Exhibit 10.5

AGREEMENT OF SUBLEASE (NYT-2)

By and Between

42ND ST. DEVELOPMENT PROJECT, INC.,

Landlord,

and

NYT REAL ESTATE COMPANY LLC

Tenant

Dated as of:  March 6, 2009

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This AGREEMENT OF SUBLEASE (this “Lease”), is made as of the 6th day of March, 2009, by and between 42ND ST. DEVELOPMENT PROJECT, INC. (“42DP”), a subsidiary of New York State Urban Development Corporation (“UDC”) d/b/a Empire State Development Corporation (“ESDC”), a corporate governmental agency of the State of New York constituting a political subdivision and public benefit corporation, having an office at ▇▇▇ ▇▇▇▇▇  ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as landlord (in such capacity, “Landlord”), and NYT REAL ESTATE COMPANY LLC, a New York limited liability company, having an office at c/o The New York Times Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as tenant (in such capacity “Tenant”).

W I T N E S S E T H :

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

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

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

WHEREAS, pursuant to that certain Assignment and Assumption Agreement dated as of August 15, 2006 (being the “Lease Assignment Date” under the Initial Ground Lease) between NYTB and Landlord (the “Assignment”), NYTB assigned to Landlord all of NYTB’s right, title and interest in and to the Initial Ground Lease and the Initial Severance Subleases;

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

WHEREAS, the Initial Ground Lease was amended and restated pursuant to Amended and Restated Agreement of Lease dated as of August 15, 2006 and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644736, which Amended and Restated Agreement of Lease was amended by First Amendment to Amended and Restated Agreement of Lease dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100154;

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WHEREAS, the Initial NYTC Sublease was amended pursuant to First Amendment to Agreement of Sublease (NYT) dated as of August 15, 2006 between Landlord and Tenant and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644735 and by Second Amendment to Agreement of Sublease (NYT) dated as of January 29, 2007 between Landlord and Tenant and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100157 (the Initial NYTC Sublease, as so amended, and as further amended by the Third Amendment, hereinafter defined, the “Existing NYTC Sublease”);

WHEREAS, pursuant to that certain Assignment and Assumption of ▇▇ ▇▇▇▇▇▇▇▇▇ Sublease dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth Ave., LLC, a Delaware limited liability company (“FC Eighth”), as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 200600644730 FC Lion assigned to FC Eighth, and FC Eighth assumed, all of FC Lion’s right, title and interest in, to and under the Initial FC Office Sublease;

 WHEREAS, pursuant to that certain Assignment and Assumption of ▇▇ ▇▇▇▇▇▇▇▇▇ Sublease dated as of August 15, 2006 between FC Lion, as assignor, and FC Eighth, as assignee, and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 200600644731, FC Lion assigned to FC Eighth, and FC Eighth assumed, all of FC Lion’s right, title and interest in, to and under the Initial FC Retail Sublease;

WHEREAS, the Initial FC Office Sublease was amended pursuant to First Amendment to Agreement of Sublease (Office) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644733, by Second Amendment to Agreement of Sublease (Office) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100155, by Third Amendment  to Agreement of Sublease (Office) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008732, and by Fourth Amendment to Agreement of Sublease (Office) of even date herewith between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York  (the Initial FC Office Sublease, as so assigned and amended, the “FC Office Sublease”);

WHEREAS, the Initial FC Retail Sublease was amended pursuant to First Amendment to Agreement of Sublease (Retail) dated as of August 15, 2006 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on November 20, 2006 as CRFN 2006000644734, by Second Amendment to Agreement of Sublease (Retail) dated as of January 29, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on February 22, 2007 as CRFN 2007000100156, by Third Amendment  to Agreement of Sublease (Retail) dated as of October 11, 2007 between Landlord and FC Eighth and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008733, and by Fourth Amendment to Agreement of Sublease (Retail) of even date herewith between Landlord and FC Eighth and intended to be recorded in the Office of the City Register of the City of New York  (the Initial FC Retail Sublease, as so assigned and amended, the “FC Retail Sublease”);

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WHEREAS, by Third Amendment to Agreement of Sublease (NYT) of even date herewith and intended to be recorded in the Office of the City Register of the City of New York (the “Third Amendment”), Landlord and Tenant further modified the Existing NYTC Sublease, inter alia, to remove from the premises demised thereunder a portion of the NYTC Collective Unit (as defined in the Condominium Declaration) consisting of ▇▇▇▇▇ ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇ and 27-A, together their undivided percentage interest in the Common Elements and the NYTC Limited Common Elements, as more particularly described on Exhibit F-1 annexed hereto (the “Demised Premises”), upon the condition that Landlord and Tenant enter into this Lease covering the Demised Premises;

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

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

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

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

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

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

ARTICLE I

DEFINITIONS; CONSTRUCTION OF TERMS

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

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

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

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

(iv)   “Acceptable Guarantor” means a Person having (A) a net worth, on the date of the depositing of such security, of at least $50,000,000, as Adjusted for Inflation from December 12, 2001 and (B) a debt rating of at least “A” from Standard and Poors or the equivalent rating from another nationally recognized rating agency.

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

(vi)   “Adjusted for Inflation” means, with respect to any sum, that there shall be added to such sum (as the same may have been previously adjusted), beginning on December 12, 2001 unless otherwise specified, on an annual or such other basis as may be specified in this Lease (such annual or other period, the “Specified Interval”), an amount equal to the product of (A) such sum (as the same may have been previously adjusted) and (B) a fraction (1) the numerator of which is the difference between [a] the Consumer Price Index for the calendar month immediately preceding the calendar month in which the Specified Interval for which such calculation is being made ended and [b] the Consumer Price Index for the calendar month immediately preceding the calendar month in which the immediately preceding Specified Interval ended (or, if such date would be prior to December 12, 2001, the calendar month of December 2001) (the “Measuring Month”), and (2) the denominator of which is the Consumer Price Index for the Measuring Month; provided, however, (i) if for any Specified Interval the difference between the index numbers in clauses [a] and [b] above is less than zero (0), such numerator shall be deemed to be zero (0) for purposes of calculating the applicable adjustment, and (ii) the applicable adjustment for the Specified Interval immediately following a Specified Interval in which the preceding clause (i) shall have been applicable shall be determined by replacing clause [b] above in its entirety with the following:  “[b] the Consumer Price Index for the calendar month immediately preceding the calendar month in which the Last Positive Specified Interval (as hereinafter defined) ended.  The “Last Positive Specified Interval” shall mean the last Specified Interval prior to the date of the applicable determination hereunder for which the difference between the index numbers, determined in accordance with clause [a] above and this clause [b] prior to being altered due to the triggering of this proviso, was more than zero (0)”.

(vii)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(xxii)   [INTENTIONALLY OMITTED]

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

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

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

(xxvi)   [INTENTIONALLY OMITTED]

(xxvii)   [INTENTIONALLY OMITTED]

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

(xxix)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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disputes between Landlord and Tenant under this Lease except to the extent that any such dispute between Landlord and Tenant arises from enforcement of any such indemnity by the indemnified party.

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

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

(xxxvii)   [INTENTIONALLY OMITTED]

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

(xxxix)   “Common Elements” has the meaning set forth in the Condominium Declaration (it being acknowledged that “Common Elements” shall not include any Limited Common Elements (as defined in the Condominium Declaration), but shall expressly include the Lobby Sublease Space).

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

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

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

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

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

(xlv)   “Condominium Association Assumption Agreement” means that certain Assumption Agreement, dated as of August 15, 2006, entered into by the Condominium Association.

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

(xlvii)   “Condominium Declaration” means that certain Declaration Establishing a Plan of Leasehold Condominium Ownership of Premises  known as and having a street address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, dated as of August 4, 2006, and recorded in the Office of the City Register of the City of New York on August 15, 2006 as CRFN 2006000460293, as amended by that

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certain First Amendment to Declaration of Leasehold Condominium dated as of January 29, 2007 and recorded in the Office of the City Register of the City of New York on February 8, 2007 as CRFN 2007000075106, as further amended by that certain Second Amendment to Declaration of Leasehold Condominium dated as of October 11, 2007 and recorded in the Office of the City Register of the City of New York on January 8, 2008 as CRFN 2008000008734, as further amended by that certain Third Amendment to Declaration of Leasehold Condominium dated as of March 6, 2009 and intended to be recorded in the Office of the City Register of the City of New York, together with all further amendments, modifications and supplements thereto.

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

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

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

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

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

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

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

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

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

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

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

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

(lx)   “Delivery Date” means  September 24, 2003.

(lxi)   “Demised Premises” has the meaning set forth in the recitals of this Lease.

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

(lxiii)   “Depositary” means any entity, agreeing for the benefit of Landlord and the Condominium Association, to perform the obligations of depositary hereunder on substantially the terms of the Depositary Agreement, which (A) (1) is a Recognized Mortgagee or a Control Affiliate of a Recognized Mortgagee under any Severance Sublease (provided that such Recognized Mortgagee or such Control Affiliate is designated as the Depositary by the Condominium Association and such Recognized Mortgage and would qualify as a Lending Institution, but is other than a savings bank or savings and loan association), (2) if not a Recognized Mortgagee or such Control Affiliate, is a commercial bank or trust company qualifying as a Lending Institution designated by the Recognized Mortgagee most senior in lien, or (3) if not the Recognized Mortgagee or such Control Affiliate or designated by the Recognized Mortgagee pursuant to clause (2) above, is a commercial bank or trust company qualifying as a Lending Institution, as designated by the Condominium Association with the reasonable concurrence of Landlord, (B) has an office in the City of New York, and (C) has a net worth of not less than One Hundred Million Dollars ($100,000,000) and net assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as such sums shall be Adjusted for Inflation on an annual basis from December 12, 2001) throughout the period during which it acts as the Depositary.  If, at any time, no Lending Institution has been designated to so act, then Landlord shall designate as the Depositary an unaffiliated third party reasonably acceptable to the

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Condominium Association that is ordinarily engaged in the business of acting as a depositary.  The Condominium Association’s disapproval of an unaffiliated third party so designated by Landlord shall not be reasonable unless it is based solely on the prior direct experience of a tenant under a Severance Sublease or any Related Entity of a tenant under a Severance Sublease with such party.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(lxxiii)   [INTENTIONALLY OMITTED]

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

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

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

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

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

(lxxix)   [INTENTIONALLY OMITTED]

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

(lxxxi)   [INTENTIONALLY OMITTED]

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

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

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

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

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

(lxxxvii)   [INTENTIONALLY OMITTED]

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

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

(xc)   “FC Office Sublease” has the meaning set forth in the recitals of this Lease.

(xci)   “FC Retail Sublease” has the meaning set forth in the recitals of this Lease.

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

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

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

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

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

(xcvii)   [INTENTIONALLY OMITTED]

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

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

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

(ci)   [INTENTIONALLY OMITTED]

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

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

(civ)   “Hazardous Materials” means (A) any “hazardous substance” as defined in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C § 9601(14), as amended, (B) any “hazardous waste” as defined in Section 27 1301(1) of the New York Environmental Conservation Law, (C) petroleum or petroleum products, crude oil or any by products thereof, natural gas or synthetic gas used for fuel, (D) any asbestos, asbestos containing material or polychlorinated biphenyl and (E) any additional substances or materials which are classified or considered to be hazardous or toxic under the laws of the State of New York, the United States of America or under any other Legal Requirements.

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

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

(cvii)   [INTENTIONALLY OMITTED]

(cviii)   [INTENTIONALLY OMITTED]

(cix)   [INTENTIONALLY OMITTED]

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

14

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

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

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

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

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

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

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

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

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

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

15

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

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

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

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

(cxxv)   “Landlord” means 42DP and its successors and assigns as landlord under this Lease.

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

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

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

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

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

(cxxxi)   “Lease Assignment Date” means August 15, 2006.

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

16

calendar year in which the term of this Lease shall expire, so much of such calendar year as shall fall within the term of this Lease.

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

(cxxxiv)   “Lending Institution” means (A) a savings bank, savings and loan association, commercial bank or trust company (whether acting individually or in a fiduciary capacity) or a Control Affiliate of the foregoing, (B) an insurance company, (C) a real estate investment trust, a trustee or issuer of collateralized mortgage obligations, a loan conduit, or other similar investment entity which is listed on the New York, American Stock Exchange or other regional exchange (or their respective successors), (D) a federal, state, municipal or secular employee’s welfare, benefit, pension or retirement fund, a religious, educational or eleemosynary institution, any governmental agency or entity insured by a governmental agency, a credit union, trust or endowment, (E) any combination of the foregoing entities, (F) any other Person approved by Landlord, such approval not to be unreasonably withheld that (1) shall have a business office in Manhattan and be subject to the jurisdiction of the courts of the State of New York, (2) shall be subject to the supervision of the Comptroller of the Currency of the United States, the federal Securities and Exchange Commission, the Insurance Department or the Banking Department or the Comptroller of the State of New York, the Board of Regents of the University of the State of New York, or the Comptroller of the City or any federal, state or municipal agency or public benefit corporation or public authority advancing or assuring mortgage loans or making payments which, in any manner, assist in the financing, development, operation and maintenance of improvements, (3) shall have a net worth of not less than One Hundred Million Dollars ($100,000,000) and net assets of not less than Two Hundred Fifty Million Dollars ($250,000,000) (as such amounts shall be Adjusted for Inflation on an annual basis from December 12, 2001) at the time of the initial determination of its status as a Lending Institution, (4) is not a Related Entity of Tenant, and (5) is not a Prohibited Person, or (G) any other Person satisfying the conditions of clauses (1) through (5) above.

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

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

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

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

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

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

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

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

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

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

(cxlv)   [INTENTIONALLY OMITTED]

(cxlvi)   [INTENTIONALLY OMITTED]

(cxlvii)   [INTENTIONALLY OMITTED]

(cxlviii)   [INTENTIONALLY OMITTED]

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

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

(cli)   [INTENTIONALLY OMITTED]

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

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

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

(clv)   [INTENTIONALLY OMITTED]

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(clvi)   [INTENTIONALLY OMITTED]

(clvii)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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

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

(clxv)   [INTENTIONALLY OMITTED]

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(clxvi)   [INTENTIONALLY OMITTED]

(clxvii)   [INTENTIONALLY OMITTED]

(clxviii)   [INTENTIONALLY OMITTED]

(clxix)   [INTENTIONALLY OMITTED]

(clxx)   [INTENTIONALLY OMITTED]

(clxxi)   [INTENTIONALLY OMITTED]

(clxxii)   [INTENTIONALLY OMITTED]

(clxxiii)   [INTENTIONALLY OMITTED]

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

(clxxv)   “Percentage Rent” means the amounts specified as Percentage Rent and payable by Tenant pursuant to Section 3.2 and Article 34 hereof.

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

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

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

(clxxix)   “Permitted Encumbrances” means (A) the matters described in Exhibit G attached hereto, (B) any other encumbrance on the Property expressly agreed to in writing by the parties hereto and, subject to Section 3.17 hereof, any violation that will, by its nature, be cured or otherwise rendered inconsequential due to the demolition of the Existing Improvements (as defined in the Initial Ground Lease), and (C) any existing matters of record recorded since December 12, 2001.

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

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

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

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

(clxxxiv)   [INTENTIONALLY OMITTED]

(clxxxv)   [INTENTIONALLY OMITTED]

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

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

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

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

(cxc)   “Principal” means, with respect to any Person, (A) any director or the president, any vice president, the treasurer, or the secretary thereof if such Person is a corporation, (B) any general partner of a partnership or managing member of a limited liability company, or (C) any shareholder, limited partner, member or other Person having a direct or indirect economic interest in such Person, whether beneficially or of record, in excess of ten percent (10%) of all of the issued and outstanding shares, partnership interests, limited liability company interests or other ownership interests of such Person.  In calculating the percentage interest of any shareholder, partner, member or other beneficially interested Person referred to in the prior sentence, the interest in the equity of any affiliate of such shareholder, partner,

21

member or beneficially interested Person shall be attributed to such shareholder, partner, member or beneficially interested Person.

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

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

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

22

City by in rem tax foreclosure, other than a property in which the City has released or is in the process of releasing its interest to such person pursuant to the Administrative Code of the City.

(cxciv)   “Project Agreement” means that certain Site 8 South Project Agreement, dated as of December 12, 2001, by and among ESDC, 42DP, the City, NYTB, FC Lion LLC and NYT Real Estate Company LLC, and any amendments thereto.

(cxcv)   “Project Documents” has the meaning set forth in the recitals of this Lease.

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

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

(cxcviii)   [INTENTIONALLY OMITTED]

(cxcix)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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

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

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

(ccviii)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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

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

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

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

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

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(ccxix)   “Retail Space” means (A) any portion of the Demised Premises to be used for retail purposes or any purposes ancillary thereto,  and (B) with respect to Tenant’s obligations in connection with Retail PILOT, the Lobby Sublease  Space.

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

(ccxxi)   [INTENTIONALLY OMITTED]

(ccxxii)   “Roof Top Garden Space” shall mean up to 10,000 Square Feet of space on the floor designated as the 53rd floor of the Building, as shown on, and in conformity with, the schematic design plan drawing listed on Exhibit I-1 attached to the Initial Ground Lease as numbered A1053.

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

(ccxxiv)   [INTENTIONALLY OMITTED]

(ccxxv)   [INTENTIONALLY OMITTED]

(ccxxvi)   [INTENTIONALLY OMITTED]

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

(ccxxviii)   “Scheduled PILOT Conversion Date” means December 31, 2032.

(ccxxix)   [INTENTIONALLY OMITTED]

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

(ccxxxi)   “Severance Subleases” means this Lease, the Existing NYTC Sublease, the FC Office Sublease, the FC Retail Sublease, any New Office Subleases (as defined in the FC Office Sublease) and any new leases entered into pursuant to Section 31.6 of any of the foregoing.

(ccxxxii)   “Site 8 South LADA” means that certain Site 8 South Land Acquisition and Development Agreement, dated as of December 12, 2001,

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entered into by 42DP, ESDC and NYTB, as amended by First Amendment to Site 8 South Land Acquisition and Development Agreement, dated as of February 14, 2003 by 42DP, ESDC and NYTB.

(ccxxxiii)   “Site 8 South Subway Agreement” means that certain Subway Entrance Agreement, dated as of December 12, 2001, among Landlord, The New York City Transit Authority, 42DP and The City of New York.

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

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

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

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

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

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

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

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

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

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

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

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

(ccxlvi)   “Taxable Retail Square Feet” has the meaning set forth in Section 1.1(a)(ccxviii) hereof, the definition of Retail PILOT.

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

(ccxlviii)   [INTENTIONALLY OMITTED]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(cclxiv)   “Unavoidable Delay(s)” means actual delays (after taking into account all reasonable measures that are taken or should reasonably have been taken by Tenant to mitigate the effect of the following) caused by (A) acts of God, war, sabotage, hostilities, invasion, insurrection, riot, mob violence, malicious mischief, embargo, enemy action, civil commotion, earthquake, flood, fire or other casualty, government restriction, strikes, labor troubles, unknown physical conditions which differ materially from those ordinarily found to exist and generally recognized as inherent in the construction of office building in Manhattan and inability to procure

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labor, equipment, materials or supplies (exclusive of delays inherent in the ordering of long-lead items) which are not attributable to the improper acts or omissions of Tenant or its affiliates, (B) any litigation (not instituted, financed or supported by either of Tenant any Related Entity of Tenant) which results in an injunction prohibiting or otherwise delaying the commencement of any Alteration or the continuation of such Alteration, and (C) any other matter beyond the reasonable control of Tenant and not normally associated with a project of the nature described herein.  Inability (1) to pay a sum of money or (2) to obtain or to timely obtain (a) any permits or certificates from applicable governmental authorities or (b) financing from a lender, shall not constitute Unavoidable Delay.  The period of delay caused by any occurrence of Unavoidable Delay shall not be deemed to commence any earlier than ten (10) days before the date Landlord receives notification from Tenant of such occurrence; provided, however, that no such notification shall be valid unless Tenant shall substantiate the basis for any claim of Unavoidable Delay made therein to the reasonable satisfaction of the Public Parties within twenty (20) days thereafter.  Tenant shall advise Landlord in such notice as to the measures taken or proposed to be taken by Tenant to mitigate the delay caused by such occurrence of Unavoidable Delay and thereafter to keep Landlord reasonably informed as to the status of such measures, and notify Landlord as to the termination of the occurrence of Unavoidable Delay within ten (10) days thereafter; provided, however, Tenant’s failure to provide any such notice of termination shall not prejudice Tenant’s rights to claim Unavoidable Delay.

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

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

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

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

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

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

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

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

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

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

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ARTICLE II

LEASE OF DEMISED PREMISES AND COMMON ELEMENTS; TERM OF LEASE

Section 2.1            Demised Premises and Common Elements; Term.

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

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

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

(b)   Term.  Subject to the terms of Section 2.1(d) hereof, the leasehold estate granted in Section 2.1(a) hereof is for a term commencing on the Commencement Date, and ending upon December 11, 2100 or the date on which this Lease shall sooner terminate as hereunder provided (the “Expiration Date”), upon and subject to the covenants, agreements, terms, provisions and limitations herein set forth, all of which covenants, agreements, terms, provisions and limitations Landlord and Tenant covenant and agree to perform and observe.

(c)   Intentionally Omitted.

(d)   Intentionally Omitted.

Section 2.2            Condition of Demised Premises and Common Elements.  Tenant is fully familiar with the Demised Premises and Common Elements, the condition thereof and the Permitted Encumbrances, and Tenant accepts and agrees to lease the same in their then “AS IS” condition on the Commencement Date and without any representation or warranty, express or implied, in fact or by law, by 42DP, NYCEDC, ESDC or the City, except as expressly

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provided in this Lease, and without recourse to 42DP, NYCEDC, ESDC or the City as to the title thereto, the nature, condition or usability thereof or the use or uses to which the Demised Premises and Common Elements or any part thereof may be put, except as expressly provided in this Lease.

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

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ARTICLE III

CHARGES AND FEES

Section 3.1            PILOT.

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

(i)   Prior to Scheduled PILOT Conversion Date.

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

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

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

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

(3)     Subject to Landlord’s right to dispute a Tenant’s TSF Certification pursuant to this Section 3.1(a)(i)(B)(3), each Tenant’s TSF Certification shall be considered a final and binding determination of the number of Taxable Square Feet certified therein.  Within twenty (20) Business Days after the delivery of a Tenant’s TSF Certification, Landlord may deliver to Tenant a statement (“Landlord’s TSF Statement”) disapproving such

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

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

(b)   PILOT Payment.

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

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

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(c)   Tax Contest Proceeding.

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

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

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

Section 3.2            Retail Space Percentage Rent  Calculation of Percentage Rent.  Tenant covenants and agrees to pay to Landlord, from and after the Commencement Date and through the date that is one (1) day before the Scheduled PILOT Conversion Date, Percentage

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Rent, determined in accordance with this Section 3.2(a).  Percentage Rent for any Lease Year shall be the sum of:

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

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

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

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

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

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

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

(f)    Subleasing to Related Entity.  No subleasing by Tenant to a Related Entity shall affect, reduce or impair Tenant’s Obligations hereunder to pay Percentage Rent and to deliver any Percentage Rent Report as required hereunder and to make available books and records pursuant to Section 3.13 hereof.  Tenant shall deliver to Landlord promptly upon the receipt or sending thereof copies of all notices, reports and communications between Tenant and any such Subtenant which relate to any financial or sales reports of such Subtenant with respect to the Demised Premises, any default by Tenant or such Subtenant under the applicable Sublease, or any other matter material to the financial or sales performance of either Tenant or such Subtenant under the applicable Sublease.  Any failure by a Subtenant which is a Related Entity to provide to Tenant the information necessary for Tenant to prepare a Percentage Rent Report or

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to make available books and records for review pursuant to Section 3.13 hereof shall be deemed to be an Event of Default hereunder.  Tenant shall provide in each Sublease with a Tenant Related Entity that each such Subtenant shall be subject to the provisions of this Section 3.2 with respect to the preparation and delivery of Percentage Rent Reports and the provisions of Section 3.13 hereof with respect to making available books and records.  With respect to a Tenant Related Entity that is a Subtenant in possession and actual use of its Demised Space, nothing in the foregoing portions of this Section 3.2(f) shall affect the determination of  the Lobby Sublease Space Adjusted Gross Revenues derived therefrom as provided in clause (A)(9) of the definition of Lobby Sublease Space Adjusted Gross Revenues.

Section 3.3            [INTENTIONALLY OMITTED]

Section 3.4            Exemption from Mortgage Recording Tax; PILOMRT

(a)           Exemption from Mortgage Recording Tax.  Landlord shall cooperate with, and cause ESDC to make available to, Tenant an exemption in respect of Mortgage Recording Tax permitted by reason of the public ownership of the Property, the Demised Premises and the Common Elements and ESDC’s participation in the development of the Improvements.  Landlord shall cooperate with Tenant in structuring Mortgages so as to take advantage of the exemption described in this Section 3.4(a), which cooperation shall include arranging for ESDC or an affiliate thereof to act as the original mortgagee and/or holder thereof if required to enable Tenant to avail itself of the exemption from Mortgage Recording Tax provided for in this Lease.

(b)           Payment in Lieu of Mortgage Recording Tax.  Prior to the recording of any Mortgage with the Office of the Register of the City, New York County, Tenant shall make a payment of PILOMRT to Landlord in an amount equal to an amount equal to the Mortgage Recording Tax that would have been payable upon the recording of such Mortgage if not for the exemption provided under Section 3.4(a) hereof.  Simultaneously with such payment, Tenant shall deliver to Landlord a certificate from a Qualified Certifying Officer of Tenant setting forth the maximum principal amount that may be advanced under such Mortgage to be recorded and Tenant’s calculation of the amount of the PILOMRT due in respect thereof.  The amount of the PILOMRT shall be determined by using the Mortgage Recording Tax rates in effect at the time such Mortgage is recorded.

(c)           Notification of Tax Due.  Tenant shall notify Landlord within seven (7) Business Days after receipt of notice by Tenant of a written determination by the appropriate taxing authority that any Mortgage Recording Tax  is payable by Tenant with respect to any Mortgage that benefited from the exemption set forth in Section 3.4(a) hereof.  Within twenty-three (23) Business Days after Tenant sends to Landlord a written notification that any determination by the appropriate taxing authority is final (a “Final MRT Notification”) and Tenant, in accordance therewith, has paid to such taxing authority an amount equal to the Mortgage Recording Tax demanded (together with evidence thereof), Landlord shall repay to Tenant the amount, if any, of such Mortgage Recording Tax (but no more than the amount, if any, of any PILOMRT that Tenant made to Landlord in respect of the recording of the applicable Mortgage), together with an amount equal to any interest or penalties imposed on Tenant by the applicable taxing authority for Tenant’s non-payment, which payment shall be made by Landlord

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prior to the date which is twenty-three (23) Business Days after the Final MRT Notification.  If Landlord fails to so reimburse Tenant for the Mortgage Recording Tax within the foregoing period, Tenant shall have the right to offset the amount of such Mortgage Recording Tax  together with interest at the Interest Rate from the date Tenant made such Mortgage Recording Tax against the next installments of Charges coming due pursuant to this Lease.  If as a result of the expiration or termination of this Lease other than by reason of Tenant’s default Tenant is unable to recoup the entire Mortgage Recording Tax with interest as aforesaid by offsetting the same against Charges, Landlord shall reimburse Tenant for any such amount not so recouped less any amounts due and owing from Tenant to Landlord hereunder within twenty-three (23) Business Days of the expiration or termination of this Lease.  Neither Landlord nor Tenant shall be obligated to contest the decision of any such authority to deny, revoke or terminate any exemptions or other relief from the payment of such taxes.  However, should either party desire to contest any such decision by bringing a lawsuit or otherwise, it may do so at its own risk and expense, and Landlord shall have the right to bring such lawsuit in the name of Tenant if Tenant fails to do so within twenty-three (23) Business Days following written request by Landlord.    In the event that the contest of such decision is successful and Landlord has paid the amount of the Mortgage Recording Tax to Tenant, then Tenant shall, within twenty-three (23) Business Days after written demand by Landlord, reimburse Landlord in an amount equal to the applicable Mortgage Recording Tax.

Section 3.5            Theater Surcharge.

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

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

(c)   Theater Surcharge Due Dates.  The aggregate Theater Surcharge for each Lease Year in respect to a given Occupied Square Foot shall be paid, in advance, annually to Landlord (together with the PILOT payment due pursuant to Section 3.1(c) hereof) on or prior to January 1 of such Lease Year and shall be accompanied by a Theater Surcharge Report (it being agreed that the Theater Surcharge in respect of any Occupied Square Foot for which Theater Surcharge Commencement Date occurs after January 1 shall be paid, pro rata, on the basis of the

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actual number of days in such Lease Year after such Theater Surcharge Commencement Date, within twenty (20) Business Days after the applicable Theater Surcharge Commencement Date).  If a Sublease for any Occupied Square Feet shall terminate on any date which is prior to December 31 of any Lease Year, the Theater Surcharge for such period shall be prorated accordingly (and, in respect of a Sublease that is terminated unexpectedly before December 31 of any applicable Lease Year, any Theater Surcharge paid in respect of the period after such unexpected termination will be deemed a credit against the payment of Theater Surcharge next due).

(d)   Theater Surcharge Report.  Tenant shall deliver to Landlord, along with the annual Theater Surcharge payment, a report (the “Theater Surcharge Report”) which shall be a Verified Statement and which shall set forth, together with support adequate to permit Landlord to undertake an informed review in respect thereof, (i) in detail, the number of Occupied Square Feet in the Demised Premises that form the basis of the Theater Surcharge calculation, (ii) the applicable Theater Surcharge Commencement Dates related to each Occupied Square Foot listed in clause (i) above, (iii) the applicable Theater Surcharge factor (i.e., $0.15 in the year 2000) as Adjusted for Inflation, and (iv) the calculation of Theater Surcharge for the applicable Lease Year.

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

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

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

Section 3.7            Prorations; Overdue Amounts.

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

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

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(c)   Overdue Amounts.  Additional Charges shall be payable by Tenant to Landlord in respect of any amounts payable hereunder to Landlord (including, without limitation, sums advanced by Landlord hereunder to cure a default by Tenant in the performance of Tenant’s Obligations) which shall not have been paid on the date the same shall be due and payable (an “Overdue Payment”) together with interest as follows:  (A) with respect to any overdue PILOT, the overdue amount shall bear interest at the rate then generally charged by the City with respect to overdue Full Taxes, and shall be subject to the same fines and penalties as are assessed by the City with respect to overdue Full Taxes; provided, however, the imposition or assessment of interest, fines and penalties for overdue PILOT shall be subject to the notice and grace periods identical to the notice and grace periods, if any, from time to time granted by the City with respect to the payment of Full Taxes in respect of comparable properties and amounts; and (B) with respect to any other overdue Charges (other than Charges incurred pursuant to Section 14.1(b) hereof), the overdue amount shall bear interest calculated at the Interest Rate.  Such aforesaid charges shall be due and payable within twenty (20) Business Days after demand for payment therefor by Landlord.  No failure by Landlord to insist upon the strict performance by Tenant of Tenant’s Obligations to pay such Overdue Payment or interest shall constitute a waiver by Landlord of its right to enforce the provisions of this Section 3.7 in any instance thereafter occurring.  The provisions of this Section 3.7 shall not be construed in any way to extend the grace periods or notice periods with respect to the payment of Charges as provided in Section 14.2(a) hereof.

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

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

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

Section 3.11         Net Lease.  This Lease shall be deemed and construed to be a “triple net lease”, and Tenant shall pay to Landlord, absolutely net throughout the term of this Lease, all Charges and other sums payable hereunder, free of any charges, assessments, Impositions or deductions of any kind and without abatement, deferment, reduction, defense, counterclaim, demand, notice, deduction or set-off of any kind, and under no circumstances or

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conditions, whether now existing or hereafter arising, or whether beyond the present contemplation of the parties, shall Landlord be expected or required to make any payment of any kind whatsoever or be under any other obligation or liability hereunder, except as otherwise expressly set forth herein.  All costs, expenses, charges, Impositions and other payments of every kind and nature whatsoever relating to the Demised Premises and the Common Elements, or the use, operation or maintenance thereof, which may arise or become due during or in respect of the term of this Lease after the Lease Assignment Date shall be paid by Tenant, and Tenant assumes full responsibility for the condition, operation, repair, alteration, improvement, replacement, maintenance and management of the Demised Elements and the Common Elements (which obligations, in the case of Tenant’s Subway Improvements, shall be governed by the Site 8 South Subway Agreement).  Under no circumstances or conditions, whether now existing or hereafter arising, or whether beyond the present contemplation of the parties, shall Landlord be expected or required to make any payment of any kind whatsoever or be under any other obligation or liability hereunder except as herein otherwise expressly set forth.

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

Section 3.13         Books and Records.

(a)   Right to Audit.  Tenant shall keep, or cause to be kept, true and complete books of record and accounts in respect of matters that are required by this Lease to be reported by Tenant to Landlord or that are monetary obligations governed by or relating to this Lease and Tenant Obligations hereunder, including monthly records of Lobby Sublease Space Adjusted Gross Revenues and records and calculations in respect of Theater Surcharge.  Such records shall be located or made available in New York City and shall be maintained as aforesaid for a period of not less than six (6) years after the end of the applicable Lease Year to which such records relate.  Landlord and Landlord’s accountants and other representatives and the Comptroller of the City (the “Comptroller”) shall have the right from time to time to conduct a review of Tenant’s books of record and accounts relating to the relevant matters governed by or relating to this Lease and Tenant Obligations hereunder (including Lobby Sublease Space Adjusted Gross Revenues) and Tenant shall cooperate with the performance of such review.  Each Sublease shall provide that Landlord and Landlord’s accountants and other representatives and the Comptroller shall have the right from time to time to conduct a review of such Subtenant’s books of record and accounts relating to Percentage Rent payments, and shall require such Subtenant to cooperate with the performance of such review.  All such reviews shall occur during regular business hours and upon not less than three (3) days’ prior written notice.  The cost of such review shall be borne solely by Landlord, except that if the results of such review determine that Tenant (or any such Subtenant, as applicable), whether or not inadvertently, has understated the Percentage Rent, payable to Landlord (or percentage rent payments payable to Tenant, as

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applicable) by more than five percent (5%) of what is owed, then Tenant (or such Subtenant in the case of such percentage rent payments) shall pay or shall reimburse Landlord on demand for payment of the reasonable costs and expenses involved in such review.

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

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

(d)   Copies of Reports.  Tenant shall deliver to Landlord upon request by Landlord, copies of reports received or given by Tenant from or to any Subtenant which relate to (1) any financial or sales reports of such Subtenant or (2) to any other components of Lobby Sublease Space Adjusted Gross Revenues.

(e)   Landlord and Tenant Contests.  Any statement prepared by or on behalf of Landlord pursuant to Section 3.13(c) hereof or the results of any audit conducted by or on behalf of Landlord pursuant to Section 3.13(a) hereof shall be conclusive and binding upon Tenant unless Tenant notifies Landlord within one hundred eighty (180) days after receipt thereof that it disputes the correctness of such statement or results, which notice shall specify the particular

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respects in which the same is claimed to be incorrect, and Tenant pays the amount in dispute in accordance with such statement or results, without prejudice to Tenant’s position.  If Landlord and Tenant are unable to resolve such dispute within twenty (20) Business Days after receipt of Tenant’s notice, the dispute shall be submitted to arbitration for resolution pursuant to Section 16.2 hereof.

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

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

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

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

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ARTICLE IV

IMPOSITIONS

Section 4.1            Impositions.

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

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

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

Section 4.2            Payment.

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

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

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

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

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

(iii)   Tenant shall either bond such Imposition or deposit with Landlord, or provide Landlord with, security in an amount and in form and substance

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

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

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

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

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

(b)   If Tenant receives any notice that Tenant or the Demised Premises and/or the Common Elements, or any part thereof, is in default under or is not in compliance with any of the foregoing Sections 4.3(a)(i) through 4.3(a)(vii) hereof, or notice of any proceeding initiated under or with respect to any of the foregoing Sections 4.3(a)(i) through 4.3(a)(vii) hereof, Tenant will promptly furnish a copy of such notice to Landlord.  Nothing herein contained, however, shall be so construed as to allow such Imposition to remain unpaid for such length of time as shall permit the Demised Premises and/or the Common Elements, or any part thereof, to be sold by any Governmental Authority for the non-payment of the same, and, if at any time in the judgment of Landlord, reasonably exercised, it shall become necessary or proper to do so, Landlord, after not less than twenty (20) Business Days’ written notice to Tenant (unless such sale is scheduled prior to the expiration of any shorter period), may pay or apply the moneys deposited in accordance with this Section 4.3 or so much thereof as may be required to the payment of the challenged Imposition to prevent the sale of the Demised Premises and/or the Common Elements or any part thereof.  If the amount so deposited as aforesaid shall exceed the amount required to satisfy the challenged Imposition as finally fixed and determined, the excess (or the entire amount if no such payment is required) shall be paid to Tenant, or in case there shall be any deficiency, the amount of such deficiency shall be forthwith paid by Tenant.  Promptly following resolution of the contest and payment by Tenant of any amounts due, Landlord shall refund to Tenant any monies so deposited and not applied to payment of the Imposition.  Any moneys so deposited shall be held in an interest-bearing account at a Lending Institution, and any interest earned thereon, shall be refunded, applied or paid in the same manner as the amount deposited is refunded, applied or paid in accordance with the immediately preceding two (2) sentences.

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

ARTICLE V

PURCHASE OPTION

Section 5.1            Purchase Option.

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

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

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

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

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

(iii)   If, on the Purchase Option Closing Date, there shall be any dispute between Landlord and Tenant as to any Charges then due and payable, the closing shall proceed as scheduled and Tenant shall (A) pay to Landlord, on the Purchase Option Closing Date, the undisputed portion of the balance of the Charges apportioned as of the Purchase Option Closing Date and (B) deposit with the Depositary cash or cash-equivalents (e.g., an unconditional, irrevocable letter of credit, U.S. Government Securities in bearer form and/or certificates of deposit issued by Lending Institutions in bearer form) in an amount equal to, and as security for, the disputed Charges (together with an amount equal to the reasonably estimated interest at the Interest Rate to accrue thereon for a two-year period).  At such time as the dispute is resolved, the additional amount, if any, still owing shall be paid to Landlord (with interest at the Interest Rate).  Upon such payment, any excess security (and any interest earned thereon) shall be refunded or returned to Tenant.  Tenant’s and Landlord’s obligations to make any payment pursuant to this Section 5.1(c)(iii) with respect to Charges shall survive the termination of this Lease.

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

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

(vi)   Tenant shall provide to Landlord (A) a certificate of Tenant, which shall be certified by a Qualified Certifying Party, stating that, as of the Purchase Option Closing Date, Tenant is fully familiar with the Demised Premises and the Common Elements, the condition thereof and the Permitted Encumbrances, and Tenant accepts title to same in their “AS IS” condition without any representation or warranty, express or implied, in fact or by law, of Landlord, NYCEDC, ESDC or the City as to the title thereto, the nature, condition or viability thereof, or the use or uses to

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which the Demised Premises and the Common Elements or any part thereof may be put, (B) an agreement, in a form reasonably satisfactory to Landlord, providing for the survival of any of Tenant’s Obligations expressly stated herein to survive this Lease and (C) all other documentation customarily entered into in the connection with the full and complete transfer of interest in property in New York City.

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

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

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

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

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

Section 5.2            Casualty to, or Condemnation of, the Property.  If all or any portion of the Improvements are damaged or destroyed by Casualty, or if condemnation proceedings referred to in the provisions of Section 12.1 hereof are instituted, and if Tenant theretofor has exercised the Purchase Option in accordance with the provisions of this Lease:

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

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

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

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ARTICLE VI

CONSTRUCTION OF THE PROJECT

Section 6.1            Construction of the Project.

(a)   Demolition. Tenant shall undertake, at its cost, the Demolition Work pursuant to the applicable terms of this Article VI.

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

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

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

(iii)   No Public Party Obligation. The parties acknowledge and agree that none of the Public Parties shall be obligated to perform any of the Tenant’s

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Construction Work or any other work on the Land or the Existing Improvements or to provide any funds to Tenant or any Subtenant in connection therewith.

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

(i)   In the event of the occurrence of the First Non-Delivery Event, the Fixed Construction Commencement Date shall be deemed to be automatically extended by three (3) months (the “First Extension Period”) to the date that is fifteen (15) months after the Delivery Date; it being agreed that, following the occurrence of the First Non-Delivery Event, if Tenant Commences Construction prior to the last day in the First Extension Period, then the 36-month period between the Fixed Construction Commencement Date and the Fixed Substantial Completion Date referred to in Section l.l(a)(cxxvii) hereof (the “Fixed Construction Period”) shall automatically be extended by the number of days (maximum of ninety (90) days) that Tenant Commences Construction prior to the last day of the First Extension Period.

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

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

(iv)   In addition to the extensions set forth in Sections 6.1(c)(i) and 6.1(c)(ii) hereof, if the Delivery Date occurs subsequent to the occurrence, if any, of the Third Non-Delivery Event, Tenant may, at and to the extent of Tenant’s election, (A) further extend the Fixed Construction Commencement Date by up to six (6) months by

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making a payment to Landlord in accordance with Section 6.1(c)(v) hereof and (B) further extend the Fixed Construction Period by up to six (6) months by making a payment to Landlord in accordance with Section 6.1(c)(v) hereof; provided, however, that in the event that Tenant purchases less than the 6-month extension permitted pursuant to clause (iv)(A) of this Section 6.1(c), any such unpurchased Excess Days may be purchased by Tenant from time to time, by making a payment to Landlord in accordance with Section 6.1(c)(v) hereof, so as to further extend such extension period, by the number of Excess Days so purchased by Tenant. Any election made by Tenant for the extension or further extension provided for in this Section 6.1(c)(iv) shall be for a minimum of one (1) month at a time.

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

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

(d)   Approval of Architects.

(i)   Design Architect. The design architect for any Construction Work (other than Interior Construction Work or Demolition Work) governed by any element of the DUO shall be the Design Architect. If Tenant shall desire to replace ▇▇▇▇▇ ▇▇▇▇▇ Building Workshop or any Replacement Design Architect previously approved by Landlord as the Design Architect, then such replacement Design Architect proposed by Tenant shall be approved by Landlord (such approved replacement Design Architect, the “Replacement Design Architect”), so long as the proposed Replacement Design Architect, in Landlord’s reasonable judgment, meets all of the following criteria

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

YOUR APPROVAL OF                                      AS THE DESIGN ARCHITECT SHALL

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

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

(ii)   Other Architects and Engineers. Except in respect of the Design Architect (which shall be approved in accordance with Section 6.1(d)(i) hereof), the Production Architect and each other architect and engineer proposed to be engaged in respect to any Construction Work (other than Interior Construction Work or demolition work (other than the Demolition Work)) (A) governed by any element of the

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DUO, (B) affecting a Structural Component (other than by having a Nonadverse Structural Effect), or (C) of a value of greater than $1,000,000 (which amount shall be Adjusted for Inflation from the Substantial Completion Date), shall be approved by Landlord: (1) in respect of any Construction Work subject to clause (A) of this Section 6.1(d)(ii), in Landlord’s sole discretion; and (2) in respect of Construction Work subject only to clause (B) or (C) of this Section 6.1(d)(ii), in Landlord’s approval not to be unreasonably withheld. Each such Architect shall have substantial experience in construction projects that are comparable in scope to such architect’s intended work at the Project and shall not be a Prohibited Person. Each such Engineer shall (x) be of recognized standing among its peers, (y) have at least ten (10) years experience in providing engineering services in respect of highrise buildings in urban centers and (z) not be a Prohibited Person. If Landlord fails to approve or reject any architect nominated by Tenant to be an Architect (other than the Design Architect), or engineer nominated by Tenant to be an Engineer, as the case may be, within sixteen (16) Business Days after the written submission to Landlord of such architect’s name and other information (including adequate portfolio information) sufficiently detailed to permit Landlord to make a reasoned judgment of the appropriateness of the proposed architect or engineer, as the case may be, for the ▇▇▇▇ ▇▇▇▇▇▇ Project, or Landlord fails to make reasonable requests for additional information related thereto within such time period and thereafter to approve or reject such architect or engineers, as the case may be within eleven (11) Business Days after written submission of such additional information as Landlord shall have reasonably requested, Tenant shall have the right to give Landlord a reminder notice, which reminder notice shall contain the following caption in bold and capitalized type:

YOUR APPROVAL OF                             AS AN ARCHITECT/ENGINEER SHALL

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

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

(e)   Approval of Contractors.

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

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(ii)   General Contractor(s) and Construction Manager(s). Each general contractor and/or construction manager engaged in respect of Tenant’s Construction Work shall be subject to the approval of Landlord. Landlord approves, on the date hereof, those general contractors and construction managers listed on Exhibit M attached hereto (it being understood that such approval of Landlord (A) is valid for a period ending on the earlier of (1) the date that is five (5) years after the date hereof and (2) the occurrence of any material change in the ownership of the applicable general contractor or construction manager, as the case may be and (B) is not an approval of any proposed general contractor construction manager’s Prohibited Person status). Tenant shall deliver to Landlord and update as necessary from time to time upon request therefor, a list identifying to Landlord each general contractor and construction manager that is a member of the Development Team. Landlord shall have the right to disapprove any such general contractor or construction manager only: [a] if such general contractor or construction manager is a Prohibited Person; or [b] if such general contractor or construction manager, in Landlord’s reasonable judgment, has demonstrated a failure, based on prior job performance, to exercise due care in the performance of the work for which such contractor may be hired in respect of the New Building (it being agreed that no Person listed on Exhibit M attached hereto may be disapproved by Landlord on the basis described in this clause (b) of this Section 6.1(e)(ii)). If Landlord fails to approve or reject any such general contractor or construction manager within eleven (11) Business Days after the written submission to Landlord of such Person’s name, address, phone number and EIN (as well as those Principals thereof) or Landlord fails to make reasonable requests for additional information related thereto within such time period and thereafter to approve or reject such general contractor or construction manager within six (6) Business Days after written submission of such additional information as Landlord shall have reasonably requested, Tenant shall have the right to give Landlord a reminder notice, which reminder notice shall contain the following caption in bold and capitalized type:

YOUR APPROVAL OF                              AS A MEMBER OF A DEVELOPMENT

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

If Landlord fails to approve or reject such proposed member of the Development Team within five (5) Business Days after its receipt of such reminder notice, such proposed member of the Development Team shall be deemed approved by Landlord. Any rejection of such a member of the Development Team by Landlord shall be accompanied by specific reasons setting forth in reasonable detail the bases for such rejection.

(iii)   Major Contractors. Prior to the time at which Tenant solicits any bids for labor or materials for any Construction Work (other than Interior Construction Work) governed by any element of the DUO or affecting a Structural Component (other than by having a Nonadverse Structural Effect), Tenant shall furnish Landlord for its approval (to the extent hereinafter provided) a list of all Persons Tenant intends to solicit for any such work who, if so selected, would (a) have a contract in

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respect of the Property amounting to a value of greater than $1,000,000 (which amount shall be Adjusted for Inflation from the Substantial Completion Date), or (b) otherwise be responsible for an item that is governed by the DUO or affects a Structural Component, other than by having a Nonadverse Structural Effect (any such contractor, a “Major Contractor”). The list shall state the name, address, phone number and EIN of each such Major Contractor and each of its Principals and in what capacity such Major Contractors would be performing work at the Property. Landlord shall have the right to disapprove any Major Contractor only: (1) if such Major Contractor is a Prohibited Person; or (2) if such Major Contractor, in Landlord’s reasonable judgment, demonstrated a failure, based on prior job performance, to exercise due care in the performance of the work for which such Major Contractor may be hired in respect of the New Building (it being agreed that no Person listed on Exhibit N attached hereto may be disapproved by Landlord on the basis described in this clause (2) of this Section 6.1(e)(iii)). If Landlord fails to approve or reject any Major Contractor within eleven (11) Business Days after the receipt by Landlord of such Major Contractor’s name, address, phone number and EIN (and those of its Principals), or Landlord fails to make reasonable requests for additional information related thereto within such time period and thereafter to approve or reject such Major Contractor within six (6) Business Days after written submission of such additional information as Landlord shall have reasonably requested, Tenant shall have the right to give Landlord a reminder notice, which reminder notice shall contain the following caption in bold and capitalized type:

YOUR APPROVAL OF                               AS A MAJOR CONTRACTOR SHALL BE

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

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

Section 6.2            Plans and Specifications.

(a)   Approval of Plans and Specifications,

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

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(ii)   Approval of Schematic Design Plans. Prior to the date hereof, Landlord has reviewed the Schematic Design Plans and, having deemed the Schematic Design Plans (other than the items listed in that certain letter, dated as of the date hereof, from Landlord to NYTC and Forest City ▇▇▇▇▇▇ Companies (the “December Letter”) a copy of which is attached hereto as Exhibit 1-3) to be in accordance with the DUO, has approved the Schematic Design Plans (other than the items listed in the December Letter). Promptly after the date hereof, Tenant shall submit the items listed in the December Letter to Landlord, and Landlord shall have the right to approve or disapprove the same in Landlord’s reasonable discretion with respect to the compliance of same with the DUO (the items listed in the December Letter, once approved by Landlord in accordance with this Section 6.2(a)(ii), together with the Schematic Design Plans, the “Approved Schematic Design Plans”). Landlord hereby approves the design for Tenant’s Subway Improvements, as such design is depicted in the Site 8 South Subway Agreement as in effect on the date hereof.

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

(c)   Submission and Review of Proposed Final Plans and Specifications. Prior to Tenant’s first submittal of Final Plans and Specifications to the New York City Buildings Department prior to the Commencement of Construction of the New Building, Tenant shall submit to Landlord proposed Final Plans and Specifications (in both standard architectural drawings and in electronic format (including the CAD drawings)) solely so that Landlord may determine whether the proposed Final Plans and Specifications conform to the Design Development Plans and otherwise

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comply with DUO. Landlord’s approval shall be governed by the applicable provisions of Section 6.2(a)(i) hereof (it being acknowledged and agreed that the design approval process set forth in this Section 6.2 is an iterative process that may require at least forty-five (45) days from submittal to Landlord of the proposed Final Plans and Specifications until Landlord’s approval may be obtained). If Landlord determines that the proposed Final Plans and Specifications conform to the Design Development Plans, Landlord shall so notify Tenant. If Landlord determines that the proposed Final Plans and Specifications do not so conform, Landlord shall so notify Tenant, specifying in reasonable detail in what respects the proposed Final Plans and Specifications do not so conform, and Tenant shall revise them to so conform and shall resubmit the proposed Final Plans and Specifications to Landlord for review for that purpose. Landlord shall be deemed to have approved any portions of the proposed Final Plans and Specifications as to which Landlord does not expressly notify Tenant, as set forth in the immediately-preceding sentence, of such non-conformity. The initial review by Landlord of the proposed Final Plans and Specifications shall be carried out within twenty (20) Business Days of the date of submission thereof by Tenant and any subsequent review by Landlord of any revisions thereto shall be carried out within fifteen (15) Business Days of Tenant’s submission of such revision. In the case of resubmissions or revisions, Landlord may not disapprove any matter previously submitted and approved or deemed approved, except to the extent that such resubmission or revision affects any matter so approved or deemed approved.

(d)   Modification of Approved Schematic Design Plans, Design Development Plans or Final Plans and Specifications. If Tenant desires to modify the Approved Schematic Design Plans, Design Development Plans or Final Plans and Specifications after they have been approved or deemed approved by Landlord pursuant to this Article VI, and either (1) Tenant has not provided to Landlord an Architect’s Certification, prepared by an Architect or an Engineer approved (or deemed approved) by Landlord in accordance with Section 6.1(d)(ii) hereof, describing the proposed modification and stating that such modification is not to have been governed by any element of the DUO or does not affect a Structural Component (other than by having a Nonadverse Structural Effect), or (2) such modification represents an immaterial field change to such plans (notification of each such immaterial field change being promptly provided to Landlord by Tenant together with adequate identification of such change and an explanation of the change made), Tenant shall submit the proposed modifications to Landlord, clearly identifying each such modification, together with a statement of Tenant’s reasons therefor. If (A) Tenant has submitted such aforesaid Architect’s Certification and such Architect’s Certification has not been objected to by Landlord within five (5) Business Days after Landlord’s receipt thereof or (B) such modification represents an immaterial field change and Tenant has provided the information required in clause (2) of this Section 6.2(d), then such submission of the proposed modifications for Landlord’s review and approval is not required. Unless and until a proposed modification is clearly identified by Tenant, such modification shall not be considered by Landlord and the prior set of approved plans shall govern in respect of such modification. Landlord shall not disapprove any matter previously submitted and approved, or deemed approved by Landlord, except to the extent that the proposed modification affects any matter so approved or deemed approved. If Landlord determines, in accordance with the applicable provisions of Section 6.2(a)(i) hereof, that any proposed modifications are acceptable to Landlord, Landlord shall so notify Tenant. If Landlord determines, in accordance with the applicable provisions of Section 6.2(a)(i) hereof, that such modifications are not otherwise acceptable, Landlord shall so notify Tenant, setting forth in reasonable detail Landlord’s reasons for such determination. In the event

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Landlord determines the modification to be unacceptable, Tenant shall either (i) withdraw the proposed modification, in which case construction of the New Building shall proceed on the basis of the submissions previously approved or deemed approved by Landlord, or (ii) revise the proposed modifications so that they are acceptable to Landlord and resubmit them to Landlord for review in accordance with the standards hereinabove set forth. Each review by Landlord under this Section 6.2(d) shall be carried out within fifteen (15) Business Days of the date of submission of the proposed modifications to the Approved Schematic Design Plans, Design Development Plans or the Final Plans and Approved Specifications, as the case may be, unless the proposed modification substantially alters the Approved Schematic Design Plans, Design Development Plans or the Final Plans and Specifications, in which event, so long as Landlord notifies Tenant within such fifteen (15) Business Day period that Landlord so regards the proposed modification, Landlord’s review shall be carried out within twenty (20) Business Days of the date of submission of the proposed modification.

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

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

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

Section 6.3            Performance of Construction Work.

(a)   Standards for Construction Work.

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

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

(iii)   From and after the Delivery Date, the Property shall be free of liens (it being understood that Tenant shall have up to forty-five (45) days to cause

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any liens imposed on the Property from and after the Delivery Date to be fully discharged or bonded and to provide evidence thereof to Landlord).

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

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

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

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

(b)   Conditions Precedent to Commencement of Construction Work. Tenant shall not commence any Tenant Construction Work and shall not permit any Subtenant or any other Person to commence any Construction Work, (other than Interior Construction Work and the Demolition Work) governed by any element of the DUO or affecting a Structural Component (other than by having a Nonadverse Structural Effect), unless and until:

(i)   Approval of Plans. Landlord shall have approved the Final Plans and Specifications to the extent required in Section 6.2 hereof;

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

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

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Tenant and any general contractor, construction manager, the Design Architect and the other Architects; (C) construction schedules and staging plans; and (D) certificates for the insurance required by Section 10.1 hereof, together with evidence reasonably satisfactory to Landlord of the payment of the premiums therefor;

(iv)    Construction Guaranties. With respect only to Tenant’s Construction Work, including, without limitation, Section 6.6 and Core and Shell “punch list” items (the “Core and Shell Punchlist”) prepared by Tenant and delivered to the Major Contractors upon Substantial Completion, a copy of which Core and Shell Punchlist shall be delivered to Landlord, upon Substantial Completion (and not with respect to any other Construction Work) Tenant has caused NYTC and FCE to execute and deliver to Landlord the NYTC Construction Guaranty and the FCE Construction Guaranty, respectively; provided, however, that if, prior to or after the commencement of Tenant’s Construction Work: (w) NYTC Member is the sole member of Tenant, then Tenant shall only be required to cause the NYTC Construction Guaranty to be executed and delivered to Landlord pursuant to this Section 6.3(b)(iv); (x) FC Member is the sole member of Tenant, then Tenant shall only be required to cause the FCE Construction Guaranty to be executed and delivered to Landlord pursuant to this Section 6.3(b)(iv); (y) ING is the sole member of Tenant, then Tenant shall only be required to cause the ING Construction Guaranty to be executed and delivered to Landlord pursuant to this Section 6.3(b)(iv); and (z) ING is the sole member of FC Member, then Tenant shall, in addition to the NYTC Construction Guaranty, be required to cause the ENG Construction Guaranty to be executed and delivered to Landlord pursuant to this Section 6.3(b)(iv) in lieu of the FCE Construction Guaranty; and provided further that Landlord agrees that if, after any Construction Guaranty is provided to Landlord in accordance with this Section 6.3(b)(iv), Tenant delivers to Landlord a NYTC Construction Guaranty, an FCE Construction Guaranty or an ING Construction Guaranty pursuant to clauses (w), (x), (y), or (z), as applicable, then Landlord shall acknowledge in writing to NYTC, FCE or ING Vastgoed B B.V., as applicable, promptly after the aforesaid delivery, that any Construction Guaranty previously delivered to Landlord, and that is to be superseded by the newly delivered Construction Guaranty, is of no further force or effect); and

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

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

(i)   In respect of any Construction Work governed by any element of the DUO, an Architect’s Certification (which Architect’s Certification has not been objected to within ten (10) Business Days of Landlord’s receipt thereof), prepared by an Architect approved (or deemed approved) by Landlord in accordance with Section 6.1(d)(ii) hereof, that (A) the Architect has examined the applicable Final Plans and Specifications, (B) to its best knowledge, after appropriate investigation, the Construction Work, as then constructed, has been completed substantially and in all material respects in accordance with the applicable Final Plans and Specifications as it

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relates to and complies with the DUO, and (C) with respect to Tenant’s Construction Work only, indicates in respect to each of (1) the Project overall, and (2) each element of the Project Components, the total number of Square Feet and Rentable Square Feet, and indicating which portion of the difference between Square Feet and Rentable Square Feet is on account of Discretionary Inside Mechanical Space and which portion is on account of below grade, Revenue Producing Retail Space;

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

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

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

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

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

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

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

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

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

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

(e)   Right of Inspection. Landlord shall have the right, during the performance of any Construction Work governed by any element of the DUO or affecting a Structural Component (other than by having a Nonadverse Structural Effect), to (i) maintain, at Landlord’s cost, field personnel or other representatives at the Project to observe Tenant’s construction methods and techniques and to determine that such Construction Work is being performed in accordance with the provisions of this Lease, and (ii) have such field personnel or other designers attend Tenant’s job and/or safety meetings (it being agreed that such Landlord’s field personnel or other representatives shall not instruct contractors, interfere with or impede the work of such or other workers in respect of any such Construction Work). Landlord agrees that the presence and activities of such field personnel or other representatives shall not impede in any respect the performance of such Construction Work. No such observation or attendance by Landlord’s personnel, designers or other representatives shall impose upon Landlord responsibility for any failure by Tenant to comply with any Legal Requirements, Insurance Requirements or safety practices in connection with such Construction Work or constitute an acceptance of any such Construction Work which does not comply in all respects with the provisions of this Lease.

Section 6.4            Use of Plans and Specifications.  Landlord shall have the right to use without any payment or other compensation by Landlord therefor, solely for the purposes set forth in the following sentence, (a) the Approved Schematic Design Plans, the Design Development Plans and the Final Plans and Specifications, (b) any surveys and “as built” plans showing the applicable Construction Work, and (c) any other plans and specifications with respect to such Construction Work.  Landlord shall have the right to use the items enumerated in clauses (a) through (c) above to facilitate the exercise of its rights under this Lease and, subsequent to the expiration or termination of this Lease where Landlord retains title to the Property, for the construction, use, operation and Alteration of the applicable Project Component and other purposes incidental thereto; subject, however, to the following restrictions:

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

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

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

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

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

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

Nothing in this Section 6.4 shall permit the selection by Tenant and approval of a Design Architect other than in accordance with Section 6.1(d) hereof. The provisions of this Section 6.4 shall survive any such expiration or earlier termination of this Lease.

Section 6.5            Conditions Precedent to Commencement of Demolition, Asbestos Removal and Lead Abatement.  (a) Tenant shall not commence any demolition of the Existing Improvements or commence asbestos removal or lead paint abatement of the Existing Improvements (any such work, the “Demolition Work”) unless and until: (i) Tenant shall have obtained and delivered to Landlord true and complete copies of all necessary permits, consents, certificates and approval of all necessary Governmental Authorities in respect of such work; and (ii) Tenant shall have delivered to Landlord satisfactory certificates evidencing the insurance required by Article X hereof. Subject to Sections 6.5(b) and 6.5(c) hereof, Tenant covenants and agrees that once Tenant has initiated the Demolition Work, it shall thereafter commence Tenant’s Construction Work and continuously, diligently and without material interruption pursue Tenant’s Construction Work until completion.

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

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

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

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

(iii)   The term “Demolition Engineer” shall mean one of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Associates PC, (B) ▇▇▇▇▇ ▇▇▇▇▇ of Wiss ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (C) ▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇ PC or (D) another engineer determined, in any

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event, as set forth in this Section 6.5(b)(iii). In the event that the first named Demolition Engineer is not available or is unwilling to serve, the Demolition Engineer next set forth on the list shall be engaged, and so on, until arriving at an available Demolition Engineer. If none of such listed Persons is available or willing to serve, the Demolition Engineer shall be selected by the AAA and shall be an impartial engineer, with at least ten (10) years current experience in the assessment of safety conditions in commercial structures in New York City. Tenant shall pay all fees and expenses of the Demolition Engineer (and, if necessary, AAA’s involvement with the selection thereof).

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

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

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

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

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

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

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

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

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

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Section 6.8                                   Construction Agreements.  All construction agreements valued at One Hundred Thousand Dollars ($100,000) or more shall include the following provisions:

(a)          [“Contractor”/”Subcontractor”/”Materialman”] hereby agrees that immediately upon the purchase by [“contractor”/”subcontractor”/”materialman”] of any building materials to be incorporated in the Property (as defined in the Agreement of Lease, dated                               , 2009 between Owner and 42nd St. Development Project, Inc. (the “Lease”)), such materials shall become the sole property of the Landlord (as defined in the Lease), notwithstanding that such materials have not been incorporated in, or made a part of, such Property at the time of such purchase; provided, however, that the Landlord (as defined in the Lease) shall not be liable in any manner for payment to [“contractor” / “subcontractor” / “materialman”] in connection with the purchase of any such materials, and Landlord shall have no obligation to pay any compensation to [“contractor” / “subcontractor” / “materialman”] by reason of such materials becoming the sole property of the Landlord.

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

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

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

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

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

Section 6.10                            Project Area.  Tenant shall require its general contractor, construction manager, major trade contractors and all other workers at the Property connected with any Construction Work to work harmoniously with each other, and with other contractors and workers on the Project, and Tenant shall not engage in, permit or suffer, any conduct which may disrupt such harmonious relationship. Tenant shall take commercially reasonable efforts to (a) enforce the aforesaid requirements and (b) cause its general contractor, construction manager and

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major trade contractors to minimize any interference with the use, occupancy and enjoyment of the Project area by other occupants and visitors thereof.

Section 6.11                            Title to Materials.  All materials and other Equipment incorporated in the Improvements, excluding any Tenant or Subtenant personal property, shall, effective upon their incorporation into the Project and at all times thereafter, constitute the property of Landlord and shall constitute a portion of the Property.

Section 6.12                            Nonadverse Structural Effect.  Tenant may provide to Landlord a statement of an Architect or an Engineer approved by Landlord pursuant to this Lease, in the form of Exhibit O attached hereto, certifying that the contemplated Construction Work shall have no adverse effect on a Structural Component that is greater than a Nonadverse Structural Effect. Such statement shall be based solely on such Engineer’s or Architect’s sole assessment of the Construction Work in question and not on any representations or other statements made by Tenant or any other party. Landlord shall approve or disapprove of such Engineer’s or Architect’s statement, in Landlord’s reasonable discretion, within ten (10) Business Days of Landlord’s receipt thereof.

Section 6.13                            Arbitration.  Disputes regarding any aspect of this Article VI, except for those expressly stated otherwise or those that pertain to the DUO, may be referred to arbitration pursuant to Section 16.3 hereof.

ARTICLE VII
USE AND MAINTENANCE OF THE PROPERTY

Section 7.1                                   Permitted Use.

(a)          Use.  The Demised Premises and the Common Elements shall be used, maintained, occupied and operated (i) in accordance with the requirements of the DUO, (ii) at a standard of at least that of a Class “A” office building (as understood on December 12, 2001) in midtown Manhattan, and (iii) subject to the DUO and except as hereinafter set forth, for any use permitted by Legal Requirements, including, without limitation, offices, newsrooms, retail, service, auditoriums, dining facilities, communications facilities, production facilities, ancillary medical facilities, parking for not more than ten (10) cars, back office, storage and other uses as are incidental or ancillary thereto, in accordance with the certificate(s) of occupancy therefor, and for no use or purpose inconsistent with the DUO or the operation of a Class “A” office building (as understood on December 12, 2001) in midtown Manhattan (the uses described in clauses (i), (ii) and (iii) above, the “Permitted Use”), and for no other use.  Tenant agrees not to use, permit or suffer the Demised Premises or the Common Elements to be used for any purposes not expressly permitted under this Section 7.1(a) without the prior written consent of Landlord.

(b)         Display and Signage.  All signage to be incorporated into the design of the Demised Premises and the Common Elements, and all lighting to be installed in connection therewith shall comply with the specific requirements of the DUO; provided, however, that Tenant shall not be responsible for signage and lighting relating to any Retail Space other than any Retail Space associated with the Public Amenity.  Tenant shall install and operate, or cause

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to be installed and operated, lights and signs as required by the DUO by the date(s) prescribed in the DUO applicable to each category of lighting and signage set forth in the DUO.

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

(d)         Compliance with the DUO.  Tenant shall maintain and operate the Demised Premises and the Common Elements in compliance with the DUO.

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

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

(b)         constitute a public nuisance;

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

(d)         violate any requirements of the DUO.

Section 7.3                                   Maintenance Obligations.

(a)          [INTENTIONALLY OMITTED]

(b)         [INTENTIONALLY OMITTED]

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

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

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

(C)        take good care of the Demised Premises and the Common Elements, make all repairs, restorations and replacements thereto, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen and unforeseen, necessary to (1) comply with all Legal Requirements, Insurance Requirements and the DUO and (2) maintain and operate the Demised Premises and the Common Elements to a standard at least of that of {first class

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retail space in} a Class “A” office building (as understood on December 12, 2001) in midtown Manhattan;

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

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

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

(G)        [INTENTIONALLY OMITTED];

(H)       [INTENTIONALLY OMITTED];

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

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

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

Section 7.4                                   Compliance with Legal Requirements.  Tenant shall promptly comply with all Legal Requirements and Insurance Requirements, foreseen or unforeseen, ordinary as well as extraordinary, structural or non-structural, with respect to the Demised Premises and the Common Elements.  Tenant shall have the right to contest the validity of any Legal Requirement or the application thereof in accordance with this Section 7.4.  During such contest, compliance with any such contested Legal Requirement may be deferred by Tenant upon

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

Section 7.5                                   No Waste.  Tenant will not do, permit or suffer any waste to or upon the Demised Premises or the Common Elements or any part thereof.  Tenant shall have the right at any time and from time to time to sell or dispose of any Equipment, subject to this Lease, which may have become obsolete or unfit for use or which is no longer useful, necessary or economical in the operation of the Demised Premises or the Common Elements; provided, however, that Tenant shall have substituted or shall promptly substitute for the property so removed from the Demised Premises or the Common Elements other Equipment not necessarily of the same character but at least of equal quality in the performance of the particular function in question as that of the property so removed unless, in Tenant’s reasonable opinion as set forth in a written notice to Landlord, the property so removed was performing an obsolete function or a function no longer required in connection with the then current use of the Demised Premises or the Common Elements and replacement thereof is not necessary or appropriate to maintain, without impairment, the operation or character of the Demised Premises or the Common Elements, their use and occupancy by Subtenants or their overall value.

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

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

Section 7.8                                   Environmental.  Tenant shall not undertake, permit or suffer any Environmental Activity in the Demised Premises or the Common Elements other than (a) in compliance with all applicable Insurance Requirements and Legal Requirements and (b) in such a manner as shall keep the Property free from any lien imposed in respect or as a consequence of such Environmental Activity.  Tenant shall take all necessary steps to ensure that any permitted Environmental Activity undertaken or permitted in the Demised Premises or the Common Elements is undertaken in a manner as to provide prudent safeguards against potential risks to human health or the environment or to the Demised Premises or the Common Elements.  Tenant shall notify Landlord within twenty-four (24) hours after Tenant becomes aware of the release or discharge of any Hazardous Materials from or at the Demised Premises or the Common Elements and Tenant shall forthwith remediate or remove such Hazardous Materials, subject to the last sentence of this Section 7.8.  Landlord shall have the right from time to time to conduct an environmental audit of the Demised Premises and/or the Common Elements, provided Landlord has reasonable cause to believe (i) Hazardous Materials have been released or discharged or is otherwise present at the Demised Premises or the Common Elements or (ii) Tenant is otherwise in violation of any Legal Requirement or Insurance Requirement relating to Hazardous Materials, and Landlord provides written notice of its intention to conduct an environmental audit together with a statement setting forth the reasons therefor.  Tenant shall cooperate in the conduct of such environmental audit.  The cost of such audit shall be payable by Tenant upon Landlord’s demand therefor; provided, however, that if Tenant objects to such audit by written notice received by Landlord prior to the initiation of such audit and such audit (and any more-detailed environmental audit of the same circumstances (e.g., a so-called phase II environmental assessment)) fails to identify any Environmental Activity in violation of Legal Requirements, Landlord shall pay the costs of such audit.  Such audit shall be performed at reasonable times, at reasonable hours and on at least five (5) Business Days notice (except in the case of an emergency), Landlord shall make reasonable efforts to minimize interference with Tenant and any Subtenants, and shall require its audit contractor to carry commercial liability insurance in a commercially reasonable amount, naming Tenant and Landlord as additional insureds, and to deliver Tenant evidence thereof no less than five (5) Business Days prior to commencing such audit.  Notwithstanding anything to the contrary in the foregoing portions of this Section 7.8: (A) nothing contained in this Section 7.8 shall require Tenant to remove or remediate any Hazardous Waste unless required to do so by Legal Requirements applicable to the Demised Premises or the Common Elements; and (B) Tenant shall have the right, in accordance with Section 7.4, to contest the validity of any Legal Requirement applicable to the remediation or removal of Hazardous Materials, provided Tenant forthwith takes all necessary

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steps to prevent any further discharge or release of Hazardous Materials or any other or further deterioration to the Demised Premises or the Common Elements caused by Hazardous Materials; provided, however, that, in any event, Tenant may not delay such remediation or removal during the pendency of such contest if the presence of such Hazardous Materials poses an imminent threat to the Demised Premises or the Common Elements or any persons or if such delay could expose Landlord to increased liability arising from such Hazardous Materials.

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

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

Section 7.11                            Adverse Possession.  Tenant shall not suffer or permit the Demised Premises or the Common Elements or any portion thereof to be used by the public or any Person without restriction or in such manner as would, with the lapse of time, impair title to the Demised Premises or the Common Elements or any portion thereof, or create the basis for a legitimate claim or claims of adverse usage or adverse possession by the public, as such, or any Person, or of implied dedication of the Demised Premises or the Common Elements, or any portion thereof.

Section 7.12                            [INTENTIONALLY OMITTED]

ARTICLE VIII
REPAIRS

Section 8.1                                   Repairs.

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

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

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

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ARTICLE IX

ALTERATIONS AND COMPLETION OF THE IMPROVEMENTS

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

Section 9.2                                   Performance of Alterations.

(a)          Standards for All Alterations.

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

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

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

(iv)   All Alterations, when completed, shall be of the standard and quality commonly required at Class “A” office buildings (as understood on December 12, 2001) in midtown Manhattan.

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

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

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

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(b)         Conditions Precedent to Commencement of Any Alteration.  Tenant shall not, nor shall Tenant permit any Subtenant or any other Person, to commence any Alteration (other than Interior Construction Work) governed by any element of the DUO or affecting a Structural Component (other than by having a Nonadverse Structural Effect), unless and until:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a)          [“Contractor” / “Subcontractor” / “Materialman”] hereby agrees that immediately upon the purchase by [“contractor” / “subcontractor” / “materialman”] of any building materials to be incorporated in the Demised Premises and the Common Elements (as such terms are defined in the Agreement of Sublease, dated                 , 2009, between Owner and 42nd St. Development Project, Inc. (the “Lease”)), such materials shall become the sole property of the Landlord (as defined in the Lease), notwithstanding that such materials have not been incorporated in, or made a part of, such Demised Premises and/or the Common Elements at the time of such purchase; provided, however, that the Landlord (as defined in the Lease) shall not be liable in any manner for payment to [“contractor” / “subcontractor” / “materialman”] in connection with the purchase of any such materials, and Landlord shall have no obligation to pay any compensation to [“contractor” / “subcontractor” / “materialman”] by reason of such materials becoming the sole property of the Landlord.

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

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

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

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

Section 9.4                                   Use of Plans and Specifications.  Landlord shall have the right to use, without any payment or other compensation by Landlord therefor, solely for the purposes set forth in the following sentence, (a) the Approved Schematic Design Plans, the Design Development Plans, the Final Plans and Specifications and any Alteration Plans and Specifications, (b) any surveys and “as built” plans showing the applicable Alteration, and (c) any other plans and specifications with respect to such Alteration.  Landlord shall have the right to use the items enumerated in clauses (a) through (c) above to facilitate the exercise of its rights under this Lease and, subsequent to the expiration or termination of this Lease where Landlord retains title to the Demised Premises or the Common Elements, for the construction, use, operation and Alteration of the Demised Premises or the Common Elements and other purposes incidental thereto; subject, however, to the following restrictions:

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

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

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

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

(v)   in connection with any publication of photographs or other representations of the Alteration in question where the design of the Alteration in question is the subject of the publication, if applicable, the party causing such publication will endeavor to see that reference to the Design Architect as architect for the Alteration in question is included in any such publication as follows: ▇▇▇▇▇ ▇▇▇▇▇

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Building Workshop, Design Architects, with FXFOWLE (f/k/a Fox and ▇▇▇▇▇) Architects, Executive Architect; and

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

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

Section 9.5                                   Major Alterations.

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

(i)   Tenant shall furnish to Landlord the following, in respect only of a DUO/Structural Alteration, at least thirty (30) Business Days prior to commencement of any such DUO/Structural Alteration, complete proposed Alteration Plans and Specifications for such DUO/Structural Alteration (which shall include complete information and dimensions necessary for the construction and finishing of the applicable DUO/Structural Alteration and for any engineering required in connection therewith (both standard architectural drawings and in electronic format (including CAD drawings))), prepared by an Architect or by a reputable, licensed professional engineer selected by Tenant (or any Subtenant, as applicable), which submittal shall comply with all applicable Legal Requirements and Insurance Requirements, and any other drawings, information or samples which Landlord may reasonably request, all of the foregoing to be subject to Landlord’s review and approval (1) in respect of any DUO Alteration, only for compliance with the DUO in accordance with the procedures, and within the time periods, applicable to the review and approval

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of “Design Development Plans” and “Final Plans”, as the case may be, as prescribed in the applicable DUO Exhibit and (2) in respect of any Structural Alteration, in accordance with the procedures, and within the time periods, applicable to the review and approval of “Design Development Plans” and “Final Plans”, as the case may be, as prescribed in Exhibit E-6 attached hereto; provided, however, (A) Alteration in connection with any DUO/Structural Alteration shall not commence until Landlord shall have approved the proposed Alteration Plans and Specifications for such DUO/Structural Alteration (it being agreed that Landlord’s disapproval of one or more DUO/Structural Alterations shall not impede Tenant’s right to proceed pursuant hereto with any Landlord approved DUO/Structural Alteration so long as the Alteration being pursued is not related in any way to the Alteration that has not been approved by Landlord), and (B) that Landlord’s approval of the proposed Alteration Plans and Specifications (or any modifications thereto) shall not be, nor shall be construed as being, or relied upon as, a determination that any such proposed Alteration Plans and Specifications (or any modifications thereto) comply with any Legal Requirements or Insurance Requirements;

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

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

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

(b)         Alteration Plans and Specifications.

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

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Architect Approval Criteria, the standard for all DUO design reviews shall be “Landlord’s sole discretion”.

(ii)   Modification of Alteration Plans and Specifications.  If Tenant desires to modify Alteration Plans and Specifications after they have been approved or deemed approved by Landlord pursuant to Section 9.5(a)(i) hereof, and either (A) Tenant has not provided to Landlord an Architect’s Certification, prepared by an Architect or an Engineer approved (or deemed approved) by Landlord in accordance with Section 9.6(a)(ii) hereof, describing the proposed modification and stating that such modification is not to have been governed by any element of the DUO or does not affect a Structural Component (other than by having a Nonadverse Structural Effect), or (B) such modification represents an immaterial field change to such plans (notification of each such immaterial field change being promptly provided to Landlord by Tenant together with adequate identification of such change and an explanation of the change made), Tenant shall submit the proposed modifications to Landlord, clearly identifying each such modification, together with a statement of Tenant’s reasons therefor.  If (a) Tenant has submitted such aforesaid Architect’s Certification and such Architect’s Certification has not been objected to by Landlord within five (5) Business Days after Landlord’s receipt thereof or (b) such modification represents an immaterial field change and Tenant has provided the information required in clause (2) of this Section 9.5(b)(ii), then such submission of the proposed modifications for Landlord’s review and approval is not required.  Unless and until a proposed modification is clearly identified by Tenant, such modification shall not be considered by Landlord and the prior set of approved plans shall govern in respect of such modification.  Landlord shall not disapprove any matter previously submitted and approved, or deemed approved by Landlord, except to the extent that the proposed modification affects any matter so approved or deemed approved.  If Landlord determines, in accordance with the applicable provisions of Section 9.5(a)(i) hereof, that any proposed modifications are acceptable to Landlord, Landlord shall so notify Tenant.  If Landlord determines, in accordance with the applicable provisions of Section 9.5(a)(i) hereof, that such modifications are not otherwise acceptable, Landlord shall so notify Tenant, setting forth in reasonable detail Landlord’s reasons for such determination.  In the event Landlord determines the modification to be unacceptable, Tenant shall revise the proposed modifications so that they are acceptable to Landlord and resubmit them to Landlord for review in accordance with the standards hereinabove set forth.  Each review by Landlord under this Section 9.5(b)(ii) shall be carried out within fifteen (15) Business Days of the date of submission of the proposed modifications to the Alteration Plans and Specifications unless the proposed modification substantially alters the Alteration Plans and Specifications, in which event, so long as Landlord notifies Tenant within such fifteen (15) Business Day period that Landlord so regards the proposed modification, Landlord’s review shall be carried out within twenty (20) Business Days of the date of submission of the proposed modification.

(iii)   Compliance with Legal Requirements.  The Alteration Plans and Specifications (and any modification thereto) shall comply with all Legal Requirements and Insurance Requirements (but need not comply with the Zoning Resolution, it being understood that Alteration may be constructed without reference to

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the provisions of the Zoning Resolution).  Landlord’s approval of any such Alteration Plans and Specifications (or any modification thereto) drawings shall not be, nor shall be construed as being, or relied upon as, a determination that any such Alteration Plans and Specifications (or any modification thereto) drawings comply with any Legal Requirements or Insurance Requirements.

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

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

(c)          Right of Inspection.  Landlord shall have the right, during the performance of any Alteration governed by any element of the DUO or affecting a Structural Component (other than by having a Nonadverse Structural Effect), to (i) maintain, at Landlord’s cost, field personnel or other representatives at the Demised Premises or in the portions of the Improvements constituting the Common Elements to observe Tenant’s construction methods and techniques and to determine that such Alteration is being performed in accordance with the provisions of this Lease, and (ii) have such field personnel or other designers attend Tenant’s job and/or safety meetings (it being agreed that, in respect of both of clauses (i) and (ii) immediately preceding, such Landlord’s field personnel or other representatives shall not instruct contractors, interfere with or impede the work of such or other workers in respect of any such Alteration).  Landlord agrees that the presence and activities of such field personnel or other representatives shall not impede in any respect the performance of such Alteration.  No such observation or attendance by Landlord’s personnel, designers or other representatives shall impose upon Landlord responsibility for any failure by Tenant to comply with any Legal Requirements, Insurance Requirements or safety practices in connection with such Alteration or constitute an acceptance of any such Alteration which does not comply in all respects with the provisions of this Lease.

Section 9.6                                   Approval of Project Participants.

(a)          Approval of Architects.

(i)   Design Architect.  The design architect for any Alteration (other than Interior Construction Work) governed by any element of the DUO shall be the Design Architect.  If Tenant shall desire to replace ▇▇▇▇▇ ▇▇▇▇▇ Building Workshop or any Replacement Design Architect previously approved by Landlord as the Design Architect, then such replacement Design Architect proposed by Tenant shall be approved by Landlord (such approved replacement Design Architect, the “Replacement Design Architect”) so long as the proposed Replacement Design Architect, in Landlord’s reasonable judgment, meets all of the following criteria (the “Replacement Design Architect Approval Criteria”):  (A)  the proposed

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

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

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

(ii)   Other Architects and Engineers.  Except in respect of the Design Architect (which shall be approved in accordance with Section 9.6(a)(i) hereof), the Production Architect and each other architect and engineer proposed to be engaged in respect to any Alteration (other than Interior Construction Work or demolition work) (A) governed by any element of the DUO, (B) affecting a Structural Component (other than by having a Nonadverse Structural Effect), or (C) of a value of

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

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

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

(b)         Approval of Contractors.

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

(ii)   Major Contractors.  Prior to the time at which Tenant solicits any bids for labor or materials for any Alteration (other than Interior Construction Work) governed by any element of the DUO or affecting a Structural

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

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

If Landlord fails to approve or reject the proposed Major Contractor within five (5) Business Days after its receipt of such reminder notice, such Major Contractor shall be deemed approved by Landlord.  Any rejection of a Major Contractor by Landlord shall be accompanied by specific reasons set forth in reasonable detail.  Landlord approves, as of December 12, 2001, the Major Contractors listed on Exhibit I attached hereto.

Section 9.7                                   Alterations Certification.  If Legal Requirements require that plans be submitted to the New York City Department of Buildings in respect of a given Alteration, Tenant shall deliver to Landlord at least seven (7) Business Days prior to the commencement of work in respect thereof a certification (the “Alterations Certification”) signed by a Qualified Certifying Party of Tenant (a) describing the applicable Alteration, (b) setting forth the reasonably estimated cost thereof and (c) stating whether such Alteration will or will not affect any Structural Component (or if such Alteration will affect a Structural Component, stating whether or not such Alteration will have only a Nonadverse Structural Effect) and will or will not affect any element of the DUO.  A copy of the Alteration Plans and Specifications, if any, prepared for any such Alteration shall be submitted with the Alterations

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Certification, and the architect or engineer who prepared such plans and specifications shall also sign the Alterations Certification.  If the statement set forth in the Alterations Certification indicates that the Alteration in question will affect any Structural Component (other than by having a Nonadverse Structural Effect) or any element of the DUO or is otherwise untrue, or if Tenant fails to submit an Alterations Certificate, the applicable Alteration shall be subject to the requirements of Section 9.5(a) hereof and the commencement of the Alteration without compliance with the requirements of Section 9.5(a) hereof shall constitute a Default hereunder.

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

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

Section 9.10                            Completion of Improvements.

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

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

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

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

ARTICLE X
INSURANCE

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

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

(b)         commercial general liability insurance written on ISO occurrence form CG 00 01 (or a substitute form providing equivalent coverage, which shall include a broad form CGL endorsement if the substitute form is a 1973 edition CGL form), which shall cover liability of the Tenant or the Condominium Association, as the case may be, arising from operations of the Demised Premises or the Common Elements, as the case may be, independent contractors, products and completed operations, personal injury and advertising injury and liability assumed under an insured contract, protecting and indemnifying Tenant (and the Condominium Association, as applicable) and Landlord, from and against any and all claims for damages or injury to person or property or for loss of life or of property occurring upon, in, or about the Demised Premises and the Common Elements applicable and the adjoining streets, vaults, sidewalks and passageways, such insurance to afford immediate protection, to the limit of not less than Fifty Million Dollars ($50,000,000) (as such sum shall be Adjusted for Inflation from December 12, 2001) per occurrence and Fifty Million Dollars ($50,000,000) (as such sum shall be Adjusted for Inflation from December 12, 2001) in the aggregate for all occurrences within each policy year; such policy shall include a provision that said aggregate limit shall apply separately at the Demised Premises and the Common Elements, as applicable, or, alternatively,

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such coverage shall be in an amount not less than One Hundred Million Dollars ($100,000,000) (as such sum shall be Adjusted for Inflation from December 12, 2001) per occurrence and in the aggregate, and that said insurer will provide notice to the Landlord if said aggregate is reduced by either payments of a claim or establishment of a reserve for claims if said payments or reserves exceed Five Million Dollars ($5,000,000); Tenant agrees that if the aggregate limit is reduced by the payment of a claim or establishment of a reserve to take all practical immediate steps to have the aggregate limit restored by endorsement to the existing policy or the purchase of an additional insurance policy;

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

(d)         business interruption insurance in an amount no less than the sum of PILOT and Theater Surcharge for one (1) year as determined by Tenant, subject to Landlord’s prior written approval and adjustments from time to time but not more frequently than once annually for the first five (5) years after December 12, 2001 and thereafter not more frequently than once every two (2) years, and which insurance shall be payable to Landlord or Tenant, as their respective interests may appear;

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

(f)            business automobile liability insurance covering liability arising out of any vehicle (including owned, non-owned, leased, rented and/or hired vehicles) insuring against liability for bodily injury, death and property damage in an amount not less than Five Million Dollars ($5,000,000) (as such sum shall be Adjusted for Inflation every five (5) years after December 12, 2001) each accident limit;

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

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

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

(j)             pollution liability insurance with limits of not less than Five Million Dollars ($5,000,000) (as such sum shall be Adjusted for Inflation from December 12, 2001) per occurrence and in the aggregate with a deductible of no more than $1,000,000 (as such sum shall be Adjusted for Inflation from December 12, 2001), providing coverage for bodily injury or property damage arising from, or cleanup of, actual, alleged or threatened emission, discharge, dispersal, seepage, release or escape of Hazardous Materials from, on, under, in or onto the Demised Premises or the Common Elements, as the case may be, including any loss, cost or expense incurred as a result of the investigation, settlement or defense of any claim, suit, or proceedings against Landlord, including the payment of any monetary awards of compensatory damages, arising from any such occurrence;

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

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

(m)       such other insurance and in such amounts as may from time to time be then customarily carried by owners of comparable Class “A” office buildings (as understood on December 12, 2001) in midtown Manhattan.

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

(a)          be effected under standard form policies issued by insurers of recognized responsibility, authorized to do business in the State of New York, which are rated no less than “A-/VII” in the then current edition of Best’s Insurance Report (or the then equivalent of such rating); provided, however, that insurers providing coverage in excess of the amounts required by Section 10.1 hereof may have a lower rating than the rating indicated in this Section 10.2(a) so long as any such insurers providing such excess coverage and having a lower rating than is

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required by the first clause of this Section 10.2(a) are not treated as “co-insurers” hereunder of the amounts set forth in Section 10.1 hereof;

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

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

Section 10.3                            Waiver of Subrogation.

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

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

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Section 10.4                            Delivery of Policies.

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

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

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

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

(b)         Landlord and the Condominium Association shall cooperate in connection with the collection of any insurance monies that may be due in the event of loss in respect of the Common Elements, but the same shall be at the sole cost and expense of Tenant.  If Tenant shall fail promptly and with due diligence to make claim for and use good faith efforts to collect any insurance monies that are so due, Landlord, upon twenty (20) Business Days prior written notice to Tenant, may make claim for and collect the same directly on behalf of and in the name of Landlord and Tenant.  The aforesaid notice shall include the following, in boldface print:  “In the event that Tenant fails to make a claim for and to collect insurance proceeds, as

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required in Section 10.6 of the Lease, and such failure continues for twenty (20) Business Days after delivery of this notice, Landlord shall be entitled to make such claim and collect such proceeds.”  Landlord (in the event that claim in question is for an amount in excess of $5,000,000), the Condominium Association and, if required by the terms of the applicable Recognized Mortgage, the Recognized Mortgagee most senior in lien, shall be entitled to participate in any negotiations with the insurer regarding the adjustment of claims for damage to the Common Elements, and any settlement agreement shall be subject to the approval of Landlord (in the event that the claim in question is for an amount in excess of $5,000,000), the Condominium Association and such Recognized Mortgagee, such approval not to be unreasonably withheld.

Section 10.7                            Approval by Landlord.  No approval by Landlord of any insurer shall be construed to be a representation, certification or warranty of such insurer’s solvency and no approval by Landlord as to the amount, type or form of any insurance shall be construed to be a representation, certification or warranty of such insurance’s sufficiency.  Tenant shall be solely responsible for covering the deductibles under the insurance policies provided hereunder regardless of whether Landlord has approved the amount of such deductibles.

Section 10.8                            Depositary.  Subject to Section 10.9 hereof, any loss under all policies required by any provision of this Lease insuring against damage to the Common Elements by fire or other casualty shall be payable to the Depositary, except that amounts of less than Three Hundred Fifty Thousand Dollars ($350,000) (as such sum shall be Adjusted for Inflation from December 12, 2001) shall be payable in trust directly to Tenant for application to the cost of Restoration in accordance with Article XI hereof.  Any loss under any policies insuring against damage to any portion of the Demised Premises (exclusive of any portion of the Common Elements) or any personal property in the Demised Premises shall be payable to Tenant.

Section 10.9                            Security for Commercial Property Insurance Premium.

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

(b)                                 [INTENTIONALLY OMITTED]

(c)                                  If Tenant defaults in the full and prompt payment and performance of any of Tenant’s covenants or obligations under Section 10.4(a) hereof in respect of the policies to be

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maintained under Section 10.1(a) hereof, Landlord may use, apply or retain the whole or any part of the Security Deposit and the interest accrued thereon, if any, to the extent required for the payment of any insurance premium required to meet Tenant’s obligations under Section 10.1(a) hereof.  If Landlord shall so use, apply or retain the whole or any part of the Security Deposit and the interest accrued thereon, Tenant shall upon demand immediately deposit with Landlord a sum equal to the amount so used, applied or retained.  If Tenant shall fully and faithfully comply with all of Tenant’s obligations under Section 10.4(a) hereof in respect of the policies to be maintained under Section 10.1(a) hereof, the Security Deposit (including interest thereon) or any balance thereof, shall be returned or paid over to Tenant after the date on which this Lease shall expire or sooner end or terminate, and after delivery to Landlord of entire possession of the Demised Premises.  In the event of any sale of Landlord’s interest in the Lease, Landlord shall have the right to assign its interest in the Security Deposit to the transferee or assignee and Landlord shall thereupon be released by Tenant from all liability for the return or payment thereof; and Tenant shall look solely to the new landlord for the return or payment of the same; and the provisions hereof shall apply to every transfer or assignment made of the same to a new landlord.  Tenant shall not assign or encumber or attempt to assign or encumber the Security Deposit and neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.

ARTICLE XI
DAMAGE AND DESTRUCTION

Section 11.1                            Damage and Destruction.

(a)          Restoration.  If, at any time during the term of this Lease, all or any part of the Common Elements or any portion thereof shall be destroyed or damaged in whole or in part by fire or other casualty (including any casualty for which insurance was not obtained or obtainable) of any kind or nature, ordinary or extraordinary, foreseen or unforeseen (each, a “Casualty”), Tenant shall: (i) give to Landlord immediate notice thereof, except that no notice shall be required if the estimated cost of repairs, restorations, replacements and rebuilding, including temporary repairs or the protection of other property pending the completion of any repair, restoration, replacement or rebuilding thereof (collectively, “Restoration”) shall be less than One Hundred Thousand Dollars ($100,000.00); (ii) file all required documents and instruments with its insurers, and make such claims with its insurers as shall be necessary or advisable; and (iii) take such steps as shall be necessary or advisable to preserve any undamaged portion of the Common Elements and to insure that the portions of the Common Elements that are accessible to the public shall be safe and free from conditions hazardous to life and property.  Subject to Section 11.1(g) hereof, Tenant shall, whether or not such Casualty shall have been insured, and whether or not insurance proceeds, if any, shall be sufficient for the purpose of such Restoration, diligently and with continuity (subject to Unavoidable Delays and commercially reasonable standards) repair, alter, restore, replace and rebuild (collectively, “Restore”) the Common Elements, as nearly as possible to the condition, quality and class of the Common Elements existing immediately prior to such occurrence (using materials, equipment and construction techniques which are common at the time of the damage or destruction), with such Alterations as Tenant (or the Condominium Association), with the consent of Landlord in accordance with the standards of review set forth in Article IX hereof, shall elect to make, provided that after

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Restoration, the Common Elements is in substantial conformity with the applicable Final Plans and Specifications and in compliance with the DUO.  Each Restoration shall be performed in accordance with the provisions of this Article XI and the provisions of Article IX hereof as if such Restoration were an “Alteration” thereunder.  In any case where this Lease shall expire or be terminated prior to the completion of a Restoration other than in connection with the exercise of the Purchase Option, Tenant shall account to Landlord for all amounts spent in connection with any Restoration which was undertaken and shall pay over to Landlord, within ten (10) days after demand, the remainder, if any, of the Restoration Funds previously received by it.  Notwithstanding the foregoing, if a Casualty occurs during the last three (3) years of the term of this Lease and the Restoration is estimated pursuant to Section 10.1(d) hereof to require six (6) months or longer after receipt of the insurance proceeds to complete, Tenant shall have the right to terminate this Lease by giving notice to Landlord to such effect no later than ninety (90) days after the occurrence of such fire or other casualty.  In the event Tenant gives such notice, this Lease shall be deemed cancelled and terminated as of the date of the giving of such notice as if such date were the Scheduled Expiration Date, and neither party shall have any further rights or Obligations hereunder except such rights and Obligations which by their express terms survive the termination of this Lease.

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

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

(d)         Restoration Estimate.  Tenant shall, within ninety (90) days (or such longer period as is permitted by Tenant’s Recognized Mortgagee, together with all Recognized Mortgagees under the other Severance Subleases, not to exceed one hundred eighty (180) days) after the occurrence of damage or destruction to the Common Elements, deliver to Landlord a statement (the “Initial Restoration Estimate”) prepared by an Architect or an Engineer,

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approved (or deemed approved) by Landlord pursuant to Section 9.6(a)(ii) hereof, setting forth such Person’s estimate as to the time required to perform the Restoration and the estimated cost of the Restoration.  Landlord, at Tenant’s expense, may engage a registered architect or a licensed professional engineer to prepare its own Initial Restoration Estimate, and Tenant shall reimburse Landlord for such expense within ten (10) Business Days after demand therefor by Landlord.

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

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

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

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

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Section 11.2                            Restoration Funds.

(a)          Payment to Depositary.  Subject to the provisions of Section 11.3 hereof, Depositary shall pay over to the Condominium Association from time to time, upon the following terms, any monies which may be received by Depositary from insurance obtained or maintained by or for the benefit of Tenant or the Condominium Association, as the case may be, for the Restoration (other than rent insurance and except as set forth in the last sentence of Section 10.8 hereof) (the “Restoration Funds”); provided, however, that Depositary, before paying such monies over to the Condominium Association or Tenant (in the case of amounts payable pursuant to Section 10.8 hereof) shall be entitled to reimburse itself, Tenant, the Condominium Association and Landlord therefrom to the extent, if any, of the necessary, reasonable and proper expenses (including reasonable attorneys’ fees) paid or incurred by each of the foregoing in the collection of such monies.  If the Restoration Funds are Three Hundred Fifty Thousand Dollars ($350,000) or less, the same shall be paid directly to the Condominium Association in trust for the Restoration.  If the Restoration Funds are more than Three Hundred Fifty Thousand Dollars ($350,000), Depositary shall pay to the Condominium Association, in the manner provided in this Section 11.2 and Section 11.3 hereof, the Restoration Funds for the Restoration.  If the net Restoration Funds after payment of the aforementioned expenses of collection shall be insufficient to pay the entire cost of the Restoration, as determined in accordance with Section 11.1(d) hereof, the Tenant shall cause the Condominium Association to deposit the amount of such shortfall with Depositary to be held and disbursed by Depositary in the same manner as the other Restoration Funds.

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

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

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

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

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

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shall have been completed, substantially and in all material respects, in accordance with the provisions of Article IX hereof that are applicable to such Restoration;

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

(c)          Tenant or the Condominium Association, as the case may be, shall have delivered to Landlord and to Depositary waivers of mechanic’s liens with respect to all of the Restoration, completed prior to the date of the payment application, on forms reasonably satisfactory to Landlord.

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

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

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

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ARTICLE XII

CONDEMNATION

Section 12.1                            Condemnation.

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

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

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

Section 12.3                            Minor Taking; Condemnation Restoration.

(a)          Condemnation Restoration.  If less than Substantially All Of the Demised Premises and/or the Common Elements shall be taken as provided in this Article XII, then (i) if such taking involves a portion of the Demised Premises and/or the Common Elements valued at greater than Five Million Dollars ($5,000,000) and occurs after the tenth anniversary of the

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

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