Exhibit 10.72


 


[LEASE](1)


 


between


 


FIRST
STATES INVESTORS 3300, LLC


 


and


 


WACHOVIA
BANK, NATIONAL ASSOCIATION


 


Dated
as of
                          
      , 2004


 






(1)           In Virginia, title of
document to be “Deed of Lease”.


 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  BASIC LEASE INFORMATION, LEASED PREMISES, TERM, AND USE

  	
  1

  
	
   

  	
  1.1

  	
  Basic
  Lease Information; Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Leased
  Premises

  	
  24

  
	
   

  	
  1.3

  	
  Term

  	
  25

  
	
   

  	
  1.4

  	
  Options
  to Renew

  	
  25

  
	
   

  	
  1.5

  	
  Use

  	
  28

  
	
   

  	
  1.6

  	
  Survival

  	
  29

  
	
   

  	
  1.7

  	
  Release
  Premises

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II RENTAL, OPERATING EXPENSES AND REAL ESTATE TAXES

  	
  33

  
	
   

  	
  2.1

  	
  Rental
  Payments

  	
  33

  
	
   

  	
  2.2

  	
  Operating
  Expenses

  	
  35

  
	
   

  	
  2.3

  	
  Real
  Estate Taxes

  	
  42

  
	
   

  	
  2.4

  	
  Budget

  	
  45

  
	
   

  	
  2.5

  	
  Audit
  Rights

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT

  	
  50

  
	
   

  	
  3.1

  	
  Building
  Standard and Above Standard Services

  	
  50

  
	
   

  	
  3.2

  	
  Separate
  Charge Parking Areas

  	
  57

  
	
   

  	
  3.3

  	
  Graphics
  and Building Directory

  	
  57

  
	
   

  	
  3.4

  	
  Building
  Signage; Exclusivity

  	
  58

  
	
   

  	
  3.5

  	
  Tenant’s
  Exterior Equipment

  	
  61

  
	
   

  	
  3.6

  	
  Building
  Management

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV CARE OF PREMISES; LAWS, RULES AND REGULATIONS

  	
  65

  
	
   

  	
  4.1

  	
  Surrender
  of Leased Premises

  	
  65

  
	
   

  	
  4.2

  	
  Access of
  Landlord to Leased Premises

  	
  65

  
	
   

  	
  4.3

  	
  Nuisance

  	
  67

  
	
   

  	
  4.4

  	
  Legal
  Compliance

  	
  67

  
	
   

  	
  4.5

  	
  Rules of
  Building

  	
  67

  
	
   

  	
  4.6

  	
  Use and
  Violations of Insurance Coverage

  	
  68

  
	
   

  	
  4.7

  	
  Environmental
  Laws

  	
  68

  
	
   

  	
  4.8

  	
  Prohibited
  Uses

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  LEASEHOLD IMPROVEMENTS AND REPAIRS

  	
  70

  
	
   

  	
  5.1

  	
  Leasehold
  Improvements

  	
  70

  
	
   

  	
  5.2

  	
  Alterations

  	
  71

  
	
   

  	
  5.3

  	
  Leasehold
  Improvements; Tenant Property

  	
  72

  
	
   

  	
  5.4

  	
  Mechanics
  Liens

  	
  72

  
	
   

  	
  5.5

  	
  Repairs
  by Landlord

  	
  73

  
	
   

  	
  5.6

  	
  Repairs
  by Tenant

  	
  73

  
	
   

  	
  5.7

  	
  Demising
  Work

  	
  74

  
	
   

  	
  5.8

  	
  Payment
  of Refund Amount Per Section 26 of Purchase Agreement

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI CONDEMNATION, CASUALTY AND INSURANCE

  	
  77

  
	
   

  	
  6.1

  	
  Condemnation

  	
  77

  



 

















 


Table
of Contents


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Damages
  from Certain Causes

  	
  78

  
	
   

  	
  6.3

  	
  Casualty
  Clause

  	
  78

  
	
   

  	
  6.4

  	
  Property
  Insurance

  	
  80

  
	
   

  	
  6.5

  	
  Liability
  Insurance

  	
  81

  
	
   

  	
  6.6

  	
  Hold
  Harmless

  	
  81

  
	
   

  	
  6.7

  	
  WAIVER OF
  RECOVERY

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION

  	
  82

  
	
   

  	
  7.1

  	
  Default
  and Remedies

  	
  82

  
	
   

  	
  7.2

  	
  Insolvency
  or Bankruptcy

  	
  85

  
	
   

  	
  7.3

  	
  Negation
  of Lien for Rent

  	
  85

  
	
   

  	
  7.4

  	
  Attorney’s
  Fees

  	
  85

  
	
   

  	
  7.5

  	
  No Waiver
  of Rights

  	
  86

  
	
   

  	
  7.6

  	
  Holding
  Over

  	
  86

  
	
   

  	
  7.7

  	
  Subordination

  	
  87

  
	
   

  	
  7.8

  	
  Estoppel
  Certificate

  	
  87

  
	
   

  	
  7.9

  	
  Subsequent
  Documents

  	
  88

  
	
   

  	
  7.10

  	
  Interest
  Holder Privileges

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII ASSIGNMENT AND SUBLETTING

  	
  88

  
	
   

  	
  8.1

  	
  General

  	
  88

  
	
   

  	
  8.2

  	
  Landlord’s
  General Offer Rights

  	
  89

  
	
   

  	
  8.3

  	
  Landlord’s
  Offer Rights For Retail Conversion Transactions

  	
  92

  
	
   

  	
  8.4

  	
  Profit
  Payments Re: Certain Assignments and Subleases

  	
  94

  
	
   

  	
  8.5

  	
  Transactions
  Exempt From Section 8.2, 8.3 and 8.4

  	
  94

  
	
   

  	
  8.6

  	
  Miscellaneous

  	
  95

  
	
   

  	
  8.7

  	
  Sublease
  SNDAs

  	
  96

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX TRANSFERs OF LANDLORD’s ESTATE  

  	
  96

  
	
   

  	
   

  
	
  ARTICLE X
  EXPANSION RIGHTS  

  	
  96

  
	
   

  	
  10.1

  	
  Tenant
  Expansion Notices

  	
  96

  
	
   

  	
  10.2

  	
  Landlord
  Expansion Response

  	
  97

  
	
   

  	
  10.3

  	
  Expansion
  Space Leases

  	
  97

  
	
   

  	
  10.4

  	
  Subordination
  of Expansion Space Rights

  	
  100

  
	
   

  	
  10.5

  	
  Duration

  	
  101

  
	
   

  	
  10.6

  	
  Disputes

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI TERMINATION RIGHTS

  	
  101

  
	
   

  	
  11.1

  	
  Wachovia’s
  Termination Right

  	
  101

  
	
   

  	
  11.2

  	
  Effect of
  Termination

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII DISPUTE RESOLUTION

  	
  103

  
	
   

  	
  12.1

  	
  Approvals
  and Consents

  	
  103

  
	
   

  	
  12.2

  	
  Dispute
  Resolution

  	
  104

  
	
   

  	
  12.3

  	
  Conduct
  of the Arbitration

  	
  105

  
	
   

  	
  12.4

  	
  Alternative
  Means of Arbitration with AAA

  	
  105

  



 

















 


Table
of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE
  XIII TENANT REMEDIES

  	
  105

  
	
   

  	
  13.1

  	
  Generally

  	
  105

  
	
   

  	
  13.2

  	
  Offset
  Rights

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV MISCELLANEOUS

  	
  107

  
	
   

  	
  14.1

  	
  Notices

  	
  107

  
	
   

  	
  14.2

  	
  Brokers

  	
  107

  
	
   

  	
  14.3

  	
  Binding
  on Successors

  	
  107

  
	
   

  	
  14.4

  	
  Rights
  and Remedies Cumulative

  	
  108

  
	
   

  	
  14.5

  	
  Governing
  Law

  	
  108

  
	
   

  	
  14.6

  	
  Rules of
  Construction

  	
  108

  
	
   

  	
  14.7

  	
  Authority
  and Qualification

  	
  108

  
	
   

  	
  14.8

  	
  Severability

  	
  108

  
	
   

  	
  14.9

  	
  Quiet
  Enjoyment

  	
  108

  
	
   

  	
  14.10

  	
  Limitation
  of Personal Liability

  	
  109

  
	
   

  	
  14.11

  	
  Memorandum
  of Lease

  	
  109

  
	
   

  	
  14.12

  	
  Master
  Agreement

  	
  109

  
	
   

  	
  14.13

  	
  Amendments

  	
  109

  
	
   

  	
  14.14

  	
  Entirety

  	
  110

  
	
   

  	
  14.15

  	
  References

  	
  110

  
	
   

  	
  14.16

  	
  Counterpart
  Execution

  	
  110

  
	
   

  	
  14.17

  	
  No
  Partnership

  	
  110

  
	
   

  	
  14.18

  	
  Captions

  	
  110

  
	
   

  	
  14.19

  	
  Required
  Radon Notice

  	
  110

  
	
   

  	
  14.20

  	
  Changes
  by Landlord

  	
  110

  
	
   

  	
  14.21

  	
  Waiver of
  Jury Trial

  	
  111

  
	
   

  	
  14.22

  	
  Termination
  of Lease

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XV ADDITIONAL PROVISIONS

  	
  112

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Description of the Land

  	
   

  
	
  Exhibit A-1

  	
  Site Plan

  	
   

  
	
  Exhibit B

  	
  Leased Premises

  	
   

  
	
  Exhibit B-1

  	
  Release Premises

  	
   

  
	
  Exhibit C

  	
  Property Specific
  Information

  	
   

  
	
  Exhibit D-1

  	
  Form of Mortgage
  Subordination, Non-Disturbance and Attornment Agreement

  	
   

  
	
  Exhibit D-2

  	
  Form of Ground Lease
  Subordination, Non-Disturbance and Attornment Agreement

  	
   

  
	
  Exhibit D-3

  	
  Form of Subtenant
  Subordination, Non-Disturbance and Attornment Agreement

  	
   

  
	
  Exhibit E

  	
  Forms of Estoppel
  Certificates

  	
   

  



 

















 


LEASE AGREEMENT


 


THIS LEASE AGREEMENT(2) (this “Lease”)
is made and entered into as of
[                              ],
2004, by and between FIRST STATES INVESTORS
3300, LLC, a Delaware limited liability company, a Delaware limited
liability company (hereinafter called “Landlord”), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (hereinafter called “Tenant”).
Terms with initial capital letters used in this Lease shall have the meanings
assigned for such terms in Section 1.1(b).


