions) is more than one hundred five percent (105%) of the lower Fair
Market Rent Proposal, then Fair Market Rent shall be determined by the
Qualified Appraisers selecting, in its entirety, without modification, the Fair
Market Rent Proposal submitted by either Landlord or Tenant as the Fair Market
Rent, whichever such Qualified Appraisers believe most accurately reflects the
then current fair market rental value per annum for the Premises.


 


(d)                                 Each of Landlord and Tenant shall pay the
costs and fees of the Qualified Appraiser chosen by it, and Landlord and Tenant
shall share the costs and fees of the Third Qualified Appraiser.  Each of Landlord and Tenant shall pay the legal
fees and expenses of their respective counsel.


 


21.4                           RETROACTIVE ADJUSTMENTS.  If, pursuant to the preceding provisions of
this Article 21, Fair Market Rent has not been determined as of the date
the same is to become effective, Tenant shall pay on account of Annual Fixed Rent the average of the rent specified by Landlord and Tenant as
the Fair Market Rent until such determination is made, provided that in no
event shall such amount be less than the sum of the Annual Fixed Rent
and Additional Rent on account of Taxes and Operating Expenses in effect on the
last day of the initial Lease Term (with respect to the first Extended Term) or
the immediately preceding Extended Term (with respect to second Extended Term),
as the case may be.  If, based upon the final
determination of such Fair Market Rent as provided herein, such payments made
by Tenant on account of Annual Fixed Rent for
the Extended Term were (i) less than the Fair Market Rent as finally
determined in accordance with the provisions hereof, Tenant shall pay to
Landlord the amount of such deficiency, with interest thereon at the Lease Interest Rate from the respective due dates therefor until paid, within
thirty (30) days after final determination of the Fair Market Rent, or (ii) greater
than the Fair Market Rent as finally determined in accordance with the
provisions hereof, Landlord shall credit the amount of such excess against the
next installments of rent due under this Lease, with interest thereon at the Lease Interest Rate from the respective dates of overpayment until credited.


 


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ARTICLE 22


 


AUTOMATIC
EXPANSION


 


22.1                           ADDITION OF SPACE.


 


(a)                                  Effective as of the Automatic Expansion
Date (as hereinafter defined) and provided that (i) there exists no Event
of Default (or any monetary default of which Landlord has given Tenant notice)
and (ii) this Lease is then in full force and effect, the 23rd Floor Suite A
Automatic Expansion Space (as hereinafter defined) or the 23rd Floor Suite B
Automatic Expansion Space (as hereinafter defined), shall become part of the
Premises in accordance with the provisions of this Article 22.  Notwithstanding the foregoing, Landlord may
waive the condition in clause (i) of the prior sentence, at its election
in its sole and absolute discretion, by written notice to Tenant at any time
prior to December 1, 2008.  On or
before October 1, 2007 (the “Designation Date”), time of the essence,
Tenant shall designate either the 23rd Floor Suite A Automatic Expansion
Space or the 23rd Floor Suite B Automatic Expansion Space as the Automatic
Expansion Space (as hereinafter defined) by written notice to Landlord.  If Tenant shall fail to notify Landlord of
such designation, the 23rd Floor Suite A Automatic Expansion shall be the
Automatic Expansion Space.


 


(b)                                 For purposes hereof the “23rd Floor Suite A
Automatic Expansion Space” shall mean that portion of the twenty-third (23rd)
floor of the Building identified as RamiusA on the floor plan of the
twenty-third (23rd) floor of the Building annexed hereto as part of Exhibit B,
and the “23rd Floor Suite B Automatic Expansion Space” shall mean those
portions of the twenty-third (23rd) floor of the Building identified as RamiusA
and RamiusB on the floor plan of the twenty-third (23rd) floor of the Building
annexed hereto as part of Exhibit B (the 23rd Floor Suite A Automatic
Expansion Space or the 23rd Floor Suite B Automatic Expansion Space,
whichever shall be designated pursuant to Section 22.1(a) above, is
referred to herein as the “Automatic Expansion Space”).  The portion of the twenty-third (23rd) floor
of the Building identified as RamiusB on the floor plan of the twenty-third
(23rd) floor of the Building annexed hereto as part of Exhibit B is
sometimes hereinafter referred to as the “RamiusB Space”.


 


(c)                                  Landlord shall have the flexibility of
delivering possession of the Automatic Expansion Space within a “leeway period”
occurring between April 1, 2008 and December 1, 2008 (inclusive) by
giving Tenant notice, not less than sixty (60) days prior to the designated
Automatic Expansion Date, of the date when, within the leeway period aforesaid,
the Automatic Expansion Space will become available to Tenant.  If Landlord shall fail to give such notice at
least sixty (60) days prior to the expiration of the applicable leeway period,
then, subject to Sections 22.1(d) and (e) below, the last day of the
leeway period shall be deemed to have been designated by Landlord as the
Automatic Expansion Date.  The date on
which Landlord delivers the Automatic Expansion Space in accordance with Section 22.2(a) hereof
shall be the “Automatic Expansion Date”.


 


(d)                                 Notwithstanding anything to the contrary
contained herein, if the lease of the tenant currently in possession of the
Automatic Expansion Space is terminated on account of a default of the tenant
thereunder prior to its scheduled expiration date, Landlord shall have the 


 


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right to
designate, by ninety (90) days prior written notice to Tenant (“Landlord’s
Automatic Expansion Space Acceleration Notice”), an Automatic Expansion Date
prior to April 1, 2008.


 


(e)                                  Notwithstanding anything to the contrary
contained in this Lease, in the event that Landlord is unable to deliver
possession of the Automatic Expansion Space on the designated date with respect
thereto for reasons beyond Landlord’s reasonable control (including the failure
of an existing occupant to vacate such space), Landlord shall use reasonable
efforts to deliver possession (including, in Landlord’s reasonable discretion,
litigation to evict any holdover tenant), and the Automatic Expansion Date
shall be deemed to be the first (1st) day thereafter that actual possession is
so delivered, and any delay in such date shall be Tenant’s sole remedy at law
or in equity (Tenant hereby waiving any right to rescind this Lease and/or to
recover any damages on account of such delay). 
The foregoing is intended to be “an express provision to the contrary”
under Section 223-a of the New York Real Property Law or any successor
statute of similar import.


 


(f)                                    Provided that the conditions set forth in
Section 22.1(a)(i) and (ii) as conditions to the Automatic
Expansion Space becoming part of the Premises continue to be applicable (or, in
the case of Section 22.1(a)(i), have been waived in writing by Landlord at
its election and in its sole and absolute discretion), the Automatic Expansion
Space shall be added to and become a part of the Premises for all purposes of
this Lease on the Automatic Expansion Date.


 


(g)                                 Following the Designation Date and prior
to the Automatic Expansion Date, Landlord shall grant Tenant access to the
Automatic Expansion Space on an as needed basis upon reasonable prior notice to
Landlord in accordance with the provisions set forth in Section 4.3 above.


 


22.2                           CONDITION AND LANDLORD’S AUTOMATIC EXPANSION SPACE
CONTRIBUTION.


 


(a)                                  Landlord shall, at its expense, demise
with Building Standard walls (in conformance with all governmental
requirements) the Automatic Expansion Space prior to the Automatic Expansion
Date.  The Automatic Expansion Space
shall, at Landlord’s option, be delivered either with the existing tenant
improvements therein demolished or in its then “AS IS” condition, in any case
without representation or warranty by Landlord. 
Tenant acknowledges that any work (other than the aforementioned
demising and Landlord’s option with respect to demolition as set forth below)
necessary to prepare the applicable Automatic Expansion Space for Tenant’s
occupancy shall be performed solely by Tenant in accordance with the provisions
of this Lease, including, without limitation, Exhibit C attached hereto.


 


(b)                                 Section 4.1(a), Section 4.2, Section 4.4
and Exhibit C of this Lease shall apply, mutatis
mutandis, to Tenant’s initial buildout of the Automatic Expansion
Space except that: (i) the amount of Landlord’s Contribution shall be
amended to be amount equal to the product of (x) Forty and 00/100 Dollars
($40.00) per rentable square foot of the Automatic Expansion Space multiplied
by (y) a fraction, the numerator of which is the number of days remaining
in the initial Lease Term as of the Automatic Expansion Date and the
denominator of which is the total number of days in the initial Lease Term as
calculated from 20th and 21st 


 


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Floor Commencement
Date (the “Pro-Rata Fraction”); (ii) there shall be no Landlord’s
Demolition Contribution except as hereinafter provided; and (iii) Tenant
shall have one (1) year from the Automatic Expansion Date to exhaust
Landlord’s Contribution (and, if applicable, Landlord’s Demolition
Contribution) with respect thereto.  If
Landlord delivers the Automatic Expansion Space in its “AS IS” un-demolished
condition, Landlord agrees to pay to Tenant an amount equal to Five and 00/100
Dollars ($5.00) per rentable square foot of the Automatic Expansion Space as
Landlord’s Demolition Contribution therefor.


 


22.3                           RENT FOR AUTOMATIC EXPANSION SPACE.


 


(a)                                  Effective as of the Automatic Expansion
Date, the definition of Premises shall be modified to include the Automatic
Expansion Space, Annual Fixed Rent shall be increased by the amounts set forth
on Exhibit H, the Security Deposit shall be appropriately increased, and
Tenant’s Share shall be appropriately increased.


 


(b)                                 Tenant shall in all events pay Tenant’s
Share of Taxes and Operating Expenses with respect to the Automatic Expansion
Space as Additional Rent in accordance with Section 5.3 and Article 6
of this Lease (utilizing the same Base Taxes and Base Operating Expenses respectively
referenced therein for the initial Premises).


 


(c)                                  Anything contained in this Article to
the contrary notwithstanding, provided no Event of Default exists, Landlord
hereby waives payment of Annual Fixed Rent for the Automatic Expansion Space
for the period from and including the Automatic Expansion Date through (i) if
the Automatic Expansion Space is delivered with the existing tenant
improvements therein demolished, a number days equal to the product of (x) 180
multiplied by (y) the Pro-Rata Fraction, or (ii) if the Automatic
Expansion Space is delivered in its “AS IS” un-demolished condition, a number
days equal to the product of (x) 195 multiplied by (y) the Pro-Rata
Fraction.


 


(d)                                 Promptly after an Automatic Expansion
Date, Landlord and Tenant shall execute an instrument confirming the Automatic
Expansion Date and such adjustments, but failure to do so shall have no effect
on the Automatic Expansion Date or any such adjustments.


