Exhibit
10.3


AGREEMENT
OF SUBLEASE (NYT)


By
and Between


THE
NEW YORK TIMES BUILDING LLC,


Landlord,


And


NYT
REAL ESTATE COMPANY LLC


Tenant


Dated
as of: December 12, 2001
















TABLE
OF CONTENTS


	
  

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I 

  DEFINITIONS; CONSTRUCTION OF TERMS

  
	
   

  	
   

  	
   

  
	
  Section 1.1
  Definitions

  	
   

  	
  2

  
	
  Section 1.2
  Rules of Construction

  	
   

  	
  28

  
	
  Section 1.3
  Captions/Table of Contents

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE II 

  LEASE OF DEMISED PREMISES AND COMMON ELEMENTS; TERM OF LEASE

  
	
   

  	
   

  	
   

  
	
  Section 2.1
  Demised Premises and Common Elements; Term

  	
   

  	
  30

  
	
  Section 2.2
  Condition of Demised Premises and Common Elements

  	
   

  	
  31

  
	
  Section 2.3
  Waiver of Right to Rescind

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE III 

  CHARGES AND FEES

  
	
   

  	
   

  	
   

  
	
  Section 3.1
  PILOT

  	
   

  	
  32

  
	
  Section 3.2
  Retail Space Percentage Rent

  	
   

  	
  34

  
	
  Section 3.3
  Sales Tax Savings; PILOST

  	
   

  	
  36

  
	
  Section 3.4
  Exemption from Mortgage Recording Tax; PILOMRT

  	
   

  	
  36

  
	
  Section 3.5
  Theater Surcharge

  	
   

  	
  38

  
	
  Section 3.6
  Administrative Fee

  	
   

  	
  39

  
	
  Section 3.7
  Prorations; Overdue Amounts

  	
   

  	
  39

  
	
  Section 3.8 No
  Joint Venture

  	
   

  	
  40

  
	
  Section 3.9 All
  Charges Treated as Rent

  	
   

  	
  40

  
	
  Section 3.10
  Payments

  	
   

  	
  40

  
	
  Section 3.11 Net
  Lease

  	
   

  	
  40

  
	
  Section 3.12 No
  Offset

  	
   

  	
  41

  
	
  Section 3.13
  Books and Records

  	
   

  	
  41

  
	
  Section 3.14
  Illegality

  	
   

  	
  43

  
	
  Section 3.15
  Administrative Code Section 11-208.1

  	
   

  	
  43

  
	
  Section 3.16
  Survival

  	
   

  	
  43

  
	
  Section 3.17
  Existing Violations

  	
   

  	
  43

  
	
  Section 3.18 End
  of NYTC Benefits

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV 

  IMPOSITIONS

  
	
   

  	
   

  	
   

  
	
  Section 4.1
  Impositions

  	
   

  	
  44

  
	
  Section 4.2
  Payment

  	
   

  	
  44

  
	
  Section 4.3
  Right to Contest

  	
   

  	
  44

  



 



 i
 








 


	
  ARTICLE V 

  PURCHASE OPTION

  
	
   

  	
   

  	
   

  
	
  Section 5.1
  Purchase Option

  	
   

  	
  47

  
	
  Section 5.2
  Casualty to, or Condemnation of, the Property

  	
   

  	
  49

  
	
  Section 5.3
  Termination of Right to Purchase

  	
   

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI 

  CONSTRUCTION OF THE PROJECT

  
	
   

  	
   

  	
   

  
	
  Section 6.1
  Construction of the Project

  	
   

  	
  51

  
	
  Section 6.2 Plans
  and Specifications

  	
   

  	
  51

  
	
  Section 6.3
  Performance of Construction Work

  	
   

  	
  51

  
	
  Section 6.4 Use
  of Plans and Specifications

  	
   

  	
  51

  
	
  Section 6.5
  Conditions Precedent to Commencement of Demolition, Asbestos Removal and Lead
  Abatement

  	
   

  	
  51

  
	
  Section 6.6
  Construction of Tenant’s Subway Improvements

  	
   

  	
  51

  
	
  Section 6.7
  Permanent Certificate of Occupancy

  	
   

  	
  51

  
	
  Section 6.8
  Construction Agreements

  	
   

  	
  51

  
	
  Section 6.9
  Construction Sign

  	
   

  	
  51

  
	
  Section 6.10
  Project Area

  	
   

  	
  51

  
	
  Section 6.11
  Title to Materials

  	
   

  	
  51

  
	
  Section 6.12
  Nonadverse Structural Effect

  	
   

  	
  51

  
	
  Section 6.13
  Arbitration

  	
   

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII 

  USE AND MAINTENANCE OF THE PROPERTY

  
	
   

  	
   

  	
   

  
	
  Section 7.1
  Permitted Use

  	
   

  	
  52

  
	
  Section 7.2
  Restrictions on Use

  	
   

  	
  52

  
	
  Section 7.3
  Interim and Long-Term Maintenance Obligations

  	
   

  	
  53

  
	
  Section 7.4 Compliance
  with Legal Requirements

  	
   

  	
  54

  
	
  Section 7.5 No
  Waste

  	
   

  	
  54

  
	
  Section 7.6
  Right of Entry

  	
   

  	
  55

  
	
  Section 7.7
  Utilities; Services; No Landlord Responsibility

  	
   

  	
  55

  
	
  Section 7.8
  Environmental

  	
   

  	
  55

  
	
  Section 7.9
  Equitable Relief

  	
   

  	
  56

  
	
  Section 7.10
  Windows

  	
   

  	
  56

  
	
  Section 7.11
  Adverse Possession

  	
   

  	
  56

  
	
  Section 7.12
  Pre-Possession Obligations

  	
   

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII 

  REPAIRS

  
	
   

  	
   

  	
   

  
	
  Section 8.1
  Repairs

  	
   

  	
  58

  




 ii
 








 


	
  ARTICLE IX 

  ALTERATIONS AND COMPLETION OF THE IMPROVEMENTS

  
	
   

  	
   

  	
   

  
	
  Section 9.1
  Right to Undertake Alterations

  	
   

  	
  59

  
	
  Section 9.2
  Performance of Alterations

  	
   

  	
  59

  
	
  Section 9.3
  Construction Agreements

  	
   

  	
  62

  
	
  Section 9.4 Use
  of Plans and Specifications

  	
   

  	
  62

  
	
  Section 9.5
  Major Alterations

  	
   

  	
  64

  
	
  Section 9.6
  Approval of Project Participants

  	
   

  	
  67

  
	
  Section 9.7
  Alterations Certification

  	
   

  	
  70

  
	
  Section 9.8
  Reimbursement of Expenses of Review

  	
   

  	
  70

  
	
  Section 9.9
  Nonadverse Structural Effect

  	
   

  	
  70

  
	
  Section 9.10
  Completion of Improvements

  	
   

  	
  70

  
	
  Section 9.11
  Disputes

  	
   

  	
  71

  
	
   

  	
   

  	
   

  
	
  ARTICLE X 

  INSURANCE

  
	
   

  	
   

  	
   

  
	
  Section 10.1
  Insurance

  	
   

  	
  72

  
	
  Section 10.2
  Requirements for Policies

  	
   

  	
  74

  
	
  Section 10.3
  Waiver of Subrogation

  	
   

  	
  75

  
	
  Section 10.4
  Delivery of Policies

  	
   

  	
  75

  
	
  Section 10.5
  Separate Insurance

  	
   

  	
  76

  
	
  Section 10.6
  Cooperation; Adjustment

  	
   

  	
  76

  
	
  Section 10.7
  Approval by Landlord

  	
   

  	
  76

  
	
  Section 10.8
  Depositary

  	
   

  	
  77

  
	
  Section 10.9
  Security for Commercial Property Insurance Premium

  	
   

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI 

  DAMAGE AND DESTRUCTION

  
	
   

  	
   

  	
   

  
	
  Section 11.1
  Damage and Destruction

  	
   

  	
  79

  
	
  Section 11.2
  Restoration Funds

  	
   

  	
  81

  
	
  Section 11.3
  Conditions Precedent to Disbursement

  	
   

  	
  83

  
	
  Section 11.4
  Section 227 of Real Property Law

  	
   

  	
  84

  
	
  Section 11.5
  Additional Requirements for Restoration

  	
   

  	
  84

  
	
  Section 11.6
  Effect of Casualty on this Lease

  	
   

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII 

  CONDEMNATION

  
	
   

  	
   

  	
   

  
	
  Section 12.1
  Condemnation

  	
   

  	
  85

  
	
  Section 12.2
  Date of Taking

  	
   

  	
  85

  
	
  Section 12.3
  Minor Taking; Condemnation Restoration

  	
   

  	
  85

  
	
  Section 12.4
  Additional Restoration Requirements

  	
   

  	
  87

  
	
  Section 12.5
  Temporary Taking

  	
   

  	
  87

  
	
  Section 12.6
  Right to Compensation

  	
   

  	
  87

  




 iii
 








 


	
  Section 12.7 Settlement;
  Compromise

  	
   

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII 

  ASSIGNMENT, SUBLETTING AND TRANSFER

  
	
   

  	
   

  	
   

  
	
  Section 13.1
  Transfers Generally

  	
   

  	
  89

  
	
  Section 13.2
  Subleasing

  	
   

  	
  90

  
	
  Section 13.3
  Assignments

  	
   

  	
  94

  
	
  Section 13.4
  Collect Charges from Assignee, Subtenant

  	
   

  	
  95

  
	
  Section 13.5 No
  Relief

  	
   

  	
  95

  
	
  Section 13.6
  Consent

  	
   

  	
  95

  
	
  Section 13.7
  Costs and Expenses

  	
   

  	
  95

  
	
  Section 13.8
  Prohibited Persons

  	
   

  	
  96

  
	
  Section 13.9
  Constitutive Documents

  	
   

  	
  96

  
	
  Section 13.10
  Permitted Disposition

  	
   

  	
  97

  
	
  Section 13.11
  Right to Amend to Reflect Exercise of Certain Options

  	
   

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV 

  DEFAULT PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 14.1
  Conditions of Limitation

  	
   

  	
  100

  
	
  Section 14.2
  Events of Default

  	
   

  	
  101

  
	
  Section 14.3
  Rights of Landlord

  	
   

  	
  103

  
	
  Section 14.4
  Waiver of Right of Redemption

  	
   

  	
  105

  
	
  Section 14.5 No
  Waiver

  	
   

  	
  105

  
	
  Section 14.6
  Remedies Under Bankruptcy and Insolvency Codes

  	
   

  	
  105

  
	
  Section 14.7
  Relationship Among Severance Tenants

  	
   

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV 

  LANDLORD’S RIGHT TO PERFORM

  
	
   

  	
   

  	
   

  
	
  Section 15.1
  Right to Perform

  	
   

  	
  107

  
	
  Section 15.2
  Additional Remedies

  	
   

  	
  107

  
	
  Section 15.3
  Strict Performance

  	
   

  	
  108

  
	
  Section 15.4
  Right to Enjoin Defaults or Threatened Defaults

  	
   

  	
  108

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI 

  ARBITRATION

  
	
   

  	
   

  	
   

  
	
  Section 16.1
  Generally

  	
   

  	
  109

  
	
  Section 16.2
  Standard Arbitration

  	
   

  	
  109

  
	
  Section 16.3
  Expedited Arbitration

  	
   

  	
  111

  
	
  Section 16.4
  Single Arbitration

  	
   

  	
  112

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII 

  INDEMNITY; LIMITATION ON LIABILITY

  
	
   

  	
   

  	
   

  
	
  Section 17.1
  Indemnification by Tenant

  	
   

  	
  114

  




 iv
 








 


	
  Section 17.2 Indemnification
  Generally

  	
   

  	
  115

  
	
  Section 17.3
  Recourse Only to Landlord’s Estate in the Demised Premises and the Common
  Elements

  	
   

  	
  115

  
	
  Section 17.4
  Recourse Only to Tenant’s Estate in the Demised Premises and the Common
  Elements

  	
   

  	
  116

  
	
  Section 17.5
  Survival

  	
   

  	
  117

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVIII 

  QUIET ENJOYMENT; TRANSFER OF LANDLORD’S INTEREST

  
	
   

  	
   

  	
   

  
	
  Section 18.1
  Quiet Enjoyment

  	
   

  	
  118

  
	
  Section 18.2
  Transfer of Landlord’s Interest

  	
   

  	
  118

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIX 

  WAIVER OF JURY TRIAL; COUNTERCLAIMS

  
	
   

  	
   

  	
   

  
	
  Section 19.1
  Waiver of Jury Trial

  	
   

  	
  119

  
	
  Section 19.2 No
  Counterclaims

  	
   

  	
  119

  
	
  Section 19.3
  Survival

  	
   

  	
  119

  
	
   

  	
   

  	
   

  
	
  ARTICLE XX 

  NOTICES

  
	
   

  	
   

  	
   

  
	
  Section 20.1
  Notices

  	
   

  	
  120

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXI 

  ESTOPPEL CERTIFICATE

  
	
   

  	
   

  	
   

  
	
  Section 21.1
  Certificate of Tenant

  	
   

  	
  123

  
	
  Section 21.2
  Certificate of Landlord

  	
   

  	
  123

  
	
  Section 21.3
  Construction Certificate

  	
   

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXII 

  SEVERABILITY

  
	
  Section 22.1
  Severability

  	
   

  	
  124

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXIII 

  END OF TERM; TITLE TO IMPROVEMENTS

  
	
   

  	
   

  	
   

  
	
  Section 23.1
  Surrender

  	
   

  	
  125

  
	
  Section 23.2
  Re-Entry

  	
   

  	
  126

  
	
  Section 23.3
  Removal of Property

  	
   

  	
  126

  
	
  Section 23.4
  Title to Improvements

  	
   

  	
  127

  




 v
 








 


	
  ARTICLE XXIV 

  COVENANTS BINDING

  
	
   

  
	
  Section 24.1 Covenants
  Binding

  	
   

  	
  127

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXV 

  ENTIRE AGREEMENT; NO WAIVER

  
	
   

  
	
  Section 25.1
  Entire Agreement

  	
   

  	
  128

  
	
  Section 25.2 No
  Waiver

  	
   

  	
  128

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXVI 

  NO MERGER

  
	
   

  
	
  Section 26.1 No
  Merger

  	
   

  	
  129

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXVII 

  ENCUMBRANCES

  
	
   

  
	
  Section 27.1
  Encumbrances

  	
   

  	
  130

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXVIII 

  CONSENTS; APPROVALS

  
	
   

  
	
  Section 28.1
  Reasonable Standard

  	
   

  	
  131

  
	
  Section 28.2 No
  Damages

  	
   

  	
  131

  
	
  Section 28.3
  Deemed Consent

  	
   

  	
  131

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXIX 

  NON-DISCRIMINATION AND AFFIRMATIVE ACTION

  
	
   

  
	
  Section 29.1
  Incorporation by Reference

  	
   

  	
  133

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXX 

  REPRESENTATIONS, WARRANTIES AND COVENANTS, AND OTHER AGREEMENTS

  
	
   

  
	
  Section 30.1
  Representations and Warranties

  	
   

  	
  134

  
	
  Section 30.2
  Possession

  	
   

  	
  135

  
	
  Section 30.3
  Covenants of Tenant

  	
   

  	
  135

  
	
  Section 30.4
  Public Amenity

  	
   

  	
  135

  
	
  Section 30.5 Other
  Agreements

  	
   

  	
  139

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXXI 

  PERMITTED FINANCING

  
	
   

  
	
  Section 31.1
  Recognized Mortgage

  	
   

  	
  140

  
	
  Section 31.2
  Right and Time to Cure

  	
   

  	
  141

  
	
  Section 31.3
  Notice to Landlord

  	
   

  	
  141

  




 vi
 








 


	
  Section 31.4 Acceptance of
  Performance

  	
   

  	
  142

  
	
  Section 31.5
  Other Defaults

  	
   

  	
  142

  
	
  Section 31.6
  Execution of New Lease

  	
   

  	
  142

  
	
  Section 31.7
  Recognition of Most Senior Recognized Mortgagee

  	
   

  	
  146

  
	
  Section 31.8 No
  Rights of Other Mortgagees

  	
   

  	
  147

  
	
  Section 31.9
  Miscellaneous Mortgage Provisions

  	
   

  	
  147

  
	
  Section 31.10
  Delegation by Tenant

  	
   

  	
  147

  
	
  Section 31.11
  Survival

  	
   

  	
  148

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXXII 

  CONDOMINIUM DOCUMENTS

  
	
   

  
	
  Section 32.1
  Condominium Conversion

  	
   

  	
  149

  
	
  Section 32.2
  Condominium Documents

  	
   

  	
  149

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXXIII 

  MISCELLANEOUS

  
	
   

  
	
  Section 33.1
  Recording and Transfer Tax

  	
   

  	
  150

  
	
  Section 33.2
  Brokers

  	
   

  	
  150

  
	
  Section 33.3
  Media Announcements

  	
   

  	
  150

  
	
  Section 33.4
  Relationship of Landlord and Tenant

  	
   

  	
  151

  
	
  Section 33.5
  Person Acting on Behalf of a Party Hereunder

  	
   

  	
  151

  
	
  Section 33.6
  Third Party Beneficiary

  	
   

  	
  151

  
	
  Section 33.7
  Proprietary Capacity Only

  	
   

  	
  151

  
	
   

  	
   

  	
   

  
	
  ARTICLE XXXIV 

  COMMON ELEMENTS LEASEABLE SPACE

  
	
   

  
	
  Section 34.1
  Generally

  	
   

  	
  152

  
	
  Section 34.2
  Defined Terms

  	
   

  	
  152

  



 



 vii
 








 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1

  	
   

  	
  PILOT SCHEDULE

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
   

  	
  THE PROJECT
  DOCUMENTS

  
	
  EXHIBIT B

  	
   

  	
  APPROVED
  CERTIFIED PUBLIC ACCOUNTING FIRMS

  
	
  EXHIBIT C

  	
   

  	
  FORM OF
  COLLATERAL ASSIGNMENT

  
	
  EXHIBIT D

  	
   

  	
  FORM OF
  CONDOMINIUM DECLARATION

  
	
  EXHIBIT E-l

  	
   

  	
  DESIGN,
  CONSTRUCTION AND MAINTENANCE REQUIREMENTS FOR CONSTRUCTION OF BRIDGES AND
  FENCING

  
	
  EXHIBIT E-2

  	
   

  	
  HISTORIC
  PRESERVATION PROTECTION PLAN FOR CONSTRUCTION ADJACENT TO HISTORIC STRUCTURES

  
	
  EXHIBIT E-3

  	
   

  	
  STREETSCAPE
  IMPROVEMENT DESIGN PROGRAMS

  
	
  EXHIBIT E-4

  	
   

  	
  DISPLAY AND
  SIGNAGE REQUIREMENTS

  
	
  EXHIBIT E-5

  	
   

  	
  USE AND
  OPERATING PROGRAMS

  
	
  EXHIBIT E-6

  	
   

  	
  ARCHITECTURAL
  REQUIREMENTS

  
	
  EXHIBIT E-7

  	
   

  	
  SITE SAFETY
  PROGRAM

  
	
  EXHIBIT F-1

  	
   

  	
  DEMISED PREMISES

  
	
  EXHIBIT F-2

  	
   

  	
  THE LAND

  
	
  EXHIBIT G

  	
   

  	
  PERMITTED
  ENCUMBRANCES

  
	
  EXHIBIT H

  	
   

  	
  FORM OF NOTICE
  OF UNREIMBURSED ESAC

  
	
  EXHIBIT I

  	
   

  	
  APPROVED MAJOR
  CONTRACTORS

  
	
  EXHIBIT J

  	
   

  	
  STATEMENT OF
  ENGINEER OR ARCHITECT

  
	
  EXHIBIT K

  	
   

  	
  FORM OF
  NONDISTURBANCE AGREEMENT

  
	
  EXHIBIT L

  	
   

  	
  [INTENTIONALLY
  OMITTED]

  
	
  EXHIBIT M

  	
   

  	
  FORM OF NOTICE
  OF DEFAULT

  
	
  EXHIBIT N

  	
   

  	
  FORM OF SECOND
  NOTICE OF DEFAULT

  
	
  EXHIBIT O

  	
   

  	
  NON-DISCRIMINATION
  AND AFFIRMATIVE ACTION

  
	
  EXHIBIT P

  	
   

  	
  STRUCTURE OF
  TENANT

  
	
  EXHIBIT Q

  	
   

  	
  LIST OF NFP
  USERS

  
	
  EXHIBIT R

  	
   

  	
  FORM OF
  MEMORANDUM OF LEASE

  



 



 viii















This AGREEMENT OF SUBLEASE (this “Lease”), is made as of the 12th day of December, 2001, by and between THE NEW
YORK TIMES BUILDING LLC (“NYTB”),
a New York limited liability company, having an office at c/o The New York
Times Company, 229 West 43rd Street, New York, New York 10036, as Landlord,
and NYT REAL ESTATE COMPANY LLC (“Tenant”),
a New York limited liability company, having an office at c/o The New York
Times Company, 229 West 43rd Street, New York, New York 10036.


W I T N E S S E T H :


WHEREAS, ESDC and the City have developed, and are in
the process of implementing, a rehabilitation and renewal plan for an area of
midtown Manhattan surrounding West 42nd Street between Broadway and Eighth
Avenue, known as the 42nd Street Development Project (the “42nd Street Project”);


WHEREAS, in furtherance of the 42nd Street Project,
ESDC has agreed to commence proceedings to obtain fee title to the Property
pursuant to the Condemnation;


WHEREAS, promptly after ESDC obtains fee title to the
Property, ESDC will convey (a) to 42DP an estate on limitation in the Property,
and (b) to the City a reversionary estate in the Property;


WHEREAS, Landlord (as hereinafter defined) and Tenant
acknowledge that the goals of the 42nd Street Project include (i) development
of the 42nd Street Project area’s commercial and retail potential, fostering a
lively, healthy street ambience and supporting the City’s policy of fostering
an environment that encourages the expansion of the midtown Manhattan office
area, (ii) expansion of the 42nd Street Project area’s economic contribution to
New York City as a whole, both through increased revenues to the City and
expanded private investment and employment opportunities, and (iii) restoration
of the 42nd Street Project area’s role as a positive influence on the adjacent
communities;


WHEREAS, Landlord and Tenant further acknowledge that
it is their intent that the Demised Premises and the Common Elements be
operated and maintained in accordance with this Lease to further the goals of
the 42nd Street Project;


WHEREAS, ESDC, 42DP, Landlord, Tenant, NYCEDC, the
City and certain other parties are, as applicable, contemporaneously herewith
entering into the documents listed on Exhibit
A attached hereto (the “Project
Documents”);


WHEREAS, Landlord and Tenant wish to provide for the
operation and maintenance of the Demised Premises and the Common Elements;


WHEREAS, 42DP and Landlord, on the date hereof,
entered into that certain Agreement of Lease in respect of the Property (such
ground lease, as may be amended or otherwise modified prior to the Lease
Assignment Date, the “Initial Ground Lease”;
and such ground lease, as may be amended or otherwise modified from time to
time hereafter, the “Ground Lease”);









 



WHEREAS, on or after the Substantial Completion Date,
it is contemplated that (i) the Initial Ground Lease will be amended pursuant
to an amendment substantially in the form of Exhibit D attached to the Initial
Ground Lease, (ii) Landlord’s leasehold interest in the Property under the
Ground Lease will be subjected to a condominium regime pursuant to the
Condominium Act, and (iii) Landlord’s interest in this Lease will be assigned
to 42DP;


WHEREAS, the parties intend that Tenant have all of
the rights and obligations of the Unit Owner (as defined and described in the
Condominium Declaration) as they relate to the Demised Premises and the Common
Elements, including without limitation, the right to control the Units (as
defined and described in the Condominium Declaration) that correspond to the
space comprising the Demised Premises under this Lease, subject and pursuant to
the Condominium Declaration; and


WHEREAS, Tenant wishes to hire and to take from
Landlord, and Landlord wishes to lease and to demise to Tenant, the Demised
Premises, together with an undivided interest in the Common Elements.


NOW, THEREFORE, in consideration of the foregoing and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree as follows:


ARTICLE I 

DEFINITIONS; CONSTRUCTION OF TERMS


Section 1.1 Definitions. (a)
The terms defined in this Section 1.1
shall, for all purposes of this Lease and all agreements supplemental hereto,
have the meanings herein specified, unless specifically stated otherwise:


(i)               “$2,000,000+ Alteration” has the meaning
set forth in Section 9.5(a)
hereof.


(ii)              “42DP” means 42nd St. Development Project, Inc., a subsidiary of
New York State Urban Development Corporation d/b/a Empire State Development
Corporation (“ESDC”), a corporate
governmental agency of the State of New York constituting a political
subdivision and public benefit corporation, having an office at 633 Third
Avenue, 33rd floor, New York, New York 10017.


(iii)             “AAA” has the meaning set forth in Section 16.2(a) hereof.


(iv)             “Acceptable Guarantor” means a Person
having (A) a net worth, on the date of the depositing of such security, of at
least $50,000,000, as Adjusted for Inflation from the date hereof and (B) a
debt rating of at least “A” from Standard and Poors or the equivalent rating
from another nationally recognized rating agency.


(v)              “Accounting Principles” means, from time to
time, the then generally accepted accounting practices, consistently applied on
a “cash basis”.



 2
 






 



(vi)             “Adjusted for Inflation” means, with
respect to any sum, that there shall be added to such sum (as the same may have
been previously adjusted), beginning on the date hereof unless otherwise
specified, on an annual or such other basis as may be specified in this Lease
(such annual or other period, the “Specified
Interval”), an amount equal to the product of (A) such sum (as the
same may have been previously adjusted) and (B) a fraction (1) the numerator of
which is the difference between [a] the Consumer Price Index for the calendar
month immediately preceding the calendar month in which the Specified Interval
for which such calculation is being made ended and [b] the Consumer Price Index
for the calendar month immediately preceding the calendar month in which the
immediately preceding Specified Interval ended (or, if such date would be prior
to the date hereof, the calendar month in which the date hereof occurs) (the “Measuring Month”), and (2) the denominator
of which is the Consumer Price Index for the Measuring Month; provided, however,
(i) if for any Specified Interval the difference between the index numbers in
clauses [a] and [b] above is less than zero (0), such numerator shall be deemed
to be zero (0) for purposes of calculating the applicable adjustment, and (ii)
the applicable adjustment for the Specified Interval immediately following a
Specified Interval in which the preceding clause (i) shall have been applicable
shall be determined by replacing clause [b] above in its entirety with the
following: “[b] the Consumer Price Index for the calendar month immediately
preceding the calendar month in which the Last Positive Specified Interval (as
hereinafter defined) ended. The “Last
Positive Specified Interval” shall mean the last Specified Interval
prior to the date of the applicable determination hereunder for which the
difference between the index numbers, determined in accordance with clause [a]
above and this clause [b] prior to being altered due to the triggering of this
proviso, was more than zero (0)”.


(vii)            “Adjusted Gross Revenues” means all (A)
revenues, receipts and income of whatever kind and nature of Tenant or any
Related Entity, as determined in accordance with Accounting Principles, in any
Lease Year, generated from the ownership, operation, leasing, use or occupancy
of the PA Retail Space (but only if the PA Retail Space equals or exceeds 5,000
Square Feet) including (1) license fees or other amounts received from any
subtenant of such Retail Space or its affiliate for the right to maintain
signage on the facade of the Improvements (but not from the granting of such
signage rights to any third party), (2) rentals, fees or other payments from
Subtenants (subject to clause (9) below), including any common area maintenance
and operating expense, but specifically excluding payments received in
reimbursement of utility, PILOT, Theater Surcharge or BID payments made by
Tenant, or any Related Entity, (3) the proceeds of insurance received by Tenant
with respect to business interruption or rent insurance (but not liability or casualty
insurance received by Tenant), (4) security and other deposits which secure
other revenues, receipts or income qualifying as Adjusted Gross Revenues when
and to the extent Tenant, after the final resolution of any Subtenant dispute
over whether Tenant has the right to retain such security and other deposits,
either has the right to retain the same or Tenant has no obligation to refund
the same (and excluding security and other deposits to the extent applied by
Tenant to reimburse Tenant for reasonable costs incurred in remedying a
non-monetary default by the provider of such security or deposit), (5) interest
or other investment income earned from time to time by Tenant on deposits or
other revenues, receipts or income qualifying as Adjusted Gross Revenues, (6)
amounts recovered in any legal action or proceeding or settlement thereof which
reimburses Tenant for a loss of revenues, receipts or income qualifying as
Adjusted Gross Revenues (and excluding any such amounts to the extent
reimbursing Tenant for reasonable costs incurred in



 3
 






 



remedying a non-monetary
default by the defendant in such action), (7) construction fees from the
performance by Tenant or any Related Entity of construction or construction
management services for Subtenants, but only to the extent such fees exceed
customary amounts (and excluding such fees to the extent they do not exceed
such customary amounts), (8) leasing or brokerage commissions paid to Tenant or
any Related Entity in connection with the entering into of a Sublease or the
renewal thereof or the expansion of the Demised Space thereunder, but only to
the extent Tenant or such Related Entity is not the procuring broker, or if
Tenant or such Related Entity is the procuring broker, only to the extent such
commissions exceed customary amounts (and excluding such commissions to the
extent they do not exceed such customary amounts), and (9) with respect to any
Related Entity that is a Subtenant in possession and actual use of its Demised
Space, the greater of [a] the rentals, fees or other payments made to Tenant by
such Subtenant, including any common area maintenance and operating expense,
but specifically excluding payments received in reimbursement of utility,
PILOT, Theater Surcharge or BID payments made by Tenant and [b] the fair market
rental value of such Demised Space (and with respect to a Related Entity that
is a Subtenant not in possession and actual use of its Demised Space, all
revenues, receipts and income of whatever kind and nature of such Related
Entity generated from the Demised Premises, as provided above, shall be
included in Adjusted Gross Revenues) less (B) refunds made upon transactions
included within the revenues described in clause (A) above. “Adjusted Gross
Revenues” shall not include any management fee in a customary amount paid by
Tenant to any Related Entity to manage the Demised Premises.


(viii)           “Administrative Fee” has the meaning set
forth in Section 3.6 hereof.


(ix)             “Allocated Square Feet” has the meaning set
forth in Section 1.1(cclxi) hereof,
the definition of Total Taxable Square Feet Certificate.


(x)              “Alteration” means every alteration,
installation, improvement, addition, removal, demolition or other physical
change in or about any portion of the Demised Premises or the Common Elements
(or applicable portion thereof); provided, however, that no
Interior Construction Work shall constitute an Alteration.


(xi)             “Alterations Certification” has the meaning
set forth in Section 9.7 hereof.


(xii)            “Alteration Plans and Specifications” means
the plans and specifications for any Alteration that have been submitted to and
approved by Landlord in accordance with Section
9.5 hereof with such modifications after such approval as shall have
been consented to by Landlord in accordance herewith. All proposed Alterations
Plans and Specifications submitted to Landlord shall (A) comply with the
applicable requirements of DUO, and (B) be in such detail, including elevations
and sections, as Landlord may reasonably request.


(xiii)           “Applicable Judgments” means all judgments,
court orders and injunctions applicable to or affecting the Demised Premises,
this Lease or the Common Elements, now or hereafter existing.



 4
 






 



(xiv)           “Appointment Date” has the meaning set
forth in Section 16.2(a) hereof or
Section 16.3(a) hereof, as applicable.


(xv)            “Approved Schematic Design Plans” means
those certain Schematic Design Plans approved in accordance with Section
6.2(a)(ii) of the Initial Ground Lease.


(xvi)           “Arbitration Notice” has the meaning set
forth in Section 16.2(a) hereof.


(xvii)          “Arbitrator” has the meaning set forth in Section 16.2(a) hereof.


(xviii)         “Architect” means the Design Architect and
any other registered architect or architectural firm selected by Tenant and/or
any Subtenant and, if required pursuant to the terms of this Lease, approved by
Landlord in accordance with this Lease.


(xix)            “Architect’s Certification” means a
certification, executed by an Architect or an Engineer, made to Landlord.


(xx)             “Argent” has the meaning set forth in Section 33.2(a) hereof.


(xxi)            “Assignment” means the sale, exchange,
assignment or other disposition, whether by operation of law or otherwise, of
all or any portion of Tenant’s interest in this Lease or the leasehold estate
created hereby.


(xxii)           “Auditorium” has the meaning set forth in Section 30.4(b)(i) hereof.


(xxiii)          “BID” means a Business Improvement District
or any successor in function.


(xxiv)         “Brokers” has the meaning set forth in Section 33.2 hereof.


(xxv)          “Budgeted Lobby Sublease Space Construction Costs” has
the meaning set forth in Section 34.2(a) hereof.


(xxvi)         [INTENTIONALLY
OMITTED]


(xxvii)        “Budgeted Roof Top Garden Construction Costs” has
the meaning set forth in Section 34.2(b) hereof.


(xxviii)       “Business Day” means any day which is not a
Saturday, a Sunday or a day observed as a holiday by the City or the State of
New York or the federal government of the United States of America.


(xxix)          [INTENTIONALLY
OMITTED]


(xxx)           “Casualty” has the meaning set forth in Section 11.1(a) hereof.



 5
 






 



(xxxi)          “Certified Public Accountant” means (A) any
of the firms set forth on Exhibit B attached
hereto, or (B) any other reputable and disinterested certified public
accounting firm with more than seventy-five (75) Principals.


(xxxii)         “Charges” means all of the amounts payable
by Tenant pursuant to this Lease, including, but not limited to, PILOT,
Percentage Rent, Theater Surcharge, additional charges, and any other sums,
costs, expenses, or deposits which Tenant is obligated, pursuant to any of the
provisions of this Lease, to pay to and/or deposit with Landlord.


(xxxiii)        “City” means The City of New York, a
municipal corporation.


(xxxiv)        “Claims” means all liabilities (statutory
or otherwise), obligations, claims, demands, damages, penalties, causes of
action, costs, expenses (including attorneys’ fees and expenses), losses and
injuries in any manner relating to or arising with respect to the subject
matter of any indemnity granted herein, including any enforcement of any such
indemnity by the indemnified party; provided, however, “Claims” shall not include
any of the foregoing to the extent arising directly from disputes between
Landlord and Tenant under this Lease except to the extent that any such dispute
between Landlord and Tenant arises from enforcement of any such indemnity by
the indemnified party.


(xxxv)         “Collateral Assignment” means that certain
Collateral Assignment in the form attached hereto as Exhibit C.


(xxxvi)        “Collection Agent” means the Person
designated in accordance with the Project Agreement to collect rents and other
amounts payable hereunder, and such Person’s successors and assigns.


(xxxvii)       “Common Elements Leaseable Space” has the
meaning set forth in Section 34.1(c) hereof.


(xxxviii)      “Commencement Date” means the date hereof.


(xxxix)        “Common Elements” shall initially mean the
Core and Shell (as defined in the Initial Ground Lease); provided, however,
that from and after the Lease Assignment Date, “Common Elements” shall have the
meaning set forth in the Condominium Declaration (it being acknowledged that “Common
Elements” shall not include any Limited Common Elements (as defined in the
Condominium Declaration), but shall expressly include the Common Elements
Leaseable Space).


(xl)             “Comptroller” has the meaning set forth in Section 3.13(a) hereof.


(xli)            “Condemnation” means the “Proceeding” as
such term is defined in the Site 8 South LADA.


(xlii)           “Condemnation Restoration” has the meaning
set forth in Section 12.3(a) hereof.



 6
 






 



(xliii)          “Condominium Act” means Article 9-B of the
Real Property Law of the State of New York or any statute enacted in lieu
thereof.


(xliv)          “Condominium Association” means the
condominium association established pursuant to the Condominium Documents.


(xlv)           “Condominium Association Assumption Agreement”
means that certain Assumption Agreement, dated as of the Lease Assignment Date,
entered into by the Condominium Association.


(xlvi)     “Condominium By-Laws” means the by-laws
annexed to the Condominium Declaration, together with all amendments,
modifications and supplements thereto.


(xlvii)         “Condominium Declaration” means the
instrument by which Landlord’s leasehold estate in the Property as Tenant under
the Ground Lease is subjected to the Condominium Act, in the form attached
hereto as Exhibit D, together with
all amendments, modifications and supplements thereto.


(xlviii)        “Condominium Documents” means the
Condominium Declaration, the Condominium By-Laws and any other documents
executed or recorded in connection with subjecting the Property to the
Condominium Act.


(xlix)           “Constitutive Documents” means Tenant’s
organizational documents, including (A) the operating agreement of Tenant, (B)
the operating agreement of any member of Tenant, (C) the articles of
organization of Tenant and (D) any modifications to the foregoing.


(l)               “Consumer Price Index” means the Consumer
Price Index for All Urban Consumers published by the Bureau of Labor Statistics
of the United States Department of Labor, New York - Northern New Jersey - Long
Island, NY-NJ-CT area, All Items (1982-1984 = 100), or any successor index
thereto, appropriately adjusted. If the Consumer Price Index ceases to be
published, and there is no successor thereto, such other index as Landlord and
Tenant agree upon, each acting reasonably, as appropriately adjusted, shall be
substituted for the Consumer Price Index. If the Consumer Price Index ceases to
use 1982-1984 = 100 as the basis of calculation, the Consumer Price Index shall
be adjusted accordingly.


(li)              “Continuation Notice” has the meaning set
forth in Section 31.6(i)(ii) hereof.


(lii)             “Control” has the meaning indicated in the
definition of Control Affiliate.


(liii)            “Control Affiliate” means any Person
controlling, controlled by or under common control with another Person, and for
the purposes hereof no Person shall be deemed to control any other Person
unless more than fifty percent (50%) of such controlled Person is owned
beneficially by the controlling person or entity.



 7
 






 



(liv)            “Conviction” has the meaning set forth in Section 13.10(d)(2) hereof.


(lv)             “Court” has the meaning set forth in Section 16.2(a) hereof.


(lvi)            “CPLR” has the meaning set forth in Section 16.2(b)(i) hereof.


(lvii)     “Customary” or “customary” when used in respect of fees, commissions or other
payments for services performed or materials furnished, means the amount
customarily and reasonably paid in arm’s length transactions to an unaffiliated
third party for the performance of the applicable service or the provision of
the applicable material in multi-tenant office developments situated in
Manhattan.


(lviii)          “Date of Taking” has the meaning set forth
in Section 12.2 hereof.


(lix)            “Default” means (A) the failure of any
party hereto to perform or complete any Obligations as required hereunder and
in accordance herewith, after receipt of any applicable First Default Notice
(but without regard to any cure period in respect thereof), and (B) any other
matter expressly identified as a Default hereunder.


(lx)             “Delivery Date” means the Delivery Date
determined in accordance with the Initial Ground Lease.


(lxi)            “Demised Premises” means initially the
space in the Property described on Exhibit
F-1 attached hereto as “NYTC OFFICE” and “SPU”; provided, however,
that from and after the Lease Assignment Date, “Demised Premises” shall mean
the Units (as defined in the Condominium Declaration) which correspond in all
material respects to such space, excluding any interest owned by Tenant in the
Common Elements but expressly including the Limited Common Elements (as defined
in the Condominium Declaration) appurtenant to such Units.


(lxii)           “Demised Space” means the portion of the
Property in which a Subtenant has an interest pursuant to a Sublease,
including, without limitation, any portion of the Roof Top Garden Space or the
Lobby Sublease Space.


(lxiii)          “Depositary” means any entity, agreeing for
the benefit of Landlord and the Condominium Association, to perform the
obligations of depositary hereunder on substantially the terms of the
Depositary Agreement, which (A) (1) is a Recognized Mortgagee or a Control
Affiliate of a Recognized Mortgagee under any Severance Sublease (provided
that such Recognized Mortgagee or such Control Affiliate is designated as the
Depositary by the Condominium Association and such Recognized Mortgage and
would qualify as a Lending Institution, but is other than a savings bank or
savings and loan association), (2) if not a Recognized Mortgagee or such
Control Affiliate, is a commercial bank or trust company qualifying as a
Lending Institution designated by the Recognized Mortgagee most senior in lien,
or (3) if not the Recognized Mortgagee or such Control Affiliate or designated
by the Recognized Mortgagee pursuant to clause (2) above, is a commercial bank
or trust company qualifying as a Lending Institution, as designated by the
Condominium Association with the



 8
 






 



reasonable concurrence of Landlord, (B) has an office in the City of
New York, and (C) has a net worth of not less than One Hundred Million Dollars
($100,000,000) and net assets of not less than Two Hundred Fifty Million
Dollars ($250,000,000) (as such sums shall be Adjusted for Inflation on an
annual basis from the Commencement Date) throughout the period during which it
acts as the Depositary. If, at any time, no Lending Institution has been
designated to so act, then Landlord shall designate as the Depositary an
unaffiliated third party reasonably acceptable to the Condominium Association
that is ordinarily engaged in the business of acting as a depositary. The
Condominium Association’s disapproval of an unaffiliated third party so
designated by Landlord shall not be reasonable unless it is based solely on the
prior direct experience of a tenant under a Severance Sublease or any Related
Entity of a tenant under a Severance Sublease with such party.


(lxiv)          “Depositary  Agreement” means the agreement, in form reasonably acceptable
to Landlord and the Condominium Association (and reasonably approved by each
Recognized Mortgagee, if any, at the time of the execution and delivery
thereof), pursuant to which the Depositary agrees to perform its obligations
hereunder.


(lxv)           “Design Architect” means Renzo Piano
Building Workshop or, in the event that Renzo Piano Building Workshop is no
longer the Design Architect, any other Replacement Design Architect approved in
accordance with this Lease, in either case alone or in affiliation with another
Architect acting as the Production Architect.


(lxvi)          “Design Development Plans” means those
certain Design Development Plans approved in accordance with the Initial Ground
Lease.


(lxvii)         “Determination” has the meaning set forth
in Section 16.2(b)(iii) hereof.


(lxviii)        “Discount Rate” means a discount rate equal
to the then current rate of United States Treasury bills or notes, as
applicable, maturing ten (10) years after the Delivery Date or the next
maturity date for such bills or notes occurring after such date.


(lxix)           “Discretionary Inside Mechanical Space” has
the meaning set forth in the Initial Ground Lease.


(lxx)            “DUO” means the Design, Use and Operating
Requirements which are attached to this Lease as follows:


(A)  Design,
Construction and Maintenance Requirements for construction of Bridges and
Fencing attached hereto as Exhibit E-1;


(B)   Historic
Preservation Protection Plan for Construction Adjacent to Historic Structures
attached hereto as Exhibit E-2;


(C)   Streetscape
Improvement Design Program attached hereto as Exhibit
E-3;



 9
 






 



(D)   Display and
Signage Requirements attached hereto as Exhibit
E-4;


(E)   Use and Operating
Program attached hereto as Exhibit E-5;


(F)   Architectural
Requirements attached hereto as Exhibit E-6;


(G)   Site Safety
Program attached hereto as Exhibit E-7.


(lxxi)           “DUO/Structural Alteration” has the meaning
set forth in Section 9.5(a) hereof.


(lxxii)          “DUO Alteration” has the meaning set forth
in Section 9.5(a) hereof.


(lxxiii)         [INTENTIONALLY
OMITTED]


(lxxiv)        “EIN” means an employer identification
number or taxpayer identification number issued by the Internal Revenue
Service.


(lxxv)         “Engineer” means any licensed structural
engineer or engineering firm selected by Tenant and/or any Subtenant and, if
required pursuant to the terms of this Lease, approved by Landlord in
accordance with this Lease.


(lxxvi)        “Environmental Activity” means any use,
storage, installation, existence, release, threatened release, discharge,
generation, abatement, removal, disposal, handling or transportation from, under,
into or on the Demised Premises or the Common Elements (or any portion thereof)
of any Hazardous Materials.


(lxxvii)       “Equipment” means all fixtures and personal
property incorporated in or attached to and used or usable in the operation of
the Demised Premises or the Common Elements owned or leased by Tenant.


(lxxviii)      “Equity Interest Disposition” means any
Transfer in a Person or in any direct or indirect constituent entity of such
Person, where such Transfer directly or indirectly produces any change in the
direct or indirect beneficial ownership of an interest in, or Control of, such
Person. The term “Equity Interest Disposition” shall also include any (A)
transaction or series of transactions (including, without limitation, the
issuance of additional equity interests in such Person) or (B) direct or
indirect revision of the beneficial ownership structure or control of such
Person or any direct or indirect constituent entity of such Person, which, in
either case, produces any change in the direct or indirect beneficial ownership
of an interest in, or Control of, such Person.


(1xxix)        [INTENTIONALLY
OMITTED]


(lxxx)          “ESDC” has the meaning set forth in the
definition of 42DP.



 10
 






 



(lxxxi)         [INTENTIONALLY OMITTED]


(lxxxii)        “Event” has the meaning set forth in Section 30.4(b)(ii) hereof.


(lxxxiii)       “Event of Default” has the meaning set forth in Section 14.2 hereof.


(lxxxiv)       “Eviction Proceeding” has the meaning set forth in Section 13.2(e) hereof.


(lxxxv)        “Excess Site
Acquisition Costs (Allocated)” means the amount by which (A) Tenant’s
Percentage Allocation of the Total SAC Amount, including interest thereon
pursuant to Section 3.04(c) of the Site 8 South LADA, exceeds (B) Tenant’s
Percentage Allocation of the Transaction Price.


(lxxxvi)       “Excluded Taxes” has the meaning set forth in Section 1.1(a)(cx) hereof, the definition
of Impositions.


(lxxxvii)      “Exempted Mortgage” means (A) the Mortgage granted by the lessee
under the Initial Ground Lease in connection with the initial construction
financing of the development of the Improvements, (B) to the extent such
financing is closed simultaneously with the financing described in clause (A)
above, the mortgage granted by such lessee in connection with such lessee’s
initial permanent financing of the development of the Improvements or any
portion thereof and (C) the recording of any assignment(s) of, or any spreader,
splitter or consolidation agreements in respect of, the mortgages described in
clauses (A) and (B) above, and any other documents securing payment of such financing
recorded concurrently or in connection therewith, but only to the extent of the
outstanding principal indebtedness secured by such mortgages at such time.


(lxxxviii)     “Existing Violations” means any condition on the Property, existing
on or before the Delivery Date, which gives rise to a violation of record of
Legal Requirements, issued by a Governmental Authority with applicable
jurisdiction prior to or within twelve (12) months after the Delivery Date.


(lxxxix)       “Expiration Date” has the meaning set forth in Section
2.1(b) hereof.


(xc)            “FC Office Sublease” means that certain Agreement of Sublease,
dated as of the date hereof, between Landlord and FC, and any additional office
sublease permitted pursuant to Section 13.12 of the FC Office Sublease.


(xci)           “FC Retail Sublease” means that certain Agreement of Sublease,
dated as of the date hereof, between Landlord and FC Lion LLC, a New York
limited liability company.


(xcii)          “FC Subleases”
means the FC Office Sublease and the FC Retail Sublease.



 11














 


(xciii)         “Final
MRT Notification” has the meaning set forth in Section 3.4(c) hereof.


(xciv)         “Final
Plans and Specifications” means those certain Final Plans and
Specifications approved in accordance with the Initial Ground Lease, as
modified by any Alteration Plans and Specifications approved in accordance with
Section 9.5 hereof.


(xcv)          “First
Default Notice” has the meaning set forth in Section 14.2  hereof.


(xcvi)         “First
Lease Year” has the meaning set forth in Section 1.1(a)(xxxiii) hereof, the definition of Lease Year.


(xcvii)        “First
PA Extension” has the meaning set forth in Section 30.4(d)(i)(B) hereof.


(xcviii)       “First
PILOT Year” has the meaning set forth in Section 1.1(a)(clxxxvii) hereof, the definition of PILOT Year.


(xcix)          “Full
Insurable Value” means actual replacement cost of the Improvements
(exclusive of the cost of excavation, foundations and footings).


(c)              “Full
Taxes” means the real property taxes that would be assessed and
levied against the Demised Premises and Tenant’s undivided interest in the
Common Elements, the owner thereof and the interest of Tenant therein, if the
Demised Premises and Tenant’s undivided interest in the Common Elements or the
owner thereof were not exempt from such taxes, pursuant to (A) the provisions
of Chapter 58 of the Administrative Code of The City of New York and Title 11,
Chapter 2, of the Administrative Code of the City of New York, as the same may
be amended from time to time, or (B) any statute or ordinance in lieu thereof
or in addition thereto to the extent the charges imposed thereby are of a type
customarily considered as real property taxes.


(ci)             “Gallery”
has the meaning set forth in Section
30.4(b)(iii) hereof.


(cii)            “Governmental
Authority” or “Governmental
Authorities”  means
the United States of America, the State of New York, the City and any agency,
department, commission, board, bureau, instrumentality or political subdivision
of any of the foregoing, now existing or hereafter created, having jurisdiction
over the Demised Premises and/or the Common Elements or any portion thereof or
any street, road, avenue or sidewalk comprising a part of, or in front of, the
Demised Premises and/or the Common Elements, or any vault in or under the
Demised Premises and/or the Common Elements.


(ciii)           “Ground
Lease” has the meaning set forth in the recitals of this Lease.


(civ)           “Hazardous
Materials” means (A) any “hazardous substance” as defined in Section
101(14) of the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C § 9601(14), as amended, (B) any “hazardous waste” as defined in



 12
 






 



Section 27 1301(1) of the New York Environmental Conservation Law, (C)
petroleum or petroleum products, crude oil or any by products thereof, natural
gas or synthetic gas used for fuel, (D) any asbestos, asbestos containing
material or polychlorinated biphenyl and (E) any additional substances or
materials which are classified or considered to be hazardous or toxic under the
laws of the State of New York, the United States of America or under any other
Legal Requirements.


(cv)            “Hearing”
has the meaning set forth in Section
13.10(a) hereof.


(cvi)           “Hearing
Officers” has the meaning set forth in Section 13.10(a) hereof.


(cvii)          “IDA”
means the New York City Industrial Development Agency, a public
benefit corporation of the State of New York.


(cviii)         “IDA
Inducement Date” means the date the IDA board of directors adopts an
inducement resolution with respect to NYTC.


(cix)           “IDA
Project Agreement” means that certain Project Agreement dated as of
December 1, 2001 between the IDA and NYTC.


(cx)            “Impositions”
means all taxes, fees, assessments and charges that are levied by a
Governmental Authority, BID or similar entity against the Demised Premises
and/or Tenant’s undivided interest in the Common Elements or the interest of
Tenant therein to the extent that same may give rise to a lien against the
Demised Premises and/or the Tenant’s undivided interest in Common Elements,
including special assessments, personal property and general intangibles taxes,
gross receipts, sales, use and occupancy, water and sewer charges, rates and
rents to the extent charged separately from Full Taxes, charges for the
establishment and operation of any BID in which the Improvements are located,
charges for public utilities assessed by a Governmental Authority, BID or
similar entity, excises, levies, vault and other license, rent and permit fees
and other municipal and governmental impositions and charges, general and
special, ordinary and extraordinary, foreseen and unforeseen, of any kind and
nature whatsoever, which are during the term of this Lease assessed, levied,
charged or imposed upon or become payable out of or become a lien on (A) the
Demised Premises and/or Tenant’s undivided interest in the Common Elements, or
any part thereof, the appurtenances thereto or the sidewalks, streets or vaults
adjacent thereto, (B) any personal property owned by Tenant and located on the
Property, or any part thereof, (C) any rent and income received by or for the
account of Tenant from any Subtenants or other users or occupants of the
Demised Premises and/or Tenant’s undivided interest in the Common Elements, or
any part thereof, (D) any franchises, easements or similar rights demised
hereunder, licenses and permits as may be appurtenant to the use of the Demised
Premises and/or Tenant’s undivided interest in the Common Elements or any
documents to which Tenant is a party, creating or transferring an interest or
estate in the Demised Premises and/or Tenant’s undivided interest in the Common
Elements, or (E) any occupancy, use or possession of the Demised Premises
and/or Tenant’s undivided interest in the Common Elements, or any part thereof,
the appurtenances thereto or the sidewalks, streets, alleys or vaults adjacent
thereto; “Impositions” shall not include any amounts included in Full Taxes,
any PILOT, PILOMRT, Theater Surcharge, municipal, state or federal



 13
 






 



income taxes assessed against Landlord or Tenant, any capital levy,
estate, gift, succession, inheritance or transfer taxes, or any corporate
franchise taxes or unincorporated business taxes imposed upon any owner of the
Land, or any part thereof (“Excluded Taxes”); provided, however, that if
at any time during the term of this Lease the present method of taxation or
assessment shall be so changed that any Excluded Taxes shall either be added
to, or substituted in whole or in part for, Impositions, then any such Excluded
Tax shall, to the extent that it is so added or substituted, be deemed to be
included within Impositions.


(cxi)           “Improvements”
means any buildings and structures, and any building machinery,
equipment and fixtures (including Equipment) affixed to and forming a part of
such buildings and structures (including the Demised Premises and the Common
Elements), which may be erected or located wholly or partially on the Land
during the term of this Lease by or on behalf of Landlord, Tenant or any
Subtenant, but excluding any personal property owned or leased by Landlord,
Tenant or any Subtenant.


(cxii)          “Income
Tax Code” means the United States Internal Revenue Code of 1986, as
amended from time to time.


(cxiii)         “Indemnified
Parties” has the meaning set forth in Section 17.2(a) hereof.


(cxiv)         “Indicted
Party” has the meaning set forth in Section 13.10(a) hereof.


(cxv)          “in
effect” when used with respect to a Sublease means a Sublease, the
term of which has commenced and under which rent has become payable (or if not
yet payable, will become payable upon expiration of a rent abatement period
provided for in such Sublease) regardless of whether the space leased thereby
is occupied by the Subtenant.


(cxvi)         “Initial
Ground Lease” has the meaning set forth in the Recitals hereto.


(cxvii)        “Initial
Restoration Estimate” has the meaning set forth in Section 11.1 (d) hereof.


(cxviii)       “Initial
Taking Estimate” has the meaning set forth in Section 12.3(c) hereof.


(cxix)          “Insurance
Guaranty” has the meaning set forth in Section 10.9(a) hereof.


(cxx)           “Insurance
Requirements” means all of the terms and conditions of all insurance
policies covering, related to or applicable to the Demised Premises and/or the
Common Elements, all requirements of the issuers of such policies and all
rules, regulations, orders and other requirements or standards issued or
promulgated by the National or Regional Board of Fire Underwriters, the
National or Regional Fire Protective Association or any other national or
regional body in lieu of the foregoing exercising similar functions whose
requirements or standards must be complied with in order to obtain any
governmental approval



 14
 






 



or insurance policy required hereundcr, and applicable to or affecting
the Demised Premises and/or the Common Elements or the use and occupancy
thereof.


(cxxi)          “Interest
Rate” means a rate equal to the lesser of (A) three (3) percentage
points over the Prime Rate or (B) the maximum rate permitted by applicable law.


(cxxii)         “Interior
Construction Work” means any Alteration which (A) relates solely to
interior spaces in (1) the Demised Premises and/or (2) the Common Elements, and
(B) is not governed by any element of the DUO (it being understood that the DUO
may govern certain interior spaces) and does not affect a Structural Component
(other than by having a Nonadverse
Structural Effect).


(cxxiii)        “Issuing
Bank” means any commercial bank reasonably acceptable to Landlord.


(cxxiv)       “Land” means
the parcels of land described in Exhibit F-2
attached hereto, together with all right, title and interest, if any, of
Landlord in and to any easements, licenses, privileges, rights and
appurtenances related thereto.


(cxxv)        “Landlord”
means NYTB, its successors and assigns, including, as of the Lease
Assignment Date, 42DP.


(cxxvi)       “Landlord’s
Obligations” has the meaning set forth in Section 1.1(a)(clviii) hereof, the definition of Obligations.


(cxxvii)      “Landlord’s
TSF Statement” has the meaning set forth in Section 3.1(a)(i)(B)(3) hereof.


(cxxviii)     “Last
Specified Positive Interval” has the meaning set forth in Section 1.1(a)(vi) hereof, the definition
of Adjusted for Inflation.


(cxxix)        “Laws
and Regulations” means all federal, state, county, municipal and
other governmental statutes, laws, rules, orders, permits, licenses,
regulations and ordinances applicable to or affecting this Lease, the Property,
the Demised Premises and/or the Common Elements or the use or occupancy
thereof, or the owner thereof as owner of the Demised Premises and/or the
Common Elements, whether now or hereafter enacted or in force, ordinary or
extraordinary, foreseen or unforeseen.


(cxxx)         “Lease”
has the meaning set forth in the preamble to this Lease.


(cxxxi)        “Lease
Assignment Date” shall have the meaning set forth in the Initial
Ground Lease.


(cxxxii)       “Lease
Year” means (A) in the event that the Commencement Date does not
occur on January 1, the period from the Commencement Date through the second
December 31 thereafter (such period, the “First
Lease Year”), and (B) each twelve (12) calendar month period
commencing on the first January 1 following the First Lease Year and on



 15
 






 



each anniversary thereof, and in the case of the calendar year in which
the term of this Lease shall expire, so much of such calendar year as shall
fall within the term of this Lease.


(cxxxiii)      “Legal
Requirements” means all Laws and Regulations and all Applicable
Judgments.


(cxxxiv)      “Lending
Institution” means (A) a savings bank, savings and loan association,
commercial bank or trust company (whether acting individually or in a fiduciary
capacity) or a Control Affiliate of the foregoing, (B) an insurance company,
(C) a real estate investment trust, a trustee or issuer of collateralized mortgage
obligations, a loan conduit, or other similar investment entity which is listed
on the New York, American Stock Exchange or other regional exchange (or their
respective successors), (D) a federal, state, municipal or secular employee’s
welfare, benefit, pension or retirement fund, a religious, educational or
eleemosynary institution, any governmental agency or entity insured by a
governmental agency, a credit union, trust or endowment, (E) any combination of
the foregoing entities, (F) any other Person approved by Landlord, such
approval not to be unreasonably withheld that (1) shall have a business office
in Manhattan and be subject to the jurisdiction of the courts of the State of
New York, (2) shall be subject to the supervision of the Comptroller of the
Currency of the United States, the federal Securities and Exchange Commission,
the Insurance Department or the Banking Department or the Comptroller of the
State of New York, the Board of Regents of the University of the State of New
York, or the Comptroller of the City or any federal, state or municipal agency
or public benefit corporation or public authority advancing or assuring
mortgage loans or making payments which, in any manner, assist in the
financing, development, operation and maintenance of improvements, (3) shall
have a net worth of not less than One Hundred Million Dollars ($100,000,000)
and net assets of not less than Two Hundred Fifty Million Dollars
($250,000,000) (as such amounts shall be Adjusted for Inflation on an annual
basis from the Commencement Date) at the time of the initial determination of
its status as a Lending Institution, (4) is not a Related Entity of Tenant, and
(5) is not a Prohibited Person, or (G) any other Person satisfying the
conditions of clauses (1) through (5) above.


(cxxxv)       “Letter
of Credit” means a clean, irrevocable and unconditional letter of
credit, in form and content reasonably satisfactory to Landlord, issued by and
drawn upon any Issuing Bank.


(cxxxvi)      “Lobby
Sublease Space” has the meaning set forth in Section 34.1(c) hereof.


(cxxxvii)     “Lobby
Sublease Space Adjusted Gross Revenue” has the meaning set forth in Section 34.2(c) hereof.


(cxxxviii)  “Major
Alteration” has the meaning set forth in Section 9.5 (a) hereof.


(cxxxix)      “Major
Contractor” has the meaning set forth in Section 9.6(b)(ii) hereof.


(cxl)           “Manager”
means the manager of any portion of the Common Elements under a management
agreement.



 16
 






 



(cxli)          “Modification”
has the meaning set forth in Section
13.9 hereof.


(cxlii)         “Mortgage”
means any mortgage that constitutes a lien on Tenant’s interest in
this Lease and the leasehold estate created hereby.


(cxliii)        “Mortgage
Recording Tax” means any mortgage recording tax under Article 11 of
the New York State Tax Law, or any successor statute thereto, as the same may
now or hereafter be amended, and any New York City mortgage recording tax.


(cxliv)        “Mortgage
Recording Tax Savings” means any savings, as provided in Section 3.4 hereof, realized by Tenant on
account of Mortgage Recording Tax.


(cxlv)         [INTENTIONALLY OMITTED]


(cxlvi)        “NFP
Event” has the meaning set forth in Section 30.4(b) hereof.


(cxlvii)       “NFP
Event Shortfall” has the meaning set forth in Section 30.4(b) hereof.


(cxlviii)      “NFP
User” has the meaning set forth in Section
30.4(b) hereof.


(cxlix)         “Nonadverse Structural Effect” means any effect of any
Alteration on any Structural Component that, taken together with the totality
of the remedial measures to be taken in respect of such Alteration, will not
have more than an insignificant adverse effect on such Structural Component at
the completion of the Alteration.


(cl)             “Nondisturbance Agreement” has the meaning set forth in Section 13.2(b) hereof.


(cli)            [INTENTIONALLY OMITTED]


(clii)           “NYCEDC” means the New York City
Economic Development Corporation or any successor in function.


(cliii)          “NYTB” has the meaning set forth in the preamble to this Lease.


(cliv)          “NYTC” means The New York Times Company.


(clv)           [INTENTIONALLY OMITTED]


(clvi)          “NYTC Incentive Agreement” means, collectively, any
agreements between NYTC and the City, NYCEDC or the IDA with respect to the
granting of corporate retention benefits.


(clvii)         [INTENTIONALLY OMITTED]


(clviii)        “Obligations”, and words of like import, mean covenants
to pay Charges and other sums payable hereunder and perform acts or fulfill
obligations hereunder, as



 17
 






 



applicable, and all of the other covenants, agreements, terms,
conditions, limitations, exceptions and reservations contained in this Lease
and the schedules and exhibits attached hereto. The terms “Tenant’s Obligations” and “Landlord’s Obligations”, and words of like import, mean the
Obligations of this Lease which are imposed upon and are to be performed,
observed or complied with by Tenant or by Landlord, as the case may be.


(clix)          “Occupied Square Foot” means (A) each Rentable Square
Foot of the Demised Premises, (B) with respect to the Roof Top Garden Space,
each Rentable Square Foot within the Roof Top Garden Space and (C) with respect
to the Lobby Sublease Space, each Rentable Square Foot within the Lobby Sublease
Space.


(clx)           “Office PILOT” means (a) the rate set forth under “Office
PILOT” on Schedule
1 attached hereto multiplied by (b) the number of Taxable Square
Feet, exclusive of any Taxable Square Feet with respect to which Retail PILOT
is being paid.


(clxi)          “Office Space” means all Taxable Square Feet other than that which is
attributable to the Retail Space.


(clxii)         “Operative Agreements” means (A) all Condominium
Documents, and (B) the applicable building management agreement.


(clxiii)        “Organized Crime Figure” means any Person (A) who has been
convicted in a criminal proceeding for a felony or any crime involving moral
turpitude or that is an organized crime figure or is reputed to have
substantial business or other affiliations with an organized crime figure, or
(B) who, directly or indirectly controls, is controlled by, or is under common
control with, a Person who has been convicted in a criminal proceeding for a
felony or any crime involving moral turpitude or that is an organized crime
figure or is reputed to have substantial business or other affiliations with an
organized crime figure. The determination as to whether any Person is an
organized crime figure or is reputed to have substantial business or other
affiliations with an organized crime figure shall be within the sole discretion
of Landlord, which discretion shall be exercised in good faith; provided,
however, that such Person shall not be deemed a Prohibited Person if the
City, having actual knowledge that such Person meets the criteria set forth in
clauses (A) or (B) above of this definition, entered into a contract and is
then doing business with such Person.


(clxiv)        “Overdue Payment” has the meaning set forth in Section 3.7(c) hereof.


(clxv)         “PA Budgeted Retail Construction Costs” means the total, actual cost to
construct the PA Retail Space as reasonably approved by Tenant’s construction
lender (so long as such construction lender is a Lending Institution) or by
Landlord (if, in respect of the PA Retail Space, Tenant has no construction
lender which is a Lending Institution), as indicated on a final construction
budget approved, as the case may be, by such construction lender or by Landlord
(the construction budget for the PA Retail Space having been prepared
separately from the overall construction budget for the Improvements, and
having been provided to Landlord as a Verified Statement), including the
Transaction Price and all other hard and soft



 18
 






 



costs (other than land acquisition costs above the Transaction Price),
in each case, reasonably allocable, on a square foot basis, to the PA Retail
Space.


(clxvi)        “PA
Effective Date” has the meaning set forth in Section 30.4(b) hereof.


(clxvii)       “PA NFP
Operating Costs” has the meaning set forth in Section 30.4(b) hereof.


(clxviii)      “PA
Obligation Term” has the meaning set forth in Section 30.4(b) hereof.


(clxix)         “PA
Obligation Termination Date” has the meaning set forth in Section 30.4(b) hereof.


(clxx)          “PA
Opening Date” has the meaning set forth in Section 30.4(b) hereof.


(clxxi)         “PA
PILOT Reduction” has the meaning set forth in Section 30.4(e)(iii) hereof.


(clxxii)        “PA
Retail Space” means any Retail Space which is located within, and
ancillary to, the Public Amenity. Notwithstanding anything to the contrary
herein, the Gallery and the Auditorium shall not constitute PA Retail Space so
long as any concessions or other retail operations conducted therein are
incidental or ancillary to, and are associated with, the occurrence of Events
in the Public Amenity.


(clxxiii)       “PA
Year” has the meaning set forth in Section
30.4(b) hereof.


(clxxiv)      “Percentage
Allocation” has the meaning set forth in the Site 8 South LADA.


(clxxv)       “Percentage
Rent” means the amounts specified as Percentage Rent and payable by
Tenant pursuant to Section 3.2 and
Section 34.3(c) hereof.


(clxxvi)      “Percentage
Rent Report” has the meaning set forth in Section 3.2(c) hereof.


(clxxvii)     “Permitted
Developer” means a legal entity composed only of NYTC or its
wholly-owned, single-purpose Control Affiliates.


(clxxviii)    “Permitted
Disposition” has the meaning set forth in Section 13.10(d) hereof.


(clxxix)       “Permitted
Encumbrances” means (A) the matters described in Exhibit G attached hereto and (B) any other
encumbrance on the Property expressly agreed to in writing by the parties
hereto and, subject to Section 3.17 hereof,
any violation that will, by its



 19
 






 



nature, be cured or otherwise rendered inconsequential due to the
demolition of the Existing Improvements (as defined in the Initial Ground
Lease).


(clxxx)        “Permitted
Transferee” means a Person who (A) either (1) directly and/or
together with its Control Affiliates, owns and/or manages, and has not less
than five (5) years’ experience in the ownership and/or management of, at least
five million (5,000,000) square feet of office space or (2) retains a qualified
manager having the qualifications set forth in clause (A)(l), above, (B) is of
sufficient financial condition to perform the obligations to be assumed by such
proposed assignee (Landlord having been furnished with evidence reasonably
satisfactory to Landlord of such financial condition) and (C) is not a
Prohibited Person.


(clxxxi)       “Permitted
Use” has the meaning set forth in Section
7.1(a) hereof.


(clxxxii)      “Person”
means (A) an individual, corporation, limited liability company,
partnership, joint venture, estate, trust, unincorporated association or other
entity, (B) any federal, state, county or municipal government (or any bureau,
department, agency or instrumentality thereof), and (C) any fiduciary acting in
such capacity on behalf of any of the foregoing.


(clxxxiii)     “PILOMRT”
means the payments in lieu of Mortgage Recording Tax payable by
Tenant to Landlord pursuant to Section 3.4(b)
hereof.


(clxxxiv)     [INTENTIONALLY OMITTED]


(clxxxv)      [INTENTIONALLY OMITTED]


(clxxxvi)     “PILOT” means
the payments in lieu of real estate taxes payable by Tenant to Landlord
pursuant to Section 3.1 hereof.


(clxxxvii)    “PILOT
Year” means (A) in the event that the Delivery Date does not occur
on January 1, the period from the Delivery Date through the second December 31
thereafter (such period, the “First PILOT
Year”), and (B) each twelve (12) calendar month period commencing on
the first January 1 following the First PILOT Year and on each anniversary
thereof.


(clxxxviii)  “Possession”
means good and indefeasible leasehold title to, and actual vacant occupancy and
possession of, all of the Property, free and clear of all leases, licenses,
tenancies, occupancies, liens or other similar encumbrances, and any claims to
or rights of others attaching to the Property, except Permitted Encumbrances.


(clxxxix)     “Prime
Rate” means the fluctuating annual interest rate announced publicly
by Citibank, N.A., or any successor, at its headquarters in New York City, as
its base commercial lending rate, as the same may change from time to time.


(cxc)          “Principal”
means, with respect to any Person, (A) any director or the
president, any vice president, the treasurer, or the secretary thereof if such
Person is a



 20
 






 



corporation, (B) any general partner of a
partnership or managing member of a limited liability company, or (C) any
shareholder, limited partner, member or other Person having a direct or
indirect economic interest in such Person, whether beneficially or of record,
in excess of ten percent (10%) of all of the issued and outstanding shares,
partnership interests, limited liability company interests or other ownership
interests of such Person. In calculating the percentage interest of any
shareholder, partner, member or other beneficially interested Person referred
to in the prior sentence, the interest in the equity of any affiliate of such
shareholder, partner, member or beneficially interested Person shall be
attributed to such shareholder, partner, member or beneficially interested
Person.


(cxci)         “Pro
Rata Cost” has the meaning set forth in Section 30.4(b)(xii) hereof.


(cxcii)        “Production
Architect” means any Architect proposed by Tenant and approved (or
deemed approved) by Landlord pursuant to Section
9.6(a) hereof as the production architect working in affiliation
with the Design Architect.


(cxciii)       “Prohibited
Person” means (A) any Person (1) that is in default after notice and
beyond any applicable cure period, of such Person’s obligations under any
material written agreement with the City, the State or any of their
instrumentalities, or (2) that directly controls, is controlled by, or is under
common control with a Person that is in default after notice and beyond any
applicable cure period, of such Person’s obligations under any material written
agreement with the City, the State or any of their instrumentalities, unless,
in each instance, such default or breach either (x) has been waived in writing
by the City, the State or any of their instrumentalities as the case may be or
(y) is being disputed in a court of law, administrative proceeding, arbitration
or other forum or (z) is cured within thirty (30) days after a determination
and notice to Tenant from Landlord that such Person is a Prohibited Person as a
result of such default; (B) any Person that is an Organized Crime Figure; (C)
any government, or any Person that is directly or indirectly controlled (rather
than only regulated) by a government, that is finally determined to be in
violation of (including, but not limited to, any participant in an
international boycott in violation of) the Export Administration Act of 1979,
as amended, or any successor statute, or the regulations issued pursuant
thereto, or any government that is, or any Person that, directly or indirectly,
is controlled (rather than only regulated) by a government that is subject to
the regulations or controls thereof; (D) any government, or any Person that,
directly or indirectly, is controlled (rather than only regulated) by a
government, the effects or the activities of which are regulated or controlled
pursuant to regulations of the United States Treasury Department or executive
orders of the President of the United States of America issued pursuant to the
Trading with the Enemy Act of 1917, as amended; (E) any Person that is in
default in the payment to the City of any real estate taxes, sewer rents or
water charges totaling more than $10,000, unless such default is then being
contested in good faith in accordance with applicable Legal Requirements or
unless such default is cured within thirty (30) days after a determination and
notice to Tenant from Landlord that such Person is a Prohibited Person as a
result of such default; or (F) any Person (1) that has solely owned, at any
time during the 3-year period immediately preceding a determination of whether
such Person is a Prohibited Person, any property which, while in the ownership
of such Person, was acquired by the City by in rem tax foreclosure, other than
a property in which the City has released or is in the process of releasing its
interest pursuant to the Administrative Code of the City, or (2) that, directly
or



 21














 


indirectly controls, is controlled by, or is under common control with
a person that has owned, at any time in the 3-year period immediately preceding
a determination of whether such Person is a Prohibited Person, any property
which, while in the ownership of such person, was acquired by the City by in
rem tax foreclosure, other than a property in which the City has released or is
in the process of releasing its interest to such person pursuant to the
Administrative Code of the City.


(cxciv)              “Project
Agreement” means that certain Site 8 South Project Agreement, dated
as of the date hereof, by and among ESDC, 42DP, the City, NYTB, FC Lion LLC and
NYT Real Estate Company LLC, and any amendments thereto.


(cxcv)               “Project
Documents” has the meaning set forth in the Recitals to this
Agreement.


(cxcvi)              “Project
Participants” means (A) Tenant and Control Affiliates of Tenant, (B)
the Condominium Association, and (C) any Manager.


(cxcvii)             “Property”
means the Land and the Improvements.


(cxcviii)            “Public
Amenity” has the meaning set forth in Section 30.4(a) hereof.


(cxcix)              “Public Amenity Space” has
the meaning set forth in Section 30.4(b)(xiv)
hereof.


(cc)                   “Public Parties” means 42DP, ESDC, the City and NYCEDC.


(cci)                  “Public Party Expenses” has the meaning set forth in the Site
8 South LADA.


(ccii)                 “Purchase Option” has the meaning set forth in Section 5.1(a) hereof.


(cciii)                “Purchase Option Closing Date” has the meaning set forth in Section 5.1(a) hereof.


(cciv)               “Purchase
Option Notice” has the meaning set forth in Section 5.1(a) hereof.


(ccv)                “Purchase Price” means Ten Dollars ($10).


(ccvi)               “Purchaser”
has the meaning set forth in Section
5.1(d) hereof.


(ccvii)              “Qualified
Certifying Party” means with respect to any Person that is a
partnership or limited liability company, a member or general partner thereof,
or in the case of a Person or general partner that is a corporation, the
President, Vice President, Chief Financial Officer or Treasurer of such Person
or general partner.



 22
 






 



(ccviii)             [INTENTIONALLY OMITTED]


(ccix)                “Recognized Mortgage” means a Mortgage (A) that is held by a
Lending Institution, (B) that complies with the provisions of this Lease, and
(C) a copy of which has been delivered to Landlord, together with a
certification of a Qualified Certifying Party of Tenant confirming that the
copy is a true and complete copy of such Mortgage and giving the name and
address of the mortgagee thereunder.


(ccx)                 “Recognized Mortgagee” means the holder of a Recognized
Mortgage.


(ccxi)                “Related Entity” means, as to any Person, any other Person
that controls, is controlled by, or is under common control with, such Person;
for the purposes of this definition, “control” (and its correlative meanings, “controlled
by” and “under common control with”) means (A) direct or indirect ownership of
more than fifty percent (50%) of the outstanding voting capital stock of a
corporation or more than fifty percent (50%) of the beneficial interests of any
other entity or (B) the possession, directly or indirectly, of the power to
direct or cause the direction of the business decisions of such corporation or
other entity.


(ccxii)               “Rentable
Square Feet” or “Rentable Square
Foot” means rentable square footage of the Improvements, as
determined in accordance with the Standard Method for Measuring Floor Area in
Office Buildings ANSI Z65.1-1996), as promulgated by the Building Owners and
Managers Association (BOMA) International or any successor entity.


(ccxiii)              “Replacement
Design Architect” has the meaning set forth in Section 9.6(a)(i) hereof.


(ccxiv)              “Replacement
Design Architect Approval Criteria” has the meaning set forth in Section 9.6(a)(i) hereof.


(ccxv)               “Restoration”
has the meaning set forth in Section
11.1(a) hereof.


(ccxvi)              “Restoration
Funds” has the meaning set forth in Section 11.2(a) hereof.


(ccxvii)             “Restore”
has the meaning set forth in Section
11.1(a) hereof.


(ccxviii)            “Retail
PILOT” means (A) the rate set forth under “Retail PILOT” in Schedule 1 attached hereto multiplied by
(B) the sum of (1) the number of gross square feet of above-grade Retail Space,
(2) the number of gross square feet of below-grade Revenue Producing Retail
Space for which a Taxable Square Feet Delivery Date has occurred, (3) Tenant’s
Percentage Allocation of 10,000 Square Feet, representing the Roof Top Garden
Space and (4) if (and for so long as) the Lobby Sublease Space is used for
retail purposes, Tenant’s Percentage Allocation of the number of gross square
feet of the Lobby Sublease Space (collectively “Taxable Retail Square Feet”).



 23
 






 



(ccxix)              “Retail
Space” means (A) any portion of the Demised Premises to be used for
retail purposes or any purposes ancillary thereto (it being understood and
agreed that, for purposes only of computing Percentage Rent, if the PA Retail
Space is less than 5,000 Square Feet, then the area of all of the PA Retail
Space shall not be considered “Retail Space” for such purposes, and if the PA
Retail Space equals or exceeds 5,000 Square Feet the area of all of the PA
Retail Space shall be considered “Retail Space” for such purposes) and (B) with
respect to Tenant’s obligations in connection with Retail PILOT, the Common
Elements Leaseable Space.


(ccxx)               “Revenue-Producing
Retail Space” means that portion of the Retail Space leased or
otherwise demised to a Subtenant, which space is being used for the selling of
goods, merchandise or services.


(ccxxi)              “Roof
Top Garden Adjusted Gross Revenues” has the meaning set forth in Section 34.2(d) hereof.


(ccxxii)             “Roof
Top Garden Space” has the meaning set forth in Section 34.1(b) hereof.


(ccxxiii)            “Roof
Top Mechanical Space” means all the mechanical space located on and
above the 52nd floor of the Improvements (as shown on the
schematic design plan drawings set forth on Exhibit I-1 attached to the Initial
Ground Lease) (it being understood that the space on and above such 52nd floor of the Improvements shall only be used
for (A) housing mechanical equipment, (B) siting the Roof Top Garden Space and
(C) the development of the Roof Top Garden Improvements (as defined in the
Initial Ground Lease)).


(ccxxiv)            [INTENTIONALLY OMITTED]


(ccxxv)             [INTENTIONALLY OMITTED]


(ccxxvi)            [INTENTIONALLY OMITTED]


(ccxxvii)           “Scheduled
Expiration Date” means the date set forth in Section 2.1 hereof as the originally
scheduled Expiration Date.


(ccxxviii)          “Scheduled
PILOT Conversion Date” means the twenty-ninth (29th) anniversary of
the first December 31 after the Delivery Date.


(ccxxix)             “Second
PA Extension” has the meaning set forth in Section 30.4(d)(i)(B) hereof.


(ccxxx)              “Security
Deposit” has the meaning set forth in Section 10.9(a) hereof.


(ccxxxi)             “Severance
Subleases” means this Lease and the FC Subleases.



 24
 






 



(ccxxxii)            “Site
8 South LADA” means that certain Site 8 South Land Acquisition and
Development Agreement, dated as of the date hereof, entered into by 42DP,
NYCEDC and NYTB.


(ccxxxiii)           “Site
8 South Subway Agreement” means that certain Subway Entrance
Agreement, dated as of the date hereof, among Landlord, The New York City
Transit Authority, 42DP and The City of New York.


(ccxxxiv)          “Site
Acquisition Costs” has the meaning set forth in the Site 8 South
LADA.


(ccxxxv)           “Square
Feet” or “Square Foot” means
square footage computed with reference to the gross square footage of the
Improvements, above grade, measured from the outside of the exterior walls for
each floor and including, without limitation, mechanical space (other than the
Roof Top Mechanical Space), floor cutouts for ducts, interior partition walls
and loading areas. Because the Improvements will include a double curtain wall
(i.e., an interior glass curtain wall and an exterior screen curtain wall), “exterior
walls” for purposes of this definition means the inner glass curtain wall of
the Improvements, as long as and to the extent that there is no usable floor
area between the two components of the curtain wall.


(ccxxxvi)          “Stabilized
Lease Year” has the meaning set forth in Section 14.3(g) hereof.


(ccxxxvii)         “Structural
Alteration” has the meaning set forth in Section 9.5(a) hereof.


(ccxxxviii)        “Structural
Component” means, in respect of the Improvements, (A) the roof, (B)
exterior walls and (C) any load-bearing member, including load-bearing columns
and slabs.


(ccxxxix)           “Sublease”
means any sub-sublease, license, concession, occupancy or other
agreement pursuant to which a Subtenant occupies or otherwise uses all or any
portion of the Demised Premises.


(ccxl)                “Submission Date” has the meaning set forth in Section 16.2(b)(iv) hereof.


(ccxli)               “Substantial
Casualty” means a Casualty that would require a Restoration the cost
of which is greater than eighty percent (80%) of the replacement cost of the
Improvements.


(ccxlii)              “Substantial
Completion Date” means the Substantial Completion Date determined in
accordance with the Initial Ground Lease.


(ccxliii)             “Substantially
All Of” has the meaning set forth in Section 12.1(a) hereof.



