{"id":41670,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/10-hanover-square-new-york-ny-lease-ten-hanover-llc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"10-hanover-square-new-york-ny-lease-ten-hanover-llc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/10-hanover-square-new-york-ny-lease-ten-hanover-llc-and.html","title":{"rendered":"10 Hanover Square (New York, NY) Lease – Ten Hanover LLC and Goldman Sachs Group Inc."},"content":{"rendered":"\n TEN HANOVER LLC,\n\n Landlord,\n\n TO\n\n THE GOLDMAN SACHS GROUP, L.P.,\n\n Tenant\n\n Lease\n\n Dated as of August 22, 1997\n 2\n\n TABLE OF CONTENTS\n\n1. LEASED PREMISES; TERM OF LEASE ............................................1\n\n 1.1 LEASED PREMISES .......................................................1\n 1.2 TERM ..................................................................2\n 1.3 STEPHANEZE PREMISES ...................................................2\n 1.4 TENANT'S TERMINATION OPTIONS ..........................................8\n 1.5 LANDLORD'S FINANCING ..................................................9\n 1.6 CERTAIN DEFINITIONS ..................................................11\n\n2. BASIC RENT, ETC ..........................................................14\n\n 2.1 BASIC RENT ...........................................................14\n 2.2 DETERMINATION OF FAIR MARKET RENT ....................................15\n 2.3 SUPPLEMENTAL RENT ....................................................17\n\n3. MANNER OF PAYMENT ........................................................17\n\n4. NET LEASE; NO ABATEMENT ..................................................18\n\n5. CONDITION AND USE OF LEASED PREMISES .....................................18\n \n6. MAINTENANCE; ALTERATIONS; CERTAIN REIMBURSEMENTS; ETC. ...................19\n\n 6.1 GENERALLY ............................................................19\n 6.2 CERTAIN DEFINITIONS ..................................................20\n 6.3 SUBMISSION AND APPROVAL OF PLANS AND SPECIFICATIONS IN \n CERTAIN INSTANCES ....................................................23\n 6.4 REIMBURSABLE ALTERATIONS .............................................26\n 6.5 GENERAL PROVISIONS ...................................................36\n 6.6 CONSIDERATION BY TENANT ..............................................36\n 6.7 ENGINEER; APPROPRIATE ENGINEER .......................................37\n\n7. HAZARDOUS SUBSTANCES .....................................................38\n\n8. UTILITY SERVICES .........................................................39\n\n9. INDEMNIFICATION BY TENANT ................................................40\n\n10. ENTRY BY LANDLORD .......................................................41\n\n11. PAYMENT OF TAXES ........................................................42\n 11.1 DEFINITIONS .........................................................42\n 11.2 PAYMENT OF TAXES ....................................................43\n 11.3 INITIAL TAX PAYMENTS ................................................43\n 11.4 EXTENDED TAX PAYMENTS ...............................................43\n 11.5 GENERAL PROVISIONS APPLICABLE TO TAXES ..............................45\n 11.6 INDUSTRIAL AND COMMERCIAL INCENTIVE PROGRAM .........................45\n\n12. COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS AND \n PERMITTED ENCUMBRANCES ..................................................46\n\n 12.1 GENERALLY ...........................................................46\n 12.2 PERMITTED CONTESTS ..................................................47\n\n\n -i-\n 3\n\n13. LIENS ...................................................................48\n\n14. INSURANCE ...............................................................48\n\n 14.1 RISKS TO BE INSURED .................................................49\n 14.2 POLICY PROVISIONS ...................................................50\n 14.3 DELIVERY OF INSURANCE CERTIFICATES; PAYMENT OF PREMIUM ..............51\n 14.4 NO LIMITATION OF DAMAGES ............................................51\n\n15. DAMAGE TO OR DESTRUCTION OF PROPERTY ....................................51\n\n 15.1 WAIVER OF SS. 227; TENANT TO GIVE NOTICE ............................51\n 15.2 RESTORATION .........................................................51\n 15.3 APPLICATION OF INSURANCE PROCEEDS ...................................52\n 15.4 TERMINATION IN LIEU OF RESTORATION ..................................52\n\n16. TAKING OF PROPERTY ......................................................59\n\n 16.1 NOTICE ..............................................................59\n 16.2 TOTAL TAKING ........................................................59\n 16.3 PARTIAL TAKING ......................................................60\n 16.4 APPLICATION OF AWARD ................................................61\n 16.5 TEMPORARY TAKING ....................................................62\n\n17. DISBURSEMENT OF DEPOSITED SUMS ..........................................63\n\n18. CERTIFICATE AS TO NO DEFAULT, ETC. ......................................65\n\n19. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS, ETC. ...................66\n\n20. ASSIGNMENT; SUBLEASES ...................................................67\n\n21. VAULTS ..................................................................68\n\n22. EVENTS OF DEFAULT; TERMINATION ..........................................68\n\n23. REPOSSESSION ............................................................70\n\n24. RELETTING ...............................................................70\n\n25. SURVIVAL OF TENANT'S OBLIGATIONS; DAMAGES ...............................70\n\n 25.1 TERMINATION OF LEASE NOT TO RELIEVE TENANT OF OBLIGATIONS ...........70\n 25.2 CURRENT DAMAGES AND DAMAGES IN RESPECT OF SUPPLEMENTAL RENT .........71\n 25.3 FINAL DAMAGES .......................................................72\n\n26. NO WAIVER ...............................................................73\n\n27. REMEDIES CUMULATIVE .....................................................73\n\n28. ACCEPTANCE OF EARLY TERMINATION OR SURRENDER ............................73\n\n29. NO MERGER OF TITLE ......................................................74\n\n30. EXCULPATION .............................................................74\n\n31. DEFINITIONS. ............................................................75\n\n\n -ii-\n 4\n\n32. END OF LEASE TERM .......................................................77\n\n33. NOTICES .................................................................78\n\n34. ANNUAL REPORTS ..........................................................78\n\n35. MISCELLANEOUS ...........................................................79\n\n36. EXPEDITED ARBITRATION ...................................................81\n\n37. SUBORDINATION ...........................................................82\n\n38. LANDLORD'S FAILURE TO PAY TAXES .........................................83\n\n39. LANDLORD'S FAILURE TO PAY COSTS OF BASE BUILDING UPGRADE WORK OR FIT-OUT\n WORK ..................................................................84\n\n\n -iii-\n 5\n\nEXHIBITS\n\nExhibit A The Land\nExhibit B Initial Tax Payments\nExhibit C Permitted Encumbrances\nExhibit D Non-Disturbance Agreement\nExhibit E Major Building Equipment\n\n\n -iv-\n 6\n\n Index of Definitions\n --------------------\n\nDefined Term Section Where Defined\n------------ ---------------------\n\n50% Untenantability .............................................15.4\nAccountant .......................................................6.7\nAdditional Bidders ...............................................6.4\nAlterations ......................................................6.1\nAppropriate Engineer .............................................6.7\nAppropriate Engineer .............................................6.7\nArticle 38 Advance ................................................38\nArticle 38 Demand Amount ..........................................38\nArticle 38 Demand Notice ..........................................38\nArticle 38 Dispute Notice .........................................38\nArticle 39 Advance ................................................39\nArticle 39 Demand Amount ..........................................39\nArticle 39 Demand Notice ..........................................39\nArticle 39 Dispute Notice .........................................39\nAssociated Reimbursables .........................................6.4\nbalance to be apportioned .......................................16.4\nBase Amount ......................................................6.2\nBase Building Savings Constant Payment ...........................1.6\nBase Building Savings Credit .....................................2.1\nBase Building Savings ............................................1.6\nBase Rate ........................................................1.6\nBase Tax Amount .................................................11.1\nBasic Rent .......................................................2.1\nBenchmark Amount .................................................6.4\nBusiness Day ......................................................31\nCancellation Payment Payment Date ................................1.4\nCancellation Payment .............................................1.4\nComparable Treasury Rate .........................................1.6\nCompleted Percentage .............................................6.4\nCondemnation Proceeds ...........................................16.4\nConEd ..............................................................8\nContractors ......................................................6.4\nCost Division Date ...............................................6.2\nCost Participation Limitation Notice .............................6.4\nCosts .............................................................31\nCredit Amount .....................................................35\nDamage Cancellation Payment .....................................15.4\nDamage Date .....................................................15.4\nDamage Payment ..................................................15.4\nDamage Termination Notice .......................................15.4\nDeductible Amount .................................................31\n\n\n -v-\n 7\n\nDepositary ......................................................15.3\nDeposited Sums ....................................................17\nDeterminated Amount ..............................................6.2\nDetermination Date ................................................19\nDifferent Scope of Work Statement ................................6.4\nDispute Notice ...................................................6.4\nDisputed Article 38 Amount ........................................38\nDisputed Article 39 Amount ........................................39\nElection Period .................................................15.4\nEmergency Reimbursement Amount ...................................6.4\nEngineer Designation Notice ......................................6.7\nEngineer .........................................................6.7\nEstimated Cost ...................................................6.4\nEstimated Substantial Completion Date ............................6.4\nExpedited Arbitration .............................................36\nExpiration Date ..................................................1.2\nExtended Completion Notice .......................................6.4\nExtended Tax Payment ............................................11.4\nFair Market Rent .................................................2.2\nFinancing Closing Date ...........................................1.5\nFinancing Termination Notice .....................................1.5\nFirst Rent Period ................................................2.1\nFirst-Class Standard .............................................6.1\nFit-Out Work Constant Payment ....................................1.6\nFit-Out Work Interest Rate .......................................1.6\nFit-Out Work Investment ..........................................1.6\nFourth Rent Period ...............................................2.1\nfull placement cost .............................................14.1\nFull Proceeds Amount ............................................15.4\nGAAP..............................................................6.2\nGross Amount .....................................................6.4\nGround Lease ....................................................12.1\nGS ................................................................30\nHazardous Substances ..............................................31\nICIP ............................................................11.6\nImprovements .....................................................1.1\nIndex .............................................................31\nInitial Improvements Agreement ...................................1.1\nInitial Tax Payment .............................................11.3\nInsurance Requirements ............................................31\nInterest Rate ......................................................3\nLand .............................................................1.1\nLandlord ..........................................................31\nLandlord ................................................Introduction\nLandlord's Alternate Bidders .....................................6.4\n\n\n -vi-\n 8\n\nLandlord's Preferred Bidder ......................................6.4\nLandlord's Revised Plans .........................................6.4\nLease Termination Notice ..........................................22\nLeased Premises ..................................................1.1\nLegal Requirement Alteration .....................................6.2\nLegal Requirements ................................................31\nLiability Insurance ..............................................1.3\nLimited Reimbursement Amount .....................................6.4\nLMEP ...............................................................8\nMain Interest Rate ...............................................1.6\nMajor Building Equipment .........................................6.2\nMeasuring Fraction ...............................................6.2\nnet annual rental .................................................31\nNext Available Termination Date .................................16.5\nNon-Disturbance Agreement .........................................37\nNotice ............................................................33\nNotional Expiration Date ........................................25.1\nNotional Fit-Out Work Loan Amount ................................1.6\nNotional Main Loan Debt Service ..................................1.6\nNotional Main Loan Original Balance ..............................1.6\nNotional Main Loan Outstanding Balance ...........................1.6\nNotional Make-Whole Amount .......................................1.6\nNotional Termination Date ........................................6.4\nOfficer's Certificate .............................................31\nOLS .............................................................11.6\nOriginal Bidders .................................................6.4\nOverrun Notice ...................................................6.4\nOverrun ..........................................................6.4\nPartial Taking ..................................................16.2\nPermitted Encumbrances ...........................................1.1\nPermitted Investment ..............................................31\nPermitted Investments .............................................31\nPlan Submission Date .............................................6.4\nPlans and Specifications Notice ..................................6.3\nPlans and Specifications ..........................................31\nPlans Submission Notice ..........................................6.3\nPost-Termination Insurance ......................................15.4\nPre-Existing Mortgages ..........................................12.1\nPrime Rate ........................................................31\nProject ..........................................................1.1\nProperty Insurance ..............................................14.1\nQualified Alteration .............................................6.2\nQualified Hazardous Substance .....................................31\nQualified Overrun ................................................6.4\nQualified Prefinancing Costs .....................................1.5\n\n\n -vii-\n 9\n\nQualified Restoration Costs .....................................15.4\nReduced Proceeds Amount .........................................15.4\nReimbursable Alterations .........................................6.2\nReimbursable Legal Requirement Alteration ........................6.2\nReimbursable Removal of Hazardous Substances .....................6.2\nReimbursable Replacement .........................................6.2\nReimbursable Structural Work .....................................6.2\nReimbursement Advances ...........................................6.4\nReimbursement Amount .............................................6.4\nremoval ............................................................7\nremove .............................................................7\nRent Based Cancellation Payment ..................................1.4\nRent Commencement Date ...........................................2.1\nRequired Replacements ............................................6.1\nRestoration Advances ..............................................17\nRetained Bidder ..................................................6.4\nRules ............................................................2.2\nSecond Rent Period ...............................................2.1\nSignificant Proceeds Amount .......................................31\nSpecified Damage Termination Date ...............................15.4\nStephaneze Possession Date .......................................1.3\nStephaneze Premises ..............................................1.3\nStephaneze Restriction Date ......................................1.3\nStephaneze .......................................................1.3\nStructural Work ..................................................6.2\nSuccessor Landlord ................................................37\nsuccessor-assignee ................................................30\nSuperior Mortgage .................................................37\nSuperior Mortgagee ................................................37\nSupplemental Rent ................................................2.3\nTaking Fraction .................................................16.2\nTaking ............................................................31\nTax Payments ....................................................11.4\nTax Year ........................................................11.1\nTaxes ...........................................................11.1\nTenant Impositions ..............................................11.5\nTenant ............................................................31\nTenant ..................................................Introduction\nTenant's Counsel ...................................................9\nTenant's Designation Notice ......................................2.2\nTenant's Selected Bidder .........................................6.4\nTenant's Total Taking Amount ....................................16.4\nTerm .............................................................1.2\nTermination Date .................................................1.4\nTermination Notice ...............................................1.4\n\n\n -viii-\n 10\n\nTermination Option ...............................................1.4\nThird Rent Period ................................................2.1\nTotal Taking ....................................................16.2\nUnamortized Fit-Out Work Investment ..............................1.6\nVoluntary Alterations ............................................6.1\nWitkoff Management Agreement ......................................31\nwork ..............................................................31\n\n\n -ix-\n 11\n\n LEASE, dated as of August 22, 1997, between TEN HANOVER LLC (\"Landlord\"),\na New York limited liability company having its principal office c\/o The Witkoff\nGroup LLC, 156 William Street, New York, New York 10038, and THE GOLDMAN SACHS\nGROUP, L.P. (\"Tenant\"), a Delaware limited partnership having its principal\noffice at 85 Broad Street, New York, New York 10004, Attention: General Services\nDepartment.\n\n WITNESSETH:\n\n That in consideration of the mutual agreements herein contained, Landlord\nand Tenant hereby agree and covenant to and with each other as follows:\n\n 1. Leased Premises; Term of Lease\n\n 1.1 Leased Premises\n\n Landlord leases to Tenant, and Tenant rents from Landlord, subject\nto the Permitted Encumbrances, the land located in the City, County and State of\nNew York more particularly described on Exhibit A hereto (the \"Land\"),\n\n TOGETHER WITH (i) all Improvements (excluding any thereof which\n pursuant to the final paragraph of this Section 1.1 are not Landlord's\n property), and (ii) all personal property owned by Landlord now or\n hereafter attached to or used in connection with the Improvements,\n\n TOGETHER WITH all right, title and interest, if any, of Landlord in\n and to:\n\n (a) any strips and gores of land adjoining the Land on\n any side thereof; \n\n (b) any land lying in the bed of any street or avenue\n abutting the Land, to the center line thereof; and\n\n (c) any easements or other rights in adjoining property\n enuring to Landlord by reason of ownership of the Land;\n\nall of the foregoing (together with any Improvements excluded from clause (i)\nabove) are collectively called the \"Leased Premises\".\n\n The Land and the Improvements are collectively called the \"Project\".\nThe term \"Permitted Encumbrances\" shall refer to the matters listed on Exhibit C\nhereto. Simultaneously with the execution of this Lease, Landlord and Tenant are\nexecuting an Initial Improvements Agreement of even date herewith (the \"Initial\nImprovements Agreement\") relating to certain work to be done to prepare the\nLeased Premises for occupancy by Tenant.\n\n The term \"Improvements\" shall mean all buildings, structures,\nfixtures, equipment and improvements now or hereafter located on, or attached to\nor appurtenant to, the Land or to other Improvements, including any thereof\ninstalled (i) as Base Building Upgrade Work (as such\n\n 12\n\nterm is defined in the Initial Improvements Agreement) or Fit-Out Work (as such\nterm is defined in the Initial Improvements Agreement) pursuant to the Initial\nImprovements Agreement, or (ii) by Tenant pursuant to Article 6; provided, that\nthe term \"Improvements\" shall not include any furniture, furnishings, trade\nfixtures or business equipment furnished, installed or placed in the\nImprovements by Tenant at Tenant's sole cost and expense.\n\n Except as otherwise provided in the next paragraph, all Improvements\nshall be (or if hereafter installed shall upon installation become) the property\nof Landlord, a part of the Leased Premises and subject to this Lease.\nNotwithstanding the provisions of Article 6, Tenant shall not remove from the\nLeased Premises\n\n (i) any Improvements constituting Base Building Upgrade Work, or\n\n (ii) any Improvements constituting Fit-Out Work paid for by Landlord\n\nunless (x) such removal is required by Legal Requirements, or (y) Tenant\nreplaces the Improvements so removed with other Improvements of substantially\nequal value.\n\n All Improvements constituting Fit-Out Work paid for by Tenant shall\nremain the property of Tenant, subject to removal by Tenant subject to the\nprovisions of Article 6; provided, that unless and until so removed, the same\nshall nonetheless constitute Improvements for all purposes under this Lease. Any\nsuch Improvements that shall not have been so removed shall, upon the expiration\nor sooner termination of this Lease, become the property of Landlord.\n\n 1.2 Term.\n\n Except as otherwise provided in Section 1.3, the term of this Lease\nshall commence on the Possession Date (as such term is defined in the Initial\nImprovements Agreement) and, unless sooner terminated pursuant to law or\npursuant to any of the terms of this Lease, shall expire at 11:59 p.m. on June\n30, 2018 (the \"Expiration Date\"). The term of this Lease is referred to herein\nas the \"Term\".\n\n 1.3 Stephaneze Premises.\n\n (a) Landlord represents and warrants to Tenant that, as of the date\nof this Lease, the Leased Premises are vacant and free of any occupancy or\ntenancy or right thereto, other than the occupancy or tenancy by Stephaneze\n(\"Stephaneze\") of a portion of the Leased Premises (the \"Stephaneze Premises\"),\nand that Landlord has commenced a summary proceeding against Stephaneze seeking\nto recover possession of the Stephaneze Premises, and has furnished Tenant with\ncopies of all material pleading and material motion papers filed or served by\nany party thereto. Landlord shall diligently prosecute such summary proceeding\nand if such summary proceeding is dismissed or terminated without Landlord\nhaving recovered possession of the Stephaneze Premises, then Landlord shall take\nsuch further action as may be available to Landlord to recover possession of the\nStephaneze Premises.\n\n\n -2-\n 13\n\n Promptly after recovering possession of the Stephaneze Premises,\nOwner shall (i) perform and complete any Asbestos Removal Work, Refireproofing\nWork, and\/or Demolition Work (as such terms are defined in the Initial\nImprovement Agreement), that may be required under the provisions of the Initial\nImprovement Agreement with respect to the Stephaneze Premises, and (ii) notify\nTenant that the foregoing has been performed and completed and, prior to or\ntogether with such notice, furnish Tenant with one or more Forms ACP-5\nevidencing the removal from the Stephaneze Premises of all asbestos and\nasbestos-containing material.\n\n The term of the Lease with respect to the Stephaneze Premises shall\ncommence on (and the term \"Leased Premises\" shall not include the Stephaneze\nPremises until) the Stephaneze Possession Date. The term \"Stephaneze Possession\nDate\" shall mean the last of\n\n (x) the Possession Date,\n\n (y) the date on which Landlord recovers possession\n of the Stephaneze Premises,\n\n (z) the date on which (i) all Asbestos Removal\n Work, Refireproofing Work and Demolition Work throughout the\n Stephaneze Premises shall have been completed, (ii) Tenant\n shall have been furnished with or obtained one or more Forms\n ACP-5 evidencing the removal from the Stephaneze Premises of\n all asbestos and asbestos-containing material, and (iii)\n Tenant shall have received the Stephaneze Completion Notice,\n\nor, if Tenant shall so elect, such earlier date (not earlier than the later of\nthe Possession Date or the date 30 days after the date on which Landlord\nrecovers possession of the Stephaneze Premises) as Tenant shall elect by notice\nto Landlord.\n\n If the Stephaneze Possession Date does not occur by the later of the\nPossession Date or October 15, 1997, then Tenant shall be entitled to a credit\nagainst the Basic Rent during the 12 month period beginning on the Rent\nCommencement Date equal to $347,000; one-twelfth of such credit shall be applied\nagainst each of the 12 monthly installments of Basic Rent during such 12 month\nperiod. If the Stephaneze Possession Date does not occur by the first or any\nlater anniversary of October 15, 1997, then Tenant shall be entitled to a credit\nagainst the Basic Rent during the 12 month period beginning with the first or\nsuch later anniversary of the Rent Commencement Date equal to $347,000; one\ntwelfth of such credit shall be applied against each of the 12 monthly\ninstallments of Basic Rent during such 12 month period. The preceding sentence\nmay be applied repeatedly, so long as Landlord's inability to deliver vacant\npossession of the Stephaneze Premises by an anniversary of October 15, 1997\ncontinues.\n\n This Section 1.3(a) shall be an express provision to the contrary\nfor purposes of Section 223-a of the New York Real Property Law and any other\nlaw of like import now or hereafter in effect.\n\n\n -3-\n 14\n\n (b) The following provisions of this Section 1.3(b) shall be\napplicable until the Stephaneze Possession Date:\n\n (i) There shall be no direct access between the Stephaneze\n Premises and the Building (i.e., all access to or from the\n Stephaneze Premises shall be from the street only).\n\n (ii) Tenant shall not be required to furnish any services or\n utilities to the Stephaneze Premises. If and to the extent\n that the electricity, water, sewer, gas and telephone lines\n currently serving the Stephaneze Premises run through the\n Leased Premises, Tenant shall permit the same to remain;\n provided, that Tenant shall have the right\n\n (A) to relocate such lines at Tenant's expense;\n provided, that (i) any such relocation shall be\n performed only at times other than during the\n regular business hours of Stephaneze, and (ii) no\n such relocation shall be performed prior to the\n earlier of (1) October 15, 1997, or (2) the date\n on which Landlord recovers possession of the\n Stephaneze Premises (such earlier date being\n herein called the \"Stephaneze Restriction Date\"),\n and\n\n (B) to shut down such lines or otherwise to interrupt,\n stop, suspend or curtail the delivery of services\n through such lines whenever and for so long as may\n be reasonably necessary by reason of damage to\n such lines, accidents, or any testing,\n maintenance, repairs, replacements, alterations,\n additions or other work being undertaken by\n Tenant, or by reason of any other cause beyond\n Tenant's reasonable control; provided, that,\n except in case of emergency, or reasonably\n foreseeable or actual criminal liability of\n Tenant, damage to such lines, accident or any\n other cause beyond Tenant's reasonable control,\n Tenant (i) shall not shut down such lines or\n otherwise interrupt stop, suspend or curtail the\n delivery of services through such lines prior to\n the Stephaneze Restriction Date, and (ii) shall\n use reasonable efforts to minimize interference\n with the ordinary conduct of the business of\n Stephaneze.\n\n Provided that Tenant complies with the provisions of this\n Section 1.3(b), Tenant shall have no liability to Landlord or\n any Occupant of the Stephaneze Premises for or on account of\n any shutdown of such lines or any interruption, stoppage,\n suspension or curtailment of service through such lines for\n any reason. In case of any damage to such lines, Tenant shall,\n with reasonable promptness and diligence, immediately after\n Tenant becomes aware of such damage, repair such damage (at\n Landlord's\n\n\n -4-\n 15\n\n expense, unless such damage shall have arisen from any act,\n omission, negligence or intentional misconduct of Tenant). All\n electricity, gas and water and sewer service to the Stephaneze\n Premises shall be separately metered, and the charges therefor\n shall be paid by Landlord directly to the public or municipal\n utility supplier.\n\n (iii) If the term of this Lease shall not have commenced with\n respect to the Stephaneze Premises on or before March 1, 1998\n then thereafter until the Stephaneze Possession Date: (A)\n Landlord shall keep (or cause to be kept) all portions of the\n Stephaneze Premises visible from without the Stephaneze\n Premises in a well-maintained, clean and attractive condition;\n (B) Landlord shall exterminate (or cause to be exterminated)\n the Stephaneze Premises as necessary to keep the Stephaneze\n Premises free of vermin; and (C) Landlord shall clean and\n maintain (or cause to be cleaned and maintained) the exterior\n surface of the exterior walls of the Stephaneze Premises,\n including any and all glass located thereon.\n\n (iv) Landlord shall make (or cause to be made) all repairs and\n replacements in and to the Stephaneze Premises if the failure\n to make such repair or replacement would result in an adverse\n effect on the use, occupancy or appearance of the Leased\n Premises and the need for such repair or replacement is not\n the result of any act, omission, negligence or intentional\n misconduct of Tenant (in which latter event such repair or\n replacement shall be performed by Tenant). Landlord, at\n Landlord's expense (unless the need for such compliance arises\n out of any act, omission, negligence or intentional misconduct\n of Tenant, in which event Tenant shall reimburse Landlord for\n the cost of such compliance within 30 days after submission by\n Landlord to Tenant of invoices evidencing the cost of such\n compliance), shall promptly comply with all Legal\n Requirements, Insurance Requirements and Permitted\n Encumbrances relative to the Stephaneze Premises, whether or\n not compliance therewith shall require Alterations or\n interfere with the use or enjoyment of the Stephaneze\n Premises. Landlord may contest any such Legal Requirement,\n Insurance Requirement or Permitted Encumbrance (and not comply\n therewith pending the resolution of such contest); provided,\n that such contest has no adverse affect on Tenant's use or\n occupancy of the Leased Premises. Tenant shall not at any time\n use or occupy the Stephaneze Premises, or suffer or permit\n anyone to use or occupy the Stephaneze Premises, in any\n manner, or do anything in the Stephaneze Premises, or suffer\n or permit anything to be done, brought into or kept on the\n Stephaneze Premises which (A) constitutes a nuisance, public\n or private, (B) makes unobtainable from reputable insurance\n companies authorized to do business in New York State all risk\n property insurance, or liability, elevator, boiler or other\n insurance at standard rates, or (C) discharges objectionable\n fumes, vapors or odors. \n\n\n -5-\n 16\n\n (v) Landlord shall keep in effect commercial general liability\n insurance, including broad form bodily injury, personal\n injury, property damage and blanket contractual insurance,\n against claims arising out of or connected with the\n possession, use, operation or condition of the Stephaneze\n Premises (\"Liability Insurance\") with a combined single limit\n of not less than $10,000,000 for all claims with respect to\n bodily injury, property damage and personal injury with\n respect to any one occurrence. All such Liability Insurance\n shall name Tenant as an additional insured and provide that no\n cancellation, reduction in amount or material change in\n coverage thereof shall be effective until at least 30 days\n after receipt by Tenant of written notice thereof. Landlord\n may obtain the aforesaid insurance under blanket or umbrella\n policies. On the date hereof (with respect to Liability\n Insurance required to be carried by Landlord), and at least 7\n days prior to each policy expiration, Landlord shall deliver\n (or cause to be delivered) to Tenant certificates of all such\n Liability Insurance.\n\n (vi) Subject to the next sentence, Tenant shall have (A) the\n exclusive right to use, disconnect or close (x) any pipe,\n duct, conduit, utility line or similar installation running in\n or through but not serving the Stephaneze Premises, or (y) any\n exhaust duct running in or through or serving the Stephaneze\n Premises, (B) the right to install in and through the\n Stephaneze Premises new or additional pipes, ducts, conduits,\n utility lines or similar installations, in locations adjacent\n to ceiling slabs, demising walls or structural columns, in\n each case in a manner so as not to unreasonably interfere with\n the use or occupancy of the Stephaneze Premises as retail\n space, (C) the right to maintain, repair and replace any of\n the foregoing and (D) the right to enter the Stephaneze\n Premises for (1) all or any of the foregoing purposes, (2) to\n inspect the Stephaneze Premises or (3) to maintain or make\n repairs, replacements, alterations, additions or improvements\n in or to the Leased Premises; provided, that, except in case\n of emergency or reasonably foreseeable or actual criminal\n liability of Tenant, Tenant shall give Landlord reasonable\n prior notice of any such entry and shall use reasonable\n efforts to minimize interference with the use and occupancy of\n the Stephaneze Premises arising by reason of such entry.\n Notwithstanding the foregoing, except in case of emergency or\n reasonably foreseeable or actual criminal liability of Tenant,\n Tenant shall take no action pursuant to this Section\n 1.3(b)(vi) prior to the Stephaneze Restriction Date. The\n Stephaneze Premises shall consist only of the space within the\n inside surface of the structural (or centerline of any\n non-structural) walls, windows, doors, columns, and floor\n slabs bounding the Stephaneze Premises (exclusive of any such\n space used for pipes, ducts, conduits, utility lines or\n similar installations). If at any time any windows of the\n Stephaneze Premises are either temporarily darkened or\n obstructed by reason of maintenance, cleaning, repairs,\n replacements, alterations, additions or improvements in or\n about the Leased Premises or the\n\n\n -6-\n 17\n\n Stephaneze Premises, including by way of a sidewalk bridge (or\n permanently darkened or obstructed if required by law), Tenant\n shall have no liability to Landlord or any Occupant of the\n Stephaneze Premises on account thereof; provided, that Tenant\n shall use reasonable efforts not to darken or obstruct any\n windows of the Stephaneze Premises and to minimize any such\n darkening or obstruction when the same cannot reasonably be\n avoided.\n\n (c) Subject to the last sentence of this Section 1.3(c), if\nLandlord shall fail to make any payment or perform any act required to be made\nor performed by Landlord hereunder with respect or relating to the Stephaneze\nPremises Tenant may (but shall be under no obligation to) without waiving or\nreleasing any obligation or default:\n\n (i) in case of emergency, or reasonably foreseeable or actual\n criminal liability of Tenant or interference with the use or\n occupancy of, or the performance of the Base Building Upgrade\n Work or the Fit-Out Work in, the Leased Premises, or\n\n (ii) if Tenant shall give notice to Landlord referring to Tenant's\n intent to exercise its self-help right under this Section\n 1.3(c), which notice shall specify Landlord's failure with\n respect to the Stephaneze Premises and require such failure to\n be remedied, and Landlord shall not remedy such failure within\n 30 days after the giving of such notice; provided, that in\n case such failure cannot with due diligence be remedied by\n Landlord within a period of 30 days, if Landlord proceeds as\n promptly as may be reasonably possible after the giving of\n such notice and with all due diligence to remedy such failure\n and thereafter to prosecute the remedying of such failure with\n all due diligence, the period of time after the receipt of\n such notice by Landlord within which to remedy such failure\n shall be extended for such period as may be necessary to\n remedy the same with all due diligence,\n\nmake such payment or perform such act for the account and at the expense of\nLandlord, and may enter upon the Stephaneze Premises or any part thereof for\nsuch purpose and take all such action therein as, in the opinion of Tenant, may\nbe necessary or appropriate therefor. All payments so made by Tenant and all\ncosts and expenses (including without limitation attorneys fees and expenses)\nincurred in connection with Tenant's exercise of its self-help right under this\nSection 1.3(c), together with interest thereon at the Interest Rate, shall be\npaid by Landlord to Tenant within 30 days after Landlord's receipt of Tenant's\ndemand therefor, accompanied by invoices evidencing the costs incurred by\nTenant. If Landlord objects to Tenant's exercise of its right of self-help under\nthis Section 1.3(c), then Tenant shall not be entitled to any reimbursement\nunder this Section 1.3(c) unless and until the matter is resolved in favor of\nTenant by Expedited Arbitration. Except in case of emergency or reasonably\nforeseeable or actual criminal liability of Tenant, Tenant shall take no action\nunder this Section 1.3(c) prior to the Stephaneze Restriction Date.\n\n\n -7-\n 18\n\n (d) Landlord shall protect, indemnify and save harmless Tenant\nfrom and against all liabilities, obligations, claims, damages, penalties,\ncauses of actions, costs and expenses (including, without limitation, attorneys'\nfees and expenses) imposed upon or incurred by or asserted against Tenant by\nreason of any action by Landlord to recover possession of the Stephaneze\nPremises.\n\n (e) Landlord shall reimburse Tenant for all incremental\nout-of-pocket costs incurred by Tenant prior to the commencement of the Term\nwith respect to the Stephaneze Premises on account of the Stephaneze Premises,\nor the use or occupancy thereof, including any such costs arising out of any\nmaintenance, repair or replacement of any utility lines serving the Stephaneze\nPremises (unless the need therefor arises out of any act, omission, negligence\nor intentional misconduct of Tenant). Such reimbursement shall be due from time\nto time within 30 days after Tenant's presentation of an invoice detailing such\nincremental out-of-pocket costs.\n\n 1.4 Tenant's Termination Options\n\n (a) Subject to the further provisions of this Section 1.4,\nTenant shall have the option (each, a \"Termination Option\") to terminate this\nLease effective as of (i) September 30, 2004, (ii) September 30, 2006, (iii)\nJune 30, 2008 or (iv) June 30, 2013 (each of the dates set forth in the\npreceding clauses (i) - (iv) is called a \"Termination Date\"), by giving an\nexercise notice (the \"Termination Notice\") to Landlord on or before the date\nthat is (A) one year prior to the applicable Termination Date in the case of a\ntermination as of September 30, 2004 or September 30, 2006 or (B) 18 months\nprior to the applicable Termination Date in the case of a termination as of June\n30, 2008 or June 30, 2013. Time is of the essence with respect to the giving of\nany Termination Notice. Tenant may, by notice to Landlord at any time, waive any\none or more of its Termination Options.\n\n (b) If Tenant timely exercises a Termination Option providing\nfor the termination of this Lease as of September 30, 2004, September 30, 2006\nor June 30, 2008, then Tenant shall pay to Landlord, on or before September 1,\n2004, September 1, 2006 or June 1, 2008, as the case may be (the \"Cancellation\nPayment Payment Date\"), in addition to the Basic Rent, Supplemental Rent and Tax\nPayment due on the Cancellation Payment Payment Date, the applicable\nCancellation Payment. \"Cancellation Payment\" means\n\n (i) the amount of the Unamortized Fit-Out Work Investment as\n of the applicable Cancellation Payment Payment Date,\n plus\n\n (ii) in the case of a Termination Option providing for the\n termination of this Lease as of September 30, 2004 or\n September 30, 2006, the Basic Rent and the Tax Payments\n that would be payable for the six month period\n immediately following the applicable Termination Date if\n Tenant had not exercised the Termination Option (the\n portion of the Cancellation Payment referred to in this\n clause (iii) is called the \"Rent Based Cancellation\n Payment\").\n\n\n -8-\n 19\n\n (c) If Tenant timely exercises any Termination Option, then on\nthe applicable Termination Date (i) this Lease shall terminate, (ii) Tenant\nshall deliver to Landlord vacant possession of the Leased Premises subject to\nand in accordance with all applicable provisions of this Lease as if the\nTermination Date were the Expiration Date, and (iii) Basic Rent, Supplemental\nRent and Tax Payments due hereunder shall be payable through and apportioned as\nof the Termination Date, and (except as provided in Section 32(b) with respect\nto any holdover) Tenant shall have no liability for Basic Rent, Supplemental\nRent or Tax Payments which would otherwise have been payable after the\nTermination Date.\n\n (d) If (i) Tenant timely exercises a Termination Option as of\nSeptember 30, 2004 or September 30, 2006 and (ii) any Reimbursable Alteration\n(other than Reimbursable Removal of Hazardous Substances) was performed prior to\nthe applicable Termination Date, then on or before the applicable Termination\nDate, Landlord shall pay to Tenant, in respect of each such Reimbursable\nAlteration, an amount equal to the excess of (A) the Reimbursement Amount which\nwould have been payable by Landlord with respect thereto if the Cost Division\nDate with respect to such Reimbursable Alterations had been the applicable\nTermination Date rather than the last day of the Second Rent Period, over (B)\nthe Reimbursement Amount paid by Landlord with respect thereto; provided, that\nif with respect to any such Reimbursable Alteration Landlord shall have been\nrequired to pay the Limited Reimbursement Amount rather than the Reimbursement\nAmount and shall not have subsequently been required to make the payment\ndescribed in Section 6.4(g)(vi), then rather than the excess of the amount\ndescribed in clause (A) above over the amount described in clause (B) above\nLandlord shall pay to Tenant, in respect of such Reimbursable Alteration, an\namount equal to the excess of (C) the Limited Reimbursement Amount which would\nhave been payable by Landlord with respect thereto if the Cost Division Date\nwith respect to such Reimbursable Alteration had been the applicable Termination\nDate rather than the last day of the Second Rent Period, over (D) the Limited\nReimbursement Amount paid by Landlord with respect thereto.\n\n 1.5 Landlord's Financing.\n\n (a) Landlord shall make reasonable efforts, as promptly as\nreasonably possible, to cause the Financing Closing Date to occur. The term\n\"Financing Closing Date\" shall refer to the date on which\n\n (i) Landlord has received full disbursement of one or more\n new loans sufficient in amount to permit Landlord to\n deposit, and Landlord has deposited (a) $17,350,000 into\n the account described in Section 6 of the Initial\n Improvements Agreement, and (b) $50,000,000 into the\n account described in Section 7 of the Initial\n Improvements Agreement,\n\n (ii) Landlord has caused the holders of all mortgages or\n other liens on the Project (including but not limited to\n the lender or lenders who shall have disbursed the new\n loan or \n\n\n -9-\n 20\n\n loans referred to above) to execute and deliver to\n Tenant a Non-Disturbance Agreement, and\n\n (iii) Tenant shall have received the certificate called for by\n the last paragraph of Section 5 of the Option Agreement\n of even date among Landlord, Tenant and certain others.\n\nLandlord represents that it has furnished to Tenant a true and complete copy of\na commitment letter dated______ from Credit Suisse First Boston Mortgage\nCapital. On the Financing Closing Date, Landlord shall furnish Tenant with\nevidence that the deposits referred to in clause (i) above have been made.\n\n (b) If the Financing Closing Date does not occur on or before\nSeptember 30, 1997, then either Landlord or Tenant may terminate this Lease by\nnotice (the \"Financing Termination Notice\") to the other given at any time prior\nto the Financing Closing Date, in which event this Lease shall terminate as of\nthe date of the receipt of such Financing Termination Notice and neither party\nshall have any further obligations or liabilities to the other, except that\nLandlord shall reimburse Tenant in an amount not to exceed $6,700,000 for any\nQualified Prefinancing Costs incurred by Tenant. Tenant may make one or more\ndemands for reimbursement under this Section 1.5(b), each to be accompanied by\ninvoices paid or payable by Tenant, and each amount payable under this Section\n1.5(b) shall be due within 30 days of such demand therefor. If any payment\nrequired to be made pursuant to this Section 1.5(b) is not made when due, the\nsame shall bear interest in accordance with Section 3(c). Upon payment of any\namount pursuant to this Section 1.5(b), Tenant shall assign to Landlord all of\nTenant's right, title and interest in and to the plans and specifications, work,\nequipment or other property to which such payment related (including the benefit\nof any deposits or other payments made by Tenant and reimbursed by Landlord),\nwithout recourse or representation.\n\n \"Qualified Prefinancing Costs\" means any and all Costs paid or\nincurred by Tenant for or in connection with the Base Building Work and\/or the\nFit-Out Work on or prior to the date of termination of this Lease under this\nSection 1.5(b), including any partial payments (e.g. deposits) with respect to\nany systems or equipment to be installed as a part of the Base Building Work\nand\/or the Fit Out Work which were made by Tenant prior to the termination of\nthis Lease pursuant to this Section 1.5(b) or for which under commitments made\nprior to the termination of this Lease pursuant to this Section 1.5(b) Tenant is\nobligated, excluding in all cases any sums of which Tenant would be entitled to\na refund or which Tenant would be excused from paying if, promptly after\nreceiving notice of termination of this Lease under Section 1.5(b), Tenant gave\nprompt notice of termination to Tenant's contractors, subcontractors or other\nsuppliers.\n\n (c) If the Financing Closing Date shall not occur by September\n30, 1997 Tenant shall have the right to arrange or provide on commercially\nreasonable terms financing in the amount required\n\n\n -10-\n 21\n\n (i) to make the deposits referred to in Section 1.5(a)\n above,\n\n (ii) to refinance the existing debt on the Property,\n\n (iii) to pay all points, fees and other expenses, including,\n without limitation, legal fees, title insurance premiums\n and charges and mortgage recording taxes incurred by\n Landlord in connection with all such financing being\n provided under this Section 1(c),\n\n (iv) to make all scheduled payments of principal and interest\n through August 1, 1998 on the portion of the financing\n being provided under this Section 1(c) applicable to the\n deposits referred to in clause (i) above and to a\n pro-rata share of the points, fees and other expenses\n referred to in clause (iii) above, and\n\n (v) to make all scheduled payments of principal and interest\n through May 1, 1998 on the balance of the financing\n being provided under this Section 1(c).\n\nNotwithstanding the provisions of Section 1.5(b) above, Landlord shall not have\nthe right to terminate this Lease prior to October 15, 1997 and if prior to that\ndate Tenant shall arrange or provide a commercially reasonable commitment for\nsuch financing, Landlord shall accept the same and close the financing to be\nprovided thereunder and shall not have the right to terminate this Lease\npursuant to Section 1.5(b).\n\n 1.6 Certain Definitions\n\n The term \"Notional Fit-Out Work Loan Amount\" shall refer to the sum\nof\n\n (i) $50,000,000, plus\n\n (ii) a pro rata portion of all points, fees and other\n expenses, including, without limitation, legal\n fees, title insurance premiums and charges and\n mortgage recording taxes incurred by Landlord for\n or in connection with the new loan or loans\n referred to in clause (i) of Section 1.5(a), such\n proration to be made according to the ratio which\n the Notional Fit-Out Work Loan Amount bears to the\n total amount of such new loan or loans, plus\n\n (iii) the amount of all scheduled payments (including\n principal and interest) which\n\n\n -11-\n 22\n\n would be required to be paid on or before August\n 1, 1998 on a loan in the principal amount of the\n Notional Fit-Out Work Loan Amount bearing\n interest at the Fit-Out Work Interest Rate and\n disbursed on the Financing Closing Date if such\n loan had provided for constant monthly payments\n on the first day of each month equal to the\n constant monthly payment which would be required\n to fully amortize such principal amount over such\n constant monthly payments beginning on the first\n day of the month after the month in which such\n disbursement is made and ending December 1, 2009,\n with each such payment being applied first to\n accrued interest and then to a reduction in\n principal (except that if the Financing Closing\n Date is other than the first day of a month (x)\n the first payment shall be deemed to consist of\n interest only from the date of such disbursement\n to the first day of the month after the month in\n which such disbursement is made and to be due on\n such first day of such month and (y) the\n aforesaid constant monthly payments shall be\n deemed to begin on the first day of the next\n month).\n\n The term \"Fit-Out Work Investment\" shall mean the Notional Fit-Out\nWork Loan Amount minus all amounts included therein in respect of principal\nunder clause (iii) of the definition thereof (it being understood that in\ncomputing the Fit-Out Work Investment the amount of the interest under said\nclause (iii) shall not be deducted).\n\n The term \"Base Building Savings\" shall mean the excess, if any, on\nthe Base Building Savings Commencement Date of (i) $17,350,000 over (ii) all\namounts disbursed by Landlord pursuant to Section 6 of the Initial Improvements\nAgreement.\n\n The term \"Fit-Out Work Constant Payment\" shall mean the constant\nmonthly payment which would be required to fully amortize, with interest at the\nFit-Out Work Interest Rate, the Fit-Out Work Investment over such constant\nmonthly payments on the first day of each month beginning September 1, 1998 and\nending on December 1, 2009 with each such payment being applied first to\ninterest accrued at the Fit-Out Work Interest Rate and then to amortization (and\nwith interest commencing to accrue on the Fit Out Work Investment as of August\n1, 1998).\n\n The term \"Base Building Savings Constant Payment\" shall mean the\nconstant monthly payment which would be required to fully amortize, with\ninterest at the Main Interest Rate, the Base Building Savings over such constant\nmonthly payments on the first day of each month beginning on the Base Building\nSavings Commencement Date (as such term is defined in the Initial Improvements\nAgreement) and ending June 1, 2008 with each such payment being applied first to\ninterest accrued at the Main Interest Rate and then to amortization (and with\n\n\n -12-\n 23\n\ninterest commencing to accrue on the Base Building Savings as of one month\nbefore the Base Building Savings Commencement Date).\n\n The term \"Main Interest Rate\" shall mean the sum of the Base Rate\nplus 140 basis points per annum.\n\n The term \"Fit-Out Work Interest Rate\" shall mean the sum of the Base\nRate plus 90 basis points per annum.\n\n The term \"Base Rate\" shall mean the straight line interpolation to\nseven years between (i) the interest rate on the on-the-run five year U.S.\nTreasury securities quoted by Credit Suisse First Boston to Landlord and Tenant\nat the time during the business day prior to the Financing Closing Date at which\nthe rate being paid by Landlord on the corresponding new loan referred to in\nclause (i) of Section 1.5(a) is determined, and (ii) the interest rate on the\non-the-run ten year U.S. Treasury securities quoted by Credit Suisse First\nBoston to Landlord and Tenant at such time.\n\n The term \"Unamortized Fit-Out Work Investment\" shall mean, as of any\ndate, that amount which would be unamortized on such date if the Fit-Out Work\nInvestment were amortized with interest at the Fit-Out Work Interest Rate over\nconstant monthly payments on the first of each month equal to the Fit-Out Work\nConstant Payment beginning on September 1, 1998 and ending on December 1, 2009,\nwith each such payment being applied first to interest accrued at the Fit-Out\nWork Interest Rate and then to amortization (with interest commencing to accrue\non the Fit-Out Work Investment as of August 1, 1998). The Unamortized Fit-Out\nWork Investment as of the first day of any month shall be computed as of after\nthe application of such constant monthly payment due on such first day of such\nmonth.\n\n The term \"Notional Main Loan Original Balance\" shall equal the\nexcess of (i) the principal amount of all mortgage debt of Landlord outstanding\n(other than to affiliates) as of immediately after the Financing Closing Date\nover (ii) the sum of (a) the Notional Fit-Out Work Loan Amount, plus (b) the\nBase Building Savings.\n\n The term \"Notional Main Loan Outstanding Balance\" shall mean, as of\nany date, the principal amount which would be outstanding on a loan having an\noriginal principal amount equal to the Notional Main Loan Original Balance,\ndisbursed on the Financing Closing Date, providing for 216 constant monthly\npayments on the first day of each month, beginning on the lst day of the month\nafter the month in which such disbursement is made, equal to the constant\nmonthly payment which would be required to fully amortize the Notional Main Loan\nOriginal Balance over such 216 constant monthly payments, with each such payment\nbeing applied first to accrued interest and then to a reduction in principal\n(except that if the Financing Closing Date is other than the first day of a\nmonth (x) the first payment shall be deemed to consist of interest only from the\ndate of such disbursement to the first day of the month after the month in which\nsuch disbursement is made and to be due on such first day of such month and (y)\nthe aforesaid 216 constant monthly payments shall be deemed to begin on the\nfirst day of the next month).\n\n\n -13-\n 24\n\n The term \"Notional Main Loan Debt Service\" shall mean the amount of\nthe constant monthly payment referred to in the definition of Notional Main Loan\nOutstanding Balance.\n\n The term \"Notional Make-Whole Amount\" shall mean, as of any date,\nthe excess, if any, of (i) the present value as of such date (determined by\nusing a discount rate equal to Comparable Treasury Rate) of all Supplemental\nRent scheduled to be paid by Tenant under Section 2.3 of this Lease after such\ndate over (ii) the Unamortized Fit-Out Work Investment as of such date. In the\nmaking the determination under clause (i) above, it shall be assumed that Tenant\nhas not exercised any of its Termination Options and any Termination Options\nactually exercised by Tenant shall be disregarded. As used above, the term\n\"Comparable Treasury Rate\" shall, as of any date, mean the yield to maturity of\nU.S. Treasury securities maturing on or about June 1, 2008 as published by The\nWall Street Journal for the third business day prior to such date.\n\n Promptly after the requisite facts are known, Landlord and Tenant\nshall join in one or more instruments confirming (a) the Base Rate, the Fit-Out\nWork Interest Rate, the Fit-Out Work Notional Loan Amount, the Fit-Out Work\nInvestment, the Fit-Out Work Constant Payment, the Unamortized Fit-Out Work\nInvestment as of September 1, 2004, the Unamortized Fit-Out Work Investment as\nof September 1, 2006, and the Unamortized Fit-Out Work Investment as of June 1,\n2008, and (b) the Main Interest Rate, the Base Building Savings, the Base\nBuilding Savings Constant Payment and the Notional Main Loan Debt Service. The\nfailure of either party to execute such instrument referred to above shall not\nconstitute a default hereunder or otherwise affect this Lease.\n\n Any dispute as to the computations and determination to be made\npursuant to this Section 1.6 shall be determined by Expedited Arbitration.\n\n 2. Basic Rent, etc.\n\n 2.1 Basic Rent\n\n (a) Tenant shall pay to Landlord, as fixed annual rent for the\nLeased Premises, Basic Rent. Basic Rent shall be payable by Tenant to Landlord\nin advance, in equal monthly installments, on the Rent Commencement Date and on\nthe first day of each and every month thereafter throughout the Term.\n\n (b) As used herein:\n\n (i) \"Basic Rent\" means (A) during the period commencing\non June 1, 1998 (the \"Rent Commencement Date\"), to and including May 31, 2003\n(the \"First Rent Period\"), a per annum rate equal to $8,420,095.88, payable in\nequal monthly installments of $701,674.66, (B) during the period commencing on\nJune 1, 2003 to and including June 30, 2008 (the \"Second Rent Period\"), a per\nannum rate equal to $10,573,515.14, payable in equal monthly installments of\n$881,126.26, (C) during the period commencing on July 1, 2008 to and including\nJune 30, 2013 (the \"Third Rent Period\"), a per annum rate equal to 95% of the\nFair Market Rent\n\n\n -14-\n 25\n\nfor such period and (D) during the period commencing on July 1, 2013 to and\nincluding the Expiration Date (the \"Fourth Rent Period\") a per annum rate equal\nto 95% of the Fair Market Rent for such period. Fair Market Rent shall be\ndetermined in accordance with Section 2.2 below.\n\n (ii) If (a) Tenant shall give a notice pursuant to\nSection 6 of the Initial Improvements Agreement establishing the Base Building\nSavings Commencement Date, and (b) there are any Base Building Savings, then\nthere shall be credited against the Basic Rent due for each of the months\nbeginning with the Base Building Savings Commencement Date and ending June 1,\n2008, an amount equal to the Base Building Savings Constant Payment. The\naforesaid credit is herein called the \"Base Building Savings Credit\". In no\nevent shall Landlord ever be required to pay to Tenant any portion of the Base\nBuilding Savings Credit.\n\n 2.2 Determination of Fair Market Rent\n\n (a) Each determination of Fair Market Rent shall be made, to the\nextent not inconsistent with this Section, in accordance with the rules from\ntime to time in effect of the American Arbitration Association or, if the\nAmerican Arbitration Association shall have ceased to function as an arbitration\nassociation, of a successor or comparable organization (the \"Rules\"). There\nshall be three arbitrators: one designated by Landlord; one designated by\nTenant; and one designated in the manner hereinafter described. Each arbitrator\nshall, as of the date of his or her designation, be a real estate broker\nlicensed in the State of New York doing business in the Borough of Manhattan and\nhaving at least 15 years experience in first-class Manhattan office building\nleases. Not more than 30 months and not less than 24 months before the first day\nof the Third Rent Period or the Fourth Rent Period, as applicable, Tenant shall\ngive to Landlord a notice designating the name and address of Tenant's\narbitrator (\"Tenant's Designation Notice\"). Landlord, by notice to Tenant given\nnot later than 20 days after the giving of Tenant's Designation Notice, shall\ndesignate the name and address of Landlord's arbitrator.\n\n If either party shall fail timely to designate its arbitrator, and such\nfailure shall continue for 10 days after receipt by the failing party of notice\nof such failure, such other party may designate an arbitrator on behalf of the\nfailing party. Promptly after the designation of the second of the two\narbitrators to be designated, such two arbitrators shall meet and attempt to\nmediate between Landlord and Tenant an agreement upon the Fair Market Rent in\nquestion. If, within 15 days after the designation of the second of the two\narbitrators to be designated, Landlord and Tenant have not agreed upon the Fair\nMarket Rent in question, such two arbitrators shall jointly designate a third\narbitrator. If, within 30 days after the designation of the second of the two\narbitrators to be designated, no third arbitrator shall have been so jointly\ndesignated, such third arbitrator shall be designated pursuant to the Rules. The\narbitrators shall render their decision within 60 days after the designation of\nthe third arbitrator to be designated. Landlord and Tenant shall each pay the\nfees and disbursements of the arbitrator designated by or on behalf of it, and\nLandlord and Tenant shall share equally the fees and disbursements of the third\narbitrator, if any.\n\n\n -15-\n 26\n\n (b) \"Fair Market Rent\" means the fixed annual rent that\nwould be payable for the Leased Premises by a third-party tenant having the then\ncreditworthiness of Tenant under a five year lease commencing on the first day\nof the Third Rent Period or the Fourth Rent Period (as the case may be) upon all\nof the terms and conditions of this Lease to be applicable to the Third Rent\nPeriod or Fourth Rent Period (as the case may be), including, without\nlimitation, the following:\n\n (i) that such fixed annual rent is payable from and\n after the first day of the Third Rent Period or\n the Fourth Rent Period (as the case may be),\n\n (ii) that the Initial Improvements Agreement is not\n applicable to the Third Rent Period or the Fourth\n Rent Period (as the case may be), and that Tenant\n shall accept the Leased Premises in its \"as-is\"\n condition at the commencement of the Third Rent\n Period or the Fourth Rent Period (as the case may\n be), and that in connection with the Third Rent\n Period or the Fourth Rent Period (as the case may\n be) Landlord shall not be required to perform any\n work, pay any amount or render any services to\n make the Leased Premises ready for Tenant's use\n and occupancy or provide any abatement of Basic\n Rent or other sums due hereunder,\n\n (iii) that during the Third Rent Period or the Fourth\n Rent Period (as the case may be), Tenant shall be\n responsible for any increases in Taxes above the\n Base Tax Amount, and\n\n (iv) that the ground floor of the Improvements are\n legally permitted to be used for retail purposes,\n\nand taking into account all relevant factors.\n\n (c) Each arbitrator shall render as his or her\ndetermination of the Fair Market Rent a fixed dollar amount per annum (in the\naggregate, not per rentable square foot), and shall give a notice to the other\narbitrators and Landlord and Tenant thereof. All notices pursuant to the\npreceding sentence shall be given simultaneously at a meeting (called by the\nthird arbitrator on at least five Business Days' notice to Landlord and Tenant\nand the other arbitrators) at which all three arbitrators and Landlord and\nTenant are present. The arithmetic average, of the two determinations closest to\none another shall be and constitute the determination of the arbitration;\nprovided, that if in any case the highest and lowest determinations are\nequidistant from the middle determination, then the middle determination shall\nbe and constitute the determination of the arbitration.\n\n\n -16-\n 27\n\n 2.3 Supplemental Rent\n\n In addition to Basic Rent, Tenant shall pay to Landlord additional\nrental (the \"Supplemental Rent\"), (a) in advance, on September 1, 1998 and on\nthe first day of each and every month through and including June 1, 2008, in an\namount equal to the Fit-Out Work Constant Payment and (b) on June 1, 2008 (in\naddition to the amount required to be paid on such date under clause (a) of this\nSection 2.3), an additional amount equal to the Unamortized Fit-Out Work\nInvestment as of June 1, 2008.\n\n 3. Manner of Payment\n\n (a) Basic Rent, Supplemental Rent, Tax Payments and all other sums\npayable by Tenant to Landlord hereunder, all of which shall constitute rent,\nshall be payable in lawful money of the United States of America and shall be\npaid to Landlord (i) in the case of Basic Rent, Supplemental Rent and Tax\nPayments, by wire transfer of immediately available federal funds as directed by\nLandlord, and (ii) in the case of all other sums, either by wire transfer as\naforesaid or by check (subject to collection) drawn on a New York Clearing House\nAssociation member bank at Landlord's address set forth above or at such other\naddress of Landlord within the United States as Landlord from time to time may\ndesignate or to such agent or person or persons resident or having an office at\nsuch other address within the United States as Landlord from time to time may\ndesignate.\n\n (b) If Tenant fails timely to pay any Basic Rent, Supplemental Rent,\nTax Payment or other sum payable by Tenant to Landlord under this Lease, Tenant\nshall pay interest thereon from the date when such amount became due to the date\nof Landlord's receipt thereof at the lesser of (i) the greater of (A) 18% per\nannum, or (B) the Prime Rate, and (ii) the maximum rate permitted by law (the\nlesser of such rates is called the \"Interest Rate\"). Any sums payable by Tenant\nfor which no due date is specified in this Lease shall be due and payable on the\n30th day after the giving of an invoice therefor.\n\n (c) If Landlord fails timely to pay any sum payable by Landlord to\nTenant under this Lease other than (i) a payment which Landlord is required to\nmake under Section 11.2, which failure to make such payments is governed by\nArticle 38, or (ii) a payment which Landlord is required to make under Section 6\nor Section 7 of the Initial Improvements Agreement, which failure to make such\npayment is governed by Article 39, or (iii) a payment of net annual rental\npayable under the Ground Lease which Landlord is required to make under Section\n12.3, which failure to make such payment is governed by Article 38, Landlord\nshall pay interest thereon from the date when such amount became due to the date\nof Tenant's receipt thereof at the Interest Rate. Any sum payable by Landlord\nfor which no due date is specified in this Lease shall be due and payable on the\n30th day after the giving of an invoice therefor.\n\n (d) If Tenant shall fail timely to pay the Cancellation Payment or\nthe Supplemental Rent payable under clause (b) of Section 2.3 when due then, in\naddition to such Cancellation Payment or Supplemental Rent, Tenant shall pay as\nadditional rental upon demand (x) an amount equal to interest at the Interest\nRate on such Cancellation Payment (excluding the Rent-Based Cancellation\nPayment) or on such Supplemental Rent from the Cancellation\n\n\n -17-\n 28\n\nPayment Payment Date or June 1, 2008 (as the case may be) until payment in full\nby Tenant of the Cancellation Payment or such Supplemental Rent and all amounts\nrequired by this sentence, and (y) in case of any failure timely to pay the\nCancellation Payment when due on September 1, 2004 or September 1, 2006,\ninterest at the Interest Rate on the Rent-Based Cancellation Payment from the\nCancellation Payment Payment Date until payment in full of the Cancellation\nPayment and all other amounts required by this sentence. If Tenant shall fail\ntimely to pay the Cancellation Payment or the Supplemental Rent payable under\nclause (b) of Section 2.3 when due then, in addition to the amounts which Tenant\nis required to pay under the preceding sentence, Tenant shall indemnify Landlord\nagainst all other losses, damages, costs and expenses arising out of such\nfailure.\n\n 4. Net Lease; No Abatement\n\n Except as otherwise provided in the Initial Improvements Agreement,\nLandlord shall not be required to provide any services or utilities to the\nLeased Premises. Subject to the last sentence of this Article 4, this Lease is a\nnet lease of the Leased Premises, and Tenant shall pay all costs, charges,\ntaxes, assessments and other expenses of every character, foreseen or\nunforeseen, ordinary or extraordinary, for the payment of which Landlord or\nTenant is or shall become liable by reason of its respective estate, right,\ntitle or interest in the Leased Premises or any part thereof, or which are\nconnected with or arise out of the possession, use, occupancy, maintenance,\naddition to, repair or rebuilding of the Leased Premises, including, without\nlimitation, those specifically referred to in this Lease. Except as provided in\nArticle 16, Section 20(a), Article 38 and Article 39, the Basic Rent and all\nother sums payable by Tenant hereunder shall be paid without notice, demand,\ncounterclaim, setoff, deduction or defense and without abatement, suspension,\ndeferment, diminution or reduction. The foregoing provisions of this \nArticle 4(a) shall not relieve Landlord of, or require Tenant to bear or\nreimburse Landlord for, the costs of performing (i) Landlord's obligations under\nthe Initial Improvements Agreement, (ii) Landlord's obligations to make certain\nreimbursements pursuant to Article 6, or (iii) Landlord's obligations under\nArticles 3, 7, 11, 12, 38 or 39 or any other provision of this Lease which by\nits terms imposes any obligation on Landlord, and (b) shall not obligate Tenant\nto pay or reimburse Landlord for (A) any taxes or assessments which Tenant is\nnot required by the provisions of Article 11 to pay or to reimburse to Landlord\nor (B) any interest, principal, or other costs or expenses relative to any\nindebtedness or other financing of Landlord; provided that the foregoing shall\nnot relieve Tenant of its obligation to pay Supplemental Rent.\n\n 5. Condition and Use of Leased Premises\n\n LANDLORD DOES NOT MAKE, AND TENANT ACKNOWLEDGES THAT LANDLORD HAS NOT\nMADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THIS\nLEASE, OR THE PRESENT OR FUTURE MERCHANTABILITY, HABITABILITY, CONDITION,\nQUALITY, DURABILITY, FITNESS OR SUITABILITY OF THE LEASED PREMISES IN ANY\nRESPECT OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF TENANT, OR ANY\nOTHER REPRESENTATION OR WARRANTY OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,\nWITH RESPECT THERETO, EXCEPT AS OTHERWISE\n\n\n -18-\n 29\n\nPROVIDED IN THIS LEASE. Subject to the performance by Landlord of Landlord's\nobligations under the Initial Improvements Agreement, Tenant accepts the Leased\nPremises \"as-is\". Tenant may use the Leased Premises only as an office building\nand, subject to applicable Legal Requirements, for purposes reasonably ancillary\nthereto, including, without limitation, for one or more dining rooms,\ncafeterias, restaurants, bars or other food service or preparation facilities\nfor use by Tenant's personnel and invitees and for one or more health or\nexercise facilities for the use of Tenant's personnel. In addition, Tenant may\nuse any portion of the Improvements above the subcellar and below the 2nd floor\nfor retail uses so long as there remains throughout the Term a first-class\noffice building lobby on the ground floor of the Improvements. Tenant shall not\nsuffer or permit the Leased Premises or any part hereof, to be used by the\npublic in such a manner as would subject the Leased Premises or any part thereof\nto a claim of adverse possession by the public.\n\n 6. Maintenance; Alterations; Certain Reimbursements; Etc.\n\n 6.1 Generally\n\n (a) Subject to the provisions of this Lease, Tenant:\n\n (i) shall, in accordance with first-class\n office building maintenance and operating standards\n generally applicable in 1998 (collectively, the\n \"First-Class Standard\"), keep the Leased Premises in\n overall first-class order, condition and repair;\n\n (ii) shall promptly make all replacements in\n and to the Leased Premises (whether interior or\n exterior, structural or nonstructural, ordinary or\n extraordinary, foreseen or unforeseen) which are\n necessary or appropriate in a first-class office\n building according to the standards thereof generally\n applicable in 1998 (collectively, \"Required\n Replacements\"); and\n\n (iii) may make additions, alterations and\n replacements (other than Required Replacements) in and\n to and, subject to the provisions of Section 1.1,\n removals from the Leased Premises (collectively,\n \"Voluntary Alterations\"; Required Replacements,\n Structural Work and Voluntary Alterations are\n collectively called \"Alterations\").\n\nNotwithstanding the foregoing, (x) Tenant's obligation with respect to the shell\nof the Building (excluding the roof) shall be limited to maintaining the same in\nsuch condition as the same is required by applicable Legal Requirements to be\nmaintained and also in a condition not materially worse than the condition in\nwhich the same was in on the date of this Lease, and (y) if Landlord shall give\na Cost Participation Limitation Notice with respect to any Reimbursable\nReplacement or Reimbursable Legal Requirement Alteration, Tenant shall not be\nobligated to Landlord to make such Reimbursement Replacement or Reimbursable\nLegal Requirement\n\n\n -19-\n 30\n\nAlterations nor, with respect to any such Reimbursable Replacement, to repair\nthe item which was to have been replaced.\n\n (b) No Alteration may be undertaken if such Alteration would\n(i) result in the Improvements not being a first-class office building or (ii)\nmaterially and adversely affect any structural element of the Improvements or\nany item of Major Building Equipment. Each Alteration shall be effected with due\ndiligence, in a good and workmanlike manner, and in compliance with all Legal\nRequirements, Insurance Requirements and Permitted Encumbrances. All Structural\nWork and all replacements of items of Major Building Equipment shall be of a\nquality at least equal to the original installation. Landlord shall not be\nliable to any contractors, subcontractors, laborers, materialmen, suppliers or\nvendors for services performed or material provided on or in connection with the\nLeased Premises. Landlord shall not be required to maintain, alter, repair,\nrebuild or replace the Leased Premises or any part thereof. Tenant waives all\nrights to make Alterations at Landlord's expense, except that Landlord shall in\naccordance with the further provisions of this Article 6 make reimbursements to\nTenant on account of Reimbursable Alterations. Except as provided in Section\n1.1, all Improvements arising from the making of any Alterations shall\nimmediately become the property of Landlord, shall be a part of the Leased\nPremises and shall be subject to this Lease, and Tenant shall, upon demand of\nLandlord, execute and deliver an appropriate instrument confirming Landlord's\ntitle thereto.\n\n 6.2 Certain Definitions\n\n As used herein:\n\n (a) \"Legal Requirement Alteration\" means any Alteration\nundertaken in order to comply with a Legal Requirement.\n\n (b) \"Reimbursable Replacement\" means the replacement of any\nitem of Major Building Equipment in its entirety; provided, that (i) such\nreplacement is performed after completion of the Base Building Upgrade Work,\n(ii) such replacement (in light of the physical condition of the item in\nquestion) is consistent with the First-Class Standard, (iii) the repair of the\nitem in question is inconsistent with the First-Class Standard; (iv) such\nreplacement shall not have been necessitated by fire, other casualty or a\nTaking, and (v) if the Witkoff Management Agreement shall have been terminated,\nsuch replacement shall not have been necessitated by the negligence (including,\nwithout limitation, failure to adhere to the manufacturer's suggested\nmaintenance procedures) or intentional misconduct of Tenant or the Building\nmanagement company employed by Tenant occurring after such termination.\n\n (c) \"Reimbursable Legal Recruitment Alteration\" means any\nAlteration undertaken solely in order to comply with a Legal Requirement enacted\nafter the date of this Lease and which (i) is performed after completion of the\nBase Building Upgrade Work, (ii) in accordance with generally accepted\naccounting principles consistently applied (\"GAAP\") should be capitalized, (iii)\nis not an Alteration in any area designed for tenant occupancy, and (iv) is not\nnecessitated by fire, other casualty or a Taking.\n\n (d) \"Structural Work\" consists solely of the following:\n\n\n -20-\n 31\n\n (i) replacement and\/or repair of the Building's\n curtain wall in whole or in part, except that\n Structural Work shall not include caulking\n treatment of the curtain wall except for any such\n caulking treatment done in conjunction with\n repairs or replacement of the portion of the\n curtain wall being caulked (other than any repairs\n or replacement undertaken in order to avoid the\n exclusion provided for in this clause (i)).\n\n (ii) replacement and\/or repair of the Building's steel\n frame, footings, foundations, columns, beams,\n floors (including concrete floors and the steel\n floors supporting the concrete floors) and core\n walls.\n\n (iii) replacement (but not repair) of the roof in its\n entirety (but not in part) required in order to\n preserve the structural integrity of the Building\n or the watertightness and airtightness of the\n Building.\n\n (iv) replacement of the watertight membrane or other\n watertight barrier under the Building's plaza, and\n any removal, reinstallation, repair or replacement\n of the Building's plaza arising out of such\n replacement\n\n (e) \"Reimbursable Structural Work\" means any Structural Work\nprovided that (i) such Structural Work is performed after completion of the Base\nBuilding Upgrades, (ii) such Structural Work (in light of a physical condition)\nis consistent with the First-Class Standard, (iii) if such Structural Work is a\nreplacement, then (A) such replacement (in light of the physical condition of\nthe item in question) is consistent with the First-Class Standard and (B) the\nrepair of the item in question is inconsistent with the First-Class Standard,\n(iv) such Structural Work shall not have been necessitated by fire, other\ncasualty or a Taking, and (v) if the Witkoff Management Agreement shall have\nbeen terminated, such Structural Work shall not have been necessitated by the\nnegligence of Tenant or the Building management company employed by Tenant\noccurring after such termination. Notwithstanding the foregoing, the first\n$100,000 of Structural Work performed by Tenant in any calendar year which, but\nfor this sentence, would constitute Reimbursable Structural Work shall be deemed\nnot to be Reimbursable Structural Work.\n\n (f) \"Reimbursable Removal of Hazardous Substances\" means the\nremoval of Qualified Hazardous Substances; provided, that (i) the term\n\"Reimbursable Removal of Hazardous Substances\" shall not include any Asbestos\nRemoval Work or any Refireproofing Work except to the extent that Landlord fails\nto perform the same on or before (a) the Partial Possession Date applicable to\nthe space in question with respect to any space other than the Stephaneze\nPremises or (b) the Stephaneze Possession Date, in the case of the Stephaneze\nPremises, and (ii) if the Costs of any removal of Qualified Hazardous Substances\n(as reasonably\n\n\n -21-\n 32\n\nestimated by Tenant) shall be less than $500,000 then, unless Tenant, by notice\nto Landlord, shall elect to treat the same as a Reimbursable Removal of\nHazardous Substances, such removal shall be deemed not to be a Reimbursable\nRemoval of Hazardous Substance. In applying the provisions of this clause (ii)\neach removal contracted for separately (unless done so solely in order to avoid\nthe provisions of this Section 6) shall be considered a separate removal.\n\n (g) \"Reimbursable Alterations\" means, collectively,\nReimbursable Replacements, Reimbursable Structural Work, Reimbursable Legal\nRequirement Alterations and Reimbursable Removal of Hazardous Substances.\n\n (h) \"Qualified Alteration\" means (i) any Alteration (other\nthan any Reimbursable Replacement, any Structural Work or any Legal Requirement\nAlteration) which affects any item of Major Building Equipment and (ii) any\nRestoration.\n\n (i) \"Major Building Equipment\" means any item listed on\nExhibit E and any replacement thereof.\n\n (j) \"Base Amount\" means the lower of\n\n 1) the original contract price of the Retained\n Bidder, less any portion of the original contract\n price of the Retained Bidder not actually paid by\n Tenant, or\n\n 2) the original contract price of Landlord's\n Preferred Bidder or, if Tenant shall have timely\n given the Dispute Notice and the Appropriate\n Engineer shall have selected Tenant's Selected\n Bidder, the original contract price of Tenant's\n Selected Bidder.\n\n (k) \"Determined Amount\" means the lower of\n\n 1) the original contract price of the Retained\n Bidder, or\n\n 2) the original contract price of Landlord's\n Preferred Bidder or, if Tenant shall have timely\n given the Dispute Notice and the Appropriate\n Engineer shall have selected Tenant's Selected\n Bidder, the original contract price of Tenant's\n Selected Bidder.\n\n (l) \"Cost Division Date\" means, (i) with respect to any\nReimbursable Alteration (other than Reimbursable Removal of Hazardous\nSubstances) commenced during the First Rent Period or the Second Rent Period,\nthe last day of the Second Rent Period, (ii) with respect to any Reimbursable\nAlterations commenced during the Third Rent Period, the last day of the Third\nRent Period, or (iii) with respect to any Reimbursable Alterations commenced\nduring the Fourth Rent Period, the last day of the Fourth Rent Period.\n\n (m) \"Measuring Fraction\" means, with respect to any\nReimbursable Alteration (other than any Reimbursable Removal of Hazardous\nSubstances), the fraction whose\n\n\n -22-\n 33\n\nnumerator is the number of months in the period from the Cost Division Date with\nrespect to such Reimbursable Alteration to the end of the expected useful life\nof such Reimbursable Alteration and whose denominator is the number of months in\nthe period from the Estimated Substantial Completion Date of such Reimbursable\nAlteration to the end of the expected useful life thereof. Any dispute as to the\nreasonableness of any Estimated Substantial Completion Date, and any dispute as\nto the expected useful life of any Reimbursable Alteration, shall be determined\nby the Appropriate Engineer. As to any Reimbursable Removal of Hazardous\nSubstances, the Measuring Fraction shall be one (1.00).\n\nIf Landlord and Tenant shall disagree (i) as to whether any item is an item of\nMajor Building Equipment, or (ii) as to whether any replacement is a\nReimbursable Replacement, or (iii) as to whether any work is Structural Work, or\n(iv) as to whether any Structural Work is Reimbursable Structural Work, or (v)\nas to whether a Legal Requirement requires an Alteration, or (vi) as to whether\nan Alteration is a Legal Requirement Alteration, or (vii) as to whether any\nLegal Requirement Alteration is a Reimbursable Legal Requirement Alteration, or\n(viii) as to whether any Alteration is a Qualified Alteration, or (ix) as to\nwhether any removal of any Hazardous Substance is a Reimbursable Removal of\nHazardous Substances, the matter shall in each case be determined by the\nAppropriate Engineer. Notwithstanding the foregoing, any dispute under clause\n(vii) - in so far as it relates to whether in accordance with GAAP an item\nshould be capitalized - shall be determined by the Accountant.\n\n 6.3 Submission and Approval of Plans and Specifications in Certain\nInstances.\n\n (a) Required Submissions. Prior to:\n\n (i) performing any of the Base Building\n Upgrade Work; or\n\n (ii) undertaking any Reimbursable\n Replacement, any Structural Work (whether or not\n Reimbursable Structural Work), any Legal Requirement\n Alteration (whether or not a Reimbursable Legal\n Requirement Alteration) or any Qualified Alteration;\n\nTenant shall (subject to Section 6.3(f)) submit all of the Plans and\nSpecifications therefor to Landlord for Landlord's approval, together with, in\ncase Tenant contends that the work in question is a Reimbursable Alteration, (i)\na statement to that effect, and (ii) a good faith estimate of the Costs of such\nReimbursable Alteration prepared by a reputable architect, engineer or\ncontractor. Each such submission is herein called a \"Plans Submission Notice\".\n\nLandlord shall give notice (the \"Plans and Specifications Notice\") to Tenant of\nLandlord's approval or disapproval of any Plans and Specifications within 20\nBusiness Days after the date upon which the same are given to Landlord (which\nPlans and Specifications Notice shall, in the case of a disapproval, be\naccompanied by a reasonably complete and specific statement of the reasons for\ndisapproval); provided, that\n\n\n -23-\n 34\n\n (A) with respect to all Plans and\n Specifications submitted by Tenant prior to Tenant's\n occupancy of the Leased Premises for the conduct of\n business, the aforesaid 20 Business Day period shall be\n shortened to 10 Business Days, and\n\n (B) with respect to all Plans and\n Specifications submitted by Tenant after Tenant's\n occupancy of the Leased Premises for the conduct of\n business, if (i) at least 10 Business Days before the\n date upon which Tenant submits all of the Plans and\n Specifications for the work in question to Landlord,\n Tenant gives notice to Landlord that Tenant intends to\n make any replacement of an item of Major Building\n Equipment or to undertake any Structural Work, Legal\n Requirement Alteration or Qualified Alteration (which\n notice shall specify the general nature of the work and\n an estimated date for the submission of all of the Plans\n and Specifications therefor to Landlord) and (ii) Tenant\n delivers all of the Plans and Specifications for the\n work in question to Landlord within 2 Business Days of\n the estimated submission date set forth in Tenant's\n notice, then the aforesaid 20 Business Day period shall\n be shortened to 10 Business Days.\n\nIf Tenant's notice shall have included a statement that the work in question is\na Reimbursable Alteration, the Plans and Specifications Notice shall include\nLandlord's agreement or disagreement with such statement.\n\n (b) Disapproval Only Under Certain Circumstances. Landlord\nshall not disapprove any Plans and Specifications unless the work contemplated\nthereby would (i) result in the Improvements not being a first-class office\nbuilding or (ii) materially and adversely affect any structural element of the\nImprovements or any item of Major Building Equipment. If Tenant disputes\nLandlord's right to disapprove, the matter shall be determined by the\nAppropriate Engineer.\n\n (c) Certain Conditions. Subject to Sections 6.3(d) and (f),\nTenant shall not perform any Base Building Upgrade Work or undertake any\nReimbursable Replacement, Structural Work, Legal Requirement Alteration or\nQualified Alteration unless and until (i) Landlord shall approve (or be deemed\nto have approved) the Plans and Specifications therefor in a Plans and\nSpecifications Notice or (ii) the Appropriate Engineer shall determine that\nLandlord did not have the right to disapprove such Plans and Specifications\npursuant to this Lease.\n\n (d) Failure to Give timely Notice. Subject to the provisions\nof the next paragraph, if Landlord shall fail timely to give Tenant a Plans and\nSpecifications Notice, Tenant may proceed with the work in question, and if\nLandlord thereafter disapproves the Plans and Specifications therefor Tenant may\ncontinue such work unless the Appropriate Engineer determines that Landlord had\nthe right to disapprove pursuant to this Lease. If the Appropriate\n\n\n -24-\n 35\n\nEngineer so determines, Tenant shall cease such work, but the work done by\nTenant to the date of the Appropriate Engineer's determination shall not\nconstitute a default hereunder if Tenant thereupon commences and thereafter\ndiligently prosecutes to completion such remedial work (including, without\nlimitation, the removal of the work theretofore done by Tenant and the\nrestoration of the affected area of the Leased Premises) as Landlord may\nreasonably determine to be appropriate in the circumstances (unless Tenant shall\ndispute Landlord's determination, in which case the remedial work, if any, to be\ndone by Tenant shall be determined by the Appropriate Engineer).\n\n Notwithstanding the provisions of the foregoing paragraph, if\n(i) Tenant's Plans Submission Notice shall include the following statement in\nblock capital letters: \"THIS NOTICE IS BEING GIVEN UNDER SECTION 6.3(a) OF OUR\nLEASE. YOUR FAILURE TIMELY TO RESPOND WILL RESULT IN YOUR BEING DEEMED TO HAVE\nAPPROVED THE PLANS AND SPECIFICATIONS INCLUDED HEREWITH\", and (ii) Landlord\nshall fail timely to give to Tenant a Plans and Specifications Notice with\nrespect to such Plans and Specifications, then Landlord shall be deemed to have\ngiven to Tenant a Plans and Specifications Notice approving such Plans and\nSpecifications and any Plans and Specifications Notice thereafter given by\nLandlord disapproving such Plans and Specifications shall be void and of no\neffect.\n\n If (i) Tenant's Plans Submission Notice shall include the\nfollowing statement in block capital letters: \"THIS NOTICE IS BEING GIVEN UNDER\nSECTION 6.3(a) OF OUR LEASE WITH RESPECT TO A REIMBURSABLE ALTERATION. YOUR\nFAILURE TIMELY TO DISAGREE WITH TENANT'S STATEMENT THAT THE WORK CALLED FOR BY\nTHE PLANS AND SPECIFICATIONS INCLUDED HEREWITH CONSTITUTES A REIMBURSABLE\nALTERATION WILL RESULT IN YOUR BEING DEEMED TO AGREE THAT SUCH WORK CONSTITUTES\nA REIMBURSABLE ALTERATION.\" and (ii) Landlord shall fail timely to give to\nTenant a Plans and Specifications Notice with respect to such Plans and\nSpecifications indicating that Landlord disagrees with Tenant's statement that\nthe work called for by such Plans and Specifications constitutes a Reimbursable\nAlteration, then Landlord shall be deemed to have agreed that such work\nconstitutes a Reimbursable Alteration.\n\n (e) Submission of Certain Plans and Specifications Not\nRequiring Approval. At the request of Landlord (made not more frequently than\nonce in any 12-month period), Tenant shall submit to Landlord Plans and\nSpecifications for all Alterations (other than Plans and Specifications required\nto be submitted to Landlord pursuant to Section 6.3(a)) to the extent that such\nPlans and Specifications have been prepared and have not theretofore been\nsubmitted to Landlord. Landlord shall have no right to approve any Plans and\nSpecifications submitted by Tenant pursuant to this Section 6.3(e) unless it is\ndetermined that such Plan and Specifications should have been submitted for\napproval under Section 6.3(a).\n\n (f) Emergencies. Provided that Tenant shall have given\nLandlord prompt telephonic notice (confirmed in writing as soon as reasonably\npracticable) of an emergency, Tenant may (without first complying with the\napplicable provisions of Sections\n\n\n -25-\n 36\n\n6.3(a)(b), (c) and (e)) proceed with such aspects of any Alteration as Tenant \nmay reasonably deem necessary in light of the emergency, but as promptly as\nreasonably practicable thereafter Tenant shall comply with the applicable\nprovisions of said sections. Any dispute as to Tenant's right to avail itself of\nthis Section 6.3(f) shall be determined by the Appropriate Engineer.\n\n 6.4 Reimbursable Alterations\n\n (a) Submission of Bids; Different Score of Work Statement.\n\n (1) In the case of any Reimbursable Alteration, Tenant shall\n(subject to Section 6.4(f)), simultaneously with the submission of all of the\nPlans and Specifications therefor to Landlord (or as soon thereafter as\nreasonably practicable, but in no event later than the date which is 5 Business\nDays prior to the date upon which Landlord is required to give the Plans and\nSpecifications Notice), deliver to Landlord a list of at least 3 reputable\ncontractors (collectively, the \"Original Bidders\") from whom Tenant proposes to\nobtain bids for the work. Landlord shall have the right, exercisable by notice\nto Tenant delivered not later than 10 Business Days after receipt by Landlord of\nthe list of the Original Bidders, to designate no more than three additional\nreputable contractors (which may include Landlord or an affiliate of Landlord)\nfrom whom Landlord desires Tenant to obtain bids (collectively, the \"Additional\nBidders\"). Tenant shall, as promptly as reasonably practicable, obtain bids from\nat least two of the Original Bidders and solicit bids from all of the Additional\nBidders (if any) on a competitive basis and submit all bids obtained (together\nwith the proposed contracts relating thereto) to Landlord together with (x)\nTenant's reasonable estimate of the date of substantial completion of the work\nin question (the \"Estimated Substantial Completion Date\") and (y) Tenant's\nreasonable estimate of reasonable fees and disbursements of any architect or\nengineer retained by Tenant in connection with the work in question, and within\n5 Business Days after receipt thereof Landlord shall give notice to Tenant\ndesignating the Original Bidder or the Additional Bidder (in either case being a\nbidder from whom Tenant has obtained a bid) which in Landlord's judgment should\nperform the work in question (the bidder so designated by Landlord being called\n\"Landlord's Preferred Bidder\"). All such bids shall be on a lump sum or\nguaranteed maximum amount basis. Tenant shall have the right, exercisable by\nnotice (the \"Dispute Notice\") given to Landlord within 5 Business Days after the\ndate upon which Tenant receives notice of the identity of Landlord's Preferred\nBidder (which Dispute Notice shall specify the Original Bidder or the Additional\nBidder (\"Tenant's Selected Bidder\") which Tenant proposes to select to do the\nwork in question), to dispute Landlord's designation of Landlord's Preferred\nBidder, and if the Dispute Notice shall be timely given, the Appropriate\nEngineer shall select either Landlord's Preferred Bidder or Tenant's Selected\nBidder as the bidder which (in light of the bid, contract terms, reputation and\nexperience of such bidder) is most appropriate to do the work in question.\nNotwithstanding Landlord's designation of, or the Appropriate Engineer's\nselection of, Landlord's Preferred Bidder, Tenant may retain any Original Bidder\nor Additional Bidder from whom Tenant has obtained a bid in accordance with this\nSection 6.4(a) to do the work in question (the bidder so retained being called\nthe \"Retained Bidder\").\n\n (2) If Landlord believes that the Reimbursable Alteration reflected\nin the Plans and Specifications submitted by Tenant is not the most appropriate\nAlteration to address\n\n\n -26-\n 37\n\nthe condition in question (in the case of a Reimbursable Replacement or\nReimbursable Structural Work) or to comply with the Legal Requirement in\nquestion (in the case of a Reimbursable Legal Requirement Alteration) or to\neffect removal (in the case of Reimbursable Removal of Hazardous Substances)\nthen, Landlord shall include in its notice designating Landlord's Preferred\nBidder a statement to that effect (such statement being herein called a\n\"Different Scope of Work Statement\") and shall include with such notice (x) such\nrevisions to or such replacement for the Plans and Specifications submitted by\nTenant as Landlord believes are needed to reflect such most appropriate\nAlteration (\"Landlord's Revised Plans\"), (y) a list of at least 3 reputable\ncontractors from whom Landlord desires Tenant to obtain bids for the performance\nof the Reimbursable Alteration in accordance with Landlord's Revised Plans\n(\"Landlord's Alternate Bidders\") and who may be the same as or different from\nthe Additional Bidders, and (z) if Landlord believes that the Alteration\nreflected in Landlord's Revised Plans is not a Reimbursable Alteration, a\nstatement to that effect. In such a case, Tenant may elect to perform the\nAlteration in question either pursuant to Landlord's Revised Plans or, subject\nto Section 6.3(c), pursuant to the Plans and Specifications submitted by Tenant,\nsubject, in either case, to the provisions of Section 6.4(h). If Landlord shall\ninclude the statement described in clause (z) above, and Tenant shall disagree\ntherewith, the dispute shall be resolved by the Appropriate Engineer.\n\n If (A) Tenant's notice accompanying Tenant's submission to Landlord\nof the bids required to be submitted to Landlord under Section 6.4(a)(1) shall\ninclude the following statement in block capital letters: \"THIS NOTICE IS BEING\nGIVEN TO YOU UNDER SECTION 6.4(a) OF OUR LEASE WITH RESPECT TO A REIMBURSABLE\nALTERATION. YOUR FAILURE TIMELY TO FURNISH A DIFFERENT SCOPE OF WORK STATEMENT\nWILL RESULT IN YOUR LOSING THE RIGHT TO FURNISH A DIFFERENT SCOPE OF WORK\nSTATEMENT. IF YOU FURNISH A DIFFERENT SCOPE OF WORK STATEMENT YOUR FAILURE TO\nINCLUDE THEREIN A STATEMENT THAT YOU DO NOT BELIEVE THAT THE ALTERATION CALLED\nFOR THEREBY IS NOT A REIMBURSABLE ALTERATION WILL RESULT IN YOUR BEING DEEMED TO\nAGREE THAT SUCH ALTERATION CONSTITUTES A REIMBURSABLE ALTERATION\" and (B)\nLandlord shall fail to include in its notice designating Landlord's Preferred\nBidder a Different Scope of Work Statement or shall fail to include with such\nnotice Landlord's Revised Plans or shall fail to include with such notice a list\nof Landlord's Alternate Bidders, then Landlord shall be deemed to have waived\nits rights under this Section 6.4(a)(2) with respect to the Reimbursable\nAlteration in question. If (i) Tenant's notice accompanying Tenant's submission\nto Landlord of the bids required to be submitted to Landlord under Section\n6.4(a)(1) shall include the statement set forth in clause (i) of the preceding\nsentence, and (ii) Landlord shall furnish a Different Scope of Work Statement\nand shall fail to include therein a statement that Landlord does not believe\nthat the Alteration called for thereby is not a Reimbursable Alteration, then\nLandlord shall be deemed to have agreed that such Alteration is a Reimbursable\nAlteration.\n\n (b) Reimbursement Amount. Landlord shall, in accordance with Section\n6.4(d) or 6.4(e), reimburse Tenant on account of any Reimbursable Alteration in\nan amount (the \"Reimbursement Amount\") equal to the product of the Measuring\nFraction multiplied by the sum of (i) the Base Amount for the work in question,\nplus (ii) any Qualified Overruns; plus (iii) the reasonable fees and\ndisbursements of any architect or engineer retained\n\n\n -27-\n 38\n\nby Tenant in connection with the work in question (the sum of the amounts\nreferred to in clauses (i), (ii) and (iii) being herein called the \"Gross\nAmount\"). Any dispute as to the reasonableness of the incurrence by Tenant of\nany Cost under clause (ii) or (iii) above in connection with the work in\nquestion, or as to the reasonableness of the amount of any such Cost, shall be\ndetermined by the Appropriate Engineer.\n\n (c) Overruns; Qualified Overruns. At any time during the performance\nof any Reimbursable Alteration, Tenant may give notice (an \"Overrun Notice\") to\nLandlord specifying any cost (an \"Overrun\") in excess of the original contract\nprice of Tenant's Selected Bidder which Tenant expects to incur and which Tenant\ncontends was unforeseeable by Tenant at the time of commencement of the work\n(each Overrun Notice to specify the nature of and reasons for the Overrun in\nquestion in reasonably complete and specific detail). Within 10 Business Days\nafter receipt of an Overrun Notice, Landlord shall notify Tenant as to whether\nor not in Landlord's judgment the Overrun in question is reasonable in amount in\nthe circumstances and was unforeseeable by Tenant at the time of commencement of\nthe work. If Tenant shall dispute Landlord's judgment, the reasonableness of the\namount of, and the foreseeability by Tenant of, the Overrun in question shall be\ndetermined by the Appropriate Engineer. Any Overrun determined by Landlord or\nthe Appropriate Engineer to be reasonable in amount in the circumstances and\nunforeseeable by Tenant at the time of commencement of the work shall be a\n\"Qualified Overrun\". Tenant shall not be chargeable with the failure by any\nContractor to foresee any Overrun.\n\n (d) Reimbursement Upon Full Completion. Except in the case of a\nReimbursable Alteration in respect of which an Extended Completion Notice has\nbeen given, Landlord shall upon the full completion of the work in question and\nwithin 30 days after Landlord's receipt of Tenant's request therefor remit the\nReimbursement Amount to Tenant; provided, that Landlord shall not be obligated\nto make such remittance unless:\n\n (i) Tenant's request for remittance shall be\n accompanied by (A) a certificate of Tenant (in\n form reasonably satisfactory to Landlord) stating\n that an amount at least equal to the Reimbursement\n Amount has been paid to contractors,\n subcontractors, materialmen, engineers, architects\n or other persons (whose names and addresses and a\n description of the work involved shall be stated)\n who have furnished labor, materials, supplies,\n permits or services for the work in question\n (collectively, \"Contractors\") and that to Tenant's\n best knowledge (after due inquiry) there is no\n outstanding indebtedness due for labor, materials,\n supplies, permits or services in any manner\n connected with the work in question which if\n unpaid might be the basis for any type of lien on\n the Leased Premises or any part thereof, and (B) a\n certificate of the architect or engineer who\n prepared the related Plans and Specifications (in\n form reasonably\n\n\n -28-\n 39\n\n satisfactory to Landlord) stating that such work\n has been fully completed in a good and\n workmanlike manner and in accordance with the\n Plans and Specifications (as approved by Landlord\n or as determined by the Appropriate Engineer to\n have been required to be approved by Landlord\n pursuant to this Lease);\n\n (ii) Landlord shall have received (A) true copies of\n all bills paid by Tenant to Contractors in\n connection with the work in question, (B) an\n instrument in writing from any title company\n insuring Landlord's estate in the Project\n certifying that there are no undischarged\n mechanics', laborers' or materialmen's liens\n affecting any part of the Project (other than\n liens, if any, in respect of which Landlord has\n consented to take security pursuant to Article \n 13(a)(ii)) and\n\n (iii) no Event of Default shall have occurred and be\n continuing.\n\n (e) Reimbursement as Work Proceeds. If at any time prior to or\nduring the performance of any Reimbursable Alteration Tenant determines that the\nfull completion thereof will not occur within six months after the commencement\nof such Reimbursable Alteration, Tenant shall give Landlord notice of such\ndetermination (an \"Extended Completion Notice\") and thereafter Landlord shall\nfrom time to time within 30 days after Landlord's receipt of Tenant's request\ntherefor (but in no event more frequently than once during any 30-day period)\nmake advances to Tenant on account of the Reimbursement Amount for the work in\nquestion (collectively, \"Reimbursement Advances\"); provided, that:\n\n (i) no Reimbursement Advance shall be made until\n Tenant shall have delivered to Landlord evidence\n reasonably acceptable to Landlord that Tenant has\n paid Contractors engaged in the work in question\n an aggregate amount (the \"Benchmark Amount\") equal\n to the positive remainder, if any, obtained by\n subtracting the Determined Amount for the work in\n question from the original contract price of the\n Retained Bidder, and Reimbursement Advances shall\n be made only for amounts paid by Tenant to such\n Contractors which are in excess of the Benchmark\n Amount;\n\n (ii) no Reimbursement Advance (other than the final\n Reimbursement Advance) shall be due unless:\n\n\n -29-\n 40\n\n (a) Tenant's request for such Reimbursement Advance\n shall be accompanied by (x) a certificate of\n Tenant (in form reasonably satisfactory to\n Landlord) stating that (1) the amount of the\n Reimbursement Advance then requested has been paid\n by Tenant to Contractors (whose names and\n addresses and a description of the work involved\n shall be stated) engaged in the work in question,\n (2) the amount of the Reimbursement Advance then\n requested (when taken together with the aggregate\n amount of all Reimbursement Advances theretofore\n made by Landlord) exceeds neither 90% of the\n Reimbursement Amount nor the product of the\n Determined Amount multiplied by the percentage\n (the \"Completed Percentage\") of the work called\n for in the contract of the Retained Bidder which\n has actually been installed in the Leased\n Premises, (3) the amount of the Reimbursement\n Advance, when added to all amounts paid by Tenant\n to Contractors engaged in the work in question and\n not reimbursed by Landlord by way of prior\n Reimbursement Advances or the then Reimbursement\n Advance (but excluding the Benchmark Amount) is at\n least equal to the quotient obtained by dividing\n the amount of the then requested Reimbursement\n Advance by the Measuring Fraction and (4) no part\n of the cost of the work described in any previous\n or then pending request for a Reimbursement\n Advance has been or is being made the basis for\n the Reimbursement Advance then being requested,\n and (y) a certificate of the architect or engineer\n who prepared the related Plans and Specifications\n (in form reasonably satisfactory to Landlord)\n stating in substance that the Completed Percentage\n has been reached and that the work has been\n performed in a good and workmanlike manner and in\n accordance with the Plans and Specifications (as\n approved by Landlord or as determined by the\n Appropriate Engineer to have been required to be\n approved by Landlord pursuant to this Lease);\n\n\n -30-\n 41\n\n (b) Landlord shall have received true copies of all\n bills paid or payable by Tenant to Contractors\n which form the basis for the Reimbursement Advance\n in question; and\n\n (c) no Event of Default shall have occurred and be\n continuing; and\n\n (i) the final Reimbursement Advance shall not be due unless\n all of the conditions specified in clauses (i) through\n (iii) of Section 6.4(d) shall have been fulfilled in\n respect of such Reimbursement Advance.\n\n (f) Emergencies. Provided that Tenant shall have given Landlord\nprompt telephonic notice (confirmed in writing as soon as reasonably\npracticable) of an emergency, Tenant may proceed with any Reimbursable\nAlteration without first complying with the applicable provisions of this\nSection 6.4 and Landlord shall, following full completion of the emergency work\nin question and within 30 days after Landlord's receipt of Tenant's request\ntherefor, remit the Emergency Reimbursement Amount (as hereinafter defined) to\nTenant; provided that Landlord shall not be obligated to make such remittance\nunless all of the conditions specified in clauses (i) through (iii) of Section\n6.4(d) shall have been fulfilled in respect of the work in question (provided,\nthat (i) if no architect or engineer was retained for the emergency work in\nquestion, Section 6.4(a)(i)(B) shall be deemed fulfilled if (x) Tenant shall\ndeliver a certificate to Landlord stating that such emergency work has been\nfully completed in a good and workmanlike manner and (y) such emergency work has\nbeen fully completed in a manner consistent with the character of the\nImprovements as a first-class office building (with due regard to the character\nof the work as emergency work), and (ii) if an architect or engineer was\nretained for the emergency work in question but (due to the nature of the\nemergency) no Plans and Specifications therefor were prepared, Section\n6.4(a)(i)(B) shall be deemed fulfilled if (x) Tenant shall deliver to Landlord a\ncertificate of such architect or engineer stating that such emergency work has\nbeen fully completed in a good and workmanlike manner and (y) such emergency\nwork has been fully completed in a manner consistent with the character of the\nImprovements as a first-class office building (with due regard to the character\nof the work as emergency work).\n\n \"Emergency Reimbursement Amount\" means the product of the Measuring\nFraction multiplied by an amount equal to all Costs reasonably incurred by\nTenant in connection with the emergency work in question.\n\n Any dispute as to Tenant's right to avail itself of this Section\n6.4(f), or as to the reasonableness of the incurrence by Tenant of any Cost in\nconnection with the emergency work in question, or as to the reasonableness of\nthe amount of any such Cost, shall be determined by the Appropriate Engineer.\nLandlord shall not be required to make payment of any amount in dispute pending\nresolution of such dispute.\n\n\n -31-\n 42\n\n (g) Landlord's Right to Decline to Participate in Certain Costs.\n\n (i) The term \"Notional Termination Date\" shall mean, as of any\ndate, (a) if prior to such date Tenant shall have exercised any Termination\nOption, the Termination Date with respect thereto, and (b) if prior to such date\nTenant shall not have exercised any Termination Option, the Termination Date\nwith respect to the earliest Termination Option which, as of such date, has not\nlapsed without exercise or been waived or, if all of the Termination Options\nshall then have lapsed without exercise or been waived, the Expiration Date.\n\n (ii) The term \"Plan Submission Date\" with respect to any\nReimbursable Replacement or Reimbursable Legal Requirement Alteration shall mean\nthe date on which Tenant furnishes the Plans Submission Notice with respect\nthereto to Landlord under Section 6.3(a).\n\n (iii) The term \"Associated Reimbursables\" shall mean\n\n (a) with respect to any Reimbursable Replacement, (i)\n all other Reimbursable Replacements the Plan\n Submission Date for which occurred earlier than,\n and in the same calendar year as, such\n Reimbursable Replacement, excluding any thereof\n with respect to which Tenant, by notice to\n Landlord under Section 6.4(g)(vii), shall have\n withdrawn its Plans Submission Notice and (ii) all\n Reimbursable Legal Requirement Alterations the\n Plans Submission Date for which occurred earlier\n than, and in the same calendar year as, such\n Reimbursable Replacement, excluding any thereof\n with respect to which Tenant, by notice to\n Landlord under Section 6.4(g)(vii), shall have\n withdrawn its Plans Submission Notice, or\n\n (b) with respect to any Reimbursable Legal Requirement\n Alteration, (i) all other Reimbursable Legal\n Requirement Alterations the Plan Submission Date\n for which occurred earlier than, and in the same\n calendar year as, such Reimbursable Legal\n Requirement Alteration, excluding any thereof with\n respect to which Tenant, by notice to Landlord\n under Section 6.4(g)(vii), shall have withdrawn\n its Plans Submission Notice and (ii) all\n Reimbursable Replacements the Plans Submission\n Date for which occurred earlier than, and in the\n same calendar year as, such Reimbursable Legal\n Requirement Alteration, excluding any thereof with\n respect to which Tenant, by notice to Landlord\n under Section 6.4(g)(vii), shall have withdrawn\n its Plans Submission Notice\n\n\n -32-\n 43\n\n (iv) The term \"Estimated Cost\" with respect to any\nReimbursable Replacement or any Reimbursable Legal Requirement Alteration shall\nmean the sum of (a) the Determined Amount with respect thereto, and (b) Tenant's\nreasonable estimate of reasonable fees and disbursements of any architect or\nengineer retained by Tenant in connection with the work in question.\n\n (v) If (a) on the Plan Submission Date with respect to any\nReimbursable Replacement or any Reimbursable Legal Requirement Alteration the\nNotional Termination Date is earlier than the fifth anniversary of such Plan\nSubmission Date, and (b) the Estimated Cost with respect to such Reimbursable\nReplacement or such Reimbursable Legal Requirement Alteration, together with the\nEstimated Cost with respect to all Associated Reimbursables, exceeds $500,000,\nthen Landlord shall have the right to give a notice with respect to such\nReimbursable Replacement or Reimbursable Legal Requirement Alteration referring\nto this Section (a \"Cost Participation Limitation Notice\") and, if Landlord\nshall timely give a Cost Participation Limitation Notice with respect to such\nReimbursable Replacement or such Reimbursable Legal Requirement Alteration, then\n\n (x) Landlord shall not be required to make the\n reimbursement which, in the absence of this clause (x)\n Landlord would otherwise be required to make under the first\n sentence of Section 6.4(b), and\n\n (y) Landlord shall, in accordance with Section\n 6.4(d) or 6.4(e), reimburse Tenant on account of such\n Reimbursable Replacement or such Reimbursable Legal\n Requirement Alteration in an amount (the \"Limited\n Reimbursement Amount\") equal to the product of the Measuring\n Fraction multiplied by the lesser of\n\n (a) the Gross Amount with respect to such\n Reimbursable Replacement or such\n Reimbursable Legal Requirement Alteration,\n or\n\n (b) the excess, if any, of $500,000 over the\n Gross Amounts with respect to all Associated\n Reimbursables, if any.\n\nLandlord may give a Cost Participation Limitation Notice with respect to any\nReimbursable Replacement or any Reimbursable Legal Requirement Alteration at any\ntime on or before the date on which Landlord is entitled to give notice under\nSection 6.4(a) designating Landlord's Preferred Bidder; provided, that if Tenant\ntimely gives a Dispute Notice with respect to such Reimbursable Replacement or\nReimbursable Legal Requirement Alteration and the Appropriate Engineer selects\nTenant's Selected Bidder as the bidder which is most appropriate to do the work\nin question, Landlord may give a Cost Participation Limitation Notice with\nrespect to such Reimbursable Replacement or Reimbursable Legal Requirement\nAlteration within five (5) Business Days after receipt of notice of such\nselection by the Appropriate Engineer.\n\n\n -33-\n 44\n\n (vi) If (A) at any time after Landlord shall have given a Cost\nParticipation Limitation Notice with respect to any Reimbursable Replacement or\nany Reimbursable Legal Requirement Alteration, any Termination Option shall\nlapse without exercise or be waived, and (B) had such Termination Option and all\nearlier Termination Options been waived immediately prior to the Plan Submission\nDate with respect to such Reimbursable Replacement or such Reimbursable Legal\nRequirement Alteration, Landlord would not have been entitled to give a Cost\nParticipation Limitation Notice with respect to such Reimbursable Replacement or\nsuch Reimbursable Legal Requirement Alterations, then Landlord shall pay to\nTenant the excess of (x) the Reimbursement Amount with respect to such\nReimbursement Replacement or such Reimbursement Legal Requirement Alteration\n(i.e. the Reimbursement Amount which would have been payable under Section\n6.4(b) if Landlord had not given a Cost Participation Limitation Notice), over\n(y) the Limited Reimbursement Amount with respect to such Reimbursable\nReplacement or such Reimbursable Legal Requirement Alteration. Such payment\nshall be due within thirty (30) days of Tenant's demand therefor, but not\nearlier than the date on which it would otherwise be due under the provisions of\nthis Section 6.4. Notwithstanding the fact that the amount required to be paid\npursuant to this Section 6.4(g)(vi) is required to be paid on a date later than\nthe date on which the Reimbursement Amount would have been required to be paid\nif Landlord had not given the Cost Participation Limitation Notice, no interest\nshall be due on such amount, except for interest under Section 3(c) from and\nafter the date on which such amount is required to be paid pursuant to this\nSection 6.4(g)(vi) if Landlord shall fail timely to make such payment.\n\n (vii) Tenant may, by notice to Landlord given at any time\nprior to the commencement of any Reimbursable Replacement or any Reimbursable\nLegal Requirement Alteration, withdraw its Plans Submission Notice with respect\nto such Reimbursable Replacement or Reimbursable Legal Requirement Alterations.\nIf Tenant shall do so, and shall subsequently desire to make such Reimbursable\nReplacement or Reimbursable Legal Requirement Alteration, it must again give a\nPlans Submission Notice with respect thereto and all of the applicable\nprovisions of Section 6.3 and 6.4 shall again be applicable as if such withdrawn\nPlans Submission Notice had never been given.\n\n (viii) If after Landlord shall have given a Cost Participation\nLimitation Notice with respect to any Reimbursable Replacement or any\nReimbursable Legal Requirement Alterations (the \"Reimbursable Replacement or\nReimbursable Legal Requirement Alteration in question\"), Tenant shall give a\nnotice under Section 6.4(g)(vii) with respect to any Reimbursable Replacement\nor Reimbursable Legal Requirement Alteration which, in the absence of such\nnotice by Tenant, constituted an Associated Reimbursable with respect to the\nReimbursable Replacement or Reimbursable Legal Requirement Alteration in\nquestion, then for purposes of computing the Limited Reimbursement Amount with\nrespect to the Reimbursable Replacement or Reimbursable Legal Requirement in\nquestion such Reimbursable Replacement or Reimbursable Legal Requirement\nAlterations with respect to which Tenant shall have given a notice under Section\n6.4(g)(vii) shall not be deemed to be an Associated Reimbursable. Any increase\nin the Limited Reimbursement Amount payable by reason of this Section \n6.4(g)(viii) shall be due and payable within thirty (30) days of Tenant's demand\ntherefor, but not earlier than the date on which it would otherwise be due under\nthe provisions of this Section 6.4.\n\n\n -34-\n 45\n\n (h) Different Scope of Work Statement The provisions of this\nSection 6.4(h) shall be applicable to any Alterations as to which Landlord\ntimely gives a Different Scope of Work Statement and timely furnishes Landlord's\nRevised Plans and a list of Landlord's Alternate Bidders in accordance with\nSection 6.4(a).\n\n If Tenant shall elect to perform such Alteration in accordance\nwith Landlord's Revised Plans and such Alteration is a Reimbursable Alteration,\nthen the foregoing provisions of this Section 6.4, including without limitation\nthe provisions requiring Tenant to obtain and\/or solicit bids and furnish the\nbids so received to Landlord (and the related provisions of this Article 6)\nshall be applied with reference to Landlord's Revised Plans, except that in such\na case\n\n (a) the term \"Additional Bidders\" shall refer\n only to Landlord's Alternate Bidders,\n\n (b) the term \"Original Bidders\" shall refer only\n to any other bidders from whom Tenant\n requests and receives a bid to perform the\n Reimbursable Alteration in accordance with\n Landlord's Revised Plans, and\n\n (c) notwithstanding the third sentence of\n Section 6.4(a)(1), Tenant shall not be\n obligated to obtain bids from any minimum\n number of Original Bidders.\n\n If Tenant shall elect to perform the Alteration in accordance\nwith the Plans and Specifications submitted by Tenant and such Alteration is a\nReimbursable Alteration, then (i) the foregoing provisions of Section 6.4 shall\nbe applied with reference to the Plans and Specifications submitted by Tenant,\n(ii) the Appropriate Engineer shall select as more appropriate either the Plans\nand Specifications submitted by Tenant or Landlord's Revised Plans, and (iii) if\nthe Appropriate Engineer selects the Landlord's Revised Plans and the Alteration\nreflected thereon is a Reimbursable Alteration then, provided that at least one\nof Landlord's Alternate Bidders shall submit a bid in accordance with Section\n6.4(a) for the performance of the Reimbursable Alteration in accordance with\nLandlord's Revised Plans, the Reimbursement Amount, Limited Reimbursement\nAmount, Base Amount, Determined Amount, and Gross Amount with respect to such\nReimbursable Alteration shall be, respectively, the lower of (p) the\nReimbursement Amount, Limited Reimbursement Amount, Base Amount, Determined\nAmount, and Gross Amount resulting from the application of the foregoing\nprovisions of Section 6.4 (and the related provisions of this Article 6) with\nreference to the Plans and Specifications submitted by Tenant, or (q) the\nReimbursement Amount, Limited Reimbursement Amount, Base Amount, Determined\nAmount, and Gross Amount which would have resulted from the application of the\nforegoing provisions of Section 6.4 (and the related provisions of this Article\n6) with reference to Landlord's Revised Plans. In order to determine the amounts\nreferred to in clause (q) above, Tenant shall solicit bids for the performance\nof the Reimbursable Alteration in accordance with Landlord's Revised Plans from\nLandlord's Alternate Bidders and any other bidders from whom Tenant desires to\nsolicit bids, and\n\n\n -35-\n 46\n\n (a) when used with reference to the amounts\n referred to in clause (q) above, (1) the\n term \"Additional Bidders\" shall refer only\n to Landlord's Alternate Bidders, and (2) the\n term \"Original Bidders\" shall refer only to\n any other bidders from whom Tenant requests\n and receives a bid to perform the\n Reimbursable Alteration in accordance with\n Landlord's Revised Plans, and\n\n (b) notwithstanding the third sentence of\n Section 6.4(a)(1), Tenant shall not be\n obligated to obtain bids from any minimum\n number of Original Bidders.\n\n Notwithstanding the foregoing provisions of this Section\n6.4(h), (a) if Tenant so elects, the Appropriate Engineer's selection under\nclause (ii) of the preceding paragraph of the Plans and Specifications submitted\nby Tenant or Landlord's Revised Plans as more appropriate and\/or, if applicable,\nthe Appropriate Engineer's determination whether the Alteration shown on the\nPlans and Specifications submitted by Tenant constitutes a Reimbursable\nAlteration and\/or, if applicable, the Appropriate Engineer's determination\nwhether the Alteration shown on Landlord's Revised Plans constitutes a\nReimbursable Alteration shall occur before Tenant decides whether to perform the\nReimbursable Alterations in accordance with Landlord's Revised Plans or the\nPlans and Specifications submitted by Tenant, and (b) if Tenant so elects,\nTenant may solicit bids for the performance of the Reimbursable Alteration in\naccordance with Landlord's Revised Plans from Landlord's Alternate Bidders and\nother bidders from Tenant shall desire to obtain bids before deciding whether to\nperform the Reimbursable Alterations in accordance with the Plans and\nSpecifications submitted by Tenant or Landlord's Revised Plans.\n\n 6.5 General Provisions\n\n Time shall be of the essence with respect to the giving of notices\nand other submissions under this Article. The right to receive any reimbursement\nunder this Article 6, in respect of Reimbursable Alterations shall be for the\nexclusive benefit of Tenant, it being the express intent of the parties hereto\nthat in no event shall such right be conferred upon or for the benefit of any\nthird party, including, without limitation, any contractor, subcontractor,\nmaterialman, laborer, architect, engineer, attorney or any other person, firm or\nentity.\n\n 6.6 Consideration by Tenant\n\n (a) Upon demand of Landlord, Tenant shall comply in all\nrespects with any reasonable and timely suggestions made by Landlord with\nrespect to construction matters relating to any Reimbursable Alteration, and\nshall correct any defect in the work in question or any material departure from\nthe Plans and Specifications for the work in question. Any dispute pursuant to\nthis Section 6.6(a) shall be determined by the Appropriate Engineer.\n\n (b) Tenant shall, within 10 Business Days after receipt of a\nstatement therefor (accompanied by true copies of the bills paid by Landlord),\nreimburse Landlord for all\n\n\n -36-\n 47\n\nreasonable out-of-pocket expenses incurred for the services of an architect or\nengineer making inspections of any Restoration.\n\n 6.7 Engineer; Appropriate Engineer\n\n (a) \"Engineer\" means each of the following:\n\n Syska & Hennessey Inc.\n\n Meyer Strong & Jones P.C.\n\n Jaros Baum & Bolles\n\n Robert Derector Associates\n\n Cosentini Associates\n\n Joseph Loring & Associates\n\n Weidlinger & Associates\n\n Purdy & Henderson Associates Inc.\n\n Weiskopf & Pickworth\n\n Gilsanz Murray Stefick LLP\n\n Office of James Ruderman LLP\n\n or\n\nsuch other independent engineering firm or firms having at least 15 years'\nexperience in first-class Manhattan office buildings as shall from time to time\nbe designated by Landlord to Tenant and approved by the other party (which\napproval shall not be unreasonably withheld or delayed; any dispute as to\nwhether Landlord or Tenant has unreasonably withheld or delayed such approval to\nbe determined by Expedited Arbitration).\n\n (b) Except as otherwise provided in Section 6.7(d),\n\"Appropriate Engineer\" means, in respect of any matter required by this Lease to\nbe determined by an Appropriate Engineer, such Engineer as Tenant may designate\nby notice (an \"Engineer Designation Notice\") to Landlord; provided, that if\nTenant shall fail to give an Engineer Designation Notice within 7 Business Days\nafter Tenant receives Landlord's request for the same, the \"Appropriate\nEngineer\" for the matter in question shall be such Engineer as Landlord may\ndesignate in a notice to Tenant delivered at any time prior to receipt by\nLandlord of such Engineer Designation Notice.\n\n (c) Each Appropriate Engineer shall make its determination or\nselection as promptly as reasonably practicable, but in any event within 20 days\nafter request therefor by Landlord or Tenant. Each determination or selection\nmade by an Appropriate Engineer pursuant to this Lease shall be final and\nbinding on Landlord and Tenant. Landlord and Tenant shall each pay one-half of\nthe fees and expenses of each Appropriate Engineer which is called upon to act\nhereunder.\n\n\n -37-\n 48\n\n (d) In respect of any determination to be made by the\nAppropriate Engineer under clause (i), (ii), (iii), (iv). (v), (vi), (vii) or\n(ix) of the last paragraph of Section 6.2 or any selection to be made by the\nAppropriate Engineer under Section 6.4(h), \"Appropriate Engineer\" mean such\nindependent Engineer or other independent engineering firm having at least 15\nyears' experience in first-class Manhattan office buildings as Landlord and\nTenant shall jointly designate (or if Landlord and Tenant shall be unable to\nagree upon such joint designation within five business days after request of\neither party to the other) as shall be designated by the American Arbitration\nAssociation or its successor. In such a case, each party shall pay one-half the\nfees and expenses of the American Arbitration Association or its successor.\n\n (e) \"Accountant\" means, in respect of any matter required by\nthe last sentence of Section 6.2 of this Lease to be determined by an\nAccountant, such independent certified public accountant who is a member of a\n\"Big-6\" accounting firm as Tenant may designate in a notice to Landlord and as\nmay be approved by Landlord (which approval shall not be unreasonably withheld\nor delayed); provided, that if Tenant shall fail to give such notice within 7\nBusiness Days after Tenant receives Landlord's request for the same, the\nAccountant for the matter in question shall be such independent certified public\naccountant who is a member of a \"Big-6\" accounting firm as Landlord may\ndesignate in a notice to Tenant delivered at any time prior to receipt by\nLandlord of Tenant's notice designating the Accountant and as may be approved by\nTenant (which approval shall not be unreasonably withheld or delayed). The\nAccountant shall make his or her determination as promptly as reasonably\npracticable, but in any event within 20 days after request therefor by Landlord\nor Tenant. Each determination made by an Accountant pursuant to this Lease shall\nbe final and binding on Landlord and Tenant. Landlord and Tenant shall each pay\none-half of the fees and expenses of any Accountant which is called to act\nhereunder. Any dispute as to whether Landlord or Tenant has unreasonably\nwithheld or delayed approval of an independent certified public accountant\ndesignated by the other party shall be determined by Expedited Arbitration.\n\n 7. Hazardous Substances\n\n If Tenant shall remove from the Leased Premises any Qualified\nHazardous Substances, then Landlord shall (subject to the last sentence of this\nArticle 7) reimburse Tenant for the actual reasonable costs incurred by Tenant\nto remove such Qualified Hazardous Substances, such reimbursement to be made\nwithin 30 days after Tenant notifies Landlord of the amounts incurred by Tenant,\nwhich notice shall be accompanied by paid invoices or other evidence reasonably\nsatisfactory to Landlord of the Costs incurred; provided, that the foregoing\nprovisions of this Article 7 shall not be applicable to any Reimbursable Removal\nof Hazardous Substances which are governed by the provisions of Article 6. As\nused in this Article 7 and in Article 6 the terms \"remove\" and \"removal\" (i)\nwhen used with respect to any Hazardous Substance used for fireproofing or other\npurpose necessary or appropriate for the continued occupancy and operation of\nthe Leased Premises as a first-class office building shall include the\nreplacement of such removed Hazardous Substance with suitable substitute\nmaterials, and (ii) when used with respect to any Hazardous Substance shall\ninclude, if Tenant shall elect, in lieu of removal, to enclose, encapsulate or\notherwise remediate such Hazardous Substance, such enclosure, encapsulation or\nother remediation. Notwithstanding the foregoing, in no event shall\n\n\n -38-\n 49\n\nLandlord have any obligation under this Article 7 to reimburse Tenant for the\ncosts of any Asbestos Removal Work or Refireproofing Work except to the extent\nthat Landlord fails to perform the same on or before (i) the Possession Date\nwith respect to any space other than the Stephaneze Premises or (ii) the\nStephaneze Possession Date, in the case of the Stephaneze Premises.\n\n 8. Utility Services\n\n (a) Tenant shall pay all charges for all public or private\nelectrical, steam, gas, fuel, power and other utility services at any time\nrendered to or in connection with the Leased Premises. Tenant shall be a direct\ncustomer of the utility companies providing such services. If any rebates or\nbenefits shall be available from the utility company as part of any utility\ncompany sponsored energy conservation program on account of the energy efficient\nnature of Tenant's lighting fixtures and\/or equipment, then Landlord, at\nTenant's sole expense, shall take such actions as Tenant may reasonably request\nto obtain such rebates or benefits and, if any such rebates or benefits are paid\nto or received by Landlord, Landlord shall promptly remit the same to Tenant.\nThe term \"ConEd\" shall refer to the electric utility from time to time\nfurnishing electricity to the Improvements.\n\n (b) Landlord hereby notifies Tenant that Landlord has applied for\nbenefits under the Lower Manhattan Energy Program (Article 2-I of the General\nCity Law) (the \"LMEP\") and a certification that the Improvements are an\n\"eligible building\" under subparagraph (a) of Section 25-aa of the General City\nLaw. Landlord shall be responsible for the preparation of all applications\n(including revised applications) and any other documents, certificates and\ninstruments that may be required to obtain such benefits and certification\nand\/or in order to maintain such benefits and certification in effect. Tenant\nshall, at Landlord's request, cooperate with Landlord's efforts to obtain such\nbenefits and certification (including, without limitation, the execution within\n5 Business Days after request of any forms required to be executed by Tenant or\notherwise customarily executed by similarly situated tenants and supplying such\ninformation not considered by Tenant to be confidential as may be necessary to\ncomplete such forms and as Landlord is unable to obtain itself), provided, that\nTenant shall not be required to alter, modify or delay the Base Building Upgrade\nWork or the Fit-Out Work or to alter its usage of electricity or alter in any\nmanner adverse to Tenant any electrical equipment in or serving the\nImprovements. Landlord shall pay to Tenant, within 30 days after demand,\nTenant's reasonable out-of-pocket costs and expenses (including without\nlimitation attorneys fees' and disbursements) incurred in reviewing such\napplications and such other documents, certificates and instruments, or\notherwise cooperating, at Landlord's request, with Landlord's efforts to obtain\nsuch benefits. In addition to all other rent required by this Lease to be paid\nby Tenant, Tenant shall pay to Landlord, within thirty (30) days of Tenant's\nreceipt of each ConEd bill for electricity service to the Improvements an amount\nequal to the reduction shown thereon as a result of the Improvements receiving\nbenefits under the LMEP. If the amount of any ConEd bill for electricity service\nto the Improvements shall reflect a reduction in the amount billed as a result\nof the Improvements receiving benefits under the LMEP, but the amount of such\nreduction is not shown thereon, the parties shall endeavor to agree upon the\namount of such reduction and, if they have not agreed upon such amount within\nfifteen (15) days after Tenant's receipt of such\n\n\n -39-\n 50\n\nConEd bill, the same shall be determined by arbitration. If in any such case the\namount of such reduction shall not have been agreed upon or determined by\narbitration by the date on which Tenant is required to make payment to Landlord\nunder this Section 8(b), Tenant shall make payment in accordance with Tenant's\ndetermination of such amount, subject to adjustment (plus interest thereon at\nthe Prime Rate from the 30th day after Tenant's receipt of the relevant ConEd\nbill to the date of payment of such adjustment) upon the amount of such\ndetermination being agreed upon or determined in arbitration.\n\n (c) Landlord hereby notifies Tenant that Landlord intends to apply\nto ConEd for ConEd's Business Incentive Rate (the \"BIR\"). Landlord shall be\nresponsible for the preparation of all applications (including revised\napplications) and any other documents, certificates and instruments that may be\nrequired to obtain the BIR and\/or in order to maintain the BIR in effect. Tenant\nshall, at Landlord's request, cooperate with Landlord's efforts to obtain the\nBIR (including, without limitation, the execution within 5 Business Days after\nrequest of any forms required to be executed by Tenant or otherwise customarily\nexecuted by similarly situated tenants and supplying such information not\nconsidered by Tenant to be confidential as may be necessary to complete such\nforms and as Landlord is unable to obtain itself), provided that Tenant shall\nnot be required to alter, modify or delay the Base Building Upgrade Work or the\nFit-Out Work or to alter its usage of electricity or alter in any manner adverse\nto Tenant any electrical equipment in or serving the Improvements. Landlord\nshall pay to Tenant, within 30 days after demand, Tenant's reasonable\nout-of-pocket costs and expenses (including without limitation attorneys fees'\nand disbursements) incurred in reviewing such applications and such other\ndocuments, certificates and instruments, or otherwise cooperating, at Landlord's\nrequest, with Landlord's efforts to obtain such benefits. In addition to all\nother rent required by this Lease to be paid by Tenant, Tenant shall, within\nthirty (30) days of Tenant's receipt of each ConEd bill for electricity service\nto the Improvements, furnish Landlord with a copy of such bill and pay to\nLandlord, an amount equal to the reduction shown thereon as a result of the\nImprovements receiving the BIR. If the amount of any ConEd bill for electricity\nservice to the Improvements shall reflect a reduction in the amount billed as a\nresult of the Improvements receiving the BIR, but the amount of such reduction\nis not shown thereon, the parties shall endeavor to agree upon the amount of\nsuch reduction and, if they have not agreed upon such amount within fifteen (15)\ndays after Tenant's receipt of such ConEd bill, the same shall be determined by\narbitration. If in any such case the amount of such reduction shall not have\nbeen agreed upon or determined by arbitration by the date on which Tenant is\nrequired to make payment to Landlord under this Section 8(c), Tenant shall make\npayment in accordance with Tenant's determination of such amount, subject to\nadjustment (plus interest thereon at the Prime Rate from the 30th day after\nTenant's receipt of the relevant ConEd bill to the date of payment of such\nadjustment) upon the amount of such determination being agreed upon or\ndetermined in arbitration.\n\n 9. Indemnification by Tenant\n\n (a) Tenant shall protect, indemnify and save harmless Landlord from\nand against all liabilities, obligations, claims, damages, penalties, causes of\naction, costs and expenses (including, without limitation, attorneys' fees and\nexpenses) imposed upon or incurred\n\n\n -40-\n 51\n\nby or asserted against Landlord or against the Leased Premises or any part\nthereof by reason of the occurrence or existence of any of the following during\nthe Term: (1) the conduct, management or possession of the Leased Premises or\nany part thereof, (2) any accident, injury to or death of persons or loss of or\ndamage to property occurring in, on or about the Leased Premises or any part\nthereof or the adjoining sidewalks, curbs, vaults and vault space, if any,\nstreets or ways, (3) any use, nonuse or condition of the Leased Premises or any\npart thereof or the adjoining sidewalks, curbs, vaults and vault space, if any,\nstreets or ways, (4) any failure on the part of Tenant to perform or comply with\nany of the terms, provisions or conditions of this Lease, (5) performance of any\nlabor or services or the furnishing of any materials or other property in\nrespect of the Leased Premises or any part thereof, (6) any negligence or\ntortious act or omission on the part of Tenant or any of its partners, agents,\ncontractors, servants, employees, licensees or invitees, (7) any negligence or\ntortious act or omission on the part of any subtenant of Tenant, or of any\npartners, agents, contractors, servants, employees, licensees or invitees of any\nsubtenant of Tenant, (8) any sublease of all or any part of the Leased Premises\nor (9) the execution by Landlord of any application, document or instrument\nunder Section 35(1) below.\n\n (b) In case any claim is made against Landlord or in case any\naction, suit or proceeding (a \"proceeding\") is brought against Landlord or the\nLeased Premises or any part thereof by reason of any of the foregoing, Landlord\nshall give prompt notice to Tenant and Tenant shall cause such claim or\nproceeding to be defended by counsel (\"Tenant's Counsel\") designated by Tenant\nand approved by Landlord (which approval shall not be unreasonably withheld).\nTenant shall have the right to control the defense and settlement of any such\nclaim or proceeding and shall not be required to indemnify Landlord from the\ncosts and expenses of any settlement agreed to without Tenant's consent;\nprovided, that Landlord shall have the right (i) to require Tenant and Tenant's\nCounsel to consult with Landlord and counsel retained and paid by Landlord, (ii)\nto assume control of the defense and settlement of any such claim or proceeding\nat any time if Landlord waives its right to be indemnified by Tenant on account\nthereof and (iii) to make any settlement without Tenant's consent if Landlord\npays the amount of such settlement and waives its right to be indemnified by\nTenant on account of the claim or proceeding to which such settlement relates;\nprovided, further, that Tenant shall not settle any claim or proceeding without\nLandlord's consent if such settlement requires an admission of liability (civil\nor criminal) on the part of Landlord. Landlord shall cooperate with Tenant, at\nTenant's expense, in the defense of any such claim or proceeding in such manner\nas Tenant may from time to time reasonably request.\n\n 10. Entry by Landlord\n\n Tenant shall permit Landlord to enter the Leased Premises or any part\nthereof at all reasonable times upon reasonable notice (except in case of\nemergency) for the purpose of inspecting the same or doing any work under\nArticles 7 and 19, and to keep and store all such materials therein as may be\nreasonably necessary or appropriate for any such purpose without the same\nconstituting a partial or complete, constructive or actual eviction (but nothing\ncontained herein shall create or imply any duty on the part of Landlord to do\nany work under Article 19). Landlord shall not have any duty to make any such\ninspection and shall not incur any liability or obligation by making or for not\nmaking any such inspection. Tenant shall also permit Landlord\n\n\n -41-\n 52\n\nto enter the Leased Premises or any part thereof at all reasonable times upon\nreasonable notice for the purposes of exhibiting the Leased Premises for sale or\nmortgage. In addition, Tenant shall permit Landlord to enter the Leased Premises\nor any part thereof at all reasonable times upon reasonable notice during each\nof the 24 month periods prior to any Termination Date and the 24 month period\nprior to the Expiration Date for purposes of exhibiting the Leased Premises for\nlease; provided, that with respect to Landlord exhibiting the Leased Premises\nprior to any particular Termination Date, if the time for exercising the\nTermination Option that would result in this Lease terminating on such\nTermination Date shall have lapsed without exercise by Tenant or if such\nTermination Option shall have been waived, Landlord shall no longer be permitted\nto enter the Leased Premises for purposes of exhibiting same for lease during\nsuch 24 month period. Any entry pursuant to this Article 10 shall be subject to\nthe condition that, except in case of emergency, if Tenant so desires, any\nrepresentative of Landlord shall be accompanied at all times by a representative\nof Tenant.\n\n 11. Payment of Taxes\n\n 11.1 Definitions\n\n (a) \"Base Tax Amount\" means, with respect to (i) the Third Rent\nPeriod, the Taxes (excluding any amounts described in Section 11.1(b)(ii)) for\nthe Tax Year beginning July 1, 2008 or such other date closest to and on or\nafter July 1, 2008 as may then be adopted as the beginning of the fiscal year\nfor real estate tax purposes for the City of New York and (ii) the Fourth Rent\nPeriod, the Taxes (excluding any amounts described in Section 11.1(b)(ii)) for\nthe Tax Year beginning July 1,2013 or such other date closest to and on or after\nJuly 1, 2013 as may then be adopted as the beginning of the fiscal year for real\nestate tax purposes for the City of New York.\n\n (b) \"Taxes\" means (i) the real estate taxes, vault taxes,\nassessments and special assessments levied, assessed or imposed upon or with\nrespect to the Project by any federal, state, municipal or other government or\ngovernmental body or authority and (ii) any expenses incurred by Landlord in\ncontesting such taxes or assessments and\/or the assessed value of the Project,\nwhich expenses shall be allocated to the Tax Year to which such expenses relate.\nIf at any time the method of taxation shall be altered so that in lieu of or as\na substitute for, the whole or any part of such real estate taxes, assessments\nand special assessments now imposed on real estate, there shall be levied,\nassessed or imposed (x) a tax, assessment, levy, imposition, fee or charge\nwholly or partially as a capital levy or otherwise on the rents received\ntherefrom, or (y) any other such substitute tax, assessment, levy, imposition,\nfee or charge, including without limitation, transit taxes, fees and\nassessments, then all such taxes, assessments, levies, impositions, fees or\ncharges or the part thereof so measured or based shall be included in \"Taxes\".\nIf Landlord is an entity exempt from the payment of taxes described, in clauses\n(i) and (ii), there shall be included in \"Taxes\" any amounts that such owner or\nTenant is obligated to pay in lieu of the taxes described in clauses (i) and\n(ii). \"Taxes\" shall not include (A) any franchise, capital stock or transfer tax\n(except to the extent franchise or capital stock taxes may be included in\n\"Taxes\" under the preceding provisions of this Section 11.1), (B) personal\nproperty taxes, (C) any business improvement district fees and charges, (D) all\ntaxes or charges imposed on Tenant\n\n\n -42-\n 53\n\nwith respect to the rentals payable under this Lease, including, without\nlimitation, the Commercial Rent or Occupancy Taxes imposed pursuant to Title 11,\nChapter 7 of the New York City Administrative Code, or (E) any water or sewer\ncharges, license fees, permit fees, inspection fees or similar charges, all of\nwhich taxes, charges and fees described in clauses (B) through (E), subject to\nthe provisions of Section 12.2 shall be payable directly by Tenant to the\napplicable taxing authority.\n\n (c) \"Tax Year\" means each period of 12 months, commencing on the\nfirst day of July of each such period, in which occurs any part of the Term, or\nsuch other period of 12 months occurring during the Term as hereafter may be\nadopted as the fiscal year for real estate tax purposes of the City of New York.\n\n 11.2 Payment of Taxes\n\n Landlord shall pay, before any fine, penalty, interest or cost may\nbe added for non-payment, all Taxes, and upon request shall furnish Tenant with\nan Officer's Certificate certifying to the payment of all Taxes and copies of\nofficial receipts or other proof of payment satisfactory to Tenant.\n\n 11.3 Initial Tax Payments\n\n On the first day of July, 1998 and on the first day of each and\nevery month thereafter through the end of the Second Rent Period, Tenant shall\npay to Landlord the respective monthly amounts set forth on Exhibit B (each, an\n\"Initial Tax Payment\"); provided, that if the term of this Lease shall\nterminate prior to the end of the Second Rent Period and on a day other than the\nlast day of the calendar month, the Initial Tax Payment for the month in which\nthe term of this Lease shall terminate shall be appropriately prorated. The\nInitial Tax Payments shall not be affected by any changes in the Taxes assessed\nagainst the Project, and Tenant shall have no right to share in any refund of\nTaxes received by Landlord with respect to any periods occurring prior to June\n30, 2008.\n\n 11.4 Extended Tax Payments\n\n (a) During each of the Third Rent Period and the Fourth Rent Period,\nif Taxes for any Tax Year exceed the Base Tax Amount applicable to such period,\nTenant shall pay to Landlord (each, an \"Extended Tax Payment\"; Initial Tax\nPayments and Extended Tax Payments are collectively called \"Tax Payments\") the\namount by which Taxes for such Tax Year are greater than the applicable Base Tax\nAmount. If there shall be any increase in the Taxes for any Tax Year, whether\nduring or after such Tax Year, or if there shall be any decrease in the Taxes\nfor any Tax Year, the Extended Tax Payments for such Tax Year shall be\nappropriately adjusted and paid or refunded, as the case may be, in accordance\nherewith. In no event, however, shall Taxes be reduced below the applicable Base\nTax Amount.\n\n (b) If Landlord shall receive a refund of Taxes for any Tax Year in\nrespect of which Tenant has paid Extended Tax Payments, Landlord shall pay to\nTenant the net refund (i.e., after deducting the costs and expenses of obtaining\nthe same, including, without limitation,\n\n\n -43-\n 54\n\nappraisal, accounting, consulting and legal fees, to the extent that such costs\nand expenses were not included in the Taxes for such Tax Year); provided, that\nsuch payment to Tenant shall in no event exceed Tenant's Tax Payment paid for\nsuch Tax Year. If Landlord shall have received from the taxing authority any\ninterest on such refund, Landlord shall also pay to Tenant the portion of such\ninterest allocable to the portion of the refund being paid to Tenant.\n\n (c) If the Taxes comprising the applicable Base Tax Amount are\nreduced as a result of an appropriate proceeding or otherwise, the Taxes as so\nreduced shall for all purposes be deemed to be the Base Tax Amount and Landlord\nshall notify Tenant of the amount by which the Tax Payments previously made were\nless than the Tax Payments required to be made under this Section 11.3, and\nTenant shall pay the deficiency within 10 days after demand therefor.\n\n (d) Subject to the provisions of this Section 11.4(d), Landlord\nshall have the sole right to contest the assessed valuation of the Project for\neach Tax Year and to control the prosecution or settlement of such contest.\nNotwithstanding the foregoing, Landlord shall not settle any tax reduction\nproceedings with respect to any Tax Year commencing on or after July 1, 2009\nwithout Tenant's consent, which consent (x) shall not be unreasonably withheld\nand (y) if Landlord's request for consent shall include the following statement\nin block capital letters:\n\n THIS NOTICE IS BEING GIVEN UNDER SECTION 11.4 OF OUR\n LEASE WITH YOU AND SEEKS YOUR CONSENT TO A PROPOSED\n SETTLEMENT OF TAX REDUCTION PROCEEDINGS. YOUR FAILURE TO\n GIVE NOTICE DENYING YOUR CONSENT WITHIN TEN DAYS AFTER\n THE DATE OF THIS NOTICE\n\nshall be deemed granted if not withheld in writing within 10 days after request\nby Landlord. If on or before the 60th day prior to the last day on which a party\nmay contest the assessed valuation of the Project with respect to any such Tax\nYear commencing on or after July 1, 2009, Tenant (by notice referring to this\nSection 11.4(d)) shall request that Landlord advise Tenant whether or not\nLandlord will contest the assessed valuation of the Project with respect to such\nTax Year, then (i) if Landlord shall not on or before the 30th day prior to such\nlast day advise Tenant that Landlord will contest the assessed valuation of the\nProject with respect to such Tax Year then (subject to the last sentence of this\nSection 11.4(d)) Tenant shall have the sole right to do so and to control the\nprosecution or settlement of such contest, and (ii) if Landlord shall on or\nbefore the 30th day prior to such last day advise Tenant that Landlord will\ncontest the assessed valuation of the Project with respect to such Tax Year then\nLandlord shall do so. In any instance where pursuant to the foregoing provisions\nof this Section 11.4(d) any such action or proceeding is being undertaken by\nTenant, (x) Landlord shall cooperate with Tenant, execute any and all documents\nreasonably required in connection therewith and, if required by Legal\nRequirements, join with Tenant in the prosecution thereof, and (y) Tenant shall\nbe entitled to recover first out of any refund obtained the costs and expenses\nof obtaining the same, including, without limitation, appraisal, accounting,\nconsulting and legal fees and the balance of such refund shall be apportioned\nbetween the parties subject to the provisions of Section 11.4(b).\nNotwithstanding the foregoing, Tenant shall not settle any tax reduction\nproceedings brought by Tenant pursuant to\n\n\n -44-\n 55\n\nclause (i) above without Landlord's consent, which consent (x) shall not be\nunreasonably withheld and (y) if Tenant's request for consent shall include the\nfollowing statement in block capital letters:\n\n THIS NOTICE IS BEING GIVEN UNDER SECTION 11.4 OF\n OUR LEASE WITH YOU AND SEEKS YOUR CONSENT TO A\n PROPOSED SETTLEMENT OF TAX REDUCTION\n PROCEEDINGS. YOUR FAILURE TO GIVE NOTICE\n DENYING YOUR CONSENT WITHIN TEN DAYS AFTER\n THE DATE OF THIS NOTICE\n\nshall be deemed granted if not withheld in writing within 10 days after request\nby Tenant.\n\n 11.5 General Provisions Applicable to Taxes\n\n (a) The Extended Tax Payment for each Tax Year shall be due and\npayable in installments in the same manner that Taxes for such Tax Year are due\nand payable by Landlord, whether to the City of New York or to a Superior\nMortgagee. Tenant shall pay each such installment no later than the later of (i)\n10 days after the rendering of a statement therefor by Landlord to Tenant, or\n(ii) 20 days prior to the date on which the corresponding installment of Taxes\nare due. The statement to be rendered by Landlord shall set forth in reasonable\ndetail the computation of the particular installment being billed.\n\n (b) Landlord's failure to render or delay in rendering any\nstatement with respect to any Tax Payment or installment thereof shall not\nprejudice Landlord's right to thereafter render such a statement, nor shall the\nrendering of a statement for any Tax Payment or installment thereof prejudice\nLandlord's right to thereafter render a corrected statement therefor.\n\n (c) Except for amounts included in Taxes, subject to the\nprovisions of Section 12.2 Tenant shall pay, before any fine, penalty, interest\nor cost may be added for nonpayment, (i) all personal property taxes, (ii) all\nbusiness improvement district fees and charges, (iii) all taxes or charges\nimposed on Tenant with respect to the rentals payable under this Lease,\nincluding, without limitation, the Commercial Rent or Occupancy Taxes imposed\npursuant to Title 11, Chapter 7 of the New York City Administrative Code, and\n(iv) all water or sewer charges, license fees, permit fees, inspection fees or\nsimilar charges, (collectively, \"Tenant Impositions\").\n\n 11.6 Industrial and Commercial Incentive Program\n\n Landlord hereby notifies Tenant that Landlord intends to avail\nitself of the Industrial and Commercial Incentive Program (\"ICIP\") with respect\nto the Base Building Upgrade Work and the Fit-Out Work to the extent in either\ncase that the same qualify for the ICIP. In contracting pursuant to the Initial\nImprovements Agreement for the Base Building Upgrade Work and, to the extent\nthat the same qualifies for the ICIP, the Fit-Out Work, Tenant shall include\nprovisions requiring all of the construction managers, contractors and\nsubcontractors to comply with the New York City Office of Labor\nServices\/Construction\n\n\n -45-\n 56\n\nDivision (\"OLS\") requirements applicable to construction projects benefiting\nfrom the ICIP. Such compliance, as of the date hereof, includes the following:\nthe submission and approval of a Construction Employment Report, attendance at a\npre-construction conference with representatives of the OLS and adherence to the\nprovisions of Article 22 of the ICIP Rules and Regulations, the provisions of\nNew York City Charter Chapter 13-B and the provisions of Executive Order No. 50\n(1980). Furthermore, at Landlord's request, Tenant shall (A) report to Landlord\nthe number of workers permanently engaged in employment in the Leased Premises,\nthe nature of each worker's employment and, to the extent applicable, the New\nYork City residency of each worker, (B) provide access to the Leased Premises by\nemployees and agents of the Department (as such term is defined in the ICIP\nRules and Regulations) at all reasonable times, and (C) enforce the contractual\nobligations of such construction managers, contractors and subcontractors to\ncomply with the OLS requirements. Landlord shall be responsible for the\npreparation of all applications (including any revised applications),\ncertificates of continuing eligibility and any other documents, certificates and\ninstruments that may be required in order to obtain benefits under the ICIP\nand\/or in order to maintain the benefits in effect. Tenant shall, at Landlord's\nrequest, (i) make available to Landlord the Plans and Specifications and all\ncost records relative to the Base Building Upgrade Work and the Fit-Out Work,\nand (ii) otherwise cooperate with Landlord's efforts to obtain such benefits\n(including, without limitation, the execution within 5 Business Days after\nrequest of any forms required to be executed by Tenant or otherwise customarily\nexecuted by similarly situated tenants), provided, that Tenant shall not be\nrequired to alter, modify or delay the Base Building Upgrade Work or the Fit-Out\nWork. Landlord shall pay to Tenant, within 30 days after demand, Tenant's\nreasonable out-of-pocket costs and expenses (including, without limitation,\nattorneys' fees and disbursements) incurred in reviewing such applications,\ncertificates of continuing eligibility and such other documents, certificates\nand instruments, or otherwise cooperating, at Landlord's request, with\nLandlord's efforts to obtain such benefits. All benefits obtained under ICIP\nshall, to the extent legally permissible, accrue to Landlord (and if paid to or\nreceived by Tenant, Tenant shall pay same to Landlord). Landlord shall indemnify\nand hold harmless Tenant from and against any and all liability, damages,\nclaims, costs or expenses (including legal fees) incurred by or asserted against\nTenant by reason of or arising out of to the ICIP, any benefits granted\nthereunder, or any application, certificates, documents or instruments prepared\nor filed in connection therewith unless such liability, damages, claims, cost or\nexpenses arise out of Tenant's failure to comply with Article 11.\n\n 12. Compliance with Legal and Insurance Requirements and Permitted\n Encumbrances\n\n 12.1 Generally\n\n Subject to the Provisions of Article 6 and Section 12.2, Tenant\nshall promptly comply (at Tenant's expense, unless the need for such compliance\narises out of any act, omission, negligence or intentional misconduct of\nLandlord or any agent, employee, contractor, licensee of Landlord, in which case\nLandlord shall reimburse Tenant for the costs of compliance within 30 days after\nsubmission by Tenant to Landlord of invoices evidencing the costs of compliance)\nwith all Legal Requirements, Insurance Requirements and Permitted Encumbrances\n\n\n -46-\n 57\n\n(exclusive of the lease described in item 1 of Exhibit C (the \"Ground Lease\")\nand mortgages and related documents described in items 2, 3, 4 and 5 of Exhibit\nC (the \"Pre-Existing Mortgages\"), as to which Tenant's obligations shall be only\nas provided in Section 12.3), whether or not compliance therewith shall require\nAlterations or interfere with the use and enjoyment of the Leased Premises or\nany part thereof.\n\n 12.2 Permitted Contests\n\n Tenant, without Landlord's consent may contest, by appropriate legal\nproceedings conducted in good faith and with due diligence, the amount or\nvalidity or application, in whole or in part, of any Tenant Imposition, Legal\nRequirement, or Permitted Encumbrance and may withhold payment or performance of\nthe same pending such contest, provided, that (a) such proceedings shall suspend\nthe collection thereof from Landlord and the Leased Premises or any part\nthereof, (b) neither the Leased Premises nor any part thereof or interest\ntherein would be in any danger of being sold, forfeited or lost, (c) Landlord\nshall not be in any danger of any criminal liability by reason thereof and (d)\nin the case of a contest involving any Legal Requirement or any Permitted\nEncumbrance, if at any time Landlord determines that Landlord is in danger of\nany civil liability in an amount in excess of one year's Basic Rent, Tenant\nshall (within 5 Business Days after Tenant receives Landlord's request therefor)\nfurnish to Landlord such security against such civil liability as Landlord may\nreasonably request. Tenant shall give prompt notice to Landlord of the\ncommencement of or of Tenant's desire to commence any contest permitted by the\npreceding sentence and Landlord shall, at Tenant's expense, reasonably cooperate\nwith Tenant with respect to any such contest and, if in connection with the\ncommencement, prosecution or settlement of such contest only Landlord can\nexecute any report, certificate, instrument, application or other document or\ntake any other action, in each case reasonably required in connection with such\ncontest, then, upon Tenant's request and at Tenant's expense, Landlord shall\nexecute or take the same. If in connection with any such request Landlord\nconsults with an engineer, an attorney or other professional, Tenant shall,\nwithin 10 days after Tenant's receipt of demand therefor accompanied by copies\nof the bills paid by Landlord, reimburse Landlord for the reasonable\nout-of-pocket expenses incurred by Landlord for the services of such\nprofessionals. If such professional advises Landlord in writing that Landlord's\nexecuting such document or taking such action might result in the Leased\nPremises or any part thereof or interest therein being sold, forfeited or lost\nor in Landlord becoming criminally liable, and if such professional furnishes a\nreasonably detailed explanation of the foregoing and the reasons therefor,\nLandlord shall promptly advise Tenant and furnish Tenant with a copy of such\nprofessional's advice and explanation and Landlord need not execute such\ndocument or take such action. If, while contesting any amount, Tenant withholds\npayment of the same, Tenant shall maintain the amount withheld (together with\npenalties and interest from time to time accruing thereon) on deposit in a\nseparate interest bearing account in Landlord's name with a bank or trust\ncompany selected by Tenant having an office in the Borough of Manhattan and a\ncombined shareholders equity of at least $200 million (or, if Tenant and\nLandlord so agree, with Landlord). If any of the conditions set forth in the\nproviso to the first sentence of this Section 12.2 are violated, Landlord shall\nbe entitled to withdraw the funds on deposit in said account in order to make\npayment of the amount being contested. All interest earned on funds in such an\naccount shall be credited to such account and Tenant shall pay all taxes\nthereon. Upon termination or\n\n\n -47-\n 58\n\nsettlement of such contest, any required payment of the amount contested shall\nbe made from such account and the balance remaining in such account shall be\npaid to Tenant. If the amount in the account is insufficient, Tenant shall pay\nthe amount of the deficiency.\n\n 12.3 Ground Lease and Pre-Existing Mortgages. Landlord shall comply\nwith the Ground Lease and the Pre-Exiting Mortgages; provided, that this Section\n12.3 shall not be deemed to release Tenant from or require Landlord to perform\nany of Tenant's obligations under this Lease and if and to the extent that any\naction is required to be taken both by Landlord as tenant under the Ground Lease\nor mortgagor under the Pre-Existing Mortgages and by Tenant as tenant hereunder,\nsuch action shall be taken by Tenant hereunder at Tenant's expense.\nNotwithstanding the foregoing, Landlord shall be solely responsible for the\npayment of (i) the net annual rental payable under the Ground Lease, and (ii)\nall principal and interest on any debt secured by any of the Pre-Existing\nMortgages. If and to the extent that Landlord shall be required by the\nprovisions of this Section 12.3 to perform any work in or to the Leased\nPremises, Tenant shall have the right to perform such work at Landlord's\nexpense, in which case Landlord shall reimburse Tenant for the reasonable costs\nof performance within 30 days after submission by Tenant to Landlord of invoices\nevidencing the costs of performance. Landlord shall exercise all renewal options\nrequired to keep the Ground Lease in effect so long as this Lease is in effect.\nIf Landlord shall acquire the lessor's interest under the Ground Lease, Landlord\nshall have the right to terminate the same and, if Landlord acquires such\ninterest and terminates the Ground Lease, this Lease shall continue in full\nforce and effect, except that all provisions relating to the Ground Lease shall\nbe deemed deleted.\n\n 13. Liens\n\n (a) Within 60 days after the date on which Landlord gives Tenant\nnotice, referring to this Article 13 and Section 19(a)(v), of the existence of\nany mechanic's, laborer's or materialman's lien, any lien arising under any\nPermitted Encumbrance or any security interest which might be or become a lien,\nencumbrance or charge upon the Leased Premises or any part thereof (other than\nany such lien, encumbrance or charge caused by Landlord) and directs Tenant to\nremove or discharge the same, Tenant shall either (i) remove or discharge the\nsame, by bonding or otherwise, or (ii) if Landlord shall consent thereto,\nprovide Landlord with an unconditional and irrevocable letter of credit (issued\nby a New York Clearing House Association member bank satisfactory to Landlord\nand in form satisfactory to Landlord) or other security satisfactory to Landlord\nindemnifying Landlord against such lien or security interest.\n\n (b) Nothing contained in this Lease shall be deemed or construed in\nany way as constituting the consent or request of Landlord, express or implied\nby inference or otherwise, to any contractor, subcontractor, laborer or\nmaterialman for the performance of any labor or the furnishing of any materials\nfor any specific improvement, alteration to or repair of the Leased Premises or\nany part thereof.\n\n 14. Insurance\n\n\n -48-\n 59\n\n 14.1 Risks to be Insured\n\n (a) Tenant shall maintain or cause to be maintained with insurers\nand pursuant to insuring agreements approved by Landlord:\n\n (i) insurance with respect to all buildings,\nimprovements, equipment and machinery constituting a part of the Leased Premises\nagainst loss or damage by perils customarily included under standard \"all-risk\"\npolicies (including specifically damage by water), in amounts sufficient to\nprevent Landlord or Tenant from becoming a co-insurer of any partial loss under\nthe applicable policies, and in any event in amounts not less than 90% of the\nthen full replacement cost (without deducting depreciation) of such buildings,\nimprovements, equipment and machinery (exclusive of the costs of foundations,\nexcavations and footings) (the \"full replacement cost\") as determined at the\nrequest of Tenant (or at the request of Landlord, made not sooner than one year\nafter the previous determination), and (in either case) at Tenant's expense by\nthe insurer or insurers or by an expert selected by Tenant and approved by\nLandlord;\n\n (ii) boiler and machinery coverage, either, as Tenant\nshall elect, as part of the policy referred to in clause (i) of this Section\n14.1(a) or, if by a secondary policy, in an amount not less than $100,000,000 or\nsuch greater amount as Landlord may reasonably require by notice to Tenant (the\ninsurance described in clause (i) above and this clause (ii) is collectively\ncalled \"Property Insurance\");\n\n (iii) commercial general liability insurance, including\nbroad form bodily injury, personal injury, property damage and blanket\ncontractual insurance, against claims arising out of or connected with the\npossession, use, operation or condition of the Leased Premises with a combined\nsingle limit of not less than $100,000,000 (or, such greater amount as Landlord\nmay reasonably require by notice to Tenant) for all claims with respect to\nbodily injury, property damage and personal injury with respect to any one\noccurrence;\n\n (iv) appropriate builder's risk insurance with respect\nto any Alterations (including, without limitation, any Restoration) or other\nwork on or about the Leased Premises or any part thereof;\n\n (v) appropriate workers compensation and employer's\nliability insurance with respect to any Alteration (including, without\nlimitation, any Restoration) or other work on or about the Leased Premises or\nany part thereof; and\n\n (vi) such other insurance with respect to the Leased\nPremises or any part thereof in such amounts and against such insurable\ncasualties as Landlord from time to time may reasonably require by notice to\nTenant.\n\n (b) All insurance required to be maintained under clause (ii) or\n(iii) of Section 14.1(a) may be subject to a deductible of not more than the\nDeductible Amount. Landlord shall not unreasonably withhold any of the approvals\nreferred to in Section 14.1(a). Any dispute whether Landlord has unreasonably\nwithheld such an approval and any dispute regarding the dollar amounts of the\nlimits of coverage under clause (ii) or (iii) of Section 14.1(a)\n\n\n -49-\n 60\n\nand any dispute under clause (iv), (v), or (vi) of Section 14.1(a) shall be\nresolved by arbitration. Pending the outcome of such arbitration, Tenant may act\nas if the dispute had been resolved in its favor.\n\n (c) The insurance required to be maintained by Tenant under\nclause (i) of Section 14.1(a) shall also include (1) flood coverage of not less\nthan $25 million, (2) earthquake coverage of not less than $25 million, (3)\nbroad form water coverage (including backup of sewers and drains) of not less\nthan $5 million, (4) demolition coverage of not less than $10 million, (5)\nincreased cost of construction coverage of not less than $10 million, and (6)\nlaw and ordinance coverage of not less than $10 million.\n\n (d) Whenever in connection with any Alterations Tenant causes\nits general contractor to name Tenant as an insured under any commercial general\nliability insurance, Tenant shall also cause its general contractor also so to\nname Landlord.\n\n 14.2 Policy Provisions\n\n All insurance maintained by Tenant pursuant to Section 14.1(a)\nshall: (a) except for any workers' compensation insurance and employers'\nliability insurance, name as insureds, as their respective interests may appear,\nLandlord and Tenant and any Superior Mortgagee who shall have executed and\ndelivered a Non-Disturbance Agreement; (b) include a stipulation that premiums\nwill be paid by and are the responsibility of Tenant; (c) except for any\ncomprehensive general liability, worker's compensation insurance or employer's\nliability insurance, provide that no act or omission of Tenant shall impair or\naffect the rights of the insureds to receive and collect the proceeds under the\nrelevant policy; and (d) provide that no cancellation, reduction in amount or\nmaterial change in coverage thereof shall be effective until at least 30 days\nafter receipt by Landlord of written notice thereof. Tenant shall have the sole\nauthority to settle claims under insurance policies; provided, that in case of\nany damage or destruction affording Tenant the right to terminate this Lease\npursuant to Section 15.4(a), Tenant may not settle all or any of the claims\nunder the policies referred to in clauses (i), (ii), (iv) or (vi) of Section\n14.1(a) arising from any damage or destruction unless it shall waive such right\nwith respect to such damage or destruction. Tenant may obtain any of the\ninsurance required hereby under blanket or umbrella policies; provided, that any\nsuch policy of insurance provided for under clauses (i), (ii), (iv) or (vi) of\nSection 14.1(a): (i) shall permit recovery in the amount required by the clause\nin question to be carried without regard to other insured events with respect to\nother properties, and (ii) shall not contain any clause which would result in\nthe insured thereunder being required to carry insurance with respect to the\nproperty covered thereby in an amount equal to a minimum specific percentage of\nthe full insurable value of such property in order to prevent the insured\ntherein named from becoming a co-insurer of any loss with the insurer under such\npolicy.\n\n Tenant shall also cause the members, partners or shareholders of\nLandlord whose names shall have been furnished to Tenant and, so long as The\nWitkoff Group LLC is an affiliate of Landlord, The Witkoff Group LLC as\nadditional named insureds under the insurance required to be maintained by\nTenant under clause (iii) of Section 14.1(a).\n\n\n -50-\n 61\n\n 14.3 Delivery of Insurance Certificates; Payment of Premium\n\n On the date hereof and not less than 7 days prior to each policy\nexpiration Tenant shall deliver to Landlord certificates of all insurance\npolicies required by this Lease to be maintained. Tenant shall pay all premiums\non each such insurance policy within the time required under such policy and\nfurnish Landlord with evidence of payment thereof within 10 Business Days after\npayment.\n\n 14.4 No Limitation of Damages\n\n Landlord shall not be limited in the proof of any damages which\nLandlord may claim against Tenant arising out of or by reason of Tenant's\nfailure during the Term (or thereafter in case of insurance required to be\nprovided under Section 15.4(k)) to provide and keep in force the insurance\nrequired under this Lease to the amount of the insurance premium or premiums not\npaid or incurred by Tenant and which would have been payable upon such\ninsurance, but Landlord shall also be entitled to recover as damages for such\nbreach the uninsured amount of any loss to the extent of any deficiency between\nthe insurance required by the provisions of this Lease and the insurance carried\nby Tenant, together with all costs and expenses incurred by Landlord which\nLandlord would not have incurred if the required insurance had been maintained\nby Tenant. However, any such damages so recovered by Landlord shall be subject\nto and limited by the provisions of Article 25.\n\n 15. Damage to or Destruction of Property\n\n 15.1 Waiver of ss. 227; Tenant to Give Notice\n\n Tenant hereby waives the provisions of Article 227 of the Real\nProperty Law and confirms that the provisions of this Article 15 shall govern\nand control in lieu thereof. In case of any damage to or destruction of the\nLeased Premises or any part thereof, if, in Tenant's reasonable opinion, the\ncost to repair or rebuild the same will exceed $1,000,000, Tenant shall promptly\ngive notice thereof to Landlord, generally describing the nature and extent of\nsuch damage or destruction.\n\n 15.2 Restoration\n\n In case of any damage to or destruction of the Leased Premises or\nany part thereof, this Lease shall continue in full force and effect without\nabatement of any Basic Rent, Supplemental Rent or other amounts payable by\nTenant hereunder. Tenant, whether or not the insurance proceeds, if any, on\naccount of such damage or destruction shall be sufficient for the purpose, shall\n(subject to the applicable provisions of Article 6 and Section 15.4(c))\npromptly commence and proceed with due diligence to complete the restoration,\nreplacement or rebuilding of the Leased Premises (which may include demolition\nof the remaining portions of the Leased Premises prior to rebuilding) as nearly\nas possible to its condition immediately prior to such damage or destruction\nwith such Voluntary Alterations as Tenant shall (subject to the applicable\nprovisions of Article 6) elect (such restoration, replacement and rebuilding,\ntogether with any\n\n\n -51-\n 62\n\ntemporary repairs and protection pending completion of the work, being herein\ncalled \"Restoration\").\n\n 15.3 Application of Insurance Proceeds\n\n (a) Promptly after the occurrence of any damage to or destruction of\nthe Leased Premises or any part thereof the insurance proceeds with respect to\nwhich are expected by Tenant to exceed the Significant Proceeds Amount, Tenant\nby notice to Landlord and the institution appointed, shall appoint a depositary\nof the insurance proceeds under this Section 15.3 (the \"Depositary\"). Without\nlimiting the foregoing, Tenant may appoint a Depositary at any other time. The\nDepositary shall be a bank or trust company having an office in the Borough of\nManhattan and a combined shareholders equity of at least $200 million. Funds\nheld by the Depositary shall be invested by the Depositary, upon the\ninstructions of Tenant, in Permitted Investments.\n\n (b) All insurance proceeds on account of any damage to or\ndestruction of the Leased Premises or any part thereof shall be payable as\nfollows:\n\n (i) to Tenant, to the extent that such proceeds are\nequal to or less than the Significant Proceeds Amount, and\n\n (ii) to the Depositary, to the extent that such proceeds\nare in excess of the Significant Proceeds Amount;\n\nprovided, that if an Event of Default shall have occurred and be continuing, the\namounts paid or payable to Tenant in accordance with the foregoing clause (i)\nshall be paid to the Depository and shall (without the necessity of Tenant's\ncompliance with the provisions of Article 17) be returned (together with the\ninterest thereon) to Tenant only upon the curing of such Event of Default, but\nless the portion, if any, applied and disbursed by the Depositary in accordance\nwith the provisions of Article 17.\n\n 15.4 Termination in Lieu of Restoration\n\n (a) If:\n\n (i) (x) after September 30, 2004 the Leased Premises shall be so\n damaged or destroyed that the Costs of Restoration shall\n exceed the product of $10,000,000 multiplied by a fraction\n whose numerator is the Index for the month which is three\n months prior to the month in which the damage or destruction\n occurred and whose denominator is the Index for April, 1997,\n and (y) on the date of such damage or destruction Tenant's\n right to terminate this Lease as of June 30, 2008 shall not\n have lapsed without exercise,\n\n (ii) (x) after September 30, 2009 the Leased Premises shall be so\n damaged or destroyed that the Costs of Restoration shall\n exceed the\n\n\n -52-\n 63\n\n product of $10,000,000 multiplied by a fraction whose\n numerator is the Index for the month which is three months\n prior to the month in which the damage or destruction occurred\n and whose denominator is the Index for April, 1997, and (y) on\n the date of such damage or destruction Tenant's right to\n terminate this Lease as of June 30, 2013 shall not have lapsed\n without exercise,\n\n (iii) after September 30, 2014 the Leased Premises shall be so\n damaged or destroyed that the Costs of Restoration shall\n exceed the product of $10,000,000 multiplied by a fraction\n whose numerator is the Index for the month which is three\n months prior to the month in which the damage or destruction\n occurred and whose denominator is the Index for April, 1997,\n or\n\n (iv) at any time the Leased Premises shall be so damaged or\n destroyed that 50% or more of the useable area thereof cannot,\n with the exercise by Tenant of all due diligence, be rendered\n tenantable and fit for the normal conduct of business within\n 90 days after the date of the damage or destruction (the\n condition described in this clause (iv) being called \"50%\n Untenantability\"),\n\nthen (subject to the further provisions of this Section 15.4) Tenant may, by\nnotice (the \"Damage Termination Notice\") to Landlord given within the 180-day\nperiod (the \"Election Period\") following the date (the \"Damage Date\") of damage\nor destruction, elect to terminate this Lease as of a date specified in the\nDamage Termination Notice (the \"Specified Damage Termination Date\"), which\nSpecified Damage Termination Date shall be no earlier than 20 days after the\ngiving of such Damage Termination Notice and no later than one year after the\ngiving of such Damage Termination Notice.\n\n (b) If Tenant shall timely give the Damage Termination Notice then,\nsubject to Section 15.4(i), this Lease shall terminate on the Specified Damage\nTermination Date; provided, that if on or prior to the date which is 15 days\nafter the giving of such Damage Termination Notice Landlord shall by notice to\nTenant dispute Tenant's right to terminate this Lease pursuant to Section\n15.4(a), the matter shall be determined by the Appropriate Engineer and (i) if\nthe Appropriate Engineer's determination is in Landlord's favor, then this Lease\nshall continue in full force and effect or (ii) if the Appropriate Engineer's\ndetermination is in Tenant's favor, then, subject to Section 15.4(i), this Lease\nshall terminate effective as of the Specified Damage Termination Date. At any\ntime at the request of Landlord or Tenant, the Appropriate Engineer shall make a\ndetermination as to whether Tenant has the right to terminate this Lease\npursuant to this Section 15.4.\n\n (c) At all times prior to the giving of the Damage Termination\nNotice, Tenant shall prosecute the Restoration with all due diligence and in\naccordance with the Plans and Specifications therefor (as approved by Landlord\nor as determined by the Appropriate Engineer to have been required to be\napproved by Landlord pursuant to this Lease); provided, that unless\n\n\n -53-\n 64\n\n (i) Tenant waives in writing Tenant's termination right under this\n Section 15.4 with respect thereto, or\n\n (ii) Tenant does not give the Damage Termination Notice on or prior\n to the end of the applicable Election Period,\n\nTenant shall not be obligated to (i) expend more than the Significant Proceeds\nAmount with respect to the Restoration of such damage or destruction, or (ii)\nexpend any Costs which are not Qualified Restoration Costs. The term \"Qualified\nRestoration Costs\" shall mean Costs of any Restoration to the extent undertaken\nto (i) secure or prevent further damage to the Leased Premises and\/or (ii)\neffect Restoration of Building systems but only to the extent the same are not\nlocated in any area designed for tenant occupancy.\n\n (d) Simultaneously with the giving of the Damage Termination Notice,\nTenant shall:\n\n (i) assign to Landlord (by instruments reasonably satisfactory to\n Landlord) all of Tenant's right, title and interest in and to\n the Plans and Specifications (if any) for the Restoration;\n\n (ii) assign to Landlord (by instruments reasonably satisfactory to\n Landlord) all of Tenant's right, title and interest in and to\n that portion (if any) of the proceeds of Tenant's Property\n Insurance which has not yet been received by Tenant from the\n insurer (provided, that if and when Landlord receives such\n portion of the proceeds of Tenant's Property Insurance from\n the insurer, Landlord shall, within 10 Business Days after\n receipt of a request therefor from Tenant, pay to Tenant an\n amount equal to the lesser of (x) such portion of the proceeds\n of Tenant's Property Insurance received by Landlord from the\n insurer or (y) the amount, if any, by which the aggregate\n amount expended by Tenant for Qualified Restoration Costs in\n connection with the Restoration on or prior to the date of the\n Damage Termination Notice exceeds the sum of (l) the portion\n of the proceeds of Tenant's Property Insurance (if any)\n received by Tenant from the insurer on or prior to the date of\n the Damage Termination Notice and (2) the Deductible Amount\n under the insurance policy required to be maintained by Tenant\n under Section 14.1(a));\n\n (iii) pay to Landlord, in immediately available funds, an amount\n (the \"Damage Payment\") equal to the sum of the positive\n remainder, if any, obtained by subtracting the aggregate\n amount theretofore expended by Tenant for Qualified\n Restoration Costs in connection with the Restoration from the\n sum of (A) that portion (if any) of the proceeds of Tenant's\n Property Insurance which Tenant received from the insurer on\n or prior to the date of the Damage Termination Notice plus (B)\n the Deductible Amount under the insurance policy required to\n be maintained by Tenant under Section 14.1(a) (the computation\n of the payment under\n\n\n -54-\n 65\n\n this clause (iii) shall not be affected by any amount of\n proceeds of Tenant's Property Insurance that Tenant may have\n spent on other than Qualified Restoration Costs) ; and\n\n (iv) if the insurance policy required to be maintained by Tenant\n under Section 14.1(a) was for less than the full replacement\n cost most recently determined pursuant to said Section,\n deposit with the Depositary, in immediately available funds,\n an amount equal to the excess of (x) the amount which would\n have been recoverable from the insurer if such policy had been\n for the full replacement cost most recently determined\n pursuant to said Section over (y) the amount which is\n recoverable from the insurer under such policy on account of\n the damage or destruction.\n\n If the insurer under the insurance policy required to be maintained\nby Tenant under Section 14.1(a) shall pay to Tenant any amount which is required\nby Section 15.3 to be paid to the Depositary, Tenant shall immediately deposit\nsuch amount with the Depositary.\n\n (e) Subject to Section 15.4(f), during the period commencing on the\ndate of the Damage Termination Notice and ending on the Specified Damage\nTermination Date, Landlord shall have full control over the Restoration and may\nuse the Damage Payment and the amounts on deposit with the Depositary to defray\nthe costs of the Restoration. Landlord and Tenant shall reasonably cooperate\nwith one another to effectuate the Restoration in an efficient manner, and\nduring the Restoration Landlord shall use reasonable efforts to minimize\ninterference with Tenant's use of the undamaged portion (if any) of the Leased\nPremises. Landlord shall not be liable to Tenant for any matter relating to or\narising out of the Restoration unless due to Landlord's gross negligence or\nwillful misfeasance; provided, that Landlord shall retain reputable contractors\nwho carry reasonable and customary public liability insurance.\n\n (f) If following the giving of the Damage Termination Notice,\nLandlord shall timely dispute Tenant's right to terminate this Lease pursuant to\nSection 15.4(a) and the Appropriate Engineer shall determine that Tenant had no\nright to terminate this Lease pursuant to Section 15.4(a), then:\n\n (i) Tenant shall thereupon assume full control of the Restoration\n and shall prosecute the same with all due diligence to\n completion in accordance with the requirements of this Lease;\n and\n\n (ii) within 10 Business Days after the Appropriate Engineer's\n determination, Landlord shall (x) reassign to Tenant that\n which was assigned to Landlord pursuant to Section 15.4(d)(i)\n and (ii) and (y) pay to Tenant in immediately available funds\n an amount equal to the positive remainder, if any, obtained by\n subtracting the aggregate amount theretofore expended by\n Landlord in connection with the Restoration (exclusive,\n however, of any amount disbursed to Landlord by the\n Depositary) from the sum of (a) the amount, if any, received\n by Landlord from the insurer by reason of the assignment\n referred to in Section\n\n\n -55-\n 66\n\n 15.4(d)(ii) (exclusive, however, of any portion of such amount\n paid by Landlord to Tenant pursuant to Section 15.4(d)(ii)),\n and (b) the Damage Payment.\n\n (g) Prior to the termination of this Lease pursuant to this Section\n15.4 there shall be no abatement of the Basic Rent, Supplemental Rent or any\nother sum payable by Tenant hereunder. Basic Rent, Supplemental Rent and Tax\nPayments due hereunder shall be payable through and apportioned as of the\nSpecified Damage Termination Date, and (except as provided in Section 32(b) with\nrespect to any holdover) Tenant shall have no liability for Basic Rent,\nSupplemental Rent or Tax Payments which would otherwise have been payable after\nthe Specified Damage Termination Date.\n\n (h) If this Lease is terminated pursuant to this Section 15.4, then,\nin addition to all amounts payable under Section 15.4(d), Tenant shall pay to\nLandlord, on or before the Specified Damage Termination Date, a cancellation\npayment (the \"Damage Cancellation Payment\") equal to the sum of\n\n (i) the Basic Rent and the Tax Payments that would be payable for\n the period commencing on the Specified Damage Termination Date\n and ending on the earlier of (x) the date six months after the\n Specified Damage Termination Date, or (y) (i) if the damage or\n destruction shall have occurred on or before the end of the\n Second Rent Period and Tenant shall have timely exercised\n Tenant's option to terminate the Lease as of June 30, 2008,\n the last day of the Second Rent Period, (ii) if the damage or\n destruction shall have occurred during the Third Rent Period\n and Tenant shall have timely exercised Tenant's option to\n terminate the Lease as of June 30, 2013, the last day of the\n Third Rent Period, or (iii) if the damage or destruction shall\n have occurred during the Fourth Rent Period, the last day of\n the Fourth Rent Period, plus\n\n (ii) if the Specified Damage Termination Date shall occur prior to\n June 1, 2008, the sum of (x) the amount of the Unamortized\n Fit-Out Work Investment as of the Specified Damage Termination\n Date, (y) if the Specified Damage Termination Date shall be\n other than the first day of a month, interest at the Fit-Out\n Work Interest Rate on such Unamortized Fit-Out Work Investment\n from the first day of the month in which the Specified Damage\n Termination Date shall occur to the Specified Damage\n Termination Date, and (z) the Notional Make-Whole Amount as of\n the Specified Damage Termination Date\n\nprovided, that (a) Tenant shall be entitled to a credit against the amount\nrequired to be paid pursuant to clause (i) above equal to all Basic Rent and Tax\nPayments previously paid, if any, which is attributable to the period after the\nSpecified Damage Termination Date, and (b) if under Section 15.4(b) Landlord\nshall timely dispute Tenant's right so to terminate this Lease, then Tenant\nshall not be required to make the Damage Cancellation Payment unless the\nAppropriate\n\n\n -56-\n 67\n\nEngineer's determination is in Tenant's favor. In any case under clause (b) of\nthe preceding sentence, the Damage Cancellation Payment shall be due within 5\ndays after the determination.\n\n (i) It shall be a condition to the effectiveness of the Damage\nTermination Notice and the termination of this Lease pursuant to this Section\n15.4, that on or before the Specified Damage Termination Date Tenant pays either\n(1) all amounts required to be paid by Tenant under Section 15.4(d) and Section\n15.4(h), or (2) all amounts which Tenant believes in good faith are required to\nbe paid by Tenant under Section 15.4(d) and Section 15.4(h). Any dispute with\nrespect to the determination of any amount required to be paid by Tenant under\nSection 15.4(d) shall be resolved by arbitration and any dispute with respect to\nthe determination of any amount required to be paid by Tenant under Section\n15.4(h) shall be resolved by Expedited Arbitration. If in such arbitration or\nExpedited Arbitration it is determined that Tenant underpaid, Tenant shall pay\nthe amount of the underpayment to Landlord within 5 days after the such\ndetermination, together with interest thereon at the Prime Rate from the\nSpecified Damage Termination Date until paid by Tenant. If in such arbitration\nor Expedited Arbitration it is determined that Tenant overpaid, Landlord shall\npay the amount of the overpayment to Tenant within 5 days after such\ndetermination, together with interest thereon at the Prime Rate from the\nSpecified Damage Termination Date until paid by Landlord.\n\n (j) If by reason of the termination of this Lease pursuant to\nSection 15.4 or Tenant's failure to effect Restoration by reason of Tenant's\nhaving so terminated this Lease\n\n (p) the insurer under the insurance policy required to\n be maintained by Tenant under clauses (i) and (ii) of\n Section 14.1(a) is released under the terms of the\n policy from its obligation to make payment on account of\n the loss arising out of such damage or destruction, or\n\n (q) the amount which under the terms of the policy such\n insurer is required to pay on account of the loss\n arising out of such damage or destruction is less than\n the amount which under the terms of the policy such\n insurer would have been required to pay if this Lease\n had not been terminated and Tenant had effected such\n restoration as Landlord, within the time period provided\n by the policy, actually commits to such insurer to\n effect (such lesser amount being herein called the\n \"Reduced Proceeds Amount\"),\n\nthen Tenant shall, within 30 days after Landlord's demand,\n\n (x) in the case of (p) above, pay to Landlord the amount\n which under the terms of the policy such insurer would\n have been required to pay on account of the loss arising\n out of such damage or destruction if this Lease had not\n been terminated and Tenant had effected such restoration\n as\n\n\n -57-\n 68\n\n Landlord, within the time period provided by the policy,\n actually commits to such insurer to effect (the \"Full\n Proceeds Amount\"), or\n\n (y) in the case of (q) above, pay to Landlord the excess\n of the Full Proceeds Amount over the Reduced Proceeds\n Amount.\n\n Together with the assignment delivered under Section l5.4(d) (ii),\nTenant shall furnish Landlord with a notice, in block capital letters, of the\nperiod provided by the policy within which Tenant must make its restoration\ncommitment to the insurer.\n\n Landlord, at Tenant's expense, shall prosecute all insurance claims\nthe proceeds of which have been assigned to Landlord under Section 15.4(d)(ii)\ndiligently and in accordance with the terms of the applicable policies and,\nnotwithstanding the provisions of Section 14.2 to the contrary, Landlord shall\nhave the sole right to settle such claims.\n\n (k) If Tenant shall terminate this Lease pursuant to this Section\n15.4, Tenant shall maintain in effect the insurance required by clauses (i) and\n(ii) of Sections 14.1(a) (\"Post-Termination Insurance\") until the earliest of\n\n (1) the later of (a) the end of Tenant's then current policy\n period, or (b) the date two years after the Specified\n Damage Termination Date,\n\n (2) the date on which Landlord receives the proceeds of the\n insurance required to be maintained by Tenant under\n clauses (i) and (ii) of Section 14.1(a) with respect to\n the damage or destruction giving rise to such\n termination (including any amounts payable under Section\n 15.4(j)), or\n\n (3) the date on which Landlord commences restoration of such\n damage or destruction (other than protective work or\n demolition).\n\nAll of the provisions of Article 14, in so far as they relate to the insurance\nrequired by clauses (i) and (ii) of Sections 14.1(a), shall be applicable to\nsuch Post-Termination Insurance, except that (a) Landlord shall be solely\nentitled to all proceeds of such Post-Termination Insurance arising out of any\ncasualty occurring after the Specified Damage Termination Date, and (b)\nLandlord, at its expense, shall prosecute all insurance claims to the proceeds\nof which it is so entitled diligently and in accordance with the terms of the\napplicable policies and, notwithstanding the provisions of Section 14.2 to the\ncontrary, Landlord shall have the sole right to settle such claims. At\nLandlord's request, Tenant shall join in the execution of any documents\nreasonably required by the insurer to be executed by Tenant in connection with\nsuch claims. If Tenant shall fail, within 10 Business Days of Landlord's request\nto execute any such document, Landlord is hereby appointed Tenant's\nattorney-in-fact to do so.\n\n\n -58-\n 69\n\n On or before the Specified Damage Termination Date, Tenant shall\nfurnish Landlord with a certificate of the insurance required by this Section\n15.4(k) showing as the expiration date thereof the end of Tenant's then current\npolicy period. So long as Tenant is required by this Section 15.4(k) to maintain\ninsurance, Tenant shall, no later than 7 days prior to the end of each of\nTenant's policy periods, furnish Landlord with a certificate of the insurance\nrequired by this Section 15.4(k) showing as the expiration date thereof the end\nof Tenant's next policy period or, if such next policy period will end after two\nyears after the Specified Damage Termination Date, two years after the Specified\nDamage Termination Date. No certificate delivered pursuant to this paragraph\nshall be effective to extend the date through which Tenant is required by this\nSection 15.4(j) to maintain insurance. If at any time Tenant does not maintain\nthe insurance required by this Section 15.4(k) to be maintained by it, Landlord,\nafter 2 Business Days notice to Tenant, may purchase insurance providing the\nsame coverage, and if Landlord does so Tenant shall reimburse Landlord on demand\nfor all of the costs incurred by Landlord in maintaining such insurance.\n\n (l) If this Lease is terminated pursuant to this Section 15.4 on or\nprior to June 1, 2008, Tenant shall also reimburse Landlord, within 10 days of\nLandlord's demand, any document preparation fee, recording fee, attendance fee\nor similar fee charged by any of Landlord's lenders, not exceeding $10,000 in\nthe aggregate for all lenders, by reason of Landlord applying the sum received\nunder Section 15.4(h)(ii) to prepayment of any of Landlord's mortgage debt due\nto such lender.\n\n 16. Taking of Property\n\n 16.1 Notice\n\n Landlord and Tenant shall each notify the other if it becomes aware\nof a Taking, or the commencement of any proceedings or negotiations which might\nresult in a Taking.\n\n 16.2 Total Taking\n\n In case of a Total Taking, this Lease shall terminate on the date of\nsuch Taking. For purposes of the preceding sentence, a Taking shall be deemed a\n\"Total Taking\" if all of the Leased Premises are taken or if, in Tenant's\nreasonable opinion, the remainder of the Leased Premises that is not taken is\nnot reasonably susceptible to use by Tenant for the conduct of its business. In\nthe event of a dispute as to whether a Taking constitutes a Total Taking, the\nmatter shall be determined by Expedited Arbitration and (a) if the arbitrator\ndetermines that the Taking in question is not a Total Taking the Taking in\nquestion shall be deemed a Partial Taking or (b) if the arbitrator determines\nthat the Taking in question is a Total Taking this Lease shall terminate on the\nlater of the date of the determination or the date of such Taking. Basic Rent,\nSupplemental Rent and Tax Payments due hereunder shall be payable through and\napportioned as of the date of termination, and (except as provided in Section\n32(b) with respect to any holdover) Tenant shall have no liability for Basic\nRent, Supplemental Rent or Tax Payments which would otherwise have been payable\nafter the date of termination. Within 10 Business Days after termination of the\nLease in accordance with this Section 16.2, Landlord shall return to Tenant all\nBasic Rent\n\n\n -59-\n 70\n\nand Tax Payments previously paid, if any, which is attributable to the period\nafter such termination.\n\n If this Lease shall terminate pursuant to this Section 16.2 on or\nprior to June 1 2008, Tenant shall pay to Landlord an amount equal to the sum of\n(x) the Unamortized Fit-Out Work Investment as of the date of termination, (y)\nif the date of termination shall be other than the first day of a month,\ninterest at the Fit-Out Work Interest Rate on such Unamortized Fit-Out Work\nInvestment from the first day of the month in which the date of termination\nshall occur to the date of termination, and (z) the Notional Make Whole Amount\nas of the date of termination. In such a case, Tenant shall also reimburse\nLandlord, within 10 days of Landlord's demand, any document preparation fee,\nrecording fee, attendance fee or similar fee charged by any of Landlord's\nlenders, not exceeding $10,000 in the aggregate for all lenders, by reason of\nLandlord applying the sum received pursuant to this paragraph to prepayment of\nany of Landlord's mortgage debt due to such lender.\n\n Any claim for compensation resulting from a Total Taking may be\nsettled by Landlord without Tenant's consent. Notwithstanding the foregoing, in\ncase of any Total Taking in respect of which Tenant will be required to make any\npayment pursuant to the preceding paragraph (i) Tenant shall be entitled, at\nTenant's expense, to participate in the prosecution of such claim, and (ii) the\nsame shall not be settled without Tenant's consent unless the amount of such\nsettlement is sufficient to pay in full the Tenant's Total Taking Amount in\nrespect of such Total Taking.\n\n 16.3 Partial Taking\n\n In case of a Taking other than a Total Taking (a \"Partial Taking\")\n(a) this Lease shall remain in full force and effect; provided, that on the date\nof such Taking this Lease shall terminate as to the portion of the Leased\nPremises taken (which portion shall be deemed excluded from the Leased Premises)\nand if the portion of the Leased Premises that was taken shall include any area\ndesigned for tenant occupancy, the Basic Rent shall be reduced by multiplying\nthe same by a fraction, the numerator of which is the rentable square footage of\nthe portion of the Leased Premises that was taken and the denominator of which\nis the rentable square footage of the Leased Premises prior to the Taking (the\n\"Taking Fraction\") and (b) Tenant, whether or not the awards or payments, if\nany, on account of such Taking shall be sufficient for the purpose shall\npromptly commence Restoration of the Leased Premises (exclusive of the taken\nportion) and thereafter diligently prosecute the same to completion in\naccordance with the Plans and Specifications therefor (as approved by Landlord\nor as determined by the Appropriate Engineer to be required to have been\napproved by Landlord pursuant to this Lease). Notwithstanding any Partial\nTaking, the Supplemental Rent shall not be reduced or otherwise abated.\n\n Any claim for compensation resulting from a Partial Taking may be\nsettled by Landlord without Tenant's consent; provided, that if the portion\nthereof awarded for Restoration is less than the estimated cost of such\nRestoration then Tenant shall have a right to approve any such settlement, such\napproval not to be unreasonably withheld, and if the portion of the Leased\n\n\n -60-\n 71\n\nPremises that was taken shall include any Fit-Out Work, then Tenant shall have\nthe right to participate, at Tenant's expense, in the prosecution of such claim\nand the right to approve any such settlement, such approval not to be\nunreasonably withheld. Any dispute under the preceding sentence should be\nresolved by the Appropriate Engineer.\n\n 16.4 Application of Award\n\n (a) In the event of a Total Taking, the award for such Taking,\nincluding interest, if any, paid by the condemning authority through the date of\npayment of such award (the \"Condemnation Proceeds\"), shall be paid as follows:\n\n (i) Landlord shall first be entitled to receive such\n portion of the Condemnation Proceeds as shall\n equal the Notional Main Loan Outstanding Balance\n on the date of the Total Taking, plus interest\n thereon at the Main Interest Rate from the date of\n the Total Taking through the day of payment of\n such amount to Landlord;\n\n (ii) subject to Section 16.4(e), Tenant shall next be\n entitled to receive such portion of the\n Condemnation Proceeds as shall equal the amount\n payable by Tenant pursuant to Section 16.2 by\n reason of such Total Taking, if any, plus interest\n thereon at the Fit-Out Work Interest Rate from the\n date of such payment by Tenant through the day of\n payment of such amount to Tenant (the amount so\n payable by Tenant, plus such interest, is herein\n called \"Tenant's Total Taking Amount\"); and\n\n (iii) Landlord shall be entitled to receive the balance\n of such Condemnation Proceeds.\n\n (b) In the event of a Partial Taking, the Condemnation Proceeds\nshall be paid as follows:\n\n (i) Tenant shall first be entitled to receive such\n portion of the Condemnation Proceeds as shall be\n awarded for Restoration, plus interest thereon (if\n paid by the condemning authority) at the rate paid\n by the condemning authority from the date of the\n Partial Taking through the day of payment of such\n amount to the Depositary (and the amount referred\n to in this clause (i) shall be paid to the\n Depositary for disbursement in accordance with\n Article 17); and\n\n\n -61-\n 72\n\n (ii) (A) If the portion of the Leased Premises that was\n taken does not include any Fit-Out Work, then\n Landlord shall be entitled to the entire balance\n of such award; or (B) if the portion of the Leased\n Premises that was taken does include any Fit-Out\n Work, then the balance of such award exclusive of\n any interest thereon paid by the condemning\n authority (the \"balance to be apportioned\") shall\n be apportioned between Landlord and Tenant such\n that (x) Landlord shall be entitled to receive all\n of the balance to be apportioned exclusive of the\n portion thereof allocable to the Fit-Out Work that\n was so taken, and (y) Tenant shall be entitled to\n receive the portion of the balance to be\n apportioned allocable to the Fit Out Work, and (z)\n all interest shall be apportioned in the same\n proportions.\n\n (c) If the order or decree in any condemnation or similar\nproceeding shall fail separately to state the amount of the compensation for\nRestoration and\/or the apportionment of the Condemnation Proceeds pursuant to\nSection 16.4(a) or (b), and if Landlord and Tenant cannot agree thereon within\n30 days after the final award or awards shall have been fixed and determined,\nthe dispute shall be determined by arbitration.\n\n (d) Nothing in this Lease shall preclude Tenant from claiming\nor receiving from the condemning authority any compensation to which Tenant may\notherwise lawfully be entitled in respect of Tenant's furniture, furnishings,\ntrade fixtures or business equipment furnished, installed or placed in the\nImprovements by Tenant at Tenant's sole cost and expense or for moving to a new\nlocation or for interruption of, or damage to, Tenant's business; provided, that\nany award made is separate to Tenant and not part of damages recoverable by\nLandlord.\n\n (e) Notwithstanding the provisions of Section 16.4(a), if and\nto the extent that on the date of the payment by the condemning authority of the\nCondemnation Proceeds with respect to any Total Taking Tenant shall not have\npaid the amount payable by Tenant pursuant to Section 16.2 by reason of such\nTotal Taking, the amount which would otherwise be paid to Tenant under clause\n(ii) of Section 16.4 shall be paid to Landlord and shall be a credit against\nTenant's obligation under the second paragraph of Section 16.2\n\n 16.5 Temporary Taking\n\n Sections 16.2 through 16.4 to the contrary notwithstanding, the\nprovisions of this Section 16.5 shall govern any Taking for temporary use. In\nthe case of any Taking for temporary use, this Lease shall remain in effect as\nto the Leased Premises (including the portion taken) and there shall be no\nreduction in Basic Rent or (unless otherwise legally required) other change in\nthe obligations of Tenant hereunder. If the term of the temporary Taking shall\nnot extend (a) beyond the next Termination Date in respect of which Tenant has\nor may then exercise a\n\n\n -62-\n 73\n\nTermination Option (the \"Next Available Termination Date\"), or (b) if Tenant has\nnot exercised any Termination Option and no longer has available any Termination\nOptions, beyond the Expiration Date, then in either such case the entire award\nshall be payable to Tenant and Tenant shall make Restoration of the Leased\nPremises in accordance with the requirements of this Lease. If the term of the\ntemporary Taking shall extend (i) beyond the Next Available Termination Date, or\n(ii) if Tenant has not exercised any Termination Option and no longer has\navailable any Termination Options, beyond the Expiration Date, then in either\nsuch case Tenant need not make Restoration, the portion of the award applicable\nto the Restoration shall be paid to Landlord and the balance of the award shall\nbe apportioned between Landlord and Tenant as of such Next Available Termination\nDate or the Expiration Date (as the case may be) by the condemning authority or,\nif the condemning authority fails to act, by arbitration; provided, that if\npursuant to the foregoing provisions of this sentence, such balance is\napportioned as of a Next Available Termination Date with respect to which Tenant\nhas not exercised its Termination Option and Tenant shall not thereafter\nexercise such Termination Option then, in each case, such balance (together with\ninterest thereon at the Prime Rate from the date such award was originally paid\nto and including the date such reapportioned award is payable) shall be\nreapportioned between Landlord and Tenant as of the next succeeding Termination\nDate.\n\n 17. Disbursement of Deposited Sums\n\n (a) Subject to the provisions of this Article 17 the Depositary\nshall, from time to time as any Restoration proceeds and within 10 Business Days\nafter receipt of Tenant's request therefor (but in no event more frequently than\nonce during any 30-day period), make disbursements (collectively, \"Restoration\nAdvances\") to Tenant from the funds deposited with the Depositary pursuant to\nSections 15.3(b), 15.4(d)(iii) or 16.4(b)(i) (collectively, the \"Deposited\nSums\") for application to the Costs of the Restoration in question.\nSimultaneously with the delivery of each such request to the Depositary, Tenant\nshall give notice thereof to Landlord (which notice shall be accompanied by\ncopies of such request and all other papers delivered to the Depositary).\n\n (b) No Restoration Advance shall be made on account of any fire or\nother casualty until Tenant shall have delivered evidence reasonably\nsatisfactory to Landlord that an aggregate amount at least equal to the\nSignificant Proceeds Amount has been expended for Costs in connection with the\nRestoration, and Restoration Advances on account of any fire or other casualty\nshall be made only for amounts paid or payable by Tenant for Costs which are in\nexcess of the Significant Proceeds Amount.\n\n (c) No Restoration Advance (other than the final Restoration\nAdvance) in respect of any fire or other casualty or any Partial Taking shall be\ndue unless Tenant's request for such Restoration Advance shall be accompanied\nby:\n\n (i) a certificate of Tenant addressed to the Depositary and\nLandlord (in form reasonably satisfactory to Landlord) stating that (A) the\namount of the Restoration Advance then requested has been paid or is then duly\npayable by Tenant to Contractors (whose names and addresses and a description of\nthe work involved shall be stated), (B) the amount of\n\n\n -63-\n 74\n\nthe Restoration Advance then requested (when taken together with the aggregate\namount of all Restoration Advances theretofore made by the Depositary) exceeds\nneither 90% of the Deposited Sums (together with interest on such amount) nor\nthe Installed Value of the Restoration work in question (Tenant's certificate to\nset forth a calculation of the Installed Value), and (C) no part of cost of the\nwork described in any previous or then pending request for a Restoration Advance\nhas been or is being made the basis for the Restoration Advance then being\nrequested; and\n\n (ii) a certificate of the architect or engineer who prepared\nthe related Plans and Specifications addressed to the Depositary and Landlord\n(in form reasonably satisfactory to Landlord) stating in substance that (A) the\ncalculation of Installed Value as set forth in the certificate referred to in\nthe foregoing clause (i) is correct, (B) the work has been performed in a good\nand workmanlike manner and in accordance with the Plans and Specifications (as\napproved by Landlord or as determined by the Appropriate Engineer to have been\nrequired to be approved by Landlord pursuant to this Lease) and (C) the\nunadvanced portion of the Deposited Sums in question, together with any\nadditional amount to be available from the insurer, are at least equal to the\nCosts of the Restoration which will remain unpaid after giving effect to the\nRestoration Advance in question.\n\n (d) No Restoration Advance (including the final Restoration Advance)\nin respect of any fire or other casualty or any Partial Taking shall be due\nunless:\n\n (i) no certificate delivered to the Depositary or Landlord by\nTenant or by any architect or engineer in connection with the Restoration in\nquestion shall have been materially incorrect at the time of delivery (Landlord\nto give notice to Tenant within 10 Business Days after Landlord's receipt of the\ncertificate in question if Landlord contends that such certificate was\nmaterially incorrect; any such dispute to be determined by the Appropriate\nEngineer);\n\n (ii) Landlord shall have received true copies of all bills\npaid or payable by Tenant to Contractors which form the basis for the\nRestoration Advance in question;\n\n (iii) in the case of a Restoration Advance to be made on\naccount of a fire or other casualty, Tenant shall have waived its right to\nterminate this Lease pursuant to Section 15.4(a) on account of such damage or\nother casualty; and\n\n (iv) no Event of Default shall have occurred and be\ncontinuing.\n\n (e) Neither any final Restoration Advance nor the release of any\nremaining balance of Deposited Sums pursuant to Article 17(f) shall be made\nunless:\n\n (i) Tenant's request for such Restoration Advance or such\nrelease shall be accompanied by (x) a certificate of Tenant addressed to the\nDepositary and Landlord (in from reasonably satisfactory to Landlord) stating\nthat Tenant's best knowledge (after due inquiry) there shall (after giving\neffect to such Restoration Advance or release) be no outstanding indebtedness\ndue for labor, materials, supplies, permits or services in any manner connected\nwith the Restoration which if unpaid might be the basis for any type of lien on\nthe Leased Premises, or\n\n\n -64-\n 75\n\nany part thereof, and that (in the case of a request for a final Restoration\nAdvance) the amount requested has been paid or is then duly payable to\nContractors (whose names and addresses and a description of the work involved\nshall be stated) and (y) a certificate of the architect or engineer who prepared\nthe related Plans and Specifications addressed to the Depositary and Landlord\n(in form reasonably satisfactory to Landlord) stating that the Restoration work\nhas been fully completed in a good and workmanlike manner and in accordance with\nthe Plans and Specifications (as approved by Landlord or as determined by the\nAppropriate Engineer to have been required to be approved by Landlord pursuant\nto this Lease); and\n\n (ii) the Depositary and Landlord shall have received (x) an\ninstrument in writing from any title company insuring Landlord's estate in the\nLeased Premises certifying that there are no undischarged mechanics', laborers'\nor materialmen's liens affecting any part of the Leased Premises (other than\nliens, if any, in respect of which Landlord has consented to take security\npursuant to Article 13(a)(ii)) and (y) evidence reasonably satisfactory to\nLandlord that Tenant has obtained waivers of mechanics', laborers' or\nmaterialmen's liens or releases of such liens from all Contractors engaged in\nthe Restoration.\n\n (f) Subject to Article 17(g), any balance of a Deposited Sum\n(together with interest thereon) remaining with the Depositary upon the\ncompletion of any Restoration on account of fire or other casualty or any\nPartial Taking shall (i) in the case of fire or other casualty, be remitted to\nTenant promptly upon its request and (ii) in the case of a Partial Taking, be\nremitted to Landlord promptly upon its request.\n\n (g) Notwithstanding anything to the contrary contained in this\nLease, upon any early termination of this Lease (including, without limitation,\nany early termination pursuant to Section 15.4(a)), the Depositary shall\nforthwith remit to Landlord the balance of all Deposited Sums (together with\naccrued interest thereon) held by the Depositary immediately prior to such\ntermination.\n\n (h) Each Restoration Advance shall be made by the Depositary as soon\nas reasonably practicable, but in no event later than the date which is 30 days\nafter Tenant shall have satisfied all of the applicable conditions to such\nRestoration Advance specified in this Article 17.\n\n 18. Certificate as to No Default, etc.\n\n Landlord and Tenant shall each deliver to the other within 10 days after\nrequest, an Officer's Certificate stating (a) that this Lease is unmodified and\nin full force and effect (or, if there have been modifications, that this Lease\nis in full force and effect, as modified, and stating the modifications), (b)\nthe dates to which the Basic Rent, Supplemental Rent and Tax Payments have been\npaid and that, to the best knowledge (after due inquiry) of the party giving\nsuch certificate, no Event of Default has occurred and is continuing hereunder,\nor, if any Event of Default has occurred and is continuing specifying the nature\nand period of existence thereof, and (c) that, to the best knowledge (after due\ninquiry) of the party giving such certificate, the other party has fulfilled all\nof its obligations under this Lease or, if not, stating in what respects such\nother party has failed to do so. Any Officer's Certificate may be relied upon by\nany prospective\n\n\n -65-\n 76\n\npurchaser or mortgagee of the Leased Premises or any part thereof or interest\ntherein or by any prospective assignee of this Lease or any prospective\nsubtenant.\n\n 19. Right of Landlord to Perform Tenant's Covenants, etc.\n\n (a) If Tenant shall fail to make any payment or perform any act required\nto be made or performed by Tenant hereunder, Landlord may (but shall be under no\nobligation to) without waiving or releasing any obligation or default:\n\n (i) in case of emergency, or reasonably foreseeable or actual\ncriminal liability,\n\n (ii) if such failure is under Section 14.1(a), 14.2 or 14.4,\nand if Landlord shall give notice to Tenant referring to this Section 19(a)\n(ii) and specifying such failure and requiring it to be remedied and Tenant\nshall not remedy such failure within 7 days after the giving of such notice,\n\n (iii) if such failure is under Section 14.3, and if Landlord\nshall give notice to Tenant referring to this Section 19(a)(iii) and specifying\nsuch failure and requiring it to be remedied and Tenant shall not remedy such\nfailure within 4 days after the giving of such notice,\n\n (iv) if such failure is under Article 12, and if Landlord\nshall give notice to Tenant referring to this Section 19(a)(iii) and specifying\nsuch failure and requiring it to be remedied and Tenant shall not remedy such\nfailure within 15 days after the giving of such notice; provided, that in case\nsuch failure cannot with due diligence be remedied by Tenant within a period of\n15 days, if Tenant proceeds as promptly as may be reasonably possible after the\nreceipt of such notice and with all due diligence to remedy such failure\nthereafter to prosecute the remedying of such failure with all due diligence,\nthe period of time after the giving of such notice by Tenant within which to\nremedy such failure shall be extended for such period as may be necessary to\nremedy the same with all due diligence,\n\n (v) if such failure is under Article 13, or\n\n (vi) if such failure is under any provision of this Lease\nother than Articles 12, 13 or 14, subject to the provisions of Section 19(b), if\nLandlord shall give notice to Tenant referring to this Section 19(a)(vi) and\nspecifying such failure and requiring it to be remedied and Tenant shall not\nremedy such failure within 30 days after the giving of such notice; provided,\nthat in case such failure cannot with due diligence be remedied by Tenant within\na period of 30 days, if Tenant proceeds as promptly as may be reasonably\npossible after the giving of such notice and with all due diligence to remedy\nsuch failure and thereafter to prosecute the remedying of such failure with all\ndue diligence, the period of time after the receipt of such notice by Tenant\nwithin which to remedy such failure shall be extended for such period as may be\nnecessary to remedy the same with all due diligence,\n\n\n -66-\n 77\n\nmake such payment or perform such act for the account and at the expense of\nTenant, and may enter upon the Leased Premises or any part thereof for such\npurpose and take all such action thereon as, in the opinion of Landlord, may be\nnecessary or appropriate therefor. All payments so made by Landlord and all\ncosts and expenses (including, without limitation, Costs and attorneys' fees and\nexpenses) incurred in connection therewith, together with interest thereon at\nthe Interest Rate, shall be paid by Tenant to Landlord within 10 days after\nTenant's receipt of Landlord's demand therefor referring to this Article 19 and\nSection 22(c) accompanied by copies of all bills therefor.\n\n (b) If within 15 days after the date on which Tenant receives notice\nfrom Landlord under Section 19(a)(vi), Tenant shall commence an arbitration\nseeking a determination that the matter referred to in Landlord's notice under\nSection 19(a)(vi) does not constitute a failure to make a payment or perform an\nact required to be made or performed hereunder, then (i) Landlord may not make\nsuch payment or perform such act for the account and at the expense of Tenant\nand may not enter upon the Leased Premises or any part thereof for such purpose\nor take action thereon prior to the date upon which the determination in\narbitration is made (the \"Determination Date\") and (ii) if the action is\ndetermined in a manner adverse to Tenant, the 30 day (or longer) period\nreferred to in Section 19(a)(vi) above shall be extended to the date 30 days\nafter the Determination Date (or for such longer period commencing on the\nDetermination Date as may reasonably be required in order to remedy the matters\nin question with all due diligence).\n\n 20. Assignment; Subleases\n\n (a) Tenant may, subject to the restrictions on the use of the Leased\nPremises set forth in this Lease, sublet the Leased Premises or any part\nthereof, or assign this Lease without the consent of Landlord; provided, that\n(i) Tenant shall deliver to Landlord a fully executed counterpart of each such\nsublease, assignment or other relevant instrument and any modification or\namendment of any of the foregoing promptly after execution thereof and shall\nnotify Landlord of any occupancy no later than the date on which such occupancy\nis to be taken, (ii) no assignment, whether by operation of law, consolidation,\nmerger or otherwise, shall be made unless within 15 days thereafter the assignee\nshall execute and deliver to Landlord an instrument assuming all the obligations\nof Tenant under this Lease thereafter accruing, (iii) no sublease, assignment or\nother transaction and no assumption, shall affect or reduce any of the\nobligations of Tenant (including the original Tenant and each such assignee)\nhereunder but this Lease and all the obligations of Tenant (including the\noriginal Tenant and each such assignee) hereunder shall continue in full force\nand effect as the obligations of a principal and not the obligations of a\nguarantor or surety and (iv) each sublease, assignment or other instrument made\nby Tenant after the date hereof shall be subject and subordinate to this Lease\nand the terms and provisions hereof. Each sublease of all or any part of the\nLeased Premises made by Tenant after the date hereof shall provide that if\nLandlord shall terminate this Lease prior to the scheduled expiration date of\nsuch sublease then, upon Landlord's request, the subtenant thereunder (and\nanyone holding by, through or under such subtenant) shall attorn to Landlord\nupon all of the terms, covenants and conditions of such sublease. As and for\nsecurity for the due and punctual payment and performance of its obligations\nunder this Lease, Tenant hereby assigns to Landlord all rents and other sums due\nto Tenant under any sublease of all or any part of the Leased\n\n\n -67-\n 78\n\nPremises; provided, that other than upon the occurrence of and during the\ncontinuance of an Event of Default Tenant may (A) freely modify or terminate all\nor any of the subleases or otherwise deal with all or any of the subtenants, (B)\ncollect rents when due, (C) permit and collect prepayments of rent and (D)\nretain all such rents (paid when due or prepaid) and other sums free of any\nclaim or lien of Landlord. All amounts received by Landlord pursuant to the\npreceding sentence shall be set-off against Tenant's obligations hereunder.\nTenant shall not mortgage, pledge or otherwise encumber this Lease or any\ninterest therein.\n\n (b) The interest of Landlord in this Lease and\/or in and to the\nLeased Premises may, at any time, be sold, conveyed, assigned or otherwise\ntransferred, or mortgaged, pledged or otherwise encumbered, without the consent\nof Tenant. Upon any conveyance of the Leased Premises and the assumption by the\nnew owner of the Leased Premises of the obligations of Landlord hereunder\nthereafter accruing, the conveyor shall be completely relieved of and from any\nand all obligations of Landlord hereunder thereafter accruing, and Tenant shall\nthereupon look only to the new owner of the Leased Premises for the performance\nof any obligations of Landlord hereunder thereafter accruing.\n\n 21. Vaults\n\n Landlord shall have no responsibly for title to or any other aspect of\nvaults and areas, if any, now or hereafter built extending beyond the boundary\nline of the Land. Tenant may occupy and use the same during the Term, subject to\nthis Lease and any Legal Requirements. No revocation on the part of any\ngovernmental department or authority of any license or permit to maintain and\nuse any such vault and areas shall in any way affect this Lease or the amount of\nthe rent or any other charge payable by Tenant hereunder. Tenant shall comply\nwith all such licenses and permits, and if any such license or permit shall be\nrevoked, Tenant shall do and perform all such work as may be necessary to comply\nwith any order revoking the same.\n\n 22. Events of Default; Termination\n\n Each of the following shall constitute an Event of Default:\n\n (a) if Tenant shall fail to pay any Basic Rent, Supplemental Rent,\nTax Payment or Cancellation Payment, when and as the same becomes due and\npayable and such failure continues for a period of 7 days after notice from\nLandlord of such failure referring to this Section 22(a), specifying such\nfailure and requiring it to be remedied is given to Tenant; or\n\n (b) if, in any period of 12 consecutive months, (i) in two separate\ninstances, Tenant shall fail to pay any Basic Rent, Supplemental Rent or Tax\nPayment when and as the same becomes due and payable and notice of such failure\nhas been given to Tenant under Section 22(a) and (ii) in a third or later\ninstance, Tenant shall fail to pay any Basic Rent, Supplemental Rent or Tax\nPayment coming due when and as the same becomes due and payable;\n\n (c) if Tenant shall fail to pay any sum due to Landlord under the\nInitial Improvements Agreement or under this Lease other than any Basic Rent,\nSupplemental Rent or Tax Payment when and as the same becomes due and payable\nand such failure continues for a\n\n\n -68-\n 79\n\nperiod of 30 days after notice from Landlord of such failure referring to this\nSection 22(c), specifying such failure and requiring it to be remedied is given\nto Tenant;\n\n (d) if Tenant shall fail to pay any amount under Article 19 when\ndue; or\n\n (e) if Tenant shall fail to perform or comply with any term of\nArticle 13 or 14 and such failure continues for a period of 15 days after notice\nfrom Landlord of such failure referring to this Section 22(e), specifying such\nfailure and requiring it to be remedied is given to by Tenant; or\n\n (f) if Tenant shall fail to perform or comply with any term of\nArticle 12, and such failure shall continue for more than 30 days after notice\nfrom Landlord of such failure referring to this Section 22(f), specifying such\nfailure and requiring it to be remedied is given to Tenant; provided, that in\ncase such failure cannot with due diligence be remedied by Tenant within a\nperiod of 30 days, if Tenant proceeds as promptly as may be reasonably possible\nafter the giving of such notice and with all due diligence to remedy such\nfailure and thereafter to prosecute the remedying of such failure with all due\ndiligence, the period of time after the receipt of such notice by Tenant within\nwhich to remedy such failure shall be extended for such period as may be\nnecessary to remedy the same with all due diligence; or\n\n(g) if Tenant shall fail to perform or comply with any term of this Lease or the\nInitial Improvements Agreement (other than any failure referred to in a previous\nsubdivision of this Article 22), and such failure shall continue for more than\n30 days after notice from Landlord of such failure referring to this Section\n22(g), specifying such failure and requiring it to be remedied is given to\nTenant; provided, that in case such failure cannot with due diligence be\nremedied by Tenant within a period of 30 days, if Tenant proceeds as promptly as\nmay be reasonably possible after the receipt of such notice and with all due\ndiligence to remedy such failure and thereafter to prosecute the remedying of\nsuch failure with all due diligence, the period of time after the receipt of\nsuch notice by Tenant within which to remedy such failure shall be extended for\nsuch period as may be necessary to remedy the same with all due diligence;\nprovided further that, in the case of this Section 22(g) only, if Tenant within\n15 days after the receipt of such notice of default shall dispute the existence\nof such failure the matter shall be determined by arbitration and if it shall be\ndetermined that such failure exists, the time within which Tenant shall have to\nremedy the same shall run from the date of such determination; provided finally,\nhowever, that if (i) by reason of such failure, any Superior Mortgagee shall\ngive notice of default under the Superior Mortgage held by it, and (ii) Landlord\nshall so notify Tenant, then the immediately preceding proviso shall cease to be\neffective with respect to such failure and the time within which Tenant shall\nhave to remedy the same shall run from the date of Landlord's notice under this\nproviso.\n\n This Lease and the term and estate hereby granted are subject to the\nlimitation that if an Event of Default shall occur then, in addition to any\nother remedies available to Landlord at law or in equity, Landlord may at any\ntime during the continuance of such Event of Default give to Tenant a notice (a\n\"Lease Termination Notice\") specifying a date, not less than five days after the\ndate of such notice, on which specified date this Lease shall terminate, and on\nsuch date, subject\n\n\n -69-\n 80\n\nto Article 25 relating to the survival of Tenant's obligations, this Lease and\nthe term and estate hereby granted shall expire and terminate by limitation and\nall rights of Tenant under this Lease shall cease, but Tenant shall remain\nliable for damages as provided herein or pursuant to law. All costs and expenses\nincurred by or on behalf of Landlord (including, without limitation, attorneys'\nfees and expenses) occasioned by any Event of Default by Tenant under this Lease\nshall be payable by Tenant upon demand by Landlord (together with interest\nthereon at the Interest Rate).\n\n 23. Repossession\n\n If an Event of Default shall have occurred and be continuing, Landlord,\nafter termination of this Lease pursuant to Article 22, may enter upon and\nrepossess the Leased Premises or any part thereof by summary proceedings or\nother legal proceedings and may remove Tenant and all other persons and any and\nall property therefrom. Landlord shall be under no liability for or by reason of\nsuch entry, repossession or removal.\n\n 24. Reletting\n\n At any time or from time to time before or after the repossession of the\nLeased Premises or any part thereof pursuant to Article 23, Landlord may (but\nshall have no obligation to) relet the Leased Premises or any part thereof for\nthe account of Tenant, in the name of Tenant or Landlord or otherwise, without\nnotice to Tenant, for such term or terms (which may be greater or less than the\nperiod which would otherwise have constituted the balance of the Term) and on\nsuch conditions (which may include concessions or free rent) and for such uses\nas Landlord, in its uncontrolled discretion may determine, and may collect and\nreceive the rents therefor. Landlord shall not be responsible or liable for any\nfailure to relet the Leased Premises or any part thereof or for any failure to\ncollect any rent due upon any such reletting.\n\n 25. Survival of Tenant's Obligations; Damages\n\n 25.1 Termination of Lease Not to Relieve Tenant of Obligations\n\n No expiration or termination of the Term pursuant to Article 22 or\notherwise (other than a termination of this Lease under and in accordance with\nSection 1.4, Article 15 or Article 16), and no repossession of the Leased\nPremises or any part thereof pursuant to Article 23 or otherwise, shall relieve\nTenant of its liabilities and obligations accruing hereunder prior to such\nexpiration or termination, all of which shall survive such expiration,\ntermination or repossession. The term \"Notional Expiration Date\" shall refer to\n\n (i) if prior to such expiration, termination or repossession\n pursuant Articles 22 or 23 Tenant shall have exercised any\n Termination Option, the Termination Date with respect thereto,\n and\n\n (ii) if prior to such expiration, termination or repossession\n pursuant to Article 22 or 23 Tenant shall not have exercised\n any Termination Option, the Termination Date with respect to\n the earliest\n\n\n -70-\n 81\n\n Termination Option which, as of the date of such expiration,\n termination or repossession, had not lapsed without exercise\n or been waived or, if all of the Termination Options shall\n then have lapsed without exercise and\/or been waived, the\n Expiration Date,\n\nprovided, that, in case of any expiration, termination or repossession pursuant\nto Articles 22 or 23 arising out of any Event of Default arising out of Tenant's\nfailure timely to pay the Cancellation Payment by reason of the exercise of a\nTermination Option providing for the termination of this Lease as of September\n30, 2004 or September 30, 2006, the Notional Expiration Date shall be deemed for\nall purposes of this Lease (including without limitation Section 25.2(c) and\nSection 25.3(b)) to be June 30, 2008. In case of any expiration, termination or\nrepossession pursuant to Articles 22 or 23 arising out of any Event of Default\narising out of Tenant's failure timely to pay the Cancellation Payment by reason\nof the exercise of a Termination Option providing for the termination of this\nLease as of September 30, 2004, September 30, 2006 or June 30, 2008, Tenant\nshall be entitled to a credit against the amounts payable by it under Section\n25.2(b) and (c) and Section 25.3(b) equal to the amount of any payments made by\nTenant under Section 1.4.\n\nNotwithstanding any provision of this Lease to the contrary (except as provided\nin the next sentence), in case of any expiration or termination of the Term of\nthis Lease or repossession of the Leased Premises pursuant to Articles 22 or 23,\nTenant's liability in respect of any period after the Notional Expiration Date\nshall be limited to that provided for in Section 25.2 and\/or Section 25.3. The\npreceding sentence shall not release Tenant from (i) any obligations under this\nLease with respect to any period after the Notional Expiration Date but prior to\nTenant's surrender to Landlord of vacant possession of the Leased Premises, or\n(ii) any liability (other than for rent or on account of the non-payment\nthereof) arising out of any act or omission in violation of this Lease committed\nby Tenant or any party claiming by, through or under Tenant, or (iii) any\nobligation which under Section 35(k) survives the termination or expiration of\nthis Lease.\n\n 25.2 Current Damages and Damages in Respect of Supplemental Rent\n\nIn the event of any such expiration, termination or repossession pursuant to\nArticles 22 or 23, Tenant shall pay to Landlord\n\n (a) (i) immediately upon such expiration, termination or\nrepossession, the Basic Rent, Supplemental Rent, Tax Payments and all other\nsums required to be paid by Tenant pursuant to this Lease up to the time of such\nexpiration, termination or repossession, and (ii) thereafter Tenant, until the\nNotional Expiration Date, and whether or not the Leased Premises or any part\nthereof shall have been relet, shall be liable to Landlord for, and shall pay to\nLandlord, as liquidated and agreed current damages for Tenant's default, (a) the\nBasic Rent and Tax Payments and all other sums which would be payable under this\nLease by Tenant in the absence of such expiration, termination or repossession\n(other than Supplemental Rent), plus (b) all reasonable expenses of Landlord in\nconnection with such expiration, termination and repossession and any reletting\neffected for the account of Tenant pursuant to Article 24 (including, without\nlimitation, all repossession costs, brokerage commissions, legal expenses,\n\n\n -71-\n 82\n\nattorneys' fees, employees' expenses, alteration costs and expenses of preparing\nfor such reletting) less (c) the proceeds, if any, of such reletting. Tenant\nshall pay such current damages monthly on the days on which the Basic Rent and\nTax Payments and other sums would have been payable under this Lease in the\nabsence of such expiration, termination or repossession, and Landlord shall be\nentitled to recover the same from Tenant on each such day, plus\n\n (b) immediately upon such expiration, termination or repossession,\nif such expiration, termination or repossession shall occur on or prior to June\n1, 2008, the sum of (i) the then present value, discounted at the Fit-Out Work\nInterest Rate, of the Supplemental Rent which would be payable under this Lease\nfrom the date of such expiration, termination or repossession for what would be\nthe then unexpired Term in the absence of such expiration, termination or\nrepossession, plus (ii) the Notional Make-Whole Amount as of the date of such\nexpiration, termination or repossession, plus (iii) any charges (other than\nprepayment or make-whole charges) incurred by Landlord to any of Landlord's then\nexisting lenders by reason of such expiration, termination or repossession.\n\n (c) upon the Notional Expiration Date, if the Notional Expiration\nDate is September 30, 2004 or September 30, 2006, the sum of the Basic Rent and\nTax Payments that would be payable for the 6 month period following such\nNotional Expiration Date.\n\n 25.3 Final Damages\n\n At any time after any such expiration, termination or repossession,\nwhether or not Landlord shall have collected any current damages as aforesaid,\nLandlord at its option shall be entitled to recover from Tenant and Tenant shall\npay to Landlord on demand, as and for liquidated and agreed final damages for\nTenant's default and in lieu of all damages under Section 25.2(a)(ii) and\nSection 25.2(c) (but not in lieu of damages under Section 25.2(b) which shall be\npayable in addition to the damages payable under this Section 25.3) beyond the\ndate of such demand, an amount equal to the sum of\n\n (a) the excess, if any, of (i) the then present value\n discounted at the Main Interest Rate in effect on the date of termination\n of this Lease, of the Basic Rent, Tax Payments and all other sums\n (exclusive of Supplemental Rent) which would be payable under this Lease\n from the date of such demand (or, if it be earlier, the date to which\n Tenant shall have satisfied in full its obligations under Section 25.2(a)\n to pay current damages) to the Notional Expiration Date (such Tax Payments\n during the First and Second Rent Periods to be determined pursuant to\n Exhibit B attached hereto and during the Third Rent Period and Fourth Rent\n Period to be computed based on the assumption that Taxes will increase by\n three percent per annum (on a compounded basis) over the Taxes in effect\n for the Tax Year last ended prior to such expiration, termination or\n repossession), over (ii) the sum of (x) the then present value, discounted\n at the Prime Rate in effect on the date of termination of this Lease, of\n the then fair net rental value (i.e. the fixed rent that would be paid\n assuming that Tenant pays all Taxes and operating expenses for the\n Improvements) of the Leased Premises for the same period, and (y) the then\n present value, discounted at the Prime Rate in effect of the date of\n termination of this\n\n\n -72-\n 83\n\n Lease, of the Taxes for the same period (such Taxes to be computed on the\n basis of the assumption that Taxes will increase three percent per annum\n (on a compounded basis) above the Taxes in effect for the Tax Year last\n ended prior to such expiration, termination or repossession), plus\n\n (b) if the Notional Expiration Date is September 30, 2004 or\n September 30, 2006, the sum of the Basic Rent and Tax Payments that would\n be payable for the 6 month period following such Notional Expiration Date.\n\nIf any statute or rule of law shall limit the amount of such liquidated final\ndamages to less than the amount above agreed upon, Landlord shall be entitled to\nthe maximum amount allowable under such statute or rule of law, but not in\nexcess of the amount provided by this Section 25.3.\n\n 26. No Waiver\n\n No failure by Landlord or Tenant to insist upon the strict performance of\nany term hereof or to exercise any right, power or remedy consequent upon a\nbreach thereof, and no payment or acceptance of full or partial rent during the\ncontinuance of any such breach, shall constitute a waiver of any such breach or\nof any such term. No waiver of any breach shall affect or alter this Lease,\nwhich shall continue in full force and effect, or the rights of Landlord or\nTenant with respect to any other then existing or subsequent breach.\n\n 27. Remedies Cumulative\n\n Each right, power and remedy of Landlord or Tenant provided for in this\nLease or now or hereafter existing at law or in equity or by statute or\notherwise shall be cumulative and concurrent and shall be in addition to every\nother right, power or remedy provided for in this Lease or now or hereafter\nexisting at law or in equity or by statute or otherwise, and the exercise by\nLandlord or Tenant of any one or more of the rights, powers or remedies provided\nfor in this Lease or now or hereafter existing at law or in equity or by statute\nor otherwise shall not preclude the simultaneous or later exercise by Landlord\nor Tenant of any or all such other rights, powers or remedies. All sums payable\nby Tenant to Landlord hereunder (other than the Basic Rent and Supplemental\nRent) shall be deemed additional rent and Landlord shall have all of the same\nrights, powers and remedies in the case of the failure by Tenant to pay any such\nsum when due as Landlord would have in the case of the failure by Tenant to pay\nBasic Rent or Supplemental Rent when due.\n\n 28. Acceptance of Early Termination or Surrender\n\n No early termination of this Lease (other than pursuant to and in\naccordance with Section 1.4, Article 15 or Article 16) or surrender to Landlord\nof this Lease, and no surrender of the Leased Premises or any part thereof or of\nany interest therein, shall be valid or effective unless agreed to and accepted\nin writing by Landlord, and no act by Landlord, other than such a written\nagreement and acceptance by Landlord, shall constitute an agreement thereto or\nacceptance thereof.\n\n\n -73-\n 84\n\n 29. No Merger of Title\n\n There shall be no merger of this Lease nor of the leasehold estate created\nby this Lease with the fee estate or any other leasehold estate in the Leased\nPremises or any part thereof by reason of the fact that the same person, firm,\ncorporation or other entity may acquire or own or hold, directly or indirectly,\n(a) this Lease or the leasehold estate created by this Lease or any interest in\nthis Lease or in any such leasehold estate, and (b) the fee estate or any other\nleasehold estate in the Leased Premises or any part thereof or any interest in\nsuch fee estate or leasehold estate, and no such merger shall occur unless and\nuntil all persons, firms, corporations and other entities having an interest in\nor lien upon (i) this Lease or the leasehold estate created by this Lease and\n(ii) the fee estate or any other leasehold estate in the Leased Premises or any\npart thereof shall join in a written instrument effecting such merger and shall\nduly record the same.\n\n 30. Exculpation\n\n (a) Except as provided below, no general or limited partner of The\nGoldman Sachs Group, L.P., a Delaware limited partnership (\"GS\"), or of any\nassignee which is a successor to substantially all the assets and business of\nGS (a \"successor-assignee\") shall have any personal liability under this Lease\nand any judgment taken or rendered against GS or any successor-assignee\nhereunder or related hereto shall be enforceable only against the property of GS\nor such successor-assignee; provided, that:\n\n (i) if at any time GS or a successor-assignee (x) shall\ndissolve (other than pursuant to, or as a result of, insolvency proceedings) and\n(y) shall distribute its assets without adequately providing for any and all of\nits obligations and liabilities under this Lease, then all persons who were\ngeneral partners of GS or of such successor-assignee immediately prior to the\ndissolution shall be personally and jointly and severally liable to GS or such\nsuccessor-assignee or the benefit of Landlord to extent of any loss, cost,\ndamage or injury which Landlord may suffer as a result of the failure to make\nadequate provision for such obligations and liabilities; and\n\n (ii) this Article 30(a) shall not relieve any general or\nlimited partner of GS or of a successor-assignee from any obligation to restore\nto GS or such successor-assignee any distributions of cash, property or other\nassets by GS or such successor-assignee made to such partner which (x) were made\nat any time when the distributor was insolvent or (y) resulted in the\ndistributor's becoming insolvent. For purposes of this Lease, GS or a\nsuccessor-assignee shall be \"insolvent\" if (A) it is generally unable to pay its\ndebts and other liabilities as they become due or (B) the sum of its debts is\ngreater than all of its property at a fair valuation (taking into account this\nLease and the liabilities of Tenant hereunder).\n\nThis Article 30(a) is for the sole benefit of GS and each successor-assignee.\nAny other party acquiring the leasehold estate created by this Lease shall have\nfull personal liability hereunder.\n\n (b) Any judgment taken or rendered against Landlord hereunder or\nrelated hereto shall be enforceable only against the interest of Landlord in the\nProject or, in the event of a sale, financing or other disposition by Landlord\nof the Project or any part thereof, against cash,\n\n\n -74-\n 85\n\nproperty or other assets of Landlord (but not of any member, partner,\nstockholder, principal, officer or other person or entity which, directly or\nindirectly, has an interest in Landlord) equal in amount to the proceeds of such\nsale, financing or other disposition.\n\n 31. Definitions\n\n As used in this Lease, the following terms have the following respective\nmeanings:\n\n \"Business Day\" means any weekday on which the New York Stock Exchange, or\nits successor, is open for business.\n\n \"Costs\" means, with respect to any construction, improvements, alteration,\nrestoration, replacement, repairs, or rebuilding (\"work\"), the costs charged by\ncontractors, subcontractors and materialmen for all labor, materials, machinery\nand equipment purchased, leased or used in connection with such work, fees and\ncompensation payable to contractors and subcontractors in connection with such\nwork, governmental fees and charges assessed or incurred in connection with such\nwork, fees and expenses of architects and engineers for estimates, surveys,\npreliminary investigations, plans, drawings, specifications and supervision\nrelated to such work, and the reasonable out-of-pocket expenses of\nadministration, supervision and inspection of such work.\n\n \"Deductible Amount\" means, with respect to any insurance policy issued in\nany month, the product of $500,000 multiplied by the fraction whose numerator is\nthe Index for the third month preceding the month in which such policy is issued\nand whose denominator is the Index for April, 1997.\n\n \"Hazardous Substances\" means any flammable or explosive materials, any\npetroleum or petroleum products (including oil, crude oil, natural or synthetic\ngas), any radioactive materials, any asbestos or asbestos containing materials,\nPCBs, or any other hazardous or toxic waste, material or substance, including,\nwithout limitation, any waste, material or substance now or hereafter included\nin the definition of \"hazardous substances,\" \"hazardous wastes,\" hazardous\nmaterials,\" \"toxic substances,\" \"toxic wastes\" or \"toxic materials\" (or similar\nterm) contained in any Legal Requirement.\n\n \"Index\" means, for any month the \"Consumer Price Index\" for such month for\nall Urban Consumers, New York, New York-Northeastern New Jersey Area (1982-1984\n= 100), published by the Bureau of Labor Statistics of the U.S. Department of\nLabor or any successor index thereto. If the Index ceases to use 1982-1984 = 100\nas basis of calculation, then the Index shall be adjusted to the figure that\nwould have been arrived at had the manner of computing the Index in effect at\nthe date of this Lease not been altered. In the event such Index (or a successor\nindex) is not available, another index reasonably selected by Landlord and\nreasonably acceptable to Tenant shall be substituted therefor.\n\n \"Insurance Requirements\" means all terms of or incorporated by reference\ninto any insurance policy covering or applicable to the Leased Premises.\n\n\n -75-\n 86\n\n \"Landlord\" means only the owner, at the time in question, of the Project,\nso that in the event of any transfer or transfers of title to the Project and\nthe assumption by the transferee of all of Landlord's obligations and liability\nhereunder accruing after such transfer, the transferor shall be and hereby is\nrelieved and freed of all obligations of Landlord under this Lease accruing\nafter such transfer.\n\n \"Legal Requirements\" means all laws, statutes, codes, acts, ordinances,\norders, judgments, decrees, injunctions, rules, regulations, permits, licenses,\nauthorizations, directions, health, safety, environmental and other requirements\nof all governmental, public or quasi-public departments, commissions, boards,\ncourts, authorities and agencies foreseen or unforeseen, ordinary or\nextraordinary, which now or at any time hereafter may be applicable to the\nStephaneze Premises (when such term is used in Section 1.3) or to the Leased\nPremises (when such term is used in any other Section of this Lease).\n\n The phrase \"net annual rental\" shall refer to the net annual rental\npayable under the Ground Lease, as such phrase is used therein.\n\n \"Officer's Certificate\" means a certificate signed by a party or a general\npartner or corporate officer of a party.\n\n \"Permitted Investment\" means (i) direct obligations of the United States\nof America, or obligations for which the full faith and credit of the United\nStates of America is pledged, and obligations of any agency or instrumentality\nof the United States of America, (ii) obligations of any State of the United\nStates of American or Canada or any Province of Canada or any political\nsubdivision or agency or instrumentality of any thereof rated in the third\nhighest grade or better by two or more of Standard and Poor's Corporation,\nMoody's Investors Service Inc. or Fitch Investors Service (or their successors),\n(iii) any commercial paper issued by a corporation organized under the laws of\nthe United States of America or any State thereof or of Canada or any Province\nthereof or by any foreign bank having a branch or agency in the United States of\nAmerica and rated in the second highest grade or better by two or more of\nStandard & Poor's Corporation, Moody's Investors Service Inc. or Fitch Investors\nService (or their successors) and having a maturity not in excess of nine\nmonths, (iv) certificates of deposit of, or drafts or bills of exchange accepted\ngenerally by, any bank or trust company or any savings and loan association\nincorporated under the laws of the United States of America or any State thereof\nor Canada or any Province thereof or by any foreign bank having a branch or\nagency in the United States of America and, in each case, which has capital and\nsurplus aggregating at least $200,000,000 as of the date of its most recent\nreport of condition and (v) such other securities or investments as Landlord\nshall from time to time consent to; provided, that in no event shall either of\nthe following be \"Permitted Investments\": (a) any security of, or investment in,\nany person or entity in which Tenant and\/or any affiliate of Tenant have (either\ndirectly or indirectly) a 5% or greater equity interest or (b) a security or\ninvestment of any kind whose stated maturity is longer than 3 years.\n\n \"Prime Rate\" means the prime interest rate announced by Morgan Guaranty\nTrust Company of New York (or, if Morgan Guaranty Trust Company of New York\nshall not exist or\n\n\n -76-\n 87\n\nshall cease to publish such rate, such other bank in New York, New York as shall\nbe designated by Landlord in a notice to Tenant) to be in effect at its\nprincipal office in New York, New York.\n\n \"Plans and Specifications\" means plans and specifications prepared by a\nreputable and licensed architect or engineer regularly involved in first-class\noffice buildings in the Borough of Manhattan in work of the nature described in\nsuch Plans and Specifications.\n\n \"Qualified Hazardous Substance\" means any Hazardous Substance which (a)\nexists in the Leased Premises on the date of this Lease or (b) is introduced by\nLandlord, Landlord's agents, employees, contractors, or licensees, into the\nLeased Premises after the date of this Lease.\n\n \"Significant Proceeds Amount\" means with respect to any damage or\ndestruction or Taking, the product of $5 million multiplied by the fraction\nwhose numerator of which is the Index for the third month preceding the month in\nwhich such damage or destruction or Taking occurs and whose denominator is the\nIndex for April, 1997.\n\n \"Taking\" means a taking during the Term of all or any part of the Leased\nPremises, or any interest therein or right accruing thereto, including, without\nlimitation, any right of access thereto, as the result of or in lieu of or in\nanticipation of the exercise of the right of condemnation or eminent domain, or\na change of grade affecting the Leased Premises or any part thereof.\n\n \"Tenant\" means the tenant originally named herein or any successor or\nassign.\n\n \"Witkoff Management Agreement\" means the Management Agreement of even date\nherewith between Tenant and The Witkoff Group LLC as the same may be assigned,\namended, restated or supplemented from time to time.\n\n The words \"enter\", \"re-enter\", \"entry\" and \"re-entry\" as used in this\nlease are not restricted to their technical legal meaning.\n\n 32. End of Lease Term\n\n (a) Upon the expiration or earlier termination of this Lease, Tenant\nshall quit and surrender to Landlord the Leased Premises free and clear of all\ntenancies and occupancies and in good order and condition, ordinary wear and\ntear and damage which Tenant is not required hereunder to repair excepted.\n\n (b) If Tenant holds over without the consent of Landlord after\nexpiration or termination of this Lease, Tenant shall pay as holdover rental (in\naddition to any and all amounts payable by Tenant upon such expiration or\ntermination of this Lease) for each month of the holdover tenancy an amount\nequal to the greater of (i) 125% of the fair market rental value of the Leased\nPremises for such month, or (ii) 125% of the Basic Rent and Tax Payments which\nTenant was obligated to pay for the month immediately preceding the end of the\nTerm; provided, that\n\n\n -77-\n 88\n\n (x) if such holdover shall continue for more than three\n months the percentage under each of clause (i) and clause (ii)\n shall increase for periods after the third month to 150%, and\n\n (y) if such holdover shall continue for more than six\n months the percentage under clause (ii) shall increase for\n periods after the sixth month to 200%.\n\nThe aforesaid holdover rent shall be Landlord's sole monetary remedy on account\nof such holdover, but Tenant shall not be deemed released from its obligation to\npay damages under Article 25 or from any obligation which under Section 35(k)\nsurvives the termination or expiration of this Lease. Tenant shall not be liable\nfor Supplemental Rent in respect of any holdover, or for any consequential or\nother damages incurred by Landlord on account of such holdover. No holding over\nby Tenant after the Term shall operate to extend the Term. Notwithstanding the\nforegoing, the acceptance of any rent paid by Tenant pursuant to this Section\n32(b) shall not preclude Landlord from commencing and prosecuting a holdover or\nsummary eviction proceeding.\n\n 33. Notices\n\n All notices, requests, demands, certifications and other communications\nhereunder (each, a \"Notice\") shall (except in the case of the telephonic notices\nexpressly permitted under this Lease) be in writing and shall be delivered by\n(a) personal delivery, (b) United States mail, certified or registered, postage\nprepaid, return receipt requested, or (c) nationally recognized overnight\ncourier, in each case addressed to the party to be notified at the address for\nsuch party specified in the first paragraph of this Lease or to such other place\nas the party to be notified may from time to time designate by at least 10 days'\nnotice to the notifying party. Notices by either party may be given by such\nparty's attorney. Each notice shall be deemed to have been given on the date\nsuch notice is actually received as evidenced by a written receipt therefor, and\nin the event of such failure to deliver by reason of changed address of which no\nnotice was given or refusal to accept delivery, as of the date of such failure.\n\n Whenever Landlord gives any Notice under this Lease, it shall give a copy\nthereof in the same manner to Tenant at 85 Broad Street, New York, New York\n10004, Attention: General Counsel, or at such other place as the party to be\nnotified may from time to time designate by at least 10 days' notice to the\nnotifying party.\n\n Whenever Tenant gives any Notice under this Lease, it shall give a copy\nthereof in the same manner to Landlord at 156 William Street, New York, New York\n10038, Attention: James F. Stomber, Esq. or at such other place as the party to\nbe notified may from time to time designate by at least 10 days' notice to the\nnotifying party.\n\n 34. Annual Reports\n\n Within 120 days of the end of each of Tenant's fiscal years ending during\nthe Term, Tenant shall furnish to Landlord a statement of operating expenses for\nthe Improvements for\n\n\n -78-\n 89\n\nsuch fiscal year together with a schedule of subleases of all or any part of the\nLeased Premises indicating the premises demised, commencement date, expiration\ndate, renewal options, base rent and escalation provisions.\n\n 35. Miscellaneous\n\n (a) If any term of this Lease or any application thereof shall be\ninvalid or unenforceable, the remainder of this Lease and any other application\nof such term shall not be affected thereby. All covenants and obligations of\nLandlord and Tenant hereunder which are not fully performed upon the expiration\nor earlier termination of this Lease shall survive such expiration or earlier\ntermination.\n\n (b) This Lease may be changed or amended only by an instrument in\nwriting, signed by the party against whom enforcement of such change or\namendment is sought.\n\n (c) Subject to Article 20, this Lease shall be binding upon and\ninure to the benefit of and be enforceable by the respective successors and\nassigns of the parties hereto.\n\n (d) This Lease shall be construed and enforced in accordance with\nand governed by the laws of the State of New York.\n\n (e) The headings in this Lease are for purposes of reference only\nand shall not limit or otherwise affect the meaning hereof. References herein to\nsections are, unless otherwise indicated, references to sections hereof.\n\n (f) Landlord and Tenant each represents to the other that it has\ndealt with no broker (other than affiliates of Tenant) in connection with the\nnegotiation and execution of this Lease. Tenant shall pay, and shall indemnify\nand defend Landlord against any claims for, any commission with respect to this\nLease due to any such affiliate.\n\n (g) Landlord and Tenant hereby waive trial by jury in any action\narising under this Lease.\n\n (h) No matter concerning this Lease shall be arbitrable unless\narbitration of such matter is specifically provided for herein. Except (1) as\nprovided in Section 2.2 with respect to any arbitration under said Section and\n(2) as provided in Article 36 with respect to any arbitration under any\nprovision of this Lease providing for Expedited Arbitrations, in any instance in\nthis Lease in which arbitration is specifically provided for, such arbitration\nshall be conducted pursuant to the rules of the American Arbitration\nAssociation, or if the American Arbitration Association shall have ceased to\nfunction as an arbitration association, of a successor or comparable\norganization and the arbitrators shall be persons experienced in matters of the\nsame general nature as the matter subject to arbitration. If, in any\narbitration, the arbitrator or arbitrators shall award any sum to be paid by one\nparty hereto to the other, the arbitrators shall also award interest thereon,\ncomputed at the Prime Rate in effect from time to time, from the date (prior to\nsuch arbitration) on which, according to the terms hereof, such sum was to have\nbeen paid.\n\n\n -79-\n 90\n\n (i) In any instance in this Lease in which Landlord covenants not\nunreasonably to withhold its consent or approval, Tenant's sole remedy in case\nof such unreasonable withholding is an action for specific performance or\ninjunction directing such consent or approval and Landlord shall have no\nliability for monetary damages. In any instance in this Lease in which Tenant\ncovenants not unreasonably to withhold its consent or approval, Landlord's sole\nremedy in case of such unreasonable withholding is an action for specific\nperformance or injunction directing such consent or approval and Tenant shall\nhave no liability for monetary damages. In any such action, the prevailing party\nshall be entitled to recover its reasonable attorneys fees and disbursements\nfrom the other party.\n\n (j) Neither Landlord nor Tenant shall, without the consent of the\nother party, refer to the other party, this Lease or any related transaction in\nany advertising, promotional material, publicity, press release or similar\nmaterial. This Article 35(j) shall not prohibit disclosures in any offering\nmaterials relating to any securitization of any mortgage debt on the Leased\nPremises or relating to any other type of public or private security offering.\n\n (k) No expiration or termination of the Term shall relieve Landlord\nor Tenant of its respective liabilities and obligations.\n\n (1) accruing hereunder prior to such expiration or\n termination, or\n\n (2) provided by this Lease to be performed after such\n expiration or termination (including without limitation\n Tenant's obligations under Section 15.4(k) in case of\n any termination of this Lease pursuant to Section 15.4),\n\nall of which shall survive such expiration or termination.\n\n (l) If any governmental agency or any electric, gas, water, steam,\nsewer or telecommunications utility or supplier shall require or request that\nany application or other document or instrument required or requested by it to\nbe furnished to it in connection with any Alterations or with any electric, gas,\nwater, steam, sewer or telecommunication service to the Leased Premises be\nexecuted by the owner of the Leased Premises, Landlord shall within\n\n (1) prior to Tenant's opening for the conduct of\n business in the Leased Premises, 2 Business Days after the\n submission of such application, document or instrument to it\n by Tenant, or\n\n (2) thereafter, 5 Business Days after the submission of\n such application, document or instrument to it by Tenant,\n\nexecute and return the same to Tenant. Notwithstanding the foregoing, Landlord\nshall have no obligation to execute and return any such application, document or\ninstrument unless such application, document or instrument is either (i)\nreasonable, or (ii) customarily required by any governmental agency or any\nelectric, gas, water, steam, sewer or telecommunications utility or\n\n\n -80-\n 91\n\nsupplier in situations similar to the situation in question, or (iii) required\nby any Legal Requirement. Any dispute as to whether Landlord shall be obligated\nto execute and return any application, document or instrument shall be subject\nto Expedited Arbitration. If Tenant shall prevail and Landlord shall not execute\nand return such application, document or instrument within 2 Business Days of\nthe decision in arbitration, Tenant is hereby appointed as attorney-in-fact of\nLandlord to execute such application, document or instrument.\n\n (m) This Lease shall be construed without regard to any presumption\nor other rule requiring construction against the party which drafted or caused\nto be drafted the provisions hereof.\n\n (n) If on (i) the date of any termination of this Lease pursuant to\nSection 15.4, (ii) the date of any termination of this Lease pursuant to Section\n16.2, or (iii) any expiration, termination or repossession pursuant to Article\n22 or 23, the aggregate amount theretofore disbursed by Landlord pursuant to\nSection 7 of the Initial Improvements Agreement shall be less than the Owner's\nFOW Cost Limit (as defined in the Initial Improvements Agreement), then (x) the\namount of the excess of the Owner's FOW Cost Limit over such aggregate amount\ntheretofore disbursed is herein called the \"Credit Amount\", and (y)\nnotwithstanding any provision of this Lease to the contrary, Tenant shall be\nentitled to a credit equal to the Credit Amount against (1) in the case of\nclause (i) above, the amount payable under Section 15.4(h)(ii), (2) in the case\nof clause (ii) above, the amount payable under the second paragraph of Section\n16.2, and (3) in the case of clause (iii) above, the amount payable under\nSection 25.2(b). Promptly after Landlord's request given at any time after the\naggregate amount disbursed by Landlord pursuant to said Section 7 shall exceed\nOwner's FOW Cost Limit, Tenant shall execute an instrument, in form reasonably\nsatisfactory to Landlord, confirm such fact and that Tenant shall have no right\nto any credit pursuant to this Section 35(n).\n\n (o) At the request of either party, the parties shall execute,\ndeliver and acknowledge a memorandum of this Lease under Section 291-c of the\nReal Property Law, and any other documents required in connection with the\nrecording thereof. The requesting party shall bear the costs of recording the\nsame.\n\n 36. Expedited Arbitration.\n\n The term \"Expedited Arbitration\" shall refer to arbitration under\nthis Article 36. In any case under this Lease in which a matter is to be\ndetermined by Expedited Arbitration, either party may give notice to the other\nstating that it wishes such dispute to be so determined. The arbitrator in any\nsuch matter shall be the first of the following that is able and willing to act\nas such:\n\n Lee Kuntz\n Lloyd Shor\n\nIf none of such named persons shall be able and willing to act as the\narbitrator, the parties shall apply to the American Arbitration Association\nlocated in the City of New York for the designation of such arbitrator and if no\narbitrator shall have been appointed within 10 Business\n\n\n -81-\n 92\n\nDays then either party may apply to the Supreme Court in New York County or to\nany other court having jurisdiction for the designation of such arbitrator. Any\narbitrator so appointed shall be an attorney who is a partner at a law firm\nhaving at least 100 attorneys and shall have at least 15 years experience in the\npractice of commercial real estate in the Borough of Manhattan. The arbitrator\nshall conduct such hearings as he or she may deem appropriate, and shall notify\nLandlord and Tenant of his or her determination as soon as practicable, and, if\nreasonably possible, within 5 Business Days after the designation of the\narbitrator. Judgment upon any decision rendered in arbitration held pursuant to\nthis Article 36 shall be final and binding upon Landlord and Tenant, whether or\nnot a judgment shall be entered in any court. Each party shall pay its own\ncounsel fees and expenses, if any, in connection with any arbitration under this\nArticle 36, and the parties shall share the fees of the arbitrator and all other\nexpenses and fees of any such arbitration. The arbitrator shall select as his or\nher determination the determination of either Landlord or Tenant in the matter\nthat is in dispute, except that in arbitrations under Section 1.3, Article 38 or\nArticle 39 the arbitrator may make his or her determination partially in favor\nof one party and partially in favor of the other, but in no event shall the\narbitrator make any award in excess of the amount claimed due by Tenant. The\narbitrator shall be bound by the provisions of this Lease, and shall not add to,\nsubtract from or otherwise modify such provisions.\n\n 37. Subordination\n\n (a) Subject to Section 37(b), this Lease is subject and subordinate\nto each mortgage (a \"Superior Mortgage\") which may now or hereafter affect all\nor any portion of the Leased Premises. The mortgagee under a Superior Mortgage\nis called a \"Superior Mortgagee\". Tenant shall execute, acknowledge and deliver\nany instrument reasonably requested by Landlord or a Superior Mortgagee to\nevidence such subordination, but no such instrument shall be necessary to make\nsuch subordination effective. Tenant shall execute any amendment of this Lease\nrequested by a Superior Mortgagee, provided such amendment shall not (i)\nincrease the rent, (ii) reduce or extend the Term, (iii) enlarge or diminish the\nLeased Premises, (iv) other than to a de minimis extent, increase Tenant's\nobligations under this Lease or reduce Landlord's obligations under this Lease,\n(v) other than to a de minimis extent, reduce Tenant's rights under this Lease\nor increase Landlord's rights under this Lease, or (vi) other than to a de\nminimis extent, otherwise adversely affect Tenant. In the event of the\nenforcement by a Superior Mortgagee of the remedies provided for by law or by\nsuch Superior Mortgage Tenant, upon request of any person succeeding to the\ninterest of Landlord (a \"Successor Landlord\"), shall automatically become the\ntenant of such Successor Landlord upon the terms of any Non-Disturbance\nAgreement between Tenant and the applicable Superior Mortgagee.\n\n (b) Notwithstanding Section 37(a), this Lease shall not be subject\nand subordinate to any Superior Mortgage unless the Superior Mortgagee under\nsuch Superior Mortgage shall have executed and delivered to Tenant a\nnon-disturbance agreement in the form attached hereto as Exhibit D or another\nform no less favorable to Tenant in any material respect (a \"Non-Disturbance\nAgreement\"). Anything contained in Section 37(a) to the contrary\nnotwithstanding, if (i) such Superior Mortgagee executes and delivers to Tenant\na Non-Disturbance Agreement accompanied by a notice from Landlord including the\nfollowing statement in block capital letters -THIS NOTICE IS BEING GIVEN UNDER\nSECTION 37(B)\n\n\n -82-\n 93\n\nOF YOUR LEASE. YOUR FAILURE TIMELY TO RESPOND MAY RESULT IN LANDLORD BEING\nDEEMED TO HAVE SATISFIED ITS OBLIGATION UNDER SAID SECTION 37(B) WITH RESPECT TO\nTHE MORTGAGE IN QUESTION - and (ii) Tenant either fails or refuses to execute\nand deliver such Non-Disturbance Agreement within 15 Business Days after\ndelivery of such Non-Disturbance Agreement to Tenant, then, so long as such\nSuperior Mortgagee does not withdraw such Non-Disturbance Agreement and the same\nremains available for acceptance and execution by Tenant, Landlord shall be\ndeemed to have satisfied its obligation under this Section 37(b) and shall have\nno further obligation to deliver to Tenant a Non-Disturbance Agreement with\nrespect to the Superior Mortgage in question.\n\n 38. Landlord's Failure to Pay Taxes\n\n (a) If Tenant believes that Landlord has failed timely to pay to the\nappropriate governmental agency any amount which Landlord is required by Section\n11.2 to pay, then (i) Tenant may give Landlord a notice (an \"Article 38 Demand\nNotice\") specifying and identifying such amount (an \"Article 38 Demand Amount\")\nand containing the following statement in block capital letters: \"THIS NOTICE IS\nBEING GIVEN UNDER ARTICLE 38 OF OUR LEASE. YOUR FAILURE TIMELY TO PAY THE TAXES\nHEREIN SPECIFIED AND FURNISH EVIDENCE THEREOF TO TENANT WILL RESULT IN TENANT\nHAVING THE RIGHT TO PAY SUCH TAXES AND OFFSET THE AMOUNT SO PAID AGAINST RENT\nDUE UNDER THE LEASE\" and (ii) at any time on or after the 30th day after the\ngiving of such Article 38 Demand Notice Tenant may pay the Article 38 Demand\nAmount or any portion thereof to the appropriate governmental agency (together\nwith all interest, penalties, late charges and similar fees thereon or with\nrespect thereto); provided, that if within 30 days after the giving of the\nArticle 38 Demand Notice Landlord notifies Tenant that Landlord has paid all of\nsuch Article 38 Demand Amount to the appropriate governmental agency (together\nwith all interest, penalties, late charges and similar fees thereon or with\nrespect thereto) (which notice shall include evidence of such payment) and\nLandlord has actually done so Tenant shall not be entitled to make payment of\nthe Article 38 Demand Amount or any portion thereof, and if within 30 days after\nthe giving of such Article 38 Demand Notice Landlord notifies Tenant that\nLandlord has paid a portion identified and specified in such notice of the\nArticle 38 Demand Amount to the appropriate governmental agency (together with\nall interest, penalties, late charges and similar fees thereon or with respect\nthereto) (which notice shall include evidence of such payment) and Landlord has\nactually done so Tenant may pay only the balance of such Article 38 Demand\nAmount not so paid by Landlord or any portion of such balance to the appropriate\ngovernmental agency (together with all interest, penalties, late charges and\nsimilar fees thereon or with respect thereto). The amount paid by Tenant\npursuant to this Section 38(a) is called an \"Article 38 Advance\").\n\n (b) If Tenant makes an Article 38 Advance in accordance with Section\n38(a), then, except as otherwise provided in Section 38(c), (i) Landlord shall\nreimburse to Tenant within 15 days after Tenant's demand therefor the amount of\nthe Article 38 Advance, together with interest thereon at the Interest Rate from\nthe date of payment by Tenant to the date on which Landlord so reimburses\nTenant, (ii) if Landlord shall fail timely to make such reimbursement, Tenant\nshall have the right to set-off the amount of the Article 38 Advance together\nwith such\n\n\n -83-\n 94\n\ninterest thereon against the rent under this Lease (exclusive of the\nSupplemental Rent), and (iii) Landlord shall be deemed to have waived its right\nto claim that such setoff was improper or constitutes a failure to pay rent or\nother default under this Lease; provided, that Landlord shall have the right to\nbring and maintain a separate action against Tenant as provided for in Section\n38(d).\n\n (c) If within 30 days after the giving of the Article 38 Demand\nNotice, Landlord notifies Tenant (an \"Article 38 Dispute Notice\") that Landlord\nbelieves that all or a portion identified and specified in such Article 38\nDispute Notice of the Article 38 Demand Amount is not required by Section 11.2\nto be paid by Landlord or is not overdue (in either case all or such identified\nand specified portion being herein called the \"Disputed Article 38 Amount\"),\nthen Landlord shall not be required to reimburse Tenant and Tenant shall not\nhave a right of set-off with respect to the Disputed Article 38 Amount except to\nthe extent that the dispute with respect thereto is resolved in Tenant's favor\nin accordance with the next sentence. Tenant shall have the right, with respect\nto any such dispute, to elect by notice to Landlord that such dispute be\nresolved by litigation or Expedited Arbitration, but any such election shall be\nirrevocable with respect to the dispute in question.\n\n (d) If Landlord does not timely give an Article 38 Dispute Notice,\nLandlord shall nevertheless have the right to recover from Tenant by separate\naction so much of the Article 38 Demand Amount setoff by Tenant as Landlord was\nnot required by Section 11.2 to pay or which was not overdue; provided, that\nLandlord's sole remedy in such an action shall be a money judgment against\nTenant.\n\n (e) Notwithstanding the provisions of Section 20(b) or the\nprovisions of the definition of the term \"Landlord\" set forth in Article 31,\nTenant's rights under this Article 38 shall survive any sale, conveyance,\nassignment or other transfer of the Leased Premises and after any thereof shall\ncontinue to be enforceable against the new owner of the Leased Premises,\nnotwithstanding that the amounts to which such rights relate were originally\nrequired to be paid by such new owner's predecessor.\n\n (f) The provisions of this Article 38 shall also be applicable to\nthe net annual rental which Landlord is required to pay under the Ground Lease,\nmutatis mutandis. In applying such provisions to such net annual rent,\nreferences in this Article 38 to the \"appropriate governmental agency\" shall be\ndeemed to refer to the landlord under the Ground Lease and references in this\nArticle 38 to \"Section 11.2\" shall be deemed to refer to the provisions of the\nGround Lease requiring the payment of net annual rental.\n\n 39. Landlord's Failure to Pay Costs of Base Building Upgrade Work or\nFit-Out Work\n\n (a) If Tenant believes that Landlord has failed timely to pay to the\nappropriate party any amount which Landlord is required by Section 6 or 7 of the\nInitial Improvements Agreement to pay, then (i) Tenant may give Landlord a\nnotice (an \"Article 39 Demand Notice\") specifying and identifying such amount\n(an \"Article 39 Demand Amount\") and containing the following statement in block\ncapital letters: \"THIS NOTICE IS BEING GIVEN UNDER ARTICLE 39 OF\n\n\n -84-\n 95\n\nOUR LEASE. YOUR FAILURE TIMELY TO PAY THE COSTS HEREIN SPECIFIED AND FURNISH\nEVIDENCE THEREOF TO TENANT WILL RESULT IN TENANT HAVING THE RIGHT TO PAY SUCH\nCOSTS AND OFFSET THE AMOUNT SO PAID AGAINST RENT DUE UNDER THE LEASE\" and (ii)\nat any time on or after the 10th day after the giving of such Article 39 Demand\nNotice Tenant may pay the Article 39 Demand Amount or any portion thereof to the\nappropriate party (together with all interest, penalties, late charges and\nsimilar fees thereon or with respect thereto) provided, that if within 10 days\nafter the giving of the Article 38 Demand Notice Landlord notifies Tenant that\nLandlord has paid all of such Article 39 Demand Amount to the appropriate party\n(together with all interest, penalties, late charges and similar fees thereon or\nwith respect thereto) (which notice shall include evidence of such payment) and\nLandlord has actually done so Tenant shall not be entitled to make payment of\nthe Article 39 Demand Amount or any portion thereof and if within 10 days after\nthe giving of such Article 39 Demand Notice Landlord notifies Tenant that\nLandlord has paid a portion identified and specified in such notice of the\nArticle 39 Demand Amount to the appropriate party (together with all interest,\npenalties, late charges and similar fees thereon or with respect thereto) (which\nnotice shall include evidence of such payment) and Landlord has actually done so\nTenant may pay only the balance of such Article 39 Demand Amount not so paid by\nLandlord or any portion of such balance to the appropriate party (together with\nall interest, penalties, late charges and similar fees thereon or with respect\nthereto). The amount paid by Tenant pursuant to this Section 39(a) is called an\n\"Article 39 Advance\").\n\n (b) If Tenant makes an Article 39 Advance in accordance with Section\n39(a), then, except as otherwise provided in Section 39(c), (i) Landlord shall\nreimburse to Tenant within 15 days after Tenant's demand therefor the amount of\nthe Article 39 Advance, together with interest thereon at the Interest Rate from\nthe date of payment by Tenant to the date on which Landlord so reimburses\nTenant, (ii) if Landlord shall fail timely to make such reimbursement, Tenant\nshall have the right to setoff the amount of the Article 39 Advance together\nwith such interest thereon against the rent under this Lease, and (iii) Landlord\nshall be deemed to have waived its right to claim that such setoff was improper\nor constitutes a failure to pay rent or other default under this Lease and its\nright to bring and maintain a separate action against Tenant to recover all or\nany portion of the Article 39 Demand Amount.\n\n (c) If within 10 days after the giving of the Article 39 Demand\nNotice, Landlord notifies Tenant (an \"Article 39 Dispute Notice\") that Landlord\nbelieves that all or a portion identified and specified in such Article 39\nDispute Notice of the Article 39 Demand Amount is not required by Section 6 or 7\nof the Initial Improvements Agreement to be paid by Landlord or is not overdue\n(in either case all or such identified and specified portion being herein called\nthe \"Disputed Article 39 Amount\"), then Landlord shall not be required to\nreimburse Tenant and Tenant shall not have a right of set-off with respect to\nthe Disputed Article 39 Amount except to the extent that the dispute with\nrespect thereto is resolved in Tenant's favor in accordance with the next\nsentence. Tenant shall have the right, with respect to any such dispute, to\nelect by notice to Landlord that such dispute be resolved by litigation or\nExpedited Arbitration, but any such election shall be irrevocable with respect\nto the dispute in question.\n\n\n -85-\n 96\n\n (d) Notwithstanding the provisions of Section 20(b) or the\nprovisions of the definition of the term \"Landlord\" set forth in Article 31,\nTenant's rights under this Article 39 shall survive any sale, conveyance,\nassignment or other transfer of the Leased Premises and after any thereof shall\ncontinue to be enforceable against the new owner of the Leased Premises,\nnotwithstanding that the amounts to which such rights relate were originally\nrequired to be paid by such new owner's predecessor.\n\n (e) For purposes of computing the Base Building Savings, the Base\nBuilding Savings Constant Payment and the Base Building Savings Credit, Landlord\nshall be deemed to have disbursed pursuant to Section 6 of the Initial\nImprovements Agreement all amounts reimbursed by Landlord or set-off by Tenant\npursuant to this Article 39, exclusive of all such amounts representing\ninterest, penalties, late charges or similar fees paid by Tenant or interest\npaid by Landlord. The resulting decrease in the Base Building Savings Constant\nPayment and Base Building Savings Credit shall be effective as of the Basic Rent\npayment date next following such reimbursement or set-off and, if such Basic\nRent payment date shall be after the Rent Commencement Date, shall be computed\nwith respect to the number of months provided for in the definition of \"Base\nBuilding Constant Monthly Payment\" minus the number of months in the period\ncommencing with the Base Building Savings Commencement Date and ending on the\nday preceding the day prior to such Basic Rent payment date, rather than the\nnumber of months provided for in the definition of \"Base Building Constant\nMonthly Payment\". Promptly after such reimbursement or set-off Landlord and\nTenant shall join in one or more supplements to the instruments referred to in\nthe penultimate paragraph of Section 1.6 confirming the matters set forth in\nthis Section 39(e). The failure of either party to execute such supplement shall\nnot constitute a default hereunder or otherwise affect this Lease.\n\n (f) Each Article 39 Advance shall constitute a loan from Tenant to\nLandlord and notwithstanding Tenant's having made such Article 39 Advance the\nBase Building Upgrade Work and\/or the Fit-Out Work to which such Article 39\nAdvance shall relate, shall nonetheless constitute the property of Landlord, a\npart of the Lease Premises and subject to the Lease.\n\n IN WITNESS WHEREOF, Landlord and Tenant have caused this lease to be duly\nexecuted and delivered, all as of the date and year first above written.\n\n TEN HANOVER L.L.C.\n By: NEXT GENERATION DEVELOPMENT, L.L.C.\n its sole manager\n\n By: \/s\/ Steven C. Witkoff\n -------------------------------------\n Steven C. Witkoff, its sole manager\n\n\n THE GOLDMAN SACHS GROUP L.P\n\n By: \/s\/ Edward F. Markiewicz\n -------------------------------------\n Edward F. Markiewicz\n Attorney-in-Fact\n\n\n -86-\n 97\n\n Exhibit A\n\n The Land\n\nAll that certain plot, piece or parcel of land, situate, lying and being in the\nBorough of Manhattan, City and State o New York, more particularly bounded and\ndescribed as follows:\n\nBEGINNING at the corner formed by the intersection of the northeasterly side of\nHanover Square and the southeasterly side of Pearl Street;\n\nRUNNING THENCE Northeasterly along the southeasterly side of Pearl Street,\n187.129 feet to a point;\n\nTHENCE RUNNING along a line forming an interior angle of 92 degrees 26 minutes\n50 seconds to the last mentioned course, 120.854 feet to the northwesterly side\nof Water Street;\n\nTHENCE RUNNING along the northwesterly side of Water Street, 189.352 feet to the\nnortheasterly side of Hanover Square;\n\nTHENCE RUNNING along the northeasterly side of Hanover Square, 138.897 feet to\nthe point or place of BEGINNING.\n\n\n A-1\n 98\n\n Exhibit B\n\n Initial Tax Payments\n\n<\/pre>\n
\n\n——————————————————————————–
\nThe monthly Tax Payment due on the first day is
\n of each month of the 12 month period
\n beginning July 1,
\n——————————————————————————–
\n
\n 1998 7,189.00
\n——————————————————————————–
\n 1999 14,593.67
\n——————————————————————————–
\n 2000 22,220.48
\n——————————————————————————–
\n 2001 30,076.09
\n——————————————————————————–
\n 2002 38,167.38
\n——————————————————————————–
\n 2003 46,501.40
\n——————————————————————————–
\n 2004 55,085.44
\n——————————————————————————–
\n 2005 63,927.00
\n——————————————————————————–
\n 2006 73,033.81
\n——————————————————————————–
\n 2007 82,413.83
\n——————————————————————————–
\n<\/c><\/s><\/caption>\n<\/table>\n B-1
\n 99<\/p>\n
Exhibit C<\/p>\n
Permitted Encumbrances<\/p>\n
1) Lease dated July 13, 1965, from Helen H. Arnold, individually and as the
\n Executrix of the Estate of Thomas B. Hall, deceased, Patricia Arnold, as
\n infant by Helen H. Arnold her General Guardian and Elizabeth J. Hall, as
\n lessor, to Cradle Realty Corporation, as lessee, a memorandum of which is
\n recorded in Reel 5335 at Page 210, as amended by Amendment to Lease dated
\n May 15, 1969 and recorded November 5, 1969 in Reel 155 at Page 1135 and by
\n Agreement dated as of August 1, 1985 between Helen H. Arnold and Patricia
\n Arnold Lawless, as landlord, and The Hanover Square Company, as tenant,
\n affecting a portion of the Land.<\/p>\n
2) Amended and Restated First Mortgage, Consolidation and Security Agreement
\n between Ten Hanover LLC and CS First Boston Mortgage Capital Corp. dated
\n as of November 15, 1996 recorded November 27, 1996 in Reel 2396 at page
\n 1552 and all of the mortgages referred to therein.<\/p>\n
3) First Assignment of Leases and Rents, made by Ten Hanover LLC to CS First
\n Boston Mortgage Capital Corp., dated November 15, 1996 recorded November
\n 27, 1996 in Reel 2396 page 1634.<\/p>\n
4) Second Mortgage and Security Agreement made by Ten Hanover LLC to CS First
\n Boston Mortgage Capital Corp. dated November 15, 1996 recorded November
\n 27, 1996 in Reel 2396 at page 1546, as amended by First Modification of
\n the Second Mortgage and Security Agreement dated __________, recorded
\n __________ in Reel ___ at page ___, and by the Second Modification of the
\n Second Mortgage and Security Agreement dated August 14, 1997, intended to
\n recorded.<\/p>\n
5) Second Assignment of Leases and Rent, made by Ten Hanover LLC to CS First
\n Boston Mortgage Capital Corp., dated November 15, 1996 recorded November
\n 27, 1996 in Reel 2396 page 1729.<\/p>\n
6) Additional Mortgage and Security Agreement made by Ten Hanover LLC to CS
\n First Boston Mortgage Capital Corp. dated August 14, 1997, intended to be
\n recorded.<\/p>\n
7) Additional Assignment of Leases and Rent, made by Ten Hanover LLC to CS
\n First Boston Mortgage Capital Corp., dated November 14, 1997, intended to
\n be recorded<\/p>\n
8) Reservation of Water Course as set forth in deed recorded in Liber 3735
\n page 36.<\/p>\n
9) Any state of facts as an accurate survey may show.<\/p>\n
C-1
\n 100<\/p>\n
Exhibit D<\/p>\n
Non-Disturbance Agreement<\/p>\n
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”),
\nmade as of the _______ day of _____________, ___ by and among [_______________],
\na _________________ having an address at _____________ (“Mortgagee”), and THE
\nGOLDMAN SACHS GROUP, L.P., a Delaware limited partnership having an office at 85
\nBroad Street, New York, N.Y. 10004 (“Tenant”)<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, TEN HANOVER LLC, a New York limited liability company
\n(“Landlord”) and Tenant have entered into (i) a lease dated as of ____________,
\nwith respect to the land described on Exhibit A hereto and all buildings,
\nstructures, fixtures and equipment thereon (the “Original Lease”) and (ii) an
\ninitial improvements agreement dated as of __________, with respect to certain
\nimprovements to be made in and to the premises demised by the aforesaid lease
\n(the “Original Initial Improvements Agreement”) (the Original Lease and the
\nOriginal Initial Improvements Agreement, along with any amendments to either
\nthereof to which Mortgagee consents in writing, being referred to hereinafter as
\nthe “Lease” and the premises demised by the Lease from time to time being
\nreferred to hereinafter as the “Premises”);<\/p>\n
WHEREAS, Mortgagee is the holder of the mortgages described on Exhibit B
\nhereto (collectively, together with all renewals, modifications, consolidations,
\nreplacements, substitutions, additions and extensions, and as spread or
\nconsolidated, the “Mortgages”), which encumber the Premises and Landlord’s
\ninterest in the Lease;<\/p>\n
WHEREAS, the Lease provides that, upon execution and delivery of this
\nAgreement, the Lease and all of Tenant’s rights thereunder are and shall be at
\nall times and in all respects subject and subordinate to the lien of the
\nMortgages, and to all advances now or hereafter made under or secured by the
\nMortgages; and<\/p>\n
WHEREAS, Mortgagee and Tenant desire to enter into this Agreement upon the
\nterms, covenants and conditions contained herein.<\/p>\n
NOW, THEREFORE, in consideration of the agreements of the parties
\ncontained herein, the parties hereby agree as follows:<\/p>\n
1. Tenant hereby confirms that the Lease and all of Tenant’s rights
\nthereunder are and shall be at all times and in all respects subject and
\nsubordinate to the lien of the Mortgages, and to all advances now or hereafter
\nmade under or secured by the Mortgages. Notwithstanding the provisions of this
\nParagraph 1 or any other provision hereof or any of the provisions of the
\nMortgages, Mortgagee specifically agrees that all insurance proceeds and all
\nproceeds of any Taking (as such term is defined in the Lease) shall be paid,
\nheld and applied as provided for in the Lease; provided, however, that when, if
\nand to the extent that the Lease provides that any<\/p>\n
D-1-
\n 101<\/p>\n
such proceeds are to be paid to Landlord, the provisions of the Mortgages shall
\ngovern and control such proceeds as between Landlord and Mortgagee.<\/p>\n
[In any non-disturbance agreement executed and delivered prior to the full
\ndisbursement of all amounts required to be available to pay Owner’s BBW Cost
\nInstallments and Owner’s FOW Cost Installments under Sections 6 and 7 of the
\nOriginal Initial Improvements Agreement, insert the following paragraph:<\/p>\n
Mortgagee further agrees that all of the funds required by Sections 6 and
\n7 of the Original Initial Improvements Agreement to be available to pay Owner’s
\nBBW Cost Installments and Owner’s FOW Cost Installments (as such terms are
\ndefined in the Original Initial Improvements Agreement) shall be held in
\nseparate bank accounts under Mortgagee’s control and, provided that Tenant shall
\nnot be in default under the Lease beyond the applicable grace period provided
\nfor therein with respect to the default in question, shall be used and applied
\nin accordance with said Sections 6 and 7, and that, provided that Tenant shall
\nnot be in default under the Lease beyond the applicable grace period provided
\nfor therein, all rights of Mortgagee in and to said funds shall be subject and
\nsubordinate in all respects to Tenant’s rights under said Sections 6 and 7 to
\nrequire that such funds be so used and applied.]<\/p>\n
2. Provided that Tenant shall not be in default under the Lease beyond the
\napplicable grace period provided therein with respect to the default in question
\nas of the date Mortgagee commences a foreclosure action or proceeding to enforce
\nthe Mortgages, (a) Tenant shall not be named as a party in any foreclosure
\naction or proceeding to enforce the Mortgages (unless such joinder shall be
\nrequired under applicable law, and in which case Mortgagee shall not seek
\naffirmative relief from Tenant in such action or proceeding) nor shall the Lease
\nbe cut off or terminated nor Tenant’s possession or other rights thereunder be
\ndisturbed in any such action or proceeding and (b) subject to the provisions of
\nParagraphs 4 and 5 of this Agreement, Mortgagee will recognize the Lease and
\nTenant’s rights thereunder.<\/p>\n
3. Upon any foreclosure of the Mortgage or other acquisition of the
\nPremises (whether by deed-in-lieu of foreclosure, in connection with a
\nproceeding under the United States Bankruptcy Code or any amendments,
\nmodifications or supplements thereto or replacements thereof (the “Code”) or
\notherwise), Tenant shall attorn to Mortgagee or any other party acquiring said
\nproperty or so succeeding to Landlord’s rights (any such party, including
\nMortgagee in such capacity, being the “Successor Landlord”) and shall recognize
\nthe Successor Landlord as its landlord under the Lease, and Tenant shall
\npromptly execute and deliver any instruments that the Successor Landlord may
\nreasonably request in writing to evidence further said attornment.<\/p>\n
4. Upon such attornment, the Lease shall continue as a direct lease
\nbetween the Successor Landlord and Tenant upon all the terms, covenants and
\nconditions thereof except that, subject to the provisions of Paragraph 5 below,
\nthe Successor Landlord shall not be (a) liable for any previous act or omission
\nof Landlord under the Lease, but Successor Landlord shall be liable for any act
\nor omission of Successor Landlord under the Lease occurring after such
\nattornment, including the failure of Successor Landlord to remedy, within a
\nreasonable time after such attornment, any default by Landlord in performing any
\nof its obligations under the Lease which<\/p>\n
D-2-
\n 102<\/p>\n
continues after such attornment, (b) subject to any offsets, defenses, claims or
\ncounterclaims that Tenant may have against Landlord or any predecessor landlord,
\nbut Successor Landlord shall be subject to any offset, defense, claim or
\ncounterclaim available to the Tenant under the Lease accruing after such
\nattornment, (c) bound by any payment of rent or other charges under the Lease
\nmade more than thirty (30) days prior to its due date unless such payment shall
\nhave been expressly approved in writing by Mortgagee or (d) bound by any
\namendment, modification, extension, expansion, termination, cancellation or
\nsurrender of the Lease unless Mortgagee has consented thereto in writing or
\nunless the same is effected pursuant to any of the terms or provisions of the
\nLease.<\/p>\n
5. Notwithstanding the foregoing, upon such attornment, Successor Landlord
\nshall be subject to all of Tenant’s rights (including rights of set-off) and
\nremedies under Articles 38 and 39 of the Original Lease, as amended by any
\namendments to which Mortgagee consents in writing, even if such rights and
\nremedies shall have accrued prior to such attornment and even if Landlord’s acts
\nor omissions shall have caused or contributed to the condition or delay giving
\nrise to such rights and remedies.<\/p>\n
6. The attornment provided for in Paragraph 3 of this Agreement shall
\ninure to the benefit of any Successor Landlord, shall be self-operative, and no
\nfurther instrument shall be required to give effect to the attornment. Tenant,
\nhowever, upon demand of any Successor Landlord, agrees to execute, from time to
\ntime, instruments in confirmation thereof, reasonably satisfactory to any such
\nSuccessor Landlord, acknowledging such attornment and setting forth the terms
\nand conditions of its tenancy. Nothing contained in this Paragraph 6 shall be
\nconstrued to impair any right otherwise exercisable by any such Successor
\nLandlord.<\/p>\n
7. From and after the date hereof, Tenant shall at the same time such
\nnotice is sent to Landlord, send to Mortgagee a copy of any notice of default or
\nnotice in connection with the commencement of any action to terminate the Lease
\n(whether in connection with a proceeding pursuant to the Code or otherwise) on
\naccount of any default and agrees that, notwithstanding any provisions of the
\nLease to the contrary, no such notice shall be deemed to have been given unless
\nMortgagee shall have been given such notice. Such notices shall be sent by
\ncertified or registered mail, postage prepaid, return receipt requested or shall
\nbe delivered to Mortgagee at Mortgagee’s address first set forth above (or at
\nsuch other address as Mortgagee shall specify in a written notice to Tenant at
\nthe address first specified above for Tenant). Any such notice shall be deemed
\nto be given to Mortgagee on the earlier of (a) the day of receipt (as evidenced
\nby a receipt signed by Mortgagee or the refusal to accept delivery by Mortgagee)
\nor (b) three (3) days after Tenant’s deposit of such notice in the mail, first
\nclass postage prepaid. With respect to the commencement by Tenant of any action
\nto terminate the Lease, Mortgagee shall have the right, but not the obligation,
\nto cure any default on the part of Landlord that is the basis for such action
\nwithin a reasonable time (including the time required for Mortgagee to obtain
\npossession of the Premises if such possession is necessary to effect such cure)
\nafter receipt of the notice by Tenant with respect to such action. This
\nParagraph 7 shall not be applicable to any termination of the Lease in whole or
\nin part (or rescission of the exercise of any expansion option or right)
\npursuant to any provision of the Lease providing for such a termination (or
\nrescission).<\/p>\n
D-3-
\n 103<\/p>\n
8. Tenant shall not, without Mortgagee’s prior written consent, cancel,
\nsurrender or terminate the Lease and any attempt to do so shall be null and void
\nand of no force or effect. This Paragraph 8 shall not be applicable to any
\ncancellation, surrender or termination of the Lease in whole or in part (or
\nrescission of the exercise of any expansion option or right) pursuant to any
\nprovision of the Lease expressly providing for such a cancellation, surrender or
\ntermination (or rescission).<\/p>\n
9. Tenant acknowledges that Landlord’s interest under the Lease has been
\nassigned to Mortgagee as further security for the indebtedness secured by the
\nMortgages. In the event Mortgagee notifies Tenant of a default under the
\nMortgages and demands that Tenant pay its rent and all other sums due under the
\nLease to Mortgagee, Tenant agrees that it shall pay its rent and all other sums
\ndue under the Lease to Mortgagee.<\/p>\n
10. Tenant and Mortgagee acknowledge that this Agreement satisfies all
\nconditions and requirements in the Lease relating to the granting of a
\nnon-disturbance agreement by Mortgagee.<\/p>\n
11. This Agreement is not intended to amend the Mortgages, nor is it
\nintended to increase or diminish the rights and obligations under the Mortgages
\nof the parties thereto.<\/p>\n
12. By signing below, each of the signatories to this Agreement represents
\nthat (a) it has full power and authority to execute this Agreement and to bind
\nitself to performance hereunder and (b) the execution and delivery of this
\nAgreement (1) have been duly authorized by all necessary acts on its part, (2)
\ndo not violate or conflict with its organizational documents, (3) do not
\nconflict with any law or judgment of a government authority applicable to it and
\n(4) do not result in the breach of or constitute a default under any agreement
\nor other obligation to which it is a party.<\/p>\n
13. This Agreement may not be modified, amended or terminated unless in
\nwriting and duly executed by the party against whom the same is sought to be
\nasserted and constitutes the entire agreement between the parties with respect
\nto the subject matter hereof. Upon execution by every party hereto, this
\nAgreement shall supersede any previously executed agreement in effect between
\nthe Mortgagee and Tenant with respect to the matters addressed herein.<\/p>\n
14. This Agreement shall be governed by the laws of the State of New York
\napplicable to agreements made and to be performed within such State. The
\nundersigned hereby submit to personal jurisdiction in the State of New York for
\nall matters, if any, which shall arise with respect to this Agreement, and waive
\nany and all rights under the laws of any other state or country to object to
\njurisdiction within the State of New York or to institute a claim of forum non
\nconveniens with respect to any court in the State of New York for the purposes
\nof litigation with respect to this Agreement.<\/p>\n
15. This Agreement shall bind and inure to the benefit of the parties
\nhereto and their respective successors and assigns.<\/p>\n
D-4-
\n 104<\/p>\n
16. Anything herein or in the Lease to the contrary notwithstanding, if
\nMortgagee or a Successor Landlord shall acquire title to the Property, or shall
\notherwise become liable for any obligations of Landlord under the Lease,
\nMortgagee and any such Successor Landlord shall have no obligation, nor incur
\nany liability, beyond Mortgagee’s or such Successor Landlord’s then interest, if
\nany, in the Property and Tenant shall look exclusively to such interest, if any,
\nof Mortgagee or such Successor Landlord in the Property for the payment and
\ndischarge of any obligations imposed upon Mortgagee or such Successor Landlord
\nhereunder or under the Lease. Tenant agrees that with respect to any money
\njudgment that may be obtained or secured by Tenant against Mortgagee or a
\nSuccessor Landlord, Tenant shall look solely to the estate or interest owned by
\nMortgagee or such Successor Landlord in the Property and Tenant shall not
\ncollect or attempt to collect any such judgment out of any other assets of
\nMortgagee or such Successor Landlord.<\/p>\n
D-5-
\n 105<\/p>\n
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
\nas of the day and year first above written.<\/p>\n
[Lender]<\/p>\n
By: ______________________________
\n Name:
\n Title:<\/p>\n
THE GOLDMAN SACHS GROUP, L.P.<\/p>\n
By: The Goldman Sachs Corporation,
\n its general partner<\/p>\n
By: ______________________________
\n Name:
\n Title:<\/p>\n
D-6-<\/p>\n
106<\/p>\n
Exhibit E<\/p>\n
Major Building Equipment<\/p>\n
HVAC<\/p>\n
Any cooling tower
\nThe collection basin of any cooling tower
\nAny chiller
\nThe evaporator shell or tubes of any chiller
\nThe condenser shell or tubes of any chiller
\nThe steam condenser or tubes of any chiller
\nAny fan system heating coil
\nAny fan system cooling coil
\nAny fan system fan housing
\nAny fan system fan wheel
\nAny air receiver
\nAny chilled water riser
\nAny condenser water riser
\nAny steam riser
\nAny house tank
\nAny condensate riser
\nAny heating water riser<\/p>\n
Electrical<\/p>\n
Any electrical riser feeder (normal or emergency) 400 amps or higher
\nAny electrical horizontal feeder (normal or emergency) at or below ground level
\n 400 amps or higher
\nAny motor control center (normal or emergency)
\nAny motor starter (normal or emergency) 200 amps or higher
\nAny diesel engine
\nAny emergency power system generator 1000 KW or higher<\/p>\n
Elevator<\/p>\n
The hoist motor of any elevator
\nThe motor generator of any elevator<\/p>\n
Plumbing and Fire Prevention<\/p>\n
Any domestic hot or cold water riser or main
\nAny sanitary waste riser or main
\nAny storm drainage riser or main
\nAny fire standpipe riser or main<\/p>\n
E-1-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7660],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9603,9579],"class_list":["post-41670","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-goldman-sachs-group-inc","corporate_contracts_industries-financial__securities","corporate_contracts_types-land__ny","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41670","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41670"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41670"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41670"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41670"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}