EX-10.1



 





Execution Copy




Exhibit 10.1




AGREEMENT OF SUBLEASE



AGREEMENT OF SUBLEASE (this “Sublease”), made as of the 28th day of February, 2007, by and between
Harris Interactive Inc., a Delaware corporation, with offices at 60 Corporate Woods,
Rochester, New York 14623 (“Sub-Sublandlord”) and McCANN ERICKSON INC., a Delaware corporation,
with offices at 622 Third Avenue, New York, NY 10017 (“Subtenant”) with reference to the following
facts:




W I T N E S S E T H:




     WHEREAS, Sub-Sublandlord is presently the tenant under that certain Agreement of Sublease,
dated as of June 8, 2004, between The McCall Pattern Company, a Delaware corporation (as
successor-in-interest by merger to Butterick Company, Inc.), with offices at Eleven Penn Plaza, New
York, New York 10001 (“Sublandlord”) such lease shall be referred to hereafter as the
“McCall-Harris Sublease”; and



     WHEREAS, Sublandlord is presently the tenant as successor in interest to Butterick Company,
Inc. under that certain Lease Agreement, dated as of August 16, 1988, between Earle W. Kazis
Associates, Inc., as agent for Spring and America Associates and Ronald J. Mount and Earle W.
Kazis, collectively, as landlord (“Master Landlord”) and Butterick Company, Inc., as tenant (the
“Base Lease”), which Base Lease was amended by Lease Modification and Partial Surrender of Lease
Agreement dated July 12, 1995 (the “First Amendment”), by Lease Modification and Partial Surrender
of Lease Agreement dated May 24, 1996 (the “Second Amendment”), by Lease Modification and Partial
Surrender of Lease Agreement dated March 21, 1997 (the “Third Amendment”), by Lease Extension and
Modification Agreement dated September 26, 1997 (the “Fourth Amendment”) and by Lease Modification
and Partial Surrender of Lease Agreement dated January, 2000 (the “Fifth Amendment”), which Base
Lease, First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment are
hereinafter collectively called the “Master Lease” (a redacted copy of which is attached hereto as
Exhibit “A”); and, currently covering certain premises comprising 40,000 rentable square
feet consisting of the entire sixth (6th) and seventh (7th) floors
(hereinafter referred to as the “Sublease Premises”) all as more particularly described on the
floor plan attached hereto as Exhibit “B”, in the building (the “Building”) located at 161
Avenue of the Americas, New York, New York; and



     WHEREAS, Subtenant desires to sublease from Sub-Sublandlord, and Sub-Sublandlord is willing to
sublease to Subtenant approximately 8,180 rentable square feet located on the 7th floor
(hereinafter referred to as the “Sub-Sublease Premises”) all as more particularly described in the
floor plan attached hereto as Exhibit “B” in the building (the “Building”) located at 161



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Avenue of the Americas, New York, New York, upon the terms and conditions set forth in this Sublease;




     NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto
agree as follows:



     1. Demised Premises/Term/Subtenant’s Work.



          A. Sublease Premises/Term. Sub-Sublandlord does hereby lease to Subtenant, and
Subtenant does hereby hire and take from Sub-Sublandlord, the Sub-Sublease Premises for a term (the
“Term”) commencing on the date which is the later of
(i) March 1, 2007 (the “Target
Commencement Date”) or (ii) such date on which Sub-Sublandlord shall deliver possession of the
Sub-Sublease Premises to Subtenant, along with the Master Landlord’s and Sublandlord’s Consent (as
hereinafter defined) (the “Commencement Date”), and expiring at 11:59 p.m. on April 28, 2012 (the
“Expiration Date”), unless sooner terminated pursuant to the terms hereof or by operation of law.
Promptly after delivery of possession of the Sub-Sublease Premises to Subtenant, the parties shall
execute a letter confirming the Commencement Date of this Sub-Sublease. Anything herein contained
to the contrary notwithstanding, Sub-Sublandlord may tender physical possession of the Sub-Sublease
Premises to Subtenant prior to the Target Commencement Date and Subtenant shall accept possession
of the Sub-Sublease Premises on the date of delivery of physical possession to Subtenant (the
“Early Possession Period”). All the provisions of this Sublease shall apply during the Early
Possession Period except no Monthly Base Rent (as hereinafter defined) shall be due.




          B. Master Landlord’s Consent. This Sublease is conditioned upon the written consent by
the Master Landlord and Sublandlord to this Sublease, which consent shall be substantially in the
form annexed hereto as Exhibit “C” (the “Consent to Sublease”). Promptly after the
execution of this Sublease, Sub-Sublandlord shall present the Consent to Sublease to Master
Landlord and Sublandlord for execution. Sub-Sublandlord shall use its best efforts to obtain
Master Landlord’s and Sublandlord’s execution of the Consent to Sublease on or before that date
which is 45 days from the date first set forth above (the “Final Consent Delivery Date”), including
payment of any moneys required to be paid such parties for their consent, but Sub-sublandlord shall
not be required to take any legal action for such purpose. Subtenant agrees to cooperate with
Sub-Sublandlord in responding to any request by Master Landlord and Sublandlord for information
(financial or otherwise) or documents relating to Subtenant or its business. Should Sub-Sublandlord
fail for any reason to deliver possession of the Sub-Sublease Premises along with the executed
Consent to Sublease by the Final Consent Delivery Date, Subtenant may terminate this Sublease or
elect to cause the Term to commence on (and the Commencement Date shall be) the date on which
Sub-Sublandlord actually delivers to Subtenant both possession of the Sub-Sublease Premises and the
fully executed Consent to Sublease.




          C. Subtenant’s Work.




               (1) “Subtenant’s Work” shall mean the initial installations, alterations, additions,
substitutions, improvements and decorations to be performed by Subtenant, or its agents, employees
or contractors, at Subtenant’s sole cost and expense, subject



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to the provisions of this Paragraph
1.C., for the purpose of making the Sublease Premises ready for occupancy by Subtenant.




               (2) Subtenant shall prepare, and shall deliver to Master Landlord and Sublandlord (if
applicable) and to Sub-Sublandlord, for their approval, in accordance with the provisions of
Paragraph FOURTH of the Master Lease, “Subtenant’s Construction Documents” in the form, quantity,
and manner specified by Sub-Sublandlord and/or Master Landlord and Sublandlord. Subtenant’s
Construction Documents shall be in conformity with all applicable laws and requirements.
Sub-Sublandlord shall deliver its comments and/or approval of Subtenant’s Construction Documents
within ten (10) business days of its receipt of said documents and shall use its best efforts to
cause the Master Landlord and Sublandlord to promptly deliver its comments and/or approval of
Subtenant’s Construction Documents. Subtenant shall cause Subtenant’s Construction Documents to be
revised (if necessary), pursuant to Master Landlord’s and Sublandlord’s (if applicable) and
Sub-Sublandlord’s respective comments; provided if the parties reasonably cannot agree on the
necessary revisions within sixty (60) days of the date receipt of the later of Sub-Sublandlord’s or
Master Landlord’s or Sublandlord’s comments, Subtenant shall have the right to terminate this
Sublease.



               (3) Subtenant may use Subtenant’s contractor to perform the Subtenant’s Work in accordance
with Subtenant’s Construction Documents, the terms of this Sublease, the Master Lease and the
following qualifications:



                    (a) Subtenant shall obtain the written approval of Sub-Sublandlord, Sublandlord and Master
Landlord (each, if applicable), (which approval, as to Sub-Sublandlord and Sublandlord, shall not be unreasonably withheld or delayed), of the work it
proposes to perform and of the plans and specifications therefor;



                    (b) Subtenant’s Work shall be performed by responsible contractors and subcontractors
reasonably acceptable to and approved in advance by Sub-Sublandlord, Sublandlord and Master
Landlord, who (i) shall not, in Sub-Sublandlord’s, Sublandlord’s and Master Landlord’s, respective,
reasonable judgment, affect Sub-Sublandlord’s, Sublandlord’s or Master Landlord’s relationship with
Sub-Sublandlord’s, Sublandlord’s or Master Landlord’s contractors or subcontractors or disturb
harmonious labor relations in the Building, (ii) shall not, in Sub-Sublandlord’s, Sublandlord’s or
Master Landlord’s reasonable judgment, interfere with the use and occupancy of other tenants or
Subtenants in the Building, and (iii) shall maintain in effect, and evidence to Sub-Sublandlord,
Sublandlord and Master Landlord (by delivery of a duplicate policy or a certification of
insurance), worker’s compensation insurance and disability insurance in accordance with statutory
requirements, and comprehensive general liability insurance with companies, coverages, amounts and
insureds as Sub-Sublandord, Sublandlord or Master Landlord may from time to time reasonably require
or approve;



                    (c) Subtenant and its contractors and subcontractors shall be solely responsible for the
transportation, safekeeping and storage of materials and equipment used in the construction and
performance of the Subtenant’s Work, for the removal of waste and debris resulting there from, and
for any damage caused by them to any installations or work performed by any other party;



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                    (d) Subtenant shall allow Sub-Sublandlord’s, Sublandlord’s and/or Master Landlord’s designated
representatives’ access to the Sub-Sublease Premises at reasonable times during the completion of
the Subtenant’s Work, for the purposes of inspecting and verifying Subtenant’s Work.
Sub-Sublandlord, Sublandlord and/or Master Landlord shall inspect the performance of Subtenant’s
Work and shall advise Subtenant promptly of any objection to the performance of such Subtenant’s
Work to the extent Sub-Sublandlord, Sublandlord or Master Landlord learns of any condition which is
not reasonably acceptable. Notwithstanding the foregoing, Sub-Sublandlord, Sublandlord’s and/or
Master Landlord’s inspection of the Subtenant’s Work shall not be (i) an approval by
Sub-Sublandlord, Sublandlord or Master Landlord of any work performed or materials furnished with
respect to any portion of the Subtenant’s Work or (ii) a representation or acknowledgment by
Sub-Sublandlord, Sublandlord or Master Landlord as to the fitness of such Subtenant’s Work or their
compliance with applicable Law (as hereinafter defined);



                    (e) All such Subtenant’s Work shall be performed during the hours permitted by Master Landlord
and shall not interfere with the operation and maintenance of the Building or unreasonably
interfere with or interrupt the use and occupancy of the Building by other tenants.