 25
 






 



(ccxliv)             “Subtenant”
means any space tenant, subtenant, operator, licensee, franchisee,
concessionaire or other occupant of the Demised Premises (or any portion
thereof).


(ccxlv)              “Taking”
means, other than in respect of the Condemnation, a taking, or
voluntary conveyance, of title to, or any interest in, the Property, the
Demised Premises or the Common Elements, or any part thereof, or of the right
to use all or any part thereof pursuant to, as a result of, in lieu of or in
anticipation of the exercise of the right of condemnation, expropriation or
eminent domain, and upon such a Taking, the Property, the Demised Premises or
the Common Elements, or such part thereof, shall be deemed to have been “taken”.


(ccxlvi)             “Taxable
Retail Square Feet” has the meaning set forth in Section l.1(a)(ccxviii) hereof, the
definition of Retail PILOT.


(ccxlvii)            “Taxable
Square Feet” means, as determined pursuant to Section 3.1(a)(i)(B) hereof, the sum of:
(A) the total number of Square Feet comprising the Demised Premises (as set
forth in the Total Taxable Square Feet Certificate or, as of the date of its
approval or deemed approval, the most recent Tenant’s TSF Certificate), (B) the
number of Allocated Square Feet (as set forth in the Total Taxable Square Feet
Certificate), (C) any below-grade Taxable Retail Square Feet demised to Tenant
pursuant to this Lease (as set forth in the Total Taxable Square Feet
Certificate or, as of the date of its approval or deemed approval, the most
recent Tenant’s TSF Certificate) and (D) the total number of Square Feet
comprising the Roof Top Garden Space; “Taxable Square Feet” explicitly excludes
the Roof Top Mechanical Space.


(ccxlviii)           [INTENTIONALLY OMITTED]


(ccxlix)             “Tenant”
has the meaning set forth in the preamble to this Lease.


(ccl)                  “Tenant’s Obligations” has the meaning set forth in Section 1.1(c)(clviii) hereof, the
definition of Obligations.


(ccli)                 “Tenant’s Sublet Notice” has the meaning set forth in Section 13.2(b)(vii) hereof.


(cclii)                “Tenant’s Subway Improvements” has the meaning set forth in
the Initial Ground Lease.


(ccliii)               “Tenant’s
TSF Certification” has the meaning set forth in Section 3.1(a)(i)(B)(2) hereof.


(ccliv)              “Termination
Notice” has the meaning set forth in Section 14.2 hereof.



 26
 






 



 


(cclv)               “Theater
Management Entity” means The New 42nd Street,
Inc. or any other not-for-profit organization which promotes, operates and/or
oversees one or more historic theaters within the 42nd Street Project.


(cclvi)              “Theater
Surcharge” has the meaning set forth in Section 3.5(a) hereof.


(cclvii)             “Theater
Surcharge Commencement Date” has the meaning set forth in Section 3.5(b) hereof.


(cclviii)            “Theater
Surcharge Report” has the meaning set forth in Section 3.5(d) hereof.


(cclix)               “Total
SAC Amount” means the total of all Site Acquisition Costs.


(cclx)                “Total Taxable Square Feet” means, as of the Lease Assignment
Date, the sum of (1) 1,380,000 Square Feet, (2) the total number of Square Feet
of Discretionary Inside Mechanical Space within the Improvements, and (3) the
number of below-grade Taxable Retail Square Feet, all as set out in the Total
Taxable Square Feet Certificate.


(cclxi)               “Total
Taxable Square Feet Certificate” means a certification delivered in
accordance with Section 32.1(a)(iii) of the Initial Ground Lease, setting forth
as of the Lease Assignment Date (A) the Total Taxable Square Feet of the
Improvements, and (B) the Taxable Square Feet comprising each Demised Premises
(under each Severance Sublease), which shall be comprised of (1) the number of
Taxable Square Feet, above-grade, situated within the applicable Demised
Premises, (2) an amount equal to the product of (a) the number of Square Feet
comprising the Common Elements and (b) a percentage equal to the Common
Interest (as defined in the Condominium Declaration) attributed to the
condominium unit comprising the applicable Demised Premise (such product, the “Allocated Square Feet”), and (3) any then identified below-grade
Taxable Retail Square Feet (as defined in the Initial Ground Lease), and (4)
the Square Feet comprising the Roof Top Garden Space.


(cclxii)              “Transaction
Price” means $85,560,000.


(cclxiii)             “Transfer”
has the meaning set forth in Section
13.1(a) hereof.


(cclxiv)             “Unavoidable
Delay(s)” means actual delays (after taking into account all
reasonable measures that are taken or should reasonably have been taken by
Tenant to mitigate the effect of the following) caused by (A) acts of God, war,
sabotage, hostilities, invasion, insurrection, riot, mob violence, malicious
mischief, embargo, enemy action, civil commotion, earthquake, flood, fire or
other casualty, government restriction, strikes, labor troubles, unknown
physical conditions which differ materially from those ordinarily found to
exist and generally recognized as inherent in the construction of office building
in Manhattan and inability to procure labor, equipment, materials or supplies
(exclusive of delays inherent in the ordering of long-lead items) which are not
attributable to the improper acts or omissions of Tenant or its affiliates, (B)
any litigation (not instituted, financed or supported by either of Tenant any
Related Entity of Tenant) which results in an injunction prohibiting or
otherwise



 27
 






 



delaying the commencement of any Alteration or the continuation of such
Alteration, and (C) any other matter beyond the reasonable control of Tenant
and not normally associated with a project of the nature described herein.
Inability (1) to pay a sum of money or (2) to obtain or to timely obtain (a)
any permits or certificates from applicable governmental authorities or (b)
financing from a lender, shall not constitute Unavoidable Delay. The period of
delay caused by any occurrence of Unavoidable Delay shall not be deemed to
commence any earlier than ten (10) days before the date Landlord receives
notification from Tenant of such occurrence; provided, however,
that no such notification shall be valid unless Tenant shall substantiate the
basis for any claim of Unavoidable Delay made therein to the reasonable
satisfaction of the Public Parties within twenty (20) days thereafter. Tenant
shall advise Landlord in such notice as to the measures taken or proposed to be
taken by Tenant to mitigate the delay caused by such occurrence of Unavoidable
Delay and thereafter to keep Landlord reasonably informed as to the status of
such measures, and notify Landlord as to the termination of the occurrence of
Unavoidable Delay within ten (10) days thereafter; provided, however,
Tenant’s failure to provide any such notice of termination shall not prejudice
Tenant’s rights to claim Unavoidable Delay.


(cclxv)              “Venue”
has the meaning set forth in Section 30.4(b)
hereof.


(cclxvi)             “Verified
Statement” means a statement in reasonable detail and in a
reasonable form prescribed by Landlord, prepared in a consistent manner and
certified as being true, correct and complete by a Qualified Certifying Party
or the Certified Public Accountants, unless such statement pertains to an
annual (or longer) period, in which case it shall be so certified by both a
Qualified Certifying Party and the Certified Public Accountants.


(cclxvii)            “Zoning
Resolution” means the Zoning Resolution of The City of New York or
any successor statute, as the same may be amended or otherwise modified.


Section
1.2  Rules of Construction. The following rules
of construction shall be applicable for all purposes of this Lease and all
agreements supplemental hereto, unless the context otherwise requires:


(a)    The terms “hereby”,
“hereof, “hereto”, “herein”, “hereunder” and any similar terms shall
refer to this Lease, and “hereafter” shall
mean after, and “heretofore” shall
mean before, the date of this Lease.


(b)    Words of the masculine, feminine or neuter
gender shall mean and include the correlative words of the other genders and
words importing the singular number shall mean and include the plural number
and vice versa.


(c)    The terms “include”,
“including” and similar terms shall be construed as if followed by
the phrase “without being limited to”.


(d)    This Lease shall be governed by, and
construed in accordance with, the law of the State of New York applicable to
agreements to be performed wholly within such State.



 28
 






 



(e)    Whenever a
party hereto “shall” perform (or cause to be performed) any Obligations
hereunder, such performance shall be at such party’s sole cost and expense
unless otherwise expressly provided.


Section
1.3  Captions/Table of Contents. The captions
under the article and section numbers and the table of contents of this Lease
are for convenience and reference only and in no way define, limit or describe
the scope or intent of this Lease nor in any way affect this Lease.



 29
 






 



ARTICLE II

LEASE OF DEMISED PREMISES AND COMMON ELEMENTS; TERM OF LEASE


Section
2.1  Demised Premises and Common Elements; Term.


(a)    Demise and Lease. (i) During the term
described in Section 2.1(b) hereof,
Landlord hereby demises and leases to Tenant, and Tenant hereby hires and takes
from Landlord, pursuant to the provisions of this Lease, the Demised Premises,
together with an undivided interest in the Common Elements (which undivided
interest, from and after the Lease Assignment Date, shall equal the Common
Interest (as defined in the Condominium Declaration) attributable to the
condominium unit(s) comprising the Demised Premises under the Condominium
Declaration), subject only to Permitted Encumbrances.


(ii)         During the term of this Lease, Landlord
shall not create or consent to any encumbrance or permit any lien on the
Property or the leasehold interest under the Ground Lease (other than an
encumbrance or lien resulting from the prosecution by Landlord of any remedy
for the enforcement of any provision of this Lease) without Tenant’s prior
written consent and, with respect to the Common Elements, the consent of all
other tenants under Severance Subleases.


(iii)        Landlord and Tenant acknowledge and agree:
(A) that the demise set forth in this Section
2.1(a) is expressly intended to include all rights and obligations
of Landlord under the Condominium Documents in respect of the Demised Premises
and the interest in the Common Elements appurtenant thereto so that Tenant is
vested with, and assumes, all rights and obligations of a Unit Owner, as such
term is defined in and understood under the Condominium Documents; (B) except
as set forth in this Lease, Landlord has retained no rights or obligations as a
Unit Owner under the Condominium Documents with respect to the Demised Premises
and the Common Elements; and (C) no action or omission in respect of the
Demised Premises or the Common Elements taken by or on behalf of Tenant, or any
Person claiming by, though or under Tenant, may or will be characterized or
treated as a default by Landlord under any Condominium Document.


(b)    Term. Subject to the terms of Section 2.1(d) hereof, the leasehold estate
granted in Section 2.1(a) hereof
is for a term of ninety-nine (99) years, commencing on the Commencement Date,
and ending upon the earlier of the date immediately preceding the ninety-ninth
(99th) anniversary of the Commencement Date or the date on which this Lease
shall sooner terminate as hereunder provided (the “Expiration Date”), upon and subject to the covenants,
agreements, terms, provisions and limitations herein set forth, all of which
covenants, agreements, terms, provisions and limitations Landlord and Tenant
covenant and agree to perform and observe.


(c)    Designation of Condominium Units. On
the Lease Assignment Date, Landlord and Tenant shall enter into an amendment of
this Lease to modify Exhibit D attached to the Initial Ground Lease to identify
the condominium units comprising the Demised Premises.



 30














 


(d)    Effectiveness
of Lease. Landlord and Tenant acknowledge and agree that while the demise
provided for herein is binding and effective as of the Commencement Date,
subject to Section 13.11(b) hereof,
neither Landlord nor Tenant shall, or shall be responsible or permitted to,
undertake, perform or complete any Obligation under this Lease, or have any
rights or liabilities under this Lease, until the Lease Assignment Date.
Landlord and Tenant further agree that this Lease is and shall remain at all
times subject and subordinate to the Ground Lease.


Section 2.2  Condition of
Demised Premises and Common Elements. Tenant is fully
familiar with the Demised Premises and Common Elements, the condition thereof
and the Permitted Encumbrances, and Tenant accepts and agrees to lease the same
in their then “AS IS” condition on the Lease Assignment Date and without any
representation or warranty, express or implied, in fact or by law, by 42DP,
NYCEDC, ESDC or the City, except as expressly provided in this Lease, and without
recourse to 42DP, NYCEDC, ESDC or the City as to the title thereto, the nature,
condition or usability thereof or the use or uses to which the Demised Premises
and Common Elements or any part thereof may be put, except as expressly
provided in this Lease.


Section 2.3  Waiver of Right
to Rescind. Tenant waives any right to rescind this Lease
under Section 223-a of the New York State Real Property Law or under any
present or future statute of similar import then in force and further expressly
waives the right to recover any damages which may result from Landlord’s
failure to deliver possession of the Demised Premises. Tenant agrees that this Section 2.3 is intended to constitute “an
express provision to the contrary” within the meaning of said Section 223-a.



 31
 






 



ARTICLE
III 

CHARGES AND FEES


Section 3.1  PILOT.


(a)       Determination of PILOT. Tenant covenants and agrees to pay
to Landlord, during the term of this Lease, payments in lieu of real estate
taxes (“PILOT”) determined as
follows:


(i)     Prior to Scheduled PILOT Conversion Date.


(A)      In respect of the first PILOT payment
period after the Lease Assignment Date through the day before the Scheduled
PILOT Conversion Date, Tenant shall pay to Landlord an amount, per annum, equal
to the lesser of (1) Full Taxes and (2) [a] the sum of Office PILOT and Retail
PILOT for the applicable PILOT Year minus [b] (i) any Theater Surcharge payable
in respect of such applicable PILOT Year, and (ii) any applicable PA PILOT
Reduction. Landlord’s calculation of PILOT shall be binding, absent
computational error.


(B)       The number of Taxable Square Feet shall
be determined as follows:


(1)         The parties hereto agree that as of the
Lease Assignment Date, the Taxable Square Feet and the Total Taxable Square
Feet shall be as set forth in the Total Taxable Square Feet Certificate
provided to Landlord and 42DP on or prior to the Lease Assignment Date.


(2)         Upon the completion of any Alteration,
transfer or other event which would potentially cause a change in the number of
Taxable Square Feet in the Demised Premises or the Roof Top Garden Space,
including, without limitation, the Allocated Square Feet, Tenant shall: [a]
cause an Architect, approved (or deemed approved) by Landlord pursuant to Section 9.6(a) hereof, to submit an
Architect’s Certification to Landlord and Tenant (it being agreed that such
Architect’s Certification shall be deemed approved by Landlord unless disputed
within ten (10) Business Days of receipt thereof by Landlord) confirming that
the number of Taxable Square Feet certified to pursuant to the Total Taxable
Square Feet Certificate, or pursuant to an earlier Architect’s Certificate
provided pursuant to this Section
3.1(a)(i)(B)(2), is still correct (or, if the number of any of such
Square Feet has changed, setting forth the correct number and the reasons that
such number has changed); and [b] provide to Landlord a certification of Tenant
(the “Tenant’s TSF Certification”) setting forth, as of such date (X) the
aggregate number of Square Feet of below-grade space in the Demised Premises
that is Revenue-Producing Retail Space and (Y) the total number of Taxable
Square Feet. In any event and in addition to the circumstances described above,
on each January 1 and July 1 following the Substantial Completion Date, Tenant
shall provide to Landlord a Tenant’s TSF Certification.


(3)         Subject to Landlord’s right to dispute
a Tenant’s TSF Certification pursuant to this Section
3.1(a)(i)(B)(3), each Tenant’s TSF Certification shall be considered
a final and binding determination of the number of Taxable Square Feet
certified



 32
 






 



therein. Within twenty (20) Business Days
after the delivery of a Tenant’s TSF Certification, Landlord may deliver to
Tenant a statement (“Landlord’s TSF Statement”) disapproving
such Tenant’s TSF Certification and indicating in reasonable detail (to the
extent then ascertainable by Landlord) the reasons for the disapproval. In the
event that Landlord provides a Landlord’s TSF Statement, Tenant and Landlord
shall attempt to agree upon the then actual number of Taxable Square Feet. In
the event that Landlord and Tenant are unable to agree upon the then actual
number of Taxable Square Feet within fifteen (15) Business Days of Tenant’s
receipt of Landlord’s TSF Statement, the disagreement shall be referred to
arbitration in accordance with Section 16.2 hereof.
Failure of Landlord to provide a Landlord’s TSF Statement within the indicated
period shall be deemed approval of the number of Taxable Square Feet set forth
in the applicable Tenant’s TSF Certification. Notwithstanding any other term in
this Section 3.1(a)(i)(B) to the
contrary, it is acknowledged and agreed that for the purpose of calculating
PILOT, no Architect’s Certification submitted under this Section 3.1(a)(i)(B) shall reduce the
number of Total Taxable Square Feet to fewer than the number determined
pursuant to clause (1) of this Section
3.1(a)(i)(B).


(ii)         On and After Scheduled PILOT Conversion Date. On and
after the Scheduled PILOT Conversion Date through the expiration of the term of
this Lease, Tenant shall pay to Landlord an amount, per annum, equal to Full
Taxes.


(b)       PILOT Payment.


(i)          From and after the first PILOT payment period after the
first of the earlier of January 1 or July 1 to occur after the Lease Assignment
Date, PILOT shall be payable in advance, in equal semi-annual installments, on
or prior to January 1 and July 1 of each and every Lease Year. Upon the
Expiration Date or earlier termination of this Lease, Landlord shall repay or
provide an appropriate credit for any prepaid PILOT in respect of the period
after such Expiration Date or earlier termination of this Lease.


(ii)         Except as qualified by the immediately following sentence,
for so long as any portion of Landlord’s obligation to reimburse Excess Site
Acquisition Costs (Allocated) to Tenant shall remain owing and unpaid, Tenant’s
payment of PILOT shall be in the form of (x) a credit against eighty-five
percent (85%) of the PILOT then due and payable pursuant to Section 3.1 hereof, in reimbursement of the
Excess Site Acquisition Costs (Allocated) and (y) a payment of the remaining
fifteen percent (15%) as otherwise required in accordance with the provisions
of this Lease. The offset described in the immediately preceding sentence is
available to Tenant if, and only if: (A) no Event of Default has occurred and
is continuing hereunder (but such right shall be immediately reinstated, on a
prospective basis only, upon Tenant’s curing of such Event of Default); (B) the
PILOT payment required by this Section 3.1 is
made in a timely manner; and (C) notice is provided to Landlord with each
payment of PILOT setting forth the outstanding balance of the unreimbursed
Excess Site Acquisition Costs (Allocated), such notice to be substantially in
the form set forth in Exhibit H attached
hereto. If such conditions are not fulfilled, then Tenant shall pay 100% of the
PILOT then due and payable and the provisions of Section 3.04 of the Site 8 South LADA shall apply to Landlord’s
obligation to reimburse the Excess Site Acquisition Costs (Allocated).



 33
 






 



(c)       Tax Contest Proceeding.


(i)          Tenant
shall have the exclusive right (but shall be under no obligation) to seek and
agree upon reductions in the valuation of the condominium unit(s) comprising
the Demised Premises, as assessed for real property tax purposes and to prosecute
any action or proceeding in connection therewith by appropriate proceedings, in
accordance with the Charter and Administrative Code of the City of New York, as
it may be amended, including, without limitation, the right to prosecute
administrative and/or judicial proceedings and judicial review and appeal of
any decision which Tenant, in its sole discretion, considers adverse, and the
right to settle or compromise any such proceeding.


(ii)         If
Tenant institutes a tax assessment reduction or other action or proceeding
pursuant to Section 3.1(c)(i) hereof
to reduce Full Taxes, Tenant shall nevertheless continue to pay, during the
pendency of such action or proceeding, the full amount of PILOT required under Section 3.1(a) hereof for the applicable
period. If there is a final determination of any such tax reduction or other
action or proceeding in Tenant’s favor, Tenant shall offset the amount of any
PILOT paid to Landlord under Section 3.1(a) hereof
by (A) the amount by which PILOT paid by Tenant for any applicable period
exceeds the amount of Full Taxes for such period, as so reduced, and (B)
interest for the applicable period to the extent (if any) that such interest
would be payable in comparable circumstances by the applicable taxing authority
if the condominium unit(s) comprising the Demised Premises were not tax exempt,
provided that any such amount (together with such interest, if any) unrecovered
at the expiration of the term of this Lease shall be paid by Landlord to
Tenant. In the event that there is a tax protest filed by Tenant or a tax
certiorari proceeding filed by Tenant in respect of the condominium unit(s)
comprising the Demised Premises which is unresolved on the Purchase Option
Closing Date, such circumstances shall be governed by Section 5.1(c)(iv) hereof.


(iii)        Landlord
shall not be required to join in any action or proceeding referred to in this Section 3.1(c) unless the provisions of any
law, rule or regulation at the time in effect require that such action or
proceeding be joined in by or brought by and/or in the name of Landlord. If so
required, Landlord shall join and cooperate in such actions and proceedings or
permit them to be brought by Tenant in Landlord’s name to the extent necessary
to permit Tenant to effect such proceeding, in which case Tenant shall pay all
reasonable costs and expenses incurred by Landlord in connection therewith.
Such cooperation shall include, without limitation, the execution,
acknowledgment and delivery of any documents or instruments reasonably required
to prosecute, settle or compromise the action or proceeding in question,
provided that Landlord shall not be obligated to incur any liability, cost or
expense in connection therewith unless indemnified by Tenant therefor.


Section 3.2     Retail Space Percentage Rent.


(a)       Calculation of Percentage Rent.
Tenant covenants and agrees to pay to Landlord, from and after the Lease
Assignment Date and through the date that is one (1) day before the Scheduled
PILOT Conversion Date (with respect to the PA Retail Space, in respect of any
period for which the amount of PA Retail Space is equal to or greater than
5,000 square feet), Percentage Rent, determined in accordance with this Section 3.2(a). Percentage Rent for any Lease Year shall be the sum of:



 34
 






 



(i)       Twenty percent (20%) of the amount, if
any, by which the lesser of (A) Adjusted Gross Revenues for such Lease Year and
(B) the product of (1) 0.15 and (2) the PA Budgeted Retail Construction Costs
exceeds (C) the product of (1) 0.13 and (2) the PA Budgeted Retail Construction
Costs; and


(ii)      Thirty percent (30%) of the amount, if
any, by which (A) Adjusted Gross Revenues for such Lease Year exceeds (B) the
product of (1) 0.15 and (2) the PA Budgeted Retail Construction Costs; and


(iii)     the sum of:


(A)            Twenty
percent (20%) of the amount, if any, by which the lesser of (1) Roof Top Garden
Adjusted Gross Revenues for such Lease Year and (2) the product of (x) 0.15 and
(y) the Budgeted Roof Top Garden Construction Costs exceeds (3) the product of
(x) 0.13 and (y) the Budgeted Roof Top Garden Construction Costs; and


(B)             Thirty
percent (30%) of the amount, if any, by which (A) Roof Top Garden Adjusted
Gross Revenues for such Lease Year exceeds (B) the product of (1) 0.15 and (2)
the Budgeted Roof Top Garden Construction Costs; and


(iv)     the sum of:


(A)            Twenty
percent (20%) of the amount, if any, by which the lesser of (1) Lobby Sublease
Space Adjusted Gross Revenues for such Lease Year and (2) the product of (x)
0.15 and (y) the Budgeted Lobby Sublease Space Construction Costs exceeds (3)
the product of (x) 0.13 and (y) the Budgeted Lobby Sublease Space Construction
Costs; and


(B)             Thirty
percent (30%) of the amount, if any, by which (A) Lobby Sublease Space Adjusted
Gross Revenues for such Lease Year exceeds (B) the product of (1) 0.15 and (2)
the Budgeted Lobby Sublease Space Construction Costs.


It is agreed that in making the calculation set forth in this Section 3.2(a), in respect of the Lease
Year during which the Lease Assignment Date has occurred, the Adjusted Gross
Revenues, the Roof Top Garden Adjusted Gross Revenues and/or the Lobby Sublease
Space Adjusted Gross Revenues for such Lease Year shall be the Adjusted Gross
Revenues, the Roof Top Garden Adjusted Gross Revenues and/or the Lobby Sublease
Space Adjusted Gross Revenues for such entire Lease Year.


(b)        Percentage Rent Due Dates.
Percentage Rent for each Lease Year, if any, shall be paid, in arrears,
annually to Landlord no later than February 15 of each Lease Year after the
Lease Assignment Date and shall be accompanied by a Percentage Rent Report.


(c)        Percentage Rent Report. Tenant
shall deliver annually to Landlord, prior to February 15 of each subsequent
Lease Year after the Lease Assignment Date, a report (the “Percentage Rent Report”) which shall be a Verified Statement and
which shall set forth (i) in detail the amount of the Adjusted Gross Revenues,
Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space Adjusted Gross
Revenues for the applicable Lease Year on a monthly, quarterly and annual
basis, (ii) in detail the sources from which the same were derived



 35
 






 



and the deductions thereto and (iii) the calculation of Percentage
Rent, if any, for the applicable Lease Year.


(d)        Independent Calculation. The
calculation of the amount of Percentage Rent for any Lease Year shall be
independent of the calculation for any other Lease Year. The acceptance of any
Percentage Rent tendered by Tenant shall be without prejudice to Landlord’s
right to any further sums subsequently shown to be due for the same period.


(e)        Accounting Principles. All
rentals, sums or other consideration which are to be included in Adjusted Gross
Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space
Adjusted Gross Revenues shall be included based upon Accounting Principles.


(f)         Subleasing to Related Entity. No
subleasing by Tenant to a Related Entity shall affect, reduce or impair Tenant’s
Obligations hereunder to pay Percentage Rent and to deliver any Percentage Rent
Report as required hereunder and to make available books and records pursuant
to Section 3.13 hereof. Tenant
shall deliver to Landlord promptly upon the receipt or sending thereof copies
of all notices, reports and communications between Tenant and any such
Subtenant which relate to any financial or sales reports of such Subtenant with
respect to the Demised Premises, any default by Tenant or such Subtenant under
the applicable Sublease, or any other matter material to the financial or sales
performance of either Tenant or such Subtenant under the applicable Sublease. Any
failure by a Subtenant which is a Related Entity to provide to Tenant the
information necessary for Tenant to prepare a Percentage Rent Report or to make
available books and records for review pursuant to Section 3.13 hereof shall be deemed to be an Event of Default
hereunder. Tenant shall provide in each Sublease with a Tenant Related Entity
that each such Subtenant shall be subject to the provisions of this Section 3.2 with respect to the preparation
and delivery of Percentage Rent Reports and the provisions of Section 3.13 hereof with respect to making
available books and records. With respect to a Tenant Related Entity that is a
Subtenant in possession and actual use of its Demised Space, nothing in the
foregoing portions of this Section 3.2(f) shall
affect the determination of the Adjusted Gross Revenues, Roof Top Garden
Adjusted Gross Revenues and Lobby Sublease Space Adjusted Gross Revenues
derived therefrom as provided in clause (A)(9) of the definition of Adjusted
Gross Revenues, Roof Top Garden Adjusted Gross Revenues or Lobby Sublease Space
Adjusted Gross Revenues,as applicable.


Section 3.3 Sales Tax Savings;
PILOST.


(a)        [INTENTIONALLY OMITTED]


Section 3.4  Exemption from
Mortgage Recording Tax; PILOMRT.


(a)        Exemption from Mortgage Recording Tax.
Landlord shall cooperate with, and cause ESDC to make available to, Tenant an
exemption in respect of Mortgage Recording Tax permitted by reason of the
public ownership of the Property, the Demised Premises and the Common Elements
and ESDC’s participation in the development of the Improvements. Landlord shall
cooperate with Tenant in structuring Mortgages so as to take advantage of the
exemption described in this Section 3.4(a), which cooperation shall include arranging
for ESDC



 36
 






 



or an affiliate thereof to act as the original mortgagee and/or holder
thereof if required to enable Tenant to avail itself of the exemption from
Mortgage Recording Tax provided for in this Lease.


(b)        Payment in Lieu of Mortgage Recording
Tax. Prior to the recording of any Mortgage with the Office of the Register
of the City, New York County, Tenant shall make a payment of PILOMRT to
Landlord in an amount equal to, (i) to the extent a Mortgage is not an Exempted
Mortgage, an amount equal to the Mortgage Recording Tax that would have been
payable upon the recording of such Mortgage if not for the exemption provided
under Section 3.4(a) hereof and
(ii) to the extent the Mortgage is an Exempted Mortgage, the positive
difference, if any, between (A) the product of (1) 0.625 and (2) the Mortgage
Recording Tax Savings realized to date and (B) an amount equal to the Maximum
MRT Savings Amount (as defined in the IDA Project Agreement). Simultaneously
with such payment, Tenant shall deliver to Landlord a certificate from a
Qualified Certifying Officer of Tenant setting forth the maximum principal
amount that may be advanced under such Mortgage to be recorded and Tenant’s
calculation of the amount of the PILOMRT due in respect thereof. The amount of
the PILOMRT shall be determined by using the Mortgage Recording Tax rates in
effect at the time such Mortgage is recorded.


(c)        Notification of Tax Due. Tenant
shall notify Landlord within seven (7) Business Days after receipt of notice by
Tenant of a written determination by the appropriate taxing authority that any
Mortgage Recording Tax is payable by Tenant with respect to any Mortgage that
benefited from the exemption set forth in Section
3.4(a) hereof. Within twenty-three (23) Business Days after Tenant
sends to Landlord a written notification that any determination by the
appropriate taxing authority is final (a “Final
MRT Notification”) and
Tenant, in accordance therewith, has paid to such taxing authority an amount
equal to the Mortgage Recording Tax demanded (together with evidence thereof),
Landlord shall repay to Tenant the amount, if any, of such Mortgage Recording
Tax (but no more than the amount, if any, of any PILOMRT that Tenant made to
Landlord in respect of the recording of the applicable Mortgage), together with
an amount equal to any interest or penalties imposed on Tenant by the
applicable taxing authority for Tenant’s non-payment, which payment shall be
made by Landlord prior to the date which is twenty-three (23) Business Days
after the Final MRT Notification. If Landlord fails to so reimburse Tenant for
the Mortgage Recording Tax within the foregoing period, Tenant shall have the
right to offset the amount of such Mortgage Recording Tax together with
interest at the Interest Rate from the date Tenant made such Mortgage Recording
Tax against the next installments of Charges coming due pursuant to this Lease.
If as a result of the expiration or termination of this Lease other than by
reason of Tenant’s default Tenant is unable to recoup the entire Mortgage
Recording Tax with interest as aforesaid by offsetting the same against
Charges, Landlord shall reimburse Tenant for any such amount not so recouped
less any amounts due and owing from Tenant to Landlord hereunder within
twenty-three (23) Business Days of the expiration or termination of this Lease.
Neither Landlord nor Tenant shall be obligated to contest the decision of any
such authority to deny, revoke or terminate any exemptions or other relief from
the payment of such taxes. However, should either party desire to contest any
such decision by bringing a lawsuit or otherwise, it may do so at its own risk
and expense, and Landlord shall have the right to bring such lawsuit in the
name of Tenant if Tenant fails to do so within twenty-three (23) Business Days
following written request by Landlord. In the event that the contest of such
decision is successful and Landlord has paid the amount of the Mortgage
Recording Tax to Tenant, then Tenant shall, within twenty-three (23) Business
Days



 37
 






 



after
written demand by Landlord, reimburse Landlord in an amount equal to the
applicable Mortgage Recording Tax.


Section 3.5
Theater Surcharge.


(a)        Calculation of Theater Surcharge.
Tenant covenants and agrees to pay to Landlord, for the benefit of the
rehabilitation, maintenance, management and promotion of the historic theaters
within the 42nd Street
Project Area (which payment shall be forwarded by Landlord to a Theater
Management Entity) an amount equal to $0.15 per Occupied Square Foot per annum
(the “Theater Surcharge”); provided, however, that the
Theater Surcharge shall be Adjusted for Inflation from January 1, 2000.


(b)        Triggering of Theater Surcharge
Obligation. The Theater Surcharge obligation in respect to any given
Occupied Square Foot shall commence, in respect of each such Occupied Square
Foot, upon the earlier to occur of (1) the commencement of the term of the
Sublease demising such Occupied Square Foot, if any, and (2) actual occupancy
of such Occupied Square Foot for the conduct of business (such earlier date,
the “Theater Surcharge Commencement Date”). The
obligation to pay the Theater Surcharge in respect of a given Occupied Square
Foot shall continue until the earliest of (i) the expiration of the applicable
Sublease, if any (it being understood that the obligations to make payments on
account of the Theater Surcharge shall recommence when the requirements of
clause (1) and (2) above are again satisfied), (ii) the first date on which no
entity exists to exercise the functions of a Theater Management Entity and
(iii) the ninety-ninth (99th) anniversary of the Delivery Date.


(c)        Theater Surcharge Due Dates. The
aggregate Theater Surcharge for each Lease Year in respect to a given Occupied
Square Foot shall be paid, in advance, annually to Landlord (together with the
PILOT payment due pursuant to Section 3.1(c) hereof)
on or prior to January 1 of such Lease Year and shall be accompanied by a
Theater Surcharge Report (it being agreed that the Theater Surcharge in respect
of any Occupied Square Foot for which Theater Surcharge Commencement Date occurs
after January 1 shall be paid, pro rata, on the basis of the actual number of
days in such Lease Year after such Theater Surcharge Commencement Date, within
twenty (20) Business Days after the applicable Theater Surcharge Commencement
Date). If a Sublease for any Occupied Square Feet shall terminate on any date
which is prior to December 31 of any Lease Year, the Theater Surcharge for such
period shall be prorated accordingly (and, in respect of a Sublease that is
terminated unexpectedly before December 31 of any applicable Lease Year, any
Theater Surcharge paid in respect of the period after such unexpected
termination will be deemed a credit against the payment of Theater Surcharge
next due).


(d)        Theater Surcharge Report. Tenant
shall deliver to Landlord, along with the annual Theater Surcharge payment, a
report (the “Theater Surcharge Report”) which shall be a Verified Statement and
which shall set forth, together with support adequate to permit Landlord to
undertake an informed review in respect thereof, (i) in detail, the number of
Occupied Square Feet in the Demised Premises that form the basis of the Theater
Surcharge calculation, (ii) the applicable Theater Surcharge Commencement Dates
related to each Occupied Square Foot listed in clause (i) above, (iii) the
applicable Theater Surcharge factor



 38
 






 



(i.e., $0.15 in the year
2000) as Adjusted for Inflation, and (iv) the calculation of Theater Surcharge
for the applicable Lease Year.


(e)        Independent Calculation. The
calculation of the amount of Theater Surcharge for any Lease Year shall be
independent of the calculation for any other Lease Year. The acceptance of any
Theater Surcharge payment tendered by Tenant shall be without prejudice to
Landlord’s right to any further sums subsequently shown to be due for the same
period.


(f)         Subleasing to Related Entity. No
subleasing by Tenant for the actual occupancy of the demised space to a Tenant
Related Entity shall affect, reduce or impair Tenant’s Obligations hereunder to
pay Theater Surcharge (or the amount thereof) and to deliver a Theater
Surcharge Report as required hereunder.


Section 3.6  Administrative
Fee. Tenant covenants and agrees to pay Landlord, from
and after the Commencement Date, in annual payments in advance on January 10 of
each year, FIFTEEN THOUSAND DOLLARS ($15,000) per annum (the “Administrative Fee”). On every fifth (5th)
anniversary of the Delivery Date, the Administrative Fee shall be Adjusted for
Inflation in respect of the next succeeding five-year period.


Section 3.7  Prorations; Overdue
Amounts.


(a)        365/366-Day Year. All prorations
under this Article III shall be
calculated on the basis of a the actual number of days elapsed in a 365-day
year (or 366-day year, if applicable).


(b)        Prorations. Except as otherwise
provided in Section 3.7(c) hereof,
if the Expiration Date is other than the last day of a calendar month, the
installment of Charges for the period in which the Expiration Date occurs shall
be prorated on the basis of the number of days occurring within the period
commencing on the first day of the calendar month in which the Expiration Date
occurs and ending on the Expiration Date.


(c)        Overdue Amounts. Additional
Charges shall be payable by Tenant to Landlord in respect of any amounts
payable hereunder to Landlord (including, without limitation, sums advanced by
Landlord hereunder to cure a default by Tenant in the performance of Tenant’s
Obligations) which shall not have been paid on the date the same shall be due
and payable (an “Overdue Payment”) together with interest as follows: (A)
with respect to any overdue PILOT, the overdue amount shall bear interest at
the rate then generally charged by the City with respect to overdue Full Taxes,
and shall be subject to the same fines and penalties as are assessed by the
City with respect to overdue Full Taxes; provided, however, the
imposition or assessment of interest, fines and penalties for overdue PILOT
shall be subject to the notice and grace periods identical to the notice and
grace periods, if any, from time to time granted by the City with respect to
the payment of Full Taxes in respect of comparable properties and amounts; and
(B) with respect to any other overdue Charges (other than Charges incurred
pursuant to Section 14.1(b) hereof),
the overdue amount shall bear interest calculated at the Interest Rate. Such
aforesaid charges shall be due and payable within twenty (20) Business Days
after demand for payment therefor by Landlord. No failure by Landlord to insist
upon the strict performance by Tenant of Tenant’s Obligations to pay such
Overdue Payment or interest shall



 39
 






 



constitute a waiver by Landlord of its right to enforce the provisions
of this Section 3.7 in any
instance thereafter occurring. The provisions of this Section 3.7 shall not be construed in any
way to extend the grace periods or notice periods with respect to the payment
of Charges as provided in Section 14.2(a) hereof.


Section 3.8  No Joint Venture.
The fixing of a portion of the Charges to be paid by Tenant
with reference to a percentage of Adjusted Gross Revenues, the Roof Top Garden
Adjusted Gross Revenues or Lobby Sublease Space Adjusted Gross Revenues shall
not cause either party hereto to be deemed to be a partner or an associate in
business with, or responsible in any way for the business of, the other party
hereto. Landlord, in its capacity as landlord hereunder, and Tenant further
agree that they are not partners or joint venturers and that they do not stand
in any fiduciary relationship one to the other.


Section 3.9  All Charges Treated as Rent. All PILOT,
PILOMRT, Percentage Rent, Theater Surcharge, Overdue Payments, and other
charges, fees and other amounts payable by Tenant under this Lease shall
constitute Charges and, in the event of the non-payment by Tenant of any of the
same when due according to the provisions of this Lease, Landlord shall have
the same rights and remedies in respect thereof as would be available to
Landlord if Charges were rent. It is expressly agreed by the parties hereto
that no fixed rent is payable under this Lease. Moreover, no charges or other
amounts are payable pursuant to this Article
III for any period prior to the Lease Assignment Date.


Section 3.10  Payments. All
payments of Charges and other sums required to be paid hereunder to Landlord
shall be in lawful money of the United States of America and shall be paid to
the Collection Agent at the address designated therefor, or to such other
person and/or at such other place as Landlord and the City may jointly
designate from time to time in writing.


Section 3.11  Net Lease.
This Lease shall be deemed and construed to be a “triple net lease”, and Tenant
shall pay to Landlord, absolutely net throughout the term of this Lease, all
Charges and other sums payable hereunder, free of any charges, assessments,
Impositions or deductions of any kind and without abatement, deferment,
reduction, defense, counterclaim, demand, notice, deduction or set-off of any
kind, and under no circumstances or conditions, whether now existing or
hereafter arising, or whether beyond the present contemplation of the parties,
shall Landlord be expected or required to make any payment of any kind
whatsoever or be under any other obligation or liability hereunder, except as
otherwise expressly set forth herein. All costs, expenses, charges, Impositions
and other payments of every kind and nature whatsoever relating to the Demised
Premises and the Common Elements, or the use, operation or maintenance thereof,
which may arise or become due during or in respect of the term of this Lease
after the Lease Assignment Date shall be paid by Tenant, and Tenant assumes
full responsibility for the condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Demised Elements
and the Common Elements (which obligations, in the case of Tenant’s Subway
Improvements, shall be governed by the Site 8 South Subway Agreement). Under no
circumstances or conditions, whether now existing or hereafter arising, or
whether beyond the present contemplation of the parties, shall Landlord be
expected or required to make any payment of any kind whatsoever or be under any
other obligation or liability hereunder except as herein otherwise expressly
set forth.



 40














 


Section 3.12  No Offset. Except
as expressly provided for herein (including, without limitation, in Section 5.1(c)(iv) hereof), no happening,
event, occurrence or situation during the term of this Lease, whether foreseen
or unforeseen, and however extraordinary, shall permit Tenant to quit the
Demised Premises or surrender this Lease or shall relieve Tenant from Tenant’s
Obligations, or shall affect this Lease in any way, it being the intention that
the Obligations of Landlord and Tenant hereunder shall be separate and
independent covenants and agreements and that the Charges shall continue to be
payable in all events unless the Obligations to pay the same shall be
terminated pursuant to the express provisions of this Lease. Tenant covenants
and agrees that it will remain obligated under this Lease in accordance with
its terms.


Section 3.13  Books and
Records.


(a)        Right to Audit. Tenant shall
keep, or cause to be kept, true and complete books of record and accounts in
respect of matters that are required by this Lease to be reported by Tenant to
Landlord or that are monetary obligations governed by or relating to this Lease
and Tenant Obligations hereunder, including monthly records of Adjusted Gross
Revenues, Roof Top Garden Adjusted Gross Revenues and Lobby Sublease Space
Adjusted Gross Revenues and records and calculations in respect of Theater
Surcharge. Tenant shall require, pursuant to the applicable Sublease, each
Subtenant of PA Retail Space that is required pursuant to the terms of its
Sublease to pay percentage rent to Tenant, to keep true and complete books of
record and accounts in respect of such Subtenant’s business that are relevant
to such percentage rent payment, in all cases in accordance with Accounting
Principles, or if Accounting Principles are inapplicable to any expenditures,
in accordance with sound accounting principles consistently applied. Such
records shall be located or made available in New York City and shall be
maintained as aforesaid for a period of not less than six (6) years after the
end of the applicable Lease Year to which such records relate. Landlord and
Landlord’s accountants and other representatives and the Comptroller of the
City (the “Comptroller”) shall have the right from time to time to
conduct a review of Tenant’s books of record and accounts relating to the
relevant matters governed by or relating to this Lease and Tenant Obligations
hereunder (including Adjusted Gross Revenues, Roof Top Garden Adjusted Gross
Revenues and Lobby Sublease Space Adjusted Gross Revenues) and Tenant shall
cooperate with the performance of such review. Each Sublease shall provide that
Landlord and Landlord’s accountants and other representatives and the
Comptroller shall have the right from time to time to conduct a review of such
Subtenant’s books of record and accounts relating to Percentage Rent payments,
and shall require such Subtenant to cooperate with the performance of such
review. All such reviews shall occur during regular business hours and upon not
less than three (3) days’ prior written notice. The cost of such review shall
be borne solely by Landlord, except that if the results of such review
determine that Tenant (or any such Subtenant, as applicable), whether or not
inadvertently, has understated the Percentage Rent, payable to Landlord (or
percentage rent payments payable to Tenant, as applicable) by more than five
percent (5%) of what is owed, then Tenant (or such Subtenant in the case of
such percentage rent payments) shall pay or shall reimburse Landlord on demand
for payment of the reasonable costs and expenses involved in such review.


(b)        Incorrect Payments of Charges.
Should any audit performed by Landlord, Landlord’s agent or designee disclose
that Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues, or Lobby
Sublease Space Adjusted Gross Revenues were understated or that



 41
 






 



Tenant otherwise provided information that led to an underpayment of
(or on account of) Charges, then any underpayments shall be paid to Landlord
(i) within five (5) days after Tenant has received notice of such underpayment
from Landlord, but such payment shall be without prejudice to Tenant’s right to
dispute any such notice of underpayment or (ii) at Tenant’s option, within five
(5) days after resolution of any dispute as to any such underpayment. Any
underpayment under this Section 3.13(b) shall
bear interest at the Interest Rate from the date on which the payment first
should have been made to the date such underpayment is paid. Any overpayment of
Charges, after the resolution of any dispute with respect thereto (together
with interest at the Interest Rate from the date of overpayment to the date
such overpayment is credited or refunded), shall be credited against the next
installment(s) of Charges, provided that any amount unrecovered at the
Expiration Date shall be paid by Landlord to Tenant or if Tenant exercises its
option under Article V hereof of
this Lease, shall be allowed as a credit against the Purchase Price. If the sum
of such credit and any other credits against the Purchase Price exceeds the
Purchase Price, then Landlord shall pay Tenant on the Purchase Option Closing
Date the amount by which the aggregate of all credits against the Purchase
Price exceeds the Purchase Price. Any dispute as to any payment of charges or
the calculation thereof shall be resolved pursuant to arbitration as provided
in Section 16.2 hereof.


(c)        Right to Prepare Statements. If
Tenant shall fail to deliver to Landlord any report or Verified Statement
required by this Article III on or
prior to the due date thereof, in addition to any other rights or remedies
Landlord may have under this Lease and without thereby waiving such default by
Tenant, Landlord shall be entitled, after fifteen (15) Business Days’ prior
notice to Tenant if Tenant shall have not cured such default within such
period, at Tenant’s expense, to have such report or Verified Statement prepared
by a certified public accountant selected by Landlord. Landlord and such
certified public accountant shall have the right to review Tenant’s relevant
books and records with respect to the Property relating to the relevant overdue
report or Verified Statement on demand and to make such copies thereof as
either shall reasonably require. All fees and expenses incurred in the
preparation of any such overdue Verified Statement or report shall be payable
by Tenant on demand as additional Charges hereunder.


(d)        Copies of Reports. Tenant shall
deliver to Landlord (i) promptly upon the receipt or sending thereof copies of
notices of default given or received by Tenant with respect to any Sublease of
any portion of the PA Retail Space and (ii) upon request by Landlord, copies of
reports received or given by Tenant from or to any Subtenant which relate to
(1) any financial or sales reports of such Subtenant or (2) to any other
components of Adjusted Gross Revenues, Roof Top Garden Adjusted Gross Revenues
or Lobby Sublease Space Adjusted Gross Revenues.


(e)        Landlord and Tenant Contests. Any
statement prepared by or on behalf of Landlord pursuant to Section 3.13(c) hereof or the results of
any audit conducted by or on behalf of Landlord pursuant to Section 3.13(a) hereof shall be conclusive
and binding upon Tenant unless Tenant notifies Landlord within one hundred
eighty (180) days after receipt thereof that it disputes the correctness of
such statement or results, which notice shall specify the particular respects
in which the same is claimed to be incorrect, and Tenant pays the amount in
dispute in accordance with such statement or results, without prejudice to Tenant’s
position. If Landlord and Tenant are unable to resolve such dispute within
twenty (20) Business Days after receipt of



 42
 






 



Tenant’s notice, the dispute shall be submitted to arbitration for
resolution pursuant to Section 16.2
hereof.


Section 3.14  Illegality.
If any Charges shall be or become uncollectible, reduced or required to be
refunded because of any rent control or similar act or law enacted by a
Governmental Authority, Tenant shall enter into such agreement(s) and take such
other steps as Landlord may reasonably request and as may be legally
permissible to permit Landlord to collect the maximum amounts which from time
to time during the continuance of such rent controls may be legally permissible
(and not in excess of the amounts reserved therefor under this Lease). Upon the
termination of such rent controls or similar act or law, (a) the Charges in
question 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, up to the maximum extent legally permissible, an amount
equal to (i) the amount of any Charges in question which would have been paid
pursuant to this Lease but for such rent controls minus (ii) the amounts with
respect to any such Charges paid by Tenant during the period such rent controls
were in effect.


Section 3.15  Administrative
Code Section 11-208.1. For as long as 42DP or the City is
Landlord and to the extent that the Administrative Code of The City of New York
Section 11-208.1 (or successor thereto) is then in force and effect, Tenant
shall submit income and expense statements of the type required by such code
section (or successor thereto) as if Tenant were the “owner” of the Leased Unit
as such terms are used in said Section 11-208.1, such statements to be
submitted within the time periods and to the address provided for in said
Section 11-208.1, and shall submit the same notwithstanding that 42DP or the
City holds fee title to the Property, that the Property may therefore not be
“income-producing property” as that concept is used in Section 11-208.01, or
that PILOT rather than real estate taxes are being paid with respect to the
Property.


Section 3.16  Survival. Tenant’s
and Landlord’s Obligations and rights under this Article III in respect of Charges that shall have accrued
prior to the expiration or earlier termination of this Lease, including
Tenant’s Obligations to maintain and make available books and records with
respect thereto, shall survive the expiration or earlier termination of this
Lease.


Section 3.17  Existing
Violations. From and after the Lease Assignment Date,
Landlord shall pay or otherwise remove all fines, penalties and other monetary
charges imposed by reason of the Existing Violations (it being acknowledged
that, prior to the Lease Assignment Date, 42DP is obligated to perform the
foregoing obligations pursuant to the Initial Ground Lease).


Section 3.18  End of NYTC
Benefits. In the event that NYTC or a Related Entity of
NYTC no longer is the owner of an interest in Tenant, then all rights and
benefits accruing specifically to NYTC under this Article III shall be deemed null and void and of no further
force and effect as of the date of such Transfer.



 43
 






 



ARTICLE IV 

IMPOSITIONS


Section 4.1  Impositions.


(a)        Payment. Subject to Section 4.1(b) and 4.1(c) hereof, Tenant shall pay or shall
cause to be paid, as and when the same become due, all Impositions under this
Lease attributable to the period from and after the first day of the applicable
fiscal year after the Lease Assignment Date.


(b)        Apportionments. All Impositions
for the fiscal year or tax year in which the first day of the applicable fiscal
year after the Lease Assignment Date occurs or the term of this Lease expires
shall be apportioned; provided, however, that if there shall be a
Default or Event of Default hereunder, Tenant shall not be entitled to receive
any credit due to Tenant on account of any such apportionment until such
Default or Event of Default has been cured.


(c)        Installments. Where any
Imposition is permitted by Legal Requirements to be paid in installments,
Tenant may pay such Imposition in installments as and when each such
installment becomes due.


Section 4.2  Payment.


(a)        Obligation to Pay. Tenant shall
pay all Impositions directly to the appropriate Governmental Authority or other
Person entitled to receive the same and shall pay such Impositions before any
fine, penalty, interest or other cost shall become due or be imposed by
operation of law.


(b)        Evidence of Payment. At Landlord’s
request, Tenant shall furnish Landlord, within twenty-five (25) Business Days
after the date when an Imposition is required to be paid hereunder, (i) a copy
of any bill received by Tenant relating to such Imposition and (ii) copies of
cancelled checks or official receipts of the appropriate taxing authority or
other proof reasonably satisfactory to Landlord evidencing the payment thereof.


Section
4.3  Right to Contest. (a)  Tenant may, if it shall so desire, protest or
contest the validity or amount of any Imposition, in whole or in part, without
paying at the time of such protest or contest such Imposition; provided,
however, that if Tenant has not elected to pay such Imposition:


(i)          the
same is done by Tenant upon prior written notice to Landlord, at Tenant’s sole
cost and expense and with due diligence and continuity so as to resolve such
protest or contest promptly;


(ii)         neither
the Demised Premises nor the Common Elements, nor any part thereof is or will
be in imminent danger of being forfeited or lost by reason of such protest or
contest;



 44
 






 



(iii)        Tenant
shall either bond such Imposition or deposit with Landlord, or provide Landlord
with, security in an amount and in form and substance reasonably satisfactory
to Landlord (it being agreed that an acceptable guaranty of an Acceptable
Guarantor shall be security reasonably satisfactory to Landlord under this Section 4.3(a)(iii)) for application toward
the cost of curing or removing the same from record and to secure Landlord
against any loss or damage arising out of such protest or contest or the
deferral of Tenant’s performance or compliance;


(iv)       if an
in rem action with respect to the non-payment of such Imposition has been
commenced or any writ or order is issued under which the Demised Premises
and/or the Common Elements, or any part thereof, may be sold or forfeited,
Tenant shall thereafter diligently proceed to cure or remove the same from
record or take such other actions in lieu thereof as are legally permissible to
toll or enjoin any such action, sale or forfeiture;


(v)        such
protest or contest shall not subject Landlord to prosecution for a criminal
offense or a claim for civil liability (it being agreed that assessment of the
Imposition, together with interest and penalties thereon, shall not be deemed
civil liability for the purpose of this clause);


(vi)       Tenant
agrees in writing to indemnify Landlord from and against any and all Claims
upon or arising out of such protest or contest; and


(vii)      no
Event of Default shall have occurred and be continuing.


(b)        If Tenant receives any notice that
Tenant or the Demised Premises and/or the Common Elements, or any part thereof,
is in default under or is not in compliance with any of the foregoing Sections 4.3(a)(i) through 4.3(a)(vii) hereof, or notice of any proceeding
initiated under or with respect to any of the foregoing Sections 4.3(a)(i) through 4.3(a)(vii) hereof, Tenant will promptly
furnish a copy of such notice to Landlord. Nothing herein contained, however,
shall be so construed as to allow such Imposition to remain unpaid for such
length of time as shall permit the Demised Premises and/or the Common Elements,
or any part thereof, to be sold by any Governmental Authority for the
non-payment of the same, and, if at any time in the judgment of Landlord, reasonably
exercised, it shall become necessary or proper to do so, Landlord, after not
less than twenty (20) Business Days’ written notice to Tenant (unless such sale
is scheduled prior to the expiration of any shorter period), may pay or apply
the moneys deposited in accordance with this Section
4.3 or so much thereof as may be required to the payment of the
challenged Imposition to prevent the sale of the Demised Premises and/or the
Common Elements or any part thereof. If the amount so deposited as aforesaid
shall exceed the amount required to satisfy the challenged Imposition as
finally fixed and determined, the excess (or the entire amount if no such
payment is required) shall be paid to Tenant, or in case there shall be any
deficiency, the amount of such deficiency shall be forthwith paid by Tenant.
Promptly following resolution of the contest and payment by Tenant of any
amounts due, Landlord shall refund to Tenant any monies so deposited and not
applied to payment of the Imposition. Any moneys so deposited shall be held in
an interest-bearing account at a Lending Institution, and any interest earned
thereon, shall be refunded, applied or paid in the same



 45
 






 



manner as the amount deposited is refunded,
applied or paid in accordance with the immediately preceding two (2) sentences.


(c)        Landlord shall not be required to join
in any action or proceeding referred to in this Section 4.3 unless required by any Legal Requirement in order
to make such action or proceeding effective, in which event any such action or
proceeding may be pursued by Tenant (upon prior written notice to Landlord) in
the name of, but without expense to, Landlord. Tenant hereby agrees to
indemnify Landlord from and against any and all Claims incurred or suffered by
Landlord in its proprietary capacity and arising out of any such action or
proceeding. The provisions of this Section
4.3(c) shall survive the expiration or earlier termination of this
Lease.



 46
 






 



ARTICLE
V

PURCHASE OPTION


Section 5.1  Purchase Option.


(a)        Tenant’s Exercise of Purchase Option.
After the Scheduled PILOT Conversion Date or as otherwise expressly permitted
under this Lease, Tenant, simultaneously with the tenants under all other
Severance Subleases, shall have the right, which right shall be exercised by
notice to Landlord (the “Purchase Option
Notice”), to purchase (or have a designee purchase) all of the
interest of 42DP (if any) and the City in the portion of the Land and the
Improvements comprising the Demised Premises, and the undivided interest in the
Common Elements associated therewith (the “Purchase
Option”) on a date identified in the Purchase Option Notice and
being no less than ninety (90) days after the date of the Purchase Option
Notice (such date, the “Purchase Option
Closing Date”) and on the terms and conditions set forth in this Article V. The Purchase Option Notice may
be delivered prior to the Scheduled PILOT Conversion Date so long as the
Purchase Option Closing Date set forth therein occurs on or subsequent to the
Scheduled PILOT Conversion Date. In the event that the right of any tenant
under a Severance Sublease to exercise the purchase option provided under such
Severance Sublease is accelerated pursuant to Section 11.1(g) of such Severance
Sublease, Tenant’s right to exercise the Purchase Option hereunder shall
automatically be so accelerated.


(b)        Purchase Option Closing Date. The
closing of Tenant’s purchase pursuant to the Purchase Option shall take place
on the Purchase Option Closing Date. Tenant may adjourn the Purchase Option
Closing Date, on up to two (2) occasions, so long as Tenant notifies Landlord
of each such adjournment at least five (5) Business Days prior to any
applicable scheduled Purchase Option Closing Date; provided, however,
that Tenant may adjourn the Purchase Option Closing Date on additional
occasions so long as Tenant pays all of Landlord’s costs incurred on account of
such adjournment.


(c)        Conditions to Closing. Closing of
the transfer of fee title to the portion of the Land and the Improvements
comprising the Demised Premises, and the undivided interest in the Common
Elements associated therewith, pursuant to the Purchase Option shall be
conditioned on the following:


(i)          The
Purchase Price shall be paid to Landlord on the Purchase Option Closing Date.


(ii)         Appropriate
adjustments of all Charges, apportioned as of the Purchase Option Closing Date,
shall be made between Tenant and Landlord on the Purchase Option Closing Date.


(iii)        If,
on the Purchase Option Closing Date, there shall be any dispute between
Landlord and Tenant as to any Charges then due and payable, the closing shall
proceed as scheduled and Tenant shall (A) pay to Landlord, on the Purchase
Option Closing Date, the undisputed portion of the balance of the Charges
apportioned as of the Purchase Option Closing Date and (B) deposit with the
Depositary cash or cash-equivalents (e.g., an unconditional,



 47
 






 



irrevocable letter of credit, U.S. Government Securities in bearer form
and/or certificates of deposit issued by Lending Institutions in bearer form)
in an amount equal to, and as security for, the disputed Charges (together with
an amount equal to the reasonably estimated interest at the Interest Rate to
accrue thereon for a two-year period); provided, however, if the
amount in dispute is equal to or less than $50,000, Landlord will accept a
guaranty of NYTC for the total amount in dispute to be adequate security for
the purposes of clause (B) above. At such time as the dispute is resolved, the
additional amount, if any, still owing shall be paid to Landlord (with interest
at the Interest Rate). Upon such payment, any excess security (and any interest
earned thereon) shall be refunded or returned to Tenant. Tenant’s and
Landlord’s obligations to make any payment pursuant to this Section 5.1(c)(iii) with respect to Charges
shall survive the termination of this Lease.


(iv)       If, on
the Purchase Option Closing Date, there shall be an unresolved tax contest
initiated by Tenant pursuant to Section
3.1(c) hereof in respect of the Demised Premises and its undivided
interest in the Common Elements, Tenant shall nevertheless pay the full amount
of PILOT then due on the Purchase Option Closing Date for the applicable
period. Landlord will deposit any disputed portion of such PILOT with the
Depositary, as escrowee for such funds pursuant to an escrow agreement entered
into by Landlord, Tenant and Depositary on the Purchase Option Closing Date. It
is agreed that such escrowed funds shall be distributed in accordance with the
results of the tax contest. Upon receiving joint instructions from Landlord and
Tenant as to the disposition of such escrowed funds pursuant to the preceding
sentence, Landlord and Tenant shall instruct Depositary to immediately so
disburse the escrowed funds.


(v)        Landlord
shall not be obligated to convey any portion of the Property to Tenant or to
any other tenant under a Severance Sublease, until Tenant or another tenant
under a Severance Sublease, in addition to all other sums due on the Purchase
Option Closing Date, pays to Landlord in full all Charges due and not disputed
pursuant to Sections 5.1(c)(iii)
and 5.1(c)(iv) hereof as of the
Purchase Option Closing Date.


(vi)       Tenant
shall provide to Landlord (A) a certificate of Tenant, which shall be certified
by a Qualified Certifying Party, stating that, as of the Purchase Option
Closing Date, Tenant is fully familiar with the Demised Premises and the Common
Elements, the condition thereof and the Permitted Encumbrances, and Tenant
accepts title to same in their “AS IS” condition without any representation or
warranty, express or implied, in fact or by law, of Landlord, NYCEDC, ESDC or
the City as to the title thereto, the nature, condition or viability thereof,
or the use or uses to which the Demised Premises and the Common Elements or any
part thereof may be put, (B) an agreement, in a form reasonably satisfactory to
Landlord, providing for the survival of any of Tenant’s Obligations expressly
stated herein to survive this Lease and (C) all other documentation customarily
entered into in the connection with the full and complete transfer of interest
in property in New York City.


(vii)      Landlord
shall not be obligated to convey any portion of the Property to Tenant unless,
on the Purchase Option Closing Date, Landlord is obligated to convey its
interest in the balance of the Property under all of the other Severance
Subleases. It is expressly agreed that a default by Landlord in its obligations
relating to the conveyance of title to any portion of the Property pursuant to
the exercise of the Purchase Option under any Severance



 48
 






 



Sublease shall be deemed a default by Landlord with respect to such
obligations under all of the Severance Subleases.


(d)        Condition of Title. On the
Purchase Option Closing Date, fee simple title in and to the applicable portion
of the Land and the Improvements comprising the Demised Premises (under each
Severance Sublease), and the undivided interest in the Common Elements
associated therewith shall be conveyed to each applicable tenant under the
Severance Subleases, or the designee(s) of such tenant (collectively, “Purchaser”), in either case subject only to the Ground Lease, any
Subleases, the Severance Subleases, the Permitted Encumbrances, and all matters
and encumbrances affecting title to which this Lease is subject resulting from
a Person claiming by, through or under such tenant under the Severance
Sublease.


(e)        Deed. On the Purchase Option
Closing Date, 42DP and/or the City, as applicable, shall deliver to the
Purchaser (i) bargain and sale deeds without covenant against grantor’s acts,
in proper statutory short form for recording, duly executed and acknowledged,
in order to convey the title to each portion of the Land and the Improvements
comprising the Demised Premises (under each Severance Sublease), and the
undivided interest in the Common Elements associated therewith in accordance
with the provisions of Section 5.1(d)
hereof, (ii) an executed counterpart of an agreement the sole purpose of which
is the termination of the Ground Lease, and (iii) such other reasonable and
customary documents that a reputable title insurance company licensed to do
business in the State of New York may request in order to convey title in the
condition provided for in Section 5.1(d)
hereof.


(f)         Tax Returns. On the Purchase
Option Closing Date, each of the parties shall duly execute and, if applicable,
acknowledge any and all transfer tax returns required in connection with the
delivery and/or recording of the deed or deeds described in Section 5.1(e) hereof which shall reflect
the Purchase Price. All taxes imposed pursuant to such returns, whether payable
by Landlord and/or the Purchaser under applicable law, shall be paid by the
Purchaser, who shall also pay the documentary stamps, if any, to be affixed to
the deed or deeds. The tax returns and the amount of such taxes and documentary
stamps shall be delivered to the purchaser’s title insurer on the Purchase
Option Closing Date for delivery to the appropriate Governmental Authorities
(or delivered directly to a reputable title insurance company for delivery to
the appropriate Governmental Authorities in the event that the Purchaser does
not have a title insurer).


(g)        Tenant’s Liabilities. If, after
giving the Purchase Option Notice, the Purchaser, whether by reason of its acts
or omissions or the acts or omissions of any other tenant under a Severance
Sublease, fails to purchase the portion of the Land and the Improvements
comprising the Demised Premises (under each Severance Sublease), and the
undivided interest in the Common Elements associated therewith, Tenant shall reimburse
(or cause the Purchaser to reimburse) the Public Parties, within seven (7)
Business Days of a request therefor, for all expenses incurred by the Public
Parties in connection with, and in contemplation of, the failed exercise of the
Purchase Option.


Section 5.2  Casualty to, or
Condemnation of, the Property. If all or any portion of
the Improvements are damaged or destroyed by Casualty, or if condemnation



 49
 






 



proceedings referred to in the provisions of Section 12.1 hereof are instituted, and if Tenant theretofor
has exercised the Purchase Option in accordance with the provisions of this
Lease:


(a)        Landlord shall assign to the Purchaser,
on the Purchase Option Closing Date, all of Landlord’s interest in and to so
much of the insurance proceeds or condemnation award, as the case may be, as
has not been paid to Depositary; and


(b)        Depositary shall pay on the Purchase
Option Closing Date the Restoration Funds (i) first, to itself and Landlord, to
the extent, if any, of the necessary and proper expenses (including, without
limitation, reasonable attorneys’ fees and disbursements) incurred by
Depositary and Landlord in the collection of such Restoration Funds as of the
Purchase Option Closing Date, and (ii) the balance to the Purchaser. Landlord
shall recognize any assignment to a Recognized Mortgagee of the balance of such
Restoration Funds.


Section 5.3  Termination of
Right to Purchase. If condemnation proceedings referred
to in Section 12.1(a) hereof
commence after the Purchase Option Notice is given and before the Purchase
Option Closing Date, Tenant may either (a) withdraw such notice, in which event
the parties shall have no further rights or obligations under this Article V, or (b) proceed with such
purchase without abatement of the Purchase Price on account of such
condemnation proceeding, in which event (i) such proceedings shall not be an
objection to title and (ii) if the title to the Property and the applicable
leasehold estates shall have vested in the condemnor prior to the Purchase
Option Closing Date, Landlord shall not be required to deliver a deed (except
as to any portion of the Property not taken in such condemnation), but only an
assignment on the Purchase Option Closing Date of the award in such proceeding,
in form and substance reasonably satisfactory to Tenant.



 50














 


ARTICLE VI

CONSTRUCTION OF THE PROJECT


Section 6.1
Construction of the Project. [INTENTIONALLY OMITTED]


Section 6.2
Plans and Specifications. [INTENTIONALLY OMITTED]


Section 6.3
Performance of Construction Work. [INTENTIONALLY OMITTED]


Section 6.4
Use of Plans and Specifications. [INTENTIONALLY OMITTED]


Section 6.5 Conditions
Precedent to Commencement of Demolition, Asbestos Removal and Lead Abatement. [INTENTIONALLY OMITTED]


Section 6.6
Construction of Tenant’s Subway Improvements. [INTENTIONALLY OMITTED]


Section 6.7
Permanent Certificate of Occupancy. [INTENTIONALLY OMITTED]


Section 6.8
Construction Agreements. [INTENTIONALLY OMITTED]


Section 6.9
Construction Sign. [INTENTIONALLY OMITTED]


Section
6.10 Project Area. [INTENTIONALLY OMITTED]


Section
6.11 Title to Materials. [INTENTIONALLY OMITTED]


Section
6.12 Nonadverse Structural Effect. [INTENTIONALLY OMITTED]


Section
6.13 Arbitration.
[INTENTIONALLY OMITTED]



 51
 






 



ARTICLE
VII

USE AND MAINTENANCE OF THE PROPERTY


Section 7.1 Permitted Use.


(a)        Use. The Demised Premises and the
Common Elements shall be used, maintained, occupied and operated (i) in
accordance with the requirements of the DUO, (ii) at a standard of at least
that of a Class “A” office building (as understood on the date hereof) in
midtown Manhattan, and (iii) subject to the DUO and except as hereinafter set
forth, for any use permitted by Legal Requirements, including, without
limitation, offices, newsrooms, retail, service, auditoriums, dining
facilities, communications facilities, production facilities, ancillary medical
facilities, parking for not more than ten (10) cars, back office, storage and
other uses as are incidental or ancillary thereto, in accordance with the
certificate(s) of occupancy therefor, and for no use or purpose inconsistent with
the DUO or the operation of a Class “A” office building (as understood on the
date hereof) in midtown Manhattan (the uses described in clauses (i), (ii) and
(iii) above, the “Permitted Use”),
and for no other use. Tenant agrees not to use, permit or suffer the Demised
Premises or the Common Elements to be used for any purposes not expressly
permitted under this Section 7.1(a)
without the prior written consent of Landlord.


(b)        Display and Signage. All signage
to be incorporated into the design of the Demised Premises and the Common
Elements, and all lighting to be installed in connection therewith shall comply
with the specific requirements of the DUO; provided, however,
that Tenant shall not be responsible for signage and lighting relating to any
Retail Space other than any Retail Space associated with the Public Amenity.
Tenant shall install and operate, or cause to be installed and operated, lights
and signs as required by the DUO by the date(s) prescribed in the DUO
applicable to each category of lighting and signage set forth in the DUO.


(c)        Common Elements. Subject to the
immediately following sentence, the Common Elements shall not be used for any
commercial purposes. The Common Elements Leaseable Space may be used for
commercial purposes, but only in accordance with, and as contemplated by, Section 34.1 hereof.


(d)        Compliance with the DUO. From and
after the Substantial Completion Date, Tenant shall maintain and operate the
Demised Premises and the Common Elements in compliance with the DUO.


Section 7.2 Restrictions on
Use. Tenant shall not use, occupy, maintain or operate
the Demised Premises and the Common Elements, nor permit the same to be used,
occupied, maintained or operated, nor do or permit anything to be done in, on
or to the Demised Premises and the Common Elements, in whole or in part, in a
manner which would in any way:


(a)        violate any construction permit or
certificate of occupancy affecting the Property;


(b)        constitute a public nuisance;



 52
 






 



(c)        violate any Legal Requirements or
Insurance Requirements; or


(d)        violate any requirements of the DUO.


Section 7.3  Interim and
Long-Term Maintenance Obligations.


(a)        Interim Maintenance Obligations.
[INTENTIONALLY OMITTED]


(b)        Maintenance During Demolition Work
and Tenant’s Construction Work. [INTENTIONALLY OMITTED]


(c)        Maintenance Obligations. (i) At
all times during the term of this Lease. Tenant shall (and/or shall cause each
Subtenant (by incorporating the following provisions in every Sublease and
using all reasonable efforts to enforce the same) to):


(A)         not cause any waste to or upon the
Demised Premises or the Common Elements or any part thereof, nor permit or
suffer any waste to or upon the Demised Premises or the Common Elements;


(B)         not cause physical damage (other than
as part of any Alteration permitted hereunder or as caused by a Casualty or
Taking) to the Demised Premises or the Common Elements or any part thereof;


(C)         take good care of the Demised Premises
and the Common Elements, make all repairs, restorations and replacements
thereto, interior and exterior, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, necessary to (1) comply with all Legal
Requirements, Insurance Requirements and the DUO and (2) maintain and operate
the Demised Premises and the Common Elements to a standard at least of that of
{first class retail space in} a Class “A” office building (as understood on the
date hereof) in midtown Manhattan;


(D)         maintain, repair, keep, use and occupy
the Demised Premises and the Common Elements in compliance with the DUO;


(E)          maintain and keep the Demised Premises
and the Common Elements, and sidewalks and curbs adjacent thereto, free and
clear from rubbish, dirt, ice and snow and shall not impede the use of or
obstruct the same or allow the same to be so impeded or obstructed in any
manner;


(F)          maintain and keep the sidewalks and
vaults adjacent to the Improvements in good order, repair and condition
(including the prompt repair of cracks therein and the maintenance of an even
level thereof) and at all times keep the same in compliance with the DUO and
Legal Requirements;


(G)         [INTENTIONALLY OMITTED];


(H)         operate and maintain the Public Amenity
as set forth in the DUO and in Section 30.4
hereof;



 53
 






 



(I)           prohibit sales through window
openings on the streetwall, except in the case of (1) a Subtenant whose
business is primarily the operation of a newsstand or ticket sales or (2) the
sale of tickets for movies and other attractions, i.e., display windows shall
be used for display only and not as a point of sale; and


(J)          keep the Demised Premises and the
Common Elements free of graffiti and posters.


(ii)     If Tenant fails to maintain the cleanliness
of the sidewalks adjacent to the Improvements at least to the level of
cleanliness maintained for the overall area of the Times Square BID, as
determined by the Mayor’s Office of Operations Sanitation Scorecard for as long
as the same exists, or fails to promptly remove from the Demised Premises or
the Common Elements evidence of graffiti and such failure continues for five (5)
Business Days after notice to Tenant specifying in reasonable detail such
failure and setting forth Landlord’s right to remove same on Tenant’s behalf,
Landlord shall, at the end of such five (5) Business Day period, be entitled to
clean such sidewalks or remove such graffiti or cause the same to be cleaned or
removed, as the case may be, at the expense of Tenant. Any and all costs
incurred by Landlord in connection therewith shall be paid to Landlord’s
contractors or reimbursed to Landlord, as Landlord shall request, and shall
accrue interest at the Interest Rate, in accordance with Section 15.1 hereof.


Section 7.4  Compliance with
Legal Requirements. Tenant shall promptly comply with all
Legal Requirements and Insurance Requirements, foreseen or unforeseen, ordinary
as well as extraordinary, structural or non-structural, with respect to the
Demised Premises and the Common Elements. Tenant shall have the right to
contest the validity of any Legal Requirement or the application thereof in
accordance with this Section 7.4.
During such contest, compliance with any such contested Legal Requirement may
be deferred by Tenant upon condition that before instituting any such
proceedings, Tenant shall furnish to Landlord security reasonably satisfactory
to Landlord (it being agreed that an acceptable guaranty of an Acceptable
Guarantor shall be security reasonably satisfactory to Landlord under this Section 7.4), securing compliance with the
contested Legal Requirement and payment of all interest, penalties, fines, fees
and expenses in connection therewith. Any such proceeding instituted by Tenant
shall be commenced as soon as is reasonably possible after the issuance of any
notification by the applicable governmental authority with respect to required
compliance with such Legal Requirement and shall be prosecuted to final
adjudication with reasonable diligence. Tenant hereby agrees to indemnify
Landlord from and against any and all Claims arising out of such proceeding.
Notwithstanding the foregoing, Tenant promptly shall comply with any such Legal
Requirement and compliance shall not be deferred if at any time there is a
condition imminently hazardous to human life or health, the Property, or any
part thereof, shall be in danger of being forfeited or lost, or if Landlord
shall be in danger of being subject to criminal and/or civil liability or
penalty (other than a fine which Tenant agrees to pay or in regard to which
Tenant provides to Landlord an indemnity of Landlord by an Acceptable
Guarantor) by reason of noncompliance therewith. The Obligations of Tenant to
indemnify Landlord under this Section 7.4
shall survive the expiration or earlier termination of this Lease.


Section 7.5  No Waste.
Tenant will not do, permit or suffer any waste to or upon the Demised Premises
or the Common Elements or any part thereof. Tenant shall have the right



 54
 






 



at any time and from time to time to sell or dispose of any Equipment,
subject to this Lease, which may have become obsolete or unfit for use or which
is no longer useful, necessary or economical in the operation of the Demised
Premises or the Common Elements; provided, however, that Tenant
shall have substituted or shall promptly substitute for the property so removed
from the Demised Premises or the Common Elements other Equipment not
necessarily of the same character but at least of equal quality in the
performance of the particular function in question as that of the property so
removed unless, in Tenant’s reasonable opinion as set forth in a written notice
to Landlord, the property so removed was performing an obsolete function or a
function no longer required in connection with the then current use of the
Demised Premises or the Common Elements and replacement thereof is not
necessary or appropriate to maintain, without impairment, the operation or
character of the Demised Premises or the Common Elements, their use and
occupancy by Subtenants or their overall value.


Section 7.6  Right of Entry.
Landlord (and its designee(s)) shall have the right to enter upon the Demised
Premises and the Common Elements, or any part thereof, at any time during the
term hereof, for the purpose of ascertaining the condition of the Demised
Premises and/or the Common Elements or whether Tenant or any Subtenant is
observing and performing their respective obligations hereunder, all without
hindrance or molestation from Tenant or any Person claiming by, through or
under Tenant. The above mentioned rights of entry shall be exercisable (other
than in the case of an emergency) at reasonable times, at reasonable hours and
on reasonable, prior written notice, and Landlord shall use reasonable efforts
to minimize interference with Tenant and any Subtenants, and shall exercise
such right under the supervision of Tenant’s (and any such Subtenant’s)
employees, agents or designees provided the same are made reasonably available
to Landlord for such purpose upon reasonable advance notice to Tenant and any
such Subtenant (as applicable).


Section 7.7  Utilities;
Services; No Landlord Responsibility. Tenant shall be
responsible for all charges for gas, electricity, light, heat, water, sewerage
and power, for protective and security services, for telephone and other
communication services, and for all other public or private utility services
which shall be used, rendered or supplied upon or in connection with the
Demised Premises or the Common Elements, or any part thereof, at any time
during the term of this Lease. Landlord shall not be required to furnish any
services, utilities or facilities whatsoever to the Demised Premises or the
Common Elements, nor shall Landlord have any duty or obligation to make any
Alteration or repair to the Demised Premises or the Common Elements. Tenant
assumes the full and sole responsibility for the condition, operation, repair,
alteration, improvement, replacement, maintenance and management of the Demised
Premises and the Common Elements.


Section 7.8  Environmental.
Tenant shall not undertake, permit or suffer any Environmental Activity in the
Demised Premises or the Common Elements other than (a) in compliance with all
applicable Insurance Requirements and Legal Requirements and (b) in such a
manner as shall keep the Property free from any lien imposed in respect or as a
consequence of such Environmental Activity. Tenant shall take all necessary
steps to ensure that any permitted Environmental Activity undertaken or
permitted in the Demised Premises or the Common Elements is undertaken in a
manner as to provide prudent safeguards against potential risks to human health
or the environment or to the Demised Premises or the Common Elements. Tenant
shall notify Landlord within twenty-four (24) hours after Tenant becomes aware
of the release or



 55
 






 



discharge of any Hazardous Materials from or at the Demised Premises or
the Common Elements and Tenant shall forthwith remediate or remove such
Hazardous Materials, subject to the last sentence of this Section 7.8. Landlord shall have the right
from time to time to conduct an environmental audit of the Demised Premises
and/or the Common Elements, provided Landlord has reasonable cause to
believe (i) Hazardous Materials have been released or discharged or is
otherwise present at the Demised Premises or the Common Elements or (ii) Tenant
is otherwise in violation of any Legal Requirement or Insurance Requirement
relating to Hazardous Materials, and Landlord provides written notice of its
intention to conduct an environmental audit together with a statement setting
forth the reasons therefor. Tenant shall cooperate in the conduct of such
environmental audit. The cost of such audit shall be payable by Tenant upon
Landlord’s demand therefor; provided, however, that if Tenant
objects to such audit by written notice received by Landlord prior to the
initiation of such audit and such audit (and any more-detailed environmental
audit of the same circumstances (e.g., a so-called phase II environmental
assessment)) fails to identify any Environmental Activity in violation of Legal
Requirements, Landlord shall pay the costs of such audit. Such audit shall be
performed at reasonable times, at reasonable hours and on at least five (5)
Business Days notice (except in the case of an emergency), Landlord shall make
reasonable efforts to minimize interference with Tenant and any Subtenants, and
shall require its audit contractor to carry commercial liability insurance in a
commercially reasonable amount, naming Tenant and Landlord as additional
insureds, and to deliver Tenant evidence thereof no less than five (5) Business
Days prior to commencing such audit. Notwithstanding anything to the contrary
in the foregoing portions of this Section 7.8:
(A) nothing contained in this Section 7.8 shall
require Tenant to remove or remediate any Hazardous Waste unless required to do
so by Legal Requirements applicable to the Demised Premises or the Common
Elements; and (B) Tenant shall have the right, in accordance with Section 7.4, to contest the validity of any Legal Requirement applicable
to the remediation or removal of Hazardous Materials, provided Tenant
forthwith takes all necessary steps to prevent any further discharge or release
of Hazardous Materials or any other or further deterioration to the Demised
Premises or the Common Elements caused by Hazardous Materials; provided,
however, that, in any event, Tenant may not delay such remediation or
removal during the pendency of such contest if the presence of such Hazardous
Materials poses an imminent threat to the Demised Premises or the Common
Elements or any persons or if such delay could expose Landlord to increased
liability arising from such Hazardous Materials.


Section 7.9  Equitable Relief.
Tenant hereby acknowledges that Landlord may suffer
irreparable harm by reason of a breach or threatened breach of the provisions
of this Article VII, and, accordingly, in addition to any other
remedy that Landlord may have under this Lease or as may be permitted by
applicable law, Landlord shall be entitled to seek to enjoin the action,
activity or inaction that gives rise to such breach or threatened breach by
Tenant.


Section 7.10  Windows. Tenant
shall not clean or require, permit, suffer or allow any window in the Demised
Premises or the Common Elements to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other Legal Requirements or Insurance
Requirements.


Section 7.11  Adverse
Possession. Tenant shall not suffer or permit the Demised
Premises or the Common Elements or any portion thereof to be used by the public
or any Person without restriction or in such manner as would, with the lapse of
time, impair title to the



 56
 






 



Demised Premises or the Common Elements or any portion thereof, or
create the basis for a legitimate claim or claims of adverse usage or adverse
possession by the public, as such, or any Person, or of implied dedication of
the Demised Premises or the Common Elements, or any portion thereof.


Section 7.12  Pre-Possession
Obligations. [INTENTIONALLY OMITTED]



 57
 






 



ARTICLE VIII

REPAIRS


Section 8.1  Repairs.


(a)        Maintenance of Demised Premises and
the Common Elements. As set forth in Section
7.3 hereof, Tenant shall (i) maintain the Demised Premises and the
Common Elements for their Permitted Uses, and (ii) make all repairs,
restorations and replacements thereto, interior and exterior, structural and
nonstructural, ordinary and extraordinary, and foreseen and unforeseen.


