Exhibit 10.4


FIRST AMENDMENT TO AGREEMENT OF SUBLEASE (NYT)


By and Between


42ND ST. DEVELOPMENT PROJECT, INC.,


as Landlord


and


NYT REAL ESTATE
COMPANY LLC,


as Tenant


Premises:


Block:  1012


Lots:                         


Address


620-628 8th Avenue


263-267 and
241-261 West 40th Street


242-244 West 41st Street


231-235 West 40th Street


248-256, 260-262
and 268 West 41st Street


634 and 630-632 8th Avenue


Borough of
Manhattan


County, City and State of New York


RECORD AND RETURN TO:


DLA Piper Rudnick
Gray Cary US LLP


1251 Avenue of the
Americas


New York, New
York  10020


Attention:  Marc Hurel, Esq.











FIRST AMENDMENT TO AGREEMENT OF
SUBLEASE (NYT)


THIS FIRST AMENDMENT TO AGREEMENT OF SUBLEASE (NYT) (this
“Amendment”) is made as of the 15th day of August, 2006, by and between 42ND ST. DEVELOPMENT
PROJECT, INC. (“42DP”), a subsidiary of New York State Urban Development
Corporation (“UDC”) 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, as landlord (in such capacity, “Landlord”),
and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having
an office c/o The New York Times Company, 229 West 43rd Street, New York, New York 10036, as tenant
(in such capacity, “Tenant”).


W
I T N E S S E T H :


WHEREAS, Landlord and The New York Times Building
LLC (“NYTB”) entered into that certain Agreement of Lease dated as of
December 12, 2001, as amended by letter dated April 8, 2004 (the “Initial
Ground Lease”) with respect to certain land and improvements more
particularly described in the Initial Ground Lease;


WHEREAS, NYTB, as landlord, entered into (a) that
certain Agreement of Sublease dated as of December 12, 2001 with Tenant, as
tenant (the “NYTC Sublease”), (b) that certain Agreement of Sublease
(Office) dated as of December 12, 2001 with FC Lion LLC (“FC Lion”), as
tenant (the “FC Office Sublease”) and (c) that certain Agreement of
Sublease (Retail) dated as of December 12, 2001 with FC Lion, as tenant (the “FC
Retail Sublease”);


WHEREAS, the NYTC Sublease, the FC Office Sublease,
the FC Retail Sublease, any New Office Subleases (as defined in the FC Office
Sublease) and any new leases entered into pursuant to Section 31.6 of any of
the foregoing are referred to herein, collectively, as the “Severance
Subleases”;


WHEREAS, NYTB submitted the Initial Ground Lease to
a leasehold condominium structure pursuant to Article 9-B of the Real Property
Law of the State of New York;


WHEREAS, pursuant to that certain Assignment and
Assumption Agreement dated as of the date hereof (being the “Lease Assignment
Date” under the Initial Ground Lease) between NYTB and Landlord (the “Assignment”),
NYTB assigned to Landlord all of NYTB’s right, title and interest in and to the
Initial Ground Lease and the Severance Subleases;


WHEREAS, pursuant to the provisions of the Initial
Ground Lease and the Assignment, the Assignment did not cause a merger of the
interests of landlord and tenant under the Initial Ground Lease, which
interests are and shall remain separate and distinct;


WHEREAS, pursuant to Section 32.1(a)(iii)(D) of the
Initial Ground Lease, NYTB and Tenant were required to amend the Severance
Subleases in order to reflect certain changes to the premises demised under the
Severance Subleases and to certify certain other matters to Landlord;



 2
 








WHEREAS, Landlord has agreed that the requirements
of said Section 32(a)(iii)(D) of the Initial Ground Lease shall be satisfied by
the execution by Landlord and Tenant of this Amendment; and


WHEREAS, Landlord and Tenant now wish to amend the
provisions of the NYTC Sublease as hereinafter provided and to set forth their
agreement with respect to the occurrence of certain dates contemplated by the
Initial Ground Lease.


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 agree as follows:


1.     Definitions.  The following defined terms or references
shall be deleted from the NYTC Sublease and replaced with the following (other
terms used herein without definition shall have the meanings ascribed to them
in the NYTC Sublease):


a.      “Demised Premises”
shall mean the NYTC Collective Unit (as defined in the Condominium
Declaration).


b.      “Lease Assignment Date”
shall mean the date hereof.


c.      References to “FC” or “FC
Lion LLC” shall hereafter refer to FC Eighth Ave., LLC, a Delaware limited
liability company.


2.     Legal Description.  The legal description of the Demised Premises
is set forth in Exhibit A attached hereto and made a part hereof.


3.     Landlord’s Name and Address.  The name and address of Landlord is:


42ND ST. DEVELOPMENT PROJECT,
INC.


633 Third Avenue, 33rd Floor


New York, New York 10017


4.     Delivery Date.  The Delivery Date was September 24, 2003.


5.     Vesting Date.  The Vesting Date (as defined in the Initial
Ground Lease) was August 19, 2002.


6.     Total Taxable Square Feet Certification.  Instead of delivering the same as of the
Lease Assignment Date, Tenant shall cause the Total Taxable Square Feet
Certification to be executed and delivered to Landlord upon Substantial
Completion (as defined in the Initial Ground Lease).


7.     Construction Work.  Article VI of the NYTC Sublease is hereby
deleted in its entirety and replaced by the provisions set forth in Exhibit
B attached hereto and made a part hereof. 
Defined terms in said Article VI have the meanings ascribed to them in
the Initial Ground Lease prior to the Assignment as of the date hereof.



 3
 








8.     Events of Default.  Sections 14.2(g) and (h) of the NYTC Sublease
are hereby deleted in their entirety and replaced with the following:


“(g)         if Tenant shall fail to Commence
Construction of Tenant’s Construction Work by the Fixed Construction
Commencement Date, as the same may be extended by Unavoidable Delays; or


 (h)          if
Tenant shall fail to Substantially Complete Tenant’s Construction Work by the
Fixed Substantial Completion Date, as the same may be extended by Unavoidable
Delays; or”


9.     Estoppel.  To Landlord’s knowledge, (a) Tenant has
fulfilled all of its obligations under the NYTC Sublease to date, (b) no
Default or Event of Default (as each is defined in the NYTC Sublease) by Tenant
exists under the NYTC Sublease and (c) Landlord has no claims (including claims
of off-set, defense or counterclaims) against Tenant alleging Tenant’s default
under the NYTC Sublease.


10.   Recording.  Landlord and Tenant agree that Tenant shall
cause this Amendment to be recorded and that Tenant shall pay any transfer or
similar taxes that may be payable as a result of this Amendment.  This Amendment shall also amend that certain
Memorandum of Agreement of Sublease dated as of December 12, 2001 and recorded
on October 24, 2003 with the Office of the Register of the City of New York,
New York County under CRFN 2003000433125 (the “Memorandum”) to the
extent of any conflict between the terms of this Amendment and the Memorandum.


11.   Rights of Landlord.  Section 14.3(e) of the NYTC Sublease is
hereby deleted in its entirety and replaced with the following:


“(e) Construction
Guaranty; 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 the Construction Guaranties and any Collateral Assignments to the extent
that the same are then in effect.”


12.   No Other Amendments.  As modified by this Amendment, the NYTC
Sublease remains in full force and effect.


[the remainder of this
page is intentionally blank]



 4
 








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


	
  

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  

  	
   

  	
  42ND ST. DEVELOPMENT
  PROJECT, INC., as

  Landlord

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Naresh
  Kapadia

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Naresh
  Kapadia

  
	
   

  	
   

  	
   

  	
  Title:
  AVP-Planning & Design

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
  

  	
   

  	
  NYT REAL ESTATE
  COMPANY LLC, a New York

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kenneth
  Richieri

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Kenneth
  Richieri

  
	
   

  	
   

  	
   

  	
  Title: Manager

  
						



 



 5















ACKNOWLEDGMENTS


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  



 


On the 9th day of August in the year 2006, before me, the
undersigned, a Notary Public in and for said State, personally appeared Naresh
Kapadia, 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/ Suzanna
  Blaskovic

  	
   

  
	
  

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Commission
  Expires

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUZANNA BLASKOVIC

  NOTARY PUBLIC, State of New York

  No. 01BL5079348

  Qualified in Queens County

  Commission Expires June 2, 2007

  



 


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  	
   

  



 


On the 9th
day of August in the year 2006, before me, the undersigned, a
Notary Public in and for said State, personally appeared Kenneth Richieri,
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 h  
capacity, and that by h    signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.


	
  

  	
   

  	
  /s/ Gita Tiku

  	
   

  
	
  

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
  Commission
  Expires

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GITA TIKU

  Notary Public, State of New York

  No. 01TI6133463

  Qualified in New York County

  Commission Expires September 19, 2009

  



 











EXHIBIT A


Legal description












The Condominium Units (hereinafter called the “Units”) in
the building (hereinafter called the “Building”)
known as The New York Times Building Condominium and by the street address 620
Eighth Avenue, Borough of Manhattan, City, County and State of New York, said
Units being designated and described as set forth on Schedule 1 herein and in
that certain declaration, dated as of August 4, 2006 made by The New York Times
Building LLC pursuant to Article 9-B of the Real Property Law of the State of
New York (hereinafter called the “Condominium Act”) establishing condominium
ownership of the Building and the land (hereinafter called the “Land”) upon
which the Building is situate (which Land is more particularly described below
and by this reference made a part hereof), which declaration was recorded in the New
York County Office of the Register of The City of New York (the “City
Register’s Office”) on August 15, 2006, as CRFN 2006000460293, (which
declaration, and any amendments thereto, are hereinafter collectively called
the “Declaration”). The Units are also designated as Tax Lot Nos. as set forth
on Schedule 1 herein, in Block 1012 of Section 4 of the Borough of Manhattan on
the Tax Map of the Real Property Assessment Bureau of The City of New
York and on the Floor Plans of the Building fled with the Real Property
Assessment Bureau of The City of New York on August 14, 2006 as Condominium
Plan No. 1595 and also fled in the City Register’s Office of New York County on
August 15, 2006 as Condominium CRFN 2006000460294.


TOGETHER
with an undivided percentage interest as set forth in Schedule C herein,
respectively, in the Common Elements (as such term is defied in the
Declaration) of The New York Times Building Condominium;


The Land
area of the Condominium is more particularly described as follows:


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 comer 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 41
SC 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.












Schedule
l


Description
of Units




	
  Unit Designation

  	
   

  	
  Tax Lot

  	
   

  	
  Percentage Interest In Common

  Elements

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  0-A

  	
   

  	
  1001

  	
   

  	
  0.66

  	
  %

  
	
  0-B

  	
   

  	
  1002

  	
   

  	
  0.41

  	
  %

  
	
  1-A

  	
   

  	
  1003

  	
   

  	
  2.01

  	
  %

  
	
  1-B

  	
   

  	
  1004

  	
   

  	
  0.28

  	
  %

  
	
  1-C

  	
   

  	
  1005

  	
   

  	
  0.29

  	
  %

  
	
  1-D

  	
   

  	
  1006

  	
   

  	
  0.44

  	
  %

  
	
  1-E

  	
   

  	
  1007

  	
   

  	
  0.07

  	
  %

  
	
  1-F

  	
   

  	
  1008

  	
   

  	
  0.64

  	
  %

  
	
  2-A

  	
   

  	
  1009

  	
   

  	
  4.78

  	
  %

  
	
  3-A

  	
   

  	
  1010

  	
   

  	
  4.76

  	
  %

  
	
  4-A

  	
   

  	
  1011

  	
   

  	
  4.56

  	
  %

  
	
  5-A

  	
   

  	
  1012

  	
   

  	
  1.64

  	
  %

  
	
  6-A

  	
   

  	
  1013

  	
   

  	
  1.73

  	
  %

  
	
  7-A

  	
   

  	
  1014

  	
   

  	
  1.73

  	
  %

  
	
  8-A

  	
   

  	
  1015

  	
   

  	
  1.73

  	
  %

  
	
  9-A

  	
   

  	
  1016

  	
   

  	
  1.73

  	
  %

  
	
  10-A

  	
   

  	
  1017

  	
   

  	
  1.73

  	
  %

  
	
  11-A

  	
   

  	
  1018

  	
   

  	
  1.73

  	
  %

  
	
  12-A

  	
   

  	
  1019

  	
   

  	
  1.73

  	
  %

  
	
  13-A

  	
   

  	
  1020

  	
   

  	
  1.73

  	
  %

  
	
  14-A

  	
   

  	
  1021

  	
   

  	
  1.74

  	
  %

  
	
  15-A

  	
   

  	
  1022

  	
   

  	
  1.40

  	
  %

  
	
  16-A

  	
   

  	
  1023

  	
   