 


ARTICLE 23


 


RIGHT TO LEASE
ADDITIONAL SPACE


 


23.1                           TENANT’S RIGHTS TO ADDITIONAL SPACE.   Provided that at the
time of such availability and at the time any such space is to be added to the
Premises (i) there then exists no Event of Default (or any monetary
default of which Landlord has given Tenant notice), (ii) this Lease is
then in full force and effect and (iii) the Occupancy Requirement is
satisfied, if, at any time prior to August 31, 2018, all or any portion of
(A) the eighteenth (18th) floor of the Building other than the 18th Floor
Expansion Space (as defined in Article 25 hereof and if made available by
Landlord to Tenant pursuant thereto) and/or (B) the twenty-second (22nd)
floor of the Building (subject to the limitations set forth below, the “First
Refusal Space”) shall become available for lease, Landlord shall so notify
Tenant, and shall identify the space available (the “Offered Space”) and shall
set forth the terms and conditions (other than the rent and expiration date of
the term) on which Landlord is willing to lease the Offered Space.  Original Tenant may, 


 


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by
giving notice to Landlord within ten (10) Operating Days after receipt of
such notice, time of the essence, elect to lease the Offered Space on the terms
offered by Landlord, and Original Tenant’s election to lease the Offered Space
shall constitute a binding agreement to lease the Offered Space on the terms
offered by Landlord for a term which expires on the Expiration Date and at the
Fair Market Rent to be determined as set forth in Section 23.3 below.  Effective as of the commencement of the term
for the Offered Space, provided that conditions (i), (ii) and (iii) above
continue to be satisfied (or, in the case of conditions (i) and (iii),
have been waived in writing by Landlord at its election and in its sole and
absolute discretion) the definition of Premises shall be modified to include
the Offered Space, Annual Fixed Rent shall be increased by the Fair Market Rent
determined as set forth in Section 23.3 below, the Security Deposit shall
be appropriately increased, and Tenant’s Share shall be appropriately
increased.  Promptly after Tenant’s
election to lease the Offered Space and the determination of the rent therefor,
Landlord and Tenant shall execute an amendment to this Lease confirming the terms
thereof, but failure to do so shall have no effect on Tenant’s agreement to
lease the Offered Space.  If Tenant shall
not elect to lease the Offered Space within such 10-Operating Day period, then
Tenant shall have no further rights under this Article 23 with respect to
the Offered Space, and Landlord shall be free to lease any or all of such space
to a third party or parties from time to time on such terms and conditions as
it may deem appropriate.  Nothing herein
shall be construed to limit Original Tenant’s rights under this Article with
respect to space within the First Refusal Space other than the Offered
Space.  The rights granted under this Article 23
are personal to Original Tenant and shall not be transferred, assigned or
exercised by any other party.


 


23.2                           NON-AVAILABILITY OF SPACE.  For purposes of this Article 23, space
shall not be deemed to be “available for lease” (a) in the event that
Landlord and an existing tenant occupying such space desire to renew or extend
such existing tenant’s lease or to enter into a new lease with respect to such
space or (b) in the event that Landlord leases such space pursuant to any
option or commitment now held by another tenant to expand the premises occupied
by such other tenant (but excluding any right of first offer or right of first
refusal hereafter granted to another tenant) or (c) in the event Landlord
and/or its affiliates desires to expand or extend its occupancy therein, and
Tenant’s rights under this Article shall be subject and subordinate to any
such extension, renewal, leasing or expansion.


 


23.3                           RENT FOR OFFERED SPACE.  Fair Market Rent for any Offered Space shall
be determined in the same fashion as Fair Market Rent for the Premises during
an Extended Term is determined, except that Landlord shall specify its
determination of the Fair Market Rent for the Offered Space in a notice
Landlord shall give to Tenant not less than thirty (30) days after Landlord’s
receipt of Tenant’s notice electing to lease such Offered Space and in no event
shall the Annual
Fixed Rent for the Offered Space, on a per
rentable square foot basis, be less than the sum of the Annual Fixed Rent and Additional Rent on account of Taxes and Operating
Expenses, on a per rentable square foot basis, in effect on the day the Offered
Space becomes a part of the Premises. 
But for the exceptions contained in the preceding sentence, all other
provisions for determining Fair Market Rent for the Offered Space shall apply, mutatis mutandis.


 


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ARTICLE 24


 


23RD FLOOR OPTIONS
TO EXPAND


 


24.1                           TENANT’S RIGHTS.


 


(a)                                  Provided that at the time the current
tenant of the twenty-third (23rd) floor of the Building surrenders possession
of such floor to Landlord (i) there then exists no Event of Default (or
any monetary default of which Landlord has given Tenant notice), (ii) this
Lease is then in full force and effect, and (iii) the Occupancy
Requirement is satisfied, Landlord shall divide and improve the portion of such
23rd floor not constituting the Automatic Expansion Space into two separate
pre-built units (the “23rd Floor Unit 1 Expansion Space” and the “23rd Floor
Unit 2 Expansion Space”, respectively), provided that in the event that the
23rd Floor Suite A Automatic Expansion Space is the Automatic Expansion
Space, Landlord shall also either (1) demise and improve the RamiusB Space
into a third pre-built unit (the “23rd Floor Unit 3 Expansion Space”; the 23rd
Floor Unit 1 Expansion Space, the 23rd Floor Unit 2 Expansion Space and, if
applicable, the 23rd Floor Unit 3 Expansion Space are sometimes individually
and collectively referred to as “23rd Floor Expansion Space”) or (2) incorporate
the RamiusB Space into the 23rd Floor Unit 2 Expansion Space.  The demising plan and rentable areas of the
23rd Floor Unit 1 Expansion Space and the 23rd Floor Unit 2 Expansion Space are
tentatively shown on the floor plan of the twenty-third (23rd) floor of the
Building annexed hereto as part of Exhibit B as Unit 1 and Unit 2,
respectively.  If any of the foregoing conditions
(i), (ii) or (iii) shall not be satisfied at the time the current
tenant of the twenty-third (23rd) floor of the Building surrenders possession
of such floor to Landlord, this Article 24 shall be void and of no
effect.  If Landlord is obligated to
demise and improve the 23rd Floor Expansion Space as aforesaid, Landlord shall
have the right:


 


(A)                              to vary the size of each of the 23rd
Floor Unit 1 Expansion Space, the 23rd Floor Unit 2 Expansion Space and, if
applicable, the 23rd Floor Unit 3 Expansion Space by up to one thousand (1,000)
rentable square feet;


 


(B)                                in the event that the 23rd Floor Suite A
Automatic Expansion Space is the Automatic Expansion Space, to include the
RamiusB Space in the 23rd Floor Unit 2 Expansion Space;


 


(C)                                to lease the 23rd Floor Unit 1
Expansion Space to a third party for a term which shall expire no later than (x) the
date which is five (5) years following the rent commencement date
thereunder or (y) December 31, 2014, whichever is earlier;


 


(D)                               to lease the 23rd Floor Unit 2 Expansion
Space to a third party for a term which shall expire no later than December 31,
2018; and


 


(E)                                 if created, to lease the 23rd Floor Unit
3 Expansion Space to a third party co-terminously with either the 23rd Floor
Unit 1 Expansion Space or the 23rd Floor Unit 2 Expansion Space.


 


97

















 


Landlord shall
notify Tenant of the actual size of each of the 23rd Floor Unit 1 Expansion
Space, the 23rd Floor Unit 2 Expansion Space and, if applicable, the 23rd Floor
Unit 3 Expansion Space, and of the scheduled expiration dates (each, a “Pre-Built
Lease Expiration Date”) for such leases of the 23rd Floor Expansion Space
(each, a “Pre-Built Lease”) promptly after completion of such spaces and
execution of such leases.  If Landlord
divides the 23rd Floor Expansion Space into three units (i.e., the 23rd Floor
Unit 1 Expansion Space, the 23rd Floor Unit 2 Expansion Space and the 23rd
Floor Unit 3 Expansion Space), then in no event shall the Pre-Built Lease
Expiration Date for the 23rd Floor Unit 2 Expansion Space be earlier than
the earliest of (xx) the Pre-Built Lease Expiration Date for the 23rd Floor
Unit 1 Expansion Space or (yy) the Pre-Built Lease Expiration Date for the
23rd Floor Unit 3 Expansion Space.


 


(b)                                 Provided that at the time of such
exercise and on the applicable 23rd Floor Expansion Date (as hereinafter
defined) (i) there then exists no Event of Default (or any monetary
default of which Landlord has given Tenant notice), (ii) this Lease is
then in full force and effect, and (iii) the Occupancy Requirement is
satisfied, Original Tenant shall have the right (collectively the “23rd Floor
Expansion Options”) to expand the size of the Premises by adding thereto the
23rd Floor Unit 1 Expansion Space, the 23rd Floor Unit 2 Expansion Space and,
if applicable, the 23rd Floor Unit 3 Expansion Space, by giving written
notice of Original Tenant’s desire to lease such space no later than the date
which is twelve (12) months prior to the applicable Pre-Built Lease Expiration
Date (each, an “Expansion Notice Date”), time of the essence.  Such notice by Tenant shall constitute a
binding agreement to lease the applicable 23rd Floor Expansion Space for a term
commencing on the day after the applicable Pre-Built Lease Expiration Date and
expiring on the Expiration Date and at the Fair Market Rent to be determined as
set forth in Section 24.3 below. 
The actual date on which Landlord delivers the applicable 23rd Floor
Expansion Space to Tenant in accordance with Section 24.2(a) below
shall be referred to as an “23rd Floor Expansion Date”.  If Tenant fails to give such notice to
Landlord, Tenant shall have no further option to lease the applicable 23rd
Floor Expansion Space, and Landlord shall be free to lease any or all of such
applicable 23rd Floor Expansion Space to a third party or parties from time to
time on such terms and conditions as it may deem appropriate.  Tenant’s failure to lease any portion of the
23rd Floor Expansion Space pursuant hereto shall not affect Tenant’s right to
lease the remainder of the 23rd Floor Expansion Space pursuant hereto except as
hereinafter provided.  If Tenant
subleases any portion of the Automatic Expansion Space and Tenant shall fail to
lease any portion of the 23rd Floor Expansion Space which is contiguous to the
Automatic Expansion Space, then Tenant shall have no further rights under this Article 24
to lease any other 23rd Floor Expansion Space. 
The 23rd Floor Expansion Options are personal to Original Tenant and
shall not be transferred, assigned or exercised by any other party.


 


(c)                                  Notwithstanding anything to the contrary
contained herein, if a Pre-Built Lease (once entered into) is terminated on
account of a default of the tenant thereunder prior to its Pre-Built Lease
Expiration Date, Landlord shall have the right to designate, by thirty (30)
days prior written notice to Tenant (“Landlord’s 23rd Floor Expansion
Acceleration Notice”), a new Pre-Built Lease Expiration Date with respect to
such 23rd Floor Expansion Space.  Tenant
may, by giving notice to Landlord within fifteen (15) days after receipt of
Landlord’s 23rd Floor Expansion Acceleration Notice, time of the essence, elect
to lease such 23rd Floor Expansion Space as of the day following the Pre-Built
Lease Expiration Date designated by Landlord in 


 


98

















 


Landlord’s 23rd
Floor Expansion Acceleration Notice, subject to the terms of this Article.  If Tenant shall not elect to lease such 23rd
Floor Expansion Space within such 15-day period, then, notwithstanding anything
to the contrary contained in Section 24.1(b) above, Tenant shall have
no further option to lease such 23rd Floor Expansion Space, and Landlord shall
be free to lease any or all of such space to a third party or parties from time
to time on such terms and conditions as it may deem appropriate.


 


(d)                                 If Landlord fails to deliver possession
of the applicable 23rd Floor Expansion Space to Tenant on the designated 23rd
Floor Expansion Date with respect thereto for any reason (including the failure
of an existing occupant to vacate such space), Landlord shall use reasonable
efforts to deliver possession (including, in Landlord’s reasonable discretion,
litigation to evict any holdover tenant), and the 23rd Floor Expansion Date
shall be deemed to be the first (1st) day thereafter that actual possession is
so delivered, and, any delay in such date shall be Tenant’s sole remedy at law
or in equity (Tenant hereby waiving any right to rescind this Lease and/or to
recover any damages on account of such delay). 
The foregoing is intended to be “an express provision to the contrary”
under Section 223-a of the New York Real Property Law or any successor
statute of similar import.


 


(e)                                  Provided that the conditions set forth in
Section 24.1(b)(i), (ii) and (iii) as conditions to the
applicable 23rd Floor Expansion Space becoming part of the Premises continue to
be satisfied (or in the case of Section 24.1(b)(i) and (iii), have
been waived in writing by Landlord at its election in its sole and absolute
discretion), the relevant 23rd Floor Expansion Space shall be added to and
become a part of the Premises for all purposes of this Lease on the 23rd Floor
Expansion Date with respect thereto. 
Effective as of the applicable 23rd Floor Expansion Date, the definition
of Premises shall be modified to include the applicable 23rd Floor Expansion
Space, Annual Fixed Rent shall be increased by the Fair Market Rent determined
as set forth in Section 24.3 below, the Security Deposit shall be
appropriately increased, and Tenant’s Share shall be appropriately
increased.  Promptly after Tenant’s
election to lease the applicable 23rd Floor Expansion Space and the
determination of the rent therefor, Landlord and Tenant shall execute an
amendment to this Lease confirming the terms thereof, but failure to do so
shall have no effect on Tenant’s agreement to lease the applicable 23rd Floor
Expansion Space.


 


(f)                                    Following each Expansion Notice Date and
prior to each 23rd Floor Expansion Date, Landlord shall grant Tenant access to
the applicable 23rd Floor Expansion Space on an as needed basis upon reasonable
prior notice to Landlord in accordance with the provisions set forth in Section 4.3
above.


 


24.2                           CONDITION OF THE 23RD FLOOR EXPANSION SPACE.


 


(a)                                  The 23rd Floor Expansion Space shall be
delivered in its then “AS IS” condition, without representation or warranty by
Landlord.  Landlord
shall use reasonable efforts to use a color palette when painting the 23rd
Floor Expansion Space for the initial lease of such space consistent with the
finish utilized by Tenant in the Automatic Expansion Space.


 


99

















 


(b)                                 Section 4.1(a), Section 4.2 and
Exhibit C of this Lease shall apply, mutatis mutandis,
to Tenant’s initial build-out of the 23rd Floor Expansion Space except that
there shall be no Landlord’s Contribution and no Landlord’s Demolition
Contribution.


 


24.3                           RENT FOR 23RD FLOOR EXPANSION SPACE.   Fair Market Rent
for any 23rd Floor Expansion Space shall be determined in the same fashion as
Fair Market Rent for the Premises during an Extended Term is determined, except
that (a) Landlord shall specify its determination of the Fair Market Rent
for the 23rd Floor Expansion Space in a notice Landlord shall give to Tenant
not less than thirty (30) days after Landlord’s receipt of Tenant’s notice
electing to lease such 23rd Floor Expansion Space, (b) in no event shall
the Annual
Fixed Rent for the 23rd Floor Expansion
Space, on a per rentable square foot basis, be less than the sum of the Annual Fixed Rent and Additional Rent on account of Taxes and Operating
Expenses, on a per rentable square foot basis, in effect on the day the
applicable 23rd Floor Expansion Space becomes a part of the Premises and (c) such
determination shall take into account the actual costs incurred by Landlord in
constructing the applicable 23rd Floor Expansion Space.  But for the exceptions contained in the
preceding sentence, all other provisions for determining Fair Market Rent for
the Premises during an Extended Term shall apply, mutatis mutandis, in respect of a determination of Fair
Market Rent for the 23rd Floor Expansion Space.


 


ARTICLE 25


 


18TH FLOOR OPTION TO
EXPAND


 


25.1                           TENANT’S 18TH FLOOR RIGHTS


 


(a)                                  Landlord shortly anticipates taking
possession of the balance of the eighteenth (18th) floor of the Building not
currently occupied by Landlord and intends to divide, improve and make
available one pre-built unit from such space consisting of approximately 4,200
rentable square feet (the “18th Floor Expansion Space”).  Landlord shall notify Tenant no later than August 1,
2007 (“Landlord’s 18th Floor Expansion Notice”) as to whether or not, in
Landlord’s sole and absolute discretion, Landlord intends to so create and make
available the 18th Floor Expansion Space and, if so, the size thereof and the
expected availability date thereof, provided that such availability date shall
not be earlier than October 1, 2007 nor later than March 1, 2008
(inclusive).  Provided that at the time
of such exercise and on the 18th Floor Expansion Date (as hereinafter defined) (i) there
then exists no Event of Default (or any monetary default of which Landlord has
given Tenant notice) and (ii) this Lease is then in full force and effect,
Original Tenant shall have the right (the “18th Floor Expansion Option”) to
expand the size of the Premises by adding thereto the 18th Floor Expansion
Space by giving written notice of Original Tenant’s desire to lease such space
not later than fifteen (15) days after receipt of Landlord’s 18th Floor
Expansion Notice, time of the essence. 
If Tenant fails to give such notice to Landlord, Tenant shall have no
further option to expand the size of the Premises with respect to the 18th
Floor Expansion Space, and Landlord shall be free to lease any or all of such
space to a third party or parties from time to time on such terms and
conditions as it may deem appropriate. 
The date on which Landlord delivers to Tenant the 18th Floor Expansion
Space in accordance herewith shall be referred to as the “18th Floor Expansion
Date”.  The 18th Floor Expansion Option
is personal to Original Tenant and shall not be transferred, assigned or
exercised by any other party.


 


100

















 


(b)                                 Notwithstanding anything to the contrary
contained in this Lease, in the event that Landlord is unable to deliver
possession of the 18th Floor Expansion Space on the designated 18th Floor
Expansion Date as set forth in Section 25.1(a) for reasons beyond
Landlord’s reasonable control (including the failure of an existing tenant to
vacate such space), Landlord shall use reasonable efforts to deliver possession
(including, in Landlord’s reasonable discretion, litigation to evict any
holdover tenant), and the 18th Floor Expansion Date shall be deemed to be the
first (1st) day thereafter that actual possession is so delivered, and any
delay in such date shall be Tenant’s sole remedy at law or in equity (Tenant
hereby waiving any right to rescind this Lease and/or to recover any damages on
account of such delay).  The foregoing is
intended to be “an express provision to the contrary” under Section 223 a
of the New York Real Property Law or any successor statute of similar import.


 


(c)                                  Provided that the conditions set forth in
Section 25.1(a)(i) and (ii) as conditions to the 18th Floor
Expansion Space becoming part of the Premises continue to be applicable (or
with respect to Section 25.1(a)(i) have been waived in writing by
Landlord at its election in its sole and absolute discretion), the 18th Floor
Expansion Space shall be added to and become a part of the Premises for all
purposes of this Lease on the 18th Floor Expansion Date.


 


25.2                           CONDITION OF 18TH FLOOR EXPANSION SPACE.  The 18th Floor
Expansion Space shall be delivered as a Building Standard pre-built unit
demised with Building Standard walls (in conformance with all governmental
requirements) and otherwise in its then “AS IS” condition without
representation or warranty by Landlord. 
Except for Landlord’s obligation to deliver Building Standard pre-built
improvements, Landlord shall have no obligation to prepare the space for Tenant’s
occupancy and there shall be no Landlord’s Contribution nor any Landlord’s
Demolition Contribution with respect thereto.


 


25.3                           RENT FOR 18TH FLOOR EXPANSION SPACE.


 


(a)                                  Effective as of the 18th Floor Expansion
Date, the definition of Premises shall be modified to include the 18th Floor
Expansion Space, Annual Fixed Rent shall be increased by the amounts set forth
on Exhibit H, the Security Deposit shall be appropriately increased, and
Tenant’s Share shall be appropriately increased.


 


(b)                                 Tenant shall in all events pay Tenant’s
Share of Taxes and Operating Expenses with respect to the 18th Floor Expansion
Space as Additional Rent in accordance with Section 5.3 and Article 6
of this Lease (utilizing the same Base Taxes and Base Operating Expenses
respectively referenced therein for the initial Premises).


 


(c)                                  There shall be no rent concession period
for the 18th Floor Expansion Space.


 


(d)                                 Promptly after the 18th Floor Expansion
Date, Landlord and Tenant shall execute an instrument confirming the 18th Floor
Expansion Date and such adjustments, but failure to do so shall have no effect
on the 18th Floor Expansion Date or any such adjustments.


 


101

















 


ARTICLE 26


 


ROOF RIGHTS


 


(a)                                  Subject to the provisions of Article 8
of this Lease, Landlord shall not unreasonably withhold its consent to the
installation by Tenant of one or more communications antennae, microwave or
satellite dishes, together with related equipment, mountings, and supports
(collectively, “Telecommunications Equipment”), on the roof of the Building in
an area to be identified by Landlord. 
Subject to availability as determined by Landlord in good faith (taking
into consideration the need to allocate or reserve space for other tenants in
the Building), Landlord shall provide Tenant with space on the roof of the
Building upon receipt of Tenant’s written request to install Tenant’s
Telecommunication Equipment (but in no event shall the aggregate amount of such
space exceed at any point in time ten (10) square feet), subject to the
terms of this Section, and Landlord reserves the right to charge Tenant a
market rate fee in connection therewith. 
Tenant acknowledges and agrees that any use of the roof space by Tenant
for the installation and operation of Tenant’s Telecommunications Equipment
shall be on a non-exclusive basis, except as to that portion of the roof space
provided by Landlord to Tenant as aforesaid. 
Tenant may use the roof space and Telecommunications Equipment solely
for Tenant’s own use (and not for resale purposes), provided, however, that as
long as Tenant has exercised its rights hereunder and actually installed
Telecommunications Equipment on the roof of the Building, nothing in this Lease
shall be construed to prohibit the transfer of Tenant’s rights with respect to
any such Telecommunications Equipment to any permitted sublessee or assignee of
this Lease.  The height, diameter, design
and installation of the satellite dishes or other Telecommunications Equipment
shall be subject to Landlord’s approval, which shall not be unreasonably
withheld or delayed.  In connection
therewith, Landlord shall make available to Tenant reasonable adjacent space
for access to the roof space for the construction, installation, maintenance,
service, repair, operation and use of Tenant’s Telecommunications
Equipment.  All work in connection with
the installation of Tenant’s Telecommunications Equipment, including core
drilling and reinforcing the roof of
the Building, if required, shall be performed at Tenant’s sole cost and
expense, including the cost of a fire watch and related supervisory costs
relating to any core drilling, which shall be performed in such a manner and at
such times as Landlord shall reasonably prescribe.  References in this Section to the
Telecommunications Equipment shall be deemed to include such riser and the
electrical and telecommunication conduits therein.


 


(b)                                 Tenant shall use and maintain Tenant’s Telecommunications
Equipment so as not to cause any damage to or interference with (i) the
operation of the Building or Building systems or (ii) any
Telecommunications Equipment installed on the roof space by licensees,
occupants and other tenants in the Building. 
The installation of any Telecommunications Equipment shall constitute a
Specialty Alteration and shall be performed at Tenant’s sole cost and expense
(including any costs and expenses in connection with reinforcing the roof of
the Building, if required) in accordance with and subject to the provisions of Article 8.  All of the provisions of this Lease shall
apply to the installation, use and maintenance of Tenant’s Telecommunications
Equipment, including all provisions relating to compliance with legal
requirements (including all FCC rules and regulations), insurance,
indemnity, repairs and maintenance.  The
roof space and Telecommunications Equipment shall not be used or occupied by
others, and the license granted by this Section shall be personal to
Original Tenant and shall not be transferred, assigned, sublicensed or
exercised by any other party; provided, however, that 


 


102

















 


as long as Tenant
has exercised its rights hereunder and actually installed Telecommunications
Equipment on the roof of the Building, nothing in this Lease shall be construed
to prohibit the transfer of Tenant’s rights with respect to any such
Telecommunications Equipment to any permitted sublessee or assignee of this
Lease.  Tenant’s Telecommunications
Equipment shall be treated for all purposes of this Lease as Tenant’s Property.


 


(c)                                  If any of Tenant’s Telecommunications
Equipment interferes with or disturbs Landlord’s use of the roof, including the
use by Landlord or other tenants, licensees or occupants of the Building of
their Telecommunications Equipment, or the operation of the Building or the
Building Systems, then following demand by Landlord, Tenant shall promptly
relocate all or a portion of the Telecommunications Equipment to another area
on the roof designated by Landlord.  Such
relocation shall be at Tenant’s sole cost and expense.  If Landlord shall determine, in its
reasonable judgment, that any Tenant’s Telecommunications Equipment (i) will
cause a health hazard or danger to property, (ii) will not be in
accordance with applicable legal requirements, or (iii) interferes with or
disturbs Landlord’s use of the roof, including the use by Landlord or other
tenants or occupants of the Building of data transmission equipment thereon
installed prior to the installation of Tenant’s Telecommunications Equipment,
or the operation of the Building or the Building Systems, then, if Tenant is
unable to promptly cause such Telecommunications Equipment to comply with such
legal requirements, abate such health hazard, danger to property or
interference, Tenant, at its sole cost and expense, shall remove such
Telecommunications Equipment from the roof of the Building and, Tenant may, at
Tenant’s option, but subject to Landlord’s approval as provided in (a) above,
replace such Telecommunications Equipment with Telecommunications Equipment
which complies with such legal requirements and/or does not cause such health
hazard, danger to property or interference. 
Notwithstanding the foregoing, Landlord may at its option, at any time
during the Term after reasonable prior notice to Tenant (except in the event of
an emergency) require Tenant, using Landlord’s roofing contractor and any other
contractors reasonably required by Landlord, to relocate Tenant’s
Telecommunications Equipment to another area on the roof designated by
Landlord, at Landlord’s sole cost and expense.


 


(d)                                 If during the Term of this Lease, after
having exercised its rights hereunder and actually installed Telecommunications
Equipment on the roof of the Building, Tenant shall cease to use any Tenant’s
Telecommunications Equipment located on the roof of the Building for a period
of time in excess of one (1) year, Tenant shall, at its sole cost and
expense, remove such Telecommunications Equipment from the roof of the Building
within sixty (60) days after receipt of notice from Landlord to so remove such
Telecommunications Equipment, and Tenant shall have no further rights under
this Section.


 


(e)                                  Other than as set forth in this Section,
Landlord shall not have any obligations with respect to Tenant’s
Telecommunications Equipment or compliance with any legal requirements
(including the obtaining of any required permits or licenses, or the
maintenance thereof) relating thereto.  Landlord makes no representation that Tenant’s
Telecommunications Equipment will be permitted by legal requirements or be able
to receive or transmit communication signals without interference or
disturbance (whether or not by reason of the installation or use of similar
equipment by others on the roof) and Tenant agrees that Landlord shall not be
liable to Tenant therefor.


 


103

















 


(f)                                    Tenant shall (i) be solely
responsible for any damage caused as a result of the use of Tenant’s
Telecommunications Equipment, (ii) promptly pay any tax, license, permit
or other fees or charges imposed pursuant to any legal requirements or
insurance requirements relating to the installation, maintenance or use of such
Telecommunications Equipment, (iii) promptly comply with all precautions
and safeguards reasonably required by Landlord’s insurance company and all
governmental authorities, and (iv) perform all necessary repairs or
replacements to, or maintenance of, such Telecommunications Equipment,
provided, however, that if Tenant’s failure to so repair, replace or maintain
such Telecommunications Equipment jeopardizes the property of Landlord or any
other tenant located on the roof or within the Building, Landlord may, at
Landlord’s option and after ten (10) days’ notice to Tenant (except in an
emergency), elect to perform such repairs, replacements or maintenance at
Tenant’s sole cost and expense.


 


(g)                                 Tenant acknowledges and agrees that the
privileges granted Tenant under this Section shall not, now or at any time
after the installation of Tenant’s Telecommunications Equipment, be deemed to
grant Tenant a leasehold or other real property interest in the Building or any
portion thereof, including the Building’s roof. 
The license granted to Tenant in this Section shall automatically
terminate and expire upon the expiration or earlier termination of this Lease
(including extensions or renewals) and the termination of such license shall be
self-operative and no further instrument shall be required to effect such
termination.  Notwithstanding the
foregoing, upon request by Landlord, Tenant, at Tenant’s reasonable expense,
shall promptly execute and deliver to Landlord, in recordable form, any
certificate or other document reasonably required by Landlord confirming the
termination of Tenant’s right to use the roof of the Building.


 


(h)                                 Tenant, at
Tenant’s sole cost and expense, shall paint and maintain Tenant’s Telecommunications Equipment in white or such other color as Landlord
shall determine and shall install such lightning rods, air terminals or
screening on or about Tenant’s Telecommunications Equipment as Landlord may reasonably require.


 


Signatures on next page.


 


104

















 


EXECUTED in one or more counterparts by persons or
officers hereunto duly authorized on the Date set forth in Section 1.2
above.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BP 599 LEXINGTON
  AVENUE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert E.
  Selsam

  
	
   

  	
  Name: Robert E.
  Selsam

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  RAMIUS CAPITAL
  GROUP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marran H.
  Ogilvie

  
	
   

  	
  Name: Marran H.
  Ogilvie

  
	
   

  	
  Title: General
  Counsel

  



 


105














 


FIRST AMENDMENT TO LEASE


 


THIS
FIRST AMENDMENT TO LEASE dated as of the 9th day of June,
2008 (this “First Amendment”) by and between BP 599 LEXINGTON AVENUE LLC, a
Delaware limited liability company, having an address c/o Boston
Properties, Inc., 599 Lexington Avenue, New York, New York 10022, as
Landlord (“Landlord”), and RAMIUS LLC f/k/a RAMIUS CAPITAL GROUP, LLC, a
Delaware limited liability company, having an address at 599 Lexington Avenue,
New York, New York 10022, as Tenant (“Tenant”).


 


W I T N E S S E T H:


 


WHEREAS,
by Lease dated June 22, 2007 (the “Lease”), Tenant leased from Landlord
certain premises on the nineteenth (19th), twentieth (20th), and twenty-first
(21st) floors of the building known as 599 Lexington Avenue, New York, New York
10022 (the “Building”) as more particularly described in the Lease;


 


WHEREAS,
pursuant to Articles 22 and 24 of the Lease, Tenant has certain obligations and
options to lease additional space on the twenty-third (23rd) floor of the
Building; and


 


WHEREAS,
Landlord and Tenant desire to eliminate Tenant’s obligations and options to
lease additional space on the twenty-third (23rd) floor of the Building.


 


NOW
THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree to amend the Lease as follows:


 


1.                                       Deletion of
Automatic Expansion and 23rd Floor Options to Expand.
Article 22 of the Lease (Automatic Expansion) and Article 24 of the
Lease (23rd Floor Options to Expand) are hereby deleted and of no further
effect.


 


2.                                       Binding on
Successors. This First Amendment shall be binding on and inure
to the benefit of the parties hereto and their respective successors and
assigns.


 


3.                                       Definitions. All
capitalized terms used herein shall have the same meaning as set forth in the
Lease unless specifically otherwise provided herein.


 


4.                                       Counterparts. This First
Amendment may be signed in counterparts by persons or officers duly authorized
to bind the parties.


 


5.                                       Brokers.


 


(a)                                  Tenant warrants
and represents that Tenant has not dealt with any broker in connection with the
consummation of this First Amendment. In the event any claim is made against
Landlord by any broker or agent alleging dealings with Tenant, Tenant shall
defend Landlord against such claim, using counsel approved by Landlord, such
approval not to be


 

















 


unreasonably
withheld, and save harmless and indemnify Landlord on account of any loss,
cost, damage and expense (including, without limitation, attorneys’ fees and
disbursements) which may be suffered or incurred by Landlord by reason of such
claim.


 


(b)                                 Landlord
warrants and represents that Landlord has not dealt with any broker in
connection with the consummation of this First Amendment. In the event any
claim is made against Tenant by any broker or agent alleging dealings with
Landlord, Landlord shall defend Tenant against such claim, using counsel
approved by Tenant, such approval not to be unreasonably withheld, and save
harmless and indemnify Tenant on account of any loss, cost, damage and expense
(including, without limitation, attorneys’ fees and disbursements) which may be
suffered or incurred by Tenant by reason of such claim.


 


6.                                       Effect of
Amendment. Except as set forth in this First Amendment,
all of the terms and conditions of the Lease shall remain unchanged and shall
continue in full force and effect. All references to the “Lease” shall be
deemed to be references to the Lease as amended by this First Amendment.


 


IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this First Amendment to
Lease as of the date and year first above written.


 


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  BP
  599 LEXINGTON AVENUE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert E. Selsam

  
	
   

  	
   

  	
  Robert E. Selsam

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  RAMIUS
  LLC f/k/a RAMIUS CAPITAL GROUP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marran H. Ogilvie 

  
	
   

  	
  Name:

  	
  Marran
  H. Ogilvie 

  
	
   

  	
  Title:

  	
  Authorized
  Signatory 

  



 


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