(b)        Quality of Repairs. Except as
provided in Section 7.4 hereof,
all repairs, restorations and replacements shall be at least equivalent in
standard and quality to the standard and quality of the original work or
property replaced, as the case may be. All repairs, restorations and
replacements shall be sufficient for the proper maintenance and operation of
the Demised Premises and the Common Elements and shall be made in compliance
with all Legal Requirements and Insurance Requirements, the requirements of the
DUO and in compliance with the applicable provisions of Article IX hereof as if such repairs,
restorations or replacements were Alterations thereunder.


(c)        Equipment; Access. Tenant
covenants and agrees that throughout the term of this Lease (i) all Equipment
shall be maintained in good and safe operating order and repair, and (ii) the
Property shall, at all times, have adequate means of ingress and egress to and
from the public streets and the sidewalks used in connection therewith. Tenant
shall obtain and maintain, or cause the Subtenants to obtain and maintain, any
and all permits required in connection with the operation of all portions of
the Demised Premises, the Common Elements and each Demised Space. Landlord
shall not be required to furnish or obtain any permits, or to make any repairs
or Alterations, in, or to, the Demised Premises or the Common Elements or the
Equipment during the term of this Lease. Tenant hereby assumes the full and
sole responsibility for the condition, operation, repair, replacement,
maintenance and management of the Demised Premises, the Equipment and, jointly
with the tenants under the other Severance Subleases, the Common Elements.



 58
 






 



ARTICLE IX

ALTERATIONS AND COMPLETION OF THE IMPROVEMENTS


Section 9.1  Right
to Undertake Alterations. Subject to the provisions of this Article IX, Tenant shall have the right to
make Alterations in and to the Demised Premises and the Common Elements.


Section 9.2  Performance
of Alterations.


(a)        Standards for All Alterations.


(i)          All
Alterations shall be performed with due diligence, continuity, in a good and
workmanlike manner and in accordance with good construction practice, subject
however to Unavoidable Delays.


(ii)         All
Alterations shall be performed and completed in accordance with the DUO, the
applicable Alteration Plans and Specifications as they relate to the DUO, all
Legal Requirements, Insurance Requirements and the provisions of Articles VIII and XI hereof, as applicable.


(iii)        The
Demised Premises and the Common Elements shall be free of liens (it being
understood that Tenant shall have up to forty five (45) days to cause any liens
imposed on the Demised Premises and the Common Elements to be discharged or
bonded and to provide evidence thereof to Landlord).


(iv)       All
Alterations, when completed, shall be of the standard and quality commonly
required at Class “A” office buildings (as understood on the date hereof) in
midtown Manhattan.


(v)        Tenant
shall maintain a complete set of “as built” plans and specifications or marked
construction documents and, if prepared by or for Tenant or any Person doing
such Alterations, auto CAD Disks with respect to any such Alteration, and
shall, when and as requested by Landlord, deliver a copy thereof (together with
all change orders, field changes, and other changes that comprise a complete
record of all such work) to Landlord.


(vi)       No
temporary or permanent certificate of occupancy shall be requested by or for
Tenant with respect to the Improvements or any portion thereof unless the
Alteration for which such certificate is being sought has been substantially
completed in accordance with the applicable provisions of the DUO.


(vii)      Each
agreement between Tenant and any contractor, materialman or other party
performing any Alteration shall contain a representation made by such
contractor, materialman or other party that such party is not a Prohibited
Person and shall contain a termination right for the benefit of Tenant if such
representation shall at any time be untrue.


(b)        Conditions Precedent to Commencement
of Any Alteration. Tenant shall not, nor shall Tenant permit any Subtenant
or any other Person, to commence any Alteration



 59
 






 



(other than Interior Construction Work) governed by any element of the
DUO or affecting a Structural Component (other than by having a Nonadverse
Structural Effect), unless and until:


(i)          Tenant,
at its sole cost and expense, shall have obtained (and thereafter shall
maintain) all necessary permits and authorizations required by Legal
Requirements for the commencement and prosecution of such work and for approval
thereof upon completion, and Tenant shall deliver to Landlord copies of any and
all of such permits and/or authorizations required to commence such work prior
to the commencement thereof;


(ii)         Tenant
shall have delivered to Landlord the following items: (A) copies of all
Alteration Plans and Specifications which have been stamped as approved by the
New York City Buildings Department (it being agreed that the Alteration Plans
and Specifications submitted to the New York City Buildings Department for
approval may be only those Alteration Plans and Specifications approved by
Landlord to the extent required under this Lease); (B) executed counterparts
(or copies thereof) of the Collateral Assignments in respect of all construction
agreements between Tenant and any general contractor, construction manager, the
Design Architect and the other Architects; (C) construction schedules and
staging plans; and (D) certificates for the insurance required by Section 10.1 hereof, together with evidence
reasonably satisfactory to Landlord of the payment of the premiums therefor;
and


(iii)        (A)
In respect of Alterations within the Demised Premises, there shall be no Event
of Default hereunder, and (B) in respect of Alterations within the Common
Elements, there shall be no Event of Default hereunder arising from Tenant’s
obligations relating to the Common Elements.


(c)        Obligations Following Completion of
Any Alteration. Promptly following completion of any Alteration, Tenant
shall furnish to Landlord:


(i)          In
respect of any Alteration governed by any element of the DUO, an Architect’s
Certification (which Architect’s Certification has not been objected to within
ten (10) Business Days of Landlord’s receipt thereof), prepared by an Architect
approved (or deemed approved) by Landlord in accordance with Section 9.6(a)(ii) hereof, that (A) the
Architect has examined the applicable Alteration Plans and Specifications, and
(B) to its best knowledge, after appropriate investigation, the Alteration, as
then constructed, has been completed substantially and in all material respects
in accordance with the applicable Alteration Plans and Specifications as it
relates to and complies with the DUO;


(ii)         A
copy or copies of the temporary or permanent certificate(s) of occupancy for
such Alteration, if applicable;


(iii)        (A)
To the extent not previously delivered to Landlord, in respect of the entire
Demised Premises and Common Elements other than any Subtenant’s initial tenant
improvements to its Demised Space, a complete set of “as built” plans in
duplicate (one of such plans being delivered in electronic format (including
CAD drawings)) showing such construction, as then constructed, if available,
and if not available, “marked” final drawings, and (B) in respect of any
Subtenant’s (including, without limitation, NYTC or any Affiliate of NYTC in
its capacity as a Subtenant) initial tenant improvements to its Demised Space,
a complete set



 60














 


of “as built” plans in duplicate (one of such plans being delivered in
electronic format (including CAD drawings)), if available, and if not
available, “marked” final drawings, if available;


(iv)       Upon
request by Landlord, copies of any documents filed with the New York City
Department of Buildings;


(v)        Any
permits or authorizations which are required for such Alteration as completed;


(vi)       Copies
of all guaranties or certifications called for under any construction
agreements, promptly after receipt thereof by Tenant or any Tenant Related
Entities;


(vii)      Copies
of all New York Board of Fire Underwriters Certificates (or the equivalent
certificate of any successor organization) for such Alteration;


(viii)     Copies
of duly executed waivers of mechanic’s lien from each provider of materials,
supplies, equipment or labor to the Demised Premises and/or the Common Elements
relating to such Alteration or other evidence of payment reasonably
satisfactory to Landlord, promptly after receipt thereof by Tenant; and


(ix)        Any
plans and specifications and other applicable documents in Tenant’s possession
reasonably requested by Landlord to demonstrate compliance with the DUO.


(d)        No Responsibility of Landlord.
Landlord shall have no responsibility to Tenant or to any Subtenant, architect,
engineer, contractor, subcontractor, supplier, materialman, workman or other
person, firm or corporation who shall engage in or participate in any
construction of any Alteration. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanic’s or other lien for any such labor or
materials shall attach to or affect the estate or interest of Landlord in and
to the Demised Premises. Whenever and as often as any such lien shall have been
filed against the Demised Premises, whether or not based upon any action or
interest of Tenant or any Subtenant, or if any conditional bill of sale shall
have been filed for or affecting any materials, machinery or fixtures used in
the construction, repair or operation thereof, or annexed thereto by Tenant,
Tenant shall promptly take such action by bonding, deposit or payment as will
remove or satisfy the lien or conditional bill of sale.


(e)        Project Area. Tenant shall require
its general contractor, construction manager, major trade contractors and all
other workers in the Demised Premises or the Common Elements connected with any
Alteration to work harmoniously with each other, and with other contractors and
workers at the Property, and Tenant shall not engage in, permit or suffer, any
conduct which may disrupt such harmonious relationship. Tenant shall take
commercially reasonable efforts to (a) enforce the aforesaid requirements and
(b) cause its general contractor, construction manager and major trade
contractors to minimize any interference with the use, occupancy and enjoyment
of the Property by other occupants and visitors thereof.



 61
 






 



(f)         Title to Materials. All
materials and other Equipment incorporated in the Demised Premises or the
Common Elements, as the case may be, excluding any Tenant or Subtenant personal
property, shall, effective upon their incorporation into the Demised Premises
or the Common Elements, as the case may be, and at all times thereafter,
constitute the property of Landlord and shall constitute a portion of the
Demised Premises or the Common Elements, as the case may be.


Section 9.3
 Construction Agreements. All construction
agreements valued at One Hundred Thousand Dollars ($100,000) or more shall include
the following provisions:


(a)        [“Contractor” / “Subcontractor” /
“Materialman”] hereby agrees that immediately upon the purchase by
[“contractor” / “subcontractor” / “materialman”] of any building materials to
be incorporated in the Demised Premises and the Common Elements (as such terms
are defined in the Agreement of Sublease, dated December    ,
2001, between Owner and NYT Real Estate Company LLC (the “Lease”)), such
materials shall become the sole property of the Landlord (as defined in the
Lease), notwithstanding that such materials have not been incorporated in, or
made a part of, such Demised Premises and/or the Common Elements at the time of
such purchase; provided, however, that the Landlord (as defined
in the Lease) shall not be liable in any manner for payment to [“contractor” /
“subcontractor” / “materialman”] in connection with the purchase of any such
materials, and Landlord shall have no obligation to pay any compensation to
[“contractor” / “subcontractor” / “materialman”] by reason of such materials
becoming the sole property of the Landlord.


(b)        [“Contractor” / “Subcontractor” /
“Materialman”] hereby agrees that notwithstanding that [“contractor” /
“subcontractor” / “materialman”] performed work at the Demised Premises and/or
the Common Elements or any part thereof, Landlord shall not be liable in any
manner for payment to [“contractor” / “subcontractor” / “materialman”] in
connection with the work performed at the Demised Premises and/or the Common
Elements.


(c)        [“Contractor” / “Subcontractor” /
“Materialman”] hereby agrees to make available for inspection by the Landlord,
during reasonable business hours, [“contractor’s” / “subcontractor’s” /
“materialman’s”] books and records relating to the Alterations / Condemnation
Restoration / Restoration (as all defined in the Lease) being performed or the
acquisition of any material or equipment to be incorporated into the Demised
Premises and/or the Common Elements.


(d)        The Landlord is not party to this
[“contract” / “agreement”] and will in no way be responsible to any party for
any claims of any nature whatsoever arising or which may arise from such
[“contract” / “agreement”].


(e)        All covenants, representations,
guaranties and warranties of [“contractor” / “subcontractor” / “materialman”]
set forth in the preceding four paragraphs shall be deemed to be made for the
benefit of the Landlord and shall be enforceable by the Landlord.


Section 9.4
 Use of Plans and Specifications. Landlord shall have the right to use, without
any payment or other compensation by Landlord therefor, solely for the purposes
set forth in the following sentence, (a) the Approved Schematic Design Plans,
the Design



 62
 






 



Development Plans, the Final Plans and Specifications and any
Alteration Plans and Specifications, (b) any surveys and “as built” plans
showing the applicable Alteration, and (c) any other plans and specifications
with respect to such Alteration. Landlord shall have the right to use the items
enumerated in clauses (a) through (c) above to facilitate the exercise of its
rights under this Lease and, subsequent to the expiration or termination of
this Lease where Landlord retains title to the Demised Premises or the Common
Elements, for the construction, use, operation and Alteration of the Demised
Premises or the Common Elements and other purposes incidental thereto; subject,
however, to the following restrictions:


(i)          the
work product of the Design Architect (the “DA
Work Product”) may be
used only for the completion of the Alteration in question or for reference
purposes for additions, extensions, remodeling or modification of the
Alteration in question not designed by the Design Architect; however, ownership
rights to said DA Work Product and rights therefrom may not be transferred to
another party for its use in the design of another project;


(ii)         Design
Architect retains all statutory and reserve rights, including copyright, to
typical or standard design details, depictions, instructions and specifications
regularly used by the Design Architect in the ordinary course of its
architectural practice;


(iii)        Design
Architect retains the right to publish images and appropriate technical
information from Design Architect’s work in professional journals and for
portfolio publicity purposes;


(iv)       Design
Architect is not responsible for errors or discrepancies on any electronic
portable media on which Design Architect’s design documents are transferred
except to the extent that such errors or inconsistencies are caused by or
contributed to by Design Architect when it transfers such information to such
media or while such media are in Design Architect’s possession or control;


(v)        in
connection with any publication of photographs or other representations of the
Alteration in question where the design of the Alteration in question is the
subject of the publication, if applicable, the party causing such publication
will endeavor to see that reference to the Design Architect as architect for
the Alteration in question is included in any such publication as follows:
Renzo Piano Building Workshop, Design Architects, with Fox and Fowle
Architects, Executive Architect; and


(vi)       if the
Project is materially modified after its completion and Design Architect has
not consented or participated in such modification, no reference shall be made
to Renzo Piano Building Workshop or Fox and Fowle Architects, as the
architect(s) for the Alteration in question, and the owner of the Alteration in
question shall use its diligent efforts to prevent the dissemination of
information regarding such completion or modification which includes any such
reference.


Nothing in this Section 9.4 shall
permit the selection and approval by Tenant of a Design Architect other than in
accordance with Section 9.6(a) hereof.
The provisions of this Section 9.4
shall survive any such expiration or earlier termination of this Lease.



 63
 






 



Section 9.5  Major
Alterations.


(a)        Conditions to Performance. In
addition to the requirements of Section 9.2
hereof (A) if the reasonably estimated cost of any proposed Alteration in or
(1) to the Demised Premises or any portion thereof calculated as a whole or (2)
to the Common Elements or any portion thereof calculated as a whole, equals or
exceeds Two Million Dollars ($2,000,000) (Adjusted for Inflation from and after
the Substantial Completion Date), excluding the cost of interior cosmetic and
decorative items included in such Alteration, either individually or in the
aggregate with other Alterations in or to the Demised Premises and the Common
Elements or any portion thereof undertaken by the same party during any Lease
Year in connection with a single job that is performed in stages (each, a “$2,000,000+ Alteration”), (B) to the extent that any portion of any
Alteration involves work which will affect any Structural Component other than
by having a Nonadverse Structural Effect (each, a “Structural Alteration”), or
(C) to the extent that any portion of any Alteration affects any portion of the
Demised Premises or the Common Elements that is governed by any element of the
DUO (each, a “DUO Alteration”; any Alteration described by clauses (B) or
(C) above, a “DUO/Structural Alteration”; any
Alteration described by clauses (A), (B) or (C) above, a “Major Alteration”):


(i)          Tenant
shall furnish to Landlord the following, in respect only of a DUO/Structural
Alteration, at least thirty (30) Business Days prior to commencement of any
such DUO/Structural Alteration, complete proposed Alteration Plans and
Specifications for such DUO/Structural Alteration (which shall include complete
information and dimensions necessary for the construction and finishing of the
applicable DUO/Structural Alteration and for any engineering required in
connection therewith (both standard architectural drawings and in electronic
format (including CAD drawings))), prepared by an Architect or by a reputable,
licensed professional engineer selected by Tenant (or any Subtenant, as
applicable), which submittal shall comply with all applicable Legal
Requirements and Insurance Requirements, and any other drawings, information or
samples which Landlord may reasonably request, all of the foregoing to be
subject to Landlord’s review and approval (1) in respect of any DUO Alteration,
only for compliance with the DUO in accordance with the procedures, and within
the time periods, applicable to the review and approval of “Design Development
Plans” and “Final Plans”, as the case may be, as prescribed in the applicable
DUO Exhibit and (2) in respect of any Structural Alteration, in accordance with
the procedures, and within the time periods, applicable to the review and
approval of “Design Development Plans” and “Final Plans”, as the case may be,
as prescribed in Exhibit E-6
attached hereto; provided, however, (A) Alteration in connection
with any DUO/Structural Alteration shall not commence until Landlord shall have
approved the proposed Alteration Plans and Specifications for such
DUO/Structural Alteration (it being agreed that Landlord’s disapproval of one
or more DUO/Structural Alterations shall not impede Tenant’s right to proceed
pursuant hereto with any Landlord approved DUO/Structural Alteration so long as
the Alteration being pursued is not related in any way to the Alteration that
has not been approved by Landlord), and (B) that Landlord’s approval of the
proposed Alteration Plans and Specifications (or any modifications thereto)
shall not be, nor shall be construed as being, or relied upon as, a
determination that any such proposed Alteration Plans and Specifications (or
any modifications thereto) comply with any Legal Requirements or Insurance
Requirements;



 64
 






 



(ii)         Tenant
shall furnish to Landlord, at least ten (10) Business Days prior to
commencement of any $2,000,000+ Alteration, any one of the following: (A) cash
or an irrevocable letter of credit in such amount as shall be satisfactory to
Landlord; (B) payment and performance bonds in forms and by sureties reasonably
satisfactory to Landlord; (C) a guaranty in form and from a creditworthy entity
reasonably satisfactory to Landlord; or (D) such other security as shall be
reasonably satisfactory to Landlord (it being agreed that an acceptable
guaranty of an Acceptable Guarantor shall be security reasonably satisfactory
to Landlord under this Section 9.5(a)(ii));


(iii)        Each
Major Alteration shall be conducted under the supervision of a reputable and
experienced architect, engineer or construction professional reasonably
acceptable to Landlord (it being acknowledged that, pursuant to Section 9.6(a) hereof, a DUO/Structural
Alteration may require the participation of the Design Architect, an other Architect
or an Engineer); and


(iv)       Each
Major Alteration subject to this Section
9.5(a) shall conform substantially and in all material respects to
the Alteration Plans and Specifications approved therefor pursuant to Section 9.5(a)(i) or Section 9.5(b)(ii) hereof.


(b)        Alteration Plans and Specifications.


(i)          Approval
Standard. In the event that the Design Architect is Renzo Piano Building
Workshop, or a Replacement Design Architect approved or deemed approved by the
Landlord in accordance with the Replacement Design Architect Approval Criteria,
the standard for approval of all DUO design reviews shall be “Landlord’s
reasonable judgment”. In the event that the Design Architect is not Renzo Piano
Building Workshop, or a Replacement Design Architect approved or deemed
approved by the Landlord in accordance with the Replacement Design Architect
Approval Criteria, the standard for all DUO design reviews shall be “Landlord’s
sole discretion”.


(ii)         Modification
of Alteration Plans and Specifications. If Tenant desires to modify
Alteration Plans and Specifications after they have been approved or deemed
approved by Landlord pursuant to Section
9.5(a)(i) hereof, and either (A) Tenant has not provided to Landlord
an Architect’s Certification, prepared by an Architect or an Engineer approved
(or deemed approved) by Landlord in accordance with Section 9.6(a)(ii) hereof, describing the proposed
modification and stating that such modification is not to have been governed by
any element of the DUO or does not affect a Structural Component (other than by
having a Nonadverse Structural Effect), or (B) such modification represents an
immaterial field change to such plans (notification of each such immaterial
field change being promptly provided to Landlord by Tenant together with
adequate identification of such change and an explanation of the change made),
Tenant shall submit the proposed modifications to Landlord, clearly identifying
each such modification, together with a statement of Tenant’s reasons therefor.
If (a) Tenant has submitted such aforesaid Architect’s Certification and such
Architect’s Certification has not been objected to by Landlord within five (5)
Business Days after Landlord’s receipt thereof or (b) such modification
represents an immaterial field change and Tenant has provided the information
required in clause (2) of this Section
9.5(b)(ii), then such submission of the proposed modifications for
Landlord’s review and approval is not required. Unless and until a



 65
 






 



proposed modification is clearly identified by Tenant, such
modification shall not be considered by Landlord and the prior set of approved
plans shall govern in respect of such modification. Landlord shall not
disapprove any matter previously submitted and approved, or deemed approved by
Landlord, except to the extent that the proposed modification affects any
matter so approved or deemed approved. If Landlord determines, in accordance
with the applicable provisions of Section
9.5(a)(i) hereof, that any proposed modifications are acceptable to
Landlord, Landlord shall so notify Tenant. If Landlord determines, in
accordance with the applicable provisions of Section
9.5(a)(i) hereof, that such modifications are not otherwise
acceptable, Landlord shall so notify Tenant, setting forth in reasonable detail
Landlord’s reasons for such determination. In the event Landlord determines the
modification to be unacceptable, Tenant shall revise the proposed modifications
so that they are acceptable to Landlord and resubmit them to Landlord for
review in accordance with the standards hereinabove set forth. Each review by
Landlord under this Section 9.5(b)(ii) shall
be carried out within fifteen (15) Business Days of the date of submission of
the proposed modifications to the Alteration Plans and Specifications unless the
proposed modification substantially alters the Alteration Plans and
Specifications, in which event, so long as Landlord notifies Tenant within such
fifteen (15) Business Day period that Landlord so regards the proposed
modification, Landlord’s review shall be carried out within twenty (20)
Business Days of the date of submission of the proposed modification.


(iii)        Compliance with Legal Requirements. The Alteration
Plans and Specifications (and any modification thereto) shall comply with all
Legal Requirements and Insurance Requirements (but need not comply with the
Zoning Resolution, it being understood that Alteration may be constructed
without reference to the provisions of the Zoning Resolution). Landlord’s
approval of any such Alteration Plans and Specifications (or any modification
thereto) drawings shall not be, nor shall be construed as being, or relied upon
as, a determination that any such Alteration Plans and Specifications (or any
modification thereto) drawings comply with any Legal Requirements or Insurance
Requirements.


(iv)       Submission in Triplicate. All drawings submitted to
Landlord pursuant to this Section 9.5 shall
be submitted in triplicate.


(v)        Production Architect. Notwithstanding any provision of
this Lease requiring the execution by the Design Architect of any certificate
or other document, Landlord agrees that such certificate or other document
(including, without limitation, any Architect’s Certificate) may be executed,
in lieu thereof, by the Production Architect on behalf of the Design Architect
once approved by the Design Architect.


(c)        Right of Inspection. Landlord
shall have the right, during the performance of any Alteration governed by any
element of the DUO or affecting a Structural Component (other than by having a
Nonadverse Structural Effect), to (i) maintain, at Landlord’s cost, field
personnel or other representatives at the Demised Premises or in the portions
of the Improvements constituting the Common Elements to observe Tenant’s
construction methods and techniques and to determine that such Alteration is
being performed in accordance with the provisions of this Lease, and (ii) have
such field personnel or other designers attend Tenant’s job and/or safety
meetings (it being agreed that, in respect of both of clauses (i) and (ii)
immediately preceding, such Landlord’s field personnel or other representatives
shall not instruct contractors,



 66
 






 



interfere with or impede the work of such or other workers in respect
of any such Alteration). Landlord agrees that the presence and activities of
such field personnel or other representatives shall not impede in any respect
the performance of such Alteration. No such observation or attendance by
Landlord’s personnel, designers or other representatives shall impose upon
Landlord responsibility for any failure by Tenant to comply with any Legal
Requirements, Insurance Requirements or safety practices in connection with
such Alteration or constitute an acceptance of any such Alteration which does
not comply in all respects with the provisions of this Lease.


Section 9.6  Approval of Project
Participants.


(a)        Approval of Architects.


(i)          Design
Architect. The design architect for any Alteration (other than Interior
Construction Work) governed by any element of the DUO shall be the Design
Architect. If Tenant shall desire to replace Renzo Piano Building Workshop or
any Replacement Design Architect previously approved by Landlord as the Design
Architect, then such replacement Design Architect proposed by Tenant shall be
approved by Landlord (such approved replacement Design Architect, the “Replacement Design Architect”) so long as the proposed Replacement Design
Architect, in Landlord’s reasonable judgment, meets all of the following
criteria (the “Replacement Design Architect
Approval Criteria”): (A)
the proposed Replacement Design Architect is known for artistically combining
architecture and engineering in inventive and unique ways; (B) the proposed
Replacement Design Architect is capable of creating architecture that
sensitively and imaginatively addresses the needs of users of the improvement
as well as users of adjacent city sidewalks; (C) the proposed Replacement
Design Architect is known for sensitive and imaginative use of materials to
resolve problems in new ways; (D) the proposed Replacement Design Architect is
known for an influential, diverse body of work, all of which is, as a whole,
internationally recognized for high standards of excellence in architecture;
(E) the proposed Replacement Design Architect is the recipient of international
awards and prizes; (F) the proposed Replacement Design Architect has experience
in creating architecture that is responsive to complex urban sites; and (G) the
proposed Replacement Design Architect will be involved in all phases of the
design, including an active role while the Alteration in question is under
construction. In the event that Tenant proposes to replace the Design Architect
with an architect that, in Landlord’s reasonable judgment, does not meet the
Replacement Design Architect Approval Criteria, then Landlord may approve or
disapprove the proposed Design Architect in Landlord’s sole discretion. Any
proposed Replacement Design Architect shall, in any event, have substantial
experience in construction projects that are comparable in scope and visibility
to the Improvements and shall not be a Prohibited Person. If Landlord fails to
approve or reject any architect nominated by Tenant to be a Design Architect
within sixteen (16) Business Days after the written submission to Landlord of
such architect’s name and other information (including adequate portfolio
information) sufficiently detailed to permit Landlord to make a reasoned
judgment of the appropriateness of the proposed architect for the 42nd Street
Project, or Landlord fails to make reasonable requests for additional
information related thereto within such time period and thereafter to approve
or reject such architect within eleven (11) Business Days after written
submission of such additional information as Landlord shall have reasonably requested,
Tenant shall have the right to give Landlord a reminder notice, which reminder
notice shall contain the following caption in bold and capitalized type:



 67
 






 



YOUR APPROVAL OF
                          
AS THE DESIGN ARCHITECT SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT
SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS
NOTICE.


If Landlord fails to approve or reject the proposed architect within
five (5) Business Days after its receipt of such reminder notice, such architect
shall be deemed approved by Landlord. Any rejection of an architect by Landlord
shall be accompanied by specific reasons set forth in reasonable detail.


(ii)         Other
Architects and Engineers. Except in respect of the Design Architect (which
shall be approved in accordance with Section
9.6(a)(i) hereof), the Production Architect and each other architect
and engineer proposed to be engaged in respect to any Alteration (other than
Interior Construction Work or demolition work) (A) governed by any element of
the DUO, (B) affecting a Structural Component (other than by having a
Nonadverse Structural Effect), or (C) of a value of greater than $1,000,000
(which amount shall be Adjusted for Inflation from the Substantial Completion
Date), shall be approved by Landlord: (1) in respect of any Alteration subject
to clause (A) of this Section 9.6(a)(ii), in Landlord’s sole discretion; and (2) in
respect of any Alteration subject only to clause (B) or (C) of this Section 9.6(a)(ii), in Landlord’s approval, not to be
unreasonably withheld. Each such Architect shall have substantial experience in
construction projects that are comparable in scope to such architect’s intended
work at the Improvements and shall not be a Prohibited Person. Each such
Engineer shall (x) be of recognized standing among its peers, (y) have at least
ten (10) years experience in providing engineering services in respect of
highrise buildings in urban centers and (z) not be a Prohibited Person. If
Landlord fails to approve or reject any architect nominated by Tenant to be an
Architect (other than the Design Architect), or engineer nominated by Tenant to
be an Engineer, as the case may be, within sixteen (16) Business Days after the
written submission to Landlord of such architect’s name and other information
(including adequate portfolio information) sufficiently detailed to permit
Landlord to make a reasoned judgment of the appropriateness of the proposed
architect or engineer, as the case may be, for the 42nd Street Project, or
Landlord fails to make reasonable requests for additional information related
thereto within such time period and thereafter to approve or reject such
architect or engineers, as the case may be within eleven (11) Business Days
after written submission of such additional information as Landlord shall have
reasonably requested, Tenant shall have the right to give Landlord a reminder
notice, which reminder notice shall contain the following caption in bold and
capitalized type:


YOUR APPROVAL OF                           
AS AN ARCHITECT/ENGINEER SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT
SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS
NOTICE.


If Landlord fails to approve or reject the proposed architect or
engineers, as the case may be, within five (5) Business Days after its receipt
of such reminder notice, such architect or engineer, as the came may be, shall
be deemed approved by Landlord. Any rejection of an architect or engineer, as
the case may be, by Landlord shall be accompanied by specific reasons setting
forth in reasonable detail the basis for such rejection.



 68
 






 



(b)        Approval of Contractors.


(i)          General
Standard; Prohibited Persons. All Alterations shall be performed and/or
managed by one or more reputable and responsible general contractor(s) (or if
Tenant, or any Subtenant, as the case may be, hires contractors instead of a
general contractor, such contractors) or construction manager(s). No general
contractor, construction manager, Major Contractor or other contractor that is
engaged to do any Alteration shall be a Prohibited Person. Tenant shall cause
such restriction to be inserted in each Sublease.


(ii)         Major
Contractors. Prior to the time at which Tenant solicits any bids for labor
or materials for any Alteration (other than Interior Construction Work)
governed by any element of the DUO or affecting a Structural Component (other
than by having a Nonadverse Structural Effect), Tenant shall furnish Landlord
for its approval (to the extent hereinafter provided) a list of all Persons
Tenant intends to solicit for any such work who, if so selected, would (a) have
a contract amounting to a value of greater than $1,000,000 (which amount shall
be Adjusted for Inflation from the Substantial Completion Date), or (b)
otherwise be responsible for an item that is governed by the DUO or affects a
Structural Component, other than by having a Nonadverse Structural Effect (any
such contractor, a “Major Contractor”).
The list shall state the name, address, phone number and EIN of each such Major
Contractor and each of its Principals and in what capacity such Major
Contractors would be performing work at the Demised Premises or the Common
Elements. Landlord shall have the right to disapprove any Major Contractor
only: (1) if such Major Contractor is a Prohibited Person; or (2) if such Major
Contractor, in Landlord’s reasonable judgment, demonstrated a failure, based on
prior job performance, to exercise due care in the performance of the work for
which such Major Contractor may be hired in respect of the Improvements (it
being agreed that no Person listed on Exhibit
I attached hereto may be disapproved by Landlord on the basis
described in this clause (2) of this Section
9.6(b)(ii)). If Landlord fails to approve or reject any Major
Contractor within eleven (11) Business Days after the receipt by Landlord of
such Major Contractor’s name, address, phone number and EIN (and those of its
Principals), or Landlord fails to make reasonable requests for additional
information related thereto within such time period and thereafter to approve
or reject such Major Contractor within six (6) Business Days after written
submission of such additional information as Landlord shall have reasonably
requested, Tenant shall have the right to give Landlord a reminder notice,
which reminder notice shall contain the following caption in bold and
capitalized type:


YOUR APPROVAL OF                           
AS A MAJOR CONTRACTOR SHALL BE DEEMED GIVEN IF YOU FAIL TO APPROVE OR REJECT
SUCH PERSON WITHIN FIVE (5) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS
NOTICE.


If Landlord fails to approve or reject the proposed Major Contractor
within five (5) Business Days after its receipt of such reminder notice, such
Major Contractor shall be deemed approved by Landlord. Any rejection of a Major
Contractor by Landlord shall be accompanied by specific reasons set forth in
reasonable detail. Landlord approves, on the date hereof, the Major Contractors
listed on Exhibit I attached
hereto.



 69
 






 



Section 9.7  Alterations
Certification. If Legal Requirements require that plans
be submitted to the New York City Department of Buildings in respect of a given
Alteration, Tenant shall deliver to Landlord at least seven (7) Business Days
prior to the commencement of work in respect thereof a certification (the “Alterations Certification”) signed by a
Qualified Certifying Party of Tenant (a) describing the applicable Alteration,
(b) setting forth the reasonably estimated cost thereof and (c) stating whether
such Alteration will or will not affect any Structural Component (or if such
Alteration will affect a Structural Component, stating whether or not such
Alteration will have only a Nonadverse Structural Effect) and will or will not
affect any element of the DUO. A copy of the Alteration Plans and Specifications,
if any, prepared for any such Alteration shall be submitted with the
Alterations Certification, and the architect or engineer who prepared such
plans and specifications shall also sign the Alterations Certification. If the
statement set forth in the Alterations Certification indicates that the
Alteration in question will affect any Structural Component (other than by
having a Nonadverse Structural Effect) or any element of the DUO or is
otherwise untrue, or if Tenant fails to submit an Alterations Certificate, the
applicable Alteration shall be subject to the requirements of Section 9.5(a) hereof and the commencement
of the Alteration without compliance with the requirements of Section 9.5(a) hereof shall constitute a
Default hereunder.


Section 9.8  Reimbursement of
Expenses of Review. Tenant shall reimburse Landlord for
the commercially reasonable, actual out-of-pocket fees and expenses of any
Architect or Engineer selected by Landlord to review (i) any plans and
specifications for any Alteration subject to Section
9.5(a) hereof or (ii) the correctness of the Alterations
Certification associated therewith is being contested by Landlord; provided,
however, that (a) such fees and expenses shall be limited to those
incurred in reviewing the portion of such plans and specifications governed by
any element of the DUO or affecting a Structural Component (other than by
having a Nonadverse Structural Effect), and (b) Tenant’s reimbursement
obligation under this Section 9.8
shall not exceed one-half percent (0.5%) of the cost of such Alteration.


Section 9.9  Nonadverse
Structural Effect. Tenant may provide to Landlord a
statement of an Architect or an Engineer approved by Landlord pursuant to this
Lease, in the form of Exhibit J
attached hereto, certifying that the contemplated Alteration shall have no
adverse effect on a Structural Component that is greater than a Nonadverse
Structural Effect. Such statement shall be based solely on such Engineer’s or
Architect’s independent assessment of the Alteration in question and not on any
representations or other statements made by Tenant or any other party. Landlord
shall approve or disapprove of such Engineer’s or Architect’s statement, in
Landlord’s reasonable discretion, within ten (10) Business Days of Landlord’s
receipt thereof.


Section 9.10  Completion of
Improvements.


(a)        Tenant’s Subway Improvements.


(i)          Landlord
shall have the continuing right to review any modifications to the Site 8 South
Subway Agreement and to approve same solely to the extent that such modifications
do not impact the DUO. In the event of any conflict between the terms of this
Lease and the terms of the Site 8 South Subway Agreement in respect of the
performance of Tenant’s Subway Improvements, the terms of the Site 8 South
Subway Agreement shall prevail.



 70














 


(ii)         Tenant shall be responsible for all costs in respect of
Tenant’s Subway Improvements. Subject to Section 3.04(b) of the Site 8 South
LADA, an amount equal to the Tenant’s Percentage Allocation (or another
allocation between the tenants of all Severance Subleases as to which all such
tenants have jointly notified Landlord on or before the Lease Assignment Date)
of the actual costs of Tenant’s Subway Improvements in excess of Four Million
Dollars ($4,000,000) shall be reimbursed to Tenant as a credit against PILOT
under this Lease, but only to the extent that any such excess expenditure was
reasonably required, in Landlord’s reasonable opinion based on a detailed
accounting of such costs provided by Tenant to Landlord, in order to construct
the minimum improvements that would be required under the Zoning Resolution as
of June 20, 2000.


(b)        Final Completion; Permanent
Certificate of Occupancy. Tenant shall, using commercially reasonable
efforts, diligently and continuously pursue the development of the Demised
Premises and the Common Elements until the Demised Premises and the Common
Elements shall be complete and fully operational. Within a reasonable period
after the completion of the initial build out in respect of Demised Space and
the Common Elements constituting one hundred percent (100%) of the Square Feet
to be occupied in the Demised Space and the Common Elements, Tenant shall with
reasonable diligence obtain a permanent certificate of occupancy for the
Demised Premises and the Common Elements.


Section
9.11  Disputes. Disputes regarding any aspect of this Article IX, other than those expressly stated otherwise or
those that pertain to the DUO, may be referred to arbitration pursuant to Section 16.3 hereof.



 71
 






 



ARTICLE X

INSURANCE


Section
10.1  Insurance. At all times during the term of this Lease, Tenant shall, in respect
of the Demised Premises and the Common Elements, keep and maintain, or cause to
be kept and maintained, policies of:


(a)        commercial property insurance covering,
at a minimum, the perils insured under the ISO special causes of loss form (CP
10 30) (or a substitute form providing equivalent coverage) (including (i)
debris removal, demolition and increased cost of construction that are caused
by operation of Legal Requirements regulating the construction or repair of
damaged facilities, (ii) flood (subject to Section
10.1(i) hereof) and, to the extent available at commercially
reasonable rates, earth movement coverage, and (iii) coverage against collapse
and including an ordinance and law endorsement, in an amount not less than the
then Full Insurable Value subject to the foregoing qualification with respect
to flood and earthquake insurance and subject to commercially reasonable
deductibles reasonably approved by Landlord;


(b)        commercial general liability insurance
written on ISO occurrence form CG 00 01 (or a substitute form providing
equivalent coverage, which shall include a broad form CGL endorsement if the
substitute form is a 1973 edition CGL form), which shall cover liability of the
Tenant or the Condominium Association, as the case may be, arising from
operations of the Demised Premises or the Common Elements, as the case may be,
independent contractors, products and completed operations, personal injury and
advertising injury and liability assumed under an insured contract, protecting
and indemnifying Tenant (and the Condominium Association, as applicable) and
Landlord, from and against any and all claims for damages or injury to person
or property or for loss of life or of property occurring upon, in, or about the
Demised Premises and the Common Elements applicable and the adjoining streets,
vaults, sidewalks and passageways, such insurance to afford immediate
protection, to the limit of not less than Fifty Million Dollars ($50,000,000)
(as such sum shall be Adjusted for Inflation from the Commencement Date) per
occurrence and Fifty Million Dollars ($50,000,000) (as such sum shall be
Adjusted for Inflation from the Commencement Date) in the aggregate for all
occurrences within each policy year; such policy shall include a provision that
said aggregate limit shall apply separately at the Demised Premises and the
Common Elements, as applicable, or, alternatively, such coverage shall be in an
amount not less than One Hundred Million Dollars ($100,000,000) (as such sum
shall be Adjusted for Inflation from the Commencement Date) per occurrence and
in the aggregate, and that said insurer will provide notice to the Landlord if
said aggregate is reduced by either payments of a claim or establishment of a
reserve for claims if said payments or reserves exceed Five Million Dollars
($5,000,000); Tenant agrees that if the aggregate limit is reduced by the
payment of a claim or establishment of a reserve to take all practical
immediate steps to have the aggregate limit restored by endorsement to the
existing policy or the purchase of an additional insurance policy;


(c)        boiler and pressure vessel insurance
including pressure pipes for the Demised Premises and the Common Elements;



 72
 






 



(d)        if Tenant is not NYTC or a Related
Entity, business interruption insurance in an amount no less than the sum of
PILOT and Theater Surcharge for one (1) year as determined by Tenant, subject
to Landlord’s prior written approval and adjustments from time to time but not
more frequently than once annually for the first five (5) years after the
Commencement Date and thereafter not more frequently than once every two (2)
years, and which insurance shall be payable to Landlord or Tenant, as their
respective interests may appear;


(e)        workers’ compensation and employers
liability insurance covering all persons employed at or in respect of the
Demised Premises or the Common Elements, as the case may be, with statutorily
required limits; workers’ compensation insurance shall include policy
endorsements providing an extension of the policy to cover the liability of the
insured under the “Other States Coverage”;


(f)         business automobile liability insurance
covering liability arising out of any vehicle (including owned, non-owned,
leased, rented and/or hired vehicles) insuring against liability for bodily
injury, death and property damage in an amount not less than Five Million
Dollars ($5,000,000) (as such sum shall be Adjusted for Inflation every five
(5) years after the Commencement Date) each accident limit;


(g)        during the performance of any
Alteration, builder’s risk completed value form insurance covering the perils
insured under the ISO special causes of loss form, including collapse, water
damage, transit, flood (subject to Section
10.1(i) hereof) or equivalent coverage under Tenant’s “all risk”
policy and, to the extent available at commercially reasonable rates, earth
movement coverage, with deductible reasonably approved by any Recognized
Mortgagee (and, if none, by Landlord), in nonreporting form, covering the total
value of work performed and equipment, supplies and materials furnished (with
an appropriate limit for soft costs in the case of construction) and covering
the full insurable value (exclusive of the cost of noninsurable items, such as
excavation, foundations and footings) of all equipment, supplies and materials
at any off-site storage location used with respect to the Demised Premises or
the Common Elements, as the case may be, (subject to the foregoing
qualification with respect to earthquake insurance) and subject to commercially
reasonable deductibles reasonably approved by Landlord;


(h)        during the performance of any
Alteration, commercial general liability insurance, as required in Section 10.1(b) hereof, in an amount of not
less than $100,000,000 per occurrence and in the aggregate;


(i)         flood insurance, if the Improvements or
any part thereof is located in an area identified by the Secretary of Housing
and Urban Development, or any successor thereto, as an area having special
flood hazards and in which flood insurance has been made available and to the
maximum extent available under the national Flood Insurance Act of 1968, as
amended;


(j)         pollution liability insurance with
limits of not less than Five Million Dollars ($5,000,000) (as such sum shall be
Adjusted for Inflation from the Commencement Date) per occurrence and in the
aggregate with a deductible of no more than $1,000,000 (as such sum shall be
Adjusted for Inflation from the date hereof), providing coverage for bodily
injury or property damage arising from, or cleanup of, actual, alleged or
threatened emission, discharge,



 73
 






 



dispersal, seepage, release or escape of Hazardous Materials from, on,
under, in or onto the Demised Premises or the Common Elements, as the case may
be, including any loss, cost or expense incurred as a result of the
investigation, settlement or defense of any claim, suit, or proceedings against
Landlord, including the payment of any monetary awards of compensatory damages,
arising from any such occurrence;


(k)        insurance to keep all glass in the
Demised Premises and the Common Elements, as the case may be, and in the
perimeter and demising walls thereof, and the frames for such glass, insured
against damage (including temporary repairs) subject to commercially reasonable
deductibles reasonably approved by Landlord;


(l)         while any of the Improvements located
in the Demised Premises or the Common Elements or any portions thereof are
being removed, in transit or at an off-site location, trip transit,
installation floater and bailee floater insurance (or any substitute form
providing equivalent coverage) covering the perils insured under the ISO
special causes of loss form, including collapse, water damage, transit, flood
(subject to Section 10.1(i) hereof),
and, to the extent available at commercially reasonable rates, earth movement
coverage, with deductible reasonably approved by any Recognized Mortgagee (and
if none, by Landlord), in nonreporting form, covering the Full Insurable Value
of such Improvements; and


(m)       such other insurance and in such amounts
as may from time to time be then customarily carried by owners of comparable
Class “A” office buildings (as understood on the date hereof) in midtown
Manhattan.


Section 10.2  Requirements
for Policies. All insurance provided for in this Article X (and in any other provision of
this Lease) shall:


(a)        be effected under standard form policies
issued by insurers of recognized responsibility, authorized to do business in
the State of New York, which are rated no less than “A-/VII” in the then
current edition of Best’s Insurance Report (or the then equivalent of such
rating); provided, however, that insurers providing coverage in
excess of the amounts required by Section
10.1 hereof may have a lower rating than the rating indicated in
this Section 10.2(a) so long as
any such insurers providing such excess coverage and having a lower rating than
is required by the first clause of this Section
10.2(a) are not treated as “co-insurers” hereunder of the amounts set
forth in Section 10.1 hereof;


(b)        as to any policies of insurance of the
character described in Sections 10.1(a),
10.1(c), 10.1(d), 10.1(g), 10.1(i), 10.1(j), 10.1(k), 10.1(1) and 10.1(m) hereof (if applicable), expressly
provide that any losses thereunder, subject to Section 10.6 hereof, in respect of losses arising in respect
of the Common Elements, shall be adjusted with Landlord and the Condominium
Association. All such insurance shall be carried in the name of Tenant or an
applicable Subtenant and shall name the Landlord, other Public Parties and any
property managers retained by Landlord as additional insureds thereunder. Any
loss thereunder shall be made payable to Landlord (provided that if
Depositary has been appointed to receive such funds, then to such Depositary),
and Tenant, as their respective interests may appear; and



 74
 






 



(c)        to the extent obtainable, contain an
agreement by the insurer that such policy shall not be cancelled or materially
altered to reduce the amount or the extent of any coverage afforded thereunder
without at least thirty (30) days’ prior written notice to Landlord, and shall
provide that any loss otherwise payable thereunder shall be payable
notwithstanding any act or negligence of Landlord or Tenant which might, absent
such agreement, result in a forfeiture of all or part of the payment of such
loss.


Section 10.3  Waiver of
Subrogation.


(a)        Waiver of Subrogation. Each of
the parties hereto shall include in each of its policies insuring against loss,
damage or destruction by fire or other insured casualty relating to the Demised
Premises and/or the Common Elements a waiver of the insurer’s right of
subrogation against the other party hereto, or, if such waiver is unobtainable
(i) an express agreement that such policy shall not be invalidated if Tenant
waives or has waived before the casualty the right of recovery against the
other party hereto or (ii) any other form of permission for the release of the
other party hereto, provided such waiver, agreement or permission is obtainable
under normal commercial insurance practice at the time. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable without
additional charge or at all, the party hereto shall so notify the other party
hereto promptly after notice thereof. If the other party hereto shall agree in
writing to pay the insurer’s additional charge therefor, such waiver, agreement
or permission shall (if obtainable) be included in the policy.


(b)        Waiver of Right of Recovery. As
long as the insurance policies of each party hereto include the waiver of
subrogation or agreement or permission to release liability referred to in Section 10.3(a) hereof, such party, to the
extent that such insurance is in force and collectible, hereby waives, for
itself and those claiming through and under it, any right of recovery against
the other party hereto and its agents for any loss occasioned by fire or other
insured casualty. If at any time any insurance policies of any party hereto
shall not include such or similar provisions, the waivers set forth in the
immediately preceding sentence shall be of no further force or effect.


Section 10.4  Delivery of
Policies.


(a)        Original Policies. As of the
Lease Assignment Date and thereafter not less than thirty (30) days prior to
the expiration dates of the expiring policies theretofore furnished pursuant to
this Article X, Tenant shall
deliver to Landlord a certified copy of the policies required by this Article X or insurance certificates (in
forms reasonably acceptable to Landlord) binding the insurer certifying the
issuance of such policies, bearing notations evidencing the payment of premiums
or accompanied by other evidence reasonably satisfactory to Landlord of such
payment, or certificates evidencing same.


(b)        Insurer Certification. Tenant
shall, upon the written request of Landlord, obtain and deliver to Landlord,
within twenty (20) Business Days after the date of any such request, a written certification from Tenant’s
insurer or independent insurance agent describing in reasonable detail the
insurance policies then being maintained by Tenant in accordance with the
requirements of this Article X.



 75
 






 



Section 10.5  Separate
Insurance. Tenant shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required in
this Article X to be furnished by,
or which may reasonably be required to be furnished by, Tenant unless Landlord
is included therein as an insured, with loss payable as in this Lease provided.
Tenant shall immediately notify Landlord of the taking out of any such separate
insurance and shall deliver the policy or policies as provided in Section 10.4 hereof.


Section 10.6  Cooperation;
Adjustment. (a) Landlord and Tenant shall cooperate in
connection with the collection of any insurance monies that may be due in the
event of loss in respect of the Demised Premises, but the same shall be at the
sole cost and expense of Tenant. If Tenant shall fail promptly and with due
diligence to make claim for and use good faith efforts to collect any insurance
monies that are so due, Landlord, upon twenty (20) Business Days prior written
notice to Tenant, may make claim for and collect the same directly on behalf of
and in the name of Landlord and Tenant. The aforesaid notice shall include the
following, in boldface print: “In the event
that Tenant fails to make a claim for and to collect insurance proceeds, as
required in Section 10.6 of the Lease, and such failure continues for twenty
(20) Business Days after delivery of this notice, Landlord shall be entitled to
make such claim and collect such proceeds.” Landlord (in the event
that claim in question is for an amount in excess of $5,000,000), Tenant and,
if required by the terms of the applicable Recognized Mortgage, the Recognized
Mortgagee most senior in lien, shall be entitled to participate in any
negotiations with the insurer regarding the adjustment of claims for damage to
the Demised Premises, and any settlement agreement shall be subject to the
approval of Landlord (in the event that the claim in question is for an amount
in excess of $5,000,000), Tenant and such Recognized Mortgagee, such approval
not to be unreasonably withheld.


(b)        Landlord and the Condominium Association
shall cooperate in connection with the collection of any insurance monies that
may be due in the event of loss in respect of the Common Elements, but the same
shall be at the sole cost and expense of Tenant. If Tenant shall fail promptly
and with due diligence to make claim for and use good faith efforts to collect
any insurance monies that are so due, Landlord, upon twenty (20) Business Days
prior written notice to Tenant, may make claim for and collect the same
directly on behalf of and in the name of Landlord and Tenant. The aforesaid
notice shall include the following, in boldface print: “In the event that Tenant fails to make a claim for
and to collect insurance proceeds, as required in Section 10.6 of the Lease,
and such failure continues for twenty (20) Business Days after delivery of this
notice, Landlord shall be entitled to make such claim and collect such
proceeds.” Landlord (in the event that claim in question is for an
amount in excess of $5,000,000), the Condominium Association and, if required
by the terms of the applicable Recognized Mortgage, the Recognized Mortgagee
most senior in lien, shall be entitled to participate in any negotiations with
the insurer regarding the adjustment of claims for damage to the Common
Elements, and any settlement agreement shall be subject to the approval of
Landlord (in the event that the claim in question is for an amount in excess of
$5,000,000), the Condominium Association and such Recognized Mortgagee, such
approval not to be unreasonably withheld.


Section 10.7  Approval by
Landlord. No approval by Landlord of any insurer shall be
construed to be a representation, certification or warranty of such insurer’s
solvency and no approval by Landlord as to the amount, type or form of any
insurance shall be construed to be



 76
 






 



a representation, certification or warranty of such insurance’s
sufficiency. Tenant shall be solely responsible for covering the deductibles
under the insurance policies provided hereunder regardless of whether Landlord
has approved the amount of such deductibles.


Section 10.8  Depositary.
Subject to Section 10.9 hereof,
any loss under all policies required by any provision of this Lease insuring
against damage to the Common Elements by fire or other casualty shall be
payable to the Depositary, except that amounts of less than Three Hundred Fifty
Thousand Dollars ($350,000) (as such sum shall be Adjusted for Inflation from
the Commencement Date) shall be payable in trust directly to Tenant for
application to the cost of Restoration in accordance with Article XI hereof. Any loss under any
policies insuring against damage to any portion of the Demised Premises
(exclusive of any portion of the Common Elements) or any personal property in
the Demised Premises shall be payable to Tenant.


Section 10.9  Security for
Commercial Property Insurance Premium.


(a)        As of the Lease Assignment Date, Tenant
shall provide to Landlord a guaranty (the “Insurance
Guaranty”), satisfactory
to Landlord, by NYTC, of Tenant’s Obligations under Section 10.1(a) hereof, guarantying such obligations up to
$75,000.00 (the “Security Deposit”). If on the fifth anniversary of the
Commencement Date, Tenant shall have fully performed its obligations under Section 10.1(a) hereof, Landlord shall
reduce the maximum liability under the Insurance Guaranty to $37,500. The
Security Deposit shall be Adjusted for Inflation once every five (5) years
beginning on the tenth anniversary of the Commencement Date; provided, however,
if prior to the fifth anniversary of the Commencement Date Landlord shall have
sent notice to Tenant that Tenant is or has ever been in default of the
provisions of this Section 10.9, the amount of the Security Deposit shall
be Adjusted for Inflation once every five (5) years beginning on the fifth
anniversary of the Commencement Date.


(b)        [INTENTIONALLY OMITTED]


(c)        If Tenant defaults in the full and
prompt payment and performance of any of Tenant’s covenants or obligations
under Section 10.4(a) hereof in
respect of the policies to be maintained under Section 10.1(a) hereof, Landlord may use, apply or retain the
whole or any part of the Security Deposit and the interest accrued thereon, if
any, to the extent required for the payment of any insurance premium required
to meet Tenant’s obligations under Section
10.1(a) hereof. If Landlord shall so use, apply or retain the whole
or any part of the Security Deposit and the interest accrued thereon, Tenant
shall upon demand immediately deposit with Landlord a sum equal to the amount
so used, applied or retained. If Tenant shall fully and faithfully comply with
all of Tenant’s obligations under Section
10.4(a) hereof in respect of the policies to be maintained under Section 10.1(a) hereof, the Security
Deposit (including interest thereon) or any balance thereof, shall be returned
or paid over to Tenant after the date on which this Lease shall expire or
sooner end or terminate, and after delivery to Landlord of entire possession of
the Demised Premises. In the event of any sale of Landlord’s interest in the
Lease, Landlord shall have the right to assign its interest in the Security
Deposit to the transferee or assignee and Landlord shall thereupon be released
by Tenant from all liability for the return or payment thereof; and Tenant
shall look solely to the new landlord for the return or payment of the same;



 77
 






 



and the provisions hereof shall apply to every transfer or assignment
made of the same to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the Security Deposit and neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.



 78














 


ARTICLE
XI

DAMAGE AND DESTRUCTION


Section
11.1 Damage and Destruction.


(a)    Restoration.
If, at any time during the term of this Lease, all or any part of the Common
Elements or any portion thereof shall be destroyed or damaged in whole or in
part by fire or other casualty (including any casualty for which insurance was
not obtained or obtainable) of any kind or nature, ordinary or extraordinary,
foreseen or unforeseen (each, a “Casualty”),
Tenant shall: (i) give to Landlord immediate notice thereof, except that no
notice shall be required if the estimated cost of repairs, restorations,
replacements and rebuilding, including temporary repairs or the protection of
other property pending the completion of any repair, restoration, replacement
or rebuilding thereof (collectively, “Restoration”)
shall be less than One Hundred Thousand Dollars ($100,000.00); (ii) file all
required documents and instruments with its insurers, and make such claims with
its insurers as shall be necessary or advisable; and (iii) take such steps as
shall be necessary or advisable to preserve any undamaged portion of the Common
Elements and to insure that the portions of the Common Elements that are
accessible to the public shall be safe and free from conditions hazardous to
life and property. Subject to Section 11.1(g)
hereof, Tenant shall, whether or not such Casualty shall have been
insured, and whether or not insurance proceeds, if any, shall be sufficient for
the purpose of such Restoration, diligently and with continuity (subject to Unavoidable
Delays and commercially reasonable standards) repair, alter, restore, replace
and rebuild (collectively, “Restore”)
the Common Elements, as nearly as possible to the condition, quality and class
of the Common Elements existing immediately prior to such occurrence (using
materials, equipment and construction techniques which are common at the time
of the damage or destruction), with such Alterations as Tenant (or the
Condominium Association), with the consent of Landlord in accordance with the standards
of review set forth in Article IX hereof,
shall elect to make, provided that after Restoration, the Common Elements is in
substantial conformity with the applicable Final Plans and Specifications and
in compliance with the DUO. Each Restoration shall be performed in accordance
with the provisions of this Article XI
and the provisions of Article IX hereof
as if such Restoration were an “Alteration” thereunder. In any case where this
Lease shall expire or be terminated prior to the completion of a Restoration
other than in connection with the exercise of the Purchase Option, Tenant shall
account to Landlord for all amounts spent in connection with any Restoration
which was undertaken and shall pay over to Landlord, within ten (10) days after
demand, the remainder, if any, of the Restoration Funds previously received by
it. Notwithstanding the foregoing, if a Casualty occurs during the last three
(3) years of the term of this Lease and the Restoration is estimated pursuant
to Section 10.1(d) hereof to require
six (6) months or longer after receipt of the insurance proceeds to complete,
Tenant shall have the right to terminate this Lease by giving notice to
Landlord to such effect no later than ninety (90) days after the occurrence of
such fire or other casualty. In the event Tenant gives such notice, this Lease
shall be deemed cancelled and terminated as of the date of the giving of such
notice as if such date were the Scheduled Expiration Date, and neither party
shall have any further rights or Obligations hereunder except such rights and
Obligations which by their express terms survive the termination of this Lease.


(b)    Non-Conforming
Restoration. If Tenant proposes a Restoration which does not conform to the
condition, quality or class of the Common Elements as they existed



 79
 






 



immediately prior to the damage or destruction and
such non-conformity would affect any element of the DUO (i.e., if the
Restoration would result in any element of the Demised Premises or the Common
Elements subject to the requirements of the DUO not being in substantially the
same condition after the Restoration as it was immediately prior to the
Casualty) or affects a Structural Component (other than by having a Nonadverse
Structural Effect), Tenant shall give Landlord notice of such proposed
nonconformity, and Landlord shall review and approve or disapprove such
Alteration in accordance with (i) the standard of review and time periods
applicable to a Major Alteration under Section
9.5(a) hereof and (ii) the applicable portions of the DUO. If
Landlord disapproves such Alteration, Landlord’s notice of disapproval shall
state, in reasonable detail, the grounds for such disapproval.


(c)    Commencement
and Completion of Restoration. Subject to Unavoidable Delays and to the
applicable provisions of the Site 8 South Subway Agreement, Tenant shall
commence the Restoration within one hundred eighty (180) days after the date of
the occurrence of the applicable damage or destruction; provided, however,
that if Tenant’s Recognized Mortgagee, together with all Recognized Mortgagees
under the other Severance Subleases, allow Tenant to commence Restoration
within a longer period, but not greater than one (1) year after the date of
occurrence of the applicable damage or destruction, then Tenant shall be permitted
to commence the Restoration required hereunder within one year after the date
of such occurrence. Once commenced, Tenant shall diligently and continuously
prosecute any such Restoration to completion.


(d)    Restoration
Estimate. Tenant shall, within ninety (90) days (or such longer period as
is permitted by Tenant’s Recognized Mortgagee, together with all Recognized
Mortgagees under the other Severance Subleases, not to exceed one hundred
eighty (180) days) after the occurrence of damage or destruction to the Common
Elements, deliver to Landlord a statement (the “Initial Restoration Estimate”) prepared by an Architect or an
Engineer, approved (or deemed approved) by Landlord pursuant to Section 9.6(a)(ii) hereof, setting forth
such Person’s estimate as to the time required to perform the Restoration and
the estimated cost of the Restoration. Landlord, at Tenant’s expense, may
engage a registered architect or a licensed professional engineer to prepare
its own Initial Restoration Estimate, and Tenant shall reimburse Landlord for
such expense within ten (10) Business Days after demand therefor by Landlord.


(e)    Landlord’s
Rights. Landlord in no event shall be obligated to Restore the Improvements
or any portion thereof or to pay any of the costs or expenses thereof. If
Tenant shall fail or neglect to diligently Restore (subject to Unavoidable
Delays) the Common Elements or the portion thereof so damaged or destroyed, or
having so commenced such Restoration, shall fail to diligently and continuously
complete the same in accordance with the terms of this Lease and any such
failure shall continue for twenty (20) Business Days after written notice to
Tenant specifying such failure in reasonable detail, or if prior to the
completion of any such Restoration by Tenant, this Lease shall expire or be
terminated for any reason (other than the acquisition of fee title by Tenant),
then Depositary shall not make any payment of Restoration Funds to Tenant or
the Condominium Association, as the case may be, hereunder and shall pay any
such Restoration Funds to Landlord who may retain such Restoration Funds
without any claim on the part of Tenant or the Condominium Association, as the
case may be, thereto and shall apply such Restoration Funds in any order
Landlord may elect but only toward the payment of the cost of



 80
 






 



the Restoration or
the payment of any Charges or other sums due and owing to Landlord hereunder.


(f)     Additional
Restoration Requirements. If the estimated cost of any Restoration required
by the terms of this Article XI is
equal to or greater than Three Hundred Fifty Thousand Dollars ($350,000) and
exceeds the Restoration Funds available for such Restoration, then, prior to
the commencement of such Restoration or thereafter if it is determined that the
cost to complete such Restoration exceeds the unapplied portion of such
Restoration Funds, Tenant shall deposit with Depositary a bond, cash, Letter of
Credit or other security reasonably satisfactory to Landlord in the amount of
such excess (it being agreed that an acceptable guaranty of an Acceptable
Guarantor shall be reasonably acceptable to Landlord for the purpose of this Section 11.1(f) so long as the estimated
cost of Restoration is less than or equal to $10,000,000), to be held and
applied by Depositary in accordance with the provisions of Section 11.3 hereof, as security for the
completion of such Restoration in accordance with this Article XI.


(g)    Purchase
Option. At any time from and after the tenth (10th) anniversary of the Delivery Date, in
the event of a Substantial Casualty, Tenant may exercise the Purchase Option in
accordance with Article V hereof.
In the event Tenant does (and all of the other tenants under the Severance
Subleases do) so exercise the Purchase Option, neither Tenant nor the
Condominium Association shall be required to Restore hereunder and Landlord
shall be deemed to have waived any of Landlord’s interest in any Casualty
insurance proceeds as set forth in Section
5.2 hereof (and Landlord shall confirm such waiver in writing to
Tenant within ten (10) days of Tenant’s request for such waiver).


(h)    Survival.
Tenant’s obligations under this Section 11.1 shall
survive the expiration or earlier termination of this Lease.


Section
11.2  Restoration Funds.


(a)    Payment
to Depositary. Subject to the provisions of Section 11.3 hereof, Depositary shall pay over to the
Condominium Association from time to time, upon the following terms, any monies
which may be received by Depositary from insurance obtained or maintained by or
for the benefit of Tenant or the Condominium Association, as the case may be,
for the Restoration (other than rent insurance and except as set forth in the
last sentence of Section 10.8 hereof)
(the “Restoration Funds”); provided, however, that
Depositary, before paying such monies over to the Condominium Association or
Tenant (in the case of amounts payable pursuant to Section 10.8 hereof) shall be entitled to reimburse itself,
Tenant, the Condominium Association and Landlord therefrom to the extent, if
any, of the necessary, reasonable and proper expenses (including reasonable
attorneys’ fees) paid or incurred by each of the foregoing in the collection of
such monies. If the Restoration Funds are Three Hundred Fifty Thousand Dollars
($350,000) or less, the same shall be paid directly to the Condominium
Association in trust for the Restoration. If the Restoration Funds are more
than Three Hundred Fifty Thousand Dollars ($350,000), Depositary shall pay to
the Condominium Association, in the manner provided in this Section 11.2 and Section 11.3 hereof, the Restoration Funds for the
Restoration. If the net Restoration Funds after payment of the aforementioned
expenses of collection shall be insufficient to pay the entire cost of the
Restoration, as determined in



 81
 






 



accordance with Section
11.1(d) hereof, the Tenant shall
cause the Condominium Association to deposit the amount of such shortfall with
Depositary to be held and disbursed by Depositary in the same manner as the
other Restoration Funds.


(b)    Retainage
of Restoration Funds. Subject to the provisions of Section 11.3 hereof and to any provisions
of the Recognized Mortgage most senior in lien setting forth additional, more
stringent conditions for the disbursement of the Restoration Funds or the
retainage of Restoration Funds not inconsistent herewith, the Restoration Funds
shall be paid to the Condominium Association in installments as the Restoration
progresses, less retainage equal to ten percent (10%) until fifty percent (50%)
of such Restoration is completed, and five percent (5%) until such Restoration
is fully completed, upon application to be submitted by the Condominium
Association, to Depositary and Landlord showing the cost of labor and materials
(i) purchased and delivered to the Property for incorporation in such Restoration
and that such materials have been insured by the Condominium Association
(including insurance against vandalism, theft, malicious mischief and the like)
for one hundred percent (100%) of the cost thereof and stored at a reasonably
secure and safe location at the Property, or (ii) incorporated therein since
the last previous application, and due and payable or paid by the Condominium
Association. The Depositary shall release that portion of the retainage
applicable to each trade upon completion by such trade of its portion of such
Restoration. If any vendor’s, mechanic’s, laborer’s or materialman’s lien is
filed against the Property or any part thereof, or if any public improvement
lien relating to the Restoration is created or permitted to be created by Tenant
or the Condominium Association, as the case may be, and is filed against
Landlord, or any assets of Landlord, and if such lien is not satisfied or
discharged (by bonding or otherwise) within forty- five (45) days after filing
of the lien, the Condominium Association shall not be entitled to receive any
further installment until such lien is satisfied or discharged (by bonding or
otherwise). Notwithstanding the foregoing, the existence of any such lien shall
not preclude the Condominium Association from receiving any installment of
Restoration Funds, provided such lien will be discharged with funds from
such installment.


(c)    Balance
of Funds. Upon receipt by Landlord of evidence satisfactory to it that the
Restoration has been completed except to an immaterial extent and paid for in
full and that there are no liens on the Property as a result thereof and upon
compliance with any provisions of the Recognized Mortgage most senior in lien
pursuant to Sections 11.2(b) and 11.3 hereof, the balance of the Restoration
Funds shall be paid over to the Condominium Association. Landlord shall
recognize any full or partial assignment by the Condominium Association to a
Recognized Mortgagee of any portion of the Restoration Funds payable to the
Condominium Association pursuant to the foregoing sentence.


(d)    Restoration
by Landlord. If Landlord makes the Restoration at the Condominium
Association’s expense, as provided in Section
11.1(e) hereof, then Depositary shall pay over the Restoration Funds
to Landlord, upon request, to the extent not previously paid to the Condominium
Association pursuant to this Section 11.2, and the Condominium Association shall pay
to Landlord, within seven (7) Business Days after demand, any sums in excess of
the portion of the Restoration Funds received by Landlord necessary to complete
the Restoration. Upon completion of the Restoration, Landlord shall deliver to
the Condominium Association a certificate setting forth the expenditures made
by Landlord for such Restoration



 82
 






 



and Landlord shall pay to the Condominium Association
any amount of Restoration Funds received by Landlord in excess of the amount
necessary to complete the Restoration.


Section
11.3  Conditions
Precedent to Disbursement. The following shall be conditions
precedent to the payment of each installment of Restoration Funds to the
Condominium Association as provided in Section
11.2 hereof, together with any additional conditions imposed by the
Recognized Mortgage most senior in lien which is required to or has agreed to
make such Restoration Funds available for the cost of Restoration:


(a)    there
shall be submitted to Depositary and Landlord the certificate of the aforesaid
Architect or the aforesaid Engineer stating that (i) the sum then requested to
be withdrawn either has been paid by the Condominium Association or is due and
payable to contractors, subcontractors, materialmen, engineers, architects or
other Persons (whose names and addresses shall be stated) who have rendered or
furnished services or materials for the Restoration and giving a brief
description of such services and materials and the principal subdivisions or
categories thereof and the several amounts so paid or due to each of said
Persons in respect thereof, and stating in reasonable detail the progress of
the Restoration up to the date of said certificate, accompanied by invoices
from any such contractors, subcontractors, materialmen, engineers, architects
and other Persons, (ii) no part of such expenditures has been or is being made
the basis, in any previous or then pending requisition, for the withdrawal of
the Restoration Funds or has been made out of the Restoration Funds previously
received by the Condominium Association (iii) the sum then requested does not
exceed the value of the services and materials described in the certificate,
(iv) the materials, fixtures and equipment for which payment is being requested
are in accordance with the applicable plans and specifications and changes
thereto, approved, to the extent required hereunder, by Landlord, (v) except in
the case of the final request for payment by the Condominium Association the
balance of the Restoration Funds held by Depositary, together with any
additional funds provided by the Condominium Association to the Depositary,
will be sufficient upon completion of the Restoration to pay for the same in
full, and stating in reasonable detail an estimate of the cost of such
completion, and (vi) in the case of the final request for payment by the
Condominium Association the Restoration shall have been completed,
substantially and in all material respects, in accordance with the provisions
of Article IX hereof that are
applicable to such Restoration;


(b)    there
shall be furnished to Landlord an official search, or a certificate of a title
insurance company reasonably satisfactory to Landlord, or other evidence
reasonably satisfactory to Landlord, showing that there has not been filed any
(i) vendor’s, mechanic’s, laborer’s or materialman’s statutory or other similar
lien affecting the Common Elements or any part thereof, or any public
improvement lien with respect to the Common Elements or the Restoration created
or permitted to be created by Tenant or the Condominium Association, as the
case may be, affecting Landlord, or the assets of Landlord which have not been
satisfied or discharged of record (by bonding or otherwise) within forty-five
(45) days after the filing of the lien except such as will be discharged upon
payment of the requisite amount out of the sum then requested to be withdrawn,
and (ii) other liens or encumbrances against the Property other than Permitted
Encumbrances; and


(c)    Tenant
or the Condominium Association, as the case may be, shall have delivered to
Landlord and to Depositary waivers of mechanic’s liens with respect to all of
the



 83
 






 



Restoration, completed prior to the date of the
payment application, on forms reasonably satisfactory to Landlord.


Section
11.4  Section 227 of Real Property Law.
The provisions of this Article
XI shall be deemed an express agreement governing any ease of damage
or destruction of the Demised Premises and/or the Common Elements by fire or
other casualty, and Section 227 of the Real Property Law of the State of New
York, providing for such a contingency in the absence of an express agreement,
and any other laws of like import, now or hereafter in force, shall have no
application in such case and are hereby waived by the parties hereto.


Section
11.5  Additional Requirements for
Restoration. The applicable provisions of Article IX hereof shall be applicable to
any Restoration as if the same were an Alteration under such Article.


Section
11.6  Effect of Casualty on this Lease.
This Lease shall neither terminate, be forfeited nor be affected in any manner,
nor shall there be a reduction or abatement of Charges by reason of damage to,
or total, substantial or partial destruction of, the Improvements, or by reason
of the untenantability of the Improvements or any part thereof, nor for any
reason or cause whatsoever, except pursuant to the express provisions of this
Lease. Except as so provided, Tenant’s obligations hereunder, including the
payment of Charges, shall continue as though the Improvements had not been
damaged or destroyed and shall continue without abatement, suspension,
diminution or reduction whatsoever.



 84
 






 



ARTICLE
XII

CONDEMNATION


Section 12.1  Condemnation.


(a)    Substantial
Taking. If, at any time during the term of this Lease, the whole or
Substantially All Of the Demised Premises and/or the Common Elements shall be
the subject of a Taking, by any lawful power or authority by the exercise of
the right of condemnation or eminent domain or by agreement among Landlord,
Tenant and those authorized to exercise such right then, (i) if such taking
occurs after the tenth anniversary of the Delivery Date, Tenant may exercise
the Purchase Option pursuant to the provisions of Article V hereof (and thereupon relinquish forever its right
to be subject to the DUO and receive the correlative benefits thereof), or (ii)
if Tenant does not so exercise the Purchase Option or if the same is not then
exercisable by Tenant hereunder, this Lease and the term of this Lease shall
terminate and expire on the date of such Taking. The term “Substantially All Of” shall be deemed to
mean such portion of the Demised Premises and/or the Common Elements as, when
so taken, in Tenant’s reasonable judgment, would leave remaining a balance of
the Demised Premises and/or the Common Elements which, due either to the area
so taken or the location of the part so taken in relation to the part not so
taken, would not under economic conditions, applicable zoning laws or building
regulations then existing or prevailing, and after performance by Tenant of all
covenants, agreements, terms and provisions contained herein or by Legal
Requirements required to be observed or performed by Tenant, readily
accommodate premises of a nature similar to the Demised Premises and capable of
producing a proportionately (i.e., proportional to the Rentable Square Feet not
so taken) fair and reasonable net annual income or capable of supporting
substantially similar activities as the Demised Premises.


(b)    Substantial
Taking; Award. If the whole or Substantially All Of the Demised Premises
shall be taken as provided in this Article
XII, then the condemnation award related thereto shall be paid to
Tenant, subject to the rights of any Recognized Mortgagees. If the whole or
Substantially All Of the Common Elements shall be taken as provided in this Article XII, then the condemnation award
related thereto shall be paid to the Condominium Association.


Section
12.2  Date of Taking.
For purposes of this Article XII,
the “date of Taking” shall be
deemed to be the earlier of: (a) the date on which actual possession of the
whole or Substantially All Of the Demised Premises and/or the Common Elements,
or a part thereof, as the case may be, is acquired by any lawful power or
authority pursuant to the provisions of the applicable federal or New York
State law; and (b) the date on which title to the Demised Premises and/or the
Common Elements or the aforesaid portion thereof shall have vested in any
lawful power or authority pursuant to the provisions of the applicable federal
or New York State law.


Section 12.3  Minor Taking; Condemnation Restoration.


(a)    Condemnation
Restoration. If less than Substantially All Of the Demised Premises and/or
the Common Elements shall be taken as provided in this Article XII, then (i) if such taking
involves a portion of the Demised Premises and/or the Common Elements valued at



 85
 






 



greater than Five Million Dollars ($5,000,000) and
occurs after the tenth anniversary of the Delivery Date, Tenant may exercise
the Purchase Option pursuant to the provisions of Article V hereof, or (ii) if Tenant does not so exercise or is
not then permitted to so exercise hereunder, this Lease and the term hereof
shall continue with a proportionate abatement (based on the ratio of the value
of the portion of the Demised Premises and/or the Common Elements so taken to
the value of the entire Demised Premises and/or the Common Elements immediately
prior to such taking) of the Charges and no other diminution of any of Tenant’s
Obligations hereunder. Tenant, at its sole cost and expense, whether or not the
award or awards, if any, shall be sufficient for the purpose and whether or not
the Recognized Mortgagees shall permit the award or awards to be used for the
restoration of the Demised Premises and/or the Common Elements, shall
diligently (subject to Unavoidable Delays) restore any remaining part of
Demised Premises and/or the Common Elements not so taken so that the latter
shall be complete, rentable, self-contained architectural units in good
condition and repair with such Alterations as Tenant, with the consent of
Landlord, shall elect to make (such work, a “Condemnation
Restoration”), provided that, after the completion of the
Condemnation Restoration, the Demised Premises and/or Common Elements are in
substantial conformity with the applicable Final Plans and Specifications and
in compliance with the DUO, to the extent practicable, taking into account the
nature and extent of the Taking. Provided that the condemnation award is made
available to Tenant or the Condominium Association, Tenant shall commence the
Condemnation Restoration within one hundred eighty (180) days of the date of
the Taking and shall diligently and continuously prosecute such Condemnation
Restoration to completion. In the event of any Taking of the nature described
in this Section 12.3(a), the
entire award for or attributable to the (A) Demised Premises, shall be paid to
Tenant without deduction for any estate vested in Tenant by this Lease, and (B)
the Common Elements, shall be paid to the Condominium Association, without
deduction for any estate vested in Tenant by this Lease.


(b)    Restoration
Funds. Subject to the provisions and limitations in this Article XII, Depositary shall make
available to Tenant (in respect of a Taking of the Demised Premises) and to the
Condominium Association (in respect of a Taking of the Common Elements) as much
of that portion of the condemnation award actually received and held by
Depositary, if any, less all reasonable expenses paid or incurred by
Depositary, Tenant, the Condominium Association and Landlord in connection with
the condemnation proceedings, as may be necessary to pay the cost of Condemnation
Restoration of the part of the Demised Premises and/or Common Elements
remaining. Such Condemnation Restoration, the estimated cost thereof, the
payments to Tenant or to the Condominium Association, as the case may be on
account of the cost thereof, Landlord’s right to perform the same, Tenant’s
obligation with respect to condemnation proceeds held by it, and any additional
conditions imposed by the Recognized Mortgage most senior in lien, shall be
done, determined, made and governed in accordance with and subject to the
provisions of Articles IX and XI hereof as if such amounts were
“Restoration Funds” thereunder. Payments to Tenant or the Condominium
Association, as the case may be, as aforesaid shall be disbursed in the manner
set forth in Sections 11.2(b) and 11.3 hereof. Any balance of the award held
by Depositary and any cash and the proceeds of any security deposited with
Depositary pursuant to Section 12.4
hereof remaining after completion of the Condemnation Restoration shall be paid
to Tenant, or the Condominium Association, as the case may be, subject to the
rights of Recognized Mortgagees. Each of the parties agrees to execute and
deliver any and all documents that may be reasonably required in order to
facilitate collection of the awards. If the portion of the award made available
by Depositary, as aforesaid,



 86
 






 



is insufficient for the purpose of paying for the
Condemnation Restoration, Tenant or the Condominium Association, as the case
may be, shall nevertheless be required to make the Condemnation Restoration and
pay any additional sums required for the Condemnation Restoration. Tenant’s or
the Condominium Association’s, as the case may be, failure to supply the amount
of any such deficiency within twenty (20) Business Days from demand of Landlord
shall constitute a default hereunder (it being acknowledged and agreed that if
such failure occurs after the tenth anniversary of the Delivery Date, Tenant
will, in such circumstance, be deemed to have exercised the Purchase Option).
If any portion of the condemnation award being used as Restoration Funds
remains unused after the completion of the applicable Condemnation Restoration,
the Depositary shall disburse such monies to Tenant or the Condominium
Association, as the case may be, subject to the rights of the Recognized
Mortgagees.


(c)    Performance
of Condemnation Restoration. Tenant shall, within ninety (90) days after
the occurrence of any Taking pursuant to this Section
12.3, deliver to Landlord a statement (the “Initial Taking Estimate”) prepared by an
Architect or an Engineer, selected by Tenant and approved (or deemed approved)
by Landlord pursuant to Section 9.6(a)(ii)
hereof, setting forth such Person’s estimate as to the time required to perform
the Condemnation Restoration required by such Taking and the estimated cost of
such Condemnation Restoration.


Section
12.4  Additional Restoration
Requirements. If the estimated cost of any Condemnation
Restoration exceeds the net condemnation award by an amount equal to the lesser
of (a) ten percent (10%) of the estimated cost of such Condemnation Restoration
and (b) $1,000,000, then, prior to the commencement of such Condemnation
Restoration or thereafter if it is determined that the cost to complete the
Condemnation Restoration exceeds the unapplied portion of such award, Tenant
shall deposit with Depositary a bond, cash, Letter of Credit or other security
reasonably satisfactory to Landlord in the amount of such excess, to be held
and applied by Depositary in accordance with the provisions of Section 12.3 hereof, as security for the
completion of the Condemnation Restoration in accordance with this Article XII.


Section
12.5  Temporary Taking.
If the temporary use of the whole or any part of the Demised Premises and/or
the Common Elements shall be taken at any time during the term of this Lease
for any public or quasi-public purpose by any lawful power or authority by the
exercise of the right of condemnation or eminent domain or by agreement between
Tenant and those authorized to exercise such right, Tenant shall give prompt
notice thereof to Landlord and of this Lease shall not be reduced or affected
in any way and Tenant shall continue to pay in full the Charges payable by
Tenant hereunder applicable to any period during the term of this Lease without
reduction or abatement, and Tenant shall be entitled to receive for itself any
award or payments for such use.


Section
12.6  Right to Compensation.
In case of any governmental action, not resulting in the Taking of any portion
of the Demised Premises and/or the Common Elements but creating a right to
compensation therefor, such as the changing of the grade or any street upon
which the Improvements abut, then, except as otherwise provided in Section 12.1 hereof, this Lease shall
continue in full force and effect without reduction or abatement of Charges.
The award made in connection therewith, in respect only of PA Retail Space: (a)
shall be paid to Tenant and included in Adjusted Gross Revenues if such act is
equivalent to a temporary Taking;



 87
 






 



and (b) shall not included
in Adjusted Gross Revenues if such act is equivalent to a permanent Taking, in
which event such award shall be used as provided in Section 12.3 hereof.


Section
12.7  Settlement; Compromise.
Landlord shall not settle or compromise any Taking or other governmental action
creating a right to compensation in Tenant as provided in this Article XII, and any such right to settle
or compromise shall be solely exercisable by Tenant or a Recognized Mortgagee.



 88














 


ARTICLE
XIII

ASSIGNMENT, SUBLETTING AND TRANSFER


Section 13.1  Transfers Generally.