                    (f) All such Subtenant’s Work shall comply with all applicable laws and requirements; and



                    (g) Subtenant shall indemnify, defend and hold Sub-Sublandlord, Sublandlord and Master
Landlord harmless from any and all loss, damage, claim, demand, action, cost and expense incurred
by Sub-Sublandlord, Sublandlord or Master Landlord (including reasonable attorneys’ fees) arising
in connection with the completion of the Subtenant’s Work, unless such loss, damage, claim, demand,
action, cost or expense is caused by Sub-Sublandlord’s, Sublandlord’s or Master Landlord’s willful
misconduct or negligent act or omission.



               (4) Subtenant shall pay promptly all persons furnishing labor or materials with respect to the
Subtenant’s Work or any other work performed by Subtenant or its contractors on or about the
Sub-Sublease Premises. If any construction lien claim or other lien (collectively “Lien”) shall at
any time be filed against the Building and/or the Sub-Sublease Premises by reason of work, labor,
services or materials performed or furnished, or alleged to have been performed or furnished, to
Subtenant or to anyone holding the Sub-Sublease Premises through or under Subtenant, Subtenant
shall forthwith cause the same to be discharged or bonded to the reasonable satisfaction of
Sub-Sublandlord, Sublandlord and Master Landlord. If Subtenant shall fail to cause such Lien
forthwith to be discharged or bonded within twenty (20) days of the filing thereof, then, in
addition to any other right or remedy of Sub-Sublandlord, Sub-Sublandlord, following reasonable
prior notice to Subtenant and its failure to cure, may bond or discharge the same by paying the
amount claimed to be due, and the amount so paid by Sub-Sublandlord, including reasonable
attorney’s fees incurred by Sub-Sublandlord either in defending against such Lien or in procuring
the bonding or discharge of such Lien, together with interest thereon, shall be due and payable by
Subtenant to Sub-Sublandlord. Nothing contained in this Sublease shall be deemed or construed in
any way as constituting the consent or request



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of Sub-Sublandlord, Sublandlord or Master Landlord,
express or implied, by inference or otherwise, to the filing of any Lien against the Sub-Sublease
Premises or the Building by any contractor, subcontractor, laborer, materialman, architect or
engineer for the performance of any labor or the furnishing of any materials or services for or in
connection with the Sub-Sublease Premises or the Building of any part thereof. Notice is hereby
given that Sub-Sublandlord, Sublandlord and Master Landlord shall not be liable for any labor or
materials or services furnished or to be furnished to Subtenant upon credit. Subtenant shall
indemnify and hold harmless Sub-Sublandlord, Sublandlord, Master Landlord (and any ground and
underlying lessors) against and from all costs, liabilities, suits, penalties and demands,
including reasonable counsel fees, resulting from a Lien being filed against Sub-Sublandlord,
Sublandlord, Master Landlord and any ground lessor, or any portion of the Sub-Sublease Premises,
regardless of whether or not such Lien, charge, order or encumbrance is valid or enforceable.




               (5) Within a reasonable period after completion of the Subtenant’s Work, Subtenant shall
deliver to Sub-Sublandlord general releases and waivers of lien, substantially in the form annexed
hereto as Exhibit “C”, from all contractors, subcontractors and materialmen involved in the
performance of the Subtenant’s Work and the materials furnished in connection therewith, and a
certificate from the Subtenant’s independent licensed architect certifying that (i) Subtenant’s
Work has been completed substantially in accordance with approved plans and specifications and (ii)
all contractors, subcontractors and materialmen have been paid for the Subtenant’s Work and
materials furnished through such date. Notwithstanding the foregoing, Subtenant shall not be
required to deliver to Sub-Sublandlord any general release or waiver of lien if as to item of work which Subtenant is in good faith disputing, provided
that Subtenant shall keep Sub-Sublandlord advised in a timely fashion of the status of such dispute
and the basis therefor and Subtenant shall deliver to Sub-Sublandlord the general release or waiver
of lien when the dispute is settled. In the event Subtenant shall not be able to secure general
releases and waivers of lien, Subtenant shall provide Sub-Sublandlord with evidence that all
contractors, subcontractors and materialpersons have been paid in full.



          (D) Sub-Sublandlord’s Work. Prior to the Commencement Date, Sub-Sublandlord shall
perform the following work within the Sub-Subleased Premises: build a demising wall to Building
standard. If Sub-Sublandlord does not get government approvals to build the demising wall, then
this Sublease shall not commence. Subtenant shall replace the entry door with a glass front door,
remove closets at entry, all in accordance with plans and specifications to be reasonably approved
by Sub-Sublandlord, Sublandlord, Master Landlord and any government agent approvals, if required.
Sub-Sublandlord shall be responsible for payment of any monies required to be paid for such
parties’ consent, but Subtenant shall be responsible for payment of any monies required to be paid
for such parties’ consent to any other work proposed by Subtenant.




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     2. Rent.



          A. Monthly Base Rent.




               (1) Concurrently with the execution and delivery of this Sublease, Subtenant shall deliver to
Sub-Sublandlord payment consisting of the first month’s Monthly Base Rent due pursuant to Paragraph
2.A(2)(i) below.



               (2) Subject to the provisions of Paragraph 2.A(3) below, commencing as of the first day of the
first calendar month in which the Commencement Date occurs and continuing throughout the Term of
this Sublease, Subtenant shall pay to Sub-Sublandlord on or before the first day of each calendar
month during the Term of this Sublease (each, a “Rental Payment Date”), without notice or demand,
in lawful money of the United States, at the Sub-Sublandlord’s address as above stated or such
other place as Sublandlord may designate, base rent for the Sub-Sublease Premises for each month
during the Term (the “Monthly Base Rent”) in the following amounts:




(i) For the period commencing on the Commencement Date and terminating on
the date which is half way through the Term annual rent in the amount of TWO
HUNDRED NINETY-EIGHT THOUSAND FIVE HUNDRED SEVENTY DOLLARS ($298,570.00)
[8,180 square feet x $36.50 PSF], payable in equal monthly installments
during such period in the amount of Twenty-Four Thousand Eight Hundred
Eighty and 83/100 Dollars ($24,880.83) per month;




(ii) For the period commencing on the day following the date which is half
way through the Term, and terminating on April 28, 2012 , annual rent in the
amount of THREE HUNDRED FOURTEEN THOUSAND NINE HUNDRED THIRTY DOLLARS
($314,930.00) [8,180 square feet x $38.50 PSF], payable in equal monthly
installments during such period in the amount of Twenty-Six Thousand Two
Hundred Forty-Four and 17/100 Dollars ($ 26,244.17) per month;


Monthly Base Rent for any period during the Term of this Sublease which is for less than one (1)
calendar month shall be prorated based on a thirty (30) day month.




               (3) Provided Subtenant shall not be in default of its obligations hereunder beyond applicable
notice and cure periods herein or by statute allowed, Subtenant shall be entitled to abatement of
Monthly Base Rent for the period of eight weeks from the Commencement Date (“Free Rent Period”).



               (4) In the event the Sublease shall terminate by reason of the Subtenant’s breach of the terms
hereof, Sub-Sublandlord shall be entitled to payment of a sum equal to two months’ rent if
Subtenant’s breach occurs during the first three years of the Term or one month’s rent if the
Subtenant’s breach occurs during the last two years of the Term.



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          B. Additional Rent.




               (1) For purposes of this Sublease, the following terms shall be applicable:



                    (a) “Subtenant’s Proportionate Share” shall mean 100% of the excess of the amounts payable by
Sub-Sublandlord to Sublandlord to Master Landlord pursuant to Paragraphs THIRTY-EIGHTH and
THIRTY-NINTH of the Master Lease above the Sublease Real Estate Tax Base Year (as herein defined)
and Sublease Operating Expense Base Year (as herein defined). Provided the square footage of the
demised premises subject to the McCall-Harris Sublease remains unchanged, the Subtenant’s
Proportionate Share shall equal 20.45% of said demised premises. In the event that said demised
premises is modified, the proportionate share shall be modified accordingly.



                    (b) “Sublease Real Estate Tax Base Year” shall mean the average of the total real estate taxes
as defined in Paragraph THIRTY-EIGHTH payable by Sub-Sublandlord for the fiscal periods July 1,
2006 through June 30, 2007 and July 1, 2007 through June 30, 2008.



                    (c) “Sublease Operating Expense Base Year” shall mean the operating expenses as defined in
Paragraph THIRTY-NINTH payable by Sub-Sublandlord for the fiscal period January 1, 2007 through
December 31, 2007.



               (2) Commencing on the first day of the month following the one year anniversary of the
Commencement Date, Subtenant shall pay to Sub-Sublandlord as Additional Rent without any setoff or
deduction whatsoever, an amount equal to Subtenant’s Proportionate Share of increases above the
Sublease Operating Expense Base Year for such calendar year and commencing on July 1, 2007,
Subtenant shall pay to Sub-Sublandlord as Additional Rent without any setoff or deduction
whatsoever, an amount equal to Subtenant’s Proportionate Share of increases above the Sublease Real
Estate Tax Base Year (collectively, the “Excess Annual Expense Amount”). Subtenant’s Proportionate
Share of such Excess Annual Expense Amount shall be payable as follows:



                    (a) Not later than December 1, 2007 and continuing on December 1st of each subsequent year
during the Term of this Sublease, Sub-Sublandlord shall deliver a statement to Subtenant setting
forth Sub-Sublandlord’s reasonable estimate of Operating Expenses for the next following calendar
year and (2) Not later than June 1, 2008, and continuing on June 1st of each subsequent
year during the Term of this Sublease, Sub-Sublandlord shall deliver a statement to Subtenant
setting forth Sub-Sublandlord’s reasonable estimate of Sublease Real Estate Taxes for the following
fiscal year (collectively, the “Estimated Annual Expense Amount”), (ii) the difference between the
Estimated Annual Expense Amount and the total amounts for the Sublease Operating Expense Base Year
and the Sublease Real Estate Tax Base Year incurred by Sub-Sublandlord (collectively, the
“Estimated Excess Expense Amount”), and (iii) Subtenant’s Proportionate Share of such Estimated
Excess Expense Amount (“Subtenant’s Estimated Obligation”). Subtenant’s Estimated Obligation shall
be prorated for any partial calendar year during the Term of this Sublease.



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                    (b) Commencing (i) on the first day of the month following the one year anniversary of the
Commencement Date and on each Rental Payment Date thereafter during the Term of this Sublease,
Subtenant shall pay to Sub-Sublandlord, as Additional Rent, an amount equal to 1/12th Subtenant’s
Estimated Obligation for Operating Expense escalations for the calendar year in which such Rental
Payment Date occurs, and (ii) July 1, 2008 and on each Rental Payment Date thereafter during the
Term of this Sublease, Subtenant shall pay to Sub-Sublandlord, as Additional Rent, an amount equal
to 1/12th Subtenant’s Estimated Obligation for Real Estate Tax escalation for the fiscal year in
which such Rental Payment Date occurs.



                    (c) Not later than September 1 of each calendar year, commencing on September 1, 2009,
Sub-Sublandlord shall furnish Subtenant with a statement (“Final Expense Statement”) setting forth
(i) the actual amount of the excess above Sublease Operating Expense Base Year and Sublease Real
Estate Tax Base Year incurred by Sub-Sublandlord for the preceding fiscal year (“Sub-Sublandlord’s
Actual Excess Costs”), (ii) Subtenant’s Proportionate Share of Sub-Sublandlord’s Actual Excess
Costs (“Subtenant’s Actual Obligation”), and (iv) the amount by which Subtenant’s Actual Obligation
exceeds or is less than that portion of Subtenant’s Estimated Obligation paid by Subtenant in the
previous fiscal year.



                    (d) Within thirty (30) days after Sub-Sublandlord’s giving of such Final Expense Statement,
Subtenant shall make a lump sum payment to Sub-Sublandlord equal to the amount by which Subtenant’s
Actual Obligation exceeds the aggregate of the monthly installments of Subtenant’s Estimated
Obligation paid during such previous fiscal year. If Subtenant’s Actual Obligation is less than the aggregate of the monthly installments of
Subtenant’s Estimated Obligation actually paid by Subtenant during such preceding fiscal year (in
such event, an “Excess Payment”), then Sub-Sublandlord shall credit the amount of such Excess
Payment to the next accruing monthly installment(s) of Subtenant’s Estimated Amount for the
then-current fiscal year until such Excess Payment is fully credited to Subtenant. Following the
end of the Term, Sub-Sublandlord agrees to refund any overpayment to Subtenant. Subtenant shall
have the right to inspect Sub-Sublandlord’s accounting records pertaining to the Operating Costs
and Real Estate Taxes as set forth on the Final Expense Statement within ninety (90) days of the
delivery of such Final Expense Statement to Subtenant. If, after such inspection, Subtenant
disputes the amount of Subtenant’s Actual Obligation, Subtenant shall be entitled to retain an
independent public accountant to audit and/or review Sub-Sublandlord’s records. No later than
sixty (60) days after inspection by the Subtenant, Subtenant shall give Sub-Sublandlord notice (the
“Inspection Notice”) that Subtenant intends to cause Sub-Sublandlord’s books and records with
respect to the preceding fiscal year to be audited, identifying the expense in question and setting
out in reasonable detail the reason why such expense should not be binding on Subtenant. If
Subtenant does not cause such audit to be accomplished within ninety (90) days after receipt of the
Inspection Notice (and predicated on Sub-Sublandlord’s cooperation therewith), Subtenant’s right to
object to any such expense shall terminate. Subtenant shall pay all costs of such audit
(including, without limitation, any and all copying costs), and the amount of Subtenant’s Actual
Obligation for such calendar year shall be appropriately adjusted on the basis of such audit. The
provisions of this subsection shall survive the Expiration Date or the earlier termination of the
Sublease.



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                    (e) If the Term ends on a date other than the last day of December, the actual Operating Costs
for the year in which the Expiration Date occurs shall be prorated so that Subtenant shall pay that
portion of Subtenant’s Proportionate Share of Sub-Sublandlord’s Actual Excess Costs for such year
represented by a fraction, the numerator of which shall be the number of days during such
fractional year falling within the Term, and the denominator of which is 365. The provisions of
this subsection shall survive the Expiration Date or any sooner termination of this Sublease.



          C. Rent. As used herein the term “Additional Rent” shall refer to all sums of money
which shall become due and payable by Subtenant to Sub-Sublandlord under this Sublease other than
Monthly Base Rent, and the term “Rents” shall refer collectively to Monthly Base Rent and
Additional Rent.




          D. Delivery of Statements and Bills. Sub-Sublandlord’s failure to deliver any
statements or bills required to be delivered to Subtenant hereunder, or Sub-Sublandlord’s failure
to make a demand under this Sublease, shall not be a waiver of, or cause Sub-Sublandlord to forfeit
or surrender, its rights to collect any Rents which may have become due pursuant to this Sublease;
provided however: (1) Subtenant shall continue to pay to Sub-Sublandlord Subtenant’s Estimated
Obligation applicable for such calendar year until delivery to Subtenant of Subtenant’s Actual
Obligation and (2) any statement or bill must be delivered to Subtenant within twelve months of the
date due in order to be considered valid. Rent accruing during the term of this Sublease shall
survive the expiration or sooner termination of this Sublease.




     3. Intentionally Omitted.



     4. Utilities and Services.



          A. Utilities. Subtenant shall pay for all utilities, including electricity, gas,
water, and telephone service furnished to the Sub-Sublease Premises. Sub-Sublandlord shall monthly
invoice Subtenant, as additional rent, Subtenant’s usage of electricity based upon the invoices
received by Sub-Sublandlord from the Master Landlord for such electricity usage as measured by a
submeter. Sub-Sublandlord shall supply Subtenant with electricity to the Sub-Sublease Premises to
the same extent and subject to the terms and conditions set forth in Paragraph TENTH of the Master
Lease provided however, that Sub-Sublandlord shall have no liability for failure to deliver
electricity to Subtenant unless such failure is due to Sub-Sublandlord’s intentional act. If
Subtenant shall desire any change or increase in the nature or any such utility services,
Sub-Sublandlord’s sole obligation shall be to use reasonable efforts to cause the Master Landlord
to provide such changes in such utility services requested by Subtenant, and Subtenant, shall, on
demand, pay or reimburse Sub-Sublandlord for all reasonable costs, charges or expenses incurred by
Sub-Sublandlord in causing Master Landlord to provide such services and in the cost for providing
such services. Sub-Sublandlord shall have no obligation to alter existing lines or equipment
providing distribution of electricity throughout the Sub-Sublease Premises. Subtenant shall be
solely responsible for any alterations to the existing lines or equipment made necessary by
Subtenant’s alterations to the Sub-Sublease Premises or otherwise required due to Subtenant’s
particular use of the Sub-Sublease Premises; provided however, that any such alterations shall be
subject to the prior approval of Sub-Sublandlord, Sublandlord and Master Landlord in accordance
with Paragraph 9 below.




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          B. Services. During the Term, Subtenant shall receive the building services
(“Services”) provided under the Master Lease without additional charge, except to the extent the
Master Landlord or Sublandlord shall charge for any such Services in accordance with the terms of
the Master Lease; and, in such event, Subtenant shall pay to Sub-Sublandlord the cost of such
Services as billed by Master Landlord to Sub-Sublandlord.




          C. Interruption. Sub-Sublandlord reserves the right, without any liability to
Subtenant, and without being in breach of any covenant of this Sublease, to interrupt or suspend
any of the Services to be provided by Sub-Sublandlord, as may be necessary by reason of accidents,
emergencies, strikes, mechanical failures, repairs or changes to any system, inability to secure
fuel, labor or supplies, or governmental restrictions or voluntary compliance programs, or by
reason of any other cause beyond Sub-Sublandlord’s reasonable control; provided however that all
such interruptions shall be discontinued as soon as commercially practicable. Subtenant shall be
entitled to its Proportionate Share of any rent credit received by Sub-Sublandlord by reason of any
interruption of services.




          D.  Services Provided by Master Landlord. Anything to the contrary notwithstanding in
the preceding provisions of this Paragraph 4, Sub-Sublandlord shall not be obligated:




                    (a) to provide any of the services or utilities that Master Landlord has agreed in the Master
Lease to provide,



                    (b) to make any of the repairs or restorations that Master Landlord has agreed in the Master
Lease to make,



                    (c) to comply with any laws or requirements of public authorities with which Master Landlord
has agreed in the Master Lease to comply, or



                    (d) to take any action with respect to the operation, administration or control of the
Building or any of its public or common areas that the Master Landlord has agreed in the Master
Lease to take; provided, however, in the event that Subtenant requests that Sub-Sublandlord
exercise its rights under the Sublease to enforce Sublandlord or Master Landlord to fulfill its
respective obligations under the Master Lease or Sublease, provided that Sub-Sublandlord reasonably
believes that Subtenant’s request has merit, Sub-Sublandlord shall, at the expense of Subtenant,
take whatever action is reasonably necessary to secure the relief requested by Subtenant,
including, without limitation, commencing an action against Master Landlord or Sublandlord, as
applicable, to enforce Subtenant’s rights under the Sublease and Sub-Sublandlord’s rights under the
Sublease.



     5. Permitted Use.



          A. General Office Use. Subtenant shall use and occupy the Sub-Sublease Premises for
general, executive and administrative offices.




          B. No Overload. Subtenant shall not use, or suffer or permit the use of, the
Sub-Sublease Premises or any part thereof in any manner or for any purpose or do, bring or keep




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anything, or suffer or permit anything to be done, brought or kept, therein (including, but not
limited to, the installation or operation of any electrical, electronic or other equipment, but not
including word processors and personal computers) which would: (1) violate any covenant, agreement,
term, provision or condition of this Sublease or is unlawful or in contravention of the certificate
of occupancy for the Building or for the Sub-Sublease Premises, or is a contravention of any legal,
zoning or insurance requirement to which the Building or the Sub-Sublease Premises is subject, or
(2) alter, affect or interfere with or which would overload or could cause an overload of the
electrical or mechanical systems or any other component of the Building or which would exceed the
floor load per square foot which the floor was designed to carry and which is allowed by Law, or
(3) in the commercially reasonable judgment of the Sub-Sublandlord, impair or interfere with the
proper and economic heating or air conditioning of the Building, or exceed the design criteria, the
structural integrity, character or appearance of the Building, or any system or component thereof,
or result in the use of the Building, or any component thereof, in a manner or for a purpose not
intended. Sub-Sublandlord shall use its commercially reasonable judgment in determining whether
Subtenant is in violation of this Section 5B. Sub-Sublandlord shall specify in writing the reasons
for its determination and propose reasonable cures. Subtenant shall have thirty (30) days (or such
longer period as may be reasonably necessary) to cure any alleged violation of this Section to the
reasonable satisfaction of both parties. It is agreed that Subtenant’s intended initial occupancy
and layout of equipment and furniture as set forth in Subtenant’s Construction Documents does not violate any requirement of this Section.
Subtenant shall conduct its business and control its employees, agents, invitees and visitors in
such manner as not to create any nuisance, or interfere with, annoy or disturb any other tenant or
occupant of the Building or Sub-Sublandlord in the operation of the Building. Subtenant will not do
anything that will cause an increase in the existing rate of insurance carried by Sub-Sublandlord
with respect to the Building or cause a cancellation of Sub-Sublandlord’s insurance.
Notwithstanding the above, in the event Master Landlord shall have no objection to the manner in
which Subtenant operates within the Sub-Subleased Premises, Sub-Sublandlord shall have no such
objection.




     6. Subordination to and Incorporation of the Master Lease.



          A. Master Lease. This Sublease shall be subject and subordinate to the Master Lease,
and to all leases, mortgages and other rights or encumbrances to which the Master Lease is
subordinate. This provision shall be self-operative but Subtenant shall within ten (10) days of
Sub-Sublandlord’s request execute any instrument reasonably requested by Sub-Sublandlord,
Sublandlord or Master Landlord to evidence or confirm the same. Sub-Sublandlord represents that a
true and complete copy of the Master Lease (excluding redacted terms and conditions not relevant to
Subtenant) is attached hereto as “Exhibit B”. Sub-Sublandlord shall make no election to
terminate the Master Lease (except if arising out of casualty or condemnation as expressly set
forth in the Master Lease) without Subtenant’s prior written consent. Sub-Sublandlord shall not
amend the Master Lease in a manner adverse to Subtenant in any material respect.




          B. Included Provisions. Except as otherwise expressly provided in, or otherwise
inconsistent with, this Sublease, and except to the extent not applicable to the Sub-Sublease
Premises, all provisions of the Master Lease other than the Excluded Provisions (as

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hereinafter identified) are hereby incorporated in this Sublease by reference with the same force and effect as
if set forth herein, except that unless the context requires otherwise:




               (1) references in such provisions to Owner, Landlord or Lessor shall be deemed to refer to
Sub-Sublandlord;



               (2) references in such provisions to Tenant or Lessee shall be deemed to refer to Subtenant;



               (3) references in such provisions to the Premises or the Demised Premises shall be deemed to
refer to the Sub-Sublease Premises;



               (4) references in such provisions to other provisions of the Master Lease that are not
incorporated herein shall be disregarded; and



               (5) references in such provisions to subleases, sublettings or Subtenants shall be deemed to
refer to sub-subleases, sub-sublettings or sub-subtenants.



          C. Excluded Provisions. For purposes of this Paragraph 6, “Excluded Provisions” shall
refer to the following provisions which are not incorporated into this Sublease and any other
provisions inconsistent with the express terms of this Sublease:




               (1) The provisions of the first two paragraphs commencing on page 1(A) of the Base Lease
defining the Premises, Term and rent and additional rent;



               (2) The provisions of Paragraph FIRST of the Base Lease regarding the use of the Sub-Sublease
Premises;



               (3) The provisions of Paragraph TWENTY-THIRD of the Base Lease regarding notice to Master
Landlord;



               (4) The covenant of quiet enjoyment set forth in Paragraph TWENTY-SEVENTH of the Base Lease,
provided however that exclusion of such provision shall not be deemed to effect or waive
Subtenant’s rights under the covenant of quiet enjoyment set forth in Paragraph 16 hereof;



               (5) The provisions of Paragraph FORTY-SECOND of the Base Lease regarding arbitration of
disputes;



               (6) The provisions of Paragraph FORTY-FOURTH of the Base Lease regarding Brokers;



               (7) The provisions of Paragraph FORTY-SIXTH of the Base Lease regarding delivery of
possession;



               (8) The provisions of subparagraphs (1) and (2) relating to Paragraph EIGHTEENTH of the Base
Lease set forth in Rider 2 to the Base Lease;



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               (9) The provisions relating to Paragraph Fortieth of the Base Lease set forth in Rider 2 to
the Base Lease;



               (10) The provisions of Paragraph FIFTIETH of the Base Lease regarding Landlord’s work;



               (11) The provisions of Paragraph FIFTY-SECOND of the Base Lease regarding the name of the
Building;



               (12) The provisions of the First Amendment, Second Amendment, Third Amendment, the Fourth
Amendment, except for subparagraphs 2 and 8, which are included in this Sublease, and the Fifth
Amendment.



          D. Modifications to Master Lease. In addition, the following provisions of the Master
Lease, as incorporated herein, shall be deemed modified as follows:




               (1) The provisions of Paragraph THIRTY-EIGHTH of the Base Lease, as amended, with respect to
the determination of Subtenant’s obligations pursuant to Paragraph 2.B hereof;



               (2) The provisions of Paragraph THIRTY-NINTH of the Base Lease, as amended, with respect to
the determination of Subtenant’s obligations pursuant to Paragraph 2.B hereof;



               (3) The floor plans attached as Exhibits to the Base Lease relating solely to floors 6 and 7



          E. Sub-Sublandlord Covenants. Sub-Sublandlord agrees as follows:




               (1) to maintain the Master Lease and Sublease during the Term of this Sublease, subject,
however, to any termination of the Master Lease without fault of the Sub-Sublandlord, and
Sub-Sublandlord agrees to comply with or perform all of its obligations under the Master Lease and
Sublease that Subtenant has not assumed under this Sublease;



               (2) upon Subtenant’s request, to use reasonable efforts (excluding litigation), at Subtenant’s
expense, (a) to cause the Master Landlord to observe or perform any term, covenant or condition of
the Master Lease required to be observed or performed by Master Landlord, or (b) to obtain Master
Landlord’s consent or approval whenever required by the Master Lease (unless, in such instance,
Sub-Sublandlord shall be entitled to withhold its consent or approval even if Master Landlord shall
have granted its consent or approval), and



               (3) that, if any right or remedy of Sub-Sublandlord or any duty or obligation of Master
Landlord under the Master Lease is subject to or conditioned upon Sub-Sublandlord’s making any
demand upon the Master Landlord or giving any notice, request or statement to Master Landlord then,
if Subtenant shall so request, Sub-Sublandlord, at Subtenant’s expense, shall make such demand or
give such notice, request or statement, except that Sub-Sublandlord shall not be required to
request Master Landlord’s consent or approval



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with respect to any act or thing as to which
Sub-Sublandlord shall have determined in accordance with this Sublease to withhold its consent or
approval in the exercise of its reasonably business judgment; and




               (4) that Sub-Sublandlord shall use its best efforts to secure the consents of the Master
Landlord and any other required party as promptly as reasonably possible; and, Sub-Sublandlord
shall pass on any requests for consent within three business days of receipt of same and shall
respond to any request for its consent within five business days thereof.



          F. Approvals. Whenever Subtenant desires to do any act or thing which requires the
consent or approval of Master Landlord:




               (1) Subtenant shall not do such act or thing (including any assignment or sublet of the
Sublease Premises) without first having obtained the consent or approval of Master Landlord,
Sublandlord and Sub-Sublandlord. Provided that the request would impose no material, additional
obligations or risks upon Sub-Sublandlord, Sub-Sublandlord shall grant its consent in the event
Master Landlord and Sublandlord shall consent; and, in all other events, Sub-Sublandlord’s consent
shall not be unreasonably withheld;



               (2) Subtenant shall not request Master Landlord’s consent or approval directly (and no efforts
by Sub-Sublandlord to obtain Master Landlord’s consent or approval shall constitute
Sub-Sublandlord’s consent or approval or prejudice Sub-Sublandlord’s right to withhold consent or
approval); and



               (3) in no event shall Sub-Sublandlord be required to give its consent or approval prior to
Master Landlord doing so.



          G. Performance. Notwithstanding any other provision of this Sublease, Subtenant shall
perform all of its obligations hereunder at such times, by such dates or within such periods as
Sub-Sublandlord shall be required to perform its corresponding obligations under the Master Lease.
If Master Landlord shall give any notice of failure or default under the Master Lease arising out
of any failure of Subtenant to perform any of its obligations hereunder (other than the payment of
money) then Sub-Sublandlord shall promptly furnish Subtenant with a copy thereof. If the Master
Lease shall provide any grace or cure period for such failure or default then the grace or cure
period hereunder shall expire one (1) day prior to the date on which the grace or cure period under
the Master Lease shall expire. In no event shall this Paragraph 6F extend the time, date or period
by or within which Subtenant is required to perform. Notwithstanding the above, in no event shall
Subtenant have less than three business days notice except if the time period set forth in the
Master Lease shall be less than such notice period. Sub-Sublandlord agrees to forward to Subtenant
at the address indicated in Paragraph 13 of this Sublease, promptly (by telecopy or overnight
delivery) upon receipt or sending thereof, a copy of each such notice received or given by
Sub-Sublandlord in its capacity as tenant under the Master Lease. Subtenant agrees to forward to
Sub-Sublandlord at the address indicated in Paragraph 13 of this Sublease, promptly (by telecopy or
overnight delivery) upon receipt thereof, copies of any




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such notices of default received by Subtenant from Master Landlord or from any governmental authorities. Sub-Sublandlord and Subtenant
agree to indemnify, defend and save each other harmless against any liability arising from the
failure of Sub-Sublandlord or Subtenant, as the case may be, to forward any such notice of default
promptly.




          H. Sub-Sublandlord’s Right to Cure. If (1) Subtenant shall fail to perform any of its
obligations hereunder and such failure shall continue beyond any cure period provided for herein,
or (2) Master Landlord shall give any notice of failure or default under the Master Lease arising
out of any failure by Subtenant to perform any of its obligations hereunder then, in either case,
Sub-Sublandlord shall have the right (but not the obligation) to perform or endeavor to perform
such obligation, at Subtenant’s expense, and Subtenant shall, within ten (10) days of
Sub-Sublandlord’s demands from time to time, reimburse Sub-Sublandlord for all reasonable costs and
reasonable expenses incurred by Sub-Sublandlord in doing so.




          I. Subtenant’s Right to Cure. At any time and from time to time, Subtenant shall have
the right, but not the obligation, to make any payment or take any action necessary to cure a
default by Sub-Sublandlord under the Master Lease provided Subtenant has notified Sub-Sublandlord
in writing that Subtenant elects to cure such default and within five (5) days after Subtenant’s
receipt of such notice, with respect to a monetary default, and thirty (30) days after Subtenant’s
receipt of such notice, with respect to all other defaults, and Sub-Sublandlord has not either
cured such default or provided evidence reasonably acceptable to Subtenant that such
default will be cured before the earlier of (1) expiration of the applicable cure period, or
(2) as necessary to prevent a default under Master Lease. Upon the occurrence of a default by
Sub-Sublandlord beyond any applicable cure period, Subtenant at its option, in addition to any and
all other remedies which it may have at law and/or in equity, and without its actions being deemed
an election of remedies or a cure of Sub-Sublandlord’s default, may pursue any and all rights and
remedies available at law or in equity, whether at the same time or otherwise. In addition, upon
Sub-Sublandlord’s default beyond any applicable cure period, if Subtenant pays or performs such
obligation of Sub-Sublandlord, Subtenant may offset costs incurred by Subtenant (plus interest at
the JP Morgan Chase Bank Prime Rate plus 2%) against monies due hereunder. In addition, and
notwithstanding the foregoing, if the nature of such default is such that Subtenant cannot
reasonably wait for Sub-Sublandlord, or the Master Landlord to cure such default on account of the
imminent danger to persons or property in the Sub-Sublease Premises, then Subtenant may, without
being obligated, promptly commence the curing of such default, and Sub-Sublandlord shall, within
fifteen (15) days following receipt of demand (including receipt of reasonable back-up information)
reimburse Subtenant for all its costs and expenses reasonably incurred in the curing of such
default. If Sub-Sublandlord shall fail to reimburse Subtenant within such period, Subtenant shall
have the right to offset such amount plus interest thereon.




          J. Termination. If theMcCall-Harris Lease is terminated for any reason during the term
hereof, then and in that event this Sublease shall thereupon automatically terminate as of the date
upon which the McCall-Harris Lease is so terminated; provided, however, that if Subtenant shall in
writing elect to assume Sub-Sublandlord’s obligations under the McCall-Harris Lease as a direct
lease between Sublandlord and Subtenant and Subtenant agrees to attorn to Sublandlord in accordance
with the provisions of the Consent to Sublease, this




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Sublease, as so deemed amended pursuant to said Consent to Sublease, shall continue as a direct lease between Sublandlord and Subtenant. In
the event of such termination of theMcCall-Harris Lease, Sub-Sublandlord shall have no liability to
Subtenant by reason thereof, except if such termination was caused by a breach of Sub-Sublandlord’s
obligations thereunder. Upon the termination of this Sublease, whether by forfeiture, lapse of time
or otherwise, or upon termination of Subtenant’s right to possession, Subtenant will at once
surrender and deliver up the Sublease Premises in good condition and repair, reasonable wear and
tear excepted.




     7. Default; Cure. In the event Subtenant shall default in the full performance of any
of the terms, covenants and conditions on its part to be performed under this Sublease, then
Sub-Sublandlord shall have the same rights and remedies with respect to such default as are given
to Master Landlord under the Master Lease with respect to defaults by Sub-Sublandlord, as tenant,
under the Master Lease and Subtenant shall be entitled to all notice and opportunity to cure as are
afforded Sub-Sublandlord (acting as Lessee) under the Master Lease.



     8. Physical Condition of Sub-Sublease Premises. Subtenant hereby acknowledges that it
has inspected the Sub-Sublease Premises and is fully familiar with the physical condition thereof,
and agrees to take the same “As Is”, but subject to Sub-Sublandlord’s representations and
warranties herein made. Subtenant acknowledges that Sub-Sublandlord shall have no obligation to do
any work in or to the Sub-Sublease Premises to make the Sub-Sublease Premises suitable and ready
for occupancy and use by Subtenant; provided. Notwithstanding the above, Sub-Sublandlord represents
and warrants that (i) all improvements in the Sub-Subleased Premises were approved by Master
Landlord and any other required third party, (ii) to the best of Sub-Sublandlord’s knowledge, all
improvements comply with applicable law as of the date hereof, and (iii) Sub-Subtenant has received
no communication, written or oral, from Sublandlord, Master Landlord or any third party with
respect to the condition of the Sub-Subleased Premises or the improvements therein, which might
impose upon Sub-Subtenant an obligation to correct or repair any element of the Sub-Sublease
Premises.



     9. Repairs. (a) Subtenant shall promptly provide Sub-Sublandlord with notice of
conditions that are dangerous or in need of maintenance or repair. Subtenant shall, at its sole
cost and expense, perform all maintenance and repairs to the Sub-Sublease Premises that are not
Sub-Sublandlord’s express responsibility under this Sublease, and keep the Sub-Sublease Premises in
good condition and repair, reasonable wear and tear excepted; provided however, nothing herein
shall be deemed to obligate Subtenant to make structural or capital repairs to the Sub-Sublease
Premises unless the same are necessitated as a direct result of Subtenant’s negligent or wrongful
act or omission. Subtenant’s repair and maintenance obligations include, without limitation,
repairs to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior side of
demising walls; (e) electronic, phone and data cabling and related equipment that is installed by
or for the exclusive benefit of, or furnished to Subtenant; (f) HVAC and supplemental air
conditioning units, kitchens, including hot water heaters, plumbing, and similar facilities
exclusively serving Subtenant; (g) bathrooms and (h) Alterations. If Subtenant fails to make
repairs to the Sub-Sublease Premises as herein required within 30 days following notice from
Sub-Sublandlord (or such longer period as may be reasonably necessary to complete such repairs),
Sub-Sublandlord may make the repairs, Subtenant shall reimburse Sub-Sublandlord for the reasonable
cost of such repairs.