 


BACKGROUND


 


A.            Tenant, as seller, and
Landlord, as purchaser, are parties to the Purchase Agreement, pursuant to
which Tenant agreed to sell and convey to Landlord, and Landlord agreed to
purchase from Tenant, the Property as well certain other properties not covered
by this Lease.


 


B.            The closing of the Purchase
Agreement as to the Property has occurred as of the date hereof, and this Lease
is being executed and delivered thereat pursuant to the Purchase Agreement.


 


C.            Wachovia Corporation, a
North Carolina corporation, has agreed to guaranty and act as surety for the
performance of Tenant’s obligations hereunder pursuant to that certain Lease
Guaranty dated of even date herewith.


 


D.            Tenant and Landlord are
parties to the Master Agreement (i) which contains certain additional
covenants with respect to the subject matter of this Lease and certain other
leases as more particularly provided therein, and (ii) which, during the
Integration Period, shall be deemed integrated with, and constitute a part of,
this Lease (and if, during the Integration Period, there shall be a conflict
between the terms and provisions of the Master Agreement and those of this
Lease, the terms and provisions of the Master Agreement control and govern).


 


ARTICLE I


BASIC LEASE INFORMATION, LEASED PREMISES, TERM, AND
USE


 


1.1           Basic Lease Information; Definitions


 


(a)           The following Basic Lease Information is hereby
incorporated into and made a part of this Lease. Each reference in this Lease
to any information and definitions contained in the Basic Lease Information
shall mean and refer to the information and definitions hereinbelow set forth.


 


Commencement Date:                    [                              ],
2004(3).


 






(2)      In Virginia, title of
document to be “Deed of Lease”.


 


(3)      Insert Closing Date.


 


1

















 


	
  Expiration Date:

  	
   

  	
  [                              ],
  2024(4).

  
	
   

  	
   

  	
   

  
	
  Initial Term:

  	
   

  	
  Commencing on the
  Commencement Date, and, unless extended or sooner terminated as herein
  provided, ending on Expiration Date.

  
	
   

  	
   

  	
   

  
	
  Leased Premises:

  	
   

  	
  The Original Leased Premises,
  subject to additions to, and/or deletions from, the Leased Premises as herein
  provided. The “Original Leased Premises” shall be and consist of the
  areas of the Property identified on Exhibit B hereto as being
  demised and leased to Tenant hereunder, including the areas of the Building
  so identified and, if applicable, any Drive-Through Banking Facilities so
  identified. Each time there is an addition to, or deletion from, the Leased
  Premises as provided herein, including pursuant to Section 1.7
  (Release Premises), Section 6.1 (Condemnation), Article X
  (Expansion Rights) and Article XI (Termination Rights), Landlord
  and Tenant, within thirty (30) days thereafter, shall execute and deliver a
  written instrument confirming the same, which instrument shall (x) set
  forth the then Net Rentable Area of the Leased Premises, the Annual Basic
  Rent and Tenant’s Occupancy Percentage, and (y) be accompanied by a
  revised Exhibit B hereto showing the then location and
  configuration of the Leased Premises. References herein to the Leased
  Premises shall not include any Release Premises, except to the extent that
  former Release Premises are, at Tenant’s election, added to the Leased
  Premises as expressly provided in Section 1.7 hereof.

  
	
   

  	
   

  	
   

  
	
  Release Premises:

  	
   

  	
  All those certain portions
  of the Building identified on Exhibit B-1 hereto as being
  “Release Premises”, subject to deletions from the Release Premises pursuant
  to Section 1.7 (by virtue of either Tenant electing to add all or
  any portion of the Release Premises to the Leased Premises pursuant to Section 1.7(c) or
  Tenant electing to surrender any portion of the Release Premises prior to the
  end of the Preliminary Period pursuant to Section 1.7(d)(1) hereof).
  Each time there is a deletion from the Release Premises as herein provided,
  Landlord and Tenant, within thirty (30) days thereafter, shall execute and
  deliver a written instrument confirming the same, which instrument shall
  (x) set forth the then Net Rentable Area of the Release Premises and
  Tenant’s Occupancy Percentage, and (y) be accompanied by a revised Exhibit B-1
  hereto showing the then location and configuration of the Release Premises.

  
	
   

  	
   

  	
   

  
	
  Landlord’s
  Address for

  	
   

  	
   

  
	
  Notices:

  	
   

  	
  First States Investors
  [                ],
  LLC

  
	
   

  	
   

  	
  c/o First States Group,
  L.P.

  



 






(4)      Insert last day of month in
which 20th anniversary of Closing Date occurs.


 


2

















 


	
   

  	
   

  	
  1725 The Fairway

  
	
   

  	
   

  	
  Jenkintown, PA 19046

  
	
   

  	
   

  	
  Attention:  Nicholas S. Schorsch, President and CEO

  
	
   

  	
   

  	
  Fax Number:  (215) 887-2585

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  First States Group, L.P.

  
	
   

  	
   

  	
  1725 The Fairway

  
	
   

  	
   

  	
  Jenkintown, PA 19046

  
	
   

  	
   

  	
  Attention:  Edward J. Matey Jr., General Counsel

  
	
   

  	
   

  	
  Fax:  (215) 887-9856

  
	
   

  	
   

  	
   

  
	
  Tenant’s Address for

  	
   

  	
   

  
	
  Notices:

  	
   

  	
  Wachovia
  Bank, N.A.

  
	
   

  	
   

  	
  Corporate
  Real Estate

  
	
   

  	
   

  	
  [                                                    ](5)

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  Attention:
                                      

  
	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  
	
   

  	
  with
  a copy to:

  	
   

  	
  Wachovia
  Bank, N.A.

  
	
   

  	
   

  	
  Corporate
  Real Estate

  
	
   

  	
   

  	
  225
  Water Street, Suite 850

  
	
   

  	
   

  	
  Jacksonville,
  FL 32202

  
	
   

  	
   

  	
  Attention:
  Neil C. King, SVP

  
	
   

  	
   

  	
  Fax:  (904) 489-3544

  
	
   

  	
   

  	
   

  
	
   

  	
  and
  to:

  	
   

  	
  Wachovia
  Bank, N.A.

  
	
   

  	
   

  	
   

  	
  Corporate
  Real Estate

  
	
   

  	
   

  	
   

  	
  401
  S. Tryon Street, 18th Floor

  
	
   

  	
   

  	
   

  	
  Charlotte,
  NC 28202

  
	
   

  	
   

  	
   

  	
  Attention:
  Sarah Muenow, AVP

  
	
   

  	
   

  	
   

  	
  Fax:  (704) 374-6832

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  and to:

  	
   

  	
  Wachovia Bank, N.A.

  
	
   

  	
   

  	
   

  	
  Corporate Legal Division

  
	
   

  	
   

  	
   

  	
  301 S. College Street, 30th Floor, NC0630

  
	
   

  	
   

  	
   

  	
  Charlotte, NC 28288-0630

  
	
   

  	
   

  	
   

  	
  Attention:  Rebecca Reithauer (PID
  #      )(6)

  
	
   

  	
   

  	
   

  	
  Fax:                                   

  



 






(5)      This shall be the name and address of the regional CRE
office responsible for management of the particular
property.


 


(6)      Insert PID for the Property.


 


3

















 


	
   

  	
  and to:

  	
   

  	
  Bryan Cave, LLP

  
	
   

  	
   

  	
   

  	
  1290 Avenue of the
  Americas

  
	
   

  	
   

  	
   

  	
  New York, New York 10019

  
	
   

  	
   

  	
   

  	
  Attention:
                            

  
	
   

  	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  	
   

  
	
  Interest Holder’s Address

  	
   

  	
   

  
	
  for Notices:

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  
	
   

  	
   

  	
  [                                                    ]

  



 


(b)           As used in this Lease, the following terms shall
have the respective meanings indicated below, and such meanings are
incorporated in each such provision where used as if fully set forth therein:


 


“AAA” shall mean the American Arbitration
Association.


 


“Above Standard Services” shall have the
meaning assigned to such term in Section 3.1(c).


 


“Above Standard Services Rent” shall mean any
and all charges required to be paid by Tenant for Above Standard Services as
expressed in Section 3.1(c).


 


“Actual Delivery Date” shall have the meaning
assigned to such term in Section 10.3.


 


“Additional Rent” means Tenant’s Operating
Expense Share, Tenant’s Tax Share, Above Standard Services Rent and all other
sums (other than Annual Basic Rent) that Tenant is obligated to pay to or
reimburse Landlord for by the terms of this Lease.


 


“Affiliate” of any party, shall mean any
other person controlling, controlled by, or under common control with such
party; the term “control”, as used herein, shall mean both (i) the
possession, direct or indirect, of the power to direct or cause the direction,
of the management and policies of such controlled party or other person, and (ii) the
ownership, directly or indirectly, of more than fifty percent (50%) of the
equity (i.e., the voting stock, general or other
partnership interests, membership interests and/or other equity or beneficial
interests) of such party or other person.


 


“Alterations” shall have the meaning assigned
to such term in Section 5.2.


 


“Annual Basic Rent” shall mean the annual
basic rent payable by Tenant under this Lease for the Leased Premises, which
Annual Basic Rent shall, from time to time, be equal to the sum  of
(I) the product of (i) the Annual
Basic Rent Factor, multiplied by (ii) the
Net Rentable Area of 


 


4

















 


the Base Leased Premises, plus
(II) if any Short-Term Additional Space is then part of the Leased
Premises, then, as to each thereof, the product of (i) the
STAS Basic Rental Factor for such Short-Term Additional Space, multiplied by (ii) the Net Rentable Area of such
Short-Term Additional Space. The Annual Basic Rent due under this Lease shall
be re-calculated each time there is a change in (x) the Net Rentable Area
of the Leased Premises (due to additions to, or deletions from, the Leased
Premises), (y) the Annual Basic Rent Factor (including a change in the
Initial ABR Factor pursuant to the proviso in the definition thereof), or (z) the
STAS Basic Rental Factor for any Short-Term Additional Space; with any such
re-calculation being effective as of the date of such change. Upon any such
re-calculation, Landlord and Tenant shall execute and deliver a written
instrument confirming the same, and incorporating the same into this Lease.