(a)    Transfers
by Tenant. Except as otherwise provided herein, Tenant shall not, without
the prior written consent of Landlord, which consent may be withheld by
Landlord in its sole discretion, assign, mortgage, encumber or transfer its
interest in this Lease or any of Tenant’s rights or Obligations hereunder, by
Tenant’s action, by operation of law or otherwise, nor sublet, or permit the
subletting of, the Demised Premises or the Common Elements or any portion
thereof, nor enter into any franchise, concession, license or other occupancy
agreement, or grant any franchise, concession, license or other occupancy
rights with respect to the Demised Premises or the Common Elements or any
portion thereof (any of the foregoing, a “Transfer”). Notwithstanding the
foregoing, Tenant may, subject to the provisions of this Article XIII:


(i)          mortgage
its interest in the Lease and the leasehold estate in the Demised Premises and
the Common Elements created hereby to one or more Recognized Mortgagees in
accordance with Article XXXIII
hereof;


(ii)         [INTENTIONALLY
OMITTED];


(iii)        make
a Transfer to any Permitted Transferee (including, without limitation, a deemed
Transfer pursuant to Section 13.1(b)
hereof) or Permitted Developer;


(iv)       Transfer
interests in Tenant for the purpose of obtaining financing for the Demised
Premises or the Common Elements;


(v)        sublet
portions of the Demised Premises or the Common Elements in accordance with Section 13.2 hereof;


(vi)       [INTENTIONALLY
OMITTED];


(vii)      [INTENTIONALLY
OMITTED];


(viii)     [INTENTIONALLY
OMITTED]; and


(ix)        make
a Transfer in accordance with Section 13.11
hereof.


(b)    Equity
Interest Transfers. For purposes of this Section
13.1: (i) the issuance, assignment, transfer or other disposition of
any direct or indirect equity interest in Tenant (whether stock, partnership
interests, interests in a limited liability company or otherwise) to any Person
or group of related Persons, whether in a single transaction or a series of
related or unrelated transactions, in such quantities that after such issuance,
assignment, transfer or other disposition Control of Tenant, directly or
indirectly, shall have changed, shall be deemed a Transfer; (ii) the entering
into by Tenant of a take-over agreement shall be deemed a Transfer; and (iii)
any Person or legal representative of Tenant to whom Tenant’s interest under
this Lease or the applicable Sublease passes by operation of law, or otherwise,
shall be bound by the provisions of this Article
XIII. Notwithstanding the foregoing, a transfer of shares of any
entity



 89
 






 



which holds an interest in Tenant by Persons other
than those deemed “insiders” within the meaning of the Securities Exchange Act
of 1934, as amended, which transfer of shares is effected through the
“over-the-counter market” or through any recognized stock exchange, shall not
be deemed a Transfer.


(c)    Documentation.
Tenant shall, at the written request of Landlord, promptly submit to Landlord
such further documentation as Landlord may reasonably request with respect to
any Transfer hereunder which does not require Landlord’s prior written consent
and to evidence Tenant’s compliance with the provisions of this Section 13.1.


(d)    Equitable
Relief. Tenant hereby acknowledges that Landlord may suffer irreparable
harm by reason of a breach or threatened breach of the provisions of this Article XII, and, accordingly, in addition
to any other remedy that Landlord may have under this Lease or as may be
permitted by applicable law, Tenant agrees with Landlord that the seeking of
injunctive relief is an appropriate remedy for such breach or threatened breach
by Tenant.


(e)    Transfers
Void. Any Transfer by Tenant or other party in contravention of this Article XIII shall be void and of no
effect.


(f)     Notice
to Landlord. In respect of any proposed Transfer that is subject to
Landlord’s approval, Tenant shall give written notice thereof to Landlord,
which notice shall set forth the name of the proposed transferee and such other
information as is reasonably requested by Landlord so as to determine that the
proposed Transfer is permitted hereunder.


(g)    Other
Conditions. Notwithstanding any provision of this Article XIII to the contrary, Tenant shall
not make any Transfer unless: (i) at the time of such proposed Transfer, a
Default (noticed to Tenant as required hereunder and uncured) with respect to
any monetary or material non-monetary obligation under this Lease shall not
have occurred and be continuing (provided, however, that the condition
set forth in this clause (i) shall not apply to Transfers permitted pursuant to
Sections 13.1(a) and 13.1(b) hereof); and (ii) Tenant shall
reimburse Landlord for all reasonable out-of-pocket costs and expenses incurred
by Landlord, including reasonable legal fees and disbursements, in connection
with its examination and review of such proposed Transfer.


(h)    [INTENTIONALLY
OMITTED]


(i)     [INTENTIONALLY
OMITTED]


Section
13.2  Subleasing.


(a)    Conditions
to Sublease. The following conditions shall apply to any Sublease for the
occupancy of space in the Demised Premises:


(i)            no
monetary or material non-monetary Default and no Event of Default shall then
exist;


(ii)           the
Sublease shall specifically provide that the Sublease will be subject and
subordinate to this Lease and to all matters to which this Lease is subject and



 90
 






 



subordinate, and that in the event of any conflict
between this Lease and the Sublease, this Lease will be controlling;


(iii)          no
Sublease for Retail Space shall be for a purpose other than actual occupancy by
the named Subtenant or any affiliates thereof or for the occupancy of
concessionaires or licensees thereunder; provided, however,
nothing in the foregoing shall prohibit underletting by such named Subtenant,
pursuant to Subleases that comply with this Lease after a reasonable period of
occupancy by such named Subtenant;


(iv)          each
Sublease shall (A) specifically require that Subtenant shall comply with the
provisions of Article IX of this
Lease as those provisions pertain to Subtenant’s plans and specifications, (B)
recite that it is for a Permitted Use and that the Subtenant agrees to be bound
by the DUO, (C) contain a specific acknowledgment that such Subtenant has
received a copy of and reviewed this Lease, the Ground Lease and the DUO and
(D) with respect to a Sublease for Retail Space, shall incorporate in full the
provisions of Section 3.13 hereof
to the extent applicable to such Subtenant, including the rights and
obligations of such Subtenant and Landlord (and the Comptroller) in respect of
such Subtenant’s books of record and accounts;


(v)           the
proposed Subtenant (and the Principals thereof if such proposed Subtenant is
not publicly held) is not a Prohibited Person; and


(vi)          the
subletting shall end no later than one (1) day before the Scheduled Expiration
Date of this Lease.


(b)    Nondisturbance
Agreement. So long as Tenant is not then in monetary or material
non-monetary Default hereunder at the request of Tenant, Landlord shall enter
into a nondisturbance, subordination and attornment agreement substantially in
the form of Exhibit K attached
hereto (a “Nondisturbance Agreement”) with each proposed Subtenant under a proposed Sublease with
Tenant of all or any portion of the Demised Premises which meets the conditions
set forth in clauses (i) or (ii) below, as applicable, and each of clauses
(iii) through (vii) below.


(i)            As
to proposed Subtenants of the Roof Top Garden Space:


(A)     the
proposed Subtenant is of sufficient financial condition to perform the
obligations under the proposed Sublease, taking into account any security
deposit posted by the proposed Subtenant, and Landlord shall have been
furnished with evidence reasonably satisfactory to Landlord of such financial
condition, and


(B)     (1)
the Rentable Square Feet of the Roof Top Garden Space demised by such Sublease
is 10,000 or more, or


(2)           [a]
the Rentable Square Feet demised by such Sublease is 5,000 or more, but less
than 10,000, and [b] the Subtenant has expended or is obligated to expend at
least $100.00 (Adjusted for Inflation from the Commencement Date) per square
foot (exclusive of any allowance provided by the applicable landlord with
respect to such improvements) on such Subtenant’s initial build out, or



 91
 






 



(3)           [a]
the Rentable Square Feet demised by such Sublease is 2,500 or more, but less
than 5,000 and [b] the Subtenant has expended or is obligated to expend at
least $200.00 (Adjusted for Inflation from the Commencement Date) per square
foot (exclusive of any allowance provided by the applicable landlord with
respect to such improvements) on such Subtenant’s initial build out.


(ii)           As
to proposed Subtenants of Office Space:


(A)     [INTENTIONALLY
OMITTED]; or


(B)     (1)
the space demised by such Sublease is one-half of one full floor of Office
Space or more (provided, however, that, with respect to a
proposed sublease of less than a full floor of Office Space, Landlord’s
obligation to enter into a Nondisturbance Agreement pursuant to this Section 13.2(b) shall apply only if Tenant
shall supply to Landlord, together with Tenant’s Sublet Notice, evidence
reasonably satisfactory to Landlord, that the space to be leased shall be
regular in shape, reasonably accessible in a customary manner, rented at not
less than fair market value and otherwise on terms that are commercially
reasonable and customary in respect of similarly situated tenants of space of
the size and quality to be demised under the proposed Sublease), and (2) the
proposed Subtenant is of sufficient financial condition to perform the
obligations under the proposed Sublease, taking into account any security
deposit posted by the proposed Subtenant, and Landlord shall have been
furnished with evidence reasonably satisfactory to Landlord of such financial
condition. For the purposes of this clause (ii)(B), evidence of “fair market
value” and “commercially reasonable and customary” terms may be provided by the
opinion of two (2) or more disinterested real estate professionals, each having
at least ten (10) years of experience in valuing or leasing commercial real
estate in midtown Manhattan).


(iii)          The
proposed Subtenant is not a Related Entity of Tenant (except as permitted in
clause (ii)(A) of this Section 13.2(b)).


(iv)          The
proposed Subtenant (and the Principals thereof if such proposed Subtenant is
not publicly held) is not a Prohibited Person.


(v)           The
proposed Sublease shall provide for no decrease in the amount of rent payable
thereunder over the term of such Sublease except for customary abatements and
offsets of rent.


(vi)          None
of (A) the demise of the Demised Space (including any expansion space) under
such Sublease, nor (B) the exclusive or prohibited use provisions thereof,
conflict with [1] the demise under or [2] the exclusive or prohibited use
provisions of, any other Sublease, and Tenant shall deliver to Landlord a certification
to such effect signed by a Qualified Certifying Party of Tenant.


(vii)         The
proposed Sublease contains terms that are commercially reasonable and customary
in respect of similarly situated tenants of space of the size and quality to be
demised under the proposed Sublease, and the rent and other amounts owed
thereunder constitute not less than fair rental value for the space to be
demised thereunder (for the purposes of this clause (vii), evidence of
“commercially reasonable and customary” terms and “fair market



 92
 






 



value” may be provided by the opinion of two (2) or
more disinterested real estate professionals, each having at least ten (10)
years of experience in valuing or leasing commercial real estate in midtown
Manhattan).


For any Sublease by Tenant
for which Tenant requests that Landlord enter into a Nondisturbance Agreement,
Tenant shall give written notice thereof to Landlord (“Tenant’s  Sublet Notice”) accompanied
by a copy of the Sublease as fully executed or in executable form and such
information as Landlord may require to determine whether the proposed Subtenant
is a Prohibited Person. Tenant’s Sublet Notice shall contain the following
information: the name of the proposed Subtenant, the portion of the Demised
Premises to be sublet, the proposed term of the Sublease (including the
effective date thereof), the proposed Sublease rental and such financial and
other background, information with respect to the proposed Subtenant as is
reasonably sufficient to allow Landlord to assess the financial condition,
relevant experience, and all other material economic terms of the proposed
Sublease (but only to the extent the same are conditions under this Section 13.2(b) to Landlord’s obligation to
enter into a Nondisturbance Agreement). Landlord shall reasonably cooperate
with Tenant after receiving Tenant’s Sublet Notice to expedite the granting of
the applicable Nondisturbance Agreement. Disputes regarding this Section 13.2(b), may be referred to
arbitration pursuant to Section 16.3 hereof.


(c)    Subtenant
Attornment. Subject to any applicable Nondisturbance Agreement, every
subletting hereunder is subject to the express condition, and by accepting a
Sublease hereunder of all or any portion of the Demised Premises each Subtenant
shall be conclusively deemed to have agreed, that if this Lease should be
terminated prior to the Scheduled Expiration Date or if Landlord should succeed
to Tenant’s estate in the Demised Premises, then, at Landlord’s election, to be
exercised in Landlord’s sole judgment and discretion, the Subtenant shall
attorn to and recognize Landlord as the Subtenant’s landlord under the
Sublease, provided that Landlord shall not (i) be liable for any act or
omission or negligence of Tenant under such Sublease, (ii) be subject to any
counterclaim, offset or defense which theretofore accrued to such Subtenant
against Tenant, (iii) be bound by any modification or amendment of such
Sublease (unless such modification or amendment shall have been approved in
writing by Landlord), (iv) be bound by any payment of rent or additional rent
for more than one (1) month in advance (unless actually received by Landlord),
(v) be obligated to perform any Alteration in the Demised Space, (vi) in the
event of a Casualty, be obligated to repair or restore the Demised Premises or
any portion thereof, (vii) in the event of a partial Taking, be obligated to
repair or restore the Demised Premises or any part thereof (except that, in the
event that Landlord receives Insurance Proceeds and determines not to restore
in such circumstances, the Subtenant can terminate its Sublease), (viii) be
obligated to make any payment to such Subtenant (other than any overpayment of
rent made to Landlord), or (viii) be bound by any obligations which Landlord
lacks the capacity or reasonable ability to perform. The Subtenant shall
promptly execute and deliver any instrument Landlord may reasonably request to
evidence such attornment. With respect to any Sublease for which Landlord has
entered into a Nondisturbance Agreement, the foregoing provisions of this Section 13.2(c) shall be superseded by such
Nondisturbance Agreement. Upon such a termination of this Lease, Tenant shall
pay over to Landlord all sums held by Tenant for the benefit of Subtenants or
as security under the provisions of then existing Subleases except if such
termination of this Lease results from Tenant’s exercise of the Purchase
Option.



 93
 






 



(d)    Sublease
Rent Requirements. Each permitted Sublease hereunder shall require the
Subtenant thereunder to make, subject to the rights of any Recognized
Mortgagee, all payments of rents, additional rents and other sums of money to
Landlord upon the occurrence of a monetary or material nonmonetary Event of
Default hereunder and notice from Landlord, and Landlord shall apply the said
payments made to it, first, to retain all amounts that are due and payable to
Landlord pursuant to this Lease, and second, to pay to Tenant all remaining
amounts.


(e)    Enforcement
of Subleases. Tenant shall diligently, continuously and in good faith, and
in accordance with commercially reasonable practices, enforce the provisions of
each Sublease, so that each Subtenant at all times remains in compliance with
the DUO and permits no acts or omissions that adversely affect any Structural
Component. If the breach of a Sublease by the Subtenant thereunder constitutes
a material violation of the DUO or any other aspect of this Lease in respect of
Structural Components, Tenant shall promptly commence and diligently prosecute
any and all appropriate legal proceedings necessary to cause such Subtenant to
cure such breach (“Eviction Proceeding”).


(f)     No
Demise of Common Elements. Tenant covenants that it shall in no
circumstances sublease, license or otherwise transfer its interest in any
portion of the Common Elements to any other Person, except as such transfer may
be expressly permitted hereunder (including, as permitted in Article XXXIV hereof).


Section
13.3  Assignments.


(a)    Assignee
Obligated. Each and every assignee of this Lease, whether or not approved
by Landlord and whether as assignee or as successor in interest to Tenant named
herein or any subsequent assignee, including any purchaser of the Lease under a
foreclosure of any Mortgage or other lien on this Lease, shall, in the case of
an assignee of the Lease, immediately be and become and remain liable, for the
payment of the Charges and other sums payable under this Lease, and for the due
performance of all of Tenant’s Obligations under this Lease, in each case to
the extent arising from and after the effective date of such assignment to the
full end of this Lease, and each and every provision of this Lease applicable
to Tenant shall also apply to and bind every such assignee and purchaser with
the same force and effect as though such assignee or purchaser were Tenant
named in this Lease. No Transfer to such assignee or to such purchaser shall be
binding upon Landlord unless such assignee or purchaser shall deliver to
Landlord a recordable instrument (i) agreeing to indemnify Landlord from and
against any Claims for brokerage commissions, any Claims derived from
Landlord’s granting its consent to such assignment in accordance with the terms
hereof and any other Claims not derived from Landlord’s actions arising out of
such assignment (provided, however, that this subclause (i) shall
not apply with respect to a Transfer to a Recognized Mortgagee pursuant to a
foreclosure of the applicable Recognized Mortgage) and (ii) subject to Article XXXI hereof, assuming the
obligations of Tenant hereunder by said assignee or purchaser to such effect,
but the failure or refusal of such assignee or purchaser to deliver such
instrument shall not release or discharge such assignee or purchaser from its
Obligations as above set forth.


(b)    Release
of Assignor. Upon an assignment of this Lease in accordance with this Article XIII, the assignor shall have no
further Obligations arising after the effective date of such assignment and
Landlord shall confirm such release in a recordable instrument



 94
 






 



promptly delivered to Tenant (but the failure of
Landlord to deliver such confirmation shall not prevent such release from
becoming effective); provided, however, the foregoing release
shall not relieve assignor from any obligation accruing prior to the date of
such assignment.


Section
13.4  Collect Charges from Assignee,
Subtenant. If this Lease is assigned, whether or not in
violation of the provisions of this Lease, Landlord may and is hereby
empowered, subject to the rights of any Recognized Mortgagee, to collect the
Charges and other sums payable to Landlord hereunder from the assignee and to
enforce the Obligations of Tenant hereunder against such assignee. If the
Demised Premises or any part thereof is sublet or is used by anyone other than
Tenant, whether or not in violation of this Lease, Landlord may, after an Event
of Default by Tenant and expiration of Tenant’s time to cure such Event of
Default, if any, collect rent from the Subtenant or occupant. In either event,
Landlord may apply the net amount collected to the Charges and other sums herein
reserved or provided for, but no such assignment or subletting or collection
nor any action to enforce the provisions of this Lease against any such
assignee or Subtenant shall be deemed: (a) a waiver of the covenant herein
against Transfer; (b) an acceptance of the assignee or Subtenant as a tenant
under this Lease; or (c) a release of Tenant from the further performance of
its Obligations hereunder.


Section
13.5  No Relief. Notwithstanding
any provision to the contrary in this Lease and except as set forth in Section 13.3(b) hereof, the making of any
Transfer, in whole or in part, whether or not with the consent of Landlord,
shall not operate to relieve Tenant herein named from its Obligations under
this Lease. In the event of any such permitted Transfer, except as provided in Section 13.3(b) hereof, Tenant herein named
shall remain fully responsible and liable for the prompt payment of all Charges
and other sums due hereunder and for the due performance and observance of all
of Tenant’s Obligations under this Lease, to the full end of this Lease,
whether or not there shall have been any prior termination of this Lease by
summary proceedings or otherwise. Each permitted Sublease shall expressly be
made subject to the provisions of this Lease and no permitted Transfer shall in
any manner affect or reduce any of the obligations of Tenant hereunder.


Section
13.6  Consent. Any
consent by Landlord herein contained or hereafter given to any Transfer shall
be held to apply only to the specific Transfer hereby or thereby approved. No
such consent shall be construed as a waiver of the duty of Tenant, or its
successors or assigns, to obtain from Landlord a consent to any other or
subsequent Transfer or as a modification or limitation of the right of Landlord
with respect to the foregoing covenant by Tenant.


Section
13.7  Costs and Expenses. Subject
to Section 13.1(g) hereof, Tenant
covenants and agrees to pay all reasonable out-of-pocket costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in connection
with or arising out of the making of any Transfer, including costs related to
Landlord’s review of any proposed Transfer and the documentation in connection
therewith. Tenant agrees to pay any federal, state or local excise, transfer,
recording or other tax or fee imposed upon or applicable to any such Transfer,
and to indemnify Landlord from and against any such cost or expense. Tenant
further agrees that any consent of Landlord required hereunder may be
conditioned upon receipt by Landlord of reasonable evidence of the payment of
any such cost or expense. The Obligations of Tenant



 95
 






 



under this Section
13.7 (and all other obligations expressly stated to survive this
Lease) shall survive the expiration or earlier termination of this Lease.


Section
13.8  Prohibited Persons. (a)
Notwithstanding the foregoing provisions, in no event shall Tenant be permitted
to make a Transfer to a Prohibited Person, nor shall any other Subtenant be
permitted to assign its Sublease or sublet or otherwise grant occupancy rights
with respect to its Demised Space or any portion thereof to a Prohibited
Person.


(b)    Procedure
for Determining Prohibited Person Status. If Tenant seeks to determine
whether any Person subject to the restrictions in this Lease regarding Prohibited
Persons is a Prohibited Person, Tenant may submit to Landlord the name of such
Person and, except with respect to any Person that is publicly held, the name
of each Principal of such Person, together with such completed questionnaires
or forms as are standard for Landlord, the City or NYCEDC to request.
Notwithstanding anything to the contrary contained in this Lease, any provision
in this Lease prohibiting a Person from being a Prohibited Person shall also
apply to the Principals of such Person unless such Person is a publicly traded
entity. Within fifteen (15) Business Days after receipt of all such names and
fully-completed questionnaires or forms, as applicable, Landlord shall notify
Tenant of Landlord’s determination, which determination shall be limited to
whether such Person (and any Principals thereof) is a Prohibited Person;
provided, however, that Landlord will confirm whether any Person is a
Prohibited Person promptly after receiving all of the information described in
this Section 13.8(b). If Landlord fails to so notify Tenant
within such fifteen-Business-Day period, then such Person shall be deemed not
to be a Prohibited Person; provided, however, with respect to any
proposed assignee of this Lease or any Sublease or any proposed Subtenant of
the Property or any portion thereof, the following shall apply instead: If
Landlord fails to so notify Tenant within such fifteen-Business-Day period,
Tenant shall have the right to give Landlord a reminder notice, which reminder
notice shall contain the following caption in bold and capitalized type:


YOU SHALL BE DEEMED TO HAVE
DETERMINED THAT                     
IS NOT A PROHIBITED PERSON IF YOU FAIL TO NOTIFY TENANT OF WHETHER SUCH PERSON
IS A PROHIBITED PERSON WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF YOUR
RECEIPT OF THIS NOTICE.


If Landlord fails to notify Tenant of whether such
Person is a Prohibited Person within ten (10) Business Days after its receipt
of such reminder notice, then such Person shall be deemed not to be a
Prohibited Person.


Section
13.9  Constitutive Documents. Upon
request by Landlord, Tenant shall deliver to Landlord any Constitutive
Documents and any replacement, amendment, modification or termination (any such
act, a “Modification”) of any Constitutive Documents to the extent
reflecting any Transfer, together with such other information and evidence as
shall be reasonably necessary and reasonably satisfactory to Landlord to
confirm the composition and identity of Tenant (or any member of Tenant) and
compliance with the requirements of this Article
XIII. Tenant shall also
deliver a certification by a Qualified Certifying Party of Tenant stating that
nothing Tenant has not shown to Landlord will render the information that
Tenant has shown to Landlord inaccurate or misleading.



 96
 






 



Section
13.10  Permitted Disposition.


(a)    Indicted
Party. If any grand jury impaneled by any federal or state court files an
indictment with such court charging Tenant or any Principal of Tenant (such
indicted Person, the “Indicted Party”) with having committed an intentional
felony in connection with the Demised Premises, then Landlord shall convene a
hearing (the “Hearing”) before a panel of three persons consisting
of (i) the City’s Deputy Mayor for Finance and Economic Development, or a
successor in function designated by the Mayor of the City, (ii) the President
of NYCEDC, or a successor in function designated by the Mayor of the City, and
(iii) the Corporation Counsel of the City, or their respective duly authorized
designees who shall be disinterested senior officials of their respective
department or NYCEDC, as the case may be (the “Hearing
Officers”).


(b)    Hearing.
The Hearing shall be held upon not less than fifteen (15) Business Days prior
written notice to the Indicted Party and Tenant for the purpose of determining
whether it is in the best interest of the City to require the Indicted Party to
make a Permitted Disposition of its interest in this Lease or in Tenant, as the
case may be, and, if the Indicted Party is a Principal of Tenant, resign from
any directorship or office held by the Indicted Party in Tenant. At the
Hearing, Tenant and the Indicted Party shall each have the opportunity to be
represented by counsel and to make a presentation to the Hearing Officers
orally and in writing. The Hearing Officers shall consider and address in
reaching their determination (i) whether there is a direct nexus between the
conduct charged and this Lease, (ii) the deleterious effect, if any, which a
Permitted Disposition of the Indicted Party’s interest in this Lease or in
Tenant, as the case may be, would have on the economic development interests of
the City which this Lease is intended to promote and the deleterious effect, if
any, such a Permitted Disposition would have on Tenant as a whole and (iii) any
other relevant matters. The Hearing Officers shall render a decision in writing
within twenty-three (23) Business Days after the last day of the Hearing and
such decision shall set forth in reasonable detail the findings of the Hearing
Officers. Landlord shall deliver a true copy of such decision to Tenant and the
Indicted Party within four (4) Business Days after the date thereof. Such
decision shall be final and subject to review by appropriate lawful means,
unless (A) the indictment is amended in any material respect or (B) a new or
superseding indictment is filed, the basis of which is materially different
from the indictment as to which the Hearing has been held, in which case a new
Hearing may be held. If the Hearing Officers decide by a majority vote that it
is in the best interest of the City to require a Permitted Disposition by the
Indicted Party, (1) the Indicted Party (if the Indicted Party is a Principal of
Tenant) shall resign from any directorship or office held by the Indicted Party
in Tenant within seven (7) Business Days after the date a true copy of such
decision is delivered to it and (2) the Indicted Party shall make a Permitted
Disposition of its interest in this Lease or in Tenant, as the case may be,
within six (6) months after the date a true copy of such decision is delivered
to it. If the Permitted Disposition is an Equity Interest Disposition or
Assignment, the Indicted Party may receive the consideration for such Equity
Interest Disposition or Assignment in installment payments, provided that such
consideration (other than interest thereon) shall be for a sum certain and
provided further that, except as otherwise provided below, following such
Equity Interest Disposition or Assignment, the Indicted Party shall have no
further interest in this Lease or Tenant, as the case may be, or in any profits
therefrom. If the Hearing Officers do not determine by a majority vote that it
is in the best interest of the City to require a Permitted Disposition by the
Indicted Party, then neither the indictment nor any conviction arising



 97
 






 



therefrom shall have any effect upon this Lease or the
rights or obligations of the parties hereunder or thereunder.


(c)    Default.
Any failure of (i) the Indicted Party to make a Permitted Disposition of its
interest in this Lease or Tenant, as the case may be, and (if the Indicted
Party is a Principal of Tenant) to resign from directorships or offices, as
provided above, or (ii) the Person acting as a trustee to make a Permitted
Disposition of the Indicted Party’s interest in this Lease or in Tenant, as the
case may be, following a Conviction, within the time and in the manner provided
hereunder, shall be deemed to be an Event of Default by Tenant hereunder.


(d)    Permitted
Disposition. “Permitted Disposition” means
any of the following (the choice among which, to the extent applicable, shall
be at Tenant’s option): (i) the Assignment or Equity Interest Disposition of
the Indicted Party’s interest in this Lease or Tenant, as the case may be, to
any Person who is (A) not a Prohibited Person, (B) not a Related Entity or
affiliate of the Indicted Party and (C) satisfactory to Landlord, applying the
provisions of Section 13.2 hereof,
and to the holder of the Recognized Mortgage most senior in lien (if required
by the terms of such Recognized Mortgage); (ii) if the Indicted Party is not
Tenant, the Equity Interest Disposition (or other transfer or relinquishment)
of the Indicted Party’s interest in Tenant, to Tenant, any other partner(s) of
Tenant or any other owners of direct or indirect ownership interests in Tenant;
(iii) the giving of the Indicted Party’s interest in this Lease or Tenant, as
the case may be, to a Person (other than a Related Entity or an affiliate of
the Indicted Party) who is acting in a fiduciary capacity as an independent
trustee for the benefit of the Indicted Party for the purpose of actively
managing this Lease or the Indicted Party’s interest in Tenant, as the case may
be, or (iv) a combination of two or more of the actions described in clauses
(i), (ii) and (iii) above with respect to portions of the Indicted Party’s
interest that constitute, in the aggregate, the Indicted Party’s entire
interest. The trustee agreement between the Indicted Party and the trustee
contemplated by clause (iii) of the immediately preceding sentence shall be
reasonably satisfactory to Landlord as well as to the holder of the Recognized
Mortgage most senior in lien (if required by the terms of Recognized Mortgage).
The trust agreement shall provide as follows:


(1)    if
(x) the Indicted Party is found not guilty of the felony for which it is
indicted or (y) the felony charges against such Indicted Party are dismissed or
changed or reduced to charges that do not constitute an intentional felony,
then the trustee shall give back the Indicted Party’s interest in Tenant or in
this Lease to the Indicted Party, and the Indicted Party shall have the right
to be a director and hold office in Tenant;


(2)    if
(x) the Indicted Party is found guilty of the felony for which it is indicted
and such verdict is affirmed by the court having ultimate jurisdiction to hear
any appeal of such conviction or the period of appeal expires or the Indicted
Party waives any right to appeal such determination or (y) the Indicted Party
pleads guilty to the felony for which it is indicted or another intentional
felony (as to which a Hearing is held and a determination made that a Permitted
Disposition by the Indicted Party is in the best interest of the City) (either
(x) or (y) above, a “Conviction”), then
the trustee shall assign this Lease or make a sale of the Indicted Party’s
interest in Tenant, as the case may be, within six (6) months after the date of
the Conviction to a Person or Persons permitted under clause(s) (i) and (ii)
above; and



 98














 


(3)    during
the pendency of any such trust, the Indicted Party shall exercise no control
over any portion of the Demised Premises or Tenant, as the case may be, but may
make contributions to the Demised Premises or Tenant, as the case may be, and
receive distributions therefrom. Landlord shall be deemed to have determined
that a Person is satisfactory to Landlord under clause (i) above if Landlord
shall not have delivered notice to Tenant that the proposed Person to whom the
Permitted Disposition is to be made is unsatisfactory with forty-five (45) days
after Tenant makes a written request accompanied by such financial and
biographical information and other documentation as Landlord may reasonably
require in making the determination. Neither the giving of the Indicted Party’s
interest in this Lease or Tenant, as the case may be, to a Trustee, nor the
giving back by a Trustee to the Indicted Party of such interest, shall
constitute an Assignment or Equity Interest Disposition. No Permitted
Disposition which complies with the requirements of this Section 13.10(d)(3) shall constitute a
default on the part of Tenant under this Lease.


Section 13.11  Right to Amend to Reflect Exercise of
Certain Options.


(a)    The
parties hereto acknowledge that, pursuant to NYTB’s operating agreement and to
the Condominium Declaration, from time to time Tenant may exercise certain
rights to purchase specified space in the Improvements from FC or may otherwise
acquire such space.


(b)    In
the event that Tenant or any Control Affiliate thereof acquires space as
described in Section 13.11(a) hereof,
and notice of such acquisition is provided to Landlord describing in detail the
space in the Improvements acquired by Tenant or any Control Affiliate thereof,
the date such transfer will take place and any other information that Landlord
may reasonably request regarding such transfer, (i) Landlord shall enter into
(A) an amendment of this Lease with Tenant, effective as of the date of such
transfer, altering the description of the Demised Premises accordingly and (B)
an amendment of any other Severance Sublease with the tenant thereunder, the
demise thereunder which is affected by such transfer, effective as of the date
of such transfer, altering accordingly the description of the Demised Premises (as
defined in such Severance Sublease) and the applicable Percentage Allocation,
and (ii) Tenant shall provide to Landlord an Architect’s Certificate as
described in Section 3.1(a)(i)(B)(2) hereof
and a Tenant’s TSF Certificate, both reflecting any alteration in the number of
Taxable Square Feet comprising the Demised Premises.


(c)    Tenant
shall pay, upon Landlord’s demand, all of Landlord’s reasonable costs
associated with Landlord’s review, negotiation and finalization of
documentation in respect of any amendment of this Lease pursuant to this Section 13.11.



 99
 






 



ARTICLE
XIV

DEFAULT PROVISIONS


Section
14.1  Conditions of Limitation. (a)
This Lease and the term and estate hereby granted are subject to the limitation
that whenever an Event of Default shall occur, regardless of and
notwithstanding the fact that Landlord has or may have some other remedy under
this Lease or by virtue hereof, or in law or in equity, Landlord may, subject
to Section 14.1(b) hereof, give to
Tenant a Termination Notice and, upon the giving of the Termination Notice,
this Lease and the term and estate hereby granted shall expire and terminate
upon the day so specified in the Termination Notice as fully and completely and
with the same force and effect as if the day so specified were the Scheduled
Expiration Date and all rights of Tenant under this Lease shall expire and
terminate, but Tenant shall remain liable for damages as hereinafter provided.
From and after the date upon which Landlord shall be entitled to give a
Termination Notice, Landlord, without further notice, may re-enter, possess and
repossess itself of the Demised Premises as set forth in Section 23.2 hereof.


(b)    The
parties hereto acknowledge and agree that the occurrence of a Default hereunder
shall cause irreparable harm to Landlord and to the 42nd Street Project. In
recognition of such harm to Landlord and the 42nd Street Project, and in
consideration for Landlord’s election to invoke such remedy, Landlord may
elect, in Landlord’s sole discretion, to forego (but only until, with respect
to each such Default, receipt by Tenant of the notice described in Section 14.1(b)(iii) hereof) the remedies
set forth in Sections 14.1(a) and 14.3(a) hereof, and in lieu thereof to
elect that the following payments be made by Tenant:


(i)            In
respect of any Default pursuant to Section
14.2(a) hereof, Tenant shall pay to Landlord a sum in the amount of
$1,000 per day (Adjusted for Inflation upon the Substantial Completion Date and
on every fifth annual anniversary thereof), which amount shall be reduced to
Tenant’s Percentage Allocation of such amount in the event that the Default in
question arose solely in respect of the Common Elements and Landlord has
invoked Section 14.1(b) under each Severance Sublease against each tenant of
the Severance Subleases as a remedy therefor, from Tenant’s receipt of a First
Default Notice until the date such Default is remedied; and


(ii)           In
respect of any Default pursuant to Sections
14.2(b), 14.2(c) and 14.2(d) hereof, Tenant shall pay to
Landlord a sum in the amount of $2,000 per day (Adjusted for Inflation upon the
Substantial Completion Date and on every fifth annual anniversary thereof),
which amount shall be reduced to Tenant’s Percentage Allocation of such amount
in the event that the Default in question arose solely in respect of the Common
Elements and Landlord has invoked Section 14.1(b) under each Severance Sublease
against each tenant of the Severance Subleases as a remedy therefor, from
Tenant’s receipt of a First Default Notice until the date such Default is
remedied; provided, however, that for so long as Tenant shall not
have received First Default Notices regarding any two (2) or more Defaults (it
being understood that, if a Default is later determined not to have occurred,
such Default shall not qualify as one of the two (2) or more Defaults under
this provision) within the preceding twelve (12) month period (A) the amounts
described in this Section 14.1(b)(ii) shall
not begin to accrue against Tenant unless and until the grace period provided
in Section 14.2(b), 14.2(c) or 14.2(d) hereof, as applicable, has expired, and (B) in the
event that such underlying Default is cured prior to the expiration of



 100
 






 



any grace period provided in Section 14.2(b), 14.2(c) or 14.2(d) hereof,
any such amount payable under this Section
14.1(b)(ii) shall be waived by Landlord and not imposed against
Tenant.


(iii)          Landlord
may elect, at any time after Landlord’s election to receive any of the payments
described in clause (i) or (ii) of this Section
14.1(b), upon delivery to Tenant of another First Default Notice
(thereupon reinitiating the relevant cure periods), to pursue any of the
remedies otherwise available under this Lease with respect to the applicable
Default. In such event, the respective amounts described in this Section 14.1(b) shall immediately cease to
accrue, with respect to all such Defaults, as of the date Landlord makes an
election to pursue any other remedy, it being understood that, as to amounts
accrued prior to such election, (A) such amounts shall continue to be owing and
(B) Landlord shall have all rights and remedies under this Lease in respect to
Tenant’s failure to pay such accrued sums. It is further acknowledged and
agreed that Landlord may, at a later date, again forego the remedies set forth
in Sections 14.1(a) and 14.3(a) hereof, and again seek payment from
Tenant pursuant to and in accordance with this Section 14.1(b) upon delivery to Tenant of another First
Default Notice (thereupon reinitiating the relevant cure periods).


Section
14.2  Events of Default.
An “Event of Default” shall have
occurred (in each case, upon the occurrence of the following: (x) Tenant
receiving notice (it being agreed that (1) in the event Landlord is barred (by
an automatic stay or court order) from giving any notice referred to in this Section 14.2 by reason of or in connection
with the bankruptcy or insolvency of Tenant or proceedings in respect thereof,
such notice shall be deemed automatically waived by Tenant for all purposes of
this Lease and (2) Landlord shall deliver such notice in connection with a
Default relating to the Common Elements to Tenant and to all of the tenants
under the Severance Subleases substantially simultaneously) from Landlord (a “First Default Notice”) substantially in
the form of Exhibit M attached
hereto stating that (1) Tenant is in Default hereunder and stating the period,
if any, set forth in the following subsections of this Section 14.2, during which Tenant must cure
such Default and (y) Tenant receiving, at any time after the cure period
described in the relevant First Default Notice shall have elapsed without
Tenant having cured the delineated Default, a notice from Landlord,
substantially in the form of Exhibit N attached
hereto, indicating that if, within five (5) Business Days after receipt of such
second notice, the Default in question has not been cured to Landlord’s
satisfaction, an Event of Default shall have occurred, any time after such five
(5) Business Day period, Landlord may, but is not obligated to, send a notice
to Tenant (the “Termination Notice”),
specifying a day that the term of this Lease shall end), after any of the
following have occurred (Landlord’s right to invoke its remedies hereunder in
respect of any such Event of Default being subject to suspension pursuant to Section 14.1(b) hereof):


(a)    whenever
Tenant shall default in the payment of any installment of Charges on any day
upon which the same is required to be paid, and any such default shall continue
for five (5) Business Days after Landlord shall have delivered to Tenant a
First Default Notice; or


(b)    whenever
Tenant shall fail to comply with Tenant’s Obligations to maintain adequate
insurance in respect of the Condominium Unit as required pursuant to Article



 101
 






 



X hereof, and
Tenant shall fail to remedy the same within seven (7) Business Days after
Landlord shall have given Tenant a First Default Notice; or


(c)    whenever
Tenant shall do, or permit anything to be done, whether by action or inaction,
contrary to any of Tenant’s Obligations under this Lease (except [(i)]as
otherwise provided in this Section 14.2 and
(ii) in respect of the operation of the Public Amenity, Landlord’s sole remedy
for Tenant’s failure to operate the Public Amenity in compliance with Section 30.4(d) hereof shall be as set
forth in Section 30.4 hereof), and
Tenant shall fail to remedy the same within thirty (30) days after Landlord
shall have given Tenant a First Default Notice, unless the remedying thereof
requires work to be done, action to be taken, or conditions to be satisfied,
which cannot, by their nature, reasonably be performed, done or satisfied by
Tenant within such 30-day period (it being agreed that Landlord may, at a
commercially- reasonable cost (to be paid by Tenant), retain a disinterested,
third-party consultant to oversee the action to be taken to cure the underlying
Default by Tenant or Tenant’s designees during such extended period, and to
advise Landlord as to the necessity of and diligent prosecution of such actions
during such extension; while such consultant’s advice to Landlord shall not be
binding on Tenant, it is understood that such advice may be relied upon by
Landlord in Landlord’s determination of the reasonableness and duration of any
extension under this Section 14.2(c)), in
which case no Event of Default shall be deemed to exist as long as Tenant,
within such 30-day period, has commenced and thereafter diligently and
continuously prosecutes to completion all steps necessary to remedy the same;
or


(d)    if
any of the representations made by Tenant in Section
30.1(a) hereof are proven to have been false or incorrect in any
material respect as of the date made and if, within thirty (30) days after
Tenant’s receipt of a First Default Notice in respect thereto, Tenant fails to
rectify the state of facts giving rise to such false or incorrect
representation, provided that no Event of Default shall be deemed to exist (i)
if such a state of facts cannot, by its nature, reasonably be rectified within
such thirty 30-day period, so long as Tenant has commenced rectifying such
state of facts within such thirty 30-day period and shall be diligently and
continuously proceeding to rectify such state of facts or (ii) if the only loss
or damage Landlord has sustained or incurred can be cured by the payment of a
sum of money and Tenant has made such payment; or


(e)    whenever
an involuntary petition shall be filed against Tenant under any bankruptcy or
insolvency law or under the reorganization provisions of any law of like
import, or a receiver of Tenant or of or for the property of Tenant shall be
appointed without the acquiescence of Tenant, or whenever this Lease or the
estate hereby granted or the unexpired balance of this Lease would, by
operation of law or otherwise, except for this provision, devolve upon or pass
to any Person other than Tenant or as provided in this Lease, and such
situation under this Section 14.2(e) shall
continue and shall remain undischarged or unstayed for an aggregate period of
one hundred twenty (120) days (whether or not consecutive) or shall not be remedied
by Tenant within one hundred twenty (120) days; or


(f)     if
final, non-appealable judgment for the payment of money shall be rendered
against Tenant, and (i) such final judgment shall be for an amount greater than
or equal to $25,000,000 and Tenant shall not discharge said judgment or cause
it to be discharged (by bonding or otherwise) within sixty (60) days from the
entry thereof or (ii) if Tenant shall appeal



 102
 






 



from such judgment or from the order, decree or
process upon which or pursuant to which such judgment was entered and shall
secure a stay of execution pending such appeal, within sixty (60) days after
such appeal shall be decided or such stay removed; or


(g)    [INTENTIONALLY
OMITTED]; or


(h)    [INTENTIONALLY
OMITTED]; or


(i)     if
Tenant shall exercise its right to terminate the Site 8 South Subway Agreement
pursuant to Section 12.A of the Site 8 South Subway Agreement; or


(j)     if
there shall occur a default on the part of Tenant following any applicable
notice and cure period under the Site 8 South LADA, the Site 8 South Subway
Agreement (with respect to Tenant’s operation or maintenance obligations
thereunder) or any provision of the Project Agreement but only with respect to
those provisions under which Tenant has obligations thereunder (Landlord acknowledging
that no other default of Tenant under any other Project Document that does not
otherwise give rise to a Default hereunder shall be deemed a Default
hereunder).


Section
14.3  Rights of Landlord.


(a)    Enforcement
of Performance. If an Event of Default occurs, Landlord may elect to
proceed by appropriate judicial proceedings, either at law or in equity, to
enforce performance or observance by Tenant of the applicable provisions of
this Lease and/or to recover damages for breach hereof.


(b)    Payment
of Damages. It is covenanted and agreed by Tenant that in the event of
termination of this Lease or re-entry by Landlord, under any of the provisions
of this Article XIV or pursuant to
Legal Requirements, by reason of default hereunder on the part of Tenant, Tenant
shall pay Landlord’s actual damages to Landlord, at the election of Landlord.


(c)    Recovery
of Damages. Landlord shall be entitled to recover from Tenant each monthly
deficiency as the same shall arise and no suit to collect the amount of the
deficiency for any month shall prejudice Landlord’s right to collect the
deficiency for any subsequent month by a similar proceeding. Suit or suits for
the recovery of any and all damages, or any installments thereof, provided for
hereunder may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the Scheduled Expiration Date, or under any provisions of law, or had
Landlord not re-entered the Demised Premises.


(d)    No
Limit. Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages to
which Landlord may lawfully be entitled in any case other than those
particularly provided for above (other than consequential damages, which are
waived by Tenant and Landlord in respect of all matters under this Lease).



 103
 






 



(e)    Collateral
Assignment. Subject to the rights of all Recognized Mortgagees, upon the
occurrence of an Event of Default, Landlord shall have the right to exercise
its rights under any Collateral Assignments to the extent that the same are
then in effect.


(f)     Funds
Held by Depositary. If this Lease terminates as a result of one or more
Events of Default and all of the other Severance Subleases also have been
terminated, any funds held by Depositary in respect solely of this Lease or the
Common Elements shall, subject to the rights of any Subtenants with respect to
which Landlord has entered into a Nondisturbance Agreement, be paid to
Landlord, which it may keep as liquidated damages free of any claim by Tenant,
or any Person claiming by, under or through Tenant.


(g)    Percentage
Rent Calculation. The average annual Percentage Rent paid or payable by
Tenant during the Stabilized Lease Years immediately preceding such termination
or re-entry (such average calculated by increasing the Percentage Rent for each
applicable year by the Discount Rate applied from the date such rent was paid
in full to the date such average is determined), shall, for purposes of calculating
Charges under this Section 14.3, be
deemed to be the Percentage Rent which would be payable by Tenant for each
Lease Year during the balance of the original term. As used in this Section 14.3(g), “Stabilized Lease Year”
shall mean each full Lease Year commencing not less than twelve (12) months
following the Substantial Completion Date, excluding any Lease Year all or any
part of which falls within the period commencing upon the occurrence of a
significant casualty or Taking and ending twelve (12) months after the
Substantial Completion Date following such casualty or Taking. For purposes of
calculating the deemed Percentage Rent pursuant to this Section 14.3(g), the number of Stabilized
Lease Years shall be the lesser of ten (10) or the actual number of Stabilized
Lease Years preceding such termination or re-entry.


(h)    Plans
and Specifications. Upon the occurrence of an Event of Default and
termination of this Lease, subject to Section
9.4 hereof, Tenant’s rights to the Final Plans and Specifications
shall be deemed automatically assigned to Landlord, without cost, subject,
however, to any rights of any Recognized Mortgagee to such plans and
specifications.


(i)     Assignment
of Construction Agreements. Upon termination of this Lease by reason of the
occurrence of an Event of Default, at the request of Landlord and subject to
the rights, if any, of any Recognized Mortgagee, Tenant shall assign to
Landlord, without cost, and Landlord shall assume, all of Tenant’s interest in
any or all agreements with respect to any Restoration, Condemnation Restoration
or Alterations in or to the Demised Premises and the Common Elements or any
portion thereof which are not then subject to any Collateral Assignment. Upon
the request of Landlord, the respective contractors, materialmen and suppliers
who are parties to any such agreements shall, subject to the rights of all
Recognized Mortgagees, attorn to Landlord and any agreements entered into
between Tenant and such parties shall specifically provide for such attornment
upon Landlord’s request.


(j)     Assignment
of Right to Excess Site Acquisition Costs Reimbursement (Allocated). Upon
termination of this Lease by reason of the occurrence of an Event of Default,
at the request of Landlord, Tenant shall assign to Landlord, without cost, and
Landlord shall assume, all of Tenant’s interest in any right to reimbursement
of Excess Site Acquisition Costs (Allocated).



 104
 






 



Section
14.4  Waiver of Right of Redemption.
Tenant, for Tenant and on behalf of any and all Persons claiming through or under
Tenant, including creditors of all kinds, does hereby waive and surrender all
right and privilege which they or any of them might have under or by reason of
any present or future law, to redeem the Demised Premises or to have a
continuance of this Lease for the term hereby demised after being dispossessed
or ejected therefrom by process of law or under the terms of this Lease or
after the termination of this Lease as herein provided. Nothing in the
foregoing portions of this Section 14.4
shall affect the rights of any Recognized Mortgagees under Article XXXI hereby.


Section
14.5  No Waiver.
Failure of either party hereto to declare any default immediately upon its
occurrence or delay in taking any action in connection with such default shall
not waive such default but such party shall have the right to declare any such
default at any time thereafter. After an Event of Default, any amounts paid by
Tenant to Landlord may be applied by Landlord, in its sole discretion, to any
items then owing by Tenant to Landlord under this Lease. Receipt of a partial
payment shall not be deemed to be an accord and satisfaction or waiver of the
failure to make full payment.


Section
14.6  Remedies Under Bankruptcy and
Insolvency Codes. If an order for relief is entered or if
any stay of proceeding or other act becomes effective in favor of Tenant or
Tenant’s interest in this Lease in any proceeding commenced by or against
Tenant under the present or any future United States Bankruptcy Code or in a
proceeding which is commenced by or against Tenant seeking a reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any other present or future applicable federal, state or other
bankruptcy or insolvency statute or law, Landlord shall be entitled to invoke
any and all rights and remedies available to it under such bankruptcy or
insolvency code, statute or law of this Lease, including such rights and
remedies as may be necessary to adequately protect Landlord’s right, title and
interest in and to the Demised Premises or any part thereof and adequately
assure the complete and continuous future performance of Tenant’s Obligations
under this Lease. Adequate protection of Landlord’s right, title and interest
in and to the Demised Premises, and adequate assurance of the complete and
continuous future performance of Tenant’s Obligations under this Lease, shall
include all of the following requirements:


(a)    that
Tenant shall comply with all of its Obligations under this Lease;


(b)    that
Tenant shall continue to use the Demised Premises only in the manner permitted
by this Lease; and


(c)    that
if Tenant’s trustee, Tenant or Tenant as debtor-in-possession assumes this
Lease and proposes to assign it (pursuant to Title 11 U.S.C. Section 365, as it
may be amended) to any Person who has made a bona fide offer therefor, the
notice of such proposed Assignment, giving (i) the name and address of such
Person, (ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such Person’s future
performance under this Lease, including the assurances referred to in Title 11
U.S.C. Section 365[b](3), as it may be amended, and such other assurances as
Landlord may reasonably require, shall be given to Landlord by the trustee,
Tenant or Tenant as debtor-in-possession of such offer, not later than twenty
(20) days before the date that the trustee, Tenant or Tenant as
debtor-in-possession shall make application to a court of competent
jurisdiction for authority and



 105
 






 



approval to enter into such Assignment, and Landlord
shall thereupon have the prior right and option, to be exercised by notice to
the trustee, Tenant and Tenant as debtor-in-possession, given at any time
before the effective date of such proposed Assignment, to accept an Assignment
of this Lease upon the same terms and conditions and for the 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. Landlord shall have no
obligation to pay such brokerage commissions. If Tenant attempts to arrange
such an Assignment of this Lease, then as an element of the required adequate
assurance to Landlord, and as a further condition to Tenant’s right to make
such an Assignment, Tenant’s agreement(s) with brokers shall, to Landlord’s
reasonable satisfaction, provide that Landlord shall have no obligation to pay
a brokerage commission if Landlord exercises Landlord’s rights under this Section 14.6.


Section
14.7  Relationship Among Severance
Tenants.


(a)    Except
with respect to the obligations hereunder with respect to the Common Elements,
the obligation of each tenant under a Severance Sublease is separate and
distinct from the obligations of all other tenants under the Severance
Subleases, and except for a Default arising with respect to the Common
Elements, no Default by a tenant under a Severance Sublease shall of itself
constitute a Default by any other tenant under the Severance Subleases.


(b)    Each
tenant under a Severance Sublease shall be jointly and severally obligated with
respect to all Defaults arising with respect to the Common Elements (it being
acknowledged that the sums set forth in Section
14.1(b) hereof for such Defaults per day shall be calculated without
regard to the number of tenants under the Severance Subleases). Landlord shall
exercise its rights and remedies under this Article
XIV in respect of a Default relating to the Common Elements
simultaneously against all tenants under the Severance Subleases; provided,
however, that Landlord’s rights and remedies hereunder in respect of
Tenant shall not be decreased or in any other way impaired, and Landlord shall
not be prevented from doing so by reason of any bar (by automatic stay or court
order) by reason of or in connection with the bankruptcy or insolvency of any
other tenant under a Severance Sublease or proceedings in respect thereof.



 106
 






 



ARTICLE XV

LANDLORD’S RIGHT TO PERFORM


Section
15.1  Right to Perform. If
Tenant shall fail to pay any Imposition or Charges or make any other payment
required to be made under this Lease or shall default in the performance of any
other Obligations of Tenant herein contained, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account and at the expense of
Tenant, (a) immediately and without notice in the case of any failure to pay
any Imposition or any other amount due a third party, if such failure would
result in the creation of a lien on the Demised Premises and/or the Common
Elements or any part thereof or any loss or impairment of Landlord’s estate
hereunder or in and to the Demised Premises and/or the Common Elements, or in
the case of any failure to perform any of Tenant’s Obligations hereunder which
creates an imminent threat to public health or safety, or (b) in any other
case, only after (i) Landlord shall have notified Tenant once of such default
or failure and Tenant shall have failed to make such payment or remedy such
default within the applicable grace period under this Lease, and (ii) Landlord
shall have notified Tenant a second time and Tenant shall have failed to make
such payment or remedy such default within ten (10) Business Days following
such second notice; provided, however, with respect to any
default covered by clause (b) above, Landlord shall not be entitled to remedy
the same if and for so long as Tenant has commenced and thereafter diligently
and with continuity prosecutes to completion all steps necessary to remedy such
default. In furtherance of its rights hereunder, in the event of an imminent
threat to human life or safety, Landlord shall have the right to enter upon the
Demised Premises and/or the Common Elements in accordance with Section 23.2 hereof, including for the
purpose of making repairs or performing work required of Tenant hereunder. The
limitations imposed by the foregoing provisions of this Section 15.1 on Landlord’s right to remedy
Tenant’s defaults shall not apply to Landlord’s rights to remedy Tenant’s
failures under the last paragraphs of Sections
7.3(a) and (b) hereof.
Bills for any expenses incurred by Landlord in connection therewith, and bills
for all costs, expenses and disbursements of every kind and nature whatsoever,
including counsel fees, involved in collecting or endeavoring to collect any
Charges or other sums due hereunder, or any part thereof, or involved in
enforcing or endeavoring to enforce any right against Tenant under or in
connection with this Lease, any Sublease or pursuant to law, including any such
cost, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, or caused to be, by Landlord to Tenant, with
respect to the Demised Premises and/or the Common Elements or equipment used in
connection therewith (together with interest at the Interest Rate, from the
respective dates of Landlord’s making of each such payment or incurring of each
such cost or expense), may be sent by Landlord to Tenant monthly, or
immediately, at Landlord’s option, and shall be due and payable in accordance
with the terms of said bills (or, in the case of payments to reimburse
Landlord, within twenty-three (23) Business Days of demand) and if not paid
when due the amount thereof shall immediately become due and payable as
additional rent under this Lease. The Obligations of Tenant to pay such bills
or to reimburse Landlord under this Section
15.1 shall survive the expiration or earlier termination of this
Lease.


Section
15.2  Additional Remedies. The
mention herein of any particular remedy shall not preclude either party
hereunder from any other remedy it might have either in law or in equity. Any
right or remedy of such party in this Lease specified and any other right or



 107
 






 



remedy that such party may have at law, in equity or
otherwise, upon breach of any of the other party’s Obligations hereunder shall
be distinct, separate and cumulative rights or remedies, and no one of them,
whether exercised by Landlord or not, shall be deemed to be in exclusion of any
other.


Section
15.3  Strict Performance. No
failure by either party to insist upon the other party’s strict performance of
any covenant, agreement, term or condition of this Lease, or the failure of
Landlord to exercise any right or remedy available to Landlord by reason of a
Default or Event of Default, or the failure of Tenant to exercise any right or
remedy available to Tenant by reason of Landlord’s default, and no payment or
acceptance of full or partial Charges during the continuance of any Default or
Event of Default, constitutes a waiver of any such Default or Event of Default
or of either party’s right to strict performance of such covenant, agreement,
term or condition.


Section
15.4  Right to Enjoin Defaults or
Threatened Defaults. In the event of any breach or
threatened breach by either party of any of the covenants, agreements, terms or
conditions contained in this Lease, the other party shall be entitled to bring
an action to enjoin such breach or threatened breach or to compel specific
performance of any covenant, agreement, term or condition herein, which right
shall be cumulative with such party’s other rights and remedies.



 108














 


ARTICLE
XVI

ARBITRATION


Section
16.1  Generally.
Unless otherwise expressly permitted hereunder, all disputes hereunder to be
resolved by arbitration shall be resolved in accordance with this Article XVI.


Section
16.2  Standard Arbitration. (a)
If either party hereto desires to invoke the arbitration procedure set forth in
this Section 16.2, the party
invoking the arbitration procedure shall give a notice (the “Arbitration Notice”) to the other party
stating that the party sending the Arbitration Notice desires to meet within
seven (7) Business Days to attempt to agree on a single arbitrator (the “Arbitrator”) to determine the question at issue. The Arbitrator appointed
shall be competent, qualified by training and experience, disinterested and
independent, and an individual having not less than ten (10) years experience
relating to commercial real estate in New York City. If the parties hereto have
not agreed on the Arbitrator within ten (10) Business Days after the giving of
the Arbitration Notice, then either party hereto, on behalf of both, may apply
to the New York City office of the American Arbitration Association or any
organization which is the successor thereto (the “AAA”) for appointment of the Arbitrator, or, if the AAA shall
not then exist or shall fail, refuse or be unable to act such that the
Arbitrator is not appointed by the AAA within twenty-three (23) Business Days
after application therefor, then either party may apply to the presiding
Justice of the Appellate Division of the Supreme Court of the State of New
York, First Department (the “Court”),
for the appointment of the Arbitrator and the other party shall not raise any
question as to the Court’s full power and jurisdiction to entertain the
application and make the appointment. The date on which the Arbitrator is
appointed by the agreement of the parties, by appointment by the AAA or by
appointment by such court is referred to herein as the “Appointment Date”. If any Arbitrator
appointed hereunder shall be unwilling or unable, for any reason, to serve, or
continue to serve, a replacement Arbitrator shall be appointed in the same
manner as the original Arbitrator.


(b)    The
arbitration shall be conducted in accordance with the then prevailing
commercial arbitration rules of the AAA, modified as follows:


(i)            To
the extent that the New York State Civil Practice and Law Rules (the “CPLR”), or any successor statute, imposes
requirements different from those of the AAA in order for the decision of the
Arbitrator to be enforceable in the courts of the State of New York, such
requirements shall be complied with in the arbitration.


(ii)           Before
hearing any testimony or receiving any evidence, the Arbitrator shall be sworn
by an officer authorized to administer an oath to hear and decide the
controversy faithfully and fairly and a written copy thereof shall be delivered
to Landlord and Tenant.


(iii)          Within
twenty-three (23) Business Days after the Appointment Date, the parties hereto
shall deliver to the Arbitrator two (2) copies of their respective written
determinations of the appropriate resolution of the issue in question (each, a “Determination”), together with such affidavits, appraisals, reports and other
written evidence relating thereto as the submitting party deems appropriate.
After the submission of any Determination, the submitting



 109
 






 



party may not make any additions to or deletions from,
or otherwise change, such Determination or the affidavits, appraisals, reports
and other written evidence delivered therewith. If either party fails to so
deliver its Determination within such time period, such party shall be deemed
to have irrevocably waived its right to deliver a Determination and the
Arbitrator, without holding a hearing, shall accept the Determination of the
submitting party as the appropriate resolution of the issue in question. If
each party submits a Determination with respect to the appropriate resolution
of the issue in question, within the thirty-day period described above, the
Arbitrator shall, promptly after its receipt of the second Determination,
deliver a copy of each party’s Determination to the other party.


(iv)          Not
more than twenty-three (23) Business Days after the earlier to occur of (A) the
expiration of the thirty-day period provided for in clause (iii) above or (B)
the Arbitrator’s receipt of both of the Determinations from the parties (such
earlier date is referred to herein as the “Submission
Date”), and upon not
less than seven (7) Business Days’ notice to the parties, the Arbitrator may
hold one or more hearings with respect to the determination of the appropriate
resolution of the issue in question. The hearings shall be held in the Borough
of Manhattan at such location and time as shall be specified by the Arbitrator.
Each of the parties shall be entitled to present all relevant evidence and to
cross-examine witnesses at the hearings. The Arbitrator shall have the
authority to adjourn any hearing to such later date as the Arbitrator shall
specify, provided that in all events all hearings with respect to the
determination of the appropriate resolution of the issue in question shall be
concluded not later than sixty (60) days after the Submission Date.


(v)           The
Arbitrator shall be instructed, and shall be empowered only, to select one of
the Determinations which the Arbitrator believes is the more appropriate
resolution of the issue at hand. Without limiting the generality of the
foregoing, in rendering her or his decision, the Arbitrator shall not add to,
subtract from, or otherwise modify the provisions of this Lease or either of
the Determinations.


(vi)          The
Arbitrator shall render his or her determination as to the selection of a
Determination in a signed and acknowledged written instrument, original
counterparts of which shall be sent simultaneously to the parties hereto, within
seven (7) Business Days after the earlier to occur of (A) his or her
determination of the appropriate resolution of the issue in question pursuant
to clause (iii) above or (B) the conclusion of the hearing(s) referred to in
clause (iv) of this subsection.


(c)    The
arbitration decision, determined as provided in this Section 16.2, shall be conclusive and binding on the parties,
shall constitute an “award” by the Arbitrator within the meaning of the AAA
rules and applicable law and judgment may be entered thereon in any court of
competent jurisdiction.


(d)    Each
party shall pay its own fees and expenses relating to the arbitration described
herein (including, without limitation, the fees and expenses of its counsel and
of experts and witnesses retained or called by it). Each party shall pay
one-half of the fees and expenses of the AAA and of the Arbitrator; provided
that if either party fails to submit a Determination within the period provided
therefor, such non-submitting party shall pay all of such fees and expenses.



 110
 






 



(e)    Time
shall be of the essence as to all obligations of Landlord and Tenant set forth
in this Section 16.2.


Section
16.3  Expedited Arbitration. (a) If either party hereto desires to
invoke the arbitration procedure set forth in this Section 16.3, the party invoking the arbitration procedure
shall give an Arbitration Notice to the other party stating that the party
sending the Arbitration Notice desires to meet within three (3) Business Days
to attempt to agree on an Arbitrator to determine the question at issue. The
Arbitrator appointed shall be competent, qualified by training and experience,
disinterested and independent, and an individual having not less than ten (10)
years experience relating to commercial real estate in New York City. If the
parties hereto have not agreed on the Arbitrator within three (3) Business Days
after the giving of the Arbitration Notice, then either party hereto, on behalf
of both, may apply to the AAA for appointment of the Arbitrator, or, if the AAA
shall not then exist or shall fail, refuse or be unable to act such that the
Arbitrator is not appointed by the AAA within twenty (20) Business Days after
application therefor, then either party may apply to the Court, for the
appointment of the Arbitrator and the other party shall not raise any question
as to the Court’s full power and jurisdiction to entertain the application and
make the appointment. The date on which the Arbitrator is appointed by the
agreement of the parties, by appointment by the AAA or by appointment by such
court is referred to herein as the “Appointment
Date”. If any Arbitrator appointed hereunder shall be unwilling or
unable, for any reason, to serve, or continue to serve, a replacement
Arbitrator shall be appointed in the same manner as the original Arbitrator.


(b)    The
arbitration shall be conducted in accordance with the then prevailing
commercial arbitration rules of the AAA for expedited arbitration, modified as
follows:


(i)            To
the extent that the CPLR, or any successor statute, imposes requirements
different from those of the AAA in order for the decision of the Arbitrator to
be enforceable in the courts of the State of New York, such requirements shall
be complied with in the arbitration.


(ii)           Before
hearing any testimony or receiving any evidence, the Arbitrator shall be sworn
by an officer authorized to administer an oath to hear and decide the
controversy faithfully and fairly and a written copy thereof shall be delivered
to Landlord and Tenant.


(iii)          Within
ten (10) Business Days after the Appointment Date, the parties hereto shall
deliver to the Arbitrator two (2) copies of their respective Determinations,
together with such affidavits, appraisals, reports and other written evidence
relating thereto as the submitting party deems appropriate. Such ten
Business-Day period may not be extended by the Arbitrator. After the submission
of any Determination, the submitting party may not make any additions to or
deletions from, or otherwise change, such Determination or the affidavits,
appraisals, reports and other written evidence delivered therewith. If either
party fails to so deliver its Determination within such time period, such party
shall be deemed to have irrevocably waived its right to deliver a Determination
and the Arbitrator, without holding a hearing, shall accept the Determination
of the submitting party as the appropriate resolution of the issue in question.
If each party submits a Determination with respect to the appropriate
resolution of the issue in question, within the ten Business-Day period
described above, the



 111
 






 



Arbitrator shall, promptly after its receipt of the
second Determination, deliver a copy of each party’s Determination to the other
party.


(iv)          Not
more than ten (10) Business Days after the earlier to occur of (A) the
expiration of the ten Business-Day period provided for in clause (iii) above or
(B) the Submission Date, and upon not less than three (3) Business Days’ notice
to the parties, the Arbitrator may hold one hearing with respect to the
determination of the appropriate resolution of the issue in question. The
hearing shall be held in the Borough of Manhattan at such location and time as
shall be specified by the Arbitrator. Each of the parties shall be entitled to
present all relevant evidence and to cross-examine witnesses at the hearing.
The Arbitrator shall have the authority to adjourn any hearing to such later
date as the Arbitrator shall specify, provided that in all events all
hearings with respect to the determination of the appropriate resolution of the
issue in question shall be concluded not later than thirty (30) days after the
Submission Date.


(v)           The
Arbitrator shall be instructed, and shall be empowered only, to select one of
the Determinations which the Arbitrator believes is the more appropriate resolution
of the issue at hand. Without limiting the generality of the foregoing, in
rendering her or his decision, the Arbitrator shall not add to, subtract from,
or otherwise modify the provisions of this Lease or either of the
Determinations.


(vi)          The
Arbitrator shall render his or her determination as to the selection of a
Determination in a signed and acknowledged written instrument, original
counterparts of which shall be sent simultaneously to the parties hereto,
within three (3) Business Days after the earlier to occur of (A) his or her
determination of the appropriate resolution of the issue in question pursuant
to clause (iii) above or (B) the conclusion of the hearing(s) referred to in
clause (iv) of this subsection.


(c)    The
arbitration decision, determined as provided in this Section 16.3, shall be conclusive and binding on the parties,
shall constitute an “award” by the Arbitrator within the meaning of the AAA
rules and applicable law and judgment may be entered thereon in any court of
competent jurisdiction.


(d)    Each
party shall pay its own fees and expenses relating to the arbitration described
herein (including, without limitation, the fees and expenses of its counsel and
of experts and witnesses retained or called by it). Each party shall pay
one-half of the fees and expenses of the AAA and of the Arbitrator; provided
that if either party fails to submit a Determination within the period provided
therefor, such non-submitting party shall pay all of such fees and expenses.


(e)    Time
shall be of the essence as to all obligations of Landlord and Tenant set forth
in this Section 16.3.


Section
16.4  Single Arbitration. The
parties hereto acknowledge that the scope and requirements of certain
obligations under each Severance Sublease may result in a dispute, governed by
Article XVI of each applicable Severance Sublease, between Landlord and the
tenants under more than one Severance Sublease. The parties hereto agree that:
(a) Landlord may join Tenant as a party to an arbitration proceeding initially commenced
in respect of another



 112
 






 



Severance Sublease (and Tenant expressly submits to
such joining and waives any rights it might have to dispute such joining) if
the failure to so join would materially and adversely affect the Public
Parties’ administration of the Severance Subleases, would result in the need
for duplicative proceedings to resolve the same matter or could result in
conflicting determinations with respect to Common Elements; (b) Landlord may
join other tenants under Severance Subleases to an arbitration proceeding
initially commenced in respect of Tenant (and Tenant expressly submits to such
joining and waives any rights it might have to dispute such joining) if the
failure to so join would materially and adversely affect the Public Parties’ administration
of the Severance Subleases, would result in the need for duplicative
proceedings to resolve the same matter or could result in conflicting
determinations with respect to Common Elements; and (c) Tenant may join any
arbitration initiated between Landlord and any other tenant under a Severance
Sublease (and Landlord expressly submits to such joining and waives any rights
it might have to dispute such joining). Moreover, in the event that Tenant
joins or is joined in any arbitration preceding described in this Section 16.4, Tenant agrees that Tenant shall: (i) not initiate (or attempt
to initiate) a separate arbitration or other action, whether hereunder or
otherwise, in respect of the same dispute; (ii) make any decision or proposal
required of Tenant under this Article XVI solely
in concert with any other tenants under Severance Subleases so joined if the
failure to so act in concert would materially and adversely affect the Public
Parties’ administration of the Severance Subleases, would result in the need
for duplicative proceedings to resolve the same matter or could result in
conflicting determinations with respect to the Common Elements; and (iii)
comply with any decision rendered by the arbitrator pursuant to such
arbitration, regardless of whether Tenant fails to participate in the
arbitration proceeding.



 113
 






 



ARTICLE
XVII

INDEMNITY; LIMITATION ON LIABILITY


Section
17.1  Indemnification by Tenant. To
the fullest extent permitted by law, Tenant shall indemnify Landlord and the
Public Parties for, and hold Landlord and all of the Public Parties harmless
from and against, any and all claims that may be imposed upon or incurred by or
asserted against Landlord or any of the Public Parties by reason of any of the
following, (x) except with respect to (i) actions taken or claimed to have been
taken by, or on behalf of, Landlord with respect to all or any portion of the
Property prior to the Delivery Date, (ii) the physical condition, prior to the
Delivery Date, of any Improvements existing on the Land prior to the Delivery
Date, (iii) any claims for compensation by condemnees as a result of the
Condemnation or (iv) any claims by third parties that relate to the Property
and which arose prior to the Delivery Date, or (y) unless caused by the gross
negligence or intentionally tortious acts of Landlord, the Public Parties or
their respective agents or employees, or by the actions of Landlord, the Public
Parties, or their respective agents or employees in its or their governmental
capacity:


(a)    any
accident, injury to or death of Persons or loss of or damage to property
occurring on or about the Demised Premises and/or the Common Elements or as a
result of any act or omission occurring on or with respect to the Property or
any other matter or thing arising out of the use, repair, maintenance,
operation or occupation of the Demised Premises and/or the Common Elements, or
the use, repair, maintenance, operation and occupation by Tenant of the
streets, sidewalks or service roads, as applicable, adjacent thereto;


(b)    performance
of any Alterations or act done in, on or about the Demised Premises and/or the
Common Elements or any part thereof;


(c)    any
lien or claim that may be alleged to have arisen against or on the Demised
Premises and/or the Common Elements, or any lien or claim created or permitted
by Tenant or any Subtenant or any of its or their officers, agents,
contractors, servants, employees, licensees or invitees against any assets of,
or funds appropriated to, Landlord;


(d)    any
claim for brokerage commissions, fees or other compensation by any person who
alleges to have acted or dealt with Tenant in connection with this Lease or the
transactions contemplated by this Lease or any Transfers;


(e)    any
failure on the part of Tenant to perform or comply with any of Tenant’s
Obligations;


(f)     any
failure or alleged failure on the part of Tenant or a Related Entity to perform
or comply with any agreement between Tenant or a Related Entity and a third
party; and


(g)    any
claim that Landlord is in default of any obligations under the Condominium
Documents.


Notwithstanding the above, Tenant shall have no duty
to indemnify Landlord or any of the Public Parties from such Claims to the
extent such Claims (1) arise from a failure or alleged failure on the part of
Landlord to perform or comply with any agreement between Landlord and a



 114
 






 



third party not covered by this Lease, or (2) in
respect of Sections 17.1(a) and 17.1(b) hereof, arise prior to the Delivery
Date (provided, however, the limitation contained in this clause
(2) shall not apply to the extent such Claims are based on Tenant’s negligence,
willful misconduct, alleged violation of Legal Requirements or failure to
comply with the terms of this Lease).


Section
17.2  Indemnification Generally.


(a)    Indemnified
Parties. Wherever in this Lease a party shall be obligated to indemnify the
other party, then such party shall indemnify, defend and hold harmless the
other party and its respective commissioners, members, directors, officers,
agents, employees, partners and/or shareholders (collectively, the “Indemnified Parties”), to the full extent lawful, from and
against all Claims which shall be paid, incurred, related to or arising from
the indemnified matter. The foregoing indemnification shall be in addition to
any liability which such party may otherwise have. If indemnification were for
any reason not to be available with respect to any matter, the indemnifying
party shall contribute to the settlement, loss or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the Indemnified Parties, on the other hand, as well as any other
relevant equitable considerations.


(b)    Proceedings.
The indemnifying party under this Lease shall defend the applicable Indemnified
Party with counsel reasonably satisfactory to such Indemnified Party (unless
the indemnified Claim is covered by insurance, in which event counsel shall be
attorneys for, or approved by, the insurance carrier), shall keep the
Indemnified Party apprised of all legal proceedings and shall not enter into
any settlement without the Indemnified Party’s prior written consent, which
shall not be unreasonably withheld. Promptly after receipt by the Indemnified
Party of notice of any claim or the commencement of any action or proceeding
covered by the indemnity pursuant to this Section
17.2, the Indemnified Party shall notify the indemnifying party in
writing of such claim or the commencement of such action or proceeding.


(c)    Payment
of Costs. Tenant’s Obligations with respect to any matter under this Lease
as to which Tenant is indemnifying Landlord shall not be affected in any way by
the absence of insurance coverage, the amount of any deductible, or by the
failure or refusal of any insurance carrier to perform an obligation on its
part under insurance policies procured by or on behalf of Tenant. Any amounts
that become payable by Tenant to Landlord under this Lease with respect to any
such matter and that are not paid within ten (10) Business Days after demand
therefor following payment of such amounts by Landlord shall bear interest at
the Interest Rate from the date of such payment by Landlord.


Section
17.3  Recourse Only to Landlord’s
Estate in the Demised Premises and the Common Elements. Notwithstanding
anything to the contrary contained herein, in the event of any default by
Landlord hereunder, Tenant shall look only to Landlord’s estate in the Demised
Premises and Tenant’s undivided interest in the Common Elements (or the
proceeds thereof), and no other property or assets of Landlord or its agents,
officers, directors, shareholders, partners or principals, disclosed or
undisclosed, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant’s remedies under or with respect to this Lease,
the relationship of Landlord and Tenant hereunder or under law or Tenant’s use
or occupancy of the Demised Premises and the Common Elements or any other
liability of



 115
 






 



Landlord to Tenant. Tenant in any event hereby waives
any right to collect from Landlord any indirect, consequential, special or
punitive damages whatsoever, whether or not Landlord was or should have been
aware of the probability or magnitude of such damages, unless a court of
competent jurisdiction finally determines that Landlord has acted in bad faith
in respect of the claim made against Landlord. Tenant’s foregoing waiver
constitutes a material inducement to Landlord to enter into the Project
Documents.


Section
17.4  Recourse Only to Tenant’s Estate
in the Demised Premises and the Common Elements. Notwithstanding
anything to the contrary contained herein, Landlord shall look only to Tenant’s
interest in the Demised Premises and the Common Elements (or the proceeds
thereof) and any funds held by the Depositary pursuant to the terms of this
Lease, in the event of the occurrence of any Event of Default by Tenant
hereunder, and no other property or assets of Tenant or its Principals shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Landlord’s remedies under or with respect to this Lease. The foregoing
limitation on liability against other property and assets of Tenant shall not
be applicable to:


(a)    loss
or damage suffered by Landlord to the extent of any insurance proceeds,
Adjusted Gross Revenues, rents, condemnation awards, security deposits,
downpayments or trust funds applied by Tenant or its Principals in violation of
applicable law or the provisions of this Lease or loss or damage suffered by
Landlord on account of any criminal acts, fraud or intentional
misrepresentation by Tenant or its Principals;


(b)    any
loss from damage to the Demised Premises, the Common Elements or Tenant Subway
Improvements resulting from intentional waste, the willful destruction, willful
damage by or on behalf of Tenant to the Core and Shell or Tenant Subway
Improvements;


(c)    the
cost of remediation or removal of Hazardous Materials and reasonable attorney
fees and disbursements and other professional fees incurred by Landlord in
connection with any matter under Section 7.8 hereof;


(d)    any
loss or damage suffered by Landlord in connection with any claim by Tenant that
the relationship of Tenant and Landlord is that of joint venturers or any other
relationship other than that of landlord and tenant;


(e)    any
loss or damage suffered by Landlord arising from a Transfer by Tenant to any
Prohibited Person;


(f)     loss,
damage or liability in connection with the Demised Premises and/or the Common
Elements to the extent such loss, damage or liability would have been covered
by insurance if Tenant had maintained the insurance policies required to be
maintained hereunder by Tenant; or


(g)    Charges
accruing after an Event of Default and before any termination of this Lease by
reason of the use or occupancy by Tenant prior to reentry by Landlord.



 116
 






 



Notwithstanding anything to the contrary in the
foregoing, Landlord shall not have recourse to the assets or property of any
Principal of Tenant that is an individual for satisfaction of any claim under
this Lease.


Section
17.5  Survival. The
provisions of this Article XVII shall
survive the expiration or earlier termination of this Lease.



 117
 






 



ARTICLE
XVIII

QUIET ENJOYMENT; TRANSFER OF LANDLORD’S INTEREST


Section
18.1  Quiet Enjoyment. Landlord
covenants that if and so long as Tenant duly keeps and performs each and every
Obligation of Tenant hereunder, Tenant shall quietly enjoy the Demised Premises
and its undivided interest in the Common Elements without hindrance or
molestation by Landlord, subject to the covenants, agreements, terms, provisions
and conditions of this Lease.


Section
18.2  Transfer of Landlord’s Interest.
Except as set forth in this Section
18.2, Landlord shall
not convey or assign its interest or estate in this Lease, the Property, or any
portion thereof, to a third party, other than, after the Lease Assignment Date,
its right to receive any amounts payable to Landlord hereunder, and as
permitted in Sections 1.01 and 10.09 of the Site 8 South Project Agreement.
Landlord may transfer its interest in the Demised Premises and this Lease to
any Government Authority; provided, however, that no assignment
or transfer permitted hereunder shall result in a decrease (other than to a de
minimis extent) in any of Tenant’s or Tenant’s Related Entities’ rights
or benefits under any of the Project Documents or IDA Project Agreement or an
increase (other than to a de  minimis extent) in Tenant’s or its
Related Entities’ obligations, liabilities or costs under any of the Project
Documents or IDA Project Agreement. It is expressly understood and agreed that
“Landlord”, as used in this Lease, means only the owner for the time being of
the Demised Premises and this Lease, and in the event of the sale, assignment
or transfer by such owner of its or their interest in the Demised Premises and
this Lease and in this Lease, such owner shall thereupon be released and
discharged from all of Landlord’s Obligations thereafter accruing; but such
Obligations shall be binding upon each new owner of the Demised Premises and
this Lease.



 118














 


ARTICLE
XIX

WAIVER OF JURY TRIAL; COUNTERCLAIMS


Section
19.1  Waiver of Jury Trial. The
parties hereto waive a trial by jury of any and all issues arising in any
action or proceeding between them or their successors or assigns under or
connected with this Lease or any of its provisions or any negotiations in
connection therewith or Tenant’s use or occupancy of the Demised Premises and
the Common Elements, except when such action or proceeding arises from personal
injury suffered on or resulting from the Demised Premises and the Common
Elements.


Section
19.2  No Counterclaims. Tenant
shall not interpose any counterclaims in a summary proceeding or in any action
based on nonpayment by Tenant of Charges other than compulsory counterclaims.


Section
19.3  Survival. The
provisions of this Article XIX shall
survive the expiration or earlier termination of this Lease.



 119
 






 



ARTICLE XX

NOTICES


Section
20.1  Notices. Each
written notice, demand, request or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given and
received (a) if personally delivered with proof of delivery thereof (any notice
or communication so delivered being deemed to have been received at the time
delivered on a Business Day or, if not a Business Day, the next succeeding
Business Day), or (b) by nationally recognized overnight courier (any notice or
communication so sent being deemed to have been received on the first
succeeding Business Day subsequent to the day so sent), addressed to the respective
parties as follows:


(a)                                                             if
to Landlord:


The New York Times
Company


229 West 43rd
Street


New York, New York
10036


Attention: General
Counsel


and


c/o Forest City
Ratner Companies


One Metro Tech
Center, North


Brooklyn, New York
11201


Attention: General Counsel


and


INGREDUS Site 8
South LLC


c/o Clarion
Partners


335 Madison Avenue


New York, New York
10017


Attn: Mr. Charles
Grossman


with copies to:


(i)                       The
New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: Director of Real Estate


(ii)                    Swidler
Berlin Shereff Friedman LLP

Chrysler Building

405 Lexington Avenue

New York, New York 10174

Attention: Martin D. Polevoy, Esq.



 120
 






 



(iii)                 Kelley Drye & Warren LLP

101 Park Avenue

New York, New York 10178

Attention: James J. Kirk, Esq.


(iv)                42nd
St. Development Project, Inc.

633 Third Avenue, 33rd floor

New York, New York 10017

Attention: President


(v)                   New
York City Economic Development Corporation

110 William Street

New York, New York 10038

Attention: President


(vi)                New
York City Law Department

100 Church Street

New York, New York 10007

Attention: Chief, Economic Development Division


(vii)             Shearman & Sterling

599 Lexington Avenue

New York, New York 10022-6069

Attention: Chris M. Smith, Esq. (3578/13)


(viii)          Pillsbury Winthrop LLP

One Battery Park Plaza

New York, New York 10004

Attention: Max Friedman, Esq.


(ix)                  New
York State Urban Development Corporation

d/b/a Empire State Development Corporation

633 Third Avenue

New York, New York 10017

Attention: 42nd Street Development Project, Inc.


(x)                     INGREDUS
Site 8 South LLC

c/o Clarion Partners

601 13th Street, N.W.

Suite 450 North

Washington, DC 20005

Attn: Mr. Martin Standiford



 121
 






 



(xi)                  Skadden
Arps Slate Meagher & Flom LLP

Four Time Square

New York, New York 10036

Attn: Benjamin F. Needell, Esq.


(b)                    if
to Tenant:


NYT Real Estate Company LLC


c/o The New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: General Counsel


with copies to:


(i)                       The
New York Times Company

229 West 43rd Street

New York, New York 10036

Attention: Director of Real Estate


(ii)                    Swidler
Berlin Shereff Friedman LLP

Chrysler Building

405 Lexington Avenue

New York, New York 10174

Attention: Martin D. Polevoy, Esq.


or to such other address as may be specified by
written notice sent in accordance herewith. No notice, demand, request or other
communication hereunder shall be effective unless given as aforesaid.



 122
 






 



ARTICLE
XXI

ESTOPPEL CERTIFICATE


Section
21.1  Certificate of Tenant. Tenant
shall, within ten (10) Business Days after notice (which notice may not be
given more often than three (3) times in any twelve month period) by Landlord,
execute, acknowledge and deliver to Landlord or to any other Person specified
by Landlord, a statement in writing (which may be relied upon by such Person or
by any other Person designated in such notice) (a) certifying (i) that this
Lease is unmodified and in full force and effect (or if there are
modifications, that this Lease, as modified, is in full force and effect,
stating the date of each such modification and providing a copy thereof, if
requested), and (ii) the date to which each item of Charges payable by Tenant
hereunder has been paid, and (b) stating (i) whether, to the best knowledge of
Tenant, any event has occurred that, with the giving of notice or the passage
of time, or both, would constitute a default by Landlord in the performance of
any covenant, agreement, obligation or condition contained in this Lease, and
(ii) whether, to the best knowledge of Tenant, Landlord is in default in
performance of any covenant, agreement, obligation or condition contained in
this Lease, and, if so, specifying in detail each such default.


Section
21.2  Certificate of Landlord. Landlord
shall, within ten (10) Business Days after notice (which notice may not be
given more often than three (3) times in any twelve-month period) by Tenant or
any Recognized Mortgagee, execute, acknowledge and deliver to Tenant or any
Recognized Mortgagee, or such other Person designated by Tenant or such
Recognized Mortgagee in such notice, a statement in writing (which may be
relied upon by such Person and by current and prospective Recognized
Mortgagees, Subtenants and Assignees (other than Prohibited Persons)): (a)
certifying (i) that this Lease is unmodified and in full force and effect (or
if there are modifications, that this Lease, as modified, is in full force and
effect, stating the date of each such modification and providing a copy
thereof, if requested), and (ii) the date to which each item of Charges payable
by Tenant hereunder to Landlord has been paid; and (b) stating (i) whether, to
the best knowledge of Landlord, an Event of Default has occurred or any event
has occurred that, with the giving of notice or the passage of time, or both,
would constitute an Event of Default and (ii) whether, to the best knowledge of
Landlord, a Default has occurred in Tenant’s performance of any covenant,
agreement, obligation or condition contained in this Lease, and, if so,
specifying, in detail, each such Default or Event of Default.


Section
21.3  Construction Certificate. [INTENTIONALLY
OMITTED]



 123
 






 



ARTICLE
XXII

SEVERABILITY


Section
22.1  Severability. If
any term or provision of this Lease or the application thereof to any Person or
circumstances 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.



 124
 






 



ARTICLE
XXIII

END OF TERM; TITLE TO IMPROVEMENTS


Section 23.1  Surrender


(a)    Upon
the expiration or earlier termination of this Lease other than by virtue of
Tenant’s exercise of the Purchase Option, or upon the re-entry of Landlord upon
the Demised Premises pursuant to Section 23.2
hereof, Tenant shall, without any payment to or allowance by Landlord
whatsoever, peaceably and quietly leave, surrender and deliver unto Landlord
the Demised Premises, the Common Elements and any Improvements and Equipment
constructed therein or located thereon from time to time, in good order,
condition and repair, reasonable wear and tear excepted, free and clear of (i)
all lettings and occupancies, other than Subleases expiring after the Expiration
Date with respect to which Landlord has entered into a Nondisturbance
Agreement, and (ii) all agreements, easements, encumbrances or other liens,
other than the Permitted Encumbrances and those created or consented to in
writing by Landlord. If the Demised Premises and the Common Elements is not so
surrendered at the end of this Lease, Tenant shall compensate Landlord for all
damages which Landlord shall suffer by reason thereof (but excluding
consequential damages), and shall indemnify Landlord from and against all
Claims resulting from or arising in connection with Tenant’s failure to
surrender the Demised Premises and the Common Elements, including any Claim
made by any succeeding tenant against Landlord founded upon delay by Landlord
in delivering possession of the Demised Premises and the Common Elements to
such succeeding tenant, so far as such delay is occasioned by the failure of
Tenant to surrender the Demised Premises and the Common Elements.
Notwithstanding anything to the contrary contained in this Lease, upon the
expiration or earlier termination of this Lease other than by virtue of
Tenant’s exercise of the Purchase Option, Tenant shall not be obligated to
remove Equipment or to restore the Demised Premises and the Common Elements to
its condition prior to any Alterations, but Tenant shall, upon Landlord’s
request, be required to remove any personal property of Tenant or any
Subtenant, and any Subtenant shall be entitled to remove any Improvement or
Equipment made or installed by or on behalf of such Subtenant (other than a
Subtenant that is a Related Entity of Tenant) as long as after such removal all
elements of the Demised Premise and the Common Elements (1) remain in working
order, condition and good repair, reasonable wear and tear excepted and (2)
continues to provide all necessary services to the Improvements.


(b)    In
the event of any surrender in accordance with Section
23.1(a) hereof, Tenant shall deliver to Landlord (i) Tenant’s
executed counterparts of all Subleases (if applicable) and any management,
service and maintenance contracts then affecting the Demised Premises or the
Common Elements, nothing herein implying that any such Subleases or other
agreements may encumber the Demised Premises or the Common Elements after the
Expiration Date, (ii) complete maintenance records for the Demised Premises or
the Common Elements, (iii) all original licenses and permits then pertaining to
the Demised Premises or the Common Elements to the extent in Tenant’s
possession or otherwise available, or if such originals are not in Tenant’s
possession or available, true and complete copies thereof certified by a
Qualified Certifying Party of Tenant, (iv) permanent or temporary certificates
of occupancy then in effect for the Improvements (and transfer documents
relating thereto), (v) all warranties and guaranties then in effect which
Tenant has received in connection with any work or services performed or
Equipment installed in the Improvements, (vi) all financial reports, books and
records required



 125
 






 



by this Lease and any and all other documents of every
kind and nature whatsoever relating to the operation of the Demised Premises or
the Common Elements, to the extent in Tenant’s possession or otherwise
obtainable by Tenant upon request, and (vii) all keys to the Demised Premises
or the Common Elements.


(c)    In
the event this Lease terminates prior to the Scheduled Expiration Date, Tenant
shall execute and deliver to Landlord such instruments of surrender, assignment
and transfer, as the case may be, as Landlord may deem reasonably necessary to
evidence the same pursuant to Section 23.1(b)
hereof.


(d)    Except
as otherwise provided in Sections 5.2 and 14.3(f)
hereof, any funds held by Depositary, including any Restoration Funds that
shall not have been applied to Restoration, any other Restoration Funds then
being held by Tenant, and any other insurance proceeds or condemnation awards
then payable in respect of a Casualty or condemnation (net, to the extent not
otherwise deducted, of reasonable, actual out-of-pocket costs of collection, if
any, incurred by Tenant), shall be paid to Landlord free and clear of any claim
by Tenant, or any Person claiming by, under or through Tenant, subject,
however, to the rights, if any, of any Recognized Mortgagee or Subtenant with
which Landlord has entered into a Recognized Mortgage or Nondisturbance
Agreement, as applicable. By executing this Lease, Tenant shall be deemed to
have agreed, subject, however, to the rights, if any, of any Subtenant with
which Landlord has entered into a Nondisturbance Agreement, to assign all
proceeds and awards, and the right to receive the same, to Landlord effective
as of the Expiration Date, and Tenant shall, at Landlord’s request, execute and
deliver to Landlord such instruments of assignment as Landlord may request (in
form reasonably satisfactory to Landlord) to evidence such assignment. The
execution and delivery of such instruments, however, shall not be required to
effect the assignment of such proceeds or awards to Landlord.


(e)    The
provisions of this Section 23.1
shall survive the expiration or earlier termination of this Lease.


Section
23.2  Re-Entry.
From and after any date upon which Landlord shall be entitled to give a
Termination Notice, Landlord may, without further notice, enter upon, re-enter,
possess and repossess itself of the Demised Premises and the Common Elements,
by force, summary proceedings, ejectment or otherwise, and may dispossess and
remove Tenant and all other persons and property from the Demised Premises and
the Common Elements and may have, hold and enjoy the Demised Premises and the
Common Elements and the right to receive all rental and other income of and
from the same. As used in this Lease the words “enter” and “re-enter” are not
restricted to their technical legal meanings.


Section
23.3  Removal of Property.
Any personal property of Tenant, any Manager or any Subtenant which shall
remain on or in the Demised Premises or the Common Elements after the
Expiration Date and the removal of Tenant and such Subtenant from the Demised
Premises or the Common Elements, may, at the option of Landlord, after thirty
(30) days prior Notice to Tenant from Landlord, be deemed to have been
abandoned by Tenant, such Manager or such Subtenant and may either be retained
by Landlord as its property or be disposed of, without accountability, in such
manner as Landlord may see fit. However, Landlord shall also have the right to
require Tenant to remove any such personal property of Tenant, such



 126
 






 



Manager or such Subtenant at any such time at Tenant’s
own cost and expense, provided that Landlord shall give Tenant at least
thirty (30) days prior written notice requesting the removal of any such
personal property of Tenant, such Manager or such Subtenant from the Demised
Premises and the Common Elements. From and after the Expiration Date, Landlord
shall not be responsible for any loss or damage occurring to any property owned
by Tenant, such Manager or any Subtenant.


Section
23.4  Title to Improvements. Title
to the Improvements within the Demised Premises and the Common Elements, shall
remain, and immediately upon erection or installation thereof on the Land shall
become, the property of Landlord.


ARTICLE
XXIV

COVENANTS BINDING


Section
24.1  Covenants Binding. The
covenants, agreements, terms, provisions and conditions of this Lease shall be
binding upon and inure to the benefit of the successors and assigns of Landlord
and, except as otherwise provided herein, the successors and assigns of Tenant.



 127
 






 



ARTICLE
XXV

ENTIRE AGREEMENT; NO WAIVER


Section
25.1  Entire Agreement.
This Lease and the Project Documents contain all the covenants,
representations, warranties and conditions made by or between the parties
hereto with respect to the subject matter hereof. This Lease may not be (a)
changed orally but only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification or discharge is sought or
(b) amended in respect of the Common Elements without the consent of the other
tenants under the Severance Subleases, as provided for in Article XXIII,
Section 4 of the Condominium Declaration. Prior to the Lease Assignment Date,
this Lease shall not be modified in any way without the prior written consent
of 42DP.


Section
25.2  No Waiver.


(a)    Receipt
of Charges. The payment or receipt of any amounts due hereunder from the
other party hereto, with knowledge of any breach of this Lease by such other
party or of any default on the part of such other party in the observance,
performance or compliance with any of such other party’s Obligations shall not
be deemed to be a waiver of any of the terms, covenants or conditions of this
Lease. In the event that Tenant is in arrears in the payment of any Charges or
other sum payable hereunder, Tenant waives Tenant’s right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
Landlord sees fit irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.


(b)    Enforcement
of Terms. No failure on the part of any party hereunder to enforce any
term, covenant or condition herein contained, nor any waiver of any right
hereunder by any party hereunder, unless in writing, shall discharge or
invalidate such term, covenant or condition, or affect the right of such party
to enforce the same in the event of any subsequent breach or default. The
consent of Landlord to any act or matter must be in writing and shall apply
only with respect to the particular act or matter to which such consent is
given and shall not relieve the other party hereunder from the obligation
wherever required under this Lease to obtain the consent of such party to any
other act or matter. The receipt by Landlord of any Charges or any other sum of
money or any other consideration hereunder paid by or on behalf of Tenant after
the termination, in any manner, of this Lease, or after the giving by Landlord
of any notice hereunder to effect such termination, shall not reinstate,
continue or extend the term of this Lease or destroy or in any manner impair
the efficacy of any such notice of termination as may have been given hereunder
by Landlord to Tenant prior to the receipt of any such sum of money or other
consideration, unless so agreed to in writing and signed by Landlord. No act or
thing done by Landlord or any employee, agent or representative of Landlord
during the term of this Lease shall be deemed to be an acceptance of a surrender
of the Condominium Unit, excepting only an agreement in writing signed by
Landlord accepting or agreeing to accept such a surrender.



 128














 


ARTICLE
XXVI

NO MERGER


Section
26.1  No Merger. There
shall be no merger of this Lease or of the leasehold estate hereby created with
the fee estate or any leasehold estate in the Property by reason of the fact
that the same person acquires or holds, directly, this Lease or the leasehold
estate hereby created or any interest herein or in such leasehold estate as
well as the fee estate or any leasehold estate in the Property.



 129
 






 



ARTICLE
XXVII

ENCUMBRANCES


Section
27.1  Encumbrances. Tenant
will not, without the consent of Landlord, which consent Landlord may withhold
in its sole and absolute discretion (except in respect of utility or comparable
easements necessary for the day-to-day operation of the Demised Premises and
the Common Elements, in which case Landlord’s consent shall not be unreasonably
withheld), impose any restrictive covenants, liens or encumbrances upon the
Demised Premises and the Common Elements or any part thereof. Nothing in the
foregoing shall restrict Tenant’s right to encumber the leasehold estate in the
Demised Premises and the Common Elements created hereby in accordance with the
terms hereof.



 130
 






 



ARTICLE
XXVIII

CONSENTS; APPROVALS


Section
28.1  Reasonable Standard. Wherever
it is specifically provided in this Lease that Landlord’s or Tenant’s consent
shall not be unreasonably withheld, Landlord or Tenant, as applicable, must be
reasonable in granting its consent and a response to a request for such consent
shall not be unreasonably delayed or conditioned. If a request is received in
writing by Landlord or Tenant for a consent or approval required under this
Lease or for information to which the party making such request shall be
entitled, the party receiving such request shall act with reasonable promptness
thereon and shall not unreasonably delay notifying the party making such
request as to the granting or withholding of such consent or approval or
furnishing to such party the information requested. Except where it is
specifically provided in this Lease that Landlord’s consent shall not be unreasonably
withheld, whenever Landlord’s consent or approval shall be required hereunder
for any matter, the decision as to whether or not to consent to or approve the
same shall be in the sole discretion of Landlord.


Section
28.2  No Damages.
Tenant hereby waives any claim for damages against Landlord which it may have
based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any consent that, pursuant to specific provisions of this
Lease, is not to be unreasonably withheld or otherwise to act reasonably in the
performance of Landlord’s Obligations, except where Landlord has withheld such
consent due to Landlord’s bad faith or in an arbitrary and capricious manner
(as determined by a court of competent jurisdiction after all permitted appeals
taken). In any such case, Tenant’s sole remedy shall be an action or proceeding
to enforce any such provision or for specific performance, injunction or
declaratory judgment. Tenant agrees that if Tenant shall request such a consent
from Landlord and Landlord shall fail or refuse to give such consent or shall
delay the giving of such consent, Tenant shall not be entitled to any damages
for such withholding or delay, except where Landlord has withheld such consent
due to Landlord’s bad faith or in an arbitrary and capricious manner (as
determined by a court of competent jurisdiction after all permitted appeals
taken).


Section
28.3  Deemed Consent. (a)
Except as set forth in Section 28.3(b) hereof,
whenever it is provided in this Lease that Landlord shall respond to Tenant’s
request for Landlord’s consent within a specified period of time, Landlord’s
consent shall be deemed given if Landlord shall have not responded to such
request within such specified period, provided that Tenant’s request shall
contain the following notice in bold and capitalized type:


YOUR CONSENT TO THE [DESCRIBE
REQUEST] SHALL BE DEEMED GIVEN IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN
[SPECIFIED PERIOD] FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.


Whenever the period of time for Landlord to respond to
Tenant’s request for Landlord’s consent is not specified, such period of time
shall be deemed to be twenty-three (23) Business Days from receipt of Tenant’s
notice requesting such consent, and Landlord’s consent shall be deemed given if
Landlord shall have not responded to such request within such twenty-three
Business Day period, provided that Tenant’s request shall contain the
aforementioned notice, appropriately modified. The provisions of this Section 28.3(a) shall not apply to consents
covered by Section 28.3(b) hereof
or to any other provision of this Lease that specifically



 131
 






 



provides for additional or other conditions for the
granting of Landlord’s deemed consent. Notwithstanding anything to the contrary
in the foregoing, if within the period specified for Landlord to respond to
Tenant’s consent request Landlord makes a reasonable request to Tenant for
additional information regarding the subject matter of such consent request,
the period of time for Landlord to respond to Tenant’s request shall not
commence until Landlord receives the requested information.


(b)    With
respect to Tenant’s requests for Landlord’s consents required under Sections 9.5, 9.6 or 13.1 or this Article XXVIII, the following shall apply: Whenever the period
of time for Landlord to respond to Tenant’s request for Landlord’s consent is
not specified, Tenant’s request for Landlord’s consent shall contain the
following notice in bold and capitalized type:


THIS CONSENT REQUEST IS SUBJECT TO THE “DEEMED
CONSENT” PROVISIONS OF SECTION 28.3(B) OF THE LEASE.


If Landlord fails to respond to Tenant’s request
within twenty-three (23) Business Days from receipt of Tenant’s notice
requesting Landlord’s consent, or Landlord fails to make a reasonable request
for additional information related thereto within such thirty-day period and
thereafter to respond to such request within twenty-three (23) Business Days
after written submission of such additional information as Landlord shall have
reasonably requested, Tenant shall have the right to give Landlord a reminder
notice, which reminder notice shall contain the following caption in bold and
capitalized type:


YOUR CONSENT TO THE [DESCRIBE REQUEST] SHALL BE DEEMED
GIVEN IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN FIVE (5) BUSINESS DAYS FROM
THE DATE OF YOUR RECEIPT OF THIS NOTICE.


If Landlord fails to grant or deny the requested
consent within five (5) Business Days after its receipt of such reminder
notice, Landlord’s consent thereof shall be deemed given. Whenever in the
above-enumerated provisions of this Lease the period of time for Landlord to
respond to Tenant’s request for Landlord’s consent is specified, the foregoing
provisions of this Section 28.3(b) shall
apply, except that all references above to twenty-three (23) Business Days
shall be replaced by the period of time so specified.



 132
 






 



ARTICLE
XXIX

NON-DISCRIMINATION AND AFFIRMATIVE ACTION


Section
29.1  Incorporation by Reference. To
the extent it pertains to the Common Elements and to the Demised Premises, the
provisions set forth on Exhibit O attached
hereto are incorporated herein as if fully set forth herein.



 133
 






 



ARTICLE
XXX

REPRESENTATIONS, WARRANTIES AND COVENANTS, AND OTHER AGREEMENTS


Section 30.1  Representations
and Warranties.


(a)    Tenant’s
Representations and Warranties. Tenant represents and warrants to Landlord
that as of the date hereof:


(i)            Tenant
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of New York and has full power and
authority to conduct its business as presently conducted and to enter into this
Lease and the terms, provisions, covenants and obligations of Tenant as set
forth in the Lease are legally binding on and enforceable against Tenant;


(ii)           the
execution, delivery and performance of this Lease do not and will not (A)
violate or conflict with the Constitutive Documents of Tenant, (B) violate or
conflict with any judgment, decree or order of any court applicable to or
affecting Tenant, (C) breach the provisions of, or constitute a default under,
any contract, agreement, instrument or obligation to which Tenant is a party or
by which Tenant is bound, or (D) violate or conflict with any law or
governmental regulation or permit applicable to Tenant;


(iii)          Exhibit P attached hereto correctly sets
forth the identity of the members of Tenant and the holders of the direct
equity interests in such members; none of Tenant’s members, partners,
shareholders, or members, partners or shareholders thereof, or officers, are
Prohibited Persons; and


(iv)          Tenant
has made available to Landlord true and complete copies of the Constitutive
Documents, and such Constitutive Documents are in full force and effect, and
have not been replaced, amended, modified or terminated.


(b)    Landlord’s
Representations and Warranties. Landlord represents and warrants to Tenant
that as of the date hereof Landlord is duly organized and validly existing
under the laws of New York and has full power and authority to conduct its
business as presently conducted and to enter into this Lease and the terms,
provisions, covenants and obligations of Landlord as set forth in the Lease are
legally binding on and enforceable against Landlord;


(c)    Acknowledgment
of No Other Representations or Warranties. (i) Tenant acknowledges that, except
for the representations contained in this Lease, in the other Project Documents
and in any other documents executed contemporaneously with this Lease (A) no
representations, statements or warranties, express or implied, have been made
by, or on behalf of, 42DP, ESDC, NYCEDC or the City with respect to the Demised
Premises or the Common Elements or the transaction contemplated by this Lease,
the status of title to the Demised Premises or the Common Elements, the
physical condition thereof, the tenants and occupants thereof, the zoning or
other laws, regulations, rules and orders applicable thereto or the use that
may be made of the Demised Premises or the Common Elements, (B) Tenant has
relied on no such other representations, statements or warranties, and (C) none
of Landlord, ESDC,



 134
 






 



NYCEDC or the City in no event whatsoever shall be
liable for any latent or patent defects in the Demised Premises or the Common
Elements.


(ii)           Landlord
acknowledges that, except for the representations and warranties contained in Section 30.1(a) hereof, the balance of the
Lease, in the other Project Documents and in any other documents executed
contemporaneously with this Lease, (A) no representations, statements or
warranties, express or implied, have been made by, or on behalf of, Tenant with
respect to the Demised Premises or the Common Elements or the transaction
contemplated by this Lease, and (B) Landlord has relied on no such
representations, statements or warranties.


Section
30.2  Possession.
It is not a condition of this Lease that Landlord deliver full or partial
Possession.


Section
30.3  Covenants of Tenant. In
addition to any other covenants of Tenant set forth in this Lease, Tenant
hereby agrees and covenants to: make available to the Public Parties, promptly
upon execution thereof but not later than ten (10) days after execution: (i)
any amendments to Tenant’s Constitutive Documents and (ii) any Operative
Agreements and any amendments thereto. Subject to Section 32.2 hereof, any amendments to Tenant’s Constitutive
Documents and the Operative Agreements shall be subject to review and the
reasonable approval by the Public Parties, within thirty (30) days of the
Public Parties’ gaining access thereto, solely to confirm (A) compliance with
the transfer provisions set forth in Article
XIII hereof, (B) the composition and identify of Tenant, and (C)
compliance with Sections 30.1(a)(ii) and
30.1(a)(iv) hereof; and


Section
30.4  Public Amenity. (a)
Generally. As an express condition to the execution of the Project
Documents, Tenant agrees (at its sole cost and expense) to construct, finance,
complete, operate and maintain a public amenity within the Improvements that
will provide a significant public benefit within the objectives of the 42nd
Street Project (the “Public Amenity”). Landlord agrees that the construction,
completion, operation and maintenance of the Public Amenity Space in accordance
with the terms and conditions of this Section
30.4 shall fulfill Tenant’s obligations with respect to the Public
Amenity. Tenant agrees and covenants that Tenant’s failure to construct,
complete, open and maintain the Public Amenity during the PA Obligation Term in
accordance with this Lease and the DUO shall be a default hereunder.


(b)    Defined
Terms.


(i)            “Auditorium” means that portion of the
Improvements designated as the “Auditorium” on the schematic design plan
numbered A 1001 on Exhibit I-1 attached to the Initial Ground Lease.


(ii)           “Event” means any date on which a formally
scheduled event takes place in the Auditorium or the Gallery; provided, however,
that (A) any such event utilizing both the Auditorium and the Gallery at the
same time shall constitute one (1) Event and (B) so long as they are not
related in subject matter and not intended to serve the same audience, up to two
(2) Events taking place on the same day shall constitute separate Events.



 135
 






 



(iii)          “Gallery” means that portion of the
Improvements designated as the “Gallery” on the schematic design plan numbered
A 1001 on Exhibit I-1 attached to the Initial Ground Lease.


(iv)          “NFP Event” means an Event: (A) sponsored
by, organized by or primarily serving, a NFP User; and (B) for which Tenant
charges not more than the PA NFP Operating Costs.


(v)           “NFP Event Shortfall” means, for any PA
Year, the positive difference (if any) between: (A) the number of NFP Events
required by Section 30.4(d)(i) hereof;
and (B) the number of NFP Events actually occurring.


(vi)          “NFP User” means: (A) a public charity
organized under Section 501(c)(3) of the Income Tax Code; and (B) any other
bona fide not-for-profit entity that is approved in advance by Landlord in
Landlord’s sole discretion, which approval shall be granted or withheld within
five (5) Business Days of Landlord’s receipt of a request for such approval
from Tenant (each entity listed on Exhibit Q hereof,
for so long as such entity remains a public charity organized under Section
501(c)(3) of the Income Tax Code or a bona fide not-for-profit entity, is
hereby deemed approved by Landlord). Tenant shall make such request in writing
not later than fifteen (15) Business Days prior to the proposed use by such
entity of the Public Amenity Space.


(vii)         “PA Effective Date” means the date that is
the earlier to occur of: (A) the PA Opening Date; and (B) the fifteen (15)
month anniversary of the Substantial Completion Date.


(viii)        “PA NFP Operating Costs” means the
reasonable and actual operating costs incurred (i.e., not including any
mark-ups, fees, overhead charges or other addons) by Tenant in respect to an
NFP Event, including, if applicable and provided by Tenant: (A) stagehand
labor; (B) the Pro Rata Cost of a production coordinator; (C) front-of-house
labor (e.g., ushers, ticket takers, concessionaires); (D) the Pro-Rata Cost of
non-routine maintenance labor (e.g., extra janitors); (E) stage door labor
(e.g., security guard, lobby reception during off hours); (F) utilities (e.g.,
theatrical lighting and/or air conditioning); (G) house programs; (H) box
office labor; and (I) production expenses (e.g., rental from of unaffiliated
Persons of piano, sound system, lights, gels, theatrical drapes, microphones,
podiums, chairs, tables).


(ix)           “PA Obligation Term” means the period from
the PA Effective Date through the PA Obligation Termination Date.


(x)            “PA Obligation Termination Date” means,
subject to Section 30.4(d)(i)(B) hereof,
the date that is the last day of the tenth (10th) full calendar year following
the PA Effective Date.


(xi)           “PA Opening Date” means the first date upon
which the Public Amenity is completed and operating in accordance with Legal
Requirements and this Section 30.4 for
general use (but not including Tenant’s use of the Public Amenity Space for up
to ten (10) single-day events associated with the inauguration of the
Improvements or the Public Amenity Space).



 136
 






 



(xii)          “PA Year” means: (A) the period from the PA
Effective Date through December 31 of the calendar year in which the PA
Effective Date occurs (such period, the “PA
Effectiveness  Stub Period”); and (B) each calendar year following the
end of the PA Effectiveness Stub Period through the PA Obligation Termination
Date.


(xiii)         “Pro Rata Cost” means the portion of the
cost of the identified person(s) allocated to the NFP Event on the basis of the
amount of such person’s overall time devoted to the NFP Event.


(xiv)        “Public Amenity Space” means the PA Retail
Space, the Auditorium and the Gallery.


(xv)         “Venue” means either the Auditorium or the
Gallery.


(c)    Public
Amenity Completion Date. The PA Opening Date shall occur on or prior to the
date that is the fifteen (15) month anniversary of the Substantial Completion
Date.


(d)    Operating
Requirements. In additional to any other operating standards required under
this Lease in respect of the Improvements (including without limitation those
imposed by Legal Requirements or the DUO), the Public Amenity shall be operated
in accordance with the following provisions:


(i)            NFP
Events: (A) Subject to clause (B) of this Section
30.4(d)(i), at least 104 NFP Events shall occur in the Public
Amenity Space each PA Year, and at least 50% of such NFP Events shall take
place (in whole or in substantial part) in the Auditorium; provided, however,
that (1) during the PA Effectiveness Stub Period, the total NFP Events required
shall be the product of [a] 35 and [b] a fraction, the numerator of which is
the number of days in the PA Effectiveness Stub Period and the denominator of
which is 365 and at least 50% of such NFP Events shall take place (in whole or
in part) in the Auditorium, (2) during the first full PA Year, a total of 35
NFP Events shall be required and at least 50% of such NFP Events shall take
place (in whole or in part) in the Auditorium, and (3) during the second full
PA Year, a total of 70 NFP Events shall be required and at least 50% of such
NFP Events shall take place (in whole or in part) in the Auditorium. NFP Users
that are Related Entities of Tenant or any Subtenant may not account for more
than 30% of the NFP Event requirement for any PA Year.


(B)     Notwithstanding
any provision of this Lease to the contrary, in the event that an NFP Event
Shortfall shall occur for any PA Year, then:


(1)           if
such NFP Event Shortfall is less than or equal to 10% of the total NFP Event
requirement for such PA Year, the number of Events in such NFP Event Shortfall
shall be added to the number of NFP Events required for the next-occurring PA
Year; and


(2)           upon
the first occurrence of an NFP Event Shortfall in excess of 10% of the NFP
Event requirement for a given PA Year, the PA Obligation Termination Date shall
be extended by two (2) years (such extension, the “First PA Extension”), during which First PA Extension: (i) at
least 104 NFP Events shall take
place in the Public Amenity Space during each such additional PA Year and at
least 50% of such NFP



 137
 






 



Events shall take place (in whole or in part) in the
Auditorium, (ii) Tenant shall make up any NFP Event Shortfall; (iii) NFP Users
shall be permitted to use the Public Amenity Space for no charge (including no
charge for PA NFP Operating Costs); and (iv) the PA PILOT Reduction shall be
unavailable. In the event that there is an NFP Event Shortfall at the end of
the First PA Extension, the PA Obligation Termination Date shall be extended by
two (2) additional years (such extension, the “Second
PA  Extension”), during which Second PA Extension: (x) the
NFP Event requirement shall equal the number that is twice such NFP Event
Shortfall; (y) NFP Users shall be permitted to use the Public Amenity Space for
no charge (including no charge for PA NFP Operating Costs) until such NFP Event
requirement is fulfilled; and (z) the PA PILOT Reduction shall be unavailable.
In the event that there is an NFP Event Shortfall at the end of the Second PA
Extension, PILOT on the entire Public Amenity Space shall be calculated on the
basis of the Retail PILOT Schedule until the number of NFP Events comprising
such NFP Event Shortfall shall have occurred.


(C)     Tenant
shall use its good faith efforts to make the Public Amenity Space available for
use by NFP Users that primarily serve the performing arts, such as those NFP
Users listed on Exhibit Q attached
hereto, but Tenant shall have no liability in the event that such NFP Users
determine not to so use the Public Amenity Space. Tenant shall, at least on
each January 1 and July 1 during the PA Obligation Term, provide to those NFP
Users listed on Exhibit Q attached
hereto, a list of those dates that the Public Amenity Space is then available
for use by NFP Users in the upcoming six (6) months (i.e., those dates for
which there are then no confirmed bookings).


(ii)           Fees
for NFP User Use of Public Amenity Space: Tenant shall charge each NFP User not
more than the applicable PA NFP Operating Costs for such NFP User’s use of
Public Amenity Space.


(iii)          Reporting
Requirements: Tenant shall submit a report to Landlord within thirty (30)
days after the end of each PA Year setting forth for such PA Year: (A) the
number of Events; (B) the number of NFP Events; (C) the portion of the Public
Amenity Space (i.e., Gallery and/or Auditorium) utilized for each such Event
and NFP Event; (D) the sponsor/user and purpose of each such Event and NFP
Event; and (E) the NFP Shortfall, if any.


(e)    Effect
of Public Amenity Space on PILOT.


(i)            Tenant
shall pay to Landlord full Office PILOT in respect of the Auditorium and the
Gallery, except that during the PA Obligation Term (but not during the First PA
Extension or thereafter) the PILOT for each PILOT Year shall be reduced by the
number (such number, the “PA PILOT Reduction”) equal to the product of (1) the PILOT due
for the Square Feet comprising such particular Venue for such PILOT Year multiplied by (2) a fraction, the
numerator of which is the number of NFP Events occurring in such Venue during
such PILOT Year, and the denominator of which is 365. It is acknowledged and
agreed that a single NFP Event utilizing both the Auditorium and the Gallery at
the same time would constitute a separate use of each such Venue only for the
purpose of calculating the PA PILOT Reduction.



 138















(ii) For accounting purposes, the Taxable Square Feet
of each of the Auditorium and the Gallery shall be computed separately, and
PILOT calculated in respect of each of the Auditorium and the Gallery shall be
based on such Square Feet.


(iii) Tenant shall pay to
Landlord full Retail PILOT in respect of any PA Retail Space.


Section
30.5 Other Agreements.


(a)       Construction Guaranties.
[INTENTIONALLY OMITTED].


(b)       Project Participants. Tenant
covenants to inform Landlord whenever the identity of a Project Participant is
first identified or changes. All Project Participants shall be subject to the
reasonable approval of Landlord, in accordance with the requirements set forth
in this Section 30.5(b) and in Article I hereof in respect of permissible
Project Participants. Tenant shall not at any time be a Person that is not a
Permitted Developer; provided, however, that Landlord hereby
approves Tenant and Tenant’s Control Affiliates (as constituted on the date
hereof) as permissible Project Participants.



 139
 








ARTICLE XXXI

PERMITTED FINANCING


Section
31.1 Recognized Mortgage.


(a)       Right of Tenant. Tenant, from time
to time during the term of this Lease, may make one or more Recognized
Mortgages, provided that:


(i) Tenant or the
Recognized Mortgagee shall deliver to Landlord within seven (7) Business Days
after the execution thereof, in the manner herein provided for the giving of
notice to Landlord, a copy of the mortgage financing commitment and any
amendments thereto and a true copy of such Recognized Mortgage and of any subsequent
modification, amendment or assignment thereof and recorded copies thereof and
shall notify Landlord of the address of the Recognized Mortgagee to which
notices may be sent;


(ii) such Recognized
Mortgage shall contain provisions permitting the disposition and application of
insurance proceeds and condemnation awards in a manner consistent with the
provisions of this Lease;


(iii) such Recognized
Mortgage shall specifically include provisions requiring written notice to
Landlord of any defaults thereunder, permitting Landlord to cure any such
defaults and to be subrogated to the rights of the Recognized Mortgagee to the
extent thereof and prohibiting any modification, amendment, extension or
consolidation of the Recognized Mortgage without delivering a copy thereof to
Landlord; and


(iv) no Recognized
Mortgage shall extend to, affect, or be a lien or encumbrance upon, the estate
and interest of Landlord in the Demised Premises or the Common Elements, in
this Lease or any part thereof and each Recognized Mortgage shall expressly
provide that at all times it shall be subject and subordinate to this Lease.


(b)       Payment of Indebtedness. Any
modification, amendment, extension or consolidation of a Recognized Mortgage
shall be permitted only if the same shall comply in all respects with the
requirements of Section 31.1(a) hereof.


(c)       Notices. In the event that Tenant’s
interest under this Lease is subject to any Recognized Mortgage, Landlord will
give to the Recognized Mortgagee a copy of each notice of default from Landlord
to Tenant hereunder at the time of giving such notice to Tenant, and Landlord
will give to the Recognized Mortgagee a copy of each notice received by
Landlord of any rejection of this Lease by any trustee in bankruptcy of Tenant.
No notice of default hereunder from Landlord shall be effective against any
Recognized Mortgagee unless and until a copy of such notice has been given to
such Recognized Mortgagee in the manner provided in this Lease for the giving
of notices.


(d)       Mortgage Recording Tax. Subject to
Section 3.4 hereof, in no event
shall Tenant, or any party claiming by, through or under Tenant, claim any
exemption from Mortgage Recording Tax with respect to a Recognized Mortgage.



 140
 








(e)       Defaults
of Other Tenants. Landlord agrees that Tenant and/or the Condominium
Association, as applicable, shall be deemed a Recognized Mortgagee hereunder
with respect to any lien arising by virtue of Tenant’s or the Condominium
Association’s exercise of its right to cure the default of another tenant under
a Severance Sublease or as permitted under Section 2 of Article XXI of the
Condominium Declaration. As such, Tenant and/or the Condominium Association, as
applicable, shall enjoy all of the rights of a Recognized Mortgagee hereunder,
with a lien priority determined in accordance with applicable Legal
Requirements and the Condominium Declaration.


Section
31.2 Right and Time to Cure. (a) Each Recognized Mortgagee shall have a period of (i) ten
(10) days more, in the case of any default in the payment of Charges, and (ii)
thirty (30) days more, in the case of any other default of Tenant’s
Obligations, than is given Tenant under the provisions of this Lease, to remedy
such a default, which periods shall begin to run upon the giving of the notice
to the Recognized Mortgagee specifying such default. In addition, with respect
to defaults for which possession of the Demised Premises is required to cure
such default, or in the case of defaults that are not reasonably susceptible of
being cured by a Recognized Mortgagee (such as the bankruptcy of Tenant), the
period to remedy such defaults shall be extended for such time as is necessary
for a Recognized Mortgagee to promptly institute foreclosure proceedings, and
thereafter, subject to Unavoidable Delay, continuously prosecute the
foreclosure proceedings with reasonable diligence and continuity to obtain
possession and, upon obtaining possession of the Demised Premises, promptly
commence to cure the default (other than a default which is not reasonably
susceptible of being cured by a Recognized Mortgagee) and prosecute such cure
to completion with diligence and continuity, subject to Unavoidable Delay. With
respect to defaults not reasonably susceptible to cure by the Recognized
Mortgagee, the completion of such foreclosure proceeding shall be deemed to
remedy such defaults.


(b)       No Recognized Mortgagee shall be entitled
to the additional remedy periods provided in clause (ii) of Section 31.2(a) hereof unless within thirty
(30) days after the giving of the notice referred to in Section 31.2(a) hereof such Recognized
Mortgagee delivers to Landlord a written commitment to cure or cause to be
cured such defaults (other than a default which is not reasonably susceptible
of being cured by a Recognized Mortgagee). At any time within thirty (30) days
after the delivery of the aforementioned commitment, such Recognized Mortgagee
may notify Landlord, in writing, that it no longer intends to cure a default,
and, in such event the liability of such Recognized Mortgagee for the period prior
to delivery of such notice shall be limited as set forth in Section 17.4 hereof as if “Recognized
Mortgagee” were “Tenant” and the Recognized Mortgagee shall have no further
liability under such commitment from and after the date on which it delivers such
notice to the Landlord. Thereupon the Recognized Mortgagee shall have no
further right to cure and, subject to Section
31.7 hereof, Landlord shall have the right to terminate this Lease
and to take any other action permitted under this Lease it deems appropriate by
reason of any Event of Default, and, upon any such termination, the provisions
of Section 31.6 hereof shall
apply.


Section
31.3 Notice to Landlord. Notwithstanding any of the
provisions of this Article XXXI, Landlord
shall not be required to comply with any of the provisions of this Article XXXI unless Landlord has received
prior written notice of the existence of the Recognized Mortgage and such
Recognized Mortgage remains a recorded lien on the Demised



 141
 








Premises (or other
satisfactory evidence of the lien of the Recognized Mortgage), together with
copies of the Recognized Mortgage and the name and address of the Recognized
Mortgagee to which notices shall be sent and, if such address changes from time
to time, the new address of such Recognized Mortgagee to which notices may be
sent.


Section 31.4 Acceptance of
Performance. Landlord shall accept performance by a
Recognized Mortgagee of any covenant, condition or agreement on Tenant’s part
to be performed hereunder with the same force and effect as though performed by
Tenant.


Section
31.5 Other Defaults. While a Recognized Mortgagee is
exercising any right to cure Tenant’s defaults pursuant to Sections 31.2 and 31.4 hereof, Landlord shall not be
precluded from exercising any rights or remedies it may have with respect to
other defaults of Tenant’s Obligations that may arise from time to time
hereunder, subject in each case to the Recognized Mortgagee’s rights to cure
such other defaults pursuant to said Sections
31.2 and 31.4 hereof.


Section
31.6 Execution of New Lease.


(a)       Notice of Termination. If this
Lease is terminated by reason of an Event of Default, Landlord shall, as soon
as practicable thereafter, give notice of such termination to each Recognized
Mortgagee. Such notice shall set forth in reasonable detail a description of
all defaults, to the actual knowledge of Landlord, in existence at the time
this Lease was terminated.


(b)       Request for New Lease. If, within
twenty-three (23) Business Days after the giving of the notice referred to in Section 31.6(a) hereof, a Recognized
Mortgagee requests a new lease, then, subject to the provisions of Sections 31.6(c) and 31.7 hereof, within twenty-three (23)
Business Days after Landlord has received such request, Landlord shall execute
and deliver a new lease of the Demised Premises and Tenant’s undivided interest
in the Common Elements for the remainder of this Lease to the Recognized
Mortgagee, or to any designee or nominee of the Recognized Mortgagee which (i)
is not a Prohibited Person or Related Entity of Tenant and (ii) agrees to
assume the Obligations of Tenant hereunder. The new lease shall have the same
priority of lien as this Lease and, with the exception of the name of the
tenant, shall contain the same covenants, conditions, limitations and
agreements contained in this Lease, but Landlord shall not be deemed to have
represented or covenanted that such new lease shall be superior to the claims
of any prior tenant, its creditors, a judicially appointed receiver or trustee
for such tenant, or any other person or entity claiming priority, by operation
of law or otherwise, through, under, or by virtue of the acts of, any prior
tenant.


(c)       Conditions Precedent to New Lease.
The provisions of Section 31.6(b)
hereof notwithstanding, Landlord is not obligated to enter into a new lease
with a Recognized Mortgagee: (i) unless the Recognized Mortgagee pays to
Landlord, concurrently with the execution and delivery of such new lease, all
Charges due under this Lease up to and including the date of the commencement
of such new lease and all expenses, including reasonable attorneys’ fees and
disbursements and court costs, incurred by Landlord in connection with (A) the
enforcement of Landlord’s rights and remedies with respect to all defaults or
Events of Default in existence at the time of the termination of the Lease (to
the extent set forth in the notice to be delivered pursuant to Section 31.6(a) hereof), (B) the
termination of this Lease and



 142
 








(C) the preparation of
such new lease; (ii) unless Landlord concurrently receives an assumption in
writing by such Recognized Mortgagee, its designees or nominee of Tenant’s
obligations, if any, under the Project Documents; and (iii) if Landlord is not
then allowed to enter into such new lease by order of a court of competent
jurisdiction. To the extent not set forth in the notice given to the Recognized
Mortgagee pursuant to Section 31.6(a)
hereof, Landlord agrees to notify the Recognized Mortgagee, concurrently with
the giving of such new lease, of any unperformed Obligations of, and/or
defaults by, Tenant, which, to the best of Landlord’s knowledge, then exist.


(d)       No
Waiver of Default. The execution of a new lease shall not constitute a
waiver of any default existing immediately before the termination of this
Lease, except for defaults under Sections
14.2(d), 14.2(e), and 14.2(f) hereof, and the tenant under the
new lease shall cure, within the longer of (i) the period of cure remaining to
the Recognized Mortgagee pursuant to Section
31.2 hereof or (ii) the applicable periods set forth in the
provision of such new lease relating to events of default thereunder (which
applicable periods shall commence with the execution and delivery of the new
lease or, if notice of such defaults had not then been given, upon the giving
of such notice), all other defaults existing under this Lease immediately
before its termination of which such tenant has been or, to the extent any such
defaults were not then known by Landlord, is thereafter given notice; provided,
however, with respect to any default under Sections 14.2(g), 14.2(h)
and 14.2(i) hereof existing
immediately before its termination, the period of cure shall be such time as is
necessary for the new tenant to promptly commence to cure such default
following execution and delivery of the new lease and to prosecute such cure to
completion with diligence and continuity, subject to Unavoidable Delay.
Notwithstanding anything to the contrary, if after the Recognized Mortgagee
requests a new lease pursuant to this Section
31.6 the Recognized Mortgagee is given notice of a default existing
before the termination of this Lease and which default was not noticed to the
Recognized Mortgagee prior to the date of such request, then at any time within
ten (10) days after such notice of default is given, the Recognized Mortgagee
may rescind such request in writing to Landlord, or if the new lease has then
already been executed and delivered, the new tenant may relinquish possession
of the Demised Premises and cancel the new lease by notice to Landlord.
Thereupon, Landlord shall have the right, subject to Section 31.7 hereof, to terminate the new lease, and the
Recognized Mortgagee shall have no further right to a new lease.


(e)       Assignment of Proceeds.
Concurrently with the execution and delivery of a new lease pursuant to the
provisions of Section 31.6(b)
hereof, Landlord shall assign to the tenant named therein all of its right,
title and interest in and to monies (including insurance proceeds and
condemnation awards), if any, then held by, or payable to, Landlord that Tenant
would have been entitled to receive but for the termination of this Lease or
the occurrence of an Event of Default, other than any such amounts theretofore
applied under this Lease to the discharge of Tenant’s Obligations to Landlord
hereunder, subject to the rights, if any, of the prior Tenant therein and to
the provisions of such new lease.


(f)        No Obligation to Deliver Possession.
Nothing contained herein shall be deemed to obligate Landlord to remove any
liens, encumbrances or other defects in title to the Property or to deliver
possession of the Demised Premises or the Common Elements to the tenant under
any such new lease, except for the delivery of possession free and clear of the



 143
 








claims of persons or
entities claiming through or under Landlord, other than Tenant and those
claiming by, through or under Tenant.


(g)       Assignment
of Subleases. Upon the execution and delivery of a new lease pursuant to
the provisions of this Section 31.6,
all Subleases that may have been assigned to Landlord and all leases that
Landlord makes directly shall be assigned and transferred, without recourse, to
the tenant named in the new lease. Between the date of termination of this
Lease and the date of the execution and delivery of the new lease, if a
Recognized Mortgagee has timely requested a new lease as provided in this Section 31.6, Landlord shall not materially
modify or amend, or cancel, any Sublease or accept any cancellation,
termination or surrender thereof (unless such termination occurs as a matter of
law upon the termination of this Lease or pursuant to the express terms of the
Sublease) or enter into any new Sublease without the consent of the Recognized
Mortgagee or such designee or nominee.


(h)       Credits. Any rent credits to which
Tenant is entitled under this Lease and which have not been exhausted at the
time this Lease is terminated, and interest thereon shall inure to the benefit
of the tenant under any new lease granted pursuant to Section 31.6(b) hereof.


(i)        Continuation of this Lease in Lieu of
Entering into New Lease.


(i) Termination Notice.
A Recognized Mortgagee shall have the right, within fifteen (15) days after the
delivery of the Termination Notice to such Recognized Mortgagee pursuant to Section 31.6(a) hereof, to elect to
continue this Lease in lieu of requesting a new lease by notice to Landlord,
subject to the further conditions of this Section
31.6(i). Such right may be exercised by a Recognized Mortgagee, or
any designee or nominee thereof which satisfies the conditions set forth in
clauses (i) and (ii) of this Section 31.6(i).


(ii) Election to
Continue Lease. If a Recognized Mortgagee elects to continue this Lease by
notice given to Landlord within such l5-day period (the “Continuation Notice”), then effective upon
the delivery of such notice, Tenant shall be deemed to have assigned to such
Recognized Mortgagee, or any such designee or nominee thereof, as the case may
be, all of Tenant’s right, title and interest in and to this Lease and the
leasehold estate in the Demised Premises and Tenant’s undivided interest in the
Common Elements created hereunder, including the Subleases and security
deposits thereunder referred to Section
31.6(i)(vii), and Tenant shall, at Landlord’s request, execute and
deliver to Landlord and such Recognized Mortgagee such instruments of
assignment and related transfer tax documents as Landlord and such Recognized
Mortgagee may request (in form reasonably satisfactory to Landlord and such
Recognized Mortgagee) to evidence such assignment. If Tenant fails to execute
and deliver any such instrument of assignment or related transfer tax
documents, such Recognized Mortgagee shall be entitled to do so on Tenant’s
behalf, and Tenant hereby appoints such Recognized Mortgagee as its
attorney-in-fact, which appointment shall be deemed to be coupled with an
interest and is irrevocable, for the sole purpose of executing and delivering
such assignment and any transfer tax documents. The execution and delivery of
such instruments, however, shall not be required to effect the assignment of
this Lease to such Recognized Mortgagee or such nominee or designee.



 144
 








(iii) Conditions Precedent to New Lease. The
provisions of Sections 31.6(i)(i) and
31.6(i)(ii) hereof
notwithstanding, a Recognized Mortgagee shall have no right to continue this
Lease unless the Recognized Mortgagee pays to Landlord, concurrently with the
delivery of the Continuation Notice, all amounts due to Landlord under this
Lease up to and including the date of the Continuation Notice and all expenses,
including reasonable attorneys’ fees and disbursements and court costs,
incurred by Landlord in connection with (1) the enforcement of Landlord’s
rights and remedies with respect to all defaults or Events of Default in
existence at the time of the Termination Notice, and (2) the review of any
assignments and other instruments or documents prepared in connection with the
Recognized Mortgagee’s election, nor shall the Recognized Mortgagee have the
right to such new lease if by order of a court of competent jurisdiction the
parties are not entitled to continue this Lease and effect the assignment
thereof to the Recognized Mortgagee. To the extent not set forth in the notice
given to the Recognized Mortgagee pursuant to Section
31.6(a) hereof, Landlord agrees to notify the Recognized Mortgagee,
concurrently with the delivery of such new lease, of any unperformed
Obligations of, and/or defaults by, Tenant, which, to the best of Landlord’s
knowledge, then exist.


(iv) No Waiver of
Default. The assignment of this Lease pursuant to this Section 31.6(i) shall not constitute a
waiver of any default existing immediately before the termination of this
Lease, except for defaults under Sections
14.2(d), 14.2(e), and 14.2(f)
hereof, and the tenant under the assigned Lease shall cure all other
defaults existing under this Lease immediately before its assignment of which
the Recognized Mortgagee has been given notice of or, to the extent any such
defaults were not then known by Landlord, is thereafter given notice. Such cure
shall be accomplished within the longer of (A) the period of cure remaining to
the Recognized Mortgagee pursuant to Section
31.2 hereof or (B) the applicable periods set forth in Section 14.2 (Events of Default) of this
Lease (which applicable periods shall commence with the execution and delivery
of the assignment of this Lease (or upon the deemed assignment of this Lease,
as applicable) for each such default of which the Recognized Mortgagee received
notice prior to the delivery of the Continuation Notice or, if notice of any
such default had not then been given until after delivery of the Continuation
Notice, upon the delivery of such notice); provided, however,
with respect to any default under Sections
14.2(g), 14.2(h) and 14.2(i) hereof
existing immediately before its assignment, the period of cure shall be such
time as is necessary for the assignee to promptly commence to cure such default
following the assignment of this Lease thereto and to prosecute such cure to
completion with diligence and continuity, subject to Unavoidable Delay.
Notwithstanding anything to the contrary, if after the Recognized Mortgagee
delivers a Continuation Notice pursuant to Section
31.6(i)(ii) the Recognized Mortgagee is given notice of a default
existing before the Continuation Notice and which default was not noticed to
the Recognized Mortgagee prior to the date of such Continuation Notice, then at
any time within ten (10) days after such notice is given the assignee may
relinquish possession of the Property and cancel this Lease by notice to
Landlord. Thereupon, Landlord shall have the unrestricted right to terminate
this Lease, subject to Section 31.7 hereof,
without offering the Recognized Mortgagee a new lease pursuant to Section 31.6(a) and 31.6(b) hereof, and the Recognized
Mortgagee shall have no further rights to a new lease thereunder.


(v) Assignment of
Proceeds. Concurrently with the assignment of this Lease pursuant to the
provisions of this Section 31.6(i), Landlord shall assign to the assignee of
this Lease all of its right, title and interest in and to monies (including
insurance proceeds and



 145
 








condemnation awards), if
any, then held by, or payable to, Landlord that Tenant would have been entitled
to receive but for the occurrence of an Event of Default and the expiration of
any cure periods, other than any such amounts theretofore applied under this
Lease to the discharge of Tenant’s Obligations to Landlord hereunder, subject
to the rights, if any, of the prior Tenant therein.


(vi) No Obligation to Deliver Possession.
Nothing contained herein shall be deemed to obligate Landlord to remove any
liens, encumbrances or other defects in title to the Property or to deliver
possession of the Demised Premises to the assignee under any such assignment,
except for the delivery of possession free and clear of the claims of persons
or entities claiming through or under Landlord, other than Tenant and those
claiming by, through or under Tenant.


(vii) Assignment of
Subleases. Upon the assignment of this Lease pursuant to the provisions of
this Section 31.6(i), all Subleases shall concurrently therewith
be assigned and transferred, together with any security or other deposits held
by Tenant and not applied under such Subleases.


(viii) No Extension of
Cure Rights in Favor of Tenant. Notwithstanding anything to the contrary
contained herein and without limiting the assignee’s rights under Section 31.6(i)(iv) above, the rights granted under
this Section 31.6(i) are not
intended to, and shall not, extend any periods granted to Tenant under Section 14.2
hereof to cure any Event of Default occurring prior to the delivery of any such
Termination Notice.


(ix) Effect of Failure
to Elect to Continue Lease on Recognized Mortgagee’s Right to Request a New
Lease. Notwithstanding anything to the contrary contained in this Section 31.6, if a Recognized Mortgagee
fails to elect to continue this Lease within the 15-day period referred to in Section 31.6(i)(i), then, subject to Section 31.7 hereof, this Lease shall
terminate effective upon the expiration of such 15-day period. Notwithstanding
anything to the contrary contained in Section
31.6(b), such
Recognized Mortgagee shall have fifteen (15) days after the delivery of the
termination notice referred to in Section
31.6(b) hereof to request a new lease, and if such Recognized
Mortgagee fails to request a new lease within such fifteen (15)-day period,
then such Recognized Mortgagee’s rights to enter into a new lease shall
terminate.


Section
31.7 Recognition of Most Senior Recognized Mortgagee. If more than one Recognized
Mortgagee has exercised any of the rights afforded by this Article XXXI, then, unless otherwise
provided in the Recognized Mortgage most senior in lien (or otherwise
acknowledged in writing by the holder thereof) or consented to by the holder
thereof, only that Recognized Mortgagee, to the exclusion of all other
Recognized Mortgagees, whose Recognized Mortgage is most senior in lien shall
be recognized by Landlord as having exercised such right, for so long as such
Recognized Mortgagee shall be exercising its rights under this Lease with
respect thereto, with reasonable diligence, and thereafter, successively, the
Recognized Mortgagees whose Recognized Mortgages are next most senior in lien
shall be recognized by Landlord, in order of seniority, unless any such
Recognized Mortgagee has designated, in writing, a Recognized Mortgagee whose
Recognized Mortgage is junior in lien to exercise such right. If the parties
shall not agree on which Recognized Mortgage is prior in lien, such dispute



 146
 








shall be determined by a
then current certificate of title obtained by Landlord or Tenant, at Tenant’s
sole expense, issued by a title insurance company licensed to do business in
the State of New York and selected by Landlord, and such determination shall bind
the parties.


Section 31.8 No Rights of Other
Mortgagees. A mortgagee that is not a
Recognized Mortgagee shall have no rights hereunder, and Landlord shall have no
obligations to any mortgagee other than a Recognized Mortgagee.


Section
31.9 Miscellaneous Mortgage Provisions.


(a)       No Liability. No holder of a
Recognized Mortgage shall become liable under the provisions of this Lease
unless and until such time as it becomes, and then only for so long as it
remains, the owner of a leasehold estate created hereby or pursuant to Section 31.6(d) hereof; provided, however,
that no Recognized Mortgagee shall be responsible for any amounts due under Section 14.1(b) hereof that accrue from and
after the date that Landlord receives notice that such Recognized Mortgagee has
initiated foreclosure proceedings with respect to its Recognized Mortgage.


(b)       Nominee. A Recognized Mortgagee
shall have the right to assign any Recognized Mortgage held by it to a nominee
controlled by, or under common control with, it, prior to and in anticipation
of the foreclosure of such Recognized Mortgage, and shall not thereby lose its
status as a Recognized Mortgagee unless and until such time as such nominee
becomes the owner of the leasehold estate created hereby.


(c)       Foreclosure. Nothing contained
herein shall be deemed to require the holder of a Recognized Mortgage to
continue with any foreclosure or other proceedings, or in the event it shall
otherwise acquire possession of the Demised Premises, to continue such
possession.


(d)       Lease Amendments. No amendment or
modification of this Lease shall be effective as against a particular
Recognized Mortgagee unless a copy of the proposed amendment or modification
shall have been delivered to such Recognized Mortgagee, such notice to include
the statement “THIS NOTICE IS THE NOTICE OF
THE RECOGNIZED MORTGAGEE’S RIGHT TO APPROVE AN AMENDMENT OF THE LEASE PURSUANT
TO SECTION 31.9(d) OF THE LEASE, WHICH APPROVAL SHALL BE DEEMED GIVEN
TWENTY-THREE BUSINESS DAYS AFTER RECOGNIZED MORTGAGEE’S RECEIPT OF THIS NOTICE,”
and such Recognized Mortgagee shall have either: (i) approved the
amendment or modification in writing or (ii) failed to disapprove the amendment
or modification in writing within twenty-three (23) Business Days after receipt
of a copy thereof.


Section
31.10 Delegation by Tenant. Tenant may delegate irrevocably to a Recognized Mortgagee the
authority to exercise any or all of Tenant’s rights hereunder, but no such
delegation shall be binding upon Landlord unless and until either Tenant or such
Recognized Mortgagee shall give to Landlord an executed counterpart of the
written instrument effecting such delegation. Such delegation of authority may
be effected by the terms of the Recognized Mortgage itself, in which case, the
service upon Landlord of an executed counterpart



 147
 








or certified copy of such
Recognized Mortgage in accordance with this Article
XXXI, together with a
written notice specifying the provisions thereof which delegate such authority
to such Recognized Mortgagee, shall be sufficient to give Landlord notice of
such delegation. In such event, Landlord shall be entitled to rely upon such
delegation of authority until Landlord shall have received written notice from
Tenant and such Recognized Mortgagee indicating that such delegation of
authority shall have been revoked or terminated. Any provisions of this Lease
which give to a Recognized Mortgagee the privilege of exercising a particular
right of Tenant hereunder on condition that Tenant shall have failed to
exercise such right shall not be deemed to diminish any privilege which such
Recognized Mortgagee may have, by virtue of a delegation of authority from
Tenant, to exercise such right without regard as to whether or not Tenant shall
have failed to exercise such right.


Section 31.11 Survival. The provisions of Sections 31.6 and 31.7 hereof shall survive the termination
of this Lease.



 148














 


ARTICLE
XXXII 

CONDOMINIUM DOCUMENTS


Section 32.1 Condominium Conversion. [INTENTIONALLY OMITTED]


Section 32.2 Condominium Documents. (a) If Tenant shall desire to amend,
modify or supplement any Condominium Document, such Person shall submit same to
Landlord and, so long as such proposed amendment, modification or supplement
would not, in Landlord’s reasonable opinion, affect a substantive right of any
Public Party or of any party thereto to an extent that is greater than de
minimis and the form of such amendment, modification or supplement is otherwise
reasonably acceptable to Landlord, Landlord shall so amend, modify or
supplement such Condominium Document.


(b)       It shall be Tenant’s responsibility to
assure that the Condominium Documents comply with all Legal Requirements,
including, without limitation, the rules and regulations of the New York State
Department of Law. Landlord’s determination that the Condominium Documents
conform to the provisions of this Lease shall not be, nor shall it be construed
to be or relied upon by Tenant or any other Person as, a determination that the
Condominium Documents comply with all Legal Requirements, including, without
limitation, the rules and regulations of the New York State Department of Law.


(c)       The parties hereto acknowledge that
despite Tenant covenanting hereunder to undertake specific actions and
responsibilities in respect of the Common Elements, the Condominium Association
(and not Tenant) controls the Common Elements. Notwithstanding Tenant’s lack of
control of the Common Elements, Tenant shall perform (or cause, pursuant to the
Condominium Declaration or otherwise, the Condominium Association to perform)
every Tenant Obligation in respect of any portion of the Common Elements. It is
expressly agreed that Tenant’s lack of control of the Common Elements shall not
be deemed or construed to be evidence of a Tenant Obligation being “beyond the
control” of Tenant for any purposes of this Lease and that Tenant’s failure to
comply with any Tenant Obligation set forth herein shall be a default of Tenant
hereunder.



 149
 






 



ARTICLE
XXXIII 

MISCELLANEOUS


Section 33.1 Recording and Transfer Tax. Landlord and Tenant, each upon the written
request of the other or of any Recognized Mortgagee, shall execute, acknowledge
and deliver a memorandum of this Lease in the form set forth on Exhibit R attached hereto, and of each
modification of this Lease, each in proper form for recordation. Tenant shall
not record this Lease without the prior written consent of Landlord. Tenant
shall be solely responsible for the timely payment of any transfer or similar
taxes that may be payable as a result of this Lease, and Tenant shall indemnify
the Public Parties from and against any and all Claims related thereto.


Section 33.2 Brokers.


(a)       Landlord’s and Tenant’s
Representations. Each of Landlord and Tenant represents and warrants to the
other that it has not dealt with any broker, finder or other party entitled to
a broker’s or finder’s fee, or other commissions or compensation arising out of
or in connection with the execution of this Lease, the Project Documents or any
transactions relating thereto, other than Insignia/ESG, Inc. and Ascot
Brokerage Ltd. (collectively, the “Brokers”)
and Argent Advisors LLC (“Argent”).


(b)       Tenant’s Obligations. Tenant shall
be liable for, and shall indemnify each of the Public Parties against all
brokerage commissions or other compensation due to the Brokers (which
compensation shall be paid pursuant to separate agreements between Tenant and
such Brokers) or to any other broker, finder or other party if such broker,
finder or other party alleges that it (i) has acted for, or at the direction
of, Tenant, whether or not such broker, finder or other party also alleges that
it has dealt with the Public Parties, or (ii) has dealt exclusively with
Tenant, arising out of the execution of this Lease, the Project Documents or
any transactions relating thereto.


(c)       Landlord’s Obligations. Landlord
shall be liable for, and shall indemnify Tenant against all brokerage
commissions or other compensation due to Argent (which compensation shall be
paid pursuant to a separate agreement between Landlord and Argent).


(d)       General. Notwithstanding anything
to the contrary contained in Article XVIII hereof,
any party seeking indemnification under this Section
33.2 shall provide the indemnifying party with prompt service of
such claim within a reasonable time after the party seeking indemnification
first becomes aware of the existence thereof. If (i) the indemnifying party is
Tenant, any such claim may be defended by counsel reasonably acceptable to the
Public Parties (or, if insured, by counsel designated by Tenant’s insurer, as
applicable), or (i) the indemnifying parties are the Public Parties, by counsel
to the Public Parties. No settlement of any such claim shall be entered into
unless (A) the indemnified party would have no liability as a consequence of
such settlement or (B) the indemnifying party consents to such settlement.


(e)       Survival. This Section 33.2 shall survive the expiration
or earlier termination of this Lease.


Section 33.3 Media Announcements. [INTENTIONALLY OMITTED]



 150
 






 



Section
33.4 Relationship of Landlord and Tenant. No provision
of this Lease is not to be construed to create a partnership or joint venture
between the parties, it being the intention of the parties hereto only to
create a landlord and tenant relationship.


Section 33.5 Person Acting on Behalf of a Party Hereunder.
Either party hereunder may require the other party hereunder to provide
evidence reasonably satisfactory to such party of the authority of any Person
acting on behalf of the other party.


Section 33.6 Third Party Beneficiary.
Nothing contained herein is intended to be for, or to inure to, the benefit of
any Person other than Landlord, Tenant and Recognized Mortgagees and their
respective successors and assigns, except as otherwise expressly provided in
this Lease. No Person other than Landlord or the City is entitled, as a
consequence of any term, condition, covenant or agreement contained in this
Lease or of Tenant’s failure to observe or perform the same, to seek, claim or
recover damages or any other legal or equitable remedy against Tenant.


Section 33.7 Proprietary Capacity Only.
Landlord (including any successor Landlord), if a governmental entity or instrumentality,
enters into this Lease in Landlord’s “proprietary” capacity only. Nothing in
this Lease shall be deemed in any way to expand, restrict, burden, or waive any
right, privilege, obligation, claim or immunity that any Governmental Authority
would possess, be subject to, or be entitled to exercise if the lessor under
this Lease were a private party. Without limiting the effect of the immediately
preceding sentence, nothing in this Lease is intended to burden or restrict the
exercise by any Governmental Authority of its “police power” or impose any
liability upon any Governmental Authority for (or entitle Tenant to any credit,
offset, defense, claim or counterclaim on account of) the exercise of such “police
power.” In keeping therewith, Tenant’s relations with all Governmental
Authorities, when acting in their capacity as Governmental Authorities, shall
be governed by otherwise applicable law.



 151
 






 



ARTICLE
XXXIV

COMMON ELEMENTS LEASEABLE SPACE


Section 34.1 Generally.


(a)       Tenant may, subject to Section 13.2 hereof and this Article XXXIV, permit the Condominium
Association, on behalf of all of the tenants under the Severance Subleases, to
sublease portions of the Improvements specified in this Article XXXIV.


(b)       Tenant may permit the Condominium
Association, on behalf of all of the tenants under the Severance Subleases, to
enter into a sublease of up to 10,000 Square Feet of space on the floor
designated as the 53rd floor of the New Building, as shown on, and in
conformity with, the schematic design plan drawing listed on Exhibit I-1
attached to the Initial Ground Lease as numbered A1053 (the “Roof Top Garden Space”). Except as
expressly set forth in this Article XXXIV,
the provisions of this Article XXXIV
shall not affect Tenant’s obligation to treat the Roof Top Garden Space as a
Common Element under this Lease.


(c)       Tenant may permit the Condominium
Association, on behalf of all of the tenants under the Severance Subleases, to
enter into up to three (3) subleases of up to an aggregate of 600 Square Feet
of space located in or adjacent to the lobby of the Improvements, such location
to be specified by the Design Architect and reasonably approved by Landlord
(collectively, the “Lobby Sublease Space”;
and together with the Roof Top Garden Space, the “Common Elements Leaseable Space”). All Lobby Sublease Space
shall be designed in accordance with the DUO. Upon finalization of plans and
specifications for any portion of the Lobby Sublease Space, Tenant shall
provide to Landlord (for Landlord’s approval prior to the construction of same)
a statement of the Production Architect (i) certifying that such final plans
and specifications conform to the Lobby Sublease Space design guidelines
prepared in accordance with the DUO and (ii) attaching a complete copy of the
final plans and specifications. Landlord shall notify Tenant of its approval or
disapproval of such certification within fifteen (15) Business Days of its
receipt thereof. Upon Landlord’s acceptance of such certification, all Lobby
Sublease Space shall be constructed in conformity with the final plans and
specifications certified to by the Production Architect and approved by
Landlord in accordance with the immediately preceding sentence. Except as
expressly set forth in this Article XXXIV,
the provisions of this Article XXXIV
shall not affect Tenant’s obligation to treat the Lobby Sublease Space as a
Common Element under this Lease.


Section 34.2 Defined Terms.


(a)       “Budgeted
Lobby Sublease Space Construction Costs” means the total, actual
cost to construct the Lobby Sublease Space as reasonably approved by Tenant’s
construction lender (so long as such construction lender is a Lending
Institution) or as reasonably by Landlord (if, in respect of the Lobby Sublease
Space, Tenant has no construction lender which is a Lending Institution), as
indicated on a final construction budget approved, as the case may be, by such
construction lender or by Landlord (the construction budget for the Lobby
Sublease Space having been prepared separately from the overall construction budget
for the Improvements, and having been provided to Landlord as a Verified
Statement), including the Transaction Price and all other hard and soft costs
(other than land acquisition costs above the



 152
 






 



Transaction
Price), in each case, reasonably allocable, on a square foot basis, to the
Lobby Sublease Space.


(b)       “Budgeted
Roof Top Garden Construction Costs” means the total, actual cost to
construct the Roof Top Garden Space as reasonably approved by Tenant’s
construction lender (so long as such construction lender is a Lending
Institution) or as reasonably by Landlord (if, in respect of the Roof Top
Garden Space, Tenant has no construction lender which is a Lending
Institution), as indicated on a final construction budget approved, as the case
may be, by such construction lender or by Landlord (the construction budget for
the Roof Top Garden Space having been prepared separately from the overall
construction budget for the Improvements, and having been provided to Landlord
as a Verified Statement), including the Transaction Price and all other hard
and soft costs (other than land acquisition costs above the Transaction Price),
in each case, reasonably allocable, on a square foot basis, to the Roof Top
Garden Space.


(c)       “Lobby
Sublease Space Adjusted Gross Revenue” means all (A) revenues,
receipts and income of whatever kind and nature of Tenant or any Related
Entity, as determined in accordance with Accounting Principles, in any Lease
Year, generated from the ownership, operation, leasing, use or occupancy of any
Lobby Sublease Space including (1) license fees or other amounts received from
any subtenant of such Lobby Sublease Space or its affiliate for the right to
maintain signage on the facade of the New Building (but not from the granting
of such signage rights to any third party), (2) rentals, fees or other payments
from Subtenants (subject to clause (9) below), including any common area
maintenance and operating expense, but specifically excluding payments received
in reimbursement of utility, PILOT, Theater Surcharge or BID payments made by
Tenant, or any Related Entity, (3) the proceeds of insurance received by Tenant
with respect to business interruption or rent insurance (but not liability or
casualty insurance received by Tenant), (4) security and other deposits which
secure other revenues, receipts or income qualifying as Lobby Sublease Space
Adjusted Gross Revenues when and to the extent Tenant, after the final
resolution of any Subtenant dispute over whether Tenant has the right to retain
such security and other deposits, either has the right to retain the same or
Tenant has no obligation to refund the same (and excluding security and other
deposits to the extent applied by Tenant to reimburse Tenant for reasonable
costs incurred in remedying a non-monetary default by the provider of such
security or deposit), (5) interest or other investment income earned from time
to time by Tenant on deposits or other revenues, receipts or income qualifying
as Lobby Sublease Space Adjusted Gross Revenues, (6) amounts recovered in any
legal action or proceeding or settlement thereof which reimburses Tenant for a
loss of revenues, receipts or income qualifying as Lobby Sublease Space
Adjusted Gross Revenues (and excluding any such amounts to the extent
reimbursing Tenant for reasonable costs incurred in remedying a non-monetary
default by the defendant in such action), (7) construction fees from the
performance by Tenant or any Related Entity of construction or construction
management services for Subtenants, but only to the extent such fees exceed
customary amounts (and excluding such fees to the extent they do not exceed
such customary amounts), (8) leasing or brokerage commissions paid to Tenant or
any Related Entity in connection with the entering into of a Sublease or the
renewal thereof or the expansion of the Demised Space thereunder, but only to
the extent Tenant or such Related Entity is not the procuring broker, or if
Tenant or such Related Entity is the procuring broker, only to the extent such
commissions exceed customary amounts (and excluding such commissions to the
extent



 153
 






 



they do not exceed
such customary amounts), and (9) with respect to any Related Entity that is a
Subtenant in possession and actual use of its Demised Space, the greater of [a]
the rentals, fees or other payments made to Tenant by such Subtenant, including
any common area maintenance and operating expense, but specifically excluding
payments received in reimbursement of utility, PILOT, Theater Surcharge or BID
payments made by Tenant and [b] the fair market rental value of such Demised
Space (and with respect to a Related Entity that is a Subtenant not in
possession and actual use of its Demised Space, all revenues, receipts and
income of whatever kind and nature of such Related Entity generated from the
Project, as provided above, shall be included in Lobby Sublease Space Adjusted
Gross Revenues) less (B) refunds made upon transactions included within the
revenues described in clause (A) above. “Lobby Sublease Space Adjusted Gross
Revenues” shall not include any management fee in a customary amount paid by
Tenant to any Related Entity to manage the Property.


(d)       “Roof
Top Garden Adjusted Gross Revenues” means all (A) revenues, receipts
and income of whatever kind and nature of Tenant or any Related Entity, as
determined in accordance with Accounting Principles, in any Lease Year,
generated from the ownership, operation, leasing, use or occupancy of any Roof
Top Garden Space including (1) license fees or other amounts received from any
subtenant of such Roof Top Garden Space or its affiliate for the right to
maintain signage on the facade of the New Building (but not from the granting
of such signage rights to any third party), (2) rentals, fees or other payments
from Subtenants (subject to clause (9) below), including any common area
maintenance and operating expense, but specifically excluding payments received
in reimbursement of utility, PILOT, Theater Surcharge or BID payments made by
Tenant, or any Related Entity, (3) the proceeds of insurance received by Tenant
with respect to business interruption or rent insurance (but not liability or
casualty insurance received by Tenant), (4) security and other deposits which
secure other revenues, receipts or income qualifying as Roof Top Garden Adjusted
Gross Revenues when and to the extent Tenant, after the final resolution of any
Subtenant dispute over whether Tenant has the right to retain such security and
other deposits, either has the right to retain the same or Tenant has no
obligation to refund the same (and excluding security and other deposits to the
extent applied by Tenant to reimburse Tenant for reasonable costs incurred in
remedying a non-monetary default by the provider of such security or deposit),
(5) interest or other investment income earned from time to time by Tenant on
deposits or other revenues, receipts or income qualifying as Roof Top Garden
Adjusted Gross Revenues, (6) amounts recovered in any legal action or
proceeding or settlement thereof which reimburses Tenant for a loss of revenues,
receipts or income qualifying as Roof Top Garden Adjusted Gross Revenues (and
excluding any such amounts to the extent reimbursing Tenant for reasonable
costs incurred in remedying a non-monetary default by the defendant in such
action), (7) construction fees from the performance by Tenant or any Related
Entity of construction or construction management services for Subtenants, but
only to the extent such fees exceed customary amounts (and excluding such fees
to the extent they do not exceed such customary amounts), (8) leasing or
brokerage commissions paid to Tenant or any Related Entity in connection with
the entering into of a Sublease or the renewal thereof or the expansion of the
Demised Space thereunder, but only to the extent Tenant or such Related Entity
is not the procuring broker, or if Tenant or such Related Entity is the
procuring broker, only to the extent such commissions exceed customary amounts
(and excluding such commissions to the extent they do not exceed such customary
amounts), and (9) with respect to any Related Entity that is a Subtenant in
possession and actual use of its Demised Space, the greater of [a] the rentals,
fees or other payments made to Tenant by such Subtenant,



 154
 






 



including any
common area maintenance and operating expense, but specifically excluding
payments received in reimbursement of utility, PILOT, Theater Surcharge or BID
payments made by Tenant and [b] the fair market rental value of such Demised
Space (and with respect to a Related Entity that is a Subtenant not in
possession and actual use of its Demised Space, all revenues, receipts and
income of whatever kind and nature of such Related Entity generated from the
Project, as provided above, shall be included in Roof Top Garden Adjusted Gross
Revenues) less (B) refunds made upon transactions included within the revenues
described in clause (A) above. “Roof Top Garden Adjusted Gross Revenues” shall
not include any management fee in a customary amount paid by Tenant to any
Related Entity to manage the Property.



 155














 


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


	
  

  	
   

  	
  Landlord:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE NEW YORK
  TIMES BUILDING

  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  NYT Real Estate
  Company LLC,

  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David A.
  Thurm

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  David A. Thurm

  
	
   

  	
   

  	
   

  	
   

  	
  Title:    Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: FC Lion LLC,
  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  FC 41st Street Associates,

  LLC, its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  RRG 8 South,
  Inc., its

  managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David L. Berliner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  David L. Berliner

  
	
   

  	
   

  	
   

  	
   

  	
  Title:    Sr. Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tenant:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NYT REAL ESTATE
  COMPANY LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David A.
  Thurm

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  David A. Thurm

  
	
   

  	
   

  	
   

  	
  Title:    Manager

  
												



 

















 


SCHEDULE 1


PILOT SCHEDULE


	
  PILOT Year

  	
   

  	
  Office PILOT

  	
   

  	
  Retail PILOT

  	
   

  
	
   

  	
   

  	
  (per Taxable Square Foot)

  	
   

  	
  (per Taxable Square Foot)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  $

  	
  1.00

  	
   

  	
  $

  	
  1.00

  	
   

  
	
  2

  	
   

  	
  3.00

  	
   

  	
  3.00

  	
   

  
	
  3

  	
   

  	
  5.00

  	
   

  	
  5.00

  	
   

  
	
  4

  	
   

  	
  7.00

  	
   

  	
  7.00

  	
   

  
	
  5

  	
   

  	
  10.00

  	
   

  	
  12.00

  	
   

  
	
  6

  	
   

  	
  10.05

  	
   

  	
  12.06

  	
   

  
	
  7

  	
   

  	
  10.15

  	
   

  	
  12.18

  	
   

  
	
  8

  	
   

  	
  10.31

  	
   

  	
  12.37

  	
   

  
	
  9

  	
   

  	
  10.51

  	
   

  	
  12.62

  	
   

  
	
  10

  	
   

  	
  10.78

  	
   

  	
  12.93

  	
   

  
	
  11

  	
   

  	
  11.04

  	
   

  	
  13.25

  	
   

  
	
  12

  	
   

  	
  11.32

  	
   

  	
  13.59

  	
   

  
	
  13

  	
   

  	
  11.60

  	
   

  	
  13.92

  	
   

  
	
  14

  	
   

  	
  11.89

  	
   

  	
  14.27

  	
   

  
	
  15

  	
   

  	
  12.19

  	
   

  	
  14.63

  	
   

  
	
  16

  	
   

  	
  12.50

  	
   

  	
  15.00

  	
   

  
	
  17

  	
   

  	
  12.81

  	
   

  	
  15.37

  	
   

  
	
  18

  	
   

  	
  13.13

  	
   

  	
  15.75

  	
   

  
	
  19

  	
   

  	
  13.46

  	
   

  	
  16.15

  	
   

  
	
  20

  	
   

  	
  13.79

  	
   

  	
  16.55

  	
   

  
	
  21

  	
   

  	
  14.14

  	
   

  	
  16.97

  	
   

  
	
  22

  	
   

  	
  14.49

  	
   

  	
  17.39

  	
   

  
	
  23

  	
   

  	
  14.85

  	
   

  	
  17.82

  	
   

  
	
  24

  	
   

  	
  15.23

  	
   

  	
  18.27

  	
   

  
	
  25

  	
   

  	
  15.61

  	
   

  	
  18.73

  	
   

  
	
  26

  	
   

  	
  16.00

  	
   

  	
  19.20

  	
   

  
	
  27

  	
   

  	
  16.40

  	
   

  	
  19.68

  	
   

  
	
  28

  	
   

  	
  16.81

  	
   

  	
  20.17

  	
   

  
	
  29

  	
   

  	
  17.83

  	
   

  	
  20.67

  	
   

  
								


















 


 


EXHIBIT A


THE PROJECT
DOCUMENTS (Recitals)


(1)          Agreement
of Lease, dated as of the date hereof, by and between 42nd St. Development Project, Inc. (“42DP”) and The
New York Times Building LLC (“Developer”).


(2)          Site
8 South Land Acquisition and Development Agreement, dated as of the date
hereof, by and among New York State Urban Development Corporation d/b/a Empire
State Development Corporation (“ESDC”), 42DP and Developer.


(3)          Site
8 South LADA Guaranty, dated as of the date hereof, by The New York Times
Company (“NYTC”), in favor of ESDC and 42DP.


(4)          Site
8 South Declaration of Design, Use and Operation, dated as of the date hereof,
by and among ESDC, 42DP and Developer.


(5)          Construction
Guaranty, dated as of the date hereof, by NYTC, in favor of 42DP.


(6)          Insurance
Guaranty, dated as of the date hereof, by NYTC, in favor of 42DP.


(7)          Site
8 South Project Agreement, dated as of the date hereof, by and among ESDC,
42DP, The City of New York, Developer, NYT Real Estate Company LLC and FC Lion
LLC.


(8)          Agreement
of Sublease (NYT), dated as of the date hereof, by and among Developer and NYT
Real Estate Company LLC.


(9)          Agreement,
dated as of the date hereof, by and among the Metropolitan Transit Authority
and Developer.


(10)        Vault
Sublicense, dated as of the date hereof, by and among the 42DP and Developer.


(11)        Assumption
Agreement, dated as of the Lease Assignment Date, by and among 42DP, The New
York Times Building Condominium, Developer, NYT Real Estate Company LLC, FC
Lion LLC, and FC Lion LLC (to become a Project Document upon its execution and
delivery).



 A-1














 


 


EXHIBIT B


APPROVED CERTIFIED PUBLIC
ACCOUNTING FIRMS (§ 1.1(a)(xxxi))


1.                  Arthur
Anderson


2.                  Ernst
& Young


3.                  Pricewaterhouse
Coopers



 B-1














 


 


EXHIBIT C


FORM OF COLLATERAL
ASSIGNMENT (§ 1.1(a)(xxxv))


THIS AGREEMENT, made this                     day
of              ,
                      ,
by and among                                                            (“Third
Party”), a [insert State] [insert type of entity] having an office at                                            ,
[Tenant] (“Assignor”), a                                     having
an office at [                                     ],
and 42ND ST. DEVELOPMENT PROJECT, INC. (“Assignee”), a subsidiary of New
York State Urban Development Corporation (“UDC”) d/b/a Empire State
Development Corporation, a corporate governmental agency of the State of New York
constituting a political subdivision and public benefit corporation having an
office at 633 Third Avenue, 33rd floor, New York, New York 10017.


W I  T  N  E  S
S  E  T  H


WHEREAS, UDC and The City of New York (the “City”)
have developed, and are in the process of implementing, a rehabilitation and
renewal plan for an area of midtown Manhattan surrounding West 42nd Street
between Broadway and Eighth Avenue, commonly known as the 42nd Street
Development Project; and


WHEREAS, pursuant to an Agreement of Lease (the “Lease”)
(the terms defined therein and not otherwise defined herein being used herein
as therein defined), dated as of                                          ,
2001, between Assignee, as landlord, and Assignor, as tenant, Assignee leased
and demised to Assignor certain land more particularly described in Exhibit F-2
annexed to the Lease (the “Property”) and all right, title and interest
of Assignee in and to all improvements thereon, for the development and
operation of the Property in accordance with the terms of the Lease; and


WHEREAS, pursuant to the [construction agreement to be
assigned] (the “Agreement”), dated as of                              ,
between Assignor and Third Party, Third Party has agreed to provide
[construction management] services in connection with the Property; and


WHEREAS, as collateral security for payment and
performance of Assignor’s obligations under the Lease (the “Obligations”),
Assignor desires to collaterally assign to Assignee all right, title and
interest of Assignor in and to the Agreement.


NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto hereby agree as follows:


1.         Assignor
and Third Party hereby consent to the collateral assignment of the Agreement to
Assignee pursuant to and on the terms and conditions of this Agreement.


2.         Third
Party hereby agrees and confirms that the Agreement and all of its rights and
interests thereunder, including, but not limited to, rights to payment or fees,
are and, at all times shall be, subject and subordinate to the Lease.



 C-1
 






 



 


3.         Subject
to the provisions of Paragraph 4
hereof, Assignor hereby grants, transfers and assigns to Assignee all of
Assignor’s right, title and interest in and to, and the right to have
uninterrupted use and enjoyment of the benefits under, the Agreement and all
present and future amendments thereto. The foregoing assignment is subject to
any assignment by Assignor of the Agreement to any Recognized Mortgagee and the
rights of any Recognized Mortgagee thereunder. Assignor and Third Party
covenant and agree to execute such further and additional instruments and
assignments as may be requested by Assignee to vest in Assignee all rights and
interest of Assignor under the Agreement. The Agreement is assigned hereunder
for the purpose of securing the payment and performance by Assignor of its
Obligations.


4.         This
Assignment is made upon the condition that for so long as there shall be no
Event of Default on the part of Assignor or reentry upon the Property by
Assignee pursuant to the terms of the Lease, Assignor shall have the right to
exercise all rights, options and privileges extended to Assignor under the
terms of the Agreement. Such right of Assignor shall be automatically revoked
upon the occurrence of an Event of Default and thereafter, subject to the
rights of any Recognized Mortgagee to which the Agreement has been assigned,
the right is hereby expressly given to Assignee to enforce the terms of the
Agreement in the same manner and with the same force and effect as if Assignee
had originally executed the Agreement as the owner of the Property. After the
occurrence of an Event of Default and the failure of the Recognized
Mortgagee(s) to cure such Event of Default, Assignee may elect by written
notice to Third Party given within sixty (60) days after such failure by the
Recognized Mortgagee(s) (i) to terminate the Agreement effective upon such notice
or (ii) to assume all of the rights and obligations of Assignor under the
Agreement. If Assignee shall assume such rights and obligations, the Agreement
shall thereby be deemed amended to reflect the following:


(a)       All
rights, interests, benefits and other privileges of Assignor under the
Agreement shall terminate and Assignee shall succeed to and shall have all the
rights, interests, benefits and other privileges of Assignor under the
Agreement and Third Party shall perform all of its obligations and agreements
under the Agreement for the benefit of Assignee. All references in the
Agreement to Assignor shall be read to apply to Assignee.


(b)       Other
than a monetary default by Assignor under the Agreement, Assignee shall not be
responsible or liable for any representation or warranty made by Assignor or
any act, omission or default by Assignor which occurred prior to the assumption
by Assignee of the Agreement, and each such act, omission or default shall be
deemed to have been waived by Third Party and shall not constitute grounds for
the termination of the Agreement by Third Party or for any other claim or
liability against Assignee.


(c)       The
obligations, responsibilities and liabilities of Assignee under the Agreement
shall be limited to and enforceable only against Assignee’s interest in the
Property and not out of or against any other assets or properties of Assignee.


5.         Assignor
and Third Party, jointly and separately, hereby warrant and represent to
Assignee as follows:



 C-2
 






 



 


(a)       Each of
them has the full and complete right, power and authority to execute, deliver
and perform this Assignment and has taken all necessary corporate and
partnership action, to authorize the execution, delivery and performance of
this Agreement;


(b)       Neither
of them has made a prior assignment, pledge or hypothecation of any of the
rights under the Agreement except to a Recognized Mortgagee;


(c)       The
Agreement is in full force and effect on the date hereof, has not been amended
or modified in any way and the performance of the other party thereto is
subject to no defenses, set-offs or counterclaims whatsoever and this
Assignment and the Agreement constitute the valid, binding and enforceable
obligations of the parties thereto;


(d)       There
exists no event, condition or occurrence which constitutes, or which with
notice and/or the passage of time would constitute, a material breach of or
default under any term or condition of the Agreement; and


(e)       Neither
of them has done, nor shall either of them perform any acts or omissions which
might prevent Assignee from exercising its rights under this Agreement, or
which might limit Assignee in such exercise.


6.         Assignor
and Third Party agree faithfully to observe and perform each and every one of
the obligations and agreements imposed upon them under the Agreement. From and
after the date hereof and without the prior written consent of Assignee, not to
be unreasonably withheld or delayed, (a) no term or provision of the Agreement
(including any exhibit thereto) may be altered, modified or amended in any
material respect, (b) Assignor may not waive any material right under the
Agreement, (c) neither Assignor nor Third Party may terminate or cancel the
Agreement, and (d) neither Assignor nor Third Party may assign any interest,
right or obligation under the Agreement or consent to any assignment by the
other party of any such interest, right or obligation (other than an assignment
to a Recognized Mortgagee or to or by Assignee ), and any of the foregoing
acts, if done without such consent of Assignee, shall be null and void ab
initio.


7.         Assignee
shall not be obligated to perform or discharge, nor shall it by acceptance of
this Assignment be deemed in any manner to have assumed any of the duties or
obligations under, the Agreement or be under any obligation to perform or
discharge any of the obligations thereunder, unless and until Assignee elects
to assume, subject to Paragraph 4(b)
hereof, all of the rights and obligations of Assignor under the Agreement, nor
shall Assignee be liable to any person by reason of any default by any party
under the Agreement, including any default by Assignor or any other person
arising prior to such assumption by Assignee. Assignor shall perform and
discharge all such duties, obligations, and liabilities and hereby agrees to
indemnify and hold Assignee harmless from and against any and all liability,
loss, cost, damage or expense (including, without limitation, reasonable
attorneys’ fees and expenses) which Assignee may incur under or by reason of
this Assignment, or for any action taken by Assignee hereunder, or by reason of
or in defense of any and all claims and demands whatsoever which may be
asserted against Assignee arising out of the Agreement. In the event Assignee
incurs any such liability, loss, cost, damage or expense, the amount thereof
together with all reasonable



 C-3
 






 



 


attorneys’ fees and disbursements shall be payable by Assignor to
Assignee immediately, without demand.


8.         All
notices and other communications required or permitted to be given to, or
served pursuant to, this Agreement, or otherwise, shall be in writing and shall
be deemed to have been duly given and delivered for all purposes (a) when
personally delivered to a party or authorized representative of a party, (b)
when received, if delivered by a nationally recognized overnight courier
service, delivery prepaid, (c) three (3) days after deposited in the United
States mail, if delivered by registered or certified United States mail,
postage prepaid, return receipt requested, or (d) when received, by telecopy
(and confirmed by mail in the manner described above) addressed to the party to
be notified at such party’s address set forth herein. All notices and other
communications under this Agreement shall be given to the parties hereto at the
address set forth below, or such other address as may be specified in a notice
designated as a notice of change of address.


	
  

  	
  if to Third Party:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  if to Assignor:

  	
   

  	
  The New York Times Company

  229 West 43rd Street

  New York, New York 10036

  Attention: General Counsel

  Fax No. (     )                     

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  c/o Forest City Ratner

  One Metro Tech Center, North

  Brooklyn, New York 11201

  Attention: General Counsel

  Fax No. (     )                      

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  INGREDUS Site 8 South LLC

  c/o Clarion Partners

  335 Madison Avenue

  New York, New York 10017

  Attn: Mr. Charles Grossman

  Fax No. (      )

  



 



 C-4
 






 



 


	
  

  	
  with copies to:

  	
   

  	
  The New York Times Company

  229 West 43rd Street

  New York, New York 10036

  Attention: Director of Real Estate

  Fax No. (     ) 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Swidler Berlin
  Shereff Friedman LLP

  Chrysler Building

  405 Lexington Avenue

  New York, New York 10174

  Attention: Martin D. Polevoy, Esq.

  Fax No. (     )

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Kelley Drye
  Warren LLP

  101 Park Avenue

  New York, New York 10178

  Attention: James J. Kirk, Esq.

  Fax No. (     )

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  INGREDUS Site 8
  South LLC

  c/o Clarion Partners

  601 13th Street, N.W.

  Suite 450 North

  Washington, DC 20005

  Attn: Mr. Martin Standiford

  Fax No. (     )

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Skadden Arps
  Slate Meagher & Flom LLP

  Four Times Square

  New York, New York 10036

  Attn: Benjamin F. Needell, Esq.

  Fax No. (     )

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  if to Assignee:

  	
   

  	
  42nd St.
  Development Project, Inc. 

  633 Third Avenue, 33rd floor 

  New York, New York 10017 

  Attn: President

  Fax No. (212) 803-3838

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with copies to:

  	
   

  	
  New York City
  Economic Development Corporation 

  110 William Street 

  New York, New York 10038 

  Attention: President 

  Fax No. (212) 312-3913

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  New York City Law Department

  



 



 C-5
 






 



 


	
  

  	
   

  	
   

  	
  100 Church Street

  New York, New York 10007

  Attention: Chief, Economic Development Division

  Fax No. (212) 227-5648

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Shearman & Sterling

  599 Lexington Avenue

  New York, New York 10022-6069

  Attention: Chris M. Smith, Esq. (3578/13)

  Fax No. (212) 848-7300

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Pillsbury Winthrop LLP

  One Battery Park Plaza

  New York, New York 10004-1490

  Attention: Max Friedman, Esq.

  Fax No. (212) 858-1500

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  New York State Urban
  Development Corporation

  d/b/a Empire State Development Corporation

  633 Third Avenue

  New York, New York 10017

  Attention: 42nd St. Development Project, Inc.

  Fax No. (     )

  



 


9.         The
acceptance of this Assignment shall not constitute a waiver of any of the
rights and remedies of Assignee under the Lease. Further, nothing contained in
this Assignment and no act or action taken or done, or omitted to be taken or
done, by Assignee pursuant to the powers and rights granted it hereunder shall
be deemed to be a waiver by Assignee of any of its rights and remedies against
Assignor in connection with, or in respect of, any of the Obligations. The
right of Assignee to collect and enforce collection and performance of the
Obligations and to enforce any other security and collateral therefor held by
it may, to the extent permitted by law, be exercised by Assignee either prior
to, simultaneously with, or subsequent to any action taken by Assignee
hereunder.


10.       Assignor
shall execute and deliver, or cause to be executed and delivered, to Assignee
all other instruments, certificates and agreements as Assignee may reasonably
require, including, but not limited to, estoppel certificates stating that this
Assignment or the Agreement is in full force and effect and that there are no
defenses or offsets thereto (or if this Assignment or the Agreement is not in
full force and effect or there are any defenses or offsets thereto, specifying
in reasonable detail such matters), to effect, confirm or assure the rights and
remedies intended to be granted to Assignee under this Assignment.


11.       If all
or any portion of any provision of this Assignment shall be held to be invalid,
illegal or unenforceable in any respect or in any jurisdiction, then such
invalidity, illegality or unenforceability shall not affect any other provision
hereof and such provision shall



 C-6
 






 



 


be limited and construed in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion thereof were not contained
herein.


12.       This
Assignment may not be changed or terminated except by an agreement in writing,
signed by the party against whom enforcement of the change is sought. This
Assignment shall be governed by and construed in accordance with the law of the
State of New York. All terms and words used in this Assignment, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.


13.       This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns and to the City of New
York as holder of a reversionary estate in the Property.


14.       No
director, member, officer, employee, agent or other person authorized to act on
behalf of any of the parties to this Agreement shall have any personal liability
in connection with this Assignment or any failure of any of the parties hereto
to perform its respective obligations under this Assignment. The liability of
Assignor, EDC, ESDC, 42DP and the City under this Assignment shall be limited
pursuant to Article 18 of the Lease. Nothing in the foregoing, however, shall
limit the liability of the guarantor under the Construction Guaranty including,
without limitation, for payments made by Assignee to Third Party under the
Agreement.


[Signature Page Follows]



 C-7
 






 



 


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


	
  

  	
  [Tenant]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  

  	
  42ND ST. DEVELOPMENT

  PROJECT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  

  	
  [Name of Third Party]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 



 C-8















EXHIBIT D


FORM OF CONDOMINIUM
DECLARATION (§ 1.1 (a)(xIvii))


See Item 76 – Declaration
of Leasehold Condominium.












EXHIBIT E-1


DESIGN,
CONSTRUCTION AND MAINTENANCE REQUIREMENTS FOR

CONSTRUCTION OF BRIDGES AND FENCING (§ 1.1(a)(lxx)(A))












 


	
  

  	
  Site 8S: Exhibit E 1

  Design, Construction and Maintenance

  Requirements for Construction Bridges

  and Fencing

  October 4, 2001

  



 


This Exhibit is a part of
the Design, Use and Operation Requirements (“DUO”). Unless otherwise specified,
the requirements set forth in this Exhibit are in addition to the requirements
set forth in the other Exhibits that comprise DUO. In no event shall
satisfaction of the requirements herein be deemed to be satisfaction of the
requirements of any of the other Exhibits of DUO.


1.0                  Purpose and
Applicability


This Exhibit defines the minimum requirements to be
used for the design, construction and maintenance of construction bridges and
fencing to be erected as part of the Forty-Second Street Development Project
(the “Project”). These standards are meant to meet or exceed the requirements
of Article 19 of the New York City Buildings Laws (“Article 19”). In any
instance where a standard or requirement described herein does not meet the
minimum requirement defined by Article 19, the Department of Buildings’
standard shall apply. If any standard or requirement described herein is
prohibited by Requirements, then Tenant shall comply with the applicable
Requirements.


1.2                 At least two
months prior to the commencement of the Construction Phase (as described in
Section 2.0), a complete set of bridge and fencing drawings and graphics plans
(the “Plans”) shall be completed in accordance with the standards contained
herein and shall be submitted to Landlord for review and approval. In no event shall
any excavation work occur before Landlord’s approval of the Plans. If the
submission is complete and in conformance with the requirements herein,
Landlord shall complete its review within fifteen (15) business days following
receipt of an initial submission. However, if the submission is incomplete and
not in conformance with the requirements herein, Landlord shall have thirty
(30) business days following receipt of an initial submission hereunder.
Landlord shall have twenty-one (21) business days following receipt of
revisions thereof or receipt of additional information required by Landlord in
reviewing the Plans to approve or reject same. If Tenant wishes to modify
previously approved Plans, Landlord shall have thirty (30) business days from
receipt thereof to approve or reject same. Landlord’s failure to timely approve
or reject shall be deemed an approval. In the case of any proposed
modification, Landlord may not disapprove any matter previously submitted and
approved or deemed approved, except to the extent that such modification
affects the matter so approved or deemed approved.


















2.0                  Phases


2.1                 There shall be
three (3) distinct phases of construction bridges and/or fencings, except as
noted below, in accordance with the following requirements.


2.1.1       Demolition Phase


This phase shall commence with commencement of
demolition on the site and shall continue until all demolition on the site is
complete (the “Demolition Phase”), subject to extension as described in 2.1.2
below and with the exception noted below. During the Demolition Phase,
demolition bridges and fencing shall be provided in accordance with the
Requirements.


Lighting shall be provided at the soffit of
construction bridge decking to achieve a minimum level of ten (10) foot candles illumination measured at the
pavement.


Notwithstanding the foregoing, if demolition is
conducted in phases, Tenant, after completion of demolition of any building(s),
shall clear all demolition debris, remove the Demolition Phase bridges and
fencing and shall grade and enclose the demolished portion of the site with a
fence which shall be installed on the property line which is on a public right
of way and in accordance with the requirements described in Section 3 herein.
Additionally, lighting shall be installed on the fence to achieve a minimum
level of ten (10) foot candles illumination measured at the pavement. The
demolished portion of the site shall be kept free of litter.


2.1.2       Interim Phase


This phase shall commence upon completion of the
Demolition Phase and shall continue until commencement of the Construction
Phase (the “Interim Phase”) provided
that if Tenant shall commence excavation on the site within three (3) months
after the completion of all demolition on the site, there shall be no Interim
Phase and the Demolition Phase shall be extended until the commencement of the
Construction Phase, as hereinafter defined. During the Interim Phase on the
site, the site shall be cleared of debris, graded and fully enclosed by a
fence. This fence shall run the entire length of each property line which is on
a public right of way, and shall be completed in accordance with the
requirements described in Section 3 herein. The demolished portion of the site shall
be kept free of litter.


2.1.3       Construction Phase


This phase shall commence with excavation on the site
and continue until the construction bridges and fencing are removed pursuant to
the Requirements (the “Construction Phase”). During the Construction Phase,
there shall be a solid, protective fence constructed at the property line, and
a construction bridge designed, built, and maintained in accordance with the
standards set forth in



 2
 








Section 4 herein. If, however, Tenant is issued a
valid sidewalk closing permit, and if Landlord does not object thereto, which objection
shall be based solely on a determination that a sidewalk closing will
unreasonably interfere with pedestrian traffic, then Tenant shall have the
option either to build construction bridges or protective fencing as more fully
set forth in Section 7.0 hereof.


3.0                  Design Program
for Interim Phase Fences


Interim Phase fencing shall
be of one inch space vinyl coated chain link, mounted on supports not more than
twelve feet (12’) apart. Such fencing shall not be less than eight feet (8’) in
height.


The fencing, including
supports, shall be of bright primary colors. Lighting shall be installed on the
fencing to achieve a minimum level of ten (10) foot candles illumination at the
pavement.


4.0                  Design Program
for Construction Phase Fences and Bridges


4.1                 Construction
Bridge Heights


All construction bridges
shall be at least fifteen feet (15’) in height measured from the sidewalk to
the underside of the structural support system.


4.2                 Construction
Bridge Widths


Construction bridge
scaffolding along 8th Avenue
shall be a minimum of twelve feet (12’) wide and along 40th and 41st Streets shall be a minimum of ten feet (10’)
wide. If the site logistics allows for wider bridge, the bridge width along 8th Avenue shall be (15’) feet.


No central column supports
are permitted unless a bridge width is more than fifteen (15’) feet.


4.3                 Painting and
Scaffolding


All exposed scaffolding
shall be painted in bright primary colors.


4.4                 Construction
Fencing


Protective fencing shall be
erected at the property line, to create a solid continuous face for the height
of the construction bridge or fifteen feet (15’), whichever is greater. The
side of the fence that faces the pedestrian right-of-way shall be a smooth
faced and uniform material such as plywood, with as few seams as practicable.
The fencing shall be painted in bright primary colors. Graphics or theatrical
and/or other advertising sign boards may be provided on the fencing.



 3
 








4.5                 Gate Location


Gates for delivery of
materials and equipment entrances shall be located away from major pedestrian
and vehicular thoroughfares to the extent practical.


4.6                 Construction
Bridge Decking


Bridge roof decking
materials that are visible to pedestrians shall be painted in high gloss
reflective finish. Seams shall be made watertight and provisions made for
adequate stormwater disposal points at the curbside edge. Lighting shall be
provided at the soffit to a minimum level of ten (10) foot candles illumination
measured at the pavement. Landlord reserves the right to require increased
levels of illumination for security purposes.


4.7                 Construction
Bridge Fascia


The height of the fascia for
construction bridges shall be an average of twelve
feet (12’) along 8th Avenue, except that the average height of the
fascia may be less than twelve feet (12’) to achieve the construction bridge
widths required per Section 4.2 above. The height of the fascia for
construction bridges along 40th
and 41st streets shall be per the
Requirements. The fascia shall be made of exterior grade plywood and shall be
painted with graphics in bright primary colors.


As an alternative to the
graphics described above, Tenant may provide advertising posters and commercial
graphics on the fascia. In either case, the fascia shall be lit to seventy-five
(75) foot candles measured at the fascia.


5.0                  Project Sign


During Demolition, Interim
and Construction Phases Tenant shall provide one Project sign on the site. The
location, dimension and design of the Project sign shall be approved by
Landlord within five (5) business days of its submission to Landlord.


6.0                  Continuing
Maintenance of Construction Bridges and Fencing


In order to maintain a
bright, clean and attractive setting, bridges, fences and pedestrian ways shall
be maintained during all phases of construction (including demolition) and the
Interim Phase, if any, in accordance with the following requirements:


A.                      Sidewalks:
Sidewalks shall be swept at the close of every construction day.


B.                        Lighting:
Lighting shall be maintained with prompt replacement of any bulb which is burnt
out or damaged.



 4
 








C.                        Bridges
and Fences: Bridges and fences shall be maintained in good condition.
Graffiti shall be promptly removed.


7.0                  Sidewalk Closing


8th Avenue shall remain open to pedestrians during
all phases of the construction work. However, Tenant, upon approval by Landlord
and the New York City governmental agency having appropriate jurisdiction, may
close 40th and 41st Street
sidewalks adjacent to the construction site during demolition or construction.
In such case, Tenant shall have the option to erect either construction bridges
or protective fencing. If Tenant elects to build construction bridges, then the
same shall be built in accordance with the requirements of Section 4.0 hereof.
If Tenant elects to construct protective fencing, then the same shall be
erected in accordance with the Requirements and in compliance with the
following requirements:


A.                      The height
of the protective fencing shall be a minimum of eight feet (8’);


B.                        The side
of the fencing that faces the street shall be a smooth faced and uniform
material such as plywood and with as few seams as practicable; and


C.                        Fencing
shall be painted in high gloss reflective finish in bright primary colors with
graphics.


8.0                  Temporary
Changes to this Program by Tenant


Tenant may make temporary
changes to this Program, without Landlord’s approval, only to the extent that
such changes are: (i) necessary to comply with Requirements; (ii) necessitated
by physical conditions which were neither known, nor reasonably capable of
being known by Tenant on the date the plan was submitted to Landlord under
Subsection 1.2 hereof; or (iii) necessary to comply with sound construction
practices. A temporary change as used herein shall mean a modification of this
Program which has a duration of thirty (30) days or less. Tenant shall inform
Landlord of any such change as soon as possible, but in no event not later than
ten (10) days prior to installing the temporary  change.


9.0                  Alternative
Proposal


Tenant may submit alternative proposals for the
construction bridges program and the Landlord in its sole discretion may alter
the requirements if the alternative proposal meets the purpose of the
construction bridges requirements contained herein and creates the same level
of safety and the same high level of visual impact. Plans for the alternative
proposal shall be sufficiently detailed to enable review of the proposal for
compliance with the requirements of this Exhibit E 1. Time frames for review
shall be the same as described in Section 1.2.



 5














 


EXHIBIT E-2


HISTORIC PRESERVATION PROTECTION PLAN FOR CONSTRUCTION

ADJACENT TO HISTORIC STRUCTURES (§ 1.1(a)(1xx)(B)

















 


 


	
  

  	
  Site 8S: Exhibit E 2

  Historic Preservation Protection Plan for

  Construction Adjacent to Historic

  Structures

  October 4, 2001

  



This Exhibit is part of
the Design, Use and Operating Requirements (“DUO”). Unless otherwise specified,
the requirements set forth in this Exhibit are in addition to the requirements
set forth in the rest of the Lease, including in the other Exhibits that
comprise DUO.  In no event shall
satisfaction of the requirements herein be deemed to be satisfaction of the
requirement of any of the other Exhibits of DUO or any other requirements of
the Lease. In the event the requirements of this Exhibit conflict with the
Lease, the requirements of this Exhibit shall control.


Capitalized terms used
but not defined in this Exhibit have the meanings given them elsewhere in the
Lease.


1.0      General


With respect to all construction that might affect the
interior and/or exterior of the Liberty Theater and the Empire Theater and the
42nd Street facade of the Harris Theater (as
identified with a “PF” symbol on Attachment A attached hereto) (the “Adjacent
Historical Structures”), Tenant shall strictly adhere to the “Historic
Preservation Program and Protection Plan” set forth in this Exhibit. As used in
this Historic Preservation Program and Protection Plan, the terms “Preservation”,
“Restoration” and “Reconstruction” shall have the following meanings:


“Preservation” or “Preserve” means stabilizing a building or
element of a building by preventing further change or deterioration.
Preservation, since it takes the structure as found, does not relate to a
specific period in time.


“Restoration” or “Restore”
means putting an Adjacent Historical Structure or element of an Adjacent
Historical Structure as nearly as is physically practicable into the form it
held at the particular date or period in time when it acquired its
significance. This often requires the removal of work which is not “of that
period”.


“Reconstruction”
or “Reconstruct” means the recreation of an Adjacent
Historical Structure or element of an Adjacent Historical Structure to its
original design based on Historical evidence (archaeological, architectural,
photographic, etc.). This applies to existing elements that (i) have missing
ornamental sections (e.g. missing section of a cornice), or (ii) are missing a
section of a repeated ornamental series (e.g. a missing flower in a repeated pattern).

















 


2.0      Protection
Plan for Construction on Buildings Adjacent to the Historic Structures


Tenant shall establish and carry out a construction
procedure (“Protection Plan”) which will protect the structural integrity and
individual building elements of the Adjacent Historical Structures during all
times of Construction Work and Alterations. Tenant shall engage structural and
geo-technical engineers who are regularly engaged in the monitoring and
protection of historic buildings, have completed at least five (5) projects of
similar scope and scale and are reputable in their field (“Tenant’s Engineer”)
to prepare the Protection Plan. The Protection Plan shall be based on an
investigation by Tenant of (1) the structural supports and foundation systems
of Adjacent Historical Structures, and (2) all subsurface data concerning rock,
earth or water levels for areas of construction adjacent to such Adjacent
Historical Structures. However, the Tenant shall not be responsible for
certifying the structural stability of the existing Adjacent Historical
Structures. Upon advance notice from Tenant, Landlord shall diligently endeavor
to provide Tenant access to Adjacent Historical Structures both as soon as
possible and prior to and during periods of construction for the purpose of
carrying on its obligations hereunder. The Protection Plan shall include, but
not be limited to, a description of the following measures:


A determination by Tenant’s Engineer of whether the
Adjacent Historical Structures could be adversely affected by the proposed
construction, including demolition on the site. In the event Tenant’s Engineer
concludes that there will be no adverse affect to the Adjacent Historical
Structures, then Tenant’s Engineer shall submit a report explaining, to
Landlord’s reasonable satisfaction, his or her conclusions. Provided that
Landlord is satisfied with such report, no further work shall be necessary and
the requirements listed below (1 through 9) shall not apply. Further, no
additional work or determinations shall be required for any of the Adjacent
Historical Structures.


In the event it is determined that any of the Adjacent
Historical Structures could be adversely affected by construction, the
following shall also be included in the Protection Plan;


(1)                    a tru photographic
survey of the interior and the exterior of the Adjacent Historical Structures
taken before any construction shall commence at the Property, including
demolition:


(2)                    an assessment
and inventory of vibration sensitive elements in Adjacent Historical Structures
and a description of measures to be taken to secure and protect those elements,
establishing maximum particle velocity and frequency levels, location of crack
monitors, tilt meters, surveyors’ tell tales and seismic monitoring devices,
and schedule and methodology of monitoring of such equipment including seismic
recordings and reporting including central office connection;



 2
 






 



(3)                    a
site logistics plan, including a description of the location of the following:
site access and unloading, hoisting and storage of materials and equipment, and
location and reach of cranes and hoists. The plan shall also describe measures
to be taken to avoid any damage to the Adjacent Historical Structures including
placement of bollards, guard rails, curbs, supervisory personnel, construction
sheds, catchalls and other devices for the protection of the roof and walls of
the Adjacent Historical Structure from falling debris, and protection from and
isolation of sources of dust;


(4)                    a description
of measures for protecting the plaster ornamentation in the interior and the
historic façades of Adjacent Historical Structures;


(5)                    identification
of equipment and procedures to be used for all demolition and excavation work,
including controlled test blasting;


(6)                    protection and
repair of any walls and foundations of Adjacent Historical Structures during
construction including tie backs and bracing;


(7)                    test borings;


(8)                    channel
drilling or equivalent protective technique; and


(9)                    schedule of
walk-throughs with Landlord’s engineer of Adjacent Historical Structures during
and at the conclusion of each construction phase (i.e., the demolition phase,
the foundation and excavation phase, and the above-grade construction phase)
and rephotographing the Adjacent Historical Structures at the completion of
each construction phase.


Tenant shall select contractors that employ skilled
technicians for executing the work as specified by the plan. Each technical
worker shall have performed and completed the same type of work required on at
least three (3) projects.


3.0                  Review of Plans


The Protection Plan shall
be submitted in writing for approval to Landlord. If Tenant desires, the
Protection Plan may be submitted in three phases: the demolition phase plan,
the foundation and excavation phase plan, and the above-grade construction
phase plan. The Protection Plan shall be submitted no later than sixty (60)
business days prior to commencement of construction. (For purposes of the
Protection Plan, commencement of construction shall include demolition.)
Landlord shall review the Protection Plan within twenty (20) business days
after the date of submission thereof by Tenant. Additional information provided
subsequently to submission of the Protection Plan, major resubmissions or major
modifications to the Protection Plan shall be reviewed in fifteen (15) business
days; resubmissions for minor clarifications or minor modifications shall be
reviewed within ten (10) business days. In no event shall Tenant commence any



 3
 






 



construction upon the Property until the Protection
Plan has been approved by Landlord. If certain existing physical conditions
cannot be determined at the time of initial submissions, such information shall
be provided and the Protection Plan shall be updated as soon as the information
is available. No work may be performed without understanding its impact on the
Adjacent Historical Structures and prior implementation of protection measures.
If the Protection Plan is submitted in three phases, in no event shall Tenant
commence any of the aforementioned phases until the Protection Plan for that
phase has been approved by Landlord, which approval with respect to the
requirements of this Exhibit E 2 only shall be granted if the Protection Plan
will protect the structural integrity and individual building elements of the
Adjacent Historical Structures during the construction.


Tenant shall submit reports until all construction is
complete, prepared in consultation with Tenant’s Engineer, reflecting the
status of the construction and conformity with construction procedures as
required by the Protection Plan to Landlord. Such reports shall be submitted
monthly by the 15th day except that during any period in which
explosives are used and for so long as the foundation is being poured, such
reports shall be submitted every week. Landlord shall have the right to perform
periodic site inspections with notice to Tenant and to consult with Tenant’s
Engineer after notifying Tenant concerning the results of such inspections.


From the commencement until construction has reached a
point where there is no further chance of inducing vibrations in the Adjacent
Historical Structures, Tenant shall submit to Landlord seismic and tilt meter
monitoring reports on a daily basis. If any seismic reading and/or frequency
level exceeds the levels established as the maximum levels in accordance with
Section 2.0 (2), Tenant and Tenant’s Engineer shall promptly notify Landlord
and construction activities which may have caused the frequency levels to be
exceeded shall immediately be halted. Tenant’s Engineer in consultation with
Landlord, shall also determine the damage and determine if repair or
stabilization or other remedial work to any element of an Adjacent Historical
Structure is required. Tenant’s Engineer, in consultation with Landlord, shall
also determine appropriate adjustments to the construction activities to bring
seismic readings and/or frequency levels within the limits established as the
maximum levels in accordance with Section 2.0 (2).


If any damage to an
Adjacent Historical Structure is found, Landlord shall consult with Tenant and
Tenant’s Engineer and the two mutually shall agree as to any remedial work to
be performed to repair the damage or to stabilize a building element (“Remediation
Plan”). If repair or stabilization or other remedial work is required, Tenant
and Tenant’s Engineer shall submit the Remediation Plan to Landlord for
approval, which approval shall be granted or denied within ten (10) business
days after receipt thereof. Landlord’s failure to notify Tenant of its approval
or rejection of the Remediation Plan within the ten (10) business day period
shall be deemed an approval thereof. If Landlord rejects the Remediation Plan
proposed by Tenant and Tenant’s Engineer, Landlord shall state its reasons therefor
and thereafter Tenant and Tenant’s Engineer and Landlord shall work together as
expeditiously as possible to prepare a mutually acceptable Remediation Plan.



 4
 






 



No construction activities that could cause damage or
are believed to have caused damage to the Adjacent Historical Structures shall
proceed until the Remediation Plan is approved by Landlord. The Remediation
Plan shall be approved if, in Landlord’s sole discretion, it will protect the
structural integrity and special feature of the Adjacent Historical Structures.
This shall not preclude Tenant’s Engineer and Landlord from agreeing on and
implementing a remediating course of action prior to Landlord’s formal approval
of the Remediation Plan. Tenant shall be responsible for the Preservation,
Restoration and Reconstruction of any damage in an Adjacent Historical
Structure and the cost of such work, regardless of whether the damage involved
a work stoppage. Tenant shall also be responsible for any damage to
non-historic elements in an Adjacent Historical Structure and shall return such
elements to the condition they were in prior to the commencement of the
construction. Tenant shall be responsible for the cost of such work regardless
of whether the damage involved a work stoppage.


In the case of an emergency, Tenant may immediately
take such actions as it reasonably believes in its professional judgment are
necessary to prevent further damage prior to Tenant submitting a Remediation
Plan to Landlord. Landlord may, in its sole discretion, require Tenant to
remove and/or reverse such emergency measures if it reasonably believes that
the result of such work is (i) causing further damage or (ii) more effectively
achieved through alternative measures.


Landlord shall have the right to perform periodic site
inspections with notice to Tenant and to consult with Tenant’s Engineer after
notifying Tenant concerning the results of such inspections. Landlord shall
have the right to attend construction job meetings when issues related to
historic preservation and protection of Adjacent Historical Structures are
discussed.


All Landlord reviews
shall be for conformance with the requirements herein. In the case of any
proposed modification, Landlord may not disapprove any matter previously
submitted and approved, except to the extent such modification affects the
matter so approved.



 5














 


 





 


[MAP]

















 


EXHIBIT
E-3


STREETSCAPE
IMPROVEMENT DESIGN PROGRAM (§ 1.1(a)(lxx)(C))

















 


	
   

  	
  Site
  8S: Exhibit E 3

  
	
   

  	
  Streetscape
  Improvement Design

  
	
   

  	
  Program

  
	
   

  	
  October
  4, 2001

  



This Exhibit is a part of
the Design, Use and Operation Requirements (“DUO”). Unless otherwise specified,
the requirements set forth in this Exhibit are in addition to the requirements
set forth in the other Exhibits that comprise DUO. In no event shall
satisfaction of the requirements herein be deemed to be satisfaction of the
requirements of any of the other Exhibits of DUO.


1.0                  Definitions


“Building Line”
shall mean a straight line connecting the portions of the facade of the
building at street level which are closest to the Roadbed.


“Curb” shall mean
the area of the Sidewalk adjacent to the Roadbed which differentiates the
Sidewalk from the Roadbed of the adjacent street.


“Roadbed” shall
mean the portion of the street adjacent to the Sidewalk on which motor vehicles
may travel.


“Sidewalk” shall
mean the area between the curb of the nearest adjacent street and the Building
Line.


“Street Furniture”
shall mean any permanent three-dimensional object located on the Sidewalk.


2.0                  Purposes and
Applicability


These standards specify design requirements for
streetscape improvements on the sidewalks adjacent to the site. Streetscape
improvements include sidewalk paving and street furniture.


It is the purpose of these standards to ensure the
provision of streetscape improvements that create an attractive and functional
environment that will also allow for the creation of a real New York City
street that appears unplanned and frankly commercial in character. While
recognizing that it is important to minimize obstructions and hazards which
inhibit safe, efficient pedestrian flow, these standards must also allow for a certain
amount of temporary and/or permanent commercially related elements to be
located in the sidewalk area.



 1














 


 


 


3.0                  Requirements


3.1                 Sidewalk Paving


Curb


The Curb shall be composed of concrete covered with a
steel face as per the Requirements. The Curb shall be five (5) inches wide and
shall run along the entire length of the Sidewalk adjacent to the Roadbed. It
shall be constructed so as to minimize joints between portions of the Curb.
Dropped Curbs shall be provided at all street comers in accordance with the
Requirements.


Sidewalk


All Sidewalks in the Project Area shall be replaced.
The Sidewalk shall be composed of sparkle concrete per the standards described
in Attachment A. Any joints between such sections shall be located so that they
create a uniform design on pattern in the Sidewalk.


Grates


Grates other than those existing as of the date hereof
(see Attachment B) are prohibited on the 8th Avenue Sidewalk. Best efforts
shall be made to minimize new grates on the 40th and 41st Street Sidewalks.


Roadbed


If Tenant is required, pursuant to any Requirement, to
construct or reconstruct the Roadbed, it shall be constructed or reconstructed
in accordance with specifications established by the New York City Department
of Transportation.


3.2                 Street Lighting


In the event that any of the existing lighting
fixtures are damaged during construction, they shall be repaired or replaced in
kind, if necessary.


3.3      Street
Furniture


Street Furniture will be the standard equipment used
by the City of New York.


3.4      Street
Signs


Tenant shall comply with
such uniform standards (including locations and design of traffic, building
identification and street signs) for signage for public street areas, as are
established by the New York City Department of Transportation. Other than meeting
those requirements that may be established by the New York



 2














 


City Department of Transportation, no attempt shall be
made to create a unified of coordinated system of building identification on
the site or among the Project Area premises.


4.0                  Streetscape
Completion Date


The streetscape improvements described herein shall be
installed no later than Substantial Completion (“Streetscape Completion Date”).


5.0                  Submission and
Review Requirements


Tenant shall prepare final plans and specifications
for streetscape improvement design (“Plans”) and shall submit them to Landlord
no later than ninety (90) days prior to installation. Landlord shall review
such Plans within twenty (20) business days. Plans shall be submitted in
sufficient detail so that Landlord can determine compliance with the
requirements of the Streetscape Improvement Design Program.


In the event Tenant can demonstrate to Landlord’s
reasonable satisfaction the need to submit Plans in accordance with a
submission schedule which varies from the one described herein, Landlord shall,
at such time, in its sole discretion, determine the appropriate submission
schedule.


From and after the Streetscape Completion Date, such
streetscape improvements shall comply in all respects with the requirements of
this Streetscape Improvement Design Program.


6.0                  Alternative
Proposals


Tenant may submit for Landlord’s review and approval
alternative proposals to the requirements herein. Landlord in its review shall
consider whether the alternative proposal meets the goals of the Streetscape
Improvement Design Program.



 3














 


 


Attachment A


Specifications
for Sparkle Concrete Sidewalk


The
concrete sidewalk shall in the minimum meet the New York City Department of
Transportation specifications for concrete sidewalks.


In
addition, the concrete shall be colored with a color conditioning, single
component, water reducing, set controlling admixture as manufactured by L.M.
Scofield Company, New York, New York, brand name Chromix Admixture, or an
approved equal. The Chromix Admixture or its equivalent in no case shall
contain calcium chloride. The color shall be mutually selected by the Tenant
and the Landlord. Type and brand of cement, and aggregate source shall not be
changed during construction, and the coloring shall be blended with concrete in
accordance with the manufacturer’s specifications. The coloring shall be
uniform throughout the concrete section.


In
addition, after the concrete has been floated and the surface water has
disappeared, Silican carbide grit (Anti Hydro Silicarbid or approved equal)
shall be broadcast over the surface at the rate of 3/8 1b. per sf. The AH
Silicarbid grit shall be evenly placed throughout and floated into the surface
of the concrete in accordance with the manufacturers’ recommendations.


Detail
specifications for the concrete sidewalk shall be prepared by the Tenants
architects and shall be submitted with the Plans for approval by the Landlord
in accordance with the Lease terms.


Sample
of the concrete panels (total dimension 5’ x 10’ minimum) shall be poured and
cured at the Site for the approval of the Landlord prior to final construction
of the sidewalk areas.

















 


 





 










 



EXHIBIT E-4


DISPLAY
AND SIGNAGE REQUIREMENTS (§ 1.1(a)(lxx)(D))










 



 


Site
8S: Exhibit: E 4 

Display and Signage 

December 6, 2001


KEY: The
following labels, where they appear in this document have meanings listed
below.


	
  [NYT, FC-R] –

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into the “FC
  Office” Severance Sublease; provided, however, that in the event it is
  determined that this provision has applicability to Tenant’s obligations in
  respect of the Property after the Lease Assignment Date, the provision shall
  be once again deemed to be part of the indicated DUO.”

  
	
   

  	
   

  	
   

  
	
  [NYT]
  - 

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into either
  the “FC Retail” or the “FC Office” Severance Sublease; provided, however,
  that in the event it is determined that this provision has applicability to
  Tenant’s obligations in respect of the Property after the Lease Assignment
  Date, the provision shall be once again deemed to be part of the indicated
  DUO.”

  



This Exhibit is a part of
the Design, Use and Operation Requirements (“DUO”). Unless otherwise specified,
the requirements set forth in this Exhibit are in addition to the requirement
set forth in the other Exhibits that comprise DUO. Signage that is in excess of
the required minimum areas is not required to comply with this Exhibit except
that in no event shall banners and strobes lights or lights that create the
same visual effect as strobe lights be permitted. In no event shall satisfaction
of the requirements herein be deemed to be satisfaction of the requirements of
any of the other Exhibits of DUO.


1.0       Definitions


“Area” of a sign
shall mean the area within the perimeter of the sign which shall mean either
(1) a defined boundary of the sign or (2) where there is no defined boundary,
an imaginary line which connects the outer edges of the sign.


“Awning” shall mean
a canopy located above a store window and which announces the Store or products
sold in the Store.


“Direct Source Lighting”
shall mean exposed neon, bulbs or other point or line source lighting that is
mounted on the surface of the sign and is an integral component of the sign.
Direct Source Lighting shall include Signage Techniques H through M and P if
direct source lighting is employed as herein described in Appendix A.


“Display Window Signs”
shall mean any permanent signage located on the Storefront in front of the
window.

















 


 


 


“Floodlit Sign” shall mean any
sign that has its surface illuminated by an external source of lighting.
Floodlit sign shall include Signage Techniques A, B, E and P if flood lighting
is employed as herein described in Appendix A.


“Marquee” shall
mean a permanent canopy projecting over an entrance, which advertises a
theater/auditorium or similar Store with changing entertainment/educational
programs.


“Perpendicular Signs”
shall mean a sign set at an angle in plan between 45° and 90° with respect to
the building wall. In the event that a Perpendicular sign has understandable
commercial signage on both sides, both sides shall be counted towards the Area
requirement. Perpendicular signs used to meet the Signage Technique
requirements for Projecting signs shall extend from the building wall by a
minimum of three (3) feet.


“Projecting Signs”
shall include Perpendicular signs and/or Three-Dimensional signs described
herein.


“Retail Sign” shall
mean the signage located outside a Storefront either directly on the Storefront
or in front of the Store along the curbside of the arcade on 40th Street, 41st Street and 8th Avenue. It may be a single sign or a group of
signs.


“Self Illuminated Sign”
shall mean any sign which is lit from within and where the light source is not
directly visible. Self-illuminated signs shall include Signage Techniques C, D,
F, G and P if the sign is illuminated from within as herein described in
Appendix A.


“Signage Technique”
shall mean the individual signage technologies listed in Appendix A.


“Store” shall be
defined as per Exhibit E 6, Section 1.0.


“Storefront” shall
be defined as per Exhibit E 6, Section 1.0


“Tenant Display Area”
shall be defined as that area of a Store located between the exterior of the
Storefront glass and the area where the goods are displayed.


“Three-Dimensional Sign”
shall mean a sign that renders a recognizable object in three dimensions such
as a coffee cup or a person. Abstract objects such as cubes or rectangular
cylinders shall not be considered to be three-dimensional. If the object is
fully three-dimensional, the two largest adjacent elevations shall be counted
towards the Area requirement. If the object is in relief, the front elevation
shall be counted towards the Area requirements.


“Undersill Signage”
shall mean permanent signage located on the bulkhead below the Storefront sill.



 2
 






 



 


“Vitrines” shall
mean a lighted, glass-fronted display case that encloses advertising for
changing entertainment/educational programs in the Store to which they are
attached.


2.0                               Tenant-Display      [NYT,
FC-R]


2.1                   Purpose: The purpose of the tenant display
requirements is to promote a sense of liveliness and safety for pedestrians by
assuring that the interiors of all Stores are clearly visible from the street,
and that displays are brightly illuminated.


2.2                   Applicability: The tenant display
requirements apply to the Tenant Display Area.


2.3                   Design: The selling area of the Store shall
be substantially visible from the sidewalk adjacent to the Store. No shadow
boxes are permitted within ten (10) feet of the Tenant Display Area.


2.4                   Illumination: For non-eating and drinking
establishments the Tenant Display Area shall be brightly lit. The Tenant
Display Area shall contain a highlight which shall provide a minimum of ten
percent (10%) of the area of the Storefront with a minimum brightness of seven
hundred fifty (750) foot candles. Illumination of retail Storefront window
shall be measured at the vertical plane of the Storefront window.


Eating and drinking establishments are not subject to
the Tenant Display Illumination requirements.


2.5                   Hours of Operation: The Tenant Display Area
shall remain lighted from Store opening until the Store closes, or until 1:00am
whichever is later, seven (7) days per week.


2.6                   Compliance: Each Store shall fully comply
with the requirements of this Section 2 by the date that the Store first opens
for business.


3.0                              
Retail Signage     [NYT, FC-R]


3.1                   Purpose: The purpose of the requirements is
to create a lively, bright and safe streetscape.


3.2                   Applicability: Retail signage requirements
apply to all Stores. The requirements address to Retail Signs, Display Window
Signs, Awnings and any other sign that announces the Store (collectively
“Retail Signage”) located in an area between grade and top of the Storefront,
except that Retail Signs may also be located in front of the Storefront along
the curb side of the arcade on 40th Street, 41st Street and 8th Avenue.



 3
 






 



 


 


3.3                   Minimum
Requirements: Five thousand three hundred seventy (5,370) square feet of
which not less than four thousand nine hundred seventy (4,970) square feet
shall be distributed as follows:


	
  Retail Signs:

  	
  2100 square feet

  
	
  Display Window
  Signs:

  	
  170 square feet

  
	
  Awnings:

  	
  2700 square feet

  
	
  Other Retail
  Signage:

  	
  No requirements.

  



Building identification and subway entrance signage will not be counted
towards meeting the Minimum Area Requirements. Retail Signage facing the
recessed areas in front of the side street lobbies will not be counted towards
meeting the Minimum Area Requirements. Retail Signage provided at the entryway
to Stores fronting on the recessed building corners on 8th Avenue will be counted towards meeting the
Minimum Area Requirements.


3.4                   Design:
Retail Signage may be designed as an integral part of the architecture. There
may also be uniformity in their location and system of installation, however,
Retail Signage shall not be uniform or coordinated with respect to color,
typeface and Signage Technique among the various Stores. Retail Signage shall
express the individuality of the Store operator.


Retail Signs: Retail Signs shall
be installed on structural system designed by the Design Architect, as defined
in the Lease, specifically for such signs. The structural system shall be specially
designed so as to help articulate the facades. There shall be minimum sixteen
(16) Retail Signs, including four (4) signs on each of 40th and 41st Streets east of
the side street building lobbies, three (3) signs on each of 40th and 41st Streets west of
the side street building lobbies and one (1) sign on 8th Avenue on each side of the 8th Avenue building lobby. Retail Signs shall be
maximum five (5) feet in height and there shall be minimum two (2) feet clear
distance between the top edge of the sign and the soffit at the underside of
the third floor. There shall be minimum one (1) foot clear distance between the
side edges of the Retail Sign and the adjacent columns. The entire area within
the dimensions defined above shall be counted towards the Minimum Area
Requirements so long as there is a sign installed within the area that occupies
minimum fifty percent (50%) of the area. Retail Sign shall be approximately
eighteen (18) inches in depth. See Appendix C for typical location and design
of Retail Signs.


Display Window Signs: Display
Window Signs shall be located on the structural system designed by the Design
Architect specifically for such signs. The structural system shall be specially
designed so as to help articulate the facades. There shall be one (1) sign per
approximately ten (10) feet of retail frontage not including the frontages
facing the side street building lobbies. Display Window Signs shall be maximum
one (1) foot in height and there shall be minimum six (6) inches clear



 4
 






 



 


distance between the top edge of the sign and the main mullion/Awning
support. There shall be minimum four (4) inches of clear distance between the
side edges of the Display Window Sign and the adjacent mullions. The entire
area within the dimensions specified above shall be counted towards the Minimum
Area Requirements so long as there is a sign installed within the area that
occupies minimum fifty percent (50%) of the area. The depth of Display Window
Signs shall be approximately six (6) inches. See Appendix C for typical
location and design of Display Window Signs.


Awnings: Awnings shall be
located on the structural system designed by the Design Architect specifically
for Awnings. The structural system shall be specially designed so as to help
articulate the facades. Awnings shall be fully retractable and shall be made of
textile or perforated metal panel. The entire surface area of the main panel of
the Awning shall be counted towards the Minimum Area Requirements however
signage need not cover the entire surface area of the panel. Awnings are
required on each Storefront window except those that front on the recessed
corners of the tower. See Appendix C for typical design and location of
Awnings.


Other Retail Signage: No requirements.


3.5                   Signage
Techniques: Retail Signage shall use Signage Techniques attached as
Appendix A unless otherwise specified or approved by Landlord, and shall also
meet the following requirements:


	
  Retail Signs:

  	
  Retail Signs
  shall be in Signage 

  Techniques C, D, F, H with open work 

  structure only, I. J or P.

  
	
   

  	
   

  
	
   

  	
  No individual
  Signage Technique shall be 

  used on adjacent Stores.

  
	
   

  	
   

  
	
  Display Window
  Signs:

  	
  Display Window
  Signs shall be in Signage 

  Techniques C, D, F, H, I or J.

  
	
   

  	
   

  
	
   

  	
  No individual
  Signage Technique shall be used 

  on adjacent Stores.

  
	
   

  	
   

  
	
  Awnings:

  	
  Signage on the
  Awnings may be printed on 

  or attached to the panel. They shall be 

  front lit by a lighting system designed by the Design 

  Architect. See Appendix C for example of lighting provision.

  
	
   

  	
   

  
	
  Other Retail
  Signage:

  	
  No requirements.

  



 



 5
 






 



For purposes of calculating square footage requirements by technique,
each technique used in the sign shall be counted.


3.6                   Animation:
No requirements.


3.7                   Illumination:


	
  Retail Signs:

  	
  Minimum average
  brightness of the aggregate of 

  non-Floodlit signs shall be fifty hundredths (. 50) 

  LUTS, measured in accordance with Appendix B. 

  Minimum average brightness of Floodlit signs shall 

  be thirty five (35) foot candles.

  
	
   

  	
   

  
	
  Display Window
  Signs:

  	
  Minimum average
  brightness of the aggregate of 

  non-Floodlit signs shall be twenty five hundredths 

  (.25) LUTS measured in accordance with Appendix B. 

  Minimum average brightness of Floodlit signs shall be 

  thirty (30) foot candles.

  
	
   

  	
   

  
	
  Awnings:

  	
  No requirements.

  
	
   

  	
   

  
	
  Other Retail
  Signage:

  	
  No requirements.

  



If Tenant desires to use a colored neon that could prevent compliance
with the overall level of illumination for the site, Landlord at its sole
discretion may approve the proposed neon if it contributes towards variety across
the site in color and design.


3.8                   Hours
of Operation: Signs shall remain lighted from Store opening to Store
closing or

1:00am whichever is later, seven (7) days per week.


3.9                   Compliance:
Each Store shall fully comply with the requirements of this Section 3 by the
date that the Store first opens for business except that the structural system
for Retail Signs, Display Window Signs and Awnings shall be installed by ten
(10) months after Substantial Compliance Date and thereafter throughout the
term of the Lease.


4.0                              
Marquees   [NYT]


4.1                   Purpose:
The purpose of the Marquee requirements is to ensure that the Marquees remain
an essential part of the streetscape of the district and add another layer to
the strata of signage of the street. A further purpose is to ensure that
Marquees, if provided, are attractive, interesting and brightly lit, and large
enough to function both as signboards and as weather protection for a
substantial number of people.


4.2                   Applicability:
These requirements apply to Marquees required above entrances to



 6
 






 



each venue that has live performance, movie, media or other
entertainment/educational uses.


4.3                   Minimum Area Requirements: Signage is required on the
Marquee. However, there are no Minimum Area Requirements.


4.4                   Design: Marquees may be suspended, cantilevered, or directly
fixed to the facade, but may not be supported by elements resting on the
Sidewalk.


All portions of any Marquee shall be at least ten (10)
feet above the sidewalk. They shall be wide enough to cover all entrance doors
of the Store to which they are attached.


4.5                   Animation: No Requirement.


4.6                   Illumination: Marquee sign illumination shall be forty
hundredths (0.40)LUTS. Sidewalks beneath Marquees shall be lighted to at least
forty (40) foot-candles.


4.7                   Hours of Operation: Marquees shall remain lighted from the
earlier of one hour before sunset or 6:30pm until 1:00am, seven days per week.


4.8                   Compliance: Each Store shall fully comply with the
requirements of this Section 4 by the date that the Store first opens for
business.


5.0                                                  Vitrines     [NYT]


5.1                   Purpose: The purpose of the Vitrine requirements is to
ensure lively and well lighted facades at theaters or other venues with
changing programs.


5.2                   Applicability: The requirements apply to Vitrines at
entrances to venues that have live performance, movie, media or other
entertainment/educational uses.


5.3                   Minimum Area Requirement: Each store with changing
entertainment programs shall have at least one Vitrine with a ten (10) square
foot minimum glass.


5.4                   Design: All Vitrines shall have a clear glass front.
Vitrines shall at all times display either advertising for programs in the
Store to which they are attached or convey public service messages.


5.5                   Animation: No requirements.


5.6                   Illumination: The display area shall be lighted with
concealed lighting and shall be illuminated to a minimum of .02 LUTS.


5.7                   Hours of Operation: Vitrines shall remain lighted from the
earlier of one hour before sunset or 6:30pm until 1:00am, seven days per week.



 7
 






 



5.8                   Compliance: Each Store shall fully comply with the
requirements of this Section 5 by the date that the Store first opens for
business.


6.0                              Business/Commercial
Signage     [NYT]


6.1                   Purpose: The purpose of the Business/Commercial Signage
requirement is to:


·                            contribute
towards a bright, visually exciting street environment;


·                            ensure
yet another variety of sign in addition to the Retail Signage, in keeping with
the signage in the 42nd Street/Times Square Districts;


·                            announce
arrival to the 42nd Street neighborhood to the commuters streaming
out of the Port Authority Bus
Terminal and to motorists entering the city from the Lincoln Tunnel or driving
up on 8th Avenue;


·                            compliment
the design aesthetic of the 42nd Street Project;


·                            reflect
the entertainment, media and popular characteristic of the district; and


·                            create
a sign that will have a visual impact from near and far, including when the
sign is viewed diagonally along 8th Avenue.


6.2                   Applicability:
The Business/Commercial Signage requirements refer to sign(s) located on
the ceramic tube screen wall along 8th Avenue between approximately thirty five (35)
feet and eighty five (85) feet above grade. Business/Commercial Signage shall
either advertise the prime office tenant in the building; the Store below or a
product or commercial service.


6.3                   Minimum Area Requirement: There shall be minimum seven
thousand two hundred (7,200) square feet of Business/Commercial Signage of
which minimum one thousand (1000) square feet shall have graphical or textual message
and the balance may serve as the background of the sign. A sign indicating the
postal address of the building shall not be counted towards the Minimum Area
Requirements.


6.4                   Design: Business/Commercial Signage may be designed as an
integral part of the architecture and the design may be in keeping with the
image of its prime occupant i.e. The New York Times however through a
combination of innovative graphic design and illumination technique the sign
shall be uniquely distinctive like the building itself. The graphic/lettering
shall be dimensional or strongly textural so that it would be visible even if
it were the same color as the background. The entire sign shall be illuminated
however, approximately sixty percent (60%) of the background shall be illuminated
in a color distinct from the lighting used on the surrounding building and the
graphic/lettering shall in addition receive another special lighting to make it
visually distinct from the background even when the entire



 8
 






 



sign is illuminated.


6.5                   Signage Technique: Business/Commercial Signage shall utilize
Signage Techniques attached as Appendix A or any other technique that achieves
the design as stated above.


6.6                   Animation: No requirements.


6.7                   Illumination: Minimum average brightness of the aggregate of
non-Floodlit signs shall be fifty-three hundredths (. 53) LUTS measured in
accordance with Appendix B. Minimum average brightness of each Floodlit sign
shall be seventy-five (75) foot-candles.


6.8                   Hours of Operation: Business/Commercial Signage shall remain
lighted from the earlier of 6: 30 PM, or one hour before sunset, until 1:00AM;
seven (7) days per week.


6.9                   Compliance: Business/Commercial Signage shall fully comply
with the requirements of this Section 6 by ten (10) months after Substantial Completion
Date and thereafter throughout the term of the Lease.


7.0                    Tower
Signage


No signage is permitted on the exterior of the building above 100 feet
above grade. A signage on the rooftop of the building will be approved at
Landlord’s sole discretion so long as it is designed by Design Architect, it is
to announce the New York Times only, it is designed as an integral part of
architecture, it is abstract in design and subtle in appearance, it is not
illuminated from within, it will not diminish the visual quality of the screens
and the gradual dematerialization of the building as it rises above the roof
garden and it will not be more prominent than the building itself on the
skyline.


8.0                    Additional
Design Requirements   [NYT, FC-R]


8.1                   Electrical
power and wiring shall be provided and maintained in amounts and locations
sufficient to illuminate all signs to illumination levels required herein.


8.2                   The
amounts and specification of illumination sources (e.g., neon tubes, bulbs,
etc.) of a sign shall be sufficient to provide the illumination levels required
herein.


8.3                   The
entire sign, its illumination and its entire commercial message shall be
visible and clearly legible by an observer at street level at a reasonable
distance from the sign wherever the view of the sign is not obstructed by
another building.


8.4                   The
required minimum average illumination level shall not be achieved by
concentrating the source of light in a small number of lights far in excess of
the required average illumination level, but by an arrangement of lights that
conveys a clear pattern or design and is spread across the entire area of the
sign.



 9
 






 



8.5                   Tenant
shall construct and install required signage so that the signs comply with the
requirements herein.


8.6                   The
sign shall include at least two (2) distinct colors, one of which may be black,
provided that the background of the sign shall be counted as one (1) color.


8.7                   For
animated signs or portions of signs, the required illumination level shall be met
for a significant part of the full animation sequence.


8.8                   Tenant
shall maintain the sign and replace lights and other elements promptly in order
to ensure ongoing compliance with the requirements herein.


9.0                    Measurement
of Illumination    [NYT, FC-R]


9.1                   Non-Floodlight Signs: The illumination level of each
non-Floodlit sign shall be measured by use of a Light Unit Times Square
(“LUTS”) meter. The LUTS meter is comprised of a Minolta or mutually agreed
upon equivalent illuminance meter attached to a thirty-five (35mm) millimeter
reflex camera body or mutually agreed upon equivalent reflex sighting system
and fitted with a lens of appropriate focal length in accordance with Appendix
B, Diagram A attached hereto and made a part hereof. Landlord and Tenant may
mutually agree to use an equivalent illuminance meter and reflex lighting
system.


Prior to use, the LUTS meter shall be calibrated
against a reference standard described in Appendix B, Diagram B attached hereto
and made a part hereof. Alternative measuring equipment may be employed
provided such equipment yields an equivalent average measurement when
referenced to the standard described above.


For each non-Floodlit sign with area in excess of 200
square feet, a full-scale mock-up of a representative portion of the sign,
having the same components and characteristics of illumination as the sign to
be installed (including, but not limited to, density, type and proportion of
lamps and colors, background material, operating voltages and transformer
current ratings), shall be constructed. The illumination level of such mock-up
shall comply with the illumination level specified in this Exhibit E 4.
Provided that the sign actually installed contains all of the components and
characteristics of illumination utilized in the mock-up in the same proportion
to each other as was present in the mock-up and conforms to the Final Plans (as
referred to in Section 10.0 herein) approved by Landlord, such sign shall be
deemed to be in compliance with the illumination level requirements set forth
in this Exhibit E 4.


Tenant, at its option, may construct a mock-up of any
non-Floodlit Sign with area less than two hundred (200) square feet. Provided
that such mock-up and the sign actually installed satisfy all of the
requirements of the previous paragraph, such sign shall be deemed to be in
compliance with the illumination



 10
 






 



level requirements set forth in this Exhibit E 4. In
the event that Tenant does not elect to construct a mock-up of any non-Floodlit
sign with areas less than two hundred (200) square feet, the illumination level
of such sign shall be measured after such sign is installed on the building and
shall comply with the illumination levels specified in this Exhibit E 4.


Landlord shall measure the illumination level of each
mock-up of a sign, or in the case of a sign for which a mock-up is not
constructed, the illumination level of the sign itself, using the LUTS meter.
The LUTS meter shall be pointed at the mockup of the sign or the sign itself,
as the case may be, so that the entire mock-up or sign completely fills the
viewing frame of the meter. The angle from which the illumination level of the
mock-up is measured shall be similar as reasonably practicable to that from
which the sign will be viewed by an observer at street level at a point
directly in front of the sign sixty (60) or more feet away from the building
line. If, because the shape of the mock-up or sign, the entire mock-up or sign,
as the case may be, cannot be viewed within the viewing frame, readings may be
taken of discrete portions of the mock-up or sign separately, provided,
however, that no more of the mock-up or sign than is absolutely necessary to
measure the entire mock-up or sign may be included in more than one such
reading. Readings of portions of a mock-up or sign shall be averaged to obtain
the average illumination level of the entire mock-up or sign.


All measurements of the illumination level of a
mock-up shall be taken in a dark room or other lightless environment. All
measurements of the illumination level of a mock-up or sign shall be taken in
an environment with an ambient temperature of seventy-five (75) degrees
Fahrenheit (plus or minus three (3) degrees).


In the event that a sign is animated, in whole or in
part, the reading of the mockup or sign shall be taken at the brightest
interval in the animation sequence during which a reading may be taken.


9.2                   Floodlit Signs: In case of each Floodlit sign with area in
excess of two hundred (200) square feet, Tenant shall submit with Final Plans a
photometric evaluation with sufficient lighting data to indicate that the
required level of illumination will be achieved. Provided that the sign
installed conforms to the approved Final Plans, such sign shall be deemed to be
in compliance with the illumination requirements set forth in this Exhibit E 4.


10.0              Review of Plans      [NYT, FC-R]


Tenant Display, Retail Signage,
Marquees and Vitrines


Tenant shall submit preliminary signage and lighting plans
(“Preliminary Plans”) which shall include a tabulation showing allocation of
the Retail Signage requirements to NYT Component and to the retail portion of
FC Component, as defined in the Lease. The



 11
 






 



submission shall also consist of an elevation showing the location of
the proposed signs and the Signage Techniques and colors proposed to be used
and any other pertinent information available to Tenant at the time of
submission. Preliminary plans shall be submitted no later than forty five (45)
days prior to commencement of above grade construction. Landlord shall review
such Preliminary Plans for compliance with the requirements of this Exhibit
within twenty (20) business days of submission thereof.


Final signage and lighting plans (“Final Plans”) shall be submitted not
later than sixty (60) days prior to commencement of installation of signs. No
signs maybe installed prior to Landlords approval of such Final Plans. Final
Plans shall be submitted in sufficient detail for Landlord to review for
compliance with the requirements herein. Landlord shall review the Final Plans
within twenty (20) business days after the date of submission thereof by
Tenant, if such submission is for no more than one (1) Store. In the event that
Tenant submits Final Plans for another store within ten (10) business days of
the proceeding submission, the review time period shall be increased by ten
(10) business days for each additional submission.


In the event Tenant is required to resubmit Final Plans to Landlord
because additional information is required, the above stated review periods
stated in the preceding paragraph shall remain as stated, except business days
shall be calendar days.


If Tenant desires to modify the approved Final Plans, Tenant shall
submit the proposed modifications for Landlord’s review. If the proposed
modifications are major, Landlord shall review such modifications in accordance
with the timing set forth in the second paragraph. If the proposed revisions
are minor, Landlord shall review such modifications in accordance with the
timing set forth in the third paragraph. With regard to all submissions of modifications,
Landlord shall not disapprove any matter previously submitted and approved,
except to the extent the proposed modification affects any matter so approved.


Business and Commercial Signage


Tenant shall prepare preliminary signage and lighting plans and the
specifications (“Preliminary Signage and Lighting Plans” which shall consist of
a diagram showing area and approximate location of the sign and any other
pertinent information available to Tenant at the time of submission) and shall
submit to Landlord. Landlord shall review such Preliminary Signage and Lighting
Plans for compliance with the requirements of this Exhibit within twenty (20)
business days of submission thereof.


Tenant shall prepare final signage and lighting plans and
specifications (“Final Signage and Lighting Plans”), including working drawings
of the sign proposed to be installed. If the proposed Signage Technique is not
on the permitted list of techniques attached as Appendix A, a full scale
mock-up of the representative portion of the signage shall be presented along
with Final Signage and Lighting Plans for Landlord review and approval. The
mock-up shall accurately represent the proposed colors, finishes and lighting
techniques of the Sign. The Final Signage and Lighting Plans, including the
working drawings and evidence in sufficient detail that Landlord shall be able
to determine compliance with the required levels of



 12
 






 



brightness, shall be submitted to Landlord as soon as reasonable
practicable, but in no event less than sixty (60) days prior to the planned
installation of the sign to which they relate. Landlord shall review such Final
Signage and Lighting Plans in order to determine whether the Final Signage and
Lighting Plans comply with this Exhibit within thirty (30) business days of the
date of submission thereof.


In the event Tenant is required to resubmit Preliminary or Final
Lighting and Signage plans to Landlord because additional information is
required, the review period for such submissions shall be fifteen (15) business
days.


If Tenant desires to modify either the approved Preliminary Signage and
Lighting plans and specifications or the approved Final Signage and Lighting
Plans and specifications after they have been approved by Landlord, Tenant
shall submit the proposed modifications and Landlord shall review such
modifications within twenty -five (25) business days if the proposed
modifications are major and fifteen (15) business days of the date of
submission thereof if the proposed modifications are minor. With regard to all
submissions of modifications, Landlord shall not disapprove any matter
previously submitted and approved, except to the extent that the proposed
modification affects any matter so approved.


11.0              Alternative
Design     [NYT, FC-R]


Tenant may submit alternative proposals for the
Display and Signage program and the Landlord in its sole discretion may alter
the requirements if the alternative proposal meets the Purpose, of the signage
requirements contained herein and creates the same level of visual impact.
Final plans for the alternative proposal shall be sufficiently detailed to
enable review of the proposal for compliance with the requirements of this
Exhibit E 4. Time frame for review shall be the same as described in Section
10.0.



 13
 






 



 


Appendix A: Signage
Techniques


Purpose:
The purpose of the following list is to provide a palette of allowable Signage
Techniques that can be consulted for the purpose of creating an appropriate
variety of techniques among the site’s signage types. Other Signage Techniques
may be used with the approval of the Landlord.


List of Signage
Techniques:


A.                      Opaque panel
sign, front-lighted (a Billboard).


B.                        A panel
billboard, front-lighted and cut-out to create a silhouette of a figural shape,
such as a person or a cup of coffee. At least 25% of the sign perimeter shall
be used to define the figural shape.


C.                        Opaque
free-standing three-dimensional letters, illuminated from within.


D.                       Opaque
free-standing three-dimensional letters, back-lighted to create a silhouette
effect.


E.                         Painted
metal with bas-relief letters or symbols, front-lighted.


F.                         Translucent
three-dimensional letter, back-lighted.


G.                        Translucent
glass, plexiglass or flex face panel back-lighted.


H.                       Neon
mounted on a panel or open-work structure.


I.                            Neon
set into metal box letters or symbols.


J.                           Letters
or symbols and boarders defined by incandescent light bulbs, such as chase
lights.


K.                       LED Panels.


L.                         Television.


M.                    Jumbotrons or
Diamond vision.


N.                       Lenticular
signs.


O.                       Tri-system
signs.


P.                         Three-Dimensional
Signs: Direct source lighting, flood lighting or back lit.


The following Signage
Techniques shall not be counted towards meeting the Minimum Area and



 14
 






 



Signage Technique
requirements:


1.                          More
than one rectangular back-lit flex-face with border of a single row of chase lights

or neon.


2.                          Banners.


3.                          Letters
placed directly over the Storefront.


Strobe Lights or lights
that create the same visual effect as strobe lights are prohibited on the
entire site.



 15











































 












 



 





 









 



 


EXHIBIT E-5


USE
AND OPERATING PROGRAM (§ 1.1(a)(Ixx)(E))















 


Site 8S


December 6, 2001


Exhibit E 5 

Use and Operating Program


KEY:
The following labels, where they appear in this document have meanings listed
below


	
   [NYT,
  FC-R] –

  	
   

  	
  From
  and after the Lease Assignment Date, this provision shall not be part of the
  DUO incorporated into the “FC Office” Severance Sublease; provided, however,
  that in the event it is determined that this provision has applicability to
  Tenant’s obligations in respect of the Property after the Lease Assignment
  Date, the provision shall be once again deemed to be part of the indicated
  DUO.

  



 


	
  [NYT,
  FC-R]

  	
   

  	
  Premises

  	
   

  	
  Hours of
  Operation

  	
   

  	
  Permitted
  Use

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum 3,500 square feet at 

  	
   

  	
  open until 11:00pm

  	
   

  	
  Antique stores*

  
	
   

  	
   

  	
  corner of 41st Street with a 

  	
   

  	
   

  	
   

  	
  Appliance, repair shops*

  
	
   

  	
   

  	
  minimum 80’ frontage along 41st 

  	
   

  	
   

  	
   

  	
  Appliances, sales*

  
	
   

  	
   

  	
  Street and a minimum 36’ of 

  	
   

  	
   

  	
   

  	
  Art Galleries, commercial

  
	
   

  	
   

  	
  frontage along 8th Avenue.

  	
   

  	
   

  	
   

  	
  Art Galleries, non-commercial

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Art metal craft shops *

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Art needle work *

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Art, Scientific and education exhibition

  
	
   

  	
   

  	
  Store located at the Corner of 40th Street and 8th Avenue.

  	
   

  	
  open until 8:00pm

  	
   

  	
  Artist supply stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Athletic good stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Auditoriums (allowed so long as it is in accordance with the approved
  Schematic Drawings)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Automobile Rental establishments*

  
	
   

  	
   

  	
  All other premises on 8S.

  	
   

  	
  open until 6:00pm

  	
   

  	
  Bakeries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Banks, but no more than 15’ frontage*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Art, Scientific and education exhibition

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Banquet halls**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Barbershops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Beauty parlors*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Bicycle stores, rental or repair*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Blueprinting establishments**

  



 



 1
 






 



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Bookstores or card stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Bowling alleys

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Cabarets

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Candy stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Carpet, rug, linoleum or other floor covering stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Catering establishments**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Cigar stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Clock or watch stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Clock or watch repair shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Clothing rental establishments*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Clothing stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Clubs, non-commercial**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Coin stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Comedy clubs

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Concert Halls

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Costume rental establishments*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Dance Halls, public

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Delicatessen stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Dressmaking shops, custom

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Drug Stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Dry Cleaning establishments*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Dry Goods or fabric stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Eating or drinking establishments, where there is entertainment or
  dancing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Eating or drinking establishments with entertainment but not dancing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Eating or drinking places

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Electronic stores (including video and computer stores)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Fishing tackle or equipment, stores or rental establishments*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Florist Shops

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Food stores, including supermarkets, grocery stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Furniture stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Furrier shops, custom*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Gift shops

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Gymnasiums**

  



 



 2
 






 



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Hair products for headwear*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Hardware stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Health centers**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Historical exhibits

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Household appliance repair shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Ice cream stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Institutions, philanthropic or non-profit*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Interactive amusements centers

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Interactive theme exhibitions

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Interior decorating establishments**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Jazz and other contemporary music clubs

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Jewelry shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Leather goods or Luggage stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Libraries**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Locksmith shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Luggage stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Medical offices or group medical centers**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Meeting halls**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Millinery shops

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Motion picture production shows

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Motion picture production studios**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Music stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Musical Instrument repair*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  News stands

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Office or business machine stores, sales or rental*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Office Supply **

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Optician or optometrist establishment*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Orthopedic stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Performance studios

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Pet Stops

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Photographic supply stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Photostatting establishments**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Physical culture or health establishments**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Picture framing stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Pool o Billiard halls

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Printing establishments**

  



 



 3
 






 



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Radio appliance repair*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Record stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Recording studios

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Recreation centers, non-commercial**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Rehearsal studios

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Shoe stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Shoe repair shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sign painting shops*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Skating rinks, indoor

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sporting goods stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Stamp stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Stationary stores*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State-of-the-Art media shows

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Studios, music, dancing or theatrical

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Theater

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Ticket sales

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Tobacco stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Tourist or educationally oriented multi-media events

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Tour operator

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Toy store

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Trade or other schools for adults**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Travel bureau

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Travel expositions**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Typewriter or other small business machine repair stores**

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Variety stores

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Wholesale establishments*

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Wholesale offices or showrooms*

  



 



 4
 






 



 


[NYT, FC-R]  General Requirements 


This exhibit applies only to stores that are located
around the perimeter of the New Building. To the extent a use is internal to
the New Building and not visible from the sidewalk any use allowable under the
Legal Requirements shall be permitted and such uses are exempt from the above
referenced hours of operations.


This exhibit shall be in effect until the 11 year
anniversary of the Substantial Completion Date.


There shall be a minimum of six (6) stores on Site 8S,
including the NYT retail and SPU lobby so long as it has a separate entrance
from 41st Street.


Stores are required to be open for business seven days
a week, 365 days a year except that such businesses may close for up to
fourteen (14) Federal, State, Local or religious holidays. Commercially
reasonable downtime is permitted for re-leasing stores.


Uses marked with an asterisk (*) are allowed only on
40th and 41st Streets.


Uses marked with a double asterisk (**) are allowed
only on floors other than the ground floor. The total ground floor frontage for
each of these uses may not exceed more than twenty (20) feet.


Any stores located on the perimeter of the new
building shall have primary access from the adjacent sidewalk.



 5
 






 



 


[NYT, FC-R]  Schedule for opening of stores


By the date that the New York Times obtains a Temporary Certificate of
Occupancy for its space in the office tower or 10 months after Substantial
Completion, whichever is later, (“Initial Date”), stores fronting 8th Avenue and the recessed building corners on 8th Avenue: shall: (1) be either open for
business, or (2) have their windows treated as stated in paragraph A below. If
the latter of the two options is selected, such stores shall open for business
no later than fifteen (15) months from Substantial Completion Date regardless
of the Initial Date. In the event that a sub-lease is signed for a retail space
and construction of the interior space is scheduled to commence on or before
thirty (30) days after the Initial Date, the dressing up of the windows as
specified in paragraph A is not required. In any event such store shall be open
for business no later than fifteen (15) months from Substantial Completion
Date.


At least one store on 41st Street shall open for business no later than
15 months from Substantial Completion Date and all other stores shall open for
business no later than 21 months from Substantial Completion Date.


If there is only one Store on 40th Street, such store shall open for business by
21 months from Substantial Completion Date. If there are two or more stores on
40th Street at least one store shall open for
business no later than 15 months from Substantial Completion Date and all other
stores shall open for business no later than 21 months from Substantial
Completion Date.


Notwithstanding the foregoing a maximum of 15% of retail space located
on 40th or 41st Street east of the side street lobbies may
open for business later than 21 months from Substantial Completion Date so long
as at least one store on each street is open for business no later than 15
months from Substantial Completion Date.


Paragraph
A: Decals shall
be placed behind each storefront window to prevent the views of the interior
unfinished spaces. The decals shall cover the entire glass surface of each
window, from sill to the main mullion/awning support and between the adjacent
vertical mullions. The decals shall be front lit by light fixtures installed in
the arcade or be back lit from within the store. The decals shall remain lit
from 6:30pm until 1:00am each day.



 6














 


EXHIBIT E-6


ARCHITECTURAL
REQUIREMENTS (§ 1.1(a)(Ixx)(F))









 



 


	
   

  	
  Site 8S: Exhibit E 6

  Architectural Requirements

  December 6, 2001

  



KEY: The
following labels, where they appear in this document, have their meanings
listed below.


	
   

  	
  [NYT]

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into either
  the “FC Retail” or the “FC Office” Severance Sublease; provided, however,
  that in the event it is determined that this provision has applicability to
  Tenant’s obligations in respect of the Property after the Lease Assignment
  Date, the provision shall be once again deemed to be part of the indicated
  DUO.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [FC-R]

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into either
  the “FC Office” or the “NYT” Severance Sublease; provided, however, that in
  the event it is determined that this provision has applicability to Tenant’s
  obligations in respect of the Property after the Lease Assignment Date, the
  provision shall be once again deemed to be part of the indicated DUO.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [NYT, FC-O]

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into the “FC
  Retail” Severance Sublease; provided, however, that in the event it is determined
  that this provision has applicability to Tenant’s obligations in respect of
  the Property after the Lease Assignment Date, the provision shall be once
  again deemed to be part of the indicated DUO.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [NYT, FC-R]

  	
   

  	
  From and after the Lease Assignment
  Date, this provision shall not be part of the DUO incorporated into the “FC
  Office” Serverance Sublease; provided, however, that in the event it is
  determined that this provision has applicability to Tenant’s obligations in
  respect of the Property after the Lease Assignment Date, the provision shall
  be once again deemed to be part of the indicated DUO.

  



This Exhibit is a part of
the Design, Use and Operation Requirements (“DUO”). Unless otherwise specified,
the requirements set forth in this Exhibit are in addition to the requirements
set forth in the other Exhibits that comprise DUO. In no event shall
satisfaction of the requirements herein be deemed to be satisfaction of the
requirements of any of the other Exhibits that comprise DUO.


1.0                  Definitions


“Façade” shall mean
all parts of a building facing the adjacent streets or visible to pedestrians
from 40th and 41st Streets and 8th Avenue, including all windows, but excluding
signs and Storefronts.















 


“Fenestration”
shall mean the design and placement of windows, their frames, and their
mullions.


“Gross Floor Area”
shall mean all areas within outside surface of exterior walls on all floors at
grade and above including, without limitation, mechanical space as more fully
described in Section 3.3 herein, floor cut outs for ducts, interior partition
walls and loading areas. Since the new building will consist of a double
curtain wall i.e., an interior glass wall and an exterior screen wall, “exterior
walls” for purposes of this definition shall mean inner glass wall thereof so
long as there is no usable floor area between the two walls.


“Mullion” shall
mean the opaque strip that supports and/or divides adjoining panes of glass.


“Sill” shall mean
the horizontal support at the bottom of the window.


“Store” shall mean
the retail activity in each demised space, including the New York Times (“NYT”)
retail space, NYT gallery space if located at street level and the lobby to the
NYT auditorium located on 41st Street and excluding building lobbies and the
NYT auditorium.


“Storefront” shall
mean the walls, frames, glass, and doors that enclose the Store and that occur
between grade and the ceiling of the Store at minimum twenty (20) feet above
the main lobby finished floor 0’-0”.


2.0                  Design Goals


2.1                   The
building shall create an icon for New York City and have a memorable presence
on the skyline.


2.2                   The
building design shall be derived from a special combination of aesthetics and
technology.


2.3                   The
building shall reflect the fact that New York City, as well as the New York
Times, are not provincial, but rather international, forward looking and
rapidly evolving.


2.4                   The
building shall serve as the western anchor of the 42nd Street Development Project.


2.5                   The
building shall create a unique environment at the street level that is active,
open and welcoming to the public.


2.6                   The
building shall complement the scale and character of developments existing and
planned along 8th Avenue and the mid-blocks surrounding the
site.



 2
 






 



 


2.7                   One
way for this building to distinguish itself is through a special curtain wall
system. However, if a special curtain wall system is not used then an
innovative and compelling design shall be achieved through other means.


2.8                   If
the approach is to create a special building largely through the design of the
curtain wall the following shall apply:


2.8a              An
innovative curtain wall design shall be used that is different and distinctive
from, and that develops a new architectural aesthetic for, office buildings in
New York City.


2.8b             The
building is to break with the past and recent trends in New York City tower
architecture. The following list enumerates examples of New York City buildings
whose curtain wall systems have broken with past trends. The examples are not
meant to suggest that the subject building is required to resemble these
buildings or that the subject building is required to be as historically
important as the buildings: the Seagram building used a simple glass and steel
skin punctuated by decorative vertical I — beams to express the steel structure
of the building, thereby creating a new aesthetic for New York City in the 1950’s.
Later, the Ford Foundation building similarly used a façade aesthetic never
used before in New York City through its use of Cor-ten steel that is left to
rust naturally.


3.0                    Density and
Use


3.1                   Purpose:


The purpose of the requirements of this section is: to
make full use of the development potential of the site; to ensure a commercial
development that is complementary with the character of the area as the retail,
entertainment and media center of the City recognizing that this site is on the
southern end of the 42nd Street Project one block removed from 42nd Street; to enhance the daytime and nighttime
lively street activity characteristics of the area; and to strengthen the
commercial potential of the rest of the Project area.


3.2                   Applicability:


The requirements of this section apply to all floor
space within the development.


3.3                   Permitted Floor Area:


·       Gross Floor Area:
         1,380,000 square feet maximum(1)


·       Street Level Retail: [NYT, FC-R]






(1)                     Including
up to 10,000 square feet of occupiable space on the 53rd/Roof Garden floor. Not including a) the
garden located at grade so long as it has no roof, b) up to 60,000 square feet
of mechanical space located in the building between grade and the 51st floor (however, the amount of mechanical space
deducted shall be the amount of mechanical space actually included in the
building between grade and 51st floor, such amount to never exceed 60,000
square feet), c) mechanical space located on 52nd floor and its mezzanine, such floors not to be
serviced by passenger elevators and no more than one toilet on each such floors
and, d) Mechanical space located above the 53rd Roof garden floor.



 3
 






 



 


minimum 21,300 to 24,000 square feet(2)


·                             Auditorium:
[NYT]

approximately 350 seats


·                             Car
Parking:

10 spaces maximum


·                             Special
Purpose Use at grade: (“SPU”) [NYT]

13,300 to 20,000 square feet approximately(3)


3.4                   Permitted Uses:


Office, newsrooms, retail as more particularly
described in Exhibit E 5, Use and Operating Program, auditorium and gallery
space, subway entrance and building services, including parking.


3.5                   Office and Newsrooms: [NYT,
FC-O]


Office and newsrooms shall not be located on the first
floor so that retail use can be maximized at street level. Office and newsrooms
are permitted on second floor and above so long as signage can be provided as
required by Exhibit E 4, Display and Signage.


3.6                   Retail: [NYT, FC-R]


Retail use shall conform to Exhibit E 5, Use and
Operating Program. Retail frontage at street level shall be maximized to
enliven 41st street and maintain retail continuity along
8th Avenue and 40th Street. There shall be six hundred and twenty
(620) to six hundred and ninety five (695) feet of street level retail frontage
including the NYT retail and including a minimum of one hundred six (106) feet
along 8th Avenue.


The number of retail establishments shall conform to
Exhibit E 5, Use and Operating Program. However, it is encouraged that the
number of retail establishments be more than the minimum required by Exhibit E
5, so that there would be a larger variety of retail uses and a greater level
of pedestrian activity along the entire street frontage.


3.7                   Building Lobbies:


There shall be no more than
one (1) lobby frontage per street. Lobby frontage on 40th and 41st Streets shall be fifty (50) feet maximum.
Lobby frontage on 8th Avenue shall be seventy (70) to maximum
eighty (80) feet. In no event shall there be more than three lobbies and the
total frontage exceed one hundred seventy-seven (177) feet. The interiors of
the lobbies shall be well lit. The visibility of the interior spaces shall be
maximized from the street level and the interior spaces shall be designed to
appear lively and inviting as more specifically set forth in Section 7.5
herein. If Tenant chooses to have retail kiosks/spaces in the building






(2)                     In
no event shall there be less than 21,300 square feet of street level retail
space not including retail kiosks/spaces permitted in the building lobby. Includes
NYT retail located along 41st Street and NYT gallery if located at street
level. Does not include building lobbies, NYT auditorium and it’s support
spaces such as lobby, coat check, toilets and backstage spaces (such as green
room, dressing room, control room, etc).


(3)                     Includes NYT
retail, auditorium, auditorium lobby and support spaces such as toilets,
backstage spaces, circulation space, etc. Includes gallery space, which may be
located below grade. Total SPU area including below grade gallery space shall
be not less than 20,000 square feet.



 4
 






 



 


lobby, the total number and area of retail
kiosks/spaces shall be in accordance with the Lease (i.e., 3 units, total area
600 square feet). Design Architect shall select the location and design the
retail kiosks/spaces. Design Architect shall also prepare design guidelines for
retail kiosk/spaces to allow prospective tenant to modify the Design Architect’s
design for functional and operational purposes. Such modifications shall be
reviewed by Production Architect to evaluate compliance with the design guidelines. Production
Architect shall certify to Landlord that the modified design complies with the
design guidelines. Such certification shall be submitted with the modified
design for Landlord to verify the certification. The subject retail kiosk/space
shall not be constructed until Landlord has accepted in writing such
certification. Design of the retail kiosks/spaces and the design guidelines
prepared by Design Architect shall be submitted with Final Plans as required by
Section 8.0 herein. The design guidelines shall include drawings supplemented
with written description of design standards addressing transparency,
dimensions, lighting, materials and finishes requirements.


3.8                   Subway Entrance:


If the required subway
entrance is provided within the new building, the entrance may be located along
8th Avenue or 40th Street
but not at the 8th Avenue
and 40th Street building corner to ensure that the
comer has a retail use. If the subway entrance is not located within the
building it shall be located within the site at the 40thnd Street and 8th Avenue corner. The design of the subway
entrance shall be subject to the review and approval of the New York City
Transit Authority.


3.9                   Building Service and
Parking:


The building shall be
serviced by off-street loading docks. The loading docks may be located at
street level, however, all other building services not functionally required to
be at street level as well as parking shall be located in the cellar to free up
ground level space for retail use. The total street level frontage of building
service on any street shall be forty (40) feet maximum. No building service may
front on 8th Avenue.


3.10             Auditorium: [NYT]


The auditorium may be
located at grade but it may not front on a street so that retail frontage along
the street is maximized. A lobby directly accessible from 41st Street is permissible and shall
not count as one of the lobbies described in Section 3.7 herein. The maximum
width of such lobby shall be twenty (20) feet. In the event that the lobby
frontage is greater than twenty (20) feet such frontage shall only be approved
so long as retail frontage is provided as required per Section 3.6 and the
lobby Façade and interior are designed in accordance with Section 6.3c herein.
However, in no event shall lobby frontage be greater than twenty-five (25)
feet.



 5
 






 



 


3.11             Mechanical Spaces and Vents:


No mechanical spaces and
vents are permitted along the building exterior unless such mechanical spaces
and vents are designed in accordance with Section 7.5 herein. Vents on
Storefronts shall be permitted only if they are designed in accordance with the
requirements in Section 6.0, Storefront Design. 52nd floor and its mezzanine shall be used to house
building mechanicals only. No other use is permitted on such floors.


4.0                              
Access:


4.1                   Purpose:


The purpose of the
requirements in this section is to ensure that 41st Street is enlivened with street level activity and that 40th Street and 8th Avenue remain lively through, among other
things, minimizing the amount of frontage given over to building services and
lobbies.


4.2                   Applicability:


The requirements of this
section apply to street level uses within the development.


4.3                   Pedestrian Access:


Retail space including NYT retail along 41st Street and NYT gallery space if located at
street level shall have principal access directly from the adjacent sidewalk.
Retail spaces fronting on the recessed building corners at 40th Street and 8th Avenue and 41st Street and 8th Avenue shall be directly accessible from the
recessed corners, except that in the event that there are two (2) retail spaces
fronting on a recessed corner, entrance of the second retail space may front on
8th Avenue. Access to each building lobby shall
also be provided directly from the adjacent sidewalk. Subway entrance if
provided within the new building shall be directly accessible from 40th Street or 8th Avenue.


4.4                   Vehicular Access:


Vehicular access to loading
docks and parking may be located on 40th and/or 41st Streets.
The total length of curb cut on any street shall be forty (40) feet maximum. In
no event shall curb cuts be permitted on 8th Avenue.


5.0                               Bulk
and Massing


5.1                   Purpose:


The purpose of the
requirements of this section is: to create a slender, memorable and iconic
tower, the height of which is evident from street level; to preserve the
convention of taller avenue buildings and lower rise mid-block buildings, the
height of the tower shall be located closer to 8th Avenue than to mid-block; to preserve the
openness on 8th Avenue
between 40th and 41st Street; to cause the building to
relate to the scale and massing of recent and planned developments



 6
 






 



 


along 8th Avenue and leave sufficient distance between
adjacent towers to the east, so as not to needlessly interrupt views; and to
ensure a lively pedestrian experience and a sense of safety through avoidance
of undefined sidewalk spaces that encourage loitering.


5.2                   Applicability:


The requirements of this section apply to all new
construction on the site.


5.3                   Massing:


In keeping with the New York City tradition of
locating high rise developments along the avenues, which are generally wider
than the side streets, and low to mid-rise developments along the side streets,
the massing of the new building shall be organized such that the tower (the “Tower”)
is located along 8th Avenue with its longitudinal axis oriented in
the North-South direction and a mid-rise structure (the “Base”) is located in
the mid-block, east of the Tower.


5.4                   Setbacks:


In order to increase pedestrian circulation space and
create a special environment that is open, attractive, inviting and lively the
lower floors of the building shall be setback as stated herein and illustrated
in Appendix A: Heights and Setbacks.


8th Avenue Setbacks —
The first six (6) floors of the Tower with a total height of approximately
eighty (80) feet shall be setback approximately seventeen (17) feet from the 8th Avenue property line.


Additionally, in order to create a slender,
symmetrical and sculptural Tower, all four corners of the Tower shall be
notched approximately thirty-eight (38) feet by twenty (20) feet as shown in
Appendix A. Maximum dimensions of the Tower shall be approximately one hundred
fifty-seven (157) feet in the east-west direction and approximately one hundred
ninety four (194) feet in the north — south direction. Floor size in the Tower
shall be approximately twenty-five thousand six hundred-fifty (25,650) square
feet as measured from the outside surface of the enclosing glass curtain wall
and in no event greater than twenty-six thousand (26,000) square feet.


Overlaying screen walls and supporting structure may
encroach all setbacks stated above and shall not be counted towards the floor
size stated above.


The 5th floor of the Base shall be setback
approximately four (4) feet from the 4th floor along 40th and 41st Streets.
Additional setbacks and notchings shall be provided on the Base to create a
three dimensional structure, comprised of visually distinct building volumes
with varying proportions and rooflines and that are located in different planes
as more fully described in Section 7.3, Base Design and Materials and
illustrated in Appendices A and C.



 7
 






 



 


5.5                   Building Heights


Tower: Maximum
seven hundred sixty (760) feet at the rooftop garden floor; seven hundred
eighty (780) feet including rooftop meeting/conference rooms; and maximum eight
hundred sixty (860) feet including architectural embellishments and excluding
the mast proposed on the roof top.


Base: Approximate
height seventy five (75) feet at the roof of the Base.


Building heights shall be measured from the main lobby
level indicated as 0’-0” on plans.


6.0           Storefront
Design


6.1                   Purpose: [NYT, FC-R]


The purpose of the requirements of this section is: to
ensure that Storefronts maximize transparency and the individuality of each
tenant; to promote a sense of liveliness and security; to create a street
frankly commercial in character as is found on typical New York City commercial
streets; and to create an interesting pedestrian experience through a
combination of distinctive architectural detail and varied articulation since
the Storefront is the vantage point from which most people will experience the
building.


6.2                   Applicability: [NYT, FC-R]


The requirements shall apply to all Storefronts.


6.3                   Design


[FC-R] Storefronts of retail
spaces located at the corners of 8th Avenue and 40th Street and 8th Avenue and 41st Street (“Corner Storefronts”) shall be
designed in accordance with the requirements stated in Section 6.3a, Corner
Storefronts.


[NYT, FC-R]
Storefronts of retail spaces located on 40th or 41st Streets including NYT spaces (“Sidestreet
Storefronts”) shall be designed in accordance with the requirements stated in
Section 6.3b, Sidestreet Storefronts.


[NYT] In the event
that the NYT auditorium lobby frontage along 41st Street is greater than twenty
(20) feet the Façade of the lobby and its interior shall be designed in
accordance with Section 6.3c, SPU Storefront.


6.3a             Corner Storefronts: [FC-R]


The design of Corner Storefronts shall be distinct
from the Side Street Storefronts, building lobbies and other uses fronting on a
street. Corner Storefronts may be designed to be a part of a system used for
the Side Street Storefront so long as there is variety among their designs.
Variety may be achieved through the adjustment of the following: different
number and spacing of vertical mullions; different number and spacing of
horizontal mullions; changes in the sections of



 8
 






 



 


the horizontal and vertical mullions; and above the 10’
level, the addition of different glass finishes and transparencies, which may
include milk glass, frosted fritted or color glass. Building materials and
design elements used on the Tower may also be used on the Corner Storefronts so
long as the Corner Storefronts are specifically detailed to be visually
exciting. Mullions, frames, Sills, and hardware shall be designed to provide
pedestrian scale and a rich and varied visual experience that is three
dimensional and textural. Ample opportunities shall be provided for the
placement of retail signs as required by Exhibit E 4, Display and Signage
Requirements. Doorways and their surrounds shall be articulated to become
visually prominent and distinct from the surrounding Storefront particularly
those fronting the recessed building corners at 8th Avenue and 40th Street and 8th Avenue and 41st Street. Doorways on such corners shall be
designed to provide a strong dimensional presence through a combination of
architectural detailing, awnings, canopies and projecting signage. Maximum Sill
height shall be eighteen (18) inches above the adjacent sidewalk. Each
Storefront area up to ten (10) feet above finish grade shall be a minimum of
seventy percent (70%) untinted,
unmirrored clear glass.


6.3b            Sidestreet Storefronts: [NYT, FC-R]


Sidestreet Storefronts shall be designed so that the
interior of the Store and the building become visually prominent when seen from
the adjoining sidewalks. Thus, the Sidestreet Storefronts shall be
predominantly glass but the quality of materials and the design details of the
various components of the Storefronts shall be custom designed to be in keeping
with the quality and standard of the overall building. Mullions and
fenestration framing must be articulated so as to give the Storefronts a
textural, sculptural quality.


The Fenestration pattern shall be continuous i.e.,
adjacent Storefront windows may not be separated by opaque wall panels on the
same plane. Sills, doorways and door hardware shall be specially designed to complement
the custom Storefront design. Standard Storefronts of generic quality are not
permitted.


Maximum sill height shall be eighteen (18) inches
above the adjacent sidewalk. Each Storefront area shall be a minimum of seventy
percent (70%), untinted, unmirrored clear glass up to a height if twelve (12)
feet above finish grade. Above the twelve (12) feet line the Storefront shall
be a minimum of sixty percent (60%) untinted, unmirrored clear glass.


The ceilings of such Stores shall be minimum twenty
(20) feet high as measured from the main lobby floor at 0’-0”. The ceiling
immediately behind the Storefront shall be recessed and higher than the
surrounding ceiling. Such recesses shall be minimum one (1) foot high and
minimum two (2) feet wide and shall be designed to a standard determined by the
Design Architect. The recessed ceiling shall be lit



 9
 






 



 


in white light and highlighted in a manner that is
significantly brighter than the surrounding surfaces.


6.3c             SPU Storefront: [NYT]


SPU Storefront shall be designed to be distinct from
the Corner Storefronts, Sidestreet Storefronts and the building lobbies. The
design vocabulary and the materials used on the SPU Storefront may be the same
as those used on the other Storefronts however they shall be sufficiently varied
to give it a distinct presence on the street. The composition of the SPU
Storefront i.e. the amount of transparency, the proportions and design of the
windows, surrounding framing, walls and Sill, and doorway shall make it readily
identifiable as an entrance to a public venue. Marquee and Vitrine as defined
and required per Exhibit E4, Display and Signage shall be provided to further
distinguish it along the street. Awnings are not permitted. The design
vocabulary and materials of the SPU lobby may be the same as used in the other
lobbies so long as it is specially detailed to be distinct from the other
building lobbies and it does not read as a mere secondary lobby to the
building.


6.4                   Materials: [NYT, FC-R]


Storefront frames shall be painted or natural finish
steel or aluminum or they may be stained or painted wood. Stone shall not
comprise more than ten percent (10%) of the surface of a Storefront on any
particular Store. Ceramic panels, ceramic tubes, glass and perforated metal
louvers are permitted.


6.5                   Entrance Treatment: [NYT, FC-R]


Doorway recesses shall be set at the minimum allowed
by applicable laws and codes.


6.6                   Security Grilles: [NYT, FC-R]


The only security barrier allowed on any Storefront
shall be an open metal-mesh grille located on the interior of the glass. See
Appendix B for example.


6.7                   Awnings: [NYT, FC-R]


If awnings are used at locations other than those
required by Exhibit E 4, Display and Signage, they shall fully be retractable
and of a light weight material.


6.8                   Mechanical Spaces and Vents: [NYT, FC-R]


No mechanical spaces shall be located along the
street. If louvers and vents are installed along the street they shall be
inconspicuously located, integrated with the design of the Storefront and
visually screened.



 10
 






 



 


7.0                    Façade Treatment:


7.1                   Purpose:


The overall purpose of the requirements of this
section is: to ensure that the design results in a slender, vertical Tower; to
provide a continuously interesting visual experience on all Facades of the
building, i.e., Storefronts, Base, Tower, top of the building, building
entrances, building corners, etc.; and to ensure that all Facades facing the
street, i.e., 8th Avenue, 40th Street and 41st Street, will be treated as important facades
since they will be easily seen by pedestrians.


The purpose of the Façade requirements related to the
Base of the building is:, to create an environment at grade that is open and
welcoming and gives the New York Times a recognizable and inviting profile at
the pedestrian level through the creative use of scale, materials, streetscape
and lighting; to ensure that the Base shall be designed to provide a vibrant
and varied visual experience; to ensure articulation appropriate to the
pedestrian scale; to ensure that transparency at street level, including Storefronts,
is maximized to enhance the sense of activity on the street; to avoid
inadvertent creation of non defensible sidewalk spaces; to connect the interior
public spaces with the exterior of the building; to avoid large wall surfaces
of undifferentiated treatment, i.e., a blank wall or a sheer glass wall; and to
ensure that this location functions as a visual focus and as the south western
gateway to the 42nd Street Development Project.


Taking into account Section 2.7, the purpose of the
Tower facade requirements is: to ensure that the building will reinterpret
traditional New York City curtain wall design; to combine technology and
materials in a new manner with respect to New York City office tower design; to
ensure that the curtain wall shall appear to be light and delicate; to ensure
that the curtain wall shall appear visually interesting through detailing which
casts distinct shadows as well as through the use of materials which capture
the changing light conditions; to ensure that the curtain wall shall appear to “dematerialize”
as the tower rises into the sky; and to ensure that the top of the building
shall have a unique design that is immediately recognizable on the skyline.


7.2                   Applicability:


The requirements apply to all Facades of the new building.
See Appendix C for illustration of Façade treatment requirements.


7.3                   Base Design and Materials:


40th and 41st Street Facades of the Base may be similar in
design. Each Façade shall have a variety of materials and articulation to
create four (4) Segments. (see Appendix C).


Segments 1 and 2 shall be identical and will be
designed to appear like pylons flanking segment 3, the main segment on the
Façade. Thus, Segments 1 and 2 shall be approximately twelve (12) feet wide and
approximately seventy-two (72)



 11
 






 



 


feet in height, to punctuate the roof line. They shall
be solid i.e., have no openings and shall be clad with masonry or ceramic
panels.


Segment 3 shall be multi-layered. The inner Façade
shall be clear or tinted glass. The third and fourth floors shall have an outer
Façade comprised of perforated metal or glass louvers. The outer screen shall
extend beyond the periphery of the glass Façade on those floors on all four
sides by a minimum of four (4) feet to accentuate the layered appearance.


Segment 4 shall be designed to be distinct from
Segments 1, 2 and 3. The Façade of Segment 4 shall be comprised of an inner
wall of glass and masonry or ceramic panels. The glass portion of the inner
Façade shall designed as an oversized central window framed on all four sides
by masonry or ceramic panels. A louvered screen shall be placed in front of the
glass window, however, the screen shall not align with the glass window to
accentuate the layered appearance. The louvers shall be of glass or perforated
metal. Segment 4 Façade shall be accentuated by two (2) freestanding slender
tubular columns, which shall appear to support the roof top mechanical
equipment.


Notwithstanding the foregoing Landlord acknowledges
that the design of the Facades of the Base is being revised which would result
in two (2) segments. Segment 1 and 2 would be eliminated, Segment 3 would be
designed to be similar to the Tower Facades and Segment 4 would be designed to
be similar to the Facades in the notched corners of the Tower. The revisions being
considered are shown in a preliminary drawing “South Elevation” dated October
3, 2001. Landlord further acknowledges that it is in agreement with the
revision being considered. Tenant shall submit drawing showing the revisions
with Design Development Plans for Landlord’s review and approval.


7.4                   Tower Design and Materials: [NYT, FC-O]


The Tower Facades shall be double-layered. The inner
Façades that fully enclose the building shall be in clear or tinted glass. The
outer Facades that provide sun-screening shall be comprised of ceramic tubes
except that such Facades in the notched corners of the Tower may be of glass or
perforated metal louvers.


The ceramic tube screens shall be set apart from the
glass Facades enough to be legible as separate layers when seen from the street
level. The minimum clear distance between the glass Facade and the ceramic
screen shall be between one and two feet. Supporting structural members may
encroach into that spacing. However, all secondary structural elements shall be
thin and web like in appearance to maintain transparency and visual separation
between the glass Facades and the ceramic screens. The periphery of the ceramic
screens shall not align with periphery of the glass Facades to further
accentuate the layered appearance. Thus, the ceramic screens facing north and
south shall extend a minimum of two feet six inches (2’-6”) beyond each side
edge of the glass Façade and the ceramic screens facing east and west shall



 12
 






 



 


be a minimum of two feet six_inches (2’-6”) short of each
side edge of the glass Facade. The bottom edge of the ceramic screen facing
west shall be at elevation thirty-five (35) feet, the bottom edge of the
ceramic screen facing east shall be at elevation eighty-five (85) feet and the
bottom edges of the ceramic screens facing north and south shall be at
elevation seventeen (17) feet. In order to provide a distinctive rooftop, the
top edges of ceramic screens facing east and west shall extend eighty-five (85)
feet above the Roof Garden floor and the ceramic screens facing north and south
shall extend one hundred (100) feet above the Roof Garden floor. All elevations
noted are approximate and as measured from the main lobby floor at 0’-0”. Each
ceramic screen shall be continuous and the tubes generally shall be uniformly
spaced at approximately three one half (3 1¤2) inches center to center except at “openings”
required to provide views of the exterior from the occupied floors. However,
along 8th Avenue the ceramic screen shall have no such
openings below elevation eighty-five (85’) feet to provide a uniform surface
for signage and projections of images and/or lighting. The ceramic tube spacing
above the roof garden floor shall increase to gradually dematerialize the Tower
as the screens rise above the roof garden.


The screens located in front of the glass facades at
the four notches of the Tower shall be comprised of perforated metal or glass
louvers. The periphery of the louvered screens shall also not align with the
periphery of the glass Facades behind as well as the ceramic screens to
accentuate the layered appearance. Thus, the side  edges of the louvered screens shall be a
minimum of one foot six inches (1’-6”) short of the inner and outer edges of
the glass Facades behind. The bottom edges of the louvered screens facing east
and west shall be at elevation twenty-four (24) feet and  the bottom edges of louvered screens facing
north and south shall be at elevation twenty (20) feet. The top edges of the
louvered screens facing north and south shall extend fifty six (56) feet above the Roof
Garden floor and the top edges of louvered screens facing east and west shall
extend seven (7) feet above the Roof Garden floor. All noted elevations are
approximate. The louver spacing shall increase above the  roof garden floor to gradually dematerialize
the Tower as the screens rise above the roof garden.


The ceramic tubes shall be minimum one and one-quarter
(1 1¤4)
inches in diameter, off-white, in color and either be mat or semi-gloss in
finish. Metal louvers may be steel or aluminum, painted and matte or
semi-polished. Glass louvers shall be transparent, frosted or fritted. All
structural members visible shall be painted.


Notwithstanding the foregoing Tenant may propose tubes
composed of another material (i.e., a material other than ceramic) if upon due
diligence research and testing of the ceramic tubes it is determined that the
ceramic tubes are subject to unsafe and unacceptable breakage due to weathering
and/or ongoing maintenance or proves otherwise impractical. If Tenant elects to
propose another material for the tubes, Tenant shall submit to Landlord, for
Landlord’s review, a summary (prepared by the Design Architect) of the due
diligence and the results thereof in respect of both the ceramic tubes and the
tubes composed of the proposed replacement material. The proposal shall be
accompanied with drawings and mock-ups prepared by the Design Architect if
necessary to illustrate the effect of the tubes composed of the proposed
material on the screens and the overall building. Landlord shall approve the
proposed



 13
 






 



 


material for the tubes if the design of the Facades is
in keeping with the requirements of Section 7.1 hereof.


7.5                   Other Design
Requirements:


Building Lobbies:
[NYT, FC-O]


The Facades enclosing the lobbies shall be designed to
maximize visibility of their interiors from the adjoining sidewalks. A minimum
of ninety (90%) percent of the lobby Facades shall be in untinted, unmirrored
clear glass. Front door canopies are required and shall project a minimum of
ten (10) feet from the face of the building. Canopy shall be located with the
column bay directly in front of the doorways and its side edges shall be
minimum two feet six inches (2’-6”) away from the adjacent columns. Canopy may
not extend the entire width of any lobby frontage. Canopies shall be suspended
from the building structure. Columns to support the canopy are not permitted to
encroach on the sidewalk. A minimum of sixty percent (60%) of the roof of the
canopies shall be translucent glass and the balance may be in metal. Lighting
shall be located at the soffit of the canopy to brightly illuminate the
sidewalk at night. Building identification signage is required on the canopy,
however, such signage shall not be counted towards meeting the requirements of Exhibit
E 4, Display and Signage. Signage shall be installed along the front or side
edges of the canopies and shall be comprised of individual three-dimensional
letters. Signage may be front lit, backlit or illuminated from within. Light
box signs are not permitted. The design of all signage is subject to Landlord’s
review and approval.


The lobby interiors shall be designed to appear more
like a public environment than a private corporate space. Thus the interior
spaces shall be designed to be open, inviting and lively. Lobby walls, ceiling
and floors shall be designed to be visually complex and inviting by using
multiple materials. A minimalist, barren environment is not permitted. Lobbies
shall be brightly lit so that interiors are visible day and night. The garden
shall also be lit so that it is visible at nighttime.


Mast: [NYT, FC-O]


Subject to the approval of all local, state and
federal authorities having jurisdiction in this matter, a mast may be located
on the roof of the building. The mast shall be a maximum of four hundred (400)
feet tall measured from the roof garden floor. The mast shall be placed at the
crossing of the north-south and east-west axes of the Tower. The mast shall be
made of carbon fiber or other such material to enable it to bend in the
direction of the wind. The mast shall be visible on the skyline.


Architectural
Lighting: [NYT, FC-O]


The ceramic tube and louver screens on the Tower and
on Segment 3 of the Base shall be flood lit. The light intensity shall
gradually decrease as the Tower rises.



 14
 






 



 


The lighting on the Tower may change colors. The
rooftop of the Tower shall be uniquely lit to mark its presence on the skyline
at nighttime. The Sidewalks within the arcade on 40th Street, 41st street and 8th Avenue and the recessed corners of the Tower
shall be illuminated to ten (10) foot candles measured at the sidewalk level.


Subway Stair
Canopy: [NYT, FC-O]


A curvilinear, floating canopy shall be located above
the 40th Street subway entrance to provide shelter from
rain and snow. The size, design and color of the canopy shall be unique to mark
the subway entrance’s presence on the sidewalk and shall be iconic so as to act
as a visual marker for driver entering the city on 40th street from the Lincoln Tunnel. Lighting shall
be incorporated to illuminate the canopy at nighttime. Alternatively, a
vertical iconic element may be proposed as a visual marker at the corner of 8th Avenue and 40th Street which shall be designed to be
prominently visible day and night from a distance of one thousand (1000) feet.
The icon shall be lit at night.


Retail Signage
Supports: [NYT, FC-R]


All structural systems required for Retail Signage, as
defined and required per Exhibit E 4, Display and Signage shall be designed by
the Design Architect, as defined in the Lease. Structural system for each
category of Retail Signage shall be provided to enable compliance with all
requirements of Exhibit E 4. The structural system for Retail Signs as defined
in Exhibit E 4, shall be installed on the columns that form the arcade on 40th Street, 41st Street and 8th Avenue. The supports shall be located between
fourteen (14) and eighteen (18) feet above grade. The structural system for
Display Window Signs as defined in Exhibit E 4 shall be installed on the
Storefront between eight (8) and ten (10) feet above grade. The structural
system for Awnings, as defined in Exhibit E 4, shall be installed on
Storefronts between ten (10) and twenty (20) feet above grade. The support
system for Awnings shall be designed so that it is fully retractable. See
Appendix D for typical location and design of the structural supports for
Retail Signs, Display Window Signs and Awnings. The structural supports shall
be designed generally in the same vocabulary as the exposed structural members
on the Tower and specifically the supports for the screen walls. Thus, they
shall be thin in profile and web-like in appearance. Connections shall be
specially detailed in keeping with the overall building design.


Mechanical Spaces
and Vents: [NYT, FC-O]


Mechanical floors spaces and intake/exhaust vents
permitted on the Tower floors shall be shielded by the screen walls so that
they are not visible from the street. Rooftop mechanical equipment shall be
setback from the Tower curtain walls and shall either be sufficiently enclosed
to be not visible on the city skyline or be specially designed and located to
become a part of the building’s roof top design



 15
 






 



 


and composition. With the exception of mechanical
equipment located on the roof of Segment 4 of the Base, all mechanical
equipment located on the roof of the Base shall be sufficiently setback from
the Façade or shielded by an architectural screen so that they are not visible
from the street. Particular care must be taken with any mechanical equipment on
the roof of the Base since it will be highly visible from surrounding buildings
and in the case of the equipment on the roof of Segment 4 also from the street.
The equipment must be arranged in an orderly fashion. Miscellaneous vents are
permitted so long as they are inconspicuously located, integrated with the
architecture and visually screened.


8.0                    Review of Plans:


8.1                   Design Development: Design Development
plans shall be submitted no later than sixty (60) days prior of Commencement of
Construction. Design Development Plans shall be submitted in sufficient detail
so that Landlord can review for compliance with the requirements of this
Exhibit E 6, and the approved Schematics. Landlord shall review the Design
Development Plans within twenty (20) business days after the date of submission
thereof by Tenant.


In the event Tenant is required to revise Design
Development Plans or submit additional information, Tenant shall resubmit
Design Development Plans to Landlord and Landlord shall review such
resubmissions within fifteen (15) business days after the date of submission
thereof by Tenant.


If Tenant desires to modify the approved Design
Development plans, Tenant shall submit the proposed modifications and Landlord
shall review such modifications within fifteen (15) business days after the
date of submission thereof by Tenant unless the proposed modifications are
considered major by Landlord at its sole discretion. In such case, Landlord
shall review such modifications within twenty (20) business days after the date
of submission thereof by Tenant.


Design Development Plans, modifications thereto, and
any additional information requested by Landlord shall be submitted to Landlord
in sufficient detail to review compliance with the requirements herein and the
approved Schematics. Any change to previously approved plans shall be clearly
shown on the drawings and explained in accompanying written narrative. In the
event a proposed modification affects any requirements of DUO and is not
clearly explained it shall not be assumed by Tenant that such change is
approved by Landlord even if Landlord does not specifically comment on the
subject modification.


Design Development Plans shall include the following:


1.               Floor plans of all
floors or representative floor plans and building sections indicating spaces,
structure, the location of proposed entrances and lobbies, doors, and windows.



 16














 


2.                          Rendered
exterior elevations, in color, including elevations that show the relationship
of the new building to its surroundings.


3.                          Exterior
elevations noted with materials and floor heights.


4.                          Elevations
and sections with sufficient detail to adequately convey the aesthetics of the
building’s exterior including details of the inner glass wall, exterior
screenwalls and the mast. Elevations shall be accurately drawn to reflect the
details as they are developed. Details shall include but not be limited to each
typical molding and cornice profile, reveal, window and exposed structural
member and connection.


5.                          Storefront,
public areas and building entrance details including details of structural
supports and framing of signage and awnings to be designed by the architect of
the new building.


6.                          Design
and details of the canopies to be placed above the subway entrance and the
building lobbies including lighting and signage.


7.                          Design
and details of the interior of building lobbies and Storefronts.


8.                          Material
samples for all exterior Facades and for the lobbies.


9.                          Color
boards illustrating the building’s actual color palette.


10.                    Diagrammatic
elevational renderings illustrating the exterior lighting scheme.


11.                    Rendering
of the building .as it would be seen looking south from the north west corner
of 8th Avenue and 41st Street and any other renderings Landlord may request to
assist in the review of the design.


12.                    Table
of areas by use by floor. A computer disk with CAD drawings for the building
shall be submitted for independent verification by Landlord of the proposed
floor area in the building.


13.                    A
scale model at 1” = 50’ of the entire building.


14.                    Scale
models at a minimum 1⁄4” – 1’ of façade to illustrate the varying curtain wall
treatments. The scale shall be large enough to depict in accurate scale the
varying mullion patterns and designs including the screening rods and louvers.



 17
 






 



 


15.                    Scale
models at a minimum of 1¤2 ” = 1-0” of each typical bay and a corner
bay of the first two floors of the building illustrating the proposed
Storefront articulation as well as a representative signage solution.


8.3                    Final Plans: Final plans shall be submitted
no later than forty-five (45) days prior to commencement of above grade
construction. Final Plans shall be submitted in sufficient detail so that
Landlord can review for compliance with the requirements of this Exhibit E 6
and the approved Design Development Plans. Landlord shall review the Final
Plans within twenty (20) business days after the date of submission thereof by
Tenant.


In the event Tenant is required to revise Final Plans or submit
additional information, Tenant shall resubmit Final Plans to Landlord and
Landlord shall review such resubmissions within fifteen (15) business days
after the date of submission thereof by Tenant.


If Tenant desires to modify the approved Final Plans, Tenant shall
submit the proposed modifications and Landlord shall review such modifications
within fifteen (15) business days after the date of submission thereof by
Tenant unless the proposed modifications are considered major by Landlord at
its sole discretion. In such case, Landlord shall review such modifications
within twenty (20) business days after the date of submission thereof by
Tenant.


All Final Plans, modifications thereto, and any
additional information shall be submitted to Landlord in sufficient detail to
review compliance with the requirements herein and the approved Design
Development Plans. Any change to the previously approved plans shall be clearly
shown on the drawings and explained in an accompanying written narrative. In
the event a proposed modification affects any requirements of DUO and is not
clearly explained it shall not be assumed by Tenant that such change is
approved by Landlord even if Landlord does not specifically comment on the
subject modification.


Final Plans shall include the following:


1.                         Floor
plans of all floors or representative floor plans and building sections
indicating spaces, structure, the location of proposed entrances and lobbies,
doors, and windows.


2.                         Rendered
exterior elevations, in color.


3.                         Exterior
elevations noted with materials and floor heights.


4.                         Sufficient
details, elevations and sections required to adequately convey the aesthetics
of the building’s exterior including details of the inner glass



 18
 






 



 


wall, exterior screen wall and the mast. Elevations
shall be accurately drawn to reflect the details as they are developed. Details
shall include but not be limited to each typical molding and cornice profiles,
reveals, window and exposed structural member and connection.


5.                         Storefront,
public areas and building entrance details including details of structural
supports and framing of signage and awnings to be designed by the architect of
the new building.


6.                         Design
and details of the canopies or the alternative icon to be placed above the
subway entrance and building lobbies including lighting and signage.


7.                         Design
and details of the interior of building lobbies and Storefronts, including
lighting.


8.                         Table
of areas by use by floor. The table of areas shall be submitted by the
architect and such architect shall certify that the area of the New Building
has been measured in strict accordance with the definition of Square Foot as
defined in Article 1 of the Lease. The certification by the architect shall
include an explanation of all assumptions made in the calculation the table of
areas. A computer disk with CAD drawings shall be submitted for independent
verification by Landlord of the proposed floor area in the building.


9.                         Any
other information required as part of the Design Development Plans, that was
not available at the time of the Design Development Plans submission.


10.                   Design
and Design guidelines of retail kiosks/spaces if any in the building lobbies.


Tenant shall construct a visual full scale mock-ups of
the typical portions of the proposed curtain walls for the Base and the Tower,
for review and approval by Landlord. The scope of the mock-up for the curtain
wall with the ceramic tube screens shall be as shown on the photograph dated
October 23, 2001 (“Mock-up A”). A similar mock-up of the curtain wall with the
louvered screen (“Mock-up B”) fabricated by the curtain wall manufacturer shall
be constructed with materials, finishes and colors that approximate the final
materials as closely as possible. The mock-ups will be used for confirmation of
the visual components of the design, including general paint colors and general
Mullion profiles. Landlord shall review Mock-up A even if Mock-up B is not
ready for review. However, Mock-up B shall be reviewed only if both mock-ups
are seen together. Tenant shall inform Landlord of any deviations from the
approved mock-ups which result from the structural testing process or from
changes proposed by the curtain wall manufacturer. Landlord shall approve such
proposed changes so long as they are recommended by the Design Architect and so
long as the curtain wall shall meet the requirements of Section 7.0. Tenant
hereby acknowledges that it may not order or install the curtain wall unless
and until Landlord has approved the mock-ups for consistency with the approved
design.



 19
 






 



 


9.0                    Compliance:


The entire building shall be in full
compliance with the requirements of this Exhibit E 6, as of the date of
Substantial Completion except that Retail Signage supports as required per
Section 7.5, herein shall be installed by ten (10) months after Substantial
Completion Date. Thereafter the entire building including the Retail Signage
Supports shall be in compliance with this Exhibit E 6 throughout the term of the
Lease.


10.0              Alternative
Design:


Tenant may submit alternative proposals to
the Architectural Requirements and Landlord, in its sole discretion, may alter
the requirements if the alternative proposal meets the Purpose of the
Architectural Requirements contained herein and the principles of the 42nd
Street Now! Plan. Schematics, Design Development Plans and Final Plans for the
alternative proposal shall be sufficiently detailed to enable review of the
proposal for compliance with the requirements of this Exhibit E 6. Time frames
for review shall be the same as described in Section 8.0.



 20














 





 










 



 





 










 



 





 










 






 










 



 





 










 






 










 






 










 






 










 



 


EXHIBIT E-7


SITE
SAFETY PROGRAM (§ 1.1(a)(Ixx)(G))

















 


Site 8S Exhibit E 7

Site Safety Program

October 4, 2001


I.                            PURPOSE


The principles of management
control commonly applied to costs, schedules, quality and productivity are
equally applicable to safety and when applied improve safety performance,
affecting the general public as well as the construction workforce. There are
sound reasons for contractors to reduce the number of accidents that occur on
their project. Research has shown that accidents are controllable by all levels
of construction management. Reductions in the frequency and severity of
accidents have been proven to reduce significantly the costs of doing business.
Thus, there is ample incentive for Tenant to play an important role in
construction safety.


II.                        LEGAL
REQUIREMENTS


As set forth in the Lease,
construction operations shall be conducted in full compliance with all
applicable federal, state and local statutes, laws, rules, regulations and
building code provisions. Where this Program provides stricter requirements
than do such applicable statutes, regulations or building code provisions, this
Program shall control. Where applicable statutes, regulations or building code
provisions are more restrictive than this Program, they shall control.


III.                    SITE SAFETY
PROGRAM


The following sections describe
the specific management and component elements of the Site Safety Program.


Section A
-          SITE SAFETY PROGRAM
MANAGEMENT


The
Tenant or its designated Construction Manager (as defined below) will be
required to develop a safety program (“Safety Program”) covering all
demolition, excavation and construction activities on the site, which details
means to prevent accidents involving the public as well as construction
personnel. Tenant shall submit such Safety Program to Landlord sixty (60) days
prior to the commencement of demolition for Landlord’s review, except that
Tenant may submit Safety Program related to excavation and construction work,
so long as the demolition Safety Program is submitted no later from fifteen
(15) business days prior to the anticipated commencement date of demolition. If
the demolition Safety Program is separately, then Landlord’s timing
requirements for review thereof as stated in this paragraph shall be changed so
that every reference to thirty (30) days shall be shortened to fifteen (15)
business days and every reference to fourteen (14) days shall be shortened to
two (2) business days. The shortened review period shall only apply to Landlord’s
review of the demolition Safety















 


 


Program if the same is
separately submitted and no other timing requirements or standards for review
shall otherwise be changed. Landlord shall have thirty (30) days following
receipt of an initial submission hereunder and fourteen (14) days following
receipt of revisions thereof or receipt of additional information requested by
Landlord in reviewing a proposed Safety Program to approve or reject same.
Landlord’s failure to notify Tenant of its approval or rejection of the
proposed Safety Program within the thirty (30) or fourteen (14) day period (as
the case may be) shall be deemed an approval thereof. If Tenant submits to
Landlord a proposed modification to an approved Safety Program, Landlord’s
review of such proposed modification shall be carried out within fourteen (14)
days of receipt thereof, unless the proposed modification substantially alters
the previously approved Safety Program, in which event, so long as Landlord
notifies Tenant within such fourteen (14) day period that Landlord so regards
the proposed modification, Landlord’s review shall be carried out within thirty
(30) days of receipt of the proposed modification.  Landlord’s failure to notify Tenant of its
determination within the thirty (30) or fourteen (14) day period (as the case
may be) shall be deemed an approval thereof. In the case of any proposed
modification, Landlord may not disapprove any matter previously submitted and
approved or deemed approved, except to the extent that such modification
affects the matter so approved or deemed approved. Landlord shall state its
reasons for rejection of any submissions. In no event shall any construction
commence until the Safety Program has been approved or deemed approved by
Landlord.


As
used herein, the term “Construction Manager” shall refer to Tenant’s
Construction Manager or Tenant’s General Contractor. Tenant or its Construction
Manager is charged with the responsibility of coordinating all of the
subcontractors in an overall accident prevention program. The safety of the
general public and of workers on the site will be the overriding concern of the
safety effort. Tenant or its Construction Manager will designate a qualified
person to act as coordinator of this effort (“Site Safety Coordinator”). This
person will oversee and guide the safety activities of all contractors on the
project. Included in this responsibility are the following:


(1)                    SAFETY
PLANNING & COORDINATION


Project management and field
supervision personnel will require ongoing safety planning involving all
subcontractors. Such planning will include a review of construction methods,
tools, equipment and personnel assigned to the work.


(2)                    SAFETY
INSPECTION RECORD


An inspection and written
report shall be made daily under the direction of the Site Safety Coordinator
to assure that all public, ground level protection is being maintained. Copies
of these reports shall be furnished to Landlord on a weekly basis, the format
indicated on the attached sample (see Attachment A).



 2
 






 



 


(3)                    ACCIDENTS
- REPORTING & INVESTIGATION


Knowledge of any accidents that occur on or adjacent
to the project is essential to good management of the work. Accidents,
including those that do not result in injury, shall be recorded promptly by the
Site Safety Coordinator, in the format indicated on the attached sample (see
Attachment B).


A follow-up investigation by the Site Safety
Coordinator will seek to develop information to enable management:


1.                          To
pinpoint the conditions that caused the accident.


2.                          To avoid
a false or inaccurate claim.


3.                          To
prevent the continuation of the conditions that led to the accident.


This information will assist management in directing
the safety program more effectively.


Copies of all accident reports and investigations
shall be submitted on a weekly basis to Landlord; copies of such reports and
investigations shall also be submitted to the New York City Department of
Buildings (“Department of Buildings”) per their requirements.


In the event of any death, fire or injury to the
general public, Tenant or its Construction Manager shall promptly notify
Landlord in person or by telephone (212) 803-3800 (or successor phone number)
and to the Department of Buildings per their requirements.


(4)                    SAFETY
MEETINGS


(a)                     PUBLIC
SAFETY


On a scheduled monthly basis, Tenant or its
Construction Manager will conduct safety meetings and will include, to the extent
required, representatives from governmental agencies, as appropriate. These
groups will review problems of safety and convenience affecting the public,
plan for potential problems, and initiate whatever coordination efforts with
other agencies are necessary for the safety of the public. Landlord reserves
the right to attend such meetings.


(b)                    WORKER
SAFETY


The Tenant, the Construction Manager and each of the
trades will schedule periodic meetings and maintain complete and accurate
written minutes. At these meetings, the trade foremen will be encouraged to
conduct weekly “tool box” safety meetings with their work crews to give 



 3
 






 



 


and receive information about safety items of immediate concern to their
activity.


(c)                     SAFETY
INSPECTIONS


Landlord retains rights to conduct safety inspections
as it deems necessary. Landlord shall give advance notice to Tenant or its
Construction Manager of such visits.


Section B - SITE SAFETY PROGRAM
COMPONENTS


(1)                    PUBLIC
GROUND LEVEL PROTECTION


(a)                     The
passageway of all sidewalk bridges shall be kept free from litter, dirt,
debris, ice, snow and potholes or any unsafe condition which could cause a
tripping hazard. An inspection of these items shall be made daily and a record
or log of such inspections kept and presented to Landlord as stated in Section
A (2) above.


(b)                    Lighting of
the pedestrian way shall be provided for the full width and length of each
sidewalk bridge, providing not less than the equivalent of 10 foot-candles of
light measured at the pavement.


(c)                     At all truck
openings, a flashing red or yellow light shall be installed to alert pedestrian
traffic moving across the opening.


(d)                    A person shall
be provided to coordinate traffic wherever operations are conducted on or
across sidewalk protection openings.


(e)                     Barricades
shall be erected in such a manner as to prevent pedestrians from walking
outside the sidewalk protection.


(f)                       All fences
and barricades adjacent to sidewalks shall be kept free of nails and other
snagging objects and shall be designed not to unreasonably interfere with
pedestrian traffic.


(g)                    All walkways,
temporary and permanent, shall be kept well drained at all times and free of
ice and snow during winter months.


(h)                    Guard rails
shall be provided on both sides of temporary walkways.


(i)                        Provision
shall be made for keeping pedestrians clear of construction



 4
 






 



 


activities and areas of material storage. Gates shall
be secured to prevent casual entry to the site by the general public. Material
that must be stored on the street (in permitted areas) shall be stacked or
piled in such a manner as to prevent such piles from becoming unstable.


(2)                    OVERHEAD
PROTECTION


Scaffolds - hanging or sectional: Only those materials
or tools required for immediate use shall be placed on scaffolds and platforms.
All materials shall be removed at the end of the work day. Wire mesh shall be
installed between toe-board and guard rail of hanging scaffolds and around the
perimeter of sectional scaffolds.


Debris - there shall be frequent removal of all debris
from superstructure, and stabilization of articles, materials, equipment and
debris in the event of windstorms.


In addition to the above, special care must be
exercised to protect the public and the construction workforce from objects
falling from structures under construction prior to the construction floor
being permanently enclosed with a finished facade. Adherence to the provisions
of the New York City Building Code governing safety netting, subdivision A of
Section 27-1021 as approved by the City under Local law 61-87, must be strictly
followed and enforced by the Site Safety Coordinator.


(3)                    CRANES
& DERRICKS


Cranes and derricks shall be inspected prior to each
use, and during use, for safe operating conditions. Barricades shall be
provided around outriggers and fixed radius swing of cab. A traffic coordinator
shall stop all pedestrian and vehicular traffic from passing under materials
being hoisted by any crane or derrick. All cranes and derricks of every type
shall be inspected and approved by the Department of Buildings - Cranes and
Derricks Division, prior to operation and use. All operators must have valid
operators licenses, and be approved by the Department of Buildings prior to
operating any equipment.


(4)                    FENCES


Gates shall not open outward into pedestrian passage.
Proper signs indicating “Driveway”—”Danger” etc., shall be placed so as to be
easily seen and understood.


All perimeter fences and other protection shall be
inspected daily.



 5
 






 



 


As fences are planned and erected, consideration shall
be given to their stability and ease of removal or replacement. Viewing windows
shall be covered with plexiglass or equivalent non-breakable material.


(5)                    FIRE LANES


The required street fire lane(s) shall be kept free of
any type of obstruction, including parked vehicles, at all times.


(6)                    GUIDELINES
FOR MAINTENANCE OF SAFETY INSTALLATIONS


Particular protection and services shall be provided
for the safety and health of the workers. These include, but are not limited
to, the following:


1.                         Overhead
protection


2.                         Temporary lighting


3.                         Guard rails and stair rails


4.                         Safety
nets


5.                         Catch
platforms


6.                         Toilets


7.                         Fire
Extinguishers


8.                         Cover of
floor holes and openings


9.                         Perimeter
protection


10.                   Posters
and signs


In the case of a Construction Manager-Multiple
Subcontractor project, responsibility for the installation and maintenance of
railing, ramp, guardrail and overhead protection shall be assigned to a
contractor as Tenant may designate in its subcontract.


Removal and abuse of protective devices is a subject
for education at safety and tool box safety meetings. The guiding rule here is
that each employer is responsible for the safety of its employees.


(7)                    FIRE
PREVENTION


The Construction Manager shall direct the prompt
installation and maintenance of a general fire system.


All requirements of the New York City Fire Department
pertaining to fire fighting equipment at the construction site and the conduct
of all construction operations which raise fire prevention concerns shall be
enforced. These include, but are not limited to, the requirements for a
temporary elevator in readiness when the work reaches a height of 100 feet, and
the installation of standpipe systems.



 6
 






 



 


Particular emphasis shall be given to the storage of
flammable and combustible liquids and compressed gasses. Bulk storage of these
materials shall be in a separated area.


(8)                    ALARM
SYSTEMS


An alarm system, shall be established. The telephone
number of the nearest firehouse shall be conspicuously posted at various
locations on the job site, including in the offices of all contractors, close
to all telephones, and on the outside of all “change shanties.”


(9)                    STANDPIPES


The fire standpipe system as required by the New York
City Building Code shall be
maintained and operative up to the third floor below the top poured deck.


(10)              SHANTIES


Shanties shall be constructed of fire resistant
material and the construction manager shall require each contractor to provide
the necessary certification of compliance with this requirement. All shanties,
storage rooms and offices shall be equipped with fire extinguishers rated not
less than A.


(11)              EXITS


All exits to be used by personnel in case of fire
shall be properly identified and kept clear of debris and any other obstacles.


(12)              HOUSEKEEPING


All debris and non-construction garbage throughout the
premises shall be removed as quickly as practical. The areas at the base of any
debris chute shall be barricaded.


(13)              SIAMESE HOSE
CONNECTIONS


Siamese hose connections shall be designated by a red
light and shall be kept clear of all debris, ice, snow or materials, to allow
easy access by the Fire Department.


(14)              FIRST AID


Each employer at the premises shall provide a first
aid kit.



 7
 






 



 


(15)              MEDICAL
SERVICES


The Site Safety Coordinator, in cooperation with the
subcontractors, will contact local hospitals before the start of construction
and coordinate with the hospitals’ emergency medical services personnel to
determine the most effective method of cooperating during emergencies including
information that needs to be posted on the site. It should be noted that a
telephone call to the police emergency telephone number is the required means
for ambulance response. The ways and means of emergency reporting within the
project shall be developed by the Site Safety Coordinator and sign-posted
within the site.


(16)              PERSONAL
PROTECTIVE EQUIPMENT


Each contractor at the premises shall determine in
advance projected needs for personal protective equipment and have such
equipment available for use by employees when needed. The equipment shall
include but not be limited to:


·                             Hard
Hats


All employees and visitors shall wear head protection;
the Project shall be designated a “hard hat job.”


·                             Safety
Belts


Workers exposed to a falling hazard greater than 10
feet shall wear safety belts. Use of this equipment shall b enforced by the
employer.


·                             Respirators


Respirators shall be issued to employees exposed to the inhalation of noxious
substances.


·                             Eve
Protection


Eye protection shall be
issued to all employees whose work involves a hazard to the eyes.


·                             Hearing
Protection


Where employees are exposed
to sound levels in excess of applicable OSHA Standards, they shall wear
appropriate hearing protection.



 8
 






 



 


(17)               ELECTRICAL
SAFETY


All temporary electrical services provided for work at
the project shall conform with OSHA Standards and the National Electrical Code.


The Assured Equipment
Grounding Conductor Program required by OSHA shall be implemented and
documented.


All electrical tools and
extension cords at the premises shall be properly grounded.


(18)               ASBESTOS RELATED
WORK


All existing structures to
be demolished or altered must strictly adhere to the New York City Building
Code and other applicable city, state and federal requirements governing the
removal or handling of asbestos or asbestos containing material.



 9
 






 



 


Exhibit E 7

Attachment A

DAILY SAFETY INSPECTION REPORT

PUBLIC PROTECTION


	
  

  	
  DATE: 

  
	
   

  	
   

  
	
   

  	
  INSPECTED BY: 

  



 


	
   

  	
   

  	
  YES

  	
   

  	
  NO

  	
   

  	
  REMARKS

  
	
  1. Sidewalk
  clear of obstruction

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. Snow, ice or
  rain accumulation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. Temporary
  walkway plank firmly fastened

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4. Outside fence
  secure

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5. Barricades in
  place

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. Entrance,
  exit and warning sign visible

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7. Sidewalk
  bridge handrails in place

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8. Sidewalk
  bridge column protected from vehicles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9. Sidewalk
  bridge fence on building side secure

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10. Sidewalk
  bridge passageway free of debris

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11. All light
  bulbs in working order

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12. Flashing
  light at truck openings operating

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13. Required
  street fire lanes free of obstructions

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14. Crane and
  derrick inspection

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15. Gates
  secured

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 



 10
 






 



 


Exhibit E 7

Attachment B


ACCIDENT
REPORT


	
  

  	
   

  	
  DATE:

  



 


INJURED PERSON:


 


	
  NAME

  	
   

  
	
  ADDRESS

  	
   

  
	
  AGE

  	
   

  	
  OCCUPATION

  	
   

  
	
  EMPLOYED BY

  	
   

  
	
  NAME OF
  SUPERVISOR

  	
   

  
	
  DESCRIPTION OF
  ACCIDENT – (briefly describe the physical set-up, what the injured person was
  doing, and what factors contributed to the accident).

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  LOCATION OF
  ACCIDENT – (example – stairway #5, between 8th and 9th floor levels of
  Bldg.)

  
	
   

  
	
   

  
	
  DATE AND TIME OF
  ACCIDENT

  	
   

  
	
  DESCRIPTION OF
  INJURY – (example – injury to left shoulder)

  	
   

  
	
   

  
	
  WAS INJURED
  PERSON REMOVED BY AMBULANCE?

  	
  o

  	
  YES

  	
   

  	
  o

  	
  NO

  
	
  HAS INJURED
  PERSON RETURNED TO WORK?

  	
  o

  	
  YES

  	
   

  	
  o

  	
  NO

  
	
  REPORT PREPARED
  BY

  	
   

  
	
  EMPLOYED BY

  	
   

  
	
  TITLE

  	
   

  
	
  DATE

  	
   

  
																	




 11














 


 


EXHIBIT F-l


DEMISED PREMISES (§ 1.1 (a)
(lxi))

















 





[GRAPHIC]


 


	
  STACKING DIAGRAM

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE NEW YORK
  TIMES BUILDING

  	
  RENZO PIANO
  BUILDING WORKSHOP - FOX & FOWLE

  	
  4 DECEMBER 2001

  



 

















 





 


[GRAPHIC]









 






[GRAPHIC]









 






[GRAPHIC]









 






[GRAPHIC]









 






[GRAPHIC]









 






[GRAPHIC]









 



 


EXHIBIT F-2


THE
LAND (§ 1.1(a)(cxxv))


All that certain plot,
piece or parcel of land, situate, lying and being in the Borough of Manhattan
County of New York, City and State of New York, bounded and described as
follows:


BEGINNING at the corner
formed by the intersection of the northerly line of West 40th Street with the easterly line of 8th Avenue.


RUNNING THENCE northerly
along said easterly line of 8th Avenue, 197 feet
6 inches to the corner formed by the intersection of the easterly side of 8th Avenue with the southerly line of West 41st Street;


THENCE easterly along
said southerly line of West 41st Street, 400 feet;


THENCE southerly and
parallel to said easterly line of 8th Avenue, 197 feet 6 inches to the northerly
line of West 40th Street;


THENCE westerly along
said northerly line of West 40th Street, 400 feet to the point or place of
BEGINNING.


Being the property
located at and known as Block 1012, Lots 1, 5, 8, 14, 53, 59, 61, 62, 63 and
part of 15 on the Tax Assessment Map of the County of New York.















 


 


EXHIBIT G


PERMITTED
ENCUMBRANCES (§ 1.1(a)(clxxxi))


1.                          Public
and governmental utility facilities having a physical manifestation within the
area of the Property; all recorded easements, licenses and other agreements, if
any, existing as of the date hereof for such public and governmental utility
facilities; and reasonable rights of access to such public and governmental
utility facilities necessary for the maintenance, operation, repair,
replacement or use of the same whether or not embodied in recorded instruments.


2.                          The
right, title and interest of the City to property lying within the lines of any
street, avenue or public place, as the same is shown on the present City map.


3.                          All
equipment and other property of the City, including but not limited to police
and fire communication lines, necessary for the maintenance of the public
health and safety and having a physical manifestation within the area being
leased; all recorded easements, licenses and other agreements, if any, existing
as of the date hereof for such equipment and other property of the City; and
reasonable rights of access to all such equipment and other property of the
City necessary for the maintenance, operation, repair, replacement or use of
the same whether or not embodied in recorded instruments.


4.                          All
rights, title and interest of The New York City Transit Authority (the “T.A.”)
in and to the following property, if any to the extent located within the
property being acquired: (A) routes, tracts, tunnels, switches, siding,
extensions, connections, platform, structures or terminals; (b) wires,
conduits, pipes, ducts, telephone, signal and other communication or service
facilities; (c) column, footings, bracing, foundations and other structural
members; and (d) any other devices, equipment and facilities used in connection
with the operation or maintenance of the subway system.


5.                          The
general project plan with respect to the development of the 42nd Street
Development Project (including the Property), adopted by the directors of UDC
in June 1981, and thereafter amended, as approved by the City (as the same may
be further amended and approved).


6.                          Any
other matters shown on the acquisition map used in connection with ESDC’s
condemnation of the Property, and which are specifically excluded on such map
from the acquisition in connection therewith (provided, however, that no such
matters materially impair the ability to construct a new building on the
Property).


7.                          Site 8
South Project Agreement, dated as of the date hereof by and among ESDC, 42DP,
the City, NYTB, NYT Real Estate Company LLC and FC Lion LLC.


8.                          Site 8
South Land Acquisition and Development Agreement, dated as of the date hereof,
by and among ESDC, 42DP and NYTB.



 G-1
 






 



 


9.                          Site
8 South Declaration of Design, Use and Operation, dated as of the date hereof
by and among ESDC, 42DP and NYTB.


10.                    Agreement, dated
as of the date hereof, by and among 42DP, The New York City Transit Authority,
NYTB and the City.


11.                    The lien for
any BID assessments not yet due and payable (subject to adjustment as provided
in this Lease).


12.                    Sewer Easement
recited in Deed recorded in Liber 959 Cp. 298, if existing.


13.                    Declaration of
Covenants and Restrictions made by New York State Urban Development Corporation
dated as of June 21, 1988, recorded April 20, 1990 in Reel 1686 Page 383.


14.                    Reversionary
estate of the City.



 G-2














 


 


cc:                    President
–  New York City Economic Development
Corporation

Chief, Economic Development Division –  New York City Law Department

Chris M. Smith, Esq. –  Shearman &
Sterling

Max Friedman, Esq. –  Pillsbury Winthrop
LLP

42nd St. Development Project, Inc. –  New York State Urban Development Corporation



 H-2














 


 


EXHIBIT
I


APPROVED
MAJOR CONTRACTORS (§ 9.6 (b)(ii))


Mayrich Construction
Corp.

Urban Foundation/Engineering LLC

Canron Construction Corp.

SMI Owen Steel Co.

Kline Iron & Steel

Sorbara Construction Corp.

Northside Corp.

Pinnacle Concrete

E. Patti & Sons

C&D Fireproofing & Plastering

Permasteelisa Cladding Technologies

GlassAlum International Corp.

Harmon Ltd.

Benson Industries, Inc.

Wolkow Braker Roofing Corp.

JP Patti Company, Inc.

Eagle One Roofing

NY Roofing Co.

Nastasi & Associates

Woodword Construction

Component Assembly Systems

ASM Electric & Machine Corp.

Fresh Meadows Mech. Corp.

Centrifugal Mechanical

FW Sims

Fred Geller Electrical, Inc.

Zwicker Electric

EJ Electric

Sirina Fire Protection

Belrose Fire Suppression

Rael Automatic Sprinkler Co., Inc.

Almar Plumbing & Heating Corp.

Olympic Plumbing & Heating

Schindler Elevator Corp.

Otis Elevator Co.

ThyssekKrupp Elevator

Fujitech









 



 


EXHIBIT
J


FORM OF “NON ADVERSE STRUCTURAL EFFECT” STATEMENT OF
ENGINEER

OR
ARCHITECT (§ 9.9)


[Engineer’s/Architect’s letterhead]


as of    , 200 


VIA HAND


42nd St. Development Project, Inc. 

633 Third Avenue, 33rd floor 

New York, New York 10017 

Attention: President


Site 8 South –
Alterations


Ladies and Gentlemen:


Reference is made to that
certain Agreement of Lease (as it hereinbefore may have been and hereafter may
be amended, the “Lease”), dated as
of      , 2001, by and between 42nd St. Development Project, Inc. (“Landlord”) and [Tenant] (“Tenant”). Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Lease.


Pursuant to Section 9.9
of the Lease, the undersigned hereby certifies that: (a) it has reviewed
Section 9.9 of the Lease and is familiar therewith; (b) it has assessed the
Alterations listed on Schedule A attached hereto; and (c) based solely on such assessment,
and without regard to any representations or other statements made by Tenant or
any other party, such Alterations shall have no adverse effect on a Structural
Component that is greater than a Nonadverse Structural Effect.


Yours Truly,


[Signature block of
Engineer/Architect]


cc:                    President —  New York City Economic Development Corporation

Chief, Economic Development Division —  New York City Law Department

Chris M. Smith, Esq. —  Shearman &
Sterling

Max Friedman, Esq. —  Pillsbury Winthrop
LLP

42nd Street Development Project, Inc. —  New York State Urban Development Corporation









 



 


Schedule A to Exhibit J


Alterations


[Insert description of
Alterations]









 



 


EXHIBIT K


FORM
OF NONDISTURBANCE AGREEMENT (§ 13.2(b))


THIS SUBORDINATION,
NONDISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”), dated as of           ,
200 , between 42ND ST. DEVELOPMENT PROJECT, INC., a New York corporation,
having an office at 633 Third Avenue, 33rd Floor, New York, New York 10017 (the
“Ground Lessor”), and                      ,
a                  ,
having an office at                               
(the “Landlord”), and                        ,
a                               
having an office at                  
(the “Tenant”).


W
I  T  N  E  S  S  E  T  H:


WHEREAS, Tenant has
entered into a lease dated             ,
20   between Landlord, as sublandlord, and Tenant, as subtenant, with
respect to certain space (the “Demised
Premises”) in the building located at                ,
New York, New York (the “Premises”)
(said sublease, as heretofore or hereafter amended and supplemented, the “Lease”);


WHEREAS, Ground Lessor is
the ground lessor of the Premises pursuant to that certain Agreement of Lease
dated as of                 ,
2001, between Ground Lessor and                           
(the “Ground Lease”); and


WHEREAS, Ground Lessor,
Landlord and Tenant desire to enter into this Agreement upon the terms,
covenants and conditions contained herein.


NOW, THEREFORE, in
consideration of the premises and the agreements of the parties contained
herein, the parties hereto hereby covenant and agree as follows:


1. Except as expressly
stated herein, nothing in this Agreement shall be construed to be an approval
by Ground Lessor of the provisions of the Lease.


(12) Tenant agrees that
the Lease is and shall be subject and subordinate to the Ground Lease and all
renewals, amendments, modifications, consolidations, replacements and
extensions thereof.


(13) Ground Lessor hereby
agrees that so long as the Lease shall be in full force and effect, Tenant
shall not be in default in the payment of rent or additional rent due under the
Lease and Tenant shall not be in default in the performance or observance of
any of the other obligations or conditions of the Lease beyond any applicable
cure period (the “Nondisturb Conditions”):
(a) Ground Lessor shall not join Tenant as a party defendant in any action or
proceeding which may be instituted or taken by Ground Lessor under the Ground
Lease, by reason of any default by Landlord thereunder, to terminate the Ground
Lease, to remove or evict the Landlord or to recover possession of the
Premises, unless required by law in order to make such action or proceeding
effective; (b) Tenant shall not be evicted from the Demised Premises; and (c)
Tenant’s subleasehold estate under the Lease shall not be diminished,
interfered with, disturbed or terminated.















 


 


(14) Tenant hereby agrees that in the event of any act
or omission by Landlord which would give Tenant the right, either immediately
or after the lapse of a period of time, to terminate the Lease, or to claim a
partial or total eviction, Tenant shall not exercise any such right: (a) until
it has given written notice of such act or omission to Ground Lessor; and (b)
until a reasonable period for remedying such act or omission shall have elapsed
following such giving of notice. Tenant from and after the date hereof shall
send a copy of any notice of default or notice in connection with the
commencement of any action to terminate the Lease or similar statement under
the Lease to Ground Lessor at the same time such notice or statement is sent to
Landlord under the Lease and agrees that, notwithstanding any provisions of the
Lease to the contrary, such notice shall not be effective unless Ground Lessor
shall have been given such notice and shall have failed to cure such default as
herein provided. All notices given under this Agreement shall be sent by
certified or registered mail, postage prepaid, return receipt requested, or
shall be delivered to the parties at the following addresses set forth above
(or at such other addresses as the parties hereto shall specify in a written
notice to the other parties at the addresses specified herein). Any notices
hereunder shall be deemed to be given on the earlier to occur of: (i) the day
of receipt; and (ii) three (3) days after deposit in the mail.


(15) Tenant and Ground
Lessor hereby agree that, in the event that Ground Lessor shall enter into and
become possessed of the Premises by reason of default on the part of Landlord
under the Ground Lease or by reason of the termination of the Ground Lease,
then, so long as the Nondisturb Conditions shall be satisfied, the Lease shall
continue as a direct lease between Ground Lessor and Tenant upon all of the
terms, covenants, conditions and agreements as set forth in the Lease, and
Tenant agrees to be bound thereby and to attorn to Ground Lessor and recognize
Ground Lessor as its landlord; provided, however, that Ground
Lessor shall not:


(a) be liable for any act
or omission or negligence of any prior landlord under the Lease;


(b) be subject to any
counterclaim, offset or defense, which theretofore accrued to the Tenant
against the prior landlord under the Lease;


(c) be subject to any
counterclaim, offset or defense at any time during the term of the Lease with
respect to the payment of rent or additional rent by Tenant;


(d) be bound by any
modification or amendment of such Lease (unless Ground Lessor shall have
theretofore received a copy of and consented in writing to such modification or
amendment);


(e) be bound by any
payment of rent or additional rent for more than one (1) month in advance
(unless actually received by Ground Lessor);


(f) be liable for any
security deposit given by Tenant under the Lease, unless and to the extent
actually received by Ground Lessor;


(g) be obligated to
perform any work of any kind in the Demised Premises or the Premises;



 K-2
 






 



 


(h) in the event of a casualty, be obligated to repair
or restore the Premises or any portion thereof beyond such repair or restoration
as may be reasonably accomplished from the net insurance proceeds actually made
available to Ground Lessor;


(i) in the event of a
partial condemnation, be obligated to repair or restore the Premises or any
part thereof beyond such repair or restoration as may be reasonably
accomplished from the net proceeds of any award actually made available to
Ground Lessor;


(j) be subject to any
right of cancellation or termination which requires payment by the landlord
thereunder of a charge, fee or penalty for such cancellation or termination,
except if Ground Lessor voluntarily exercises such right of cancellation or
termination other than as a result of a casualty or condemnation;


(k) be subject to any
right of first refusal or first offer to purchase the Premises or any portion
thereof;


(l) be obligated to give
Tenant all or any portion of any insurance proceeds or condemnation awards
received by Ground Lessor as a result of a casualty or condemnation;


(m) be subject to
liability for any amounts in excess of the amounts set forth in Article 17 of
the Ground Lease; or


(n) be bound for a term
in excess of ten (10) years from the commencement date of the Lease.


Upon the request of
either Tenant or Ground Lessor, Tenant or Ground Lessor, as the case may be,
shall promptly execute and deliver to the other an agreement or other
instrument in recordable form which may be necessary or appropriate to evidence
such attornment.


(16) Landlord and Tenant
shall not change, or consent to a change in, the terms, covenants, conditions
and agreements of the Lease in any manner which would be binding on Ground
Lessor without the express consent in writing of Ground Lessor.


(17) Tenant further
acknowledges that pursuant to Section 13.4 of the Ground Lease, the Ground
Lessor may elect to collect rent and all other sums due under the Lease under
certain circumstances. In the event that the Ground Lessor elects to collect
rent or other charges under Section 13.4 of the Ground Lease, then from and
after such election, until further notice from Ground Lessor, Tenant shall pay
its rent, additional rent and all other sums due under the Lease directly to
Ground Lessor.


(18) This Agreement may
not be modified, amended or terminated unless in writing and duly executed by
the party against whom the same is sought to be asserted and constitutes the
entire agreement between the parties with respect to the subject matter hereof.


(19) This Agreement shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns.



 K-3
 






 



 


(20) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely within said state.


[SIGNATURES ON NEXT PAGE]



 K-4
 






 



 


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


	
  

  	
   

  	
  Ground
  Lessor:

  
	
   

  	
   

  	
  42ND
  ST. DEVELOPMENT PROJECT, INC.

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title: President

  



 


	
  

  	
   

  	
  Tenant:

  
	
   

  	
   

  	
  [                                      ]

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


	
  

  	
   

  	
  Landlord:

  
	
   

  	
   

  	
  [                                      ]

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  




 K-5














 


 


EXHIBIT L


INTENTIONALLY
OMITTED

















 


 


EXHIBIT M


FORM OF NOTICE OF
DEFAULT (§ 14.2)


42ND ST. DEVELOPMENT PROJECT, INC.

633 Third
Avenue, 33rd Floor 

New York, New York 10017


as of      , 200


VIA
HAND


NYT Real Estate Company
LLC 

c/o The New York Times Company 

229 West 43rd Street 

New York, New York 10036

Attention: General Counsel


Site 8 South – NOTICE OF
DEFAULT


Ladies and Gentlemen:


Reference is made to that
certain Agreement of Lease (as it hereinbefore may have been and hereafter may be amended, the “Lease”), dated as of         , 2001, by and  between 42nd St. Development Project, Inc. (“Landlord”) and [Tenant] (“Tenant”). Capitalized terms used herein but
not defined herein shall have the meanings set forth in the Lease.


Pursuant to Section 14.2
of the Lease, Tenant is hereby given notice that it is in default under Section        
of the Lease for [STATE DEFAULT]. Under the Lease, Tenant has [STATE PERIOD] in which to cure this Default.


Nothing
in this letter shall be construed to be a waiver of any right or remedy available to Landlord under the Lease, at law or
in equity, all of which are hereby expressly reserved.


	
   

  	
   

  	
  Yours
  Truly,

  
	
   

  	
   

  	
  

  42ND ST. DEVELOPMENT PROJECT, INC.

  
	
  



  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



cc:                    Director of
Real Estate –  The New York Times Company

Martin D. Polevoy, Esq. –  Swidler Berlin
Shereff Friedman LLP

Max Friedman, Esq. –  Pillsbury Winthrop
LLP



 M-1














 


 


EXHIBIT N


FORM OF SECOND
NOTICE OF DEFAULT (§ 14.2)


42ND ST. DEVELOPMENT PROJECT, INC.

633 Third
Avenue, 33rd Floor

New York, New York 10017


as of           , 200  


VIA
HAND


NYT
Real Estate Company LLC 

c/o The New York Times Company 

229 West 43rd Street 

New York, New York 10036 

Attention: General Counsel


Site 8 South – SECOND
NOTICE OF DEFAULT


Ladies and Gentlemen:


Reference is made to that
certain Agreement of Lease (as it hereinbefore may have been and hereafter may
be amended, the “Lease”), dated as
of             ,
2001, by and between 42nd St. Development Project, Inc. (“Landlord”) and [Tenant] (“Tenant”). Capitalized terms used herein but not defined herein shall
have the meanings set forth in the Lease.


Pursuant to Section 14.2 of the Lease, Tenant is
hereby given notice that Tenant’s Default under Section             
of the Lease for [STATE DEFAULT] has not been cured within the cure period for
such Default under the Lease. If Tenant has not cured the aforesaid Default
within 5 Business Days of [DATE OF THIS NOTICE IF SENT ON BUSINESS DAY OR DATE
OF NEXT SUCCEEDING BUSINESS DAY IF DATE OF THIS NOTICE IS NOT A BUSINESS DAY],
an Event of Default shall be deemed to have occurred.


Nothing in this letter
shall be construed to be a waiver of any right or remedy available to Landlord
under the Lease, at law or in equity, all of which are hereby expressly reserved.


 


	
   

  	
   

  	
  Yours
  Truly,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  42ND ST. DEVELOPMENT PROJECT, INC.

  
	
  



  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



cc:                    Director of
Real Estate –  The New York Times Company

Martin D. Polevoy, Esq. –  Swidler Berlin
Shereff Friedman LLP

Max Friedman, Esq. –  Pillsbury Winthrop LLP



 N-1














 


 


EXHIBIT
O


NON-DISCRIMINATION
AND AFFIRMATIVE ACTION (§ 29.1)

















 


 


42nd St. DEVELOPMENT PROJECT,
INC. AND EMPIRE STATE DEVELOPMENT

NON-DISCRIMINATION AND AFFIRMATIVE ACTION CONSTRUCTION CONTRACT PROVISIONS


I.         Policy


It is the policy of the
State of New York, Empire State Development (“ESD”) and 42nd St. Development
Project, Inc., (“42DP”) to comply with all federal, State and local law,
policy, orders, rules and regulations which prohibit unlawful discrimination
because of race, creed, color, national origin, sex, sexual orientation, age,
disability or marital status, and to take affirmative action to ensure that Minority
and Women-owned Business Enterprises (M/WBEs), Minority Group Members and women
share in the economic opportunities generated by ESD’s and/or its subsidiaries’
participation in projects or initiatives, and/or the use of ESD/42DP funds.


1)                         The
Contracting Party represents that its equal employment opportunity policy
statement incorporates, at a minimum, the policies and practices set forth
below:


(a)                    Contracting Party
shall (i) not discriminate against employees or applicants for employment
because of race, creed, color, national origin, sex, sexual orientation, age,
disability or marital status, (ii) undertake or continue existing programs of
affirmative action to insure that Minority Group Members and women are afforded
equal employment opportunities without discrimination, and (iii) make and
document its conscientious and active efforts to employ and utilize Minority
Group Members and women in its workforce on Contracts. Such action shall be
taken with reference to, but not limited to, recruitment, employment, job
assignment, promotion, upgrading, demotion, transfer, layoff or termination,
rates of pay or other forms of compensation, and selection for training or
retraining, including apprenticeship and on-the-job training.


(b)                   At the request
of the AAO, the Contracting Party shall request each employment agency, labor
union, or authorized representative of workers with whom it has a collective
bargaining or other agreement or understanding, to furnish a written statement
that such employment agency, labor union, or representative does not unlawfully
discriminate, and  that such union or
representative will affirmatively cooperate in the implementation of the
Contracting Party’s obligations herein.


(2)                     Commencing
not more than 30 days after the later of (i) execution of the Contract, or (ii)
start of construction, the Contracting Party shall submit to the AAO a Monthly
Employment Utilization Report (Schedule A-1) of the workforce actually utilized
on the Contract, itemized by ethnic background, gender, and Federal
Occupational Categories or other appropriate categories specified by the AAO.


(3)                     The
Contracting Party shall also include with the first Monthly Employment
Utilization Report and as part of the documentation required for final payment,
such data describing: a) the total number of company employees at commencement
of the project, b) the total number of company employees at the completion of
the project and c) any net increases in the number of employees in the company.
Net increases in employment shall be further classified by ethnicity, gender
and occupational code.


The Contracting Party
shall include, or cause to be included, the provisions of clauses (1) through
(3) in every Contract or purchase order that it enters into in order to fulfill
its obligations under the Contract, in such a manner that such provisions will
be binding upon each and every Contracting Party with respect to any Contract
or Subcontract.


II.                        Goals for
Minority and Women-Owned Business Enterprise Participation (Core and Shell)


(a)                    Contracting
Party is required to use its “Best Efforts” to achieve an overall M/WBE
participation goal of 18.0% of the total dollar value of the Contract,
as it pertains solely to the hard costs of Tenant’s construction of the core
and shell of the new building, and shall exclude so called “soft costs”
including, but not limited to, architect, engineering, legal, design and other
fees to professionals and consultants, application and permit fees, cost of
surveys, inspections, furnishings and decorative items not being affixed into
the new building.



 1
 






 



 


(b)                   The
goal for M/WBE participation in the performance of the work is expressed as a
percentage of the contract price. The term “hard costs” as used in this Section
II (a) and Section III(a), shall be deemed to exclude architectural,
engineering and other such design consulting costs.


(c)                    The total
dollar value of the work performed by M/WBEs will be determined as: (i) the
dollar value of the work subcontracted to M/WBEs; (ii) where the Contracting
Party is a joint venture, association, partnership or other similar entity
including one or more M/WBEs — the contract price multiplied by the percentage
of the entity’s profits/losses which are to accrue to the M/WBE(s) under the
Contracting Party’s agreement; or (iii) where the M/WBE is the Contracting
Party — the contract price.


(d)                   The Contracting
Party shall include, or cause to be included, the provisions of clauses (a)
through (c) in every Contract or purchase order that it enters into in order to
fulfill its obligations under the Contract, in such a manner that such
provisions will be binding upon each and every Contracting Party with respect
to any Contract or Subcontract.


III.                    Goals for
Minority and Female Workforce Participation (Core and Shell)


(a)                    The Contracting
Party is required to use its “Best Efforts” to achieve the overall goal of 20%
minority and female workforce (M/FWF) participation in the work performed
pursuant to Contracts entered into in connection with the Lease as it pertains
to the hard costs of Tenant’s construction of the core and shell of the new
building.


(b)                   The M/FWF
participation goals are expressed as a percentage equal to the person hours of
training and employment of minority or female workers, as the case may be, used
by any Contracting Party, divided by the total person hours of training and
employment of all workers (including supervisory personnel).


(c)                    The required
participation for minority and female employment and training must be
substantially uniform throughout the performance of the work.


(d)                   The Contracting
Party shall not participate in the transfer of minority or female employees or
trainees from employer-to-employer or from project-to-project for the sole
purpose of meeting the Contracting Party’s obligations herein.


(e)                    In striving to
achieve the goals for M/FWF participation, Contracting Party shall use its “Best
Efforts” to identify and employ qualified minority and female supervisory
personnel and journey persons.


(f)                      The
non-working hours of trainees or apprentices may not be considered in meeting
the goals for M/FWF participation contained herein unless: (i) such trainees or
apprentices are employed by Contracting Party during the training period; (ii)
the Contracting Party has made a commitment to employ the trainees or
apprentices at the completion of their training, subject to the availability of
employment opportunities; and (iii) the trainees are trained pursuant to an
approved training program.


(g)                   The Contracting
Party shall include, or cause to be included, the provisions of clauses (a)
through (f) in every Contract or purchase order that it enters into in order to
fulfill its obligations under the Contract, in such a manner that such
provisions will be binding upon each and every Contracting Party with respect
to any Contract or Subcontract.


IV.                   Goals for
Minority and Women-Owned Business Enterprise Participation (Leasehold
Improvements)


(a)                    Contracting
Party is required to use its best efforts to achieve the following M/WBE
participation goals with respect to the Tenant’s or subtenant’s construction of
leasehold improvements within the building:



 2
 






 



 


(1)                    Seven
and one half percent (7.5%) of the total dollar value of the Contract as it
pertains solely to the hard costs in connection with the leasehold improvements
to leasehold space measuring 500,000 or more square feet;


(2)                     Five
percent (5.0%) of the total dollar value of the Contract as it pertains
solely to the hard costs in connection with the leasehold improvements to
leasehold space totaling more than three floors or leasehold space measuring 100,000
or more square feet, but not exceeding 500,000 square feet.


(b)                   To the extent
that any subtenant shall undertake the construction of leasehold improvements
within the building for three floors or less or leasehold space not exceeding 100,000
square feet, then such subtenant shall represent that it shall not discriminate
against employees or applicants for employment because of race, creed, color,
national origin, sex, sexual orientation, age, disability or marital status and
be in compliance with all applicable federal, State and local law, policy,
orders, rules and regulations which prohibit unlawful discrimination.


V.                       Goals for
Minority and Female Workforce Participation (Leasehold Improvements)


(a)                    The Contracting
Party is required to use its “Best Efforts” to achieve the following M/FWF
participation goals in the work performed pursuant to contracts entered into in
connection with the leasehold improvements:


(1)                     Fifteen
percent (15%) minority and female workforce participation in the work
performed pursuant to contracts entered into in connection with a subtenant’s
leasing of 500,000 or more square feet of floor space;


(2)                     Ten
percent (10%) minority and female workforce participation in the work
performed pursuant to contracts entered into in connection with a subtenant’s
leasing of more than three floors or 100,000 or more square feet, but
not more than 500,000 square feet of floor space.


(b)                   To the extent
that any subtenant shall undertake the construction of leasehold improvements
within the building for three floors or less or leasehold space not exceeding 100,000
square feet, then such subtenant shall represent that it shall not discriminate
against employees or applicants for employment because of race, creed, color,
national origin, sex, sexual orientation, age, disability or marital status and
be in compliance with all applicable federal, State and local law, policy,
orders, rules and regulations which prohibit unlawful discrimination.


VI.                   Equal
Employment Opportunity - Operation of the New Building


(a)                    Tenant agrees
that it will neither commit nor knowingly permit discrimination by reason of
race, creed, color, national origin, sex, sexual orientation, age, disability,
or marital status in the sale, transfer or assignment of its interest under
this Lease or in the subletting, use or occupancy of the Premises or any part
thereof.


(b)                   Tenant agrees
that with regard to the maintenance, management and operation of the building,
it shall be bound by, to the extent it operates the building and, in any event,
shall cause any person or entity Tenant employs to operate the building with
respect to the maintenance, management and operation thereof, to be bound by
the provisions of paragraph (a) above.


VII.               Reporting Requirements


The Contracting Party
will permit access to its relevant
books, records and accounts, with respect to the Contract, by the AAO solely for purposes of investigation to
ascertain compliance with the provisions herein. Not later than three business
days after a request, the Contracting Party shall periodically file, or cause
to be filed, reports, substantially in the format attached hereto as Schedule
A-l and A-2 (MBE/WBE Compliance Report to be filed monthly), with the AAO
detailing compliance with the provisions of these non-discrimination and
affirmative action clauses. Accuracy of the information contained in the
reporting documentation shall be certified to as to the actual knowledge of an
owner or officer of the Contracting Party.



 3














 


 


VIII.    Non-Compliance
and Sanctions


In the event that any
Contracting Party violates any of the provisions herein, the ESD and/or 42DP
may require that the following sanctions
and remedies for non-compliance be imposed:


(a)                    Within
twenty (20) days after the end of each calendar month, the AAO will review the
Monthly Employment Utilization Report and
the MBE/WBE Compliance Report filed with the AAO to assess compliance with the established program. If the
Contracting Party has failed to file the required monthly reports and/or if in the reasonable
judgment of the AAO, an analysis of the reports reveals apparent underutilization, the AAO may elect to
notify (which notification shall be in writing) the Contracting Party in writing (the “First Notice”),
which notice shall describe the nature and extent of the apparent
underutilization.


(b)                   If
the AAO’s review and analysis of the Contracting Party’s reports filed in the
month next following the month in which the
Contracting Party received the First Notice reveals that there continues to be apparent underutilization, then the AAO may
notify the Contracting Party in writing (the “Second Notice”) which
notice shall describe the nature and extent of the continuing apparent
underutilization and will arrange a conference
(allowing three days advance notice to the Contracting Party) which the Contracting Party must attend, at which the AAO
will identify in consultation with Tenant, specific reasonable and practicable corrective measures
from among those available to demonstrate Best Efforts which the Contracting Party will undertake.


(c)                    If
the AAO’s review and analysis of the Contracting Party’s reports filed in the
month next following the month in which the
Contracting Party received the Second Notice reveals continuing apparent underutilization
and if the Contracting Party has not already undertaken the specific corrective
measures agreed upon to demonstrate its Best
Efforts, the AAO may notify the Contracting Party in  writing (the “Final Notice”), which notice
shall describe the nature and extent of the continuing  apparent underutilization. Upon receipt of
the Final Notice, the Contracting Party shall be required to comply with the following sanctions and remedies
for compliance:


	
  (1)

  	
   

  	
  The Contracting Party shall attend a hearing with
  the AAO.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  After any such hearing, and a determination by the
  AAO that the Contracting Party has failed to
  comply with any of these provisions, and the passage of time in which to
  remedy such failure has transpired,
  and as the sole remedy for non-compliance, the AAO, in his/her sole discretion, may assess liquidated damages against
  the Contracting Party for failure to demonstrate
  its best efforts in complying with the affirmative action program. Liquidated
  damages may be assessed in an amount equal to the dollar value of
  Contracts that would have been realized by
  M/WBEs if the goals had been achieved.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  If such an award is assessed
  against any Contracting Party, the amount of such assessment may be withheld
  from any monies due to the Contracting Party by the ESD and/or 42DP or, may
  be paid to the ESD and/or 42DP by
  the Contracting Party that has been found to fail to comply with the affirmative action program provided, however, that
  nonpayment of any such assessment
  by any Contracting Party shall be subject to the right and time to cure of a recognized
  mortgagee pursuant to subsection 11.3(b) of this Lease. Any liquidated
  damages collected hereunder shall be paid
  into one or more M/WBE technical assistance funds administered by the ESD and/or 42DP.

  



(d)                   Such
sanctions that may be imposed and remedies invoked hereunder, shall be
considered independent of, or in addition
to, sanctions and remedies otherwise provided by law.


(e)                    In
no event shall ESD and/or 42DP terminate the Lease or any Contract, or order
the cessation of work under any Contract, due to any Contracting Party’s
failure to comply with the provisions of this affirmative
action program.


(f)                      In
no event shall any Recognized Mortgage (or its designee or other
successor-in-interest) which acquires Tenant’s
interest in the Lease by foreclosure (or deed-in-lieu of foreclosure) of its
Recognized



 4
 






 



 


Mortgage be liable for any damages accruing prior to
the time of such acquisition of Tenant’s interest
in the Lease.



 5
 






 



 


42nd St. DEVELOPMENT
PROJECT, INC. AND EMPIRE STATE DEVELOPMENT 

NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS


Affirmative Action


Shall mean the actions to
be undertaken by the Contracting Party in connection with work performed under
the Lease, to ensure non-discrimination and
Minority/Women-owned Business Enterprise and minority/female workforce
participation, as set forth in
Sections II, III, IV, and V
herein, and developed by ESD and/or its subsidiaries.


With regard to the obligations
imposed on the Tenant to comply and to cause its Contractors to comply with the
provisions set forth herein, shall mean the
taking by the Tenant of reasonable and practicable affirmative steps to ensure compliance
on its own part and on the part of its Contractors and subtenants including the
imposition of reasonable sanctions, where required under the provisions of the
Lease.


Affirmative Action Officer (“AAO”)


Shall mean ESD’s
Affirmative Action Officer or his/her designee, managing the affirmative action
program for ESD and/or its subsidiaries.


Contract


Shall
mean a written agreement or purchase order instrument, or amendment thereto,
executed by or on behalf or a Contracting Party, providing for a total
expenditure in excess of $10,000 for labor, services, supplies, equipment, materials or any combination of the foregoing
regarding the implementation of the project. Notwithstanding the foregoing definition, it is understood and agreed
by ESD and the Tenant that achievement of the percentage goals set forth
in Sections II, III, IV and V shall be based upon an assessment of the overall
project upon completion.


Contracting Party


Shall
mean (i) the Tenant, or parties with whom the Tenant has executed a contract,
to perform services, including construction work, resulting from the
lease, (ii) any party which undertakes to construct leasehold improvements
within the building, but not including
improvements to leasehold space measuring less than 100,000 square feet and
(iii) any contractor, subcontractor,
consultant, subconsultant or vendor supplying goods or services, pursuant to a
contract or purchase order in excess
of $1,500, in connection with work performed under the Lease. Notwithstanding
the foregoing definition, it is
understood and agreed by ESD and the Tenant that achievement of the percentage
goals set forth in Sections II, III, IV and V shall be based upon an assessment
of the overall project upon completion.


Subcontract


Shall
mean an agreement providing for a total expenditure in excess of $1,500 between
a Contracting Party and any individual or business enterprise, for goods
or services rendered in connection with construction work performed under the
Lease. Notwithstanding the foregoing definition, it is understood and agreed by
ESD and the Tenant that achievement of the
percentage goals set forth in Sections II, III, IV and V shall be based upon an
assessment of the overall project
upon completion.


Minority Business Enterprise (“MBE”)


Shall mean a business
enterprise, including a sole proprietorship, partnership or corporation that
is: (i) at least fifty-one percent (51%) owned by one or more Minority Group
Members; (ii) an enterprise in which such minority ownership is real,
substantial and continuing; (iii) an enterprise in which such minority ownership
has and exercises the authority to control
and operate, independently, the day-to-day business decisions of the
enterprise; (iv) an enterprise authorized to do business in the State of New
York and is independently owned and operated; and (v) an enterprise certified
by New York State as a minority
business.



 6
 






 



 


Minority Group Member


Shall mean a United
States citizen or permanent resident alien who is and can demonstrate
membership in one of the following groups: (i) Black persons having origins in
any of the Black African racial groups; (ii) Hispanic persons of Mexican,
Puerto Rican, Dominican, Cuban, Central or South American descent of either
Indian or Hispanic origin, regardless of race; (iii) Asian and Pacific Islander
persons having origins in any of the Far East countries, South East Asia, the
Indian subcontinent or the Pacific Islands; and (iv) Native American or Alaskan
native persons having origins in any of the original peoples of North America.


Women-owned
Business Enterprise (“WBE”)


Shall mean a business
enterprise, including a sole proprietorship, partnership or corporation that
is: (i) at least fifty-one percent (51%) owned by one or more citizens or
permanent resident aliens who are women; (ii) an enterprise in which the
ownership interest of such women is real, substantial and continuing; (iii) an
enterprise in which such women ownership has and exercises the authority to
control and operate, independently, the day-to-day business decisions of the
enterprise; (iv) an enterprise authorized to do business in the State of New
York and is independently owned and operated; and (v) an enterprise certified
by New York State as woman-owned.



 7
 






 



 


42nd St. DEVELOPMENT PROJECT, INC.
AND EMPIRE STATE DEVELOPMENT 

NON-DISCRIMINATION AND AFFIRMATIVE ACTION DEFINITIONS


Best
Efforts - Minority and Women-owned Business Enterprise Participation


Although Best efforts
shall not be limited to the efforts specified herein, the compliance with the
following list shall be prima facie evidence that Best Efforts are being made.
The role of M/WBE firms are not restricted to that of a
subcontractor/subconsultant. Where applicable, M/WBE firms should be considered
for roles as prime contractors.


(a)                     Dividing the
contract work into smaller portions in such a manner as to permit
subcontracting to the extent that it is economically and technically feasible
to do so;


(b)                    Actively and
affirmatively soliciting bids from qualified M/WBEs, including circulation of
solicitations to minority and women’s trade associations. Each Contracting
Party shall maintain records detailing the efforts made to provide for
meaningful M/WBE participation in the work. Such record keeping must include
the names and addresses of all M/WBEs contacted and, if an M/WBE is the low
bidder and is not selected for such work or portion thereof, the reasons for
such decision;


(c)                     Making plans
and specifications for prospective work available to M/WBEs in sufficient time
for review;


(d)                    Utilizing the
services and cooperating with those organizations providing technical
assistance to the Contracting Party in connection with potential M/WBE
participation on the Contract;


(e)                     Utilizing the
resources of the AAO to identify New York State certified M/WBE firms for the
purpose of soliciting bids and subcontracts; and


(f)                       Encouraging
the formation of joint ventures, associations, partnerships, or other similar
entities, where appropriate, to ensure that the Contracting Party will meet its
obligations herein.


(g)                    The
Contracting Party shall remit payment in a timely fashion.


Best
Efforts - Minority Group Member and Female Workforce Participation


Although Best efforts
shall not be limited to the efforts specified herein, the compliance with the
following list shall be prima facie evidence that Best Efforts are being made
to provide for meaningful Minority Group Member and female workforce
participation.


(a)                     Ensure and
maintain a working environment free of harassment, intimidation, and coercion
at the premises. The Contracting Party shall specifically ensure that all
foremen, superintendents, and other on-site supervisory personnel are aware of
and carry out the obligation to maintain such a working environment, with
specific attention to Minority Group Member or female individuals working at
the premises;


(b)                    State in all
solicitations or advertisement for employees that all qualified applicants will
receive consideration for employment without regard to race, creed, color,
national origin, sex, sexual orientation, age disability or marital status;


(c)                     Send to each
labor union or representative of workers with which a collective bargaining
agreement or understanding is in place, a notice advising the said labor union
or workers’ representative of commitments under this Section, and post copies
of the notice in conspicuous places available to employees and applicants for
employment;


(d)                    Establish and
maintain a current list of Minority Group Member and female recruitment sources
and community organizations, and provide written notification to them when
employment opportunities are available. Maintain a record of the organizations’
responses;



 8
 






 



 


(e)                     Maintain
a current file of the name, address and telephone number of each Minority Group
Member and female applicant and any referrals from a union, recruitment source
or community organization, and of the action taken with respect to each
individual. If such individual was sent to the union hiring hall for referral
and was not referred back by the union or, if referred, was not employed, this
shall be documented in writing in the file with the reasons therefore, along
with whatever additional actions the Contracting Party may have taken;


(f)                       Disseminate
the Contracting Party’s equal employment opportunity policy by providing notice
of the policy to unions and training programs and requesting their cooperation
in meeting its Equal Employment Opportunity obligations, by including it in any
policy manual and collective bargaining agreement, by publicizing it in the
company newspaper, annual report, and other similar items, by specific review
of the policy with all management personnel and with all Minority Group Member
and female employees at least once a year, and by posting the company Equal
Employment Opportunity policy on bulletin boards accessible to all employees at
each location where work is performed under this Contract;


(g)                    Disseminate
the Contracting Party’s Equal Employment Opportunity policy externally by
including it in any advertising in the news media, specifically including
Minority Group Member and female news media, and providing written notification
to and discussing the Equal Employment Opportunity policy with any contractor
with whom the Contracting Party does or anticipates doing business; and,


(h)                    Ensure that
all facilities and company activities are non-segregated except that separate
or single-user toilets and necessary changing facilities shall be provided to
assure privacy between the sexes.



 9














 


 


	
  SCHEDULE
  A-1

  	
  42DP/EMPIRE STATE DEVELOPMENT

  
	
  MONTHLY EMPLOYMENT UTILIZATION REPORT

  
	
  (See reverse side for
  instructions)

  



 


	
  COMPANY NAME:

  	
  PROJECT NAME:

  	
  CONTRACTOR START
  DATE:

  	
  COMPANY
  EMPLOYMENT DATA

  
	
  ADDRESS:

  	
  PROJECT LOCATION

  	
  ESTIMATED COMPLETION DATE

  	
  A.

  	
  B.

  	
  C. NET
  INCREASE (applies only to changes, if any, in Company’s Employee makeup
  at the end of project)

  
	
   

  	
  COUNTY:                             ZIP                  

  	
  PERCENT OF JOB COMPLETED 

  (for reporting period)

  	
  TOTAL
  COMPANY

  	
  TOTAL
  COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TELEPHONE NUMBER:

  	
  REPORTING PERIOD              Month

  	
   

  	
  EMPLOYEES(at
  the beginning of project)

  	
  EMPLOYEES(at
  the end of project)

  	
  TOTAL
  MALE

  	
  TOTAL FEMALE

  
	
  FEDERAL ID NO:

  	
                                                       Year

  	
  CONTRACT NO:

  	
  C1.

  	
  C2.

  	
  C3.

  	
  C4.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  EMPLOYEES

  	
  OCCUPATIONAL

  	
  EMPLOYEES

  	
  OCCUPATIONAL

  
	
  CHECK IF NOT FOR PROFIT:

  	
   

  	
  CONTRACT
  AMOUNT:  1

  	
   

  	
   

  	
   

  	
  CODES/NUMBER
  

  	
   

  	
  CODES/NUMBER

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OF EMPLOYEES

  	
   

  	
  OF EMPLOYEES

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  

  	
  1.
  WORKER HOURS OF EMPLOYMENT

  	
  2.
  NUMBER OF WORKERS

  	
   

  	
  TOTAL

  WHITE

  	
   

  	
  TOTAL

  WHITE

  	
   

  
	
  CLASSIFICATION

  	
  1a. ALL WORKER HOURS

  	
  1b. BLACK (Not of Hispanic
  Origin)

  	
  1c. HISPANIC

  	
  1d. ASIAN or

  PACIFIC ISLANDER

  	
  1e. NATIVE

  AMERICAN/

  ALASKAN NATIVE

  	
  2a. ALL

  	
  2b. MINORITY

  	
  3. CONSTRUCTION TRADES

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MALE

  	
  FEMALE

  	
  TOTAL

  	
  MALE

  	
  FEMALE

  	
  MALE

  	
  FEMALE

  	
  MALE

  	
  FEMALE

  	
  MALE

  	
  FEMALE

  	
  MALE

  	
  FEMALE

  	
  MALE

  	
  FEMALE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Supervisory

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Journey Worker

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  TOTAL

  	
   

  
	
  Apprentice

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  BLACK

  	
   

  	
  BLACK

  	
   

  
	
  Trainee

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotal

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Journey Worker

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  TOTAL

  	
   

  
	
  Apprentice

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  HISPANIC

  	
   

  	
  HISPANIC

  	
   

  
	
  Trainee

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotal

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Journey Worker

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  TOTAL

  	
   

  
	
  Apprentice

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ASIAN

  	
   

  	
  ASIAN

  	
   

  
	
  Trainee

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotal

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL SUPERVISORS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TOTAL

  	
   

  	
  TOTAL

  	
   

  
	
  TOTAL JOURNEY WORKERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NATIVE

  AMERICAN

  	
   

  	
  NATIVE

  AMERICAN

  	
   

  
	
  TOTAL APPRENTICES

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL TRAINEES

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GRAND TOTAL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
																								



 


	
  CERTIFICATION

  	
   

  	
   

  
	
   

  	
   

  	
  I,
                                                                           (Print Name), the                                                                  
  (title), do certify that (1) I have read this Monthly Employment Utilization
  Report and (2) to the best at my knowledge, information and belief the
  information contained herein is complete and accurate.

  
	
   

  	
   

  	
  SIGNATURE                                                             
  DATE

  




 10














 


 


MONTHLY EMPLOYMENT
UTILIZATION REPORT


Instructions for Completion


The Monthly Employment Utilization Report (“MEUR”) is
to be completed by each subject contractor (both Prime and Sub) and signed by a
responsible official of the company. The reports are to be filed by the 5th day
of each month during the term of the project, and they shall include the total
work-hours for each employee classification in each trade in the covered area
for the monthly reporting period. The prime contractor is responsible for
submitting its subcontractors report, along with its own. Additional copies of
this form may be obtained from Empire State Development (“ESD”).


Minority. Includes
Blacks, Hispanics, Native Americans, Alaskan Natives, and Asian and Pacific
Islanders, both men and women.


	
  1.

  	
   

  	
  Worker
  Hours of Employment (a-e):

  	
   

  	
   

  
	
   

  	
   

  	
  a)
  All Worker Hours:

  	
   

  	
  The total number
  of male hours, the total number of female hours, and the total of both male
  and female hours worked under each classification.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b)
  through e) Minority Worker Hours 

  	
   

  	
  The total number
  of male hours and the total number of female hours worked by each specified
  group of minority worker in each classification.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Number
  of Workers (a-b):

  	
   

  	
   

  
	
   

  	
   

  	
  a)
  All Workers

  	
   

  	
  Total number of
  males and total number of females working in each classification of each
  trade in the contractor’s aggregate workforce during reporting period.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b)
  Minority Workers

  	
   

  	
  Total number of
  male minorities and total number of female minorities working in each
  classification, in each trade in the contractor’s aggregate workforce during
  reporting period.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Construction
  Trade:

  	
   

  	
  Only those
  construction crafts which contractor employs in the covered area. 

  Construction Trades include: Field
  Office Staff (Professionals and Office/Clerical), Laborers, Equipment
  Operators, Surveyors, Truck Drivers, Iron Workers, Carpenters, Cement Masons,
  Painters, Electricians, Plumbers and Other.

  



Note: ESD may demand payroll records to substantiate
work hours listed on the Monthly Employment Utilization Report, if
discrepancies should arise.


COMPANY EMPLOYMENT DATA
(Sections A through C):


The Contractor shall also include with the first MEUR
report and as part of the documentation required for final payment, such data
describing: a) the total number of company employees at commencement of the
project, b) the total number of company employees at the completion of the
project and c) any net increases in the number of employees in the company. Net
increases in employment shall be further classified by ethnicity, gender and
Occupational Code; and shall be attributable to the contractor’s participation
in an ESD and/or 42DPproject or
initiative.


	
  A.

  	
   

  	
  Total
  Company Employees:

  	
   

  	
  Total number of
  company employees in N.Y.S. offices, upon commencement of project.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Total
  Company Employees:

  	
   

  	
  Total number of
  company employees in N.Y.S. offices, upon completion of project.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Net
  Increase (C1 through C4):

  	
   

  	
  Provide
  information identifying any net increase in the number of employees in the
  company upon project completion. Classify any new employee by gender,
  ethnicity and occupation.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Male

  	
   

  	
   

  
	
   

  	
   

  	
  1. Employees

  	
   

  	
  Classify any new
  male employee by ethnic background. 

  
	
   

  	
   

  	
  2. Occupational Codes

  	
   

  	
  Identify occupation
  by using the Codes provided
  below and indicate number of employees in each category.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Female

  	
   

  	
   

  
	
   

  	
   

  	
  3. Employees

  	
   

  	
  Classify any new
  female employee by ethnic background.

  
	
   

  	
   

  	
  4. Occupational Codes

  	
   

  	
  Identify
  occupation by using the Codes provided
  below and indicate number of employees in each category.

  



 


	
  OCCUPATIONAL
  CODES

  	
   

  	
   

  
	
   

  	
   

  	
  Officials/Administrators

  	
   

  	
  100

  
	
   

  	
   

  	
  Professionals

  	
   

  	
  110

  
	
   

  	
   

  	
  Technicians

  	
   

  	
  120

  
	
   

  	
   

  	
  Sales Workers

  	
   

  	
  130

  
	
   

  	
   

  	
  Office &
  Clerical

  	
   

  	
  140

  
	
   

  	
   

  	
  Craft Workers

  	
   

  	
  150

  
	
   

  	
   

  	
  Operatives

  	
   

  	
  160

  
	
   

  	
   

  	
  Laborers

  	
   

  	
  170

  
	
   

  	
   

  	
  Service Workers

  	
   

  	
  180

  



 


	
  FORWARD
  TO:

  	
   

  	
   

  
	
   

  	
   

  	
  Empire State Development

  	
   

  	
   

  
	
   

  	
   

  	
  Laverne Poole - Affirmative Action Unit

  
	
   

  	
   

  	
  633 Third Avenue

  	
   

  	
   

  
	
   

  	
   

  	
  New York, NY 10017     Office: (212)
  803-3228     FAX: (212) 803-3223

  



 



 11
 






 



SCHEDULE A-2


MBE/WBE COMPLIANCE REPORT

CONSTRUCTION


 


	
  PROJECT
  SPONSOR/DEVELOPER:

  	
   

  	
  ESD
  AA REPRESENTATIVE: LAVERNE POOLE

  
	
  ADDRESS:

  	
   

  	
  PROJECT NAME: 

  
	
  TELEPHONE: 

  	
   

  	
  PROJECT START
  DATE:                

  	
  PERCENT
  COMPLETE: 

  
	
  CONTACT PERSON:

  	
   

  	
  ACTUAL
  COMPLETION: 

  
	
  TOTAL NUMBER OF
  SUBCONTRACTORS:

  	
   

  	
  Attach
  M/WBE contract documentation, i.e. executed contracts, signed purchase orders
  or canceled checks.

  
	
  TOTAL DOLLAR
  AMOUNT OF SUBCONTRACTS:

  	
   

  	
  This
  report should be completed by an officer of the reporting company, and
  forwarded to the ESD AA Representative with the appropriate documentation.

  



 


	
  PRIME CONTRACTOR

  (Name, Address, Contact Person and Phone)

  	
   

  	
  TYPE OF

  CONTRACT

  (Trade/Service)

  	
   

  	
  CONTRACT

  AMOUNT

  	
   

  	
  M/WBE

  SUBCONTRACT

  DATE

  	
   

  	
  MBE/WBE SUBCONSULTANT

  (Name, Address, Contact Person and Phone)

  	
   

  	
  SCOPE OF SERVICES

  	
   

  	
  AMOUNT CONTRACTED

  TO MBE/WBE

  
	
        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
        

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



CERTIFICATION:


I,                                                                         
(Print Name), the                                                               (Title),
do certify that (I) I have read this Compliance Report and (II) to the best of
my knowledge, information and belief the information contained herein is
complete and accurate.


SIGNATURE                                                                    
DATE


Forward to:


	
  Empire State
  Development 

  
	
  Laverne Poole -
  Affirmative Action Unit

  
	
  633 Third Avenue

  
	
  New York, NY
  10017          Office:
  (212) 803 3224          Fax:
  (212) 803 3223

  




 12














 


 


EXHIBIT P


STRUCTURE
OF TENANT (§ 30.1(a)(iii))

















 


 


The New York Times Building

(Development Phase)


 













 



 


The New York Times Building

(After Completion)













 



 


EXHIBIT Q


LIST
OF NFP USERS (§ 30.4(d)(i)(c))


The parties agree that
Tenant’s obligation under Section 30.4(d)(i)(c) shall be satisfied as follows:


On
approximately January 1 and July 1 during the PA Obligation Term, Tenant shall
mail a list of those dates that the Public Amenity Space is then available for
use by NFP Users in the upcoming six (6) months (i.e., those dates for which
there are no confirmed bookings) to the
following:


	
  1.

  	
   

  	
  Community Board
  #4;

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Community Board
  #5;

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The Times Square
  Business Improvement District;

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The Fashion
  District Business Improvement District;

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  All members of A.R.T./New York (including Full members and associate members),
  and any organization performing functions similar to A.R.T./New York identified
  by Landlord to Tenant (a “Comparable Organization”) so long as A.R.T./New
  York or such Comparable Organization
  provides to Tenant a mailing list of all of such members;

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  New York City
  Department of Cultural Affairs; and

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  The New 42nd
  Street, Inc.

  



 

















 


 


EXHIBIT R


FORM
OF MEMORANDUM OF LEASE (§ 33.1)









 



 


MEMORANDUM OF
AGREEMENT OF SUBLEASE


By and
Between


THE NEW YORK TIMES BUILDING LLC, 

as Landlord


and


NYT REAL ESTATE COMPANY LLC, 

as Tenant


Premises:


Block: 1012 

Lots:
1, 5, 8, 14, 53, 59, 61, 62, 63 and part
of 15

Borough of Manhattan 

County, City and State of New York


RECORD AND RETURN TO:


Swidler Berlin Shereff Friedman,
LLP

405 Lexington Avenue 

New York, New York 10174 

Attention: Marc Hurel, Esq.















 


 


MEMORANDUM OF AGREEMENT OF SUBLEASE


MEMORANDUM
OF AGREEMENT OF SUBLEASE (this “Memorandum”) dated as of December 12, 2001, by
and between THE NEW YORK TIMES BUILDING LLC, a New York limited liability
company, having an office at c/o The New York Times Company, 229 West 43rd Street, New
York, New York 10036 (“Landlord”) and NYT REAL ESTATE COMPANY LLC, a New
York limited liability company, having an office at c/o The New York Times
Company, 229 West 43rd Street, New York, New York 10036 (‘‘Tenant”).


W I
T N E S S E T H :


WHEREAS, New York State
Urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”) and The City of New York (the “City”) have
developed, and are in the process of implementing, a rehabilitation and renewal
plan for an area of midtown Manhattan
surrounding West 42nd Street between Broadway and Eighth Avenue, known as the
42nd Street Development Project (the “42nd
Street Project”);


WHEREAS,
in furtherance of the 42nd Street Project, ESDC has agreed to commence
proceedings to obtain fee title to the Premises (as hereinafter defined)
pursuant to a condemnation undertaken pursuant to the Eminent Domain Procedure
Law of the State of New York, as amended
from time to time;


WHEREAS,
promptly after ESDC obtains fee title to the Property described in Exhibit A attached hereto and made a part
hereof, ESDC will convey (a) to 42nd St. Development Project, Inc an estate on
limitation in the Property, and (b) to the City a reversionary estate in the
Property;


WHEREAS, Landlord and
Tenant are parties to that certain Agreement of Sublease (the “Sublease”),
dated as of December 12, 2001, pursuant to which Landlord leased to Tenant, and Tenant hired from Landlord, a portion
of the Property (the “Premises”), as more fully described in the
Sublease; and


WHEREAS,
in accordance with Sections 291-c and 294(7) of the New York State Real
Property Law and Section 33.1 of the Sublease, the parties desire to record a
memorandum summarizing certain (but not all) of the provisions, covenants and
conditions set forth in the Sublease.



 2
 






 



 


NOW, THEREFORE, Landlord and Tenant declare as
follows:


1.       The
name and address of Landlord is:


THE NEW YORK TIMES BUILDING LLC

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036


2.       The name and address of Tenant is:


NYT REAL ESTATE COMPANY LLC 

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036


3.       The
premises demised under the Sublease are the Premises.


4.       The
term of the Sublease commenced on December 12, 2001 (the “Commencement Date”) and ends on the day before the
ninety-ninth (99th) anniversary of the Commencement
Date (unless sooner terminated in accordance with the terms, covenants or
conditions of the Sublease or pursuant to law) (the “Expiration Date”).


5.       Pursuant
to and in accordance with the Sublease, Tenant has an option to purchase, on or
before the Expiration Date but after a
condominium regime is imposed on the leasehold interest over lease, the
interests of both the Landlord and The City of New York in and to the Premises.


6.       This
Memorandum is subject to all of the terms, conditions and provisions of the
Sublease and shall not be construed to vary or otherwise affect such terms,
conditions and provisions or the rights and obligations of the parties thereto.
In the event of any conflict between the
terms, conditions and provisions of the Sublease and this Memorandum, the
terms, conditions and provisions of the Sublease shall control.



 3














 


 


IN WITNESS WHEREOF, Landlord and Tenant have duly
executed this Memorandum on the date hereinabove first set forth.


	
   

  	
   

  	
  THE NEW YORK TIMES BUILDING LLC

  
	
  



  	
   

  	
  By: 

  	
  NYT Real Estate Company LLC, member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  David A. Thurm

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Manager

  
							



 


	
   

  	
   

  	
  By: 

  	
  FC Lion LLC, member 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  FC 41st Street Associates, LLC, its managing member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  RRG 8 South, Inc., its managing member

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
   

  	
  NYT REAL ESTATE COMPANY LLC

  
	
  



  	
   

  	
  By: 

  	
  



  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 










 



 


ACKNOWLEDGMENTS


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW
  YORK

  	
  )

  	
   

  



On the 12th day of December, in the year 2001, before me,
the undersigned, a Notary Public in and for said State, personally appeared
David A. Thurm, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


 


	
   

  	
  



  	
   

  	
   

  	
  



  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public

  Commission Expires

  



 


	
  STATE OF NEW
  YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW
  YORK

  	
  )

  	
   

  



On the 12th day of December in the year 2001, before me,
the undersigned, a Notary Public in and for said State, personally appeared               ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.


 


	
   

  	
  



  	
   

  	
   

  	
  



  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public

  Commission Expires

  



 

















 


	
  STATE OF NEW
  YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW
  YORK

  	
  )

  	
   

  



On the 12th day of December in the year 2001, before me,
the undersigned, a Notary Public in and for said State, personally appeared               ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.


 


	
   

  	
  



  	
   

  	
   

  	
  



  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public

  Commission Expires

  



 










 



 


Exhibit A


The Property


All that certain plot,
piece or parcel of land, situate, lying and being in the Borough of Manhattan
County of New York, City and State of New York, bounded and described as
follows:


BEGINNING at the corner
formed by the intersection of the northerly line of West 40th Street with the easterly line of 8th Avenue.


RUNNING
THENCE northerly along said easterly line of 8th Avenue, 197
feet 6 inches to the corner formed by the intersection of the easterly
side of 8th Avenue with the southerly line of West 41st Street;


THENCE easterly along
said southerly line of West 41st Street, 400 feet;


THENCE southerly and
parallel to said easterly line of 8th Avenue, 197 feet 6 inches to the northerly
line of West 40th Street;


THENCE westerly along
said northerly line of West 40th Street,
400 feet to the point or place of BEGINNING.


Being the property
located at and known as Block 1012, Lots 1, 5, 8, 14, 53, 59, 61, 62, 63 and
part of 15 on the Tax Assessment Map of the County of New York.










 



 


MEMORANDUM OF AGREEMENT OF SUBLEASE


By and Between


THE NEW YORK TIMES
BUILDING LLC,

as Landlord


and


NYT REAL ESTATE COMPANY
LLC,

as Tenant


Premises:


Block: 1012

Lots:  1, 5, 8, 14, 53, 59, 61, 62, 63
and part of 15

Borough of Manhattan

County, City and State of New York


RECORD AND RETURN TO:


Swidler Berlin Shereff
Friedman, LLP

405 Lexington Avenue

New York, New York 10174

Attention: Marc Hurel, Esq.

















 


 


MEMORANDUM OF AGREEMENT
OF SUBLEASE


MEMORANDUM OF AGREEMENT
OF SUBLEASE (this “Memorandum”) dated as of December 12, 2001, by and
between THE NEW YORK TIMES BUILDING LLC, a New York limited liability company,
having an office at c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036 (“Landlord”) and NYT REAL ESTATE COMPANY LLC, a New York limited liability
company, having an office at c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036 (“Tenant”).


W
I T N E S S E T H:


WHEREAS, New York State
Urban Development Corporation d/b/a Empire State Development Corporation (“ESDC”) and
The City of New York (the “City”) have developed, and are in the process of
implementing, a rehabilitation and renewal plan for an area of midtown
Manhattan surrounding West 42nd Street between Broadway and Eighth Avenue,
known as the 42nd Street Development Project (the “42nd Street Project”);


WHEREAS, in furtherance
of the 42nd Street Project, ESDC has agreed to commence proceedings to obtain
fee title to the Premises (as hereinafter defined) pursuant to a condemnation
undertaken pursuant to the Eminent Domain Procedure Law of the State of New
York, as amended from time to time;


WHEREAS, promptly after
ESDC obtains fee title to the Property described in Exhibit A attached hereto and made a part hereof, ESDC will
convey (a) to 42nd St. Development Project, Inc an estate on limitation in the
Property, and (b) to the City a reversionary estate in the Property;


WHEREAS, Landlord and
Tenant are parties to that certain Agreement of Sublease (the “Sublease”), dated as of December 12, 2001, pursuant to which Landlord
leased to Tenant, and Tenant hired from Landlord, a portion of the Property
(the “Premises”), as more fully described in the Sublease;
and


WHEREAS, in accordance
with Sections 291-c and 294(7) of the New York State Real Property Law and
Section 33.1 of the Sublease, the parties desire to record a memorandum
summarizing certain (but not all) of the provisions, covenants and conditions
set forth in the Sublease.



 2
 






 



 


NOW, THEREFORE, Landlord
and Tenant declare as follows:


1.         The name and address of Landlord is:


THE NEW YORK TIMES BUILDING LLC

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036


2.                          The name
and address of Tenant is:


NYT REAL ESTATE COMPANY LLC

c/o The New York Times Company

229 West 43rd Street

New York, New York 10036


3.                          The
premises demised under the Sublease are the Premises.


4.                          The term
of the Sublease commenced on December 12, 2001 (the “Commencement Date”) and ends on the day before the
ninety-ninth (99th) anniversary of the Commencement Date (unless sooner
terminated in accordance with the terms, covenants or conditions of the
Sublease or pursuant to law) (the “Expiration
Date”).


5.                          Pursuant
to and in accordance with the Sublease, Tenant has an option to purchase, on or
before the Expiration Date but after a condominium regime is imposed on the
leasehold interest over lease, the interests of both the Landlord and The City
of New York in and to the Premises.


6.                          This
Memorandum is subject to all of the terms, conditions and provisions of the
Sublease and shall not be construed to vary or otherwise affect such terms,
conditions and provisions or the rights and obligations of the parties thereto.
In the event of any conflict between the terms, conditions and provisions of
the Sublease and this Memorandum, the terms, conditions and provisions of the
Sublease shall control.



 3














 


 


IN WITNESS WHEREOF, Landlord and Tenant have duly
executed this Memorandum on the date hereinabove first set forth.


 


	
   

  	
   

  	
  THE NEW YORK TIMES BUILDING LLC

  
	
   

  	
   

  	
  By:

  	
  NYT Real Estate Company LLC, member

  
	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
  

  /s/ David A. Thurm

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:  David A. Thurm

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:    Manager

  



 


	
   

  	
   

  	
  By:

  	
  FC Lion LLC, member

  
	
   

  	
   

  	
   

  	
  By: FC 41st Street Associates, LLC, its managing member

  
	
   

  	
   

  	
   

  	
   

  	
  By: RRG 8 South, Inc., its managing member

  
	
   

  	
   

  	
   

  	
   

  	
  

  By:

  	
  /s/ David L. Berliner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: 

  	
  David L. Berliner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title: 

  	
  Sr. Vice President

  
								



 


	
   

  	
   

  	
  NYT REAL ESTATE COMPANY LLC

  
	
   

  	
   

  	
  By: 

  	
  

  /s/ David A. Thurm

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  David A. Thurm

  
	
   

  	
   

  	
   

  	
   

  	
  Title:    Manager

  



 


 

















 


ACKNOWLEDGMENTS


 


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  



On the 12th day of
December, in the year 2001, before me, the undersigned, a Notary Public
in and for said State, personally appeared David A. Thurm, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his capacity, and
that by his signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.


 


	
  

  	
   

  	
   

  	
   

  	
  /s/ Courtney Clerét Seibert

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public 

  
	
   

  	
   

  	
   

  	
   

  	
  Commission Expires

  



 


	
  

  	
   

  	
   

  	
  COURTNEY CLERÉT
  SEIBERT

  
	
   

  	
   

  	
   

  	
  Notary Public -
  State of New York

  
	
   

  	
   

  	
   

  	
  No. 01SE6049249

  
	
  STATE OF NEW YORK

  	
  )

  	
   

  	
  Qualified in New
  York County

  
	
   

  	
  )

  	
  ss.:

  	
  My Commission
  Expires October 10, 2002

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  	
   

  



 


On the 12th day of December in the year
2001, before me, the undersigned, a Notary Public in and for said
State, personally appeared David Berliner, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by signature on the instrument, the individual,
or the person upon behalf of which the individual acted, executed the
instrument.


 


	
  

  	
   

  	
   

  	
   

  	
  /s/ Courtney Clerét Seibert

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public 

  
	
   

  	
   

  	
   

  	
   

  	
  Commission Expires

  



 


	
   

  	
   

  	
   

  	
  COURTNEY CLERÉT
  SEIBERT

  Notary Public - State of New York

  No. 01SE6049249

  Qualified in New York County

  My Commission Expires October 10, 2002

  



 















 


 


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  



On the 12th day of December in the year 2001, before me,
the undersigned, a Notary Public in and for
said State, personally appeared David Thurm, personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in
his capacity, and that by signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the
instrument.


 


 


	
  

  	
   

  	
   

  	
   

  	
  /s/ Courtney Clerét Seibert

  
	
   

  	
   

  	
   

  	
   

  	
  Notary Public 

  
	
   

  	
   

  	
   

  	
   

  	
  Commission Expires

  



 


 


	
  

  	
   

  	
   

  	
  COURTNEY CLERÉT
  SEIBERT

  Notary Public - State of New York

  No. 01SE6049249

  Qualified in New York County

  My Commission Expires October 10, 2002

  



 















 


Exhibit A 


The Property


All that certain plot, piece or parcel of land, situate, lying and
being in the Borough of Manhattan County of New York, City and State of New
York, bounded and described as follows:


BEGINNING at the corner formed by the intersection
of the northerly line of West 40th Street with
the easterly line of 8th Avenue.


RUNNING THENCE northerly along said easterly line
of 8th Avenue, 197
feet 6 inches to the corner formed by the intersection of the easterly
side of 8th Avenue with the southerly line of West 41st Street;


THENCE easterly along said southerly line of West 41st Street, 400 feet;


THENCE southerly and parallel to said easterly
line of 8th Avenue, 197
feet 6 inches to the northerly line of West 40th Street;


THENCE westerly along said northerly line of West
40th Street, 400
feet to the point or place of BEGINNING.


Being the property located at and known as Block 1012,
Lots 1, 5, 8, 14, 53, 59, 61, 62, 63 and part of 15 on the Tax Assessment Map
of the County of New York.


 















 


 


 



















 



TP-584 (10/96)


 


	
  Schedule
  B — (continued)

  



Part III -
Explanation of Exemption Claimed in Part I, line 1 (check any boxes that apply)


The conveyance of real property is exempt from the real estate transfer
tax for the following reason:


 


	
  a.

  	
  Conveyance is to the United Nations, the United
  States of America, the state of New York or any of their instrumentalities,
  agencies or political subdivisions (or any public corporation, including a
  public corporation created pursuant to agreement or compact with another
  state or Canada)

  	
  a o

  
	
  b.

  	
  Conveyance is to secure
  a debt or other obligation

  	
  b o

  
	
  c.

  	
  Conveyance is without
  additional consideration to confirm, correct, modify or supplement a prior
  conveyance

  	
  c o

  
	
  d.

  	
  Conveyance of real
  property is without consideration and not in connection with a sale,
  including conveyances conveying realty as bona fide gifts

  	
  d o

  
	
  e.

  	
  Conveyance is given in
  connection with a tax sale

  	
  e o

  
	
  f.

  	
  Conveyance is a mere
  change of identity or form of ownership or organization where there is no
  change in beneficial ownership. (This exemption cannot be claimed for a
  conveyance to a cooperative housing corporation of real property comprising
  the cooperative dwelling or dwellings.) Attach Form TP-584.1, Schedule F

  	
  f o

  
	
  g.

  	
  Conveyance consists of
  deed of partition

  	
  g o

  
	
  h.

  	
  Conveyance is given
  pursuant to the federal bankruptcy act

  	
  h o

  
	
  i.

  	
  Conveyance consists of
  the execution of a contract to sell real property without the use or
  occupancy of such property or the granting of an option to purchase real
  property without the use or occupancy of such property

  	
  i o

  
	
  j.

  	
  Conveyance of an option
  of contract to purchase real property with the use or occupancy of such
  property where the consideration is less than $200,000 and such property was
  used solely by the grantor as the grantor’s personal residence and consists
  of a 1-, 2-, or 3-family house, an individual residential condominium unit,
  or the sale of stock in a cooperative housing corporation in connection with
  the grant or transfer of a proprietary leasehold covering an individual
  residential cooperative apartment

  	
  j o

  
	
  k.

  	
  Conveyance is not a
  conveyance within the meaning of section 1401(e) of Article 31 of the Tax Law
  (attach documents supporting such claim)

  	
  k o

  
	
  I.

  	
  Other
  (attach explanation). See
  Attached Advisory- -Opinion

  	
  l x

  



 


	
  Schedule
  C — Credit Line Mortgage Certificate (Article 11 of the Tax Law)

  



Complete the following only if the
interest being transferred is a fee simple interest.


I (we) certify that: (check
the appropriate box)


 


	
  1

  	
  o

  	
  The real property being sold or transferred is not
  subject to an outstanding credit line mortgage.

  
	
  2

  	
  o

  	
  The real property being sold or transferred is
  subject to an outstanding credit line mortgage. However, an exemption from
  the tax is claimed for the following reason:

  
	
   

  	
   

  	
  o

  	
  The transfer of real property is a transfer of a fee
  simple interest to a person or persons who held a fee simple interest in the
  real property (whether as a joint tenant, a tenant in common or otherwise)
  immediately before the transfer.

  
	
   

  	
   

  	
  o

  	
  The transfer of real property is (A) to a person or
  persons related by blood, marriage or adoption to the original obligor or to
  one or more of the original obligors or (B) to a person or entity where 50%
  or more of the beneficial interest in such real property after the transfer
  is held by the transferor or such related person or persons (as in the case
  of a transfer to a trustee for the benefit of a minor or the transfer to a
  trust for the benefit of the transferor).

  
	
   

  	
   

  	
  o

  	
  The transfer of real property is a transfer to a
  trustee in bankruptcy, a receiver, assignee or other officer of a court.

  
	
   

  	
   

  	
  o

  	
  The maximum principal amount secured by the credit
  line mortgage is $3,000,000 or more and the real property being sold or
  transferred is not principally
  improved nor will it be improved by a one- to six-family owner-occupied
  residence or dwelling.

  
	
   

  	
   

  	
   

  	
  Please note: for
  purposes of determining whether the maximum principal amount secured is
  $3,000,000 or more as described above, the amounts secured by two or more
  credit line mortgages may be aggregated under certain circumstances. See
  TSB-M-96(6)-R for more information regarding these aggregation requirements.

  
	
   

  	
   

  	
  o

  	
  Other (attach detailed explanation).

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  o

  	
  The real property being transferred is presently
  subject to an outstanding
  credit line mortgage. However, no tax is due for the following reason:

  
	
   

  	
   

  	
  o

  	
  A certificate of discharge of the credit line
  mortgage is being offered at the time of recording the deed.

  
	
   

  	
   

  	
  o

  	
  A check has been drawn payable for transmission to
  the credit line mortgagee of his agent for the balance due, and a
  satisfaction of such mortgage will be recorded as soon as it is available.

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  o

  	
  The real property being transferred is subject to an
  outstanding credit line mortgage recorded in                   
  (insert liber and page or reel or other identification of the mortgage). The
  maximum principal amount of debt or obligation secured by the mortgage is                   .
  No exemption from tax is claimed and the tax of                   
  is being paid herewith. (Make check
  payable to county clerk where deed will be recorded or, if the recording is
  to take place in New York City, make check payable to the NYC Department of Finance.)

  
	
   

  	
   

  	
   

  	
   

  



 


	
  Signature (both the grantor(s) and grantee(s) must
  sign).

  



The undersigned certify that the above return,
including any certification, schedule or attachment, is to the best of his/her
knowledge, true and complete.


 


	
  See Attached Signature Rider

  	
   

  	
   

  	
   

  	
  See Attached Signature
  Rider

  	
   

  	
   

  
	
  Grantor

  	
   

  	
  Title

  	
   

  	
  Grantee

  	
   

  	
  Title

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



Reminder: Did you complete all of the required
information In Schedules A and B? Were you required to complete Schedule C? If
you checked e, f or g in Schedule A, did you complete TP-584.1? Have you
attached your check(s) made payable to the county clerk where recording will
take place or, if the recording is In New York City, to the NYC Department  of Finance? If
no recording is required, send your check(s), made payable to the Department of Taxation and Finance, directly to the NYS Tax Department,
TTTB-Transfer Tax, PO Box 5045, Albany NY 12205-5045.


 









 



Form TP-584 - Real Estate Transfer Tax Return

SIGNATURE RIDER - GRANTOR


The undersigned certifies that the above return,
including any certification, schedule or attachment, is to the best of his/her
knowledge, true and complete.


Employer Identification Number: 52-2361085


 


Name of Grantor: THE NEW YORK TIMES BUILDING LLC


Signature of Grantor:


 


	
  By:

  	
  NYT Real Estate Company LLC, Member

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employer Identification Number : 13-1102020

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David A. Thurm

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  David
  A. Thurm

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  Manager

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
											



 


	
  By:

  	
  FC Lion LLC, Member Employer
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Identification Number: 31-1813969

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FC 41st Street Associates, LLC, its managing member

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By: RRG 8 South, Inc. its managing member

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David L. Berliner

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:  David L. Berliner

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:  Sr.
  Vice President

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















Form TP-584 - Real Estate Transfer Tax Return

SIGNATURE RIDER - GRANTEE


The undersigned certifies that the above return, including any
certification, schedule or attachment, is to
the best of his/her knowledge, true and complete.


Employer Identification Number: 13-1102020 


Name of Grantee: NYT Real Estate Company LLC


 


	
  Signature of Grantee:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  
	
  By:

  	
  /s/ David A. Thurm

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David A. Thurm

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Manager

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
											



 


















STATE OF NEW YORK

COMMISSIONER OF TAXATION AND FINANCE


 


	
  

  	
   

  	
  ADVISORY OPINION

  	
   

  	
  PETITION NO. M010809B

  
	
   

  	
   

  	
   

  	
   

  	
   

  



On August 8, 2001, the
Department of Taxation and Finance received a Petition for Advisory Opinion
from the New York Times Company and Forest City Ratner on behalf of themselves
and The New York Times Building LLC (LLC) and
its members, which will be New York limited liability companies formed
by Petitioners. The members of LLC (each a “Member” and collectively “the Members”) will be FC Lion, LLC (FC Member)
and NYT Real Estate Company LLC (NYT Member).
Additional information related to the Petition was received on September 5,
2001, November 15, 2001 and November
28, 2001.


The issues raised by
Petitioners, based on the facts described in this Petition, are:


 


	
  1.

  	
  Whether the real estate transfer tax is due upon
  transfer of vacant possession of the Land
  from the State Parties to LLC when the rights and obligations of LLC with respect to the Land as ground lessee under the
  Ground Lease commence.

  
	
   

  	
   

  
	
  2.

  	
  Whether the real estate transfer tax due upon the
  conveyance of the Land by the State Parties
  to LLC is to be computed based upon $85,560,000 (“the Initial Land Acquisition Amount”) and the value of the limited
  percentage rent due for the first twenty-nine years of the term of the Ground
  Lease.

  
	
   

  	
   

  
	
  3.

  	
  Whether real estate transfer tax will be due upon
  the execution of the Ground Lease and
  other documents and the recording of the Memorandum of the Ground Lease and other related documents, as described below.

  
	
   

  	
   

  
	
  4.

  	
  Whether the transfers of condominium units from LLC
  to its respective members are exempt from
  the real estate transfer tax.

  



 


Petitioners present the
following facts as the basis for this Advisory Opinion.


Petitioners, through LLC, will
develop a real estate project (the “Project”) on property (the “Land”)
located on the east side of Eighth Avenue between 40th and 41st Streets, which is
situated in an area of midtown Manhattan that is being rehabilitated and
renewed by the State of New York. It is intended that the Project, when
constructed, will be converted to condominium ownership and will comprise a
number of condominium units, the FC Units (1) (referred to herein as the


 






(1) The “FC Units” shall
consist of a FC Retail Unit and FC Individual Office Units. Each FC Individual
Office Unit will be its own separate condominium unit, with each such Unit
comprising a floor of the Building. The FC Retail Unit and FC Individual Office
Units will be leased to one or more space tenants under separate unit subleases
as set forth in the declaration of condominium to be finalized by the Members following the Land acquisition and
substantial completion of the improvements
(the “Condominium Declaration”) for the Project.















 


 


“FC
Member Space”), the NYT Unit and the Special Purpose Unit (2) or “SPU”, and
common elements including core mechanical facilities, lobbies, etc. The
NYT Unit and SPU are both to be owned by NYT
Member (the NYT Unit and the SPU, collectively, are referred to as the “NYT Member Space”). The Members intend to construct
upon the Land an office building (the “Building”)
of approximately 1,430,000 gross square feet of above grade space, additional
below grade space and additional roof
top and mechanical space, which shall include retail space and subway improvements. The New York Times Company, an
affiliate of NYT Member, intends to locate its world headquarters in the
NYT Member Space; FC Member intends to create commercial office space and retail space in the FC Member
Space.


The Land


In
furtherance of the Project development plan, 42nd St.
Development Project, Inc. (“42DP”), a subsidiary of New York State Urban
Development Corporation d/b/a Empire State Development Corporation, and which
is a corporate governmental agency of the State of New York constituting an
instrumentality of the State of New York and public benefit corporation
(collectively referred to as the “State Parties), will obtain fee title to the
Land through condemnation proceedings. The Land is being acquired by the State Parties pursuant to the Land Acquisition
and Development Agreement (the “LADA”) by and among the State Parties and LLC.
Pursuant to the LADA, LLC will post with the State Parties one or more
letters of credit in an amount equal to 120% of the aggregate amount of the
appraised value of the Land to be taken by condemnation and the estimated costs
to relocate existing tenants and occupants.
The amount of the letters of credit will be at least $106 million (consisting
of $85,560,000 and additional assurance funds of $21 million) for such initial
land acquisition fund ( $85,560,000 is
hereinafter called the “Initial Land Acquisition Amount”). The State
Parties will draw upon the letters of credit to obtain the funds necessary to
acquire the Land through condemnation
proceedings. Upon completion of condemnation, title to the Land will be held
by 42DP and will be leased to LLC pursuant to a ground lease (the “Ground
Lease”), but LLC will not have the rights of a tenant under the Ground Lease until
vacant possession of the Land has been
delivered to LLC, as described below. It is anticipated that upon execution of
the necessary documents with the
State Parties, including the Ground Lease, a Memorandum of Ground Lease and other related documents will be recorded.(3)


In the event that the
State Parties expend more than the Initial Land Acquisition Amount to acquire
vacant possession of the Land, the State Parties will draw upon the $21 million
additional assurance funds available under the letters of credit, and if
additional funds are required, LLC will pay
such amounts to the State Parties. To the extent such funds in excess of the
Initial Land Acquisition Amount are
expended, LLC will be entitled to a reimbursement of such excess by means of a credit against 85% of future Payments in Lieu
of Real Estate Taxes (“PILOT payments”)


 






(2) The Special Purpose Unit shall contain public amenities, including an
auditorium and exhibition space,
which will be used by NYT Member, not-for-profit entities, and other third
parties.


(3) The related documents
include the Members’ Subleases, discussed infra, the LADA, and a Declaration
and Agreement of Design, Use and Operation. 



 2
 






 



otherwise due from LLC to 42DP as occupancy payments
under the Ground Lease. In the event that the State Parties expend less than
the Initial Land Acquisition Amount to acquire title to and vacant possession of the Land, LLC will nevertheless be
obligated to pay the Initial Land Acquisition Amount for the Land.


The Ground Lease will
take effect and the letters of credit will be posted upon execution of the
Ground Lease and the LADA. However, the rights and obligations of LLC with
respect to the Land as ground lessee under the Ground Lease will not commence
until title has been acquired by the State
Parties through condemnation proceedings (which has not yet occurred) and
vacant possession of the Land has been delivered to LLC. (It is
anticipated that it may take approximately one year for the State Parties to
obtain vacant possession of the Land once title has been acquired). Although entitled a “Lease”, for tax purposes,
the LADA and Ground Lease result in a sale between the State Parties and LLC of the Land. Pursuant to
the terms of the LADA, the LLC and State Parties have agreed that the transaction
price for the Land is $85,560,000 (the Initial Land Acquisition Amount).
While the Ground Lease is for a term of 99 years, the LLC as ground lessee has
an option to purchase the Land pursuant to the Ground Lease after 29 years
following delivery of possession for a purchase price of $10. Payments under
the Ground Lease for the first 29 years will
be limited to PILOT payments, a theater surcharge, which relates to real estate
taxes for the Times Square District, and limited percentage rent. If the
Ground Lease continues after 29 years, the
only occupancy payments required then will be actual real estate taxes instead
of PILOT payments. The Ground Lease
is a ‘triple net lease,” as a result of which, LLC bears all the costs and burdens
of ownership throughout the term of the Ground Lease.


Simultaneously
with entering into the Ground Lease, LLC will enter into subleases with FC Member (the “FC Sublease”) for the FC Member Space
and a sublease with NYT Member (the “NYT
Sublease”) for the NYT Member Space (the FC Sublease and the NYT Sublease,
collectively, the “Members’ Subleases”), which will allocate all
financial obligations under the Ground Lease between the two Members’
subleases.


The Building


The Building will be
developed, beneficially owned from the outset, and operated, by FC Member and NYT Member. However, the State Parties
have insisted on a single lease and a unified (or cross collateralized)
set of obligations covering all project components during the development and construction phase. In addition, it is
anticipated that the construction lender will prefer that title be held by a
single entity during construction. To this end, NYT Member and FC Member will
form LLC which will lease the Land from 42DP pursuant to the Ground
Lease and develop the Project. LLC will enter into the construction loan and
construction agreements for the core and shell of the Building but permanent financing will be separately obtained by each
Member for its Member Space.
Following substantial completion of the improvements, LLC will submit its
leasehold interest in the Project to condominium ownership pursuant to a
Declaration of Leasehold Condominium
(“Condominium Declaration”), in accordance with New York law, and the Condominium Declaration will be recorded. After completion
of the improvements, LLC will assign to
42DP all of its interest in the Project and the Ground Lease pursuant to an
Assignment and Assumption of Ground Lease (the “Lease Assignment”). The
Ground Lease contains a non-merger


 



 3
 






 



clause
and the Lease Assignment will contain a non-merger provision, which ensure that
42DP remains as lessor under the Ground Lease and that 42DP becomes
lessee under the Ground Lease and sublessor under the Members’ Subleases, such
that the Members’ Subleases remain in existence as direct ground leases between 42DP as lessor and FC Member and NYT
Member as lessees, (collectively, the “Unit Leases”). The Unit Leases shall
contain the same terms as the Members’ Subleases contained with LLC,
except that such Unit Leases will be amended to more accurately describe the
Members’ Spaces as constructed.


LLC’s Operating Agreement
(the “Operating Agreement”) provides that, from inception and at all times thereafter, each Member is the sole
beneficial owner of such Member’s Space. In the case of the FC Units,
the Operating Agreement makes clear that FC Member is the sole beneficial owner
of the FC Member Space from the inception of the Project FC Member also is the
beneficial owner of the FC Membership
Interest in LLC from the inception of the Project. Likewise, NYT Member is the beneficial owner of the NYT Member
Space from the inception of the Project, as well as, the beneficial owner of the NYT Membership Interest in LLC. The
Operating Agreement further provides
that each Member will receive all benefits, and bear all obligations,
attributable to its respective space and the common elements of the
condominium. All items of profit and loss, tax deductions and credits,
and cash flow, attributable to a Member’s Space, will be fully allocated to that Member. No Member will have any beneficial
interest in any other Member’s Space. Liquidating
distributions will also be based on separate ownership by each Member of its
respective Member Space.


The
project will be financed through a combination of Member investments and one or
more construction loans. The Operating Agreement apportions the
construction financing between the Members
pursuant to a formula based on the relative share of the total costs of
construction allocable to each Member’s Space. Upon conveyance by LLC of
the Units to the Members, it is anticipated that each Member will arrange its
own permanent financing.


Applicable Law and Regulations


Section
1402 of the Tax Law imposes the real estate transfer tax on each conveyance of
real property or interest therein when the consideration exceeds five
hundred dollars.


Subdivision (d) of
Section 1401 of the Tax Law provides, in part:


“Consideration”
means the price actually paid or required to be paid for the real property or
interest therein, including payment for an option or contract to purchase real property, whether or not expressed in
the deed and whether paid or required to be paid by money, property, or
any other thing of value. It shall include the cancellation or discharge of an
indebtedness or obligation. It shall also include the amount of any mortgage, purchase money mortgage, lien or other
encumbrance, whether or not the underlying indebtedness is assumed or
taken subject to.


Subdivision (e) of
Section 1401 of the Tax Law provides: 



 4
 






 



 


“Conveyance” means
the transfer or transfers of any interest in real property by any method,
including but not limited to sale, exchange, assignment, surrender, mortgage
foreclosure, transfer in lieu of foreclosure, option, trust indenture, taking by eminent domain, conveyance upon liquidation or
by a receiver, or transfer or acquisition
of a controlling interest in any entity with an interest in real property.
Transfer of an interest in real property shall include the creation of a
leasehold or sublease only where (i) the sum of the term of the lease or
sublease and any options for renewal exceeds
forty-nine years, (ii) substantial capital improvements are or may be made by
or for the benefit of the lessee or sublessee, and (iii) the lease or sublease
is for substantially all of the premises constituting the real property.
Notwithstanding the foregoing, conveyance of real property shall not include a conveyance
pursuant to devise, bequest or inheritance; the creation, modification, extension, spreading, severance, consolidation,
assignment, transfer, release or satisfaction of a mortgage; a mortgage
subordination agreement, a mortgage severance
agreement, an instrument given to perfect or correct a recorded mortgage; or
a release of lien of tax pursuant to this chapter or the internal revenue code.


Subdivision (f) of Section 1401 of the Tax Law
provides, in part:


“Interest
in the real property” includes title in fee, a leasehold interest, a beneficial
interest, an encumbrance, development rights, air space and air rights, or any
other interest with the right to use or occupancy of real property or the right
to receive rents, profits or other income derived from real property....


Subdivision (b) of Section 1405 of the Tax Law provides, in part:


The tax shall not apply
to the following conveyances:


6.
Conveyances to effectuate a mere change of identity or form of ownership or
organization where there is no change in beneficial ownership....


*               *               *


9.
Conveyances of real property which consist of the execution of a contract to
sell real property without the use or occupancy of such property or the
granting of an option to purchase real property without the use or
occupancy of such property;


Subdivision (a) of Section 1410 of the Tax Law
provides, in part:


The
tax imposed hereunder shall be paid to the commissioner, or to any agent of
the commissioner appointed pursuant to section fourteen hundred seven of this article, no later than the fifteenth day after the
delivery of the instrument effecting the conveyance by the grantor to
the grantee....



 5
 






 



 


Opinion


Under the LADA, LLC has
the obligation to fund the State Parties’ acquisition costs of the land. To
that end, LLC will advance an amount currently estimated to be not less than
$106 million to the State Parties;
$85,560,000 as consideration for the acquisition of the land, and additional amounts (currently estimated to be a minimum of
$21,000,000) representing assurance funds for possible additional
acquisition costs for the Land which may be incurred by the State Parties. Any
acquisition costs in excess of $85,560,000 million will be credited against
future PILOT payments under the Ground Lease.
Once the State Parties have obtained the Land, the LADA provides that the State Parties shall remove all occupants and
deliver possession of the Land to LLC. At this point in time, the rights and obligations of LLC with
respect to the Land as ground lessee under the Ground Lease shall
commence.


Although entitled a
“lease,” for tax purposes, the LADA and Ground Lease result in a sale between
the State Parties and LLC of the Land. The Ground Lease is a “triple net
lease,” as a result of which, LLC bears all
the costs and burdens of ownership throughout the term of the Ground Lease.
While the Ground Lease is for a term of ninety-nine years, the Ground Lease
contains a purchase option that
allows LLC to acquire the property 29 years after delivery of vacant possession
for the nominal amount of $10. The annual payments required under the
Ground Lease for the first 29 years of the term of the lease are limited to
PILOT payments, a theater surcharge (which relates to real estate taxes for the
Times Square District), and limited percentage rent. No other occupancy charges are payable under the Ground Lease. The
combined effect of the purchase option and payments under the Ground
Lease and LLC’s obligations under the LADA is to transfer beneficial ownership of the Land to LLC and its Members upon
delivery of possession.


As
noted above, Section 1402 of the Tax Law imposes the real estate transfer tax
on each conveyance of real property
or interest therein when the consideration exceeds five hundred dollars. Section
1401(e) of the Tax Law defines the term “conveyance” as the transfer or
transfers of any interest in real property
by any method. Section 1401(f) of the Tax Law states that an interest in real property “includes title in fee, a leasehold
interest, a beneficial interest, an encumbrance, development rights, air
space and air rights, or any other interest with the right to use or occupancy of real property or the right to receive rents,
profits or other income derived from real property.” As defined in Section
1401(d) of the Tax Law, consideration “means the price actually paid or
required to be paid for the real
property or interest therein, including payment for an option or contract to purchase
real property... whether paid or required to be paid by money, property, or any
other thing of value....”


Thus, with respect to
Issues 1 and 2, the conveyance of beneficial ownership of the Land to LLC and
its members under the Ground Lease and LADA is subject to the real estate
transfer tax as a conveyance of an interest
in real property. The date of delivery of vacant possession of the Land is
deemed to be the date that the conveyance is effected. Moreover, the real
estate transfer tax is due fifteen days following this date. As any funds
advanced by LLC to the State Parties in excess of the Initial Land
Acquisition Amount of $85,560,000 will be repaid to LLC through a reduction in
the PILOT payments under the terms of the
Ground Lease, such excess amounts do not constitute consideration for purposes of the real estate
transfer tax. It is noted, however, that in addition to the


 



 6
 






 



Initial Land Acquisition Amount
of $85,560,000, the Ground Lease requires payment of a limited percentage
rent. Therefore, the consideration for the conveyance is equal to the sum of
$85,560,000 plus the value of the limited
percentage rent.


With respect to Issue 3, Section
1405(b)(9) of the Tax Law provides an exemption from real estate transfer tax for conveyances of real
property which consist of the execution of a contract to sell real property without the use or occupancy of
such property or the granting of an option to purchase real property
without the use or occupancy of such property. Thus, the mere execution of the
necessary documents and recording of the Memorandum of the Ground Lease and
other related documents effect an exempt
conveyance pursuant to Section 1405(b)(9) of the Tax Law.


As noted above, Section 1405
(b)(6) of the Tax Law provides an exemption from the real estate transfer tax
for conveyances that effectuate a mere change of identity or form of ownership
or organization where there is no change in beneficial ownership.


In 115 Spring Street Company, Adv Op Comm
T&F, March 30, 1994, TSB-94(3)-R, where each
partner, pursuant to a partnership agreement, held a beneficial interest solely
in the unit the partner occupied and
had no interest in the other partners’ units, it was recognized that the
beneficial ownership of each unit
vested with each individual partner without regard to ownership of the property being held by the petitioner, a
cooperative housing corporation. Thus, the transfer of the shares allocated to
the units from petitioner to each partner whereby each partner received shares
allocated to the unit occupied by such partner constituted a mere change of
identity or form of ownership or organization, since there was no change in the
beneficial ownership of each unit.


In Vacation Village Homeowners
Association, Inc., Adv Op Comm T&F, May 24, 1994, TSB-A-94(6)-R, where each participant in the
conversion of a homeowners association into condominium units held a beneficial interest solely in the lot and home
he or she occupied as his or her
residence and held no interest in the other homeowner’s lots or homes, it was
recognized that the beneficial ownership of each lot and home had continuously
vested with each individual homeowner, without
regard to the homeowner being a member of a homeowners association. Thus, the conversion of the lots and homes within a
homeowners association into condominium units and the resulting exchange by the
homeowners of their lot deeds for condominium deeds constituted a mere change
of identity or form of ownership or organization, since there was no change in
the beneficial ownership of each lot and home.


In Armory Place LLC. Adv
Op Comm T&F, May 19, 1999, TSB-A-99(3(-R) and in Columbus Centre LLC and its Members, Adv Op Comm, April 18, 2001, TSB-A-(3)-R, where
each member of an LLC held a beneficial interest in its own unit of the real
property and held no interest in the units of the other members, it was
recognized that the beneficial ownership of each unit had continuously vested with each unit owner. Thus,
the conversion of the units within the LLC into condominium units and the resulting conveyance to each unit owner of its
respective unit constituted a mere
change of identity or form of ownership or organization, since there was no
change in the beneficial ownership of each unit.



 7
 






 



As set forth above, LLC will
beneficially own the Land and the Building during the Project’s construction
for the benefit of its members. The LLC Operating Agreement clearly provides
that the interest of each Member is
limited to its interest in its respective Member Space and the common elements
of the condominium. All benefits and obligations regarding a particular
Member’s Space will be attributed to
that Member, and all items of profit and loss, tax credits and deductions, and
cash flow derived from such Members’ Space will be allocated to that Member.


Following substantial completion
of the project, LLC will submit its leasehold interest under the Ground Lease to condominium ownership pursuant
to a Condominium Declaration and cause the Condominium Declaration to be
recorded. Upon completion of the Project, LLC will effectuate the transfer of the Units to its Members by
assigning to 42DP all of its interests in the Ground Lease pursuant to the
Lease Assignment. As a result of a non-merger provision in the Ground Lease,
42DP will remain ground lessor, as well as ground lessee, under the Ground
Lease. Additionally, as a result of a
non-merger provision in the Lease Assignment, the terms of the Members’
Subleases continue to apply as direct leases with 42DP as lessor. The
direct leases incorporate the same terms as those found in the Members’ Subleases.


LLC is being used by its Members
as a vehicle to address the practical realities of constructing and financing a complex real estate
project. Use of LLC during construction is a solution that enables the Members to complete the Project while
preserving their agreement that each Member
be the beneficial owner of its units or Member Space from the outset. This
beneficial ownership is explicitly set forth in the Operating Agreement. In the
case of the FC Units, the Operating
Agreement makes clear that FC Member is the beneficial owner of the FC Member
Space from the inception of the
Project. FC Member also is the beneficial owner of the FC Membership Interest
in LLC from the inception of the Project. Likewise, NYT Member is the
beneficial owner of the NYT Membership Space from the inception of the
Project, as well as the beneficial owner of the
NYT Membership Interest in LLC.


Thus, with respect to Issue 4 and, consistent with the
rationale set forth in 115 Spring Street Company, supra,  Vacation Village Homeowners
Association, Inc.,  supra,  Armory Place LLC,  supra, and Columbus Centre LLC and its Members,  supra,
it is concluded that the conversion of the Building by LLC into condominium
units and the resulting conveyances of legal title of the units to the respective Members of the LLC will
constitute a mere change of identity or form of ownership or organization, and such conveyances will be
exempt from the real estate transfer tax.


 




	
   

  DATED:

  	
   

  	
   

  	
  

  /s/ Jonathan Pessen

  
	
   

  	
   

  	
   

  	
   

  	
  Jonathan Pessen

  Tax Regulations Specialist III

  Technical Services Division

  
					






NOTE:      The
opinions expressed in Advisory Opinions are 

                           limited to the facts set forth therein.



 8















































































































SCHEDULE M – MERE CHANGE OF FORM
TRANSFERS


For
transfers occurring on or after June 9, 1994, a transfer that represents a mere
change in identity or form of ownership or organization
is not taxable to the extent the beneficial ownership of the real property or
economic interest therein remains the same. (See instructions) ATTACH COPIES OF ALL
RELEVANT DOCUMENTS.


 


For each person or entity who, prior to the transaction being reported
on this Schedule M, owned a beneficial interest in the property or economic interest therein transferred, report
above the percentage of beneficial interest in that real property or economic
interest therein owned by that owner
before and after the transfer, and describe the relationship of each beneficial
owner to the grantor and grantee. Attach additional pages, if necessary.


 


If, for any owner, the amount reported in column D is less than the
amount reported in column E, enter zero in column F.


 


	
  A

  	
   

  	
  B

  	
   

  	
  C

  	
   

  	
  D

  	
   

  	
  E

  	
   

  	
  F

  
	
   

  	
   

  	
  (attach rider if
  necessary)

  	
   

  	
  PERCENTAGE INTEREST

  	
   

  	
   

  
	
   

  	
   

  	
  RELATIONSHIP

  	
   

  	
  RELATIONSHIP

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CHANGE

  
	
  1.
  NAME OF BENEFICIAL OWNER

  	
   

  	
  TO GRANTOR

  	
   

  	
  TO GRANTEE

  	
   

  	
  BEFORE

  	
   

  	
  AFTER

  	
   

  	
  D minus E

  
	
  

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
  %

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2. TOTAL CHANGE  (total of column F) Enter here and on Schedule 2, line 5.











 


SCHEDULE R - REAL ESTATE INVESTMENT TRUST TRANSFERS   q


Real Estate Investment Trust Transfers (“REIT
Transfers”) are taxed at one-half of the otherwise applicable rate. (NYC
Administrative Code Section 11-2102(e)) Attach a copy of the prospectus to Form NYC-RPT and
write “REIT Transfer” on the top of the first  page of Form NYC-RPT. If you are filing
Form NYC-RPT reporting a REIT Transfer that qualifies as a mere change in
identity or form of ownership or
organization, you must also complete Schedule M.


 


General Information


 


REIT TRANSFER


A REIT Transfer is any deed or other instrument or transaction conveying or transferring real property or an
economic interest in real property to a Real Estate Investment Trust as
defined in Section 856 of the Internal Revenue Code (a “REIT”), or to a
partnership or corporation in which a REIT owns a controlling interest
immediately following the transaction and any issuance or transfer of an
interest in a REIT or in such a partnership or corporation in connection with
such a transaction, provided either:


 


	
  1.

  	
  the transaction occurs on or after June 9, 1994 in
  connection with the initial formation of the REIT and conditions 1(a), 2 and 3 below are met, or

  
	
   

  	
   

  
	
  2.

  	
  the transaction occurs on or after July 13, 1996 and
  before September 1, 2002 (or after August 30, 2002 if the transfer is made
  pursuant to a binding written contract entered into before September 1, 2002,
  with a REIT or a partnership or corporation in which the REIT owns a
  controlling interest, and the date of execution of that contract is confirmed
  by independent evidence satisfactory to the Department), and conditions 1(b)
  and 2 below are met.

  



 


For a definition of “controlling interest”, see General Information for Form NYC-RPT, “Imposition of Tax.”


CONDITIONS


	
  1

  	
   

  	
  a.

  	
   

  	
  The value of the ownership
  interests in the REIT or in the partnership or corporation controlled
  by the REIT received by the grantor as consideration for the transaction must
  be equal to 40 percent or more of the excess of the value of the total
  consideration received over the amount of mortgages and other liens and
  encumbrances on the property or on the grantor’s economic interest in the
  property, other than mortgages and other liens and encumbrances created in contemplation
  of the formation of the REIT.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b.

  	
   

  	
  This condition is the same as Condition 1(a), except
  that the value of the ownership interests received as consideration must be equal to at least 50 percent rather than
  40 percent of the excess of the total consideration received over mortgages and other liens and [ILLEGIBLE] on the
  property or economic interest transferred excluding mortgages and
  other liens or encumbrances created in contemplation
  of the transaction reported on this Schedule

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Use the worksheet on the following page of this
  Schedule to make this determination.

  



 


	
  2.

  	
   

  	
  The interests in the REIT or in the partnership or
  corporation controlled by the REIT may not be transferred by the grantor
  owners of the grantor within two years following the date of [ILLEGIBLE]  transaction
  other than transfers within the two-year period resulting from the death of
  an individual grantor or owner of a grantor.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  At least 75 percent of the cash proceeds of the initial
  public offering of REIT shares must be
  used for the following:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.

  	
   

  	
  payments on loans secured by
  an interest in the real property or an economic interest therein owned
  directly or indirectly by the REIT, or
  payments into reserves therefore

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b.

  	
   

  	
  capital improvements to real
  property owned directly or indirectly by the REIT, or payments into
  reserves therefore

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c.

  	
   

  	
  brokerage fees and
  commissions, professional fees and payments to or on behalf of a
  tenant as an inducement to enter into a
  lease or sublease of real property owned directly or indirectly by the
  REIT, or payments into [ILLEGIBLE] therefor; or

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  d.

  	
   

  	
  payments to acquire real property or an economic
  interest therein other than an
  acquisition that would qualify as a REIT Transfer without regard to this
  condition 3.

  



 


If condition 2 or 3, where
applicable, ceases to be met after this
Schedule R is filed, an amended Form NYC-RPT must be filed and any
additional tax due must be paid.











 














Form NYC-RPT -
Real Property Transfer Tax Return

RIDER - CERTIFICATION GRANTOR


I swear or affirm that this return, including any accompanying
schedules, affidavits and attachments, has
been examined by me and is, to the best of my knowledge, a true and complete return
made in good faith, pursuant to Title 11, Chapter 21 of the Administrative Code
and the regulations issued thereunder.


 


	
  Employer Identification
  Number:

  	
  52-2361085

  	
   

  	
   

  



 


 


	
  Name of Grantor:

  	
  THE NEW YORK TIMES BUILDING LLC

  	
   

  	
   

  



 


Signature of Grantor:


 


	
  By: NYT Real Estate Company LLC, Member

  	
   

  	
   

  
	
   

  	
  Employer Identification Number:  13-1102020

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David A. Thurm

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David A. Thurm

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: FC Lion LLC, Member

  	
   

  
	
   

  	
  Employer Identification Number:

  	
  31-1813969

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: FC 41st Street Associates, LLC, its managing
  member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: RRG 8 South,
  Inc., its managing member

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/  David L. Berliner 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: David L. Berliner 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title:  Sr. Vice President

  	
   

  	
   

  
													



 


 


	
  Sworn to and subscribed to

  	
   

  
	
   

  	
   

  
	
  before me on this 12th day

  	
  COURTNEY CLERET SEIBERT

  
	
   

  	
  Notary Public -
  State of New York

  
	
  of December, 2001.

  	
  No. 01SE6049249

  
	
   

  	
  Qualified in New
  York County

  
	
   

  	
  My Commission
  Expires October 10, 2002

  
	
  /s/ COURTNEY CLERET SEIBERT

  	
   

  	
   

  
	
  Signature of Notary

  	
   

  
			



 











Form NYC-RPT - Real
Property Transfer Tax Return
 RIDER
- CERTIFICATION GRANTEE


I swear or affirm that this return, including any
accompanying schedules, affidavits and attachments, has been examined by
me and is, to the best of my knowledge, a true and complete return made in good faith, pursuant to Title 11,
Chapter 21 of the Administrative Code and the regulations issued thereunder.


 


	
  Employer Identification
  Number:

  	
  13-1102020

  	
   

  	
   

  



 


	
  Name of Grantor:

  	
  NYT Real Estate Company LLC

  	
   

  	
   

  



Signature of Grantor:


 


 


	
  By:

  	
  /s/ David A.
  Thurm

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David A. Thurm

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Manager

  	
   

  
							



 


	
  Sworn to and subscribed to

  	
   

  
	
   

  	
   

  
	
  before me on this 12th day

  	
  COURTNEY CLERET SEIBERT

  
	
   

  	
  Notary Public -
  State of New York

  
	
  of December, 2001.

  	
  No. 01SE6049249

  
	
   

  	
  Qualified in New
  York County

  
	
   

  	
  My Commission
  Expires October 10, 2002

  
	
  /s/ COURTNEY CLERET SEIBERT

  	
   

  	
   

  
	
  Signature of Notary