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                    (b) To the extent that Subtenant is required to make repairs or maintain any elements within
the Sub-Sublease Premises, including, without limitation, the HVAC system, Subtenant shall be
obligated to pay only its proportionate share of such expense; and, for purposes hereof,
Subtenant’s proportionate share of the seventh floor shall be 20.45%.



     10. Alterations. Subtenant agrees that it shall not make or permit the making of any
alterations, decorations, installations, additions or improvements, including the Tenant
Improvements, in or to the Sub-Sublease Premises except in strict compliance with the conditions
set forth in Paragraph FOURTH of the Base Lease, which conditions may include, as applicable, the
prior consent of Master Landlord (if applicable) Sublandlord and Sub-Sublandlord as set forth
therein. Subtenant agrees to reimburse Sub-Sublandlord for any fees or other charges levied
against Sub-Sublandlord by Master Landlord in connection with obtaining such consent and in making
such alterations, decorations, installations, additions or improvements. Sub-Sublandlord shall
forward to Master Landlord any request from Subtenant for alterations to the Sub-Sublease
Premises, to the extent such consent is required under the terms of the Master Lease, within
five (5) business days after receipt of such request from Subtenant. To the extent that the
consent of Master Landlord and Sub-Sublandlord is required pursuant to the terms of Paragraph
FOURTH of the Base Lease, Sub-Sublandlord shall give or deny its consent to any alterations
requested by Subtenant no later than five (5) business days after request for approval.
Sub-Sublandlord shall advise Subtenant, within two (2) business days after receipt thereof, of
Master Landlord’s consent or denial of any alterations requested by Subtenant. Subtenant shall
remove any alterations, including Subtenant’s Work, on or prior to the Expiration Date, if and to
the extent required by Master Landlord. After completion of Subtenant’s Work contemplated by
Section 1B above, Subtenant shall have the right to make non-structural and/or cosmetic alterations
and improvements to the Sub-Sublease Premises to the same extent as Sub-Sublandlord could under
Section FOURTH of the Base Lease, provided the same do not cost in excess of $25,000 per incident;
such right is agreed to be personal to Subtenant. Notwithstanding anything to the contrary
contained in this Sublease, on condition that the Subtenant is in compliance with all applicable
governmental laws, rules and regulations, Sub-Sublandlord shall not unreasonably withhold or delay
its consent to any non-structural alteration.



     11. Sub-Sublandlord’s Representations and Warranties. Sub-Sublandlord covenants,
warrants and represents:



                         (i) that the execution, delivery and performance of this Sublease by the Sub-Sublandlord, and
the consummation of all transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Sub-Sublandlord; and



                         (ii) that Sub-Sublandlord has not done, will not do or cause to be done or fail to do or
suffer or permit anything to be done by Sub-Sublandlord, its employees, agents, invitees,
licensees, successors or assigns which would constitute a default under the Master Lease or
Sublease might cause the Master Lease or Sublease or the rights of Sub-Sublandlord, as lessee
hereunder, to be cancelled, terminated or forfeited.



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                         (iii) that the Master Lease and Sublease are in full force and effect, and Sub-Sublandlord has
neither given nor received a notice of default pursuant to the Master Lease or Sublease.



                         (iv) to the best of Sub-Sublandlord’s knowledge, there are no liens or similar claims
(excluding mortgages and unpaid taxes not yet due) upon the Building.



                         (v) to the best of Sub-Sublandlord’s knowledge, (1) there are no hazardous substances in, on
or about the Sub-Sublease Premises in violation of applicable Law and (2) Sub-Sublandlord has not
caused or permitted any release of any hazardous substance on or about the Building;



                         (vi) Sub-Sublandlord has obtained an ACP-5 Certificate from the applicable governmental agency
( a copy of which shall be furnished to Subtenant),



                         (viii) Sub-Sublandlord has installed ADA compliant bathrooms on each floor of the Sub-Sublease
Premises and has otherwise complied with applicable statutes;



                         (ix) Sub-Sublandlord has installed a new HVAC system servicing the Sub-Sublease Premises,
which HVAC system shall be in working order on the Commencement Date.



     12. Subtenant’s Representations and Warranties. Subtenant covenants, warrants and
represents:



                         (i) that the execution, delivery and performance of this Sublease by the Subtenant, and the
consummation of all transactions contemplated hereby, have been duly authorized by all necessary
action of the Subtenant; and



                         (ii) that Subtenant will not do or cause to be done or fail to do or suffer or permit anything
to be done by Subtenant, employees, agents, invitees, licensees, successors or assigns which would
constitute a default under the Master Lease or might cause the Master Lease or the rights of
Sub-Sublandlord, as tenant hereunder, to be cancelled, terminated or forfeited or which would make
Sub-Sublandlord liable for damages, claims or penalties pursuant thereto.



     13. Subletting/Assignment.



          A. Consent. Without the prior written consent of Sub-Sublandlord (which consent
Sub-Sublandlord shall not unreasonably withhold or delay) in each instance and except as otherwise
permitted herein:




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               (1) this Sublease shall not be assigned, encumbered or otherwise transferred, including by
operation of law:



               (2) the Sub-Sublease Premises shall not be sub-sublet by Subtenant in whole or, except in
connection with the conduct of Subtenant’s Business, in part; and



               (3) the Sub-Sublease Premises shall not be used or occupied by any person other than
Subtenant, in whole or, except in connection with the conduct of Subtenant’s Business, in part.



          B. Subordination. Any sub-sublease shall be subject and subordinate to this Sublease.
No assignment shall be valid or effective unless and until the assignee shall have delivered to
Sub-Sublandlord an instrument, in form satisfactory to Sub-Sublandlord, pursuant to which the
assignee assumes the due observance and performance of all of the obligations of Subtenant
hereunder from and after the date of such assignment.




          C. No Release. Subtenant covenants and agrees that notwithstanding any sub-subletting
to any other sub-subtenant and/or acceptance of rent by Sub-Sublandlord from any sub-
Subtenant, Subtenant shall and will remain fully liable for the payment of the Rent due and to
become due hereunder and for the performance of all the covenants, agreements, terms, provisions
and conditions contained in this Sublease on the part of Subtenant to be performed.




          D. Proposed Assignment or Sublet. At least fifteen (15) days prior to any proposed
assignment of all of the Sub-Sublease Premises or sub-subletting of all or, except in connection
with the conduct of Subtenant’s Business, any portion of the Sub-Sublease Premises, Subtenant shall
submit a statement to Sublandlord (a “Subtenant Statement”) containing the following information:
(i) the name and address of the proposed assignee or sub-Subtenant, (ii) the terms and conditions
of the proposed assignment or sub-sublet, including, without limitation, the rent payable and the
value of any improvements to the Sub-Sublease Premises for occupancy by such assignee or
sub-Subtenant, (iii) the nature and character of the business of the proposed assignee or
sub-Subtenant, and (iv) any other information that Sub-Sublandlord may reasonably request. If
Sub-Sublandlord shall fail to notify Subtenant within ten (10) day of the Subtenant Statement of
Sub-Sublandlord’s consent or disapproval of the proposed assignment or sub-sublet pursuant to the
Subtenant Statement, or if Sub-Sublandlord shall have consented to such assignment or subsublet,
Sub-Sublandlord shall be deemed to have consented and Subtenant shall have the right to assign the
Sublease or to sub-sublet such portion of the Sub-Sublease Premises on the same terms and
conditions set forth in the Subtenant Statement, subject to the terms and conditions of this
Sublease. If Subtenant shall not enter into such assignment or sub-sublease within sixty (60) days
after receipt of Sub-Sublandlord’s consent or deemed consent thereto, then the provisions of this
Paragraph 13D shall again be applicable to any proposed assignment or sub-subletting. If Subtenant
shall enter into such assignment or sub-sublease within such sixty (60) day period, Subtenant shall
deliver a true, complete and fully executed counterpart of all documents pertaining to such
assignment or sub-sublease within five (5) days after the execution thereof.




          E. Rent Recapture Right. If Sub-Sublandlord shall give its consent to any assignment
of this Sublease or, except in connection with the conduct of Subtenant’s Business,




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to any sub-sublease, Subtenant shall in consideration therefor pay to Sub-Sublandlord as Additional Rent
the following amounts after deduction by Subtenant of the actual expenses incurred by Subtenant in
connection with such assignment or subletting including reasonable legal fees, brokerage
commissions, any commercially reasonable rent abatement, unamortized cost to Subtenant of any
furniture or furnishings sold to the assignee or Subtenant to the extent Subtenant paid for same
out of its own pocket and costs of making alterations to the Sub-Sublease Premise as a condition
thereto, as the case may be:




                         (i) In the case of an assignment of the Sublease, an amount equal to fifty (50%) percent of
the sums and other considerations paid to Subtenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the assignment of Subtenant’s interest in
any fixtures, leasehold improvements, equipment, furniture, furnishings or other personal property
leased to Subtenant by Sub-Sublandlord pursuant to the terms of this Sublease, but expressly
excluding the sale of any of Subtenant’s fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property paid for by Subtenant out of its own pocket), Subtenant may
deduct from the moneys set forth herein reasonable expenses incurred in connection with such
assignment, including, without limitation, tenant improvement allowances, brokerage commissions, advertising and legal fees (“Assignment/Sublet
Expenses”).



                         (ii) In the case of a sub-sublease, fifty (50%) percent of rents, additional charges or other
consideration received under the sub-sublease to Subtenant by the sub-subtenant during each month
during the term of the sub-sublease which is in excess of the Base Rent and Additional Rent
accruing during said months during the term of the sub-sublease in respect of the sub-subleased
space pursuant to the terms hereof (including, but not limited to, sums paid for the sale or rental
of Subtenant’s interest in any fixtures, leasehold improvements, equipment, furniture, furnishings
or other personal property leased to Subtenant by Sub-Sublandlord pursuant to the terms of this
Sublease, but expressly excluding the sale or renting of any of Subtenant’s fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property paid for by Subtenant
out of its own pocket) and Assignment/Sublet Expenses.



                         (iii) The sums payable under this Paragraph 13E shall be paid to Sub-Sublandlord as Additional
Rent if, as and when paid to Subtenant by the assignee or sub-Subtenant.



          F. Permitted Licensees. Notwithstanding anything to the contrary contained in this
Paragraph 13, Subtenant may assign this Sublease to a successor to Subtenant by purchase, merger,
consolidation or reorganization (an “Ownership Change”) or assign this Sublease or sublet all or a
portion of the Sublease Premises to an Affiliate without the consent of Sub-Sublandlord, provided
that all of the following conditions are satisfied (a “Permitted Transfer”): (a) Subtenant is not
in Default; and (b) Subtenant shall give Sub-Sublandlord written notice at least 15 business days
prior to the effective date of the Permitted Transfer. Subtenant’s notice to Sub-Sublandlord shall
include information and documentation evidencing the Permitted Transfer and showing that each of
the above conditions has been satisfied. If requested by Sub-Sublandlord, Subtenant’s successor
shall sign a commercially reasonable form




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of assumption agreement. “Affiliate” shall mean an entity
controlled by, controlling or under common control with Subtenant. Sub-Sublandlord shall not be
entitled to any of the payments made by any Related Entity to Sub-Subtenant.




          G. Related Entity Use. Notwithstanding anything herein to the contrary,
Sub-Subtenant may license the use of all or part of the Sub-Sublease Premises to any entity
directly or indirectly controlled by Sub-Subtenant (“Related Entity”), provided the Related Entity
shall enter into a license agreement in which said entity agrees to comply with the terms of this
Sub-Sublease. Sub-Subtenant shall provide Sublandlord with a copy of any such license within two
weeks of the date such Related Party shall occupy the Sub-Sublease Premises. Sub-Sublandlord
acknowledges that the Sub-Sublease Premises, initially, will be occupied by Momentum Worldwide, an
affiliate of Sub-Subtenant.




     14. Brokers. Each of Sub-Sublandlord and Subtenant represents and warrants that it has
neither consulted nor negotiated with any broker or finder with regard to the Sub-
Sublease Premises or this Sublease other than LaManna Real Estate Advisors, Inc., CB Richard
Ellis and Cushman & Wakefield (the “Brokers”). Each of Sub-Sublandlord and Subtenant agrees to
indemnify, defend and save the other harmless from and against any claims for fees and commissions
(including reasonable attorneys’ fees) from anyone claiming to have dealt with Sub-Sublandlord or
Subtenant, as the case may be, other than the Brokers, in connection with the Sub-Sublease Premises
or this Sublease. Sub-Sublandlord shall pay the commission due the Brokers in accordance with a
separate agreement.



     15. Notices. All notices and demands shall be deemed given upon (i) transmission if by
telecopy (with electronic confirmation of receipt) prior to 5:00 p.m. EST on any business,
otherwise on the next following business day, (ii) on the day of delivery if delivered personally,
(iii) one day after depositing with a reputable overnight courier, or (iv) three (3) days after
mailing if sent by certified mail, return receipt requested. All notices and demands to
Sub-Sublandlord shall be deemed sufficiently given to Sub-Sublandlord in accordance with the first
sentence of this Paragraph 15, when delivered to Sub-Sublandlord at the address set forth at the
beginning of this Sublease, or at such other address as Sub-Sublandlord shall from time to time
designate in a notice given hereunder to Subtenant. All notices and demands to Subtenant shall be
deemed sufficiently given when delivered to Subtenant as set forth below or at such other address
as Subtenant shall from time to time designate in a notice given hereunder to Sub-Sublandlord.



	 	 	 
	Address
of Subtenant:

	 	McCann Erickson Inc.
	 

	 	Att: Chief Financial Officer
	 

	 	622 Third Avenue
	 

	 	New York, NY 10017
	 
	 	 
	With a copy to:

	 	The Interpublic Group of Companies, Inc.
	 

	 	Att: General Counsel
	 

	 	1114 Avenue of the Americas






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	 	New York, NY 10036.






     16. Quiet Enjoyment. Sub-Sublandlord represents and warrants that Subtenant may
peaceably and quietly hold and enjoy the Sub-Sublease Premises, for the term set forth herein,
subject to the terms and conditions of this Sublease, the McCall-Harris Lease and of the Master
Lease, without hindrance, ejection, molestation or interruption.



     17. Surrender.



          A. Removal of Improvements. All leasehold improvements installed in the Sub-Sublease
Premises by Subtenant shall remain upon and be surrendered with the Sub-Sublease Premises unless
Sub-Sublandlord, by notice to Subtenant not later than twenty (20) days prior to the termination of
this Sublease, elects to have them removed by Subtenant. All such leasehold improvements which
Sub-Sublandlord elects to have removed from the Sub-Sublease Premises by Subtenant shall be removed
prior to the termination of this Sublease, at Subtenant’s sole cost and expense. Notwithstanding
the above, Sub-Sublandlord shall not require the removal of any improvements unless (x) such
improvements are required to be removed by the Master Lease or
the McCall-Harris Lease or (y) at the time of Sub-Sublandlord’s consent to such improvements,
Sub-Sublandlord advises Subtenant that such improvements may have to be removed at the expiration
of the Sub-Sublease term, or (z) such improvements are not customary within an office build out.




          B. Condition on Surrender. Upon the expiration or sooner termination of the term of
this Sublease, Subtenant shall vacate the Sub-Sublease Premises, and leave them in broom-clean
condition and in good order and repair except for ordinary wear and tear. To the extent permitted
by the Master Lease, Subtenant shall have the right, prior to the expiration or sooner termination
of this Sublease, to remove, at Subtenant’s cost and expense, any and all trade fixtures and other
personal property of Subtenant. Any of Subtenant’s personal property that remain in the
Sub-Sublease Premises after the termination of this Sublease shall be deemed to have been abandoned
and either may be retained by Sub-Sublandlord as its property or may be disposed of in such manner
as Sub-Sublandlord may see fit. Any expenses incurred by Sub-Sublandlord in removing or disposing
of Subtenant’s personal property shall be reimbursed to Sub-Sublandlord by Subtenant within five
(5) business days after demand.




          C. Hold Over. Subtenant shall have no right to occupy the Sub-Sublease Premises or
any portion thereof after the expiration of this Sublease or after the termination of this Sublease
or Subtenant’s right to possession in the event of Subtenant’s default hereunder. If Subtenant
remains in possession of the Sub-Sublease Premises or any part thereof beyond the Expiration Date
or sooner termination of this Sublease, Sub-Sublandlord may exercise any and all remedies available
to it at law or in equity to recover possession of the Sub-Sublease Premises and to recover the
“Holdover Rent,” and the “Holdover Expenses,” both as defined herein. If Subtenant remains in
possession of the Sub-Sublease Premises or any part thereof beyond the Expiration Date or sooner
termination of this Sublease, such occupancy shall be a tenancy-at-sufferance and Subtenant shall
pay, as minimum damages and not as a penalty, a monthly rental at a rate equal to the holdover rent
payable by Sub-Sublandlord to Master Landlord under the Master Lease (the “Holdover Rent”). In
addition, Subtenant shall indemnify




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and hold Sub-Sublandlord harmless with respect to attorneys’
fees and out-of-pocket expenses incurred by reason of or due to Subtenant’s holding over (the
“Holdover Expenses”). The acceptance by Sub-Sublandlord of any lesser sum shall be construed as
payment on account and not in satisfaction of damages for such holding over. No acceptance by
Sub-Sublandlord of any rent during or for any period following the expiration or termination of
this Sublease shall operate or be construed as an extension or renewal of this Sublease. Subtenant
acknowledges that it is critical that Subtenant surrender the Sub-Sublease Premises on or before
the Expiration Date in accordance with the terms of this Sublease. Subtenant expressly waives, for
itself and for any person claiming through or under Subtenant, any rights that Subtenant or any
such person may have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in connection with any
holdover proceedings that Sub-Sublandlord may institute to enforce the provisions of this Section
17.




     18. Insurance and Indemnification.



          A. Insurance Requirements. Subtenant shall procure, at Subtenant’s sole cost and
expense, and keep in effect from the date of this Sublease and at all times until the end of the
Term the following:




               (1) Property / Business Interruption Insurance. Property/Business Interruption
Insurance written on an All Risk or Special Perils form, with coverage for broad form water damage
including sprinkler leakage, at replacement cost value and with a replacement cost endorsement
covering all of Subtenant’s business and trade fixtures, equipment, movable partitions, furniture,
merchandise and other personal property within the Sub-Sublease Premises and any leasehold
improvements performed by or for the benefit of Subtenant.



               (2) Liability Insurance. Combined Commercial General Liability and Excess Liability
insurance covering bodily injury and property damage liability occurring in or about the
Sub-Sublease Premises or arising out of the use and occupancy of the Sub-Sublease Premises, and any
areas adjacent thereto, and the business operated by Subtenant or by any other occupant of the
Sub-Sublease Premises. Such insurance shall include contractual liability coverage insuring all of
Subtenant’s indemnity obligations under this Sublease. Such coverage shall have a minimum combined
single limit of liability of at least Five Million Dollars ($5,000,000.00), and a minimum general
aggregate limit of Five Million Dollars ($5,000,000.00). All such policies shall be written to
apply to all bodily injury (including death), property damage or loss, personal and advertising
injury and other covered loss, however occasioned, occurring during the policy term, shall be
endorsed to add Sub-Sublandlord, Sublandlord and Master Landlord and any party holding an interest
to which this Sublease may be subordinated as an additional insured, and shall provide that such
coverage shall be “primary” and non-contributing with any insurance maintained by Sub-Sublandlord,
Sublandlord or Master Landlord, which shall be excess insurance only. Such coverage shall also
contain endorsements including employees as additional insureds if not covered by Subtenant’s
Commercial General Liability Insurance. All such insurance shall provide for the severability of



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interests of insureds; and shall be written on an “occurrence” basis, which shall afford coverage
for all claims based on acts, omissions, injury and damage, which occurred or arose (or the onset
of which occurred or arose) in whole or in part during the policy period.




               (3) Workers’ Compensation and Employers’ Liability Insurance. Workers’ Compensation
Insurance as required by any Regulation, and Employers’ Liability Insurance in amounts not less
than Five Hundred Thousand Dollars ($500,000) each accident for bodily injury by accident; Five
Hundred Thousand Dollars ($500,000) policy limit for bodily injury by disease; and Five Hundred
Thousand Dollars ($500,000) each employee for bodily injury by disease.



               (4) Alterations Requirements. With respect to any Alterations to be performed by or on
behalf of Subtenant, Subtenant shall deliver to Sub-Sublandlord, prior to commencing such
Alterations (i) evidence satisfactory to Sub-Sublandlord that Subtenant carries “Builder’s Risk”
insurance covering construction of such Alterations in an amount and form approved by
Sub-Sublandlord, (ii) such other insurance as Sub-Sublandlord shall
nondiscriminatory require, and (iii) a lien and completion bond or other security in form and
amount satisfactory to Sub-Sublandlord.



               (5) General Insurance Requirements. All coverage described in this Paragraph 18 shall
be endorsed to (i) provide Sub-Sublandlord with thirty (30) days’ notice of cancellation or change
in terms; and (ii) waive all rights of subrogation by the insurance carrier against Landlord. If
at any time during the Term the amount or coverage of insurance which Tenant is required to carry
under this Paragraph 18 is, in Sub-Sublandlord’s reasonable judgment, materially less than the
amount or type of insurance coverage typically carried by owners or tenants of properties located
in the general area in which the Sub-Sublease Premises are located which are similar to and
operated for similar purposes as the Sub-Sublease Premises or if Subtenant’s use of the
Sub-Sublease Premises should change with or without Sub-Sublandlord’s consent, Sub-Sublandlord
shall have the right to require Subtenant to increase the amount or change the types of insurance
coverage required under this Paragraph 18. All insurance policies required to be carried by
Subtenant under this Sublease shall be written by companies rated A X or better in “Best’s
Insurance Guide” and authorized to do business in the State of New York. Subtenant shall deliver to
Sub-Sublandlord on or before the Term Commencement Date, and thereafter at least thirty (30) days
before the expiration dates of the expired policies, a certificate(s) evidencing the same issued by
the insurer hereunder; and, if Subtenant shall fail to procure such insurance, or to deliver such
certificates, Sub-Sublandlord may, at Sub-Sublandlord’s option and in addition to Sub-Sublandlord’s
other remedies in the event of a default by Subtenant hereunder, procure the same for the account
of Subtenant, and the cost thereof shall be paid to Sub-Sublandlord as Additional Rent.



          B. Indemnity. Subtenant and Sub-Sublandlord shall indemnify and hold the other
harmless from and against any and all damages, losses or expenses (including, without limitation,
reasonable attorneys’ fees) suffered by reason of the other’s breach of or failure to comply with
the provisions of this Sublease or Master Lease or arising from the negligent or improper use or
occupancy by it, its agents, employees, licensees, successors or assigns, or any such
condition created by it, its agents, employees, licensees, successors or assigns, or any such




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other negligent act or omission of it, its agents, employees, licensees, successors or assigns, in or about the
Building. Whenever, pursuant to any of the provisions of the Master Lease incorporated herein,
Subtenant is required to indemnify or defend Sub-Sublandlord, Subtenant shall be required also to
indemnify or defend Master Landlord and Sublandlord and such other persons as shall be entitled
thereto under the Master Lease. In addition to the foregoing, Subtenant shall indemnify, defend
and hold harmless Sub-Sublandlord from and against any loss, cost, damage, or expense (including
reasonable attorneys’ fees), or any claim therefor, arising out of (i) actions taken by
Sub-Sublandlord at Subtenant’s request, or (ii) any holding over by Subtenant in the Sub-Sublease
Premises beyond the expiration or sooner termination of this Sublease, including any such liability
with respect to the entire Master Lease arising solely as a result of such holding over by
Subtenant.




          C. Evidence of Insurance. Whenever, pursuant to any provision of the Master Lease as
incorporated herein, Subtenant is required to furnish insurance (or evidence thereof) to or for
Sub-Sublandlord, Subtenant also shall be required to furnish such insurance to or for Master
Landlord and such other persons as shall be entitled thereto under the Master Lease,
provided that, in the case of any such other person not named in the Master Lease,
Sub-Sublandlord shall have notified Subtenant thereof.




     19. Signage Sub-Sublandlord shall use best efforts to obtain Master Landlord’s consent
to the placement of signs on the floor of the Sub-Subleased Premises and lobby, as permitted by the
Master Lease.



     20. Taxes. Subtenant shall be solely responsible for payment of any and all taxes
imposed on Subtenant in connection with its occupancy of the Sub-Sublease Premises, if applicable;
provided Sub-Sublandlord shall be responsible for any gross receipts tax attributable to its
receipt of Rent hereunder.



     21. Furniture. Without additional charge to Subtenant, Subtenant shall have use of
the furniture throughout the term of the Sublease (“Furniture”). Inventory of Furniture is
provided at Exhibit “D.” Upon expiration of the Sublease term, Sub-Sublandlord shall convey to
Subtenant all of its right, title and interest in and to such Furniture, free of all liens and
encumbrances without any warranties for fitness of any kind. During the term of the Lease,
Subtenant may dispose of any such Furniture in the event such Furniture shall be damages or
unsuitable for use by Subtenant.



     21. Miscellaneous.



          A. Entire Agreement. This Sublease contains the entire agreement and understanding
between the parties with respect to the subject matter hereof. There are no oral understandings,
terms or other conditions, and neither party has relied upon any representation, express or
implied, not contained in this Sublease. All prior understandings, terms, representations or
conditions are deemed merged in this Sublease. This Sublease cannot be




- 25 -









 










changed or supplemented orally but only by an agreement in writing signed by both parties hereto.




          B. Waiver of Jury Trial. Subtenant hereby waives trial by jury in any action,
proceeding or counterclaim involving any matter whatsoever arising out of or in any way connected
with this Sublease, the relationship of Sub-Sublandlord and Subtenant, Subtenant’s use or occupancy
of the Sub-Sublease Premises or involving the right to any statutory relief or remedy. Subtenant
will not interpose any counterclaim of any nature in any summary proceeding brought by
Sub-Sublandlord except for claims which would be deemed waived if not otherwise raised or
interposed by the Subtenant.




          C. Governing Law. This Sublease shall be governed by the laws of the State of New
York.




          D. Successors and Assigns. The covenants, terms, conditions, provisions and
undertakings in this Sublease shall extend to and be binding upon the successors and permitted
assigns of the respective parties hereto.




          E. Counterparts. This Sublease may be executed in any number of counterparts and by
Sub-Sublandlord and Subtenant on separate counterparts, each of which counterparts when executed
and delivered shall be an original, but all of which shall together constitute one and the same
instrument.



IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed as of the day and
year first above written.




	 	 	 	 	 
	 	SUB-SUBLANDLORD:




HARRIS INTERACTIVE INC.

 	 
	 	By:  	/s/ Gregory T. Novak
 	 
	 	Name:  	Gregory T. Novak 	 
	 	Title:  	President & CEO 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	                  /s/ Ronald E. Salluzzo
 	 
	 	Name:  	Ronald E. Salluzzo 	 
	 	Title:  	Chief Financial Officer 	 



- 26 -









 








	 	 	 	 	 



	 	 	 	 	 
	 	SUBTENANT:



McCANN ERICKSON INC.

 	 
	 	By:  	/s/ Nicholas J. Camera
 	 
	 	Name:  	Nicholas J. Camera 	 
	 	Title:  	Vice President and Secretary 	 
	 




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