 


“Annual Basic Rent Factor” (i) for the
Initial Term, shall mean a rate, per RSF, per annum, equal to the Initial ABR
Factor, except, that (x) effective as of the first day of the sixth (6th) Lease Year, the Annual
Basic Rent Factor shall be increased to be 101.5% of the Initial ABR Factor, (y) effective
as of the first date of the eleventh (11th) Lease Year, the Annual Basic Rent Factor shall be
increased to be 101.5% of the Annual Basic Rent Factor immediately prior to the
eleventh (11th) Lease Year,
and (z) effective as of the first date of the sixteenth (16th) Lease Year, the Annual
Basic Rent Factor shall be increased to be 101.5% of the Annual Basic Rent
Factor immediately prior to the sixteenth (16th) Lease Year, and (ii) for each Renewal Term,
shall mean the rate, per square foot of Net Rentable Area, for such Renewal
Term that is described and determined pursuant to Section 1.4(c)(1) hereof.


 


“Applicable Rate” shall mean an annual rate
of interest equal to the lesser of (i) the greater of (a) the Prime
Rate plus three percent (3%) and (b) thirteen (13%) percent, and (ii) the
maximum contract interest rate per annum allowed by law.


 


“Appraiser” shall mean an independent
licensed real estate broker, or independent licensed appraiser, having at least
ten (10) years’ experience in brokering commercial leasing transactions,
or appraising commercial income properties, as the case may be, in the Market
Area involving properties similar to the Property, and who shall be associated
with a nationally or regionally recognized real estate brokerage or appraisal
firm, with local offices within, or in the vicinity of, the Market Area, which
firm is not under contract with or otherwise so associated with either Landlord
or Tenant as to reasonably impair its or their ability to render impartial
judgments.


 


“Arbitration Notice” shall have the meaning
assigned to such term in Section 12.2(a).


 


“Assignment” shall have the meaning assigned
to such term in Section 8.1.1.


 


“ATM” shall mean automated teller machine.


 


“Audit Notice” shall have the meaning
assigned to such term in Section 2.5.


 


“Availability Date” shall have the meaning
assigned to such term in Section 10.2.


 


“Available Leasable Areas” shall have the
meaning assigned to such term in Section 10.1.


 


5

















 


“Bank Divestiture Transaction” shall have the
meaning assigned to such term in Section 8.5.1.


 


“Base Building” shall mean, collectively, (i) the
Building’s foundations and footings, and its structural slabs, beams, columns,
girders, members and supports, (ii) the Building’s roof(s) and roof
terraces, exterior walls (including facade), exterior windows and exterior
entrances (including entrance doors), and (iii) Building Systems.


 


“Base Leased Premises” shall mean,
collectively, (i) the Original Leased Premises (for so long thereafter as
the same shall remain demised hereunder), (ii) any Coterminous Former
Release Space (if, as and when the same are added to the Leased Premises
pursuant to Section 1.7(e), and for so long thereafter as the same
shall remain demised hereunder), and (iii) any Coterminous Expansion Space
(if, as and when the same are added to the Leased Premises pursuant to Section 10.4,
and for so long thereafter as the same shall remain demised hereunder).


 


“BOMA” shall mean the Building Owners and
Managers Association.


 


“Budget” shall have the meaning assigned to
such term in Section 2.4(a).


 


“Budget Year” shall have the meaning assigned
to such term in Section 2.4(a).


 


“Building” shall mean the building (or
building complex) located upon the Land and identified on Exhibit A-1.


 


“Building Identification Signage” shall have
the meaning assigned to such term in Section 3.4(a).


 


“Building Operating Hours” shall be the
hours, designated as such, on Exhibit C hereto.


 


“Building Rules” shall have the meaning
assigned to such term in Section 4.5.


 


“Building Signage” shall have the meaning
assigned to such term in Section 3.4(a).


 


“Building Standard Services” shall have the
meaning assigned to such term in Section 3.1(a).


 


“Building Standards” shall mean materials of
the type, quality and quantity generally used throughout the Building and in
Comparable Buildings.


 


“Building System HVAC Service” shall have the
meaning assigned to such term in Section 3.1(a).


 


“Building Systems” shall mean the utility and
service systems (including electrical, gas, plumbing, condenser water,
elevator, HVAC, communication, life safety and other mechanical systems) of the
Building, but only up to, and not beyond, the point of distribution to
any Leasable Areas and/or the point of connection to the separate facilities of
a particular tenant or other occupant.


 


6

















 


“Building’s CW System” shall have the meaning
assigned to such term in Section 3.1(b).


 


“Building’s Loading & Delivery
Facilities” shall have the meaning assigned to such term in Section 3.1(a).


 


“Bureau of Labor Statistics” shall mean the
U.S. Department of Labor, Bureau of Labor Statistics.


 


“Business Days” shall mean all days except
Saturdays, Sundays and Holidays.


 


“Casualty” shall have the meaning assigned to
such term in Section 6.3(a).


 


“Change in Control Transaction” shall have
the meaning assigned to such term in Section 8.1.1.


 


“Closing” shall mean the closing and transfer
of title to the Property to Landlord pursuant to the Purchase Agreement.


 


“Commencement Date” shall have the meaning
assigned to such term in Section 1.1(a).


 


“Common Areas” shall mean (i) the
Building’s lobbies and corridors (located outside of Leasable Areas), including
the Building’s elevators, escalators, stairways and other Building Systems
providing ingress and egress thereto and therefrom, (ii) the Building’s
loading and freight delivery areas (located outside of Leasable Areas),
including any freight elevators located therein, (iii) the Building’s
lavatories (located outside of Leasable Areas), (iv) the Building’s
electrical, telephone and other utility or service rooms, closets and shafts
(located outside of Leasable Areas), (v) the Parking Areas, (vi) the
sidewalks, curb areas, plazas, walkways, driveways and other passageways upon
the Land, together with any other landscaped areas of the Land (other than any
Drive-Through Banking Facilities which, as herein-above provided, comprise part
of the Leased Premises), and (vii) any other areas of the Property
available, from time to time, for the common use of tenants and other occupants
of the Property (and their customers, guests and invitees).


 


“Communications Equipment” shall have the
meaning assigned to such term in Section 3.5(a).


 


“Comparable Buildings” shall mean buildings
within the Market Area that have a use, quality, age, configuration and
construction that is comparable to that of the Building.


 


“Contemplated OE Includable Capital Item”
shall have the meaning assigned to such term in Section 2.4(a).


 


“Contemplated Sublease Area” shall have the
meaning assigned to such term in Section 8.2.1.


 


“Contract of Sale”  shall have the meaning assigned to such term
in Section 9.1.1.


 


7














 


“Coterminous Expansion Space” shall
have the meaning assigned to such term in Section 10.3.


 


“Coterminous Former Release Space”
shall have the meaning assigned to such term in Section 1.7(e).


 


“Damaged Property” shall have the
meaning assigned to such term in Section 6.3(a).


 


“Damages Period” shall have the
meaning assigned to such term in Section 7.1(b).


 


“Demising Work” shall have the meaning
assigned to such term in Section 5.7(a).


 


“Demising Work Costs” shall have the
meaning assigned to such term in Section 5.7(a).


 


“Drive-Through Banking Facility” shall
mean the portion of the Leased Premises, if any, identified as a Drive-Through
Banking Facility on Exhibit B hereto.


 


“Early Termination Date” shall have
the meaning assigned to such term in Section 11.1.


 


“Electric Utility Company” shall have
the meaning assigned to such term in Section 3.1(a).


 


“Eligible Sublease” shall have the
meaning assigned to such term in Section 8.7.1.


 


“Environmental Information” shall have
the meaning assigned to such term in Section 4.7(a).


 


“Environmental Matters” shall have the
meaning assigned to such term in Section 4.7(a).


 


“Exempt LL Transfer”  shall have the meaning assigned to such term
in Section 9.1.1.


 


“Expansion Rights” shall have the
meaning assigned to such term in Section 10.3.


 


“Expansion Space” shall have the
meaning assigned to such term in Section 10.3.


 


“Expansion Space Acceptance” shall
have the meaning assigned to such term in Section 10.3.


 


“Expiration Date” shall have the
meaning assigned to such term in Section 1.1(a).


 


“Event of Default” shall have the
meaning assigned to such term in Section 7.1(a).


 


“Existing Mortgage” shall have the
meaning assigned to such term in Section 15.1.


 


“Existing Overlease” shall have the
meaning assigned to such term in Section 15.2.


 


“Fair Market Rental Value Per RSF”,
for any Leasable Area at any time, shall mean the fixed rent, per RSF, per
annum, that (at the time in question) would be offered and accepted under an
arm’s-length net lease (i.e., a lease under which the tenant separately
pays its 


 


8

















 


proportionate
share of all operating expenses, real estate taxes, utilities and other
pass-throughs, without any “base year” or “stop”) between an informed and willing tenant (that is not
then a tenant of any Leasable Area) and an informed and willing landlord,
neither of whom is under any compulsion to enter into such transaction,
demising such Leasable Area (determined with reference to market for space in
Comparable Buildings that is comparable in size, location and quality to such
Leasable Area), assuming (i) such arm’s
length net lease will demise the Leasable Area in its then “AS IS” condition
(except that if such Leasable Area is already a part of the Leased Premises, then
assuming a condition and state of repair consistent with the requirements of
this Lease), and (ii) such arm’s length net lease will be for a term equal
to the then typical initial term of such a lease in the aforementioned market,
and further assuming the following factors
(and, based thereon, making any appropriate adjustments to the fixed rent which
would otherwise be offered and accepted for such an arm’s length net lease
pursuant to the foregoing provisions of this definition): (I) that the
tenant will not receive, and the landlord will not provide or pay, (w) any
workletter, (x) any improvement, relocation, moving or other allowance or
contribution, (y) any rent abatement or other reduced or free rent period,
or (z) any other allowance or concession, in connection with the tenant’s
leasing of the Leasable Area (except that if such Leasable Area is Short-Term
Expansion Space, then assuming that the tenant is entitled to a free rent
period equal in length to the free rent period that Tenant is entitled to,
pursuant to Section 10.4(g), with respect to such Short-Term
Expansion Space); (II) that the landlord will not pay any brokers’ fee or
commission in connection with the tenant’s leasing of the Leasable Area; (III) that
such arm’s length net lease provides for the landlord’s inclusion, and the
tenant’s payment, of amortized capital expenditures in operating expenses to
the same extent as provided in this Lease; and (IV) that the
creditworthiness of the tenant is the same as that of Tenant.