  	
  1.75

  	
  %

  
	
  17-A

  	
   

  	
  1024

  	
   

  	
  1.72

  	
  %

  
	
  18-A

  	
   

  	
  1025

  	
   

  	
  1.77

  	
  %

  
	
  19-A

  	
   

  	
  1026

  	
   

  	
  1.77

  	
  %

  
	
  20-A

  	
   

  	
  1027

  	
   

  	
  1.77

  	
  %

  
	
  21-A

  	
   

  	
  1028

  	
   

  	
  1.77

  	
  %

  
	
  22-A

  	
   

  	
  1029

  	
   

  	
  1.77

  	
  %

  
	
  23-A

  	
   

  	
  1030

  	
   

  	
  1.77

  	
  %

  
	
  24-A

  	
   

  	
  1031

  	
   

  	
  1.77

  	
  %

  
	
  25-A

  	
   

  	
  1032

  	
   

  	
  1.77

  	
  %

  
	
  26-A

  	
   

  	
  1033

  	
   

  	
  1.77

  	
  %

  
	
  27-A

  	
   

  	
  1034

  	
   

  	
  1.77

  	
  %

  
	
  28-A

  	
   

  	
  1035

  	
   

  	
  0.44

  	
  %

  
	
  28-B

  	
   

  	
  1036

  	
   

  	
  0.25

  	
  %

  
	
  29-A

  	
   

  	
  1037

  	
   

  	
  1.77

  	
  %

  
	
  30-A

  	
   

  	
  1038

  	
   

  	
  1.84

  	
  %

  
	
  31-A

  	
   

  	
  1039

  	
   

  	
  1.84

  	
  %

  
	
  32-A

  	
   

  	
  1040

  	
   

  	
  1.84

  	
  %

  
	
  33-A

  	
   

  	
  1041

  	
   

  	
  1.84

  	
  %

  
	
  34-A

  	
   

  	
  1042

  	
   

  	
  1.84

  	
  %

  
	
  35-A

  	
   

  	
  1043

  	
   

  	
  1.84

  	
  %

  
	
  36-A

  	
   

  	
  1044

  	
   

  	
  1.84

  	
  %

  
	
  37-A

  	
   

  	
  1045

  	
   

  	
  1.84

  	
  %

  
	
  38-A

  	
   

  	
  1046

  	
   

  	
  1.84

  	
  %

  
	
  39-A

  	
   

  	
  1047

  	
   

  	
  1.84

  	
  %

  
	
  40-A

  	
   

  	
  1048

  	
   

  	
  1.84

  	
  %

  
	
  41-A

  	
   

  	
  1049

  	
   

  	
  1.84

  	
  %

  
	
  42-A

  	
   

  	
  1050

  	
   

  	
  1.84

  	
  %

  
	
  43-A

  	
   

  	
  1051

  	
   

  	
  1.84

  	
  %

  
	
  44-A

  	
   

  	
  1052

  	
   

  	
  1.84

  	
  %

  
	
  45-A

  	
   

  	
  1053

  	
   

  	
  1.77

  	
  %

  
	
  46-A

  	
   

  	
  1054

  	
   

  	
  1.89

  	
  %

  
	
  47-A

  	
   

  	
  1055

  	
   

  	
  1.89

  	
  %

  
	
  48-A

  	
   

  	
  1056

  	
   

  	
  1.89

  	
  %

  
	
  49-A

  	
   

  	
  1057

  	
   

  	
  1.89

  	
  %

  
	
  50-A

  	
   

  	
  1058

  	
   

  	
  1.89

  	
  %

  
	
  TOTAL: 58

  	
   

  	
   

  	
   

  	
  100.00

  	
  %

  
















EXHIBIT B


[Article VI from Initial
Ground Lease to be attached]


 

















 


ARTICLEVI 

CONSTRUCTION OF THE PROJECT


Section 6.1   Construction
of the Project Demolition. Tenant shall undertake, at its cost, the Demolition Work pursuant to
the applicable terms of this Article VI.


(b)                    Commencement and Substantial Completion of
Tenant’s Construction Work.


(i)        Generally. Tenant shall (A)
Commence Construction of Tenant’s Construction Work as soon as is reasonably
practicable, but in any event not later than the Fixed Construction
Commencement Date (subject to Unavoidable Delays), TIME BEING OF THE ESSENCE as
to such date, (B) following Commencement of Construction of Tenant’s
Construction Work, perform or cause to be performed Tenant’s Construction Work
with diligence and continuity (subject to Unavoidable Delays), and (C)
Substantially Complete Tenant’s Construction Work as soon as is reasonably
practicable, but in any event not later than the Fixed Substantial Completion
Date, TIME BEING OF THE ESSENCE as to such date (subject to Unavoidable
Delays). Tenant acknowledges, without waiving any of its rights under Sections 6.1(b)(ii) or 6.l(c)(vi) hereof, that the obtaining of
financing with respect to the performance of its construction of the New
Building is not a condition precedent to Tenant’s obligations under this Article VI.


(ii)       Extension Due to Certain Litigation.
In addition to any extension to which Tenant is entitled due to the occurrence
of Unavoidable Delays, in the event that, at any time after the Delivery Date,
but prior to the Commencement of Construction, (A) litigation is pending
against ESDC or Landlord in connection with the Property or the Project
(excluding EDPL valuation litigation), which litigation (1) is not or was not
instituted, financed or supported by any of Tenant, NYTC, FC, an Equity
Investor or any of its or their Related Entities and (2) has not resulted in an
injunction barring Commencement of Construction of Tenant’s Construction Work,
and (B) Tenant, in its reasonable and good faith judgment, determines that such
litigation prevents or significantly impedes Commencement of Construction of
Tenant’s Construction Work (including, without limitation, by preventing or
significantly impeding Tenant’s ability to obtain construction financing for
the Project), then Tenant shall have the right to extend the Fixed Construction
Commencement Date (by written notice to Landlord indicating the exercise of
such option and setting forth the basis for such extension) by a number of days
equal to the number of days (x) such litigation remains pending and (y) Tenant,
in its good faith judgment, determines that the prevention or impediment
resulting from such litigation is continuing (the period the Fixed Construction
Commencement Date is extended pursuant to this Section 6.1(b)(ii), the “Section
6.1(b)(ii) Extension Period”).


(iii)      No Public Party Obligation. The
parties acknowledge and agree that none of the Public Parties shall be
obligated to perform any of the Tenant’s Construction Work or any other work on
the Land or the Existing Improvements or to provide any funds to Tenant or any
Subtenant in connection therewith.


(c)       Other
Extensions. Notwithstanding the provisions of Section 6.1(b)(i) hereof, the Fixed Construction Commencement
Date and/or the Fixed Substantial Completion Date may be extended as follows.


(i)        In the event of the occurrence of the
First Non-Delivery Event, the Fixed Construction Commencement Date shall be
deemed to be automatically extended by three (3) months (the “First Extension Period”) to the date that is fifteen (15) months
after the Delivery Date; it being









 



agreed that, following the occurrence of the First Non-Delivery Event,
if Tenant Commences Construction prior to the last day in the First Extension
Period, then the 36-month period between the Fixed Construction Commencement
Date and the Fixed Substantial Completion Date referred to in Section l.1(a)(cxxvii) hereof (the “Fixed Construction Period”) shall automatically be extended by the
number of days (maximum of ninety (90) days) that Tenant Commences Construction
prior to the last day of the First Extension Period.


(ii)       In the event of the occurrence of the
Third Non-Delivery Event, the Fixed Construction Commencement Date shall be
deemed to be automatically extended by six (6) months (the “Second Extension Period”) to the date that is eighteen (18) months
after the Delivery Date; it being agreed that following the occurrence of the
Third Non-Delivery Event, if Tenant Commences Construction prior to the last
day in the Second Extension Period, then the Fixed Construction Period shall
automatically be extended by the number of days (maximum of one hundred eighty
(180) days) that Tenant Commences Construction prior to the last day of the
Second Extension Period.


(iii)      In addition to the extensions described in
Sections 6.1(c)(i) and 6.1(c)(ii) hereof, if the Delivery Date
occurs prior to the occurrence, if any, of the Third Non-Delivery Event, Tenant
may, at and to the extent of Tenant’s election, (A) further extend the Fixed
Construction Commencement Date by up to three (3) months by making a payment to
Landlord in accordance with Section 6.1(c)(v)
hereof and (B) further extend the Fixed Construction Period by up to
six (6) months by making a payment to Landlord in accordance with Section 6.1(c)(v) hereof; provided,
however, that in the event that Tenant purchases less than the 3-month
extension permitted pursuant to clause (iii)(A) of this Section 6.1(c), any such unpurchased days
(“Excess Days”) may be purchased
by Tenant from time to time, by making a payment to Landlord in accordance with
Section 6.1(c)(v) hereof, so as to
further extend such extension period, by the number of Excess Days so purchased
by Tenant. Any election made by Tenant for the extensions or further extension
provided for in this Section 6.1(c)(iii) shall
be for a minimum of one (1) month at a time.


(iv)      In addition to the extensions set forth in
Sections 6.1(c)(i) and 6.1(c)(ii) hereof, if the Delivery Date
occurs subsequent to the occurrence, if any, of the Third Non-Delivery Event,
Tenant may, at and to the extent of Tenant’s election, (A) further extend the
Fixed Construction Commencement Date by up to six (6) months by making a
payment to Landlord in accordance with Section
6.1(c)(v) hereof and (B) further extend the Fixed Construction
Period by up to six (6) months by making a payment to Landlord in accordance
with Section 6.1(c)(v) hereof; provided,
however, that in the event that Tenant purchases less than the 6-month
extension permitted pursuant to clause (iv)(A) of this Section 6.1(c), any such unpurchased Excess
Days may be purchased by Tenant from time to time, by making a payment to
Landlord in accordance with Section 6.1(c)(v)
hereof, so as to further extend such extension period, by the number
of Excess Days so purchased by Tenant. Any election made by Tenant for the extension
or further extension provided for in this Section
6.1(c)(iv) shall be for a minimum of one (1) month at a time.


(v)       Tenant shall exercise any extension
permitted by this Section 6.1(c) by
written notice to Landlord, which notice (A) shall set forth the period by
which Tenant desires to extend the Fixed Construction Commencement Date or the
Fixed Construction Period, as applicable, and (B) shall be accompanied by a
payment to Landlord, in the case of any extensions pursuant to clause (iii) or
(iv) of this Section 6.1(c), in
the amount equal to $20,000 per day (for a minimum of one month) for each day
that the Fixed Construction Commencement Date or the Fixed Construction Period,
as applicable, is so extended (it being agreed that in the event that Excess
Site Acquisition









 



Costs exist for the calendar quarter in which Landlord receives
Tenant’s notice given under this Section
6.1(c)(v) any payment to Landlord required under this Section 6.1(c), in lieu of payment in cash by Tenant, instead shall be credited
by Landlord against such Excess Site Acquisition Costs in respect to the
calendar quarter in which Landlord receives such notice).


(vi)      In addition to the other extensions
provided for in this Section 6.1(c), if (A) Tenant is seeking construction financing
for the construction of the New Building, (B) the proposed construction lender
requires as a condition to entering into such construction financing that
Tenant obtain insurance against terrorist acts, (C) such insurance is generally
required by lenders with respect to loans for the construction or refinancing
of buildings in midtown Manhattan of a size and nature comparable to the New
Building, (D) Tenant is using its best efforts to obtain such insurance and (E)
such insurance is not Commercially Available, then for so long as Tenant
provides evidence, reasonably satisfactory to Landlord, that the conditions
listed in this Section 6.1(c)(vi) continue
to be met, Tenant shall be entitled to an extension of the Fixed Commencement
Construction Date.


(d)                    Approval
of Architects.


(i)        Design Architect. The design
architect for any Construction Work (other than Interior Construction Work or
Demolition 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 user 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 New Building 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 New Building 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:


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 6.1(d)(i) hereof),
the Production Architect and each other architect and engineer proposed to be
engaged in respect to any Construction Work (other than Interior Construction
Work or demolition work (other than the 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 Construction Work
subject to clause (A) of this Section
6.1(d)(ii), in
Landlord’s sole discretion; and (2) in respect of Construction Work subject
only to clause (B) or (C) of this Section
6.1(d)(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 Project 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.









 



(e)       Approval
of Contractors.


(i)        General Standard; Prohibited Persons.
All Construction Work 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 Construction Work shall be a Prohibited Person. Tenant shall
cause such restriction to be inserted in each Sublease.


(ii)       General Contractor(s) and Construction
Manager(s). Each general contractor and/or construction manager engaged in
respect of Tenant’s Construction Work shall be subject to the approval of
Landlord. Landlord approves, on the date hereof, those general contractors and
construction managers listed on Exhibit M
attached hereto (it being understood that such approval of Landlord (A) is
valid for a period ending on the earlier of (1) the date that is five (5) years
after the date hereof and (2) the occurrence of any material change in the
ownership of the applicable general contractor or construction manager, as the
case may be and (B) is not an approval of any proposed general contractor
construction manager’s Prohibited Person status). Tenant shall deliver to
Landlord and update as necessary from time to time upon request therefor, a
list identifying to Landlord each general contractor and construction manager
that is a member of the Development Team. Landlord shall have the right to
disapprove any such general contractor or construction manager only: [a] if
such general contractor or construction manager is a Prohibited Person; or [b]
if such general contractor or construction manager, in Landlord’s reasonable
judgment, has demonstrated a failure, based on prior job performance, to
exercise due care in the performance of the work for which such contractor may
be hired in respect of the New Building (it being agreed that no Person listed
on Exhibit M attached hereto may
be disapproved by Landlord on the basis described in this clause (b) of this Section 6.1(e)(ii)). If Landlord fails to approve or reject any
such general contractor or construction manager within eleven (11) Business
Days after the written submission to Landlord of such Person’s name, address,
phone number and EIN (as well as those Principals thereof) or Landlord fails to
make reasonable requests for additional information related thereto within such
time period and thereafter to approve or reject such general contractor or
construction manager 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 MEMBER OF A DEVELOPMENT TEAM 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 such proposed member of the Development Team within five (5)
Business Days after its receipt of such reminder notice, such proposed member
of the Development Team shall be deemed approved by Landlord. Any rejection of
such a member of the Development Team by Landlord shall be accompanied by
specific reasons setting forth in reasonable detail the bases for such
rejection.


(iii)      Major Contractors. Prior to the
time at which Tenant solicits any bids for labor or materials for any
Construction Work (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 in
respect of the Property 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 Property. 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 New Building (it being agreed that no Person listed on Exhibit N attached hereto may be disapproved
by Landlord on the basis described in this clause (2) of this Section 6.1(e)(iii)). 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 N attached hereto.


Section
6.2   Plans and Specifications.


(a)       Approval of 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)       Approval of Schematic Design Plans.
Prior to the date hereof, Landlord has reviewed the Schematic Design Plans and,
having deemed the Schematic Design Plans (other than the items listed in that
certain letter, dated as of the date hereof, from Landlord to NYTC and Forest
City Ratner Companies (the “December Letter”)
a copy of which is attached hereto as Exhibit
I-3) to be in
accordance with the DUO, has approved the Schematic Design Plans (other than









 



the items listed in the December Letter). Promptly after the date
hereof, Tenant shall submit the items listed in the December Letter to
Landlord, and Landlord shall have the right to approve or disapprove the same
in Landlord’s reasonable discretion with respect to the compliance of same with
the DUO (the items listed in the December Letter, once approved by Landlord in
accordance with this Section 6.2(a)(ii), together with the Schematic Design Plans,
the “Approved Schematic Design Plans”). Landlord hereby approves the design for
Tenant’s Subway Improvements, as such design is depicted in the Site 8 South
Subway Agreement as in effect on the date hereof.


(b)       Submission and Review of Proposed
Design Development Plans. Prior to Tenant’s first submittal of Final Plans
and Specifications to the New York City Buildings Department prior to the
Commencement of Construction of the New Building, Tenant shall submit to
Landlord the proposed Design Development Plans (in both standard architectural
drawings and in electronic format (including CAD drawings)) solely so that
Landlord may determine whether the proposed Design Development Plans conform to
the Approved Schematic Design Plans and otherwise comply with DUO. Landlord’s
approval shall be governed by the applicable provisions of Section 6.2(a)(i) hereof (it being
acknowledged and agreed that the design approval process set forth in this Section 6.2 is an iterative process that
may require at least six (6) months from submittal to Landlord of the proposed
Design Development Plans until Landlord’s approval may be obtained). If
Landlord determines that the proposed Design Development Plans conform to the
Approved Schematic Design Plans, Landlord shall so notify Tenant. If Landlord
determines that the proposed Design Development Plans do not so conform,
Landlord shall so notify Tenant, specifying in reasonable detail in what
respects the proposed Design Development Plans do not so conform, and Tenant
shall revise them to so conform and shall resubmit the proposed Design
Development Plans to Landlord for review for that purpose. Landlord shall be
deemed to have approved any portions of the proposed Design Development Plans
as to which Landlord does not expressly notify Tenant, as set forth in the immediately
preceding sentence, of such non-conformity. The initial review by Landlord of
the proposed Design Development Plans shall be carried out within twenty (20)
Business Days of the date of the submission thereof by Tenant and any
subsequent review by Landlord of any revisions thereto shall be carried out
within fifteen (15) Business Days of the date of Tenant’s submission of such
revision. In the case of resubmissions or revisions, Landlord may not
disapprove any matter previously submitted and approved or deemed approved,
except to the extent that such resubmission or revision affects the matter so
approved or deemed approved.


(c)       Submission and Review of Proposed
Final Plans and Specifications. Prior to Tenant’s first submittal of Final
Plans and Specifications to the New York City Buildings Department prior to the
Commencement of Construction of the New Building, Tenant shall submit to
Landlord proposed Final Plans and Specifications (in both standard
architectural drawings and in electronic format (including the CAD drawings))
solely so that Landlord may determine whether the proposed Final Plans and
Specifications conform to the Design Development Plans and otherwise comply
with DUO. Landlord’s approval shall be governed by the applicable provisions of
Section 6.2(a)(i) hereof (it being
acknowledged and agreed that the design approval process set forth in this Section 6.2.
is an iterative process that may require at least forty-five (45)
days from submittal to Landlord of the proposed Final Plans and Specifications
until Landlord’s approval may be obtained). If Landlord determines that the
proposed Final Plans and Specifications conform to the Design Development
Plans, Landlord shall so notify Tenant. If Landlord determines that the
proposed Final Plans and Specifications do not so conform, Landlord shall so
notify Tenant, specifying in reasonable detail in what respects the proposed
Final Plans and Specifications do not so conform, and Tenant shall revise them
to so conform and shall resubmit the proposed Final Plans and Specifications to
Landlord for review for that purpose. Landlord shall be deemed to have approved
any portions of the









 



proposed Final Plans and Specifications as to which Landlord does not
expressly notify Tenant, as set forth in the immediately-preceding sentence, of
such non-conformity. The initial review by Landlord of the proposed Final Plans
and Specifications shall be carried out within twenty (20) Business Days of the
date of submission thereof by Tenant and any subsequent review by Landlord of
any revisions thereto shall be carried out within fifteen (15) Business Days of
Tenant’s submission of such revision. In the case of resubmissions or
revisions, Landlord may not disapprove any matter previously submitted and
approved or deemed approved, except to the extent that such resubmission or
revision affects any matter so approved or deemed approved.


(d)       Modification of Approved Schematic
Design Plans, Design Development Plans or Final Plans and Specifications.
If Tenant desires to modify the Approved Schematic Design Plans, Design
Development Plans or Final Plans and Specifications after they have been
approved or deemed approved by Landlord pursuant to this Article VI, and either (1) 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 6.1(d)(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 (2) 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
6.2(d), then such submission of the proposed modifications for
Landlord’s review and approval is not required. Unless and until a 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 6.2(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 6.2(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 either (i) withdraw the proposed modification, in
which case construction of the New Building shall proceed on the basis of the
submissions previously approved or deemed approved by Landlord, or (ii) 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
6.2(d) shall be carried out within fifteen (15) Business Days of the
date of submission of the proposed modifications to the Approved Schematic
Design Plans, Design Development Plans or the Final Plans and Approved
Specifications, as the case may be, unless the proposed modification
substantially alters the Approved Schematic Design Plans, Design Development
Plans or the Final 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.















 


(e)       Compliance
with Legal Requirements. The Final 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 the Construction Work may be constructed without reference to
the provisions of the Zoning Resolution). Landlord’s approval of any such Final
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 Final Plans and Specifications (or any modification thereto) drawings
comply with any Legal Requirements or Insurance Requirements.


(f)        Submission in Triplicate. All
drawings submitted to Landlord pursuant to this Section 6.2 shall be submitted in triplicate.


(g)       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 and any document with respect to the determination of
the occurrence of Substantial Completion) may be executed, in lieu thereof, by
the Production Architect on behalf of the Design Architect once approved by the
Design Architect.


Section 6.3          Performance
of Construction Work.


(a)       Standards for Construction Work.


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


(iii)      From and after the Delivery Date, the
Property 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 Property from and
after the Delivery Date to be fully discharged or bonded and to provide
evidence thereof to Landlord).


(iv)      All Construction Work, 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 Construction Work, auto CAD
Disks with respect to any such Construction Work, 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 Project or
any portion thereof unless the Construction Work 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 Construction Work 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 Construction Work. Tenant shall not commence any Tenant Construction
Work and shall not permit any Subtenant or any other Person to commence any
Construction Work, (other than Interior Construction Work and the Demolition
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)        Approval of Plans. Landlord shall
have approved the Final Plans and Specifications to the extent required in Section 6.2 hereof;


(ii)       Permits. 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;


(iii)      Documents. Tenant shall have
delivered to Landlord the following items: (A) copies of all Final Plans and
Specifications which have been stamped as approved by the New York City
Buildings Department (it being agreed that the Final Plans and Specifications
submitted to the New York City Buildings Department for approval may be only
those Final Plans and Specifications approved by Landlord pursuant to Section 6.2(c) hereof); (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;


(iv)      Construction Guaranties. With respect
only to Tenant’s Construction Work, including, without limitation. Section 6.6 and Core and Shell “punch list”
items (the “Core and Shell Punchlist”) prepared by Tenant and delivered to the
Major Contractors upon Substantial Completion, a copy of which Core and Shell
Punchlist shall be delivered to Landlord, upon Substantial Completion (and not
with respect to any other Construction Work) Tenant has caused NYTC and FCE to
execute and deliver to Landlord the NYTC Construction Guaranty and the FCE
Construction Guaranty, respectively; provided, however, that if,
prior to or after the commencement of Tenant’s Construction Work: (w) NYTC
Member is the sole member of Tenant, then Tenant shall only be required to
cause the NYTC Construction Guaranty to be executed and delivered to Landlord
pursuant to this Section 6.3(b)(iv);
(x) FC Member is the sole member of Tenant, then Tenant shall only be required
to cause the FCE Construction Guaranty to be executed and delivered to Landlord
pursuant to this Section 6.3(b)(iv);
(y) ING is the sole member of Tenant, then Tenant shall only be required to
cause the ING Construction Guaranty to be executed and delivered to Landlord
pursuant to this Section 6.3(b)(iv); and
(z) ING is the sole member of FC Member, then Tenant shall, in addition to the
NYTC Construction Guaranty, be required to cause the ING Construction Guaranty
to









 



be executed and delivered to Landlord pursuant to this Section 6.3(b)(iv) in lieu of the FCE
Construction Guaranty; and provided further that Landlord agrees that if, after
any Construction Guaranty is provided to Landlord in accordance with this Section 6.3(b)(iv), Tenant delivers to
Landlord a NYTC Construction Guaranty, an FCE Construction Guaranty or an ING
Construction Guaranty pursuant to clauses (w), (x), (y), or (z), as applicable,
then Landlord shall acknowledge in writing to NYTC, FCE or ING Vastgoed B B.V.,
as applicable, promptly after the aforesaid delivery, that any Construction
Guaranty previously delivered to Landlord, and that is to be superseded by the
newly delivered Construction Guaranty, is of no further force or effect); and


(v)       There shall be no Default (other than a
Minor Default) or Event of Default hereunder.


(c)       Obligations Following Completion of
Construction Work. Promptly following completion of any Construction Work
(or, in respect of Tenant’s Construction Work, Substantial Completion of Tenant’s
Construction Work), Tenant shall furnish to Landlord:


(i)        In respect of any Construction Work
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 6.1(d)(ii) hereof, that (A) the Architect has examined
the applicable Final Plans and Specifications, (B) to its best knowledge, after
appropriate investigation, the Construction Work, as then constructed, has been
completed substantially and in all material respects in accordance with the
applicable Final Plans and Specifications as it relates to and complies with
the DUO, and (C) with respect to Tenant’s Construction Work only, indicates in
respect to each of (1) the Project overall, and (2) each element of the Project
Components, the total number of Square Feet and Rentable Square Feet, and
indicating which portion of the difference between Square Feet and Rentable
Square Feet is on account of Discretionary Inside Mechanical Space and which
portion is on account of below grade, Revenue Producing Retail Space;


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


(iii)      (A) In respect of the entire Project 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 in its capacity as a Subtenant) 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)), 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 Construction Work as completed;


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









 



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


(viii)    Copies of duly executed waivers of mechanic’s
lien from each provider of materials, supplies, equipment or labor to the
Project relating to such Construction Work or other evidence of payment
reasonably satisfactory to Landlord, promptly after receipt thereof by Tenant;


(ix)       In respect of Tenant’s Construction Work,
an easement plan for the applicable portion of the Project showing the location
of all easements affecting the Project (or an “as built” survey providing the
same information), if required by the New York City Department of Buildings for
the issuance of a building permit or certificate of occupancy in respect
thereto, and


(x)        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 Construction Work. 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 Property. Whenever and as often as any such lien shall have been filed
against the Property, 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)       Right of Inspection. Landlord
shall have the right, during the performance of any Construction Work 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 Project to observe Tenant’s
construction methods and techniques and to determine that such Construction
Work 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 such Landlord’s field personnel or other
representatives shall not instruct contractors, interfere with or impede the
work of such or other workers in respect of any such Construction Work).
Landlord agrees that the presence and activities of such field personnel or
other representatives shall not impede in any respect the performance of such
Construction Work. 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 Construction Work or
constitute an acceptance of any such Construction Work which does not comply in
all respects with the provisions of this Lease.


Section 6.4          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 Development Plans and the Final Plans and
Specifications, (b) any surveys and “as built” plans showing the applicable
Construction Work, and (c) any other plans and specifications with respect to
such Construction









 



Work. 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 Property, for the construction, use, operation
and Alteration of the applicable Project Component 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 Construction Work in question or for reference purposes for additions,
extensions, remodeling or modification of the Construction Work 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 Construction Work in question where
the design of the Construction Work 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 Construction
Work 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 Construction Work in
question, and the owner of the Construction Work 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 6.4 shall permit the selection by
Tenant and approval of a Design Architect other than in accordance with Section 6.1(d) hereof. The provisions of
this Section 6.4 shall survive any
such expiration or earlier termination of this Lease.


Section 6.5          Conditions
Precedent to Commencement of Demolition, Asbestos Removal and Lead Abatement.
(a) Tenant shall not commence any demolition of the Existing
Improvements or commence asbestos removal or lead paint abatement of the
Existing Improvements (any such work, the “Demolition
Work”) unless and
until: (i) Tenant shall have obtained and delivered to Landlord true and
complete copies of all necessary permits, consents, certificates and









 



approval of all necessary Governmental Authorities in respect of such
work; and (ii) Tenant shall have delivered to Landlord satisfactory
certificates evidencing the insurance required by Article X hereof. Subject to Sections
6.5(b) and 6.5(c) hereof,
Tenant covenants and agrees that once Tenant has initiated the Demolition Work,
it shall thereafter commence Tenant’s Construction Work and continuously,
diligently and without material interruption pursue Tenant’s Construction Work
until completion.


(b)       After the occurrence of the Delivery
Date, Tenant may, at Tenant’s sole election, demolish specified Existing
Improvements in accordance with this Section
6.5(b) and not be subject to the covenant contained in the last
sentence of Section 6.5(a) hereof
if:


(i)        Based on the internal investigation and
assessment of the New York City Building Department (and not on information
provided by Tenant or any third party related to or otherwise associated with
Tenant), the New York City Building Department deems a condition in an Existing
Improvement to be unsafe and requires immediate demolition of such Existing
Improvement; or


(ii)       (A)      Tenant
provides to Landlord a statement containing (1) Tenant’s representation that an
Existing Improvement has a condition that is an imminent threat to public
safety and (2) reasonably detailed information (together with any supporting
information reasonably satisfactory to Landlord) demonstrating that Tenant has
maintained the Existing Improvement in a responsible manner and has in no way
exacerbated or otherwise increased the unsafe condition. Within two (2) Business
Days of Landlord’s receipt of such statement, Landlord shall confirm the
availability of the Demolition Engineer and shall forward such statement
(together with any supporting information provided by Tenant therewith and a
copy of this provision) to the Demolition Engineer, requesting the Demolition
Engineer to make its assessment within three (3) Business Days of receipt of
such materials from Landlord;


(B)       The Demolition Engineer, in a statement
to both Tenant and Landlord (1) finds that the indicated Existing Improvement
has a condition that is an imminent threat to public safety, (2) confirms that
the maintenance of the Existing Improvement by Tenant in no way exacerbated or
otherwise increased the unsafe condition, and (3) provides a scope of work and
an estimate of the most cost-efficient manner for Tenant to remedy the unsafe
condition other than demolition of the applicable Existing Improvements; and


(C)       The estimated cost of remedying the
unsafe condition (as estimated by the Demolition Engineer in accordance with
clause (B) above) would exceed (1) 100% of the Assessed Value of the Existing
Improvements if the proposed demolition would occur between twenty-four (24)
months and one day less than eighteen (18) months prior to the Fixed Construction
Commencement Date, (2) 75% of the Assessed Value of the Existing Improvements
if the proposed demolition would occur between eighteen (18) months and one day
less than twelve (12) months prior to the Fixed Construction Commencement Date,
(3) 50% of the Assessed Value of the Existing Improvements if the proposed
demolition would occur between twelve (12) months and one day less than six (6)
months prior to the Fixed Construction Commencement Date and (4) 25% of the
Assessed Value of the Existing Improvements if the proposed demolition would
occur between six (6) months prior to and the Fixed Construction Commencement
Date; provided, however, that Tenant may elect to deliver to
Landlord a certification accelerating the Fixed Construction Commencement Date,
in which event such accelerated Fixed Construction Commencement Date shall
constitute the Fixed Construction Commencement Date for all purposes under this
Lease.









 



(iii)      The
term “Demolition Engineer” shall mean one of (A) Robert Sillman of
Robert Sillman Associates PC, (B) Diane Kaese of Wiss Janney Elstner, (C) Jeff
Smilow of Ysrael Senuk PC or (D) another engineer determined, in any event, as
set forth in this Section 6.5(b)(iii). In the event that the first named
Demolition Engineer is not available or is unwilling to serve, the Demolition
Engineer next set forth on the list shall be engaged, and so on, until arriving
at an available Demolition Engineer. If none of such listed Persons is
available or willing to serve, the Demolition Engineer shall be selected by the
AAA and shall be an impartial engineer, with at least ten (10) years current
experience in the assessment of safety conditions in commercial structures in
New York City. Tenant shall pay all fees and expenses of the Demolition
Engineer (and, if necessary, AAA’s involvement with the selection thereof).


(c)       Notwithstanding that the Delivery Date
has not occurred, Tenant may, at Tenant’s sole election, demolish Existing
Improvements in accordance with this Section
6.5(c) and not be subject to the covenant contained in the last
sentence of Section 6.5(a) hereof,
in the event that: (i) Landlord has obtained vacant possession of less than all
of the Existing Improvements (any such improvements, the “Vacant Existing Improvements”); (ii) Tenant provides to Landlord a
guaranty of any Guarantor, substantially in the form of the Construction
Guaranties (modified so as to (x) guaranty (1) completion of all of such
Demolition Work that is commenced by Tenant pursuant to this Section 6.5(c) and (2) Tenant’s obligations
pursuant to the access agreement described in clause (iii) of this Section 6.5(c) and (y) delete Section 16
thereof (i.e., the financing contingency)); (iii) Tenant enters into an access
agreement with Landlord in a form mutually agreed upon by Landlord and Tenant;
and (iv) Tenant complies with the requirements of Section 6.5(a) hereof. Provided that Tenant has satisfied the
conditions set forth in clauses (i) through (iv) of this Section 6.5(c), then Tenant shall be
permitted to undertake the following activities on the specified Vacant
Existing Improvements:


(A)      Demolish the Vacant Existing Improvements
on any one or more of Lots 15, 8, 14 and 53; and/or


(B)       Undertake pre-demolition activities
(e.g., asbestos removal, lead paint abatement) in respect of the other Vacant
Existing Improvements.


Nothing in this Section 6.5(c) shall permit Tenant to
undertake any excavation on the Property. In the event that litigation is
commenced against Landlord in respect of the Property and Landlord reasonably
demonstrates that such litigation is directly related to Tenant’s initiating of
demolition of Existing Improvements prior to the removal of all occupants from
the Property, then each Non-Delivery Event shall be extended by a period of
time equal to the duration of such litigation. Tenant shall indemnify, defend
and hold harmless each Public Party and its respective officers, directors,
members, managers, shareholders, agents and affiliates, and the successor and
assigns of each of the foregoing, from and against all claims, actions, causes
of action, losses, damages and expenses (including, without limitation,
reasonable attorneys’ fees and expenses) suffered or incurred by the Public
Parties arising out of or related to (1) the aforesaid litigation and (2) any additional
costs incurred hereunder due to Demolition Work performed pursuant to this Section 6.5(c). Upon the request of Landlord, in Landlord’s sole discretion,
Tenant shall promptly cease all Demolition Work implicated in such litigation.
Landlord acknowledges that Tenant’s access to less than all of the Existing
Improvements pursuant to this Section 6.5(c) shall
not be deemed delivery of Possession of the Property or any portion thereof.









 



Section 6.6          Construction
of Tenant’s Subway Improvements (a) Tenant shall perform
or cause to be performed any required Construction Work in respect of the 40th
Street subway entrance (including, without limitation, the relocation thereof)
in accordance with the requirements of the Zoning Resolution as set forth on June
20, 2000 as if such requirements were applicable to the Property (“Tenant’s Subway Improvements”). The
construction of Tenant’s Subway Improvements shall be governed by the Site 8
South Subway Agreement and all applicable Legal Requirements; provided, however,
that Landlord shall have the continuing right to review any modification to the
Site 8 South Subway Agreement and to approve same solely to the extent that any
such modification impacts 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. Landlord acknowledges that
substantial completion of Tenant’s Subway Improvements is not a condition
precedent to Substantial Completion of Tenant’s Construction Work.


(b)       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, 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.


(c)       In the event that the completion of
Tenant’s Subway Improvements is determined by the New York City Department of
Buildings to be a condition to obtaining a temporary or permanent certificate
of occupancy for the Core and Shell (and, therefore, is a condition to the
achievement of Substantial Completion), and Tenant is delayed in obtaining any
such certificate of occupancy solely due to a delay actually caused by the New
York City Transit Authority (after taking into account all reasonable measures
that were taken or should reasonably have been taken by Tenant to mitigate the
effects thereof), the Fixed Substantial Completion Date shall be extended for a
period reasonably determined by Landlord, but in no event shall such extension
be for a period greater than the period reasonably caused by such delay.


(d)       Prior to the execution of the Site 8
South Subway Agreement, the Public Parties shall, at Tenant’s reasonable cost,
cooperate with Tenant in any reasonable way, to facilitate (but without the
requirement to expend or to commit to expend funds) the participation of the
New York City Transit Authority with the Project.


Section 6.7          Final
Completion; Permanent Certificate of Occupancy. Tenant
shall, using commercially reasonable efforts, diligently and continuously
pursue the development of the New Building until the New Building shall be
complete and fully operational. Within a reasonable period after the completion
of the initial build out in respect of Demised Space constituting one hundred
percent (100%) of the Square Feet to be occupied in the New Building, Tenant
shall with reasonable diligence obtain (or cause to be obtained) a permanent
certificate of occupancy for the New Building.


Section 6.8          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 Property (as defined in the Agreement of
Lease, dated                  ,
2001, between Owner and 42nd St. Development Project, Inc. (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 Property 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 Property (as defined in the Lease) 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 Property.


(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 / Construction Work /
Condemnation Restoration / Restoration (as defined in the Lease) being
performed or the acquisition of any material or equipment to be incorporated
into the Property.


(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 6.9          Construction Sign. Within
thirty (30) days after request of Landlord, Tenant shall install, during the
period in which Tenant is undertaking Tenant’s Construction Work, a project
sign at the Project that satisfies the requirements of the DUO, if any, and
such sign shall be maintained at the Project by Tenant thereafter at all times
until Substantial Completion is achieved.


Section 6.10        Project
Area. Tenant shall require its general contractor,
construction manager, major trade contractors and all other workers at the
Property connected with any Construction Work to work harmoniously with each
other, and with other contractors and workers on the Project, 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 Project area by other occupants and visitors
thereof.


Section 6.11        Title
to Materials. All materials and other Equipment
incorporated in the Improvements, excluding any Tenant or Subtenant personal
property, shall, effective upon









 



their incorporation into the Project and at all times thereafter,
constitute the property of Landlord and shall constitute a portion of the
Property.


Section 6.12        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 O attached
hereto, certifying that the contemplated Construction Work 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 sole assessment of the Construction Work 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 6.13        Arbitration.
Disputes regarding any aspect of this Article VI, except for those expressly
stated otherwise or those that pertain to the DUO, may be referred to
arbitration pursuant to Section 16.3 hereof.