 


“Final Budget” shall have the meaning
assigned to such term in Section 2.4(d).


 


“Final Contract of Sale” shall have
the meaning assigned to such term in Section 9.1.1.


 


“Final SLC Plans & Specifications”
shall have the meaning assigned to such term in Section 5.7(b).


 


“Final SLC Space Plan” shall have the
meaning assigned to such term in Section 5.7(b).


 


“Fiscal Period” shall have the meaning
assigned to such term in Section 2.3(a).


 


“Force Majeure Events” means events
beyond Landlord’s or Tenant’s (as the case may be) control, which shall
include, without limitation, all labor disputes, governmental regulations or
controls, war, fire or other casualty, inability to obtain any material or
services, acts of God, or any other cause not within the reasonable control of
Landlord or Tenant (as the case may be).


 


“FSG” shall mean (i) FIRST STATES
GROUP, L.P., a Delaware limited partnership, or (ii) a person constituting
an immediate or remote successor to FIRST STATES GROUP, L.P. by virtue of one
or more mergers, consolidations and/or transfers of all, or substantially all,
the assets of FIRST STATES GROUP, L.P. (or another person described in this
clause (ii)).


 


“GAAP” shall mean generally accepted
accounting principles, consistently applied.


 


9

















 


“Governmental Authority” means the
United States, the state, county, city and political subdivision in which the
Property is located or that exercises jurisdiction over the Property, Landlord
or Tenant, and any agency, department, commission, board, bureau or
instrumentality of any of the foregoing that exercises jurisdiction over the
Property, Landlord or Tenant.


 


“Gross Revenue” shall mean all gross
rental income of Landlord generated from the operation of the Property,
including basic rents, additional rents and other charges collected from Tenant
and other tenants or occupants of the Property, but excluding (a) any such
rents and other charges which represent payment or reimbursement for any
utilities or services provided to tenants or other occupants of the Property
which are not provided to Tenant under this Lease without a separate charge, (b) revenue
received by Landlord for parking (whether from Tenant, other tenants or
occupants of the Property or otherwise), or from vending areas, cafeterias,
fitness centers, etc., and (c) any revenue received by Landlord from any
further development or leasing of the Property. In no event shall the term “gross
rental income”, as used in this definition, ever be deemed to include (i) security
deposits, unless and until such deposits are applied as rental income, (ii) interest
on bank accounts for the operation of the Property, (iii) proceeds from
the sale or refinancing of the Property (or any portion thereof), (iv) insurance
proceeds or dividends received from any insurance policies pertaining to
physical loss or damage to the Property, (v) condemnation awards or
payments received in lieu of condemnation of the Property and (vi) any
trade discounts and rebates received in connection with the purchase of
personal property or services in connection with the operation of the Property.


 


“Hazardous Materials” means any
flammable materials, explosive materials, radioactive materials,
asbestos-containing materials, the group of organic compounds known as polychlorinated
biphenyls and any other hazardous, toxic or dangerous waste, substance or
materials defined as such in (or for purposes of) the federal Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. §§ 9601 to 9675,  the federal
Hazardous Materials Transportation Act, 42 U.S.C. §§ 5101 to 5127, the
federal Solid Waste Disposal Act as amended by the Resources Conservation and
Recovery Act of 1976, 42 U.S.C. §§ 6901 to 6992k, the federal Toxic
Substance Control Act, 15 U.S.C. §§ 2601 to 2692 or any other Legal
Requirement from time to time in effect regulating, relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material.


 


“Holidays” shall mean New Year’s Day,
Martin Luther King Day, Presidents’ Day, Memorial Day, Independence Day, Labor
Day, Columbus Day, Thanksgiving Day, Christmas Day and any and all other dates
observed as bank holidays by national banks. 
If, in the case of any holiday described above, a different day shall be
observed than the respective day described above, then that day that
constitutes the day observed by national banks in the State on account of such
holiday shall constitute the Holiday under this Lease.


 


“HVAC” shall mean heating, ventilating
and air conditioning.


 


10

















 


“Initial ABR Factor” shall mean
[$            ](7)
per RSF, per annum; provided, however, that if the provisions of
[Section 8 of the Master Agreement](8) are applicable, then, effective as
of the first (1st)
day of the third Lease Year, the Initial ABR Factor shall be re-calculated in
accordance therewith. Upon any such re-calculation, Landlord and Tenant shall
execute and deliver a written instrument confirming the same, and incorporating
the same into this Lease.


 


“Initial Term” shall have the meaning
assigned to such term in Section 1.1(a).


 


“Interest Holder” shall mean each of (i) any
Overlessor with which Tenant has entered into an Overlease SNDA, and (ii) any
Mortgagee with which Tenant has entered into a Mortgage SNDA.


 


“Integrated Properties” shall mean all
the Portfolio Properties, in which, at the time in question, space is demised
under a lease which, at the time in question, is defined as an “Integrated Lease” pursuant to the provisions of the Master
Agreement.


 


“Integration Period” shall mean all
periods within the Term during which this Lease is defined as an “Integrated Lease” pursuant to the provisions of the Master
Agreement.


 


“JAMS” shall mean Judicial Arbitration &
Mediation Services, Inc.


 


“KWHs” shall have the meaning assigned
to such term in Section 3.1(a).


 


“Land” shall mean the parcel(s) of
land identified on Exhibit A hereto(9).


 


“Landlord” shall mean only the owner
of Landlord’s Estate, at the time in question; it being agreed that: (I) during
the Integration Period, the foregoing provisions of this definition shall not
be construed to relieve Landlord Named Herein, or any subsequent Landlord, from
the obligations of Landlord under this Lease accruing during the period that it
is Landlord hereunder or thereafter; (II) upon any transfer of Landlord’s
Estate that complies with the provisions of Article IX hereof, but
results in the end of the Integration Period (and upon each subsequent transfer
of Landlord’s Estate that complies with the provisions of Article IX
hereof), the transferor shall thereby be relieved and freed of all obligations
of Landlord under this Lease accruing after such transfer; and (III) upon
any transfer of Landlord’s Estate, the transferee shall thereby be deemed to
have assumed all obligations of Landlord under this Lease accruing after such
transfer (and, during the Integration Period, such transferee shall also be
deemed to have assumed all the obligations of Landlord under the Master
Agreement).


 






	
  (7)

  	
  This initial
  dollar figure will be determined pursuant to the Purchase Agreement and
  inserted in the document at Closing

  
	
   

  	
   

  
	
  (8)

  	
  This
  Article of the Master Agreement needs to provide for re-calculation of
  Initial ABR Factor after Preliminary Period based on addition of Release
  Premises across the portfolio.

  
	
   

  	
   

  
	
  (9)

  	
  Needs to
  include legal description of land owned in fee as well as that ground/nnn
  leased.

  



 


11

















 


“Landlord Appointed Property Manager”
shall have the meaning assigned to such term in Section 3.6(a).


 


“Landlord Budget Objection” shall have
the meaning assigned to such term in Section 2.4(f).


 


“Landlord Default Notice” shall have
the meaning assigned to such term in Section 7.10.


 


“Landlord Electrical Invoice” shall
have the meaning assigned to such term in Section 3.1(a).


 


“Landlord Event of Default” shall have
the meaning assigned to such term in Section 13.1(a).


 


“Landlord Expansion Response” shall
have the meaning assigned to such term in Section 10.2.


 


“Landlord Initiated Contest” shall
have the meaning assigned to such term in Section 2.3(c).


 


“Landlord Management Period” shall
have the meaning assigned to such term in Section 3.6(a).


 


“Landlord Named Herein” shall mean
[FIRST STATES INVESTORS
[              ],
LLC].


 


“Landlord Party” shall mean any
principal (which shall include any shareholder, partner, member or other owner,
direct or indirect, disclosed or undisclosed) of Landlord, or any director,
officer, employee, agent or contractor of Landlord (or of any principal of
Landlord).


 


“Landlord Repairs” shall have the
meaning assigned to such term in Section 5.5(a).


 


“Landlord’s Average Cost Per KWH”
shall have the meaning assigned to such term in Section 3.1(a).


 


“Landlord’s Estate” shall mean the
estate and interest of Landlord in the Property, including fee title to the
Property and/or the lessee’s interest in an Overlease affecting the Property.


 


“Landlord’s Liens” shall have the
meaning assigned to such term in Section 7.3(a).


 


“Landlord’s Offer Notice”  shall have the meaning assigned to such term
in Section 9.2.1.


 


“Landlord’s Preliminary Notice” shall
have the meaning assigned to such term in Section 9.3.1.


 


“Landlord’s RCT Period” shall have the
meaning assigned to such term in Section 8.3.2.


 


“Landlord’s RCT Termination Notice”
shall have the meaning assigned to such term in Section 8.3.2.


 


12

















 


“Landlord’s RCT Termination Option”
shall have the meaning assigned to such term in Section 8.3.2.


 


“Landlord’s Recapture Notice” shall
have the meaning assigned to such term in Section 8.2.2.


 


“Landlord’s Recapture Option” shall
have the meaning assigned to such term in Section 8.2.2.


 


“Landlord’s Recapture Period” shall
have the meaning assigned to such term in Section 8.2.2.


 


“Landlord’s Restoration Work” shall
have the meaning assigned to such term in Section 6.3(a).


 


“Landlord’s RFR Notice” shall have the
meaning assigned to such term in Section 9.3.2.


 


“Landlord’s Transfer Notice” shall
have the meaning assigned to such term in Section 9.2.4.


 


“Leased Premises” shall have the
meaning assigned to such term in Section 1.1(a). For purposes of
this Lease, the Leased Premises, at any time, shall be deemed to consist only
of the space within the inside surfaces of all the demising walls, exterior
windows and entrances, and structural ceilings and floors, bounding the areas
comprising the Leased Premises, at such time.


 


“Leasable Area Submeters” shall have
the meaning assigned to such term in Section 3.1(a).


 


“Leasable Areas” shall, at any time,
mean all areas of the Building that are then leased (or occupied), available
for lease (or occupancy), or otherwise susceptible of being leased (or
occupied), by tenants (or other occupants); whether or not the same are then
being marketed or are then capable of being legally or physically occupied.


 


“Lease Year” means (i) the period
commencing on the Commencement Date and ending on the last day of the calendar
month in which the first (1st) anniversary of the Commencement Date
occurs (sometimes herein referred to as the first Lease Year), and (ii) each
period of twelve (12) consecutive calendar months thereafter occurring within
the Term (i.e., the second Lease Year commences upon
the expiration of first Lease Year and ends one (1) year later, and all
subsequent Lease Years commence upon the expiration of the prior Lease Year),
except, that the last Lease Year during the Term ends on the last day of the
Term.


 


“Leasehold Improvements” shall mean
all improvements, betterments and/or equipment installed within, and affixed or
attached to, the Leased Premises, so as to become a part thereof, by, or on
behalf of, Tenant (or any Tenant Party) (including (x) such improvements,
betterments and/or equipment constructed or installed by Tenant prior to the
date hereof, or such improvements, betterments and/or equipment constructed or
installed by Tenant pursuant to Section 5.2 hereof). Without
limiting the foregoing, the term Leasehold Improvements
shall be deemed to include (i) permanent interior walls, permanent floor
coverings (e.g., wall-to-wall 


 


13

















 


carpeting, but
not area rugs or other un-affixed carpeting), permanent wall coverings (e.g., wall paper, wood paneling) and drop ceilings, (ii) basic
light fixtures (but not chandeliers or other lighting fixtures above the
quality of Building Standard), (iii) doors, door hardware, (iv) window
blinds, (v) to the extent that any portion of the Leased Premises is,
immediately prior to the end of the Term, being used as a retail banking
branch, the vaults, vault doors, teller counters and under-counter steel
located in such portion of the Leased Premises, and, with respect to the
Drive-Through Banking Facilities (if any), the pneumatic tubing and kiosks
thereat, and (vi) Tenant’s line, riser and other connections to the
Building Systems. Notwithstanding the foregoing provisions of this definition,
in no event shall the term “Leasehold Improvements” be deemed to include any
property included within the definitions of “Base
Building” or “Tenant Property”
hereunder.


 


“Legal Requirements” means any law,
statute, ordinance, order, rule, regulation or requirement of a Governmental
Authority.


 


“LL Rent Schedule”  shall have the meaning assigned to such term
in Section 9.2.1.


 


“LL Transfer” shall have the meaning
assigned to such term in Section 9.1.1.


 


“LL Transfer Permitted Encumbrances”  shall have the meaning assigned to such term
in Section 9.2.1.


 


“LRW Estimate” shall have the meaning
assigned to such term in Section 6.3(a).


 


“Management Designation Notice” shall
have the meaning assigned to such term in Section 3.6(c).


 


“Market Area” shall mean the
metropolitan area within which the Property is located, which area may be more
particularly identified on Exhibit C hereto.


 


“Master Agreement” shall mean that
certain Master Agreement Regarding Leases by and between Landlord Named Herein
and Wachovia, dated as of the date hereof.


 


“Measurement Standard” shall mean the
Standard Method for Measuring Floor Area in Office Buildings, ANSI/BOMA
Z65.1-1989, as promulgated by BOMA.


 


“Monthly Estimated OE Payments” shall
have the meaning assigned to such term in Section 2.2(b).


 


“Mortgage” shall mean any mortgage or
deed of trust which may now or hereafter affect the Property (and/or an
Overlease).


 


“Mortgagee” shall mean any holder of
any Mortgage.


 


“Mortgage SNDA” shall mean a
subordination, non-disturbance and attornment agreement between a Mortgagee and
Tenant in the form annexed as Exhibit D-1 hereto, and in proper
form for recording, together with such changes thereto that are both proposed
by a Mortgagee and approved by Tenant; it being agreed that
Tenant shall not unreasonably withhold 


 


14

















 


its approval
of any such proposed change so long as (i) such proposed change is
customary (at the time in question), and (ii) such proposed change does
not (to more than a de minimis extent) decrease Tenant’s rights, or increase Tenant’s
obligations, from those contained in the form of Mortgage SNDA annexed as Exhibit D-1
hereto.


 


“Net Rentable Area”, of any Leasable
Area, shall mean the number of RSF comprising the same determined in conformity
with the Measurement Standard. References herein to the Net Rentable Area “of the Building” shall be deemed to mean the aggregate Net
Rentable Area of all the Leasable Areas of the Building, as so determined. The
final, and conclusively binding, determinations of the Net Rentable Areas of
the Leased Premises (as the same exist on the Commencement Date), the Release
Premises (as the same exist on the Commencement Date) and the Building (as the
same exists on the Commencement Date) are as specified in Exhibit C
hereto.


 


“Net Sublease Consideration” shall
have the meaning assigned to such term in Section 8.4.2.


 


“Non-Consent Alterations” shall have
the meaning assigned to such term in Section 5.2(c).


 


“Non-Dedicated Parking Areas” shall
mean all portions of the Parking Areas other than Tenant Dedicated Parking
Areas.


 


“Notice Parties” shall mean (i) in
case of Landlord, the parties identified, with addresses, in Section 1.1(a) under
the heading “Landlord’s Address for Notices”
(as the same may be modified consistent with the provisions of Section 14.1
hereof), and (ii) in the case of Tenant, the parties identified, with
addresses, in Section 1.1(a) under the heading “Tenant’s Address for Notices” (as the same may be modified
consistent with the provisions of Section 14.1 hereof).


 


“NPV Profit Amount” shall have the
meaning assigned to such term in Section 8.2.3.


 


“OE Overpayment” shall have the
meaning assigned to such term in Section 2.2(f).


 


“OE Includable Capital Item” shall
have the meaning assigned to such term in Section 2.2(c)(3).


 


“OE Underpayment” shall have the
meaning assigned to such term in Section 2.2(f).


 


“Operating Expenses” shall have the
meaning assigned to such term in Section 2.2(b).


 


“Operating Expense Statement” shall
have the meaning assigned to such term in Section 2.2(f).


 


“Original Leased Premises” shall have
the meaning assigned to such term in Section 1.1(a).


 


“OT Building System HVAC Service”
shall have the meaning assigned to such term in Section 3.1(c).


 


15

















 


“Other Building Signage” shall have
the meaning assigned to such term in Section 3.4(a).


 


“Other Demising Work” shall have the
meaning assigned to such term in Section 5.7(a).


 


“Other Demising Work Costs” shall have
the meaning assigned to such term in Section 5.7(a).


 


“Other Leasable Area Submeters” shall
have the meaning assigned to such term in Section 3.1(a).


 


“Other Permitted Leases” shall have
the meaning assigned to such term in Section 9.2.1.


 


“Other Qualified Rooftop Equipment”
shall have the meaning assigned to such term in Section 3.5(d).


 


“Outside Completion Date” shall have
the meaning assigned to such term in Section 6.3(d).


 


“Outside Expiration Date” shall mean
[                            ,
2054](10).


 


“Overlease” shall mean any ground
lease, or other overlease, of the Property or any part thereof, now or
hereafter existing.


 


“Overlessor” shall mean any lessor
under an Overlease.


 


“Overlease SNDA” shall mean a
subordination, non-disturbance and attornment agreement between an Overlessor
and Tenant in the form annexed as Exhibit D-2 hereto, and in proper
form for recording, together with such changes thereto that are both proposed
by an Overlessor and approved by Tenant; it being agreed that
Tenant shall not unreasonably withhold its approval of any such proposed change
so long as (i) such proposed change is customary (at the time in
question), and (ii) such proposed change does not (to more than a de
minimis extent) decrease Tenant’s rights, or increase Tenant’s obligations,
from those contained in the form of Overlease SNDA annexed as Exhibit D-2
hereto.


 


“Parking Areas” shall mean the parking
areas and facilities for the Property as indicated on Exhibit A-1
hereto, together with (i) any walkways, driveways and other passageways
upon the Land providing ingress and egress between such areas and facilities
and the Building and/or between such areas and facilities and the Building, and
(ii) any additional improvements now or hereafter located on the Land
related to the foregoing areas and facilities.


 


“Personnel Costs” shall have the
meaning assigned to such term in Section 2.2(c).


 


“Portfolio Properties” shall mean all
properties acquired by Landlord pursuant to the Purchase Agreement.


 






(10)    Insert last day of month in
which 50th anniversary of the Closing Date occurs.


 


16

















 


“Preliminary Period” shall mean the
first two Lease Years (i.e., the
period commencing on the Commencement Date and expiring on the last date of the
second (2nd) Lease Year).


 


“Premises Submeter” shall have the
meaning assigned to such term in Section 3.1(a).


 


“Primary Demising Work” shall have the
meaning assigned to such term in Section 5.7(a).


 


“Primary Demising Work Costs” shall
have the meaning assigned to such term in Section 5.7(a).


 


“Prime Rate” shall mean the “prime rate” announced by Wachovia Bank, National
Association, or its successor, from time to time (or if the “prime rate” is discontinued, the rate announced as that
being charged to said bank’s most credit-worthy commercial borrowers).


 


“Prohibited Uses” shall have the
meaning assigned to such term in Section 4.8(b).


 


“Property” means, collectively, (i) the
Land, and (ii) all improvements now or hereafter located on the Land,
including (x) the Building (inclusive of all improvements, betterments
and/or equipment that, from time to time, are affixed or attached thereto, or
otherwise constitute a part thereof), (y) the Common Areas (within or
outside of the Building), including all sidewalks, curbs, plazas, paved
walkways, driveways and other passageways upon the Land (as well as any other
landscaping upon the Land), and (z) any Drive-Through Banking Facilities
which comprise part of the Leased Premises, and (iii) any personal
property belonging to Landlord which is located within or upon the Land and/or
Building, and used in connection with the operation thereof.


 


“Property Manager” shall have the
meaning assigned to such term in Section 3.6(a).


 


“Purchase Agreement” shall mean that
certain Agreement of Sale and Purchase by and between Wachovia, as seller, and
Landlord Named Herein, as purchaser, dated
                              ,
2004.


 


“Qualified Damage” shall have the
meaning assigned to such term in Section 6.3(b).


 


“RCT Termination Date” shall have the
meaning assigned to such term in Section 8.3.3.


 


“RE Tax Contest” shall have the
meaning assigned to such term in Section 2.3(c).


 


“Real Estate Taxes” shall have the
meaning assigned to such term in Section 2.3(b).


 


“Recapture Effective Date” shall have
the meaning assigned to such term in Section 8.2.3.


 


“Release Premises” shall have the
meaning assigned to such term in Section 1.1(a).


 


“Release Premises Election Date” shall
mean the last day of the sixth (6th) full calendar month of the second (2nd)
Lease Year.


 


17

















 


“Release Space Expiration Date” shall
have the meaning assigned to such term in Section 1.7(d).


 


“Relevant Books and Records” shall
have the meaning assigned to such term in Section 2.5(a).


 


“Remedial Work”, as to any portion of
the Property (including the Leasable Areas or the Common Areas), means the
removal, relocation, elimination, remediation or encapsulation of Hazardous
Materials from such portion(s) of the Property and, to the extent thereby
required, the reconstruction and rehabilitation of such portion(s) of the
Property pursuant to, and in compliance with, the provisions of this Lease.


 


“Renewal Appraisal Notice” shall have
the meaning assigned to such terms in Section 1.4(e).


 


“Renewal Option” and “Renewal
Options” shall have the meanings assigned to such terms in Section 1.4(a).


 


“Renewal Option Notice Date” shall
mean, with respect to any Renewal Option, the date on which Tenant sends Tenant’s
Renewal Notice to Landlord as provided in Section 1.4.


 


“Renewal Term” and “Renewal Terms”
shall have the meanings assigned to such terms in Section 1.4(a).


 


“Rent” means Annual Basic Rent and
Additional Rent.


 


“Requesting Party” shall have the
meaning assigned to such term in Section 12.1(a)(i).


 


“Required Above Standard Services”
shall have the meaning assigned to such term in Section 3.1(c).


 


“Responding Party” shall have the
meaning assigned to such term in Section 12.1(a)(i).


 


“Retail Conversion Transaction” shall
have the meaning assigned to such term in Section 8.1.1.


 


“RFR Contract” shall have the meaning
assigned to such term in Section 9.3.4.


 


“RFR Exercise Period” shall have the
meaning assigned to such term in Section 9.3.3.


 


“RFR Period”  shall have the meaning assigned to such term
in Section 9.1.1.


 


“ROFO Closing” shall have the meaning
assigned to such term in Section 9.2.3.


 


“ROFO Exercise Period” shall have the
meaning assigned to such term in Section 9.2.2.


 


“ROFO Period” shall have the meaning
assigned to such term in Section 9.1.1.


 


“ROFO Transfer Period” shall have the
meaning assigned to such term in Section 9.2.4.


 


18

















 


“RSF” shall mean rentable square feet.


 


“Scheduled Delivery Date” shall have
the meaning assigned to such term in Section 10.3.


 


“SEC” means the Securities and
Exchange Commission.


 


“Section 8.5 Transaction” shall
have the meaning assigned to such term in Section 8.5.1.


 


“Security Areas” shall have the
meaning assigned to such term in Section 4.2.


 


“Self-Insurance Net Worth Test” shall
mean, as of any date, that (i) Tenant has a net worth of at least
$1,000,000,000, and (ii) Tenant’s long-term senior unsecured debt
obligations are rated at least BB+ (or its equivalent) by Fitch Investors
Service and Baa3 (or its equivalent) by Moody’s as of that date; provided that
if Tenant is rated by only one of Fitch Investors Service or Moody’s, such
obligations shall have such rating from Fitch Investors Service or Moody’s, as
the case may be, and a comparable rating from one of S&P or another
nationally-recognized rating agency.


 


“Separate Charge Parking Areas” shall
mean the portions of the Parking Areas that are designated as “Separate Charge Parking Areas” on Exhibit A-1
hereto.


 


“Separately Leasable Condition”, when
used with respect to any space in the Building, shall mean that such space
(subject to the construction within such space of leasehold improvements of the
type and nature normally found within legally occupied Leasable Areas) is
legally capable of being separately leased to a tenant for general office
purposes (or, in the case of ground floor space, general office, retail or
banking purposes), including (i) being separately demised from any other
Leasable Area (i.e., bounded by demising walls),
(ii) having an independent means of ingress and egress (i.e., independent of any other Leasable Area) to, and from,
the outside of the Building or to and from the Common Areas that serve such
space, and (iii) being otherwise served by such Common Areas, whether
general or limited, that, assuming the construction within such space of
leasehold improvements of the type and nature normally found within legally
occupied Leasable Areas, shall be legally sufficient to permit such space to
separately leased as herein-above provided in this definition. The term “leasehold improvements”, as used herein, shall mean
improvements and betterments to, and within the confines of, a demised Leasable
Area, over and above the components of the Base Building therein.


 


“Service Failure” shall have the
meaning assigned to such term in Section 3.1(f).


 


“Short-Term Additional Space” shall
mean each of (i) the Short-Term Former Release Space (if, as and when the
same are added to the Leased Premises pursuant to Section 1.7(f),
and for so long thereafter as the same shall remain demised hereunder), or (ii) any
Short-Term Expansion Space (if, as and when the same are added to the Leased
Premises pursuant to Section 10.3, and for so long thereafter as
the same shall remain demised hereunder).


 


“Short-Term Former Release Space”
shall have the meaning assigned to such term in Section 1.7(f).


 


19














 


“Short-Term Expansion Space” shall have the
meaning assigned to such term in Section 10.3.


 


“SLC Plans & Specifications” shall
have the meaning assigned to such term in Section 5.7(b).


 


“SLC Space Plan” shall have the meaning
assigned to such term in Section 5.7(b).


 


“SNDA” shall mean any of a Mortgage SNDA, an
Overlease SNDA and a Sublease SNDA.


 


“STAS Basic Rental Factor”, for any
Short-Term Additional Space, shall, at any time, mean the rate, per square foot
of Net Rentable Area, then applicable to such Short-Term Additional Space, as
set forth (i) in the case of Short-Term Former Release Space, (x) in Section 1.7(f)(2),
for all periods prior to the end of the Initial Term, and (y) in Section 1.4(c)(2),
for any Renewal Terms, and (ii) in the case of any Short-Term Expansion
Space, (xx) in Section 10.4(e)(2), for all periods prior to the end
of the Initial Term (as well any Renewal Term during which such Short-Term
Expansion Space is first added to the Leased Premises), and (yy) in Section 1.4(c)(2),
for any Renewal Terms (other than the Renewal Term during which such Short-Term
Expansion Space is first added to the Leased Premises).


 


“State” shall mean the State in which the
Property is located.


 


“Sublease” shall mean any sublease demising
the whole or any portion(s) of the Leased Premises.


 


“Subtenant” shall mean the subtenant under a
Sublease.


 


“Sublease SNDA” shall mean a subordination,
non-disturbance and attornment agreement between Landlord and a Subtenant in
the form annexed as Exhibit D-3 hereto, and in proper form for
recording, together with such changes thereto that are both proposed by a
Subtenant and approved by Landlord; it being agreed that
Landlord shall not unreasonably withhold its approval of any such proposed
change so long as (i) such proposed change is customary (at the time in
question), and (ii) such proposed change does not (to more than a de
minimis extent) decrease Landlord’s rights, or increase Landlord’s obligations,
from those contained in the form of Sublease SNDA annexed as Exhibit D-3
hereto.


 


“Surrender Release Space” shall have the
meaning assigned to such term in Section 1.7(d).


 


“Tax Statement” shall have the meaning
assigned to such term in Section 2.3(a).


 


“Tenant” shall mean only the owner of Tenant’s
estate and interest under this Lease, at the time in question; but the foregoing provisions of this definition shall not be
construed to relieve Tenant Named Herein, or any subsequent Tenant, from the
obligations of Tenant accruing during the period that it is Tenant hereunder or
thereafter.


 


20

















 


“Tenant Budget Objection” shall have the
meaning assigned to such term in Section 2.4(b).


 


“Tenant Business Group” shall have the
meaning assigned to such term in Section 8.5.1.


 


“Tenant Controlled Contest” shall have the
meaning assigned to such term in Section 2.3(c).


 


“Tenant Created Lien” shall have the meaning
assigned to such term in Section 5.4(b).


 


“Tenant-Dedicated Parking Areas” shall mean
the portions of the Parking Areas that are designated as “Tenant
Dedicated Parking Areas” on Exhibit A-1 hereto.


 


“Tenant Expansion Notice” shall have the
meaning assigned to such term in Section 10.1.


 


“Tenant Lien Cure Period” shall have the
meaning assigned to such term in Section 5.4(b).


 


“Tenant Management Agreement” shall have the
meaning assigned to such term in Section 3.6(c).


 


“Tenant Managed Property” shall have the
meaning assigned to such term in Section 3.6(c).


 


“Tenant Management Period” shall have the
meaning assigned to such term in Section 3.6(c).


 


“Tenant Management Services” shall have the
meaning assigned to such term in Section 3.6(c).


 


“Tenant Named Herein” shall mean WACHOVIA
BANK, NATIONAL ASSOCIATION.


 


“Tenant Party” shall mean (i) any
principal (which shall include any shareholder, partner, member or other owner,
direct or indirect, disclosed or undisclosed) of Tenant, or any director,
officer, employee, agent or contractor of Tenant (or of any principal of
Tenant), or (ii) any Subtenant or other person claiming by, through or
under Tenant (directly or indirectly), or any principal, director, officer,
employee, agent or contractor of such Subtenant or such other person.


 


“Tenant Prominence Period” shall have the
meaning assigned to such term in Section 3.4(b).


 


“Tenant Property” shall mean all movable
personal property or trade fixtures (including any cabling or wiring installed
within ceilings, ducts or chases of the Building but not permanently embedded
within the walls of the Building) installed or maintained by, or at the
instance of, Tenant (or any Tenant Party) within the Leased Premises (or, as
expressly permitted hereunder, any areas outside of the Leased
Premises).Without limiting the foregoing, the term Tenant
Property shall be deemed to include the following: (i) any
furniture, furnishings and 


 


21

















 


equipment; (ii) moveable
partitions and systems furniture; (iii) business, telecommunications and
audio-visual equipment; (iv) computers, computer equipment, software and
peripherals; (v) security systems and equipment; (vi) paintings
and/or other works of art or decoration; (vii) all of Tenant’s signage
(whether exterior or interior), including Building Identification Signage and
Tenant’s Exterior Signage (but excluding Tenant’s Monuments); (viii) ATMs connected to or located within the Building, or situated as
freestanding structures on the Property, and any ATM related equipment; (ix) safes;
(x) safe deposit boxes (including the nests or frames thereof); (xi) any
equipment within the Leased Premises relating to Tenant’s separate service
systems (including, if within the Leased Premises, Tenant’s Supplemental HVAC
Equipment); (xii) Tenant’s Exterior Equipment (including Tenant’s Rooftop
Equipment and, if outside the Leased Premises, Tenant’s Supplemental HVAC
Equipment); and (xiii) specialty fixtures, such as chandeliers or other
lighting fixtures above the quality of Building Standard.


 


“Tenant Required Contest” shall have the
meaning assigned to such term in Section 2.3(c).


 


“Tenant Sub-Manager” shall have the meaning
assigned to such term in Section 3.6(c).


 


“Tenant’s Allotted CW Capacity” shall have
the meaning assigned to such term in Section 3.1(b).


 


“Tenant’s Building Signage” shall have the
meaning assigned to such term in Section 3.4(a).


 


“Tenant’s Dedicated Electrical Capacity”
shall have the meaning assigned to such term in Section 3.1(a).


 


“Tenant’s Exclusive Period” shall have the
meaning assigned to such term in Section 10.3.


 


“Tenant’s Existing Exterior Equipment” shall
have the meaning assigned to such term in Section 3.5(a).


 


“Tenant’s Exterior Equipment” shall have the
meaning assigned to such term in Section 3.5(c).


 


“Tenant’s Occupancy Percentage” shall mean a
fraction, expressed as a percentage, (i) the numerator of which is the Net
Rentable Area of the Leased Premises (and, during the Preliminary Period to the
extent provided in Section 1.7 hereof, the Net Rentable Area of the
Release Premises) at the time the determination is made, and (ii) the
denominator of which is Net Rentable Area of the Building. Tenant’s Occupancy
Percentage shall be re-calculated each time there is a change in the Net
Rentable Area of the Leased Premises (due to additions to, or deletions from,
the Leased Premises) (or, as applicable pursuant to Section 1.7
hereof, the Release Premises, due to additions thereto, or deletions
therefrom); with any such re-calculation (and Tenant’s obligations in respect
of Additional Rent payable on the basis of Tenant’s Occupancy Percentage) being
effective as of the date of such change. Upon any such re-calculation, Landlord
and Tenant shall execute and deliver a written instrument confirming the same,
and incorporating the same into this Lease.


 


22

















 


“Tenant’s Offer Notice” shall have the
meaning assigned to such term in Section 8.2.1.


 


“Tenant’s Operating Expense Share” shall have
the meaning assigned to such term in Section 2.2(a).


 


“Tenant’s Renewal Notice” shall have the
meaning assigned to such term in Section 1.4(b).


 


“Tenant Repairs” shall have the meaning
assigned to such term in Section 5.6(a).


 


“Tenant’s RCT Notice” shall have the meaning
assigned to such term in Section 8.3.1.


 


“Tenant’s RFR Exercise Notice” shall have the
meaning assigned to such term in Section 9.3.3.


 


“Tenant’s RFR Option” shall have the meaning
assigned to such term in Section 9.3.3.


 


“Tenant’s ROFO Option” shall have the meaning
assigned to such term in Section 9.2.2.


 


“Tenant’s ROFO Exercise Notice” shall have
the meaning assigned to such term in Section 9.2.2.


 


“Tenant’s Rooftop Equipment” shall have the
meaning assigned to such term in Section 3.5(d).


 


“Tenant’s Supplemental HVAC Equipment” shall
have the meaning assigned to such term in Section 3.1(b).


 


“Tenant’s Tax Share” shall have the meaning
assigned to such term in Section 2.3(a).


 


“Tenant’s Title Insurer” shall have the
meaning assigned to such term in Section 9.2.3.


 


“Tenant’s Transfer Period” shall have the
meaning assigned to such term in Section 8.2.4.


 


“Tenant’s Transfer Notice” shall have the
meaning assigned to such term in Section 8.2.4.


 


“Tenant’s Reimbursement Amount” shall have
the meaning assigned to such term in Section 5.7(b).


 


“Term” shall have the meaning assigned to
such term in Section 1.3.


 


“Termination Rights Exercise Notice” shall
have the meaning assigned to such term in Section 11.1.


 


“Third Party Leasing Rights” shall have the
meaning assigned to such term in Section 10.4.


 


23

















 


“Threshold Alteration Amount” shall have the
meaning assigned to such term in Section 5.2(c).


 


“Vacate Space” shall have the meaning
assigned to such term in Section 11.1.


 


“Wachovia” shall mean (i) Tenant Named
Herein, or (ii) a person constituting an immediate or remote successor to
Tenant Named Herein by virtue of one or more mergers, consolidations and/or
transfers of all, or substantially all, the assets of Tenant Named Herein (or
another person described in this clause (ii)).


 


“Wachovia Party” shall mean Wachovia or any
Affiliate of Wachovia.


 


“Wachovia’s Termination Right” shall have the
meaning assigned to such term in Section 11.1.


 


As used in this Lease, (i) the phrase “and/or” when applied to one or more
matters or things shall be construed to apply to any one or more or all thereof
as the circumstances warrant at the time in question, (ii) the terms “herein” “hereof”
and “hereunder”, and words of similar
import, shall be construed to refer to this Lease as a whole, and not to any
particular Article or Section, unless expressly so stated, (iii) the
term “including”, whenever used herein,
shall mean “including without limitation”, except in those instances where it
is expressly provided otherwise, (iv) the term “person”
shall mean a natural person, a partnership, a corporation, a limited liability
company, and/or any other form of business or legal association or entity, (v) the
term “alterations” shall mean any
alterations, additions, removals and/or any other changes, and (vii) the
term “contractor” shall include any
construction manager, general contractor, subcontractor or other trade
contractor.


 


1.2          Leased Premises


 


Subject to and upon the terms hereinafter set forth,
Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease
and take from Landlord, the Leased Premises. Tenant shall be entitled to the
following as appurtenances to the Leased Premises: (I) the right to use,
and permit Tenant Parties and/or the customers, invitees and guests of Tenant
or any Tenant Parties, to use, (a) on an exclusive basis, the
Tenant-Dedicated Parking Areas and (b) on a non-exclusive basis (in common
with Landlord and other tenants or occupants of the Property, their customers,
invitees and guests), the Non-Dedicated Parking Areas and all the other Common
Areas; (II) all rights and benefits appurtenant to, or necessary or
incidental to, the use and enjoyment of the Leased Premises by Tenant for the
purposes permitted by Section 1.5 hereof, including the right of
Tenant, its employees and invitees, in common with Landlord and other persons,
to use any non-exclusive easements and/or licenses in, about or appurtenant to
the Property, including the non-exclusive right to use any walkways, tunnels,
and skywalks connected to the Property; and (III) all other rights and
benefits provided to Tenant with respect to the Property pursuant to this Lease
(including the rights granted to Tenant to use the roof of the Building, and
other portions of the Property located outside of the Premises, pursuant to Section 3.5
hereof).


 


24

















 


1.3          Term


 


The Initial Term of this Lease shall be as defined
in Section 1.1(a), which Initial Term may be renewed and extended
as provided in Section 1.4 hereof (the Initial Term and, to the
extent renewed and extended, the Renewal Terms, are hereinafter collectively
called the “Term”). Tenant is in possession of the Leased Premises as of
the date of this Lease and shall accept the Leased Premises in its “AS-IS”
condition, as of the Commencement Date, subject to all applicable Legal
Requirements and matters of title heretofore affecting the same. Landlord has
made no representation or warranty (express or implied) regarding the
suitability of the Leased Premises or the Building for the conduct of Tenant’s business,
and Tenant waives any warranty (express or implied) that (a) the Leased
Premises, the Common Areas or the Building generally are suitable for Tenant’s
intended purposes, or (b) the Leased Premises, the Common Areas or the
Building generally are now in compliance with Legal Requirements in effect on
the Commencement Date. Except as otherwise expressly set forth in this Lease,
in no event shall Landlord have any obligation for any defects existing on the
Commencement Date in the Leased Premises, the Common Areas or the Building
generally, or any legal limitation on the use thereof.


 


1.4          Options to Renew


 


(a)           Subject to the conditions hereinafter set forth,
Tenant is hereby granted options (individually, a “Renewal Option” and,
collectively, the “Renewal Options”) to renew the Term with respect to
all, or any portion of, the Leased Premises as then demised hereunder for six (6) successive
periods of five (5) years each (individually, a “Renewal Term” and
collectively the “Renewal Terms”); provided that the Term shall not
extend, for any portion of the Leased Premises, beyond the Outside Expiration
Date.


 


(b)           The first Renewal Term (if the first Renewal Option
is exercised) shall commence at the expiration of the Initial Term, and each
subsequent Renewal Term (if the pertinent Renewal Option is exercised) shall
commence at the expiration of the immediately preceding Renewal Term. Tenant
shall exercise each of its Renewal Options, if at all, by delivering notice of
such exercise to Landlord (each, a “Tenant’s Renewal Notice”) not later
than twelve (12) months prior to the then current expiration of the Term. In
any case that Tenant exercises a Renewal Option with respect to less than all
of the Leased Premises as then demised hereunder, Tenant shall identify the
portion(s) of the Leased Premises with respect to which the Renewal Option
is being exercised. IN ORDER TO PREVENT TENANT’S INADVERTENT FORFEITURE OF ANY
THEN REMAINING RENEWAL OPTION, IF TENANT SHALL FAIL TO TIMELY EXERCISE ANY
AVAILABLE RENEWAL OPTION, TENANT’S RIGHT TO EXERCISE SUCH RENEWAL OPTION SHALL
NOT LAPSE UNTIL LANDLORD SHALL DELIVER TO TENANT WRITTEN NOTICE THAT SUCH
NOTICE OF EXERCISE HAS NOT BEEN DELIVERED AND TENANT SHALL THEREAFTER FAIL TO
EXERCISE SUCH RENEWAL OPTION WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE
DELIVERY OF SUCH NOTICE.


 


(c)           Tenant’s leasing of the Leased Premises during any
Renewal Term shall be upon all the then executory terms and conditions of this
Lease (as applicable prior to such Renewal Term), except as
follows:


 


25

















 


(1)           The Annual Basic Rent Factor
for each Renewal Term shall be equal to the Fair Market Rental Value Per RSF of
the Base Leased Premises for the Renewal Term (as determined by the parties or,
in the absence of their agreement, determined by appraisal, all as herein-after
provided); provided, however, that:


 


(A)          if, as of the commencement
of such Renewal Term, both (i) Tenant hereunder is a Wachovia Party, and (ii) the
Integration Period has not ended, then the Annual Basic Rent Factor for such
Renewal Term shall be adjusted as provided in Section 2 of the Master
Agreement, as applicable;


 


(B)           if, as of the commencement
of such Renewal Term, the Tenant hereunder is not a Wachovia Party (whether or
not the Integration Period has ended), then the Annual Basic Rent Factor for
such Renewal Term shall not exceed a rate equal to 110% of the Annual Basic
Rent Factor on the last day of the Initial Term or immediately preceding
Renewal Term, as applicable; and


 


(C)           if, as of the commencement
of such Renewal Term, (i) the Tenant hereunder is a Wachovia Party, and (ii) the
Integration Period has ended, then the Annual Basic Rent Factor for such
Renewal Term shall not exceed the following: (x) in the case of the first
Renewal Term, a rate equal to 110% of the Annual Basic Rent Factor on the last
day of the Initial Term; and (y) in the case of each subsequent Renewal
Term, a rate equal to 105% of the Annual Basic Rent Factor for the immediately
preceding Renewal Term.


 


(2)           The STAS Basic Rental Factor
for each Short-Term Additional Space for each Renewal Term shall be equal to
the Fair Market Rental Value Per RSF of such Short-Term Additional Space for
such Renewal Term (as determined by the parties or, in the absence of their
agreement, determined by appraisal, all as herein-after provided).


 


(d)           Within thirty (30) days following the Renewal Option
Notice Date with respect to any Renewal Option, Landlord shall deliver to
Tenant, a proposal setting forth Landlord’s determination of the Fair Market
Rental Value Per RSF for the Leased Premises for the pertinent Renewal Term
(which, if the Leased Premises as to which such Renewal Option is exercised
includes any Short-Term Additional Space, then such determination shall include
separate components for the Fair Market Rental Value Per RSF for the Base
Leased Premises, and the Fair Market Rental Value Per RSF of the Short-Term
Additional Space). Thereafter, and until the delivery of a Renewal Appraisal
Notice, Landlord and Tenant shall endeavor to reach agreement as to the Fair
Market Rental Value Per RSF of the Leased Premises for the pertinent Renewal
Term (and, as applicable, each component thereof).


 


(e)           If Landlord and Tenant are unable to reach a
definitive agreement as to the Fair Market Rental Value Per RSF for Leased
Premises for any Renewal Term within sixty (60) days following the Renewal
Option Notice Date, then either Landlord or Tenant, by written notice thereof
to the other party (herein called a “Renewal Appraisal Notice”), may
cause such Fair Market Rental Value Per RSF to be submitted for resolution in
accordance with the following provisions of this Section 1.4(e):


 


26

















 


(1)           Within thirty (30) days
after delivery of the Renewal Appraisal Notice, Landlord and Tenant shall each
select and engage an Appraiser to determine such Fair Market Rental Value Per
RSF. If either party fails to select and engage an Appraiser within such time,
and if such failure continues for more than five (5) Business Days
following such party’s receipt of written notice that states in all capital
letters (or other prominent display) that such party has failed to select an
Appraiser as required under the Lease and will be deemed to have waived certain
rights granted to it under the Lease unless it selects an Appraiser within five
(5) Business Days, then the Appraiser engaged by the other party shall
select the second Appraiser.


 


(2)           Within thirty (30) days
following the date on which the second Appraiser is selected, (i) each
Appraiser shall prepare a sealed determination of the such Fair Market Rental
Value Per RSF, (ii) the Appraisers, together with Landlord and Tenant,
shall arrange a meeting at the Property during Building Operating Hours (or at such
other place and time as is reasonably acceptable to both Appraisers, Landlord
and Tenant) for the purpose of distributing such sealed determinations, and (iii) at
such meeting, the Appraisers shall each simultaneously present their
determinations of such Fair Market Rental Value Per RSF, to the other Appraiser
and to Landlord and Tenant. If the higher of the two determinations of such
Fair Market Rental Value Per RSF does not exceed one hundred five percent
(105%) of the lower of the two determinations of such Fair Market Rental Value
Per RSF, then the average of the two (2) determinations shall be such Fair
Market Rental Value Per RSF (and the same shall constitute the final
determination thereof). If the higher of the two determinations of such Fair Market
Rental Value Per RSF exceeds 105% of the lower of the two determinations of
such Fair Market Rental Value Per RSF, then within five (5) Business Day
after receipt by Landlord and Tenant of both appraisal reports, the Appraisers
selected by Landlord and Tenant shall agree on a third Appraiser (the “Third
Appraiser”) to make a determination of such Fair Market Rental Value Per
RSF.  The Third Appraiser shall not make
an independent determination, but shall, within ten (10) Business Days
after his or her designation, select one (1) of the two (2) determinations
already made, whichever of the two determinations the Third Appraiser
determines to be closest to such Fair Market Rental Value Per RSF, as the
controlling determination with respect to such Fair Market Rental Value Per
RSF. The decision of the Third Appraiser shall be conclusive and binding; and
such Fair Market Rental Value Per RSF shall be as set forth in such controlling
determination (which shall constitute the final determination thereof). Each
party shall pay the costs of its Appraiser and one-half (1/2) of the cost of
the Third Appraiser.


 


(3)           The instructions to the
Appraisers with respect to the determination of such Fair Market Rental Value
Per RSF will be to determine the same solely in accordance with the definition Fair Market Rental Value Per RSF as set
forth in this Lease (including the criteria and assumptions set forth therein).
The Appraisers shall have no authority to alter any provisions of such
definition, or any other provisions of this Lease.


 


(4)           Within thirty (30) days
following the final determination of such Fair Market Rental Value Per RSF,
Tenant shall elect one (1) of the following options by written notice to
Landlord: (A) to revoke the exercise of the pertinent Renewal Option, in
which event, the Term shall automatically, and without further action of
Landlord or Tenant, expire on the later of (1) the expiration of the
Initial Term (or, if applicable, the expiration of the Renewal Term with
respect to the immediately preceding Renewal Option) or (2) the last day
of the calendar month that is six (6) months following the month in which
Tenant’s notice of 


 


27

















 


revocation was given to Landlord; or (B) to
ratify its exercise of the pertinent Renewal Option. If Tenant fails to
exercise either of the foregoing options within such thirty (30) day period,
then Tenant shall be deemed to have elected option (B). If Tenant elects (or is
deemed to have elected) option (B), then Tenant thereby shall have irrevocably
exercised the pertinent Renewal Option and Tenant may not thereafter withdraw
the exercise of the Renewal Option.


 


(5)           If the Fair Market Rental
Value Per RSF of the Leased Premises for any Renewal Term shall not have been
final determined prior to the commencement of the Renewal Term (and,
accordingly, the actual Annual Basic Rent therefor is not finally known as of
the commencement of such Renewal Term), then (i) for the period commencing
on such first day of such Renewal Term and ending on the date that such Fair
Market Rental Value Per RSF is finally determined, Tenant shall make payments,
on account of the Annual Basic Rent for such Renewal Term (as and when Annual
Basic Rent is payable under this Lease) based upon the Annual Basic Rent Factor
in effect immediately prior to such Renewal Term, and, for any Short-Term
Additional Space, the STAS Basic Rental Factor in effect immediately prior to
such Renewal Term, and (ii) upon such Fair Market Rental Value Per RSF
being finally determined, such payments on account of Annual Basic Rent shall
be reconciled with the actual Annual Basic Rent, and, within thirty (30) days
after such final determination, (x) if such payments on account of Annual
Basic Rent made by Tenant during such period were less than the actual Annual
Basic Rent for such period, then Tenant shall pay to Landlord the amount of
such deficiency, together with interest thereon at the Prime Rate, and (y) if
such payments on account of Annual Basic Rent made by Tenant during such period
were in excess of the actual Annual Basic Rent for such period, then Landlord
shall refund to Tenant the amount of such excess, together with interest
thereon at the Prime Rate.


 


1.5          Use


 


The Leased Premises may be used and occupied only for
(i) banking purposes, and uses incidental thereto, (ii) general
office purposes, and uses incidental thereto, (iii) any other lawful
purposes for which the Property is used on the Commencement Date, and/or (iv) any
other lawful purposes as are consistent with the character of the Building.
Without limiting the generality of the foregoing, the permitted uses of the
Leased Premises shall include (without limitation): (a) conference,
training and/or meeting facilities, (b) libraries, (c) coffee bars, (d) support
staff facilities (including word processing and copy facilities), (e) lunchrooms,
cafeterias and kitchen facilities for use by Tenant and its employees and
invitees, including vending machines and microwave ovens for use by Tenant and
its employees and invitees, subject, however, to Legal Requirements, (f) storage
space incidental to banking and general business office purposes only, (g) bank
and storage vaults, (h) cash vaults, (i) telephone call centers, (j) retail
banking and sales facilities, (k) child care facilities, (l) fitness
centers, and (k) data and service center operations. Tenant is not
obligated to maintain occupancy or conduct operations in all or any portion of
the Leased Premises. For purposes of this Section 1.5, the term “banking”
shall be deemed to include, without limitation, all traditional banking
activities as well as the sale of insurance and annuities of all types, trust
services, investment and financial advice, the sale of securities, credit card
operations and sales, mortgage lending and servicing, and data and service
center functions. In addition, and without limiting the generality of any of
the foregoing provisions, the Leased Premises may be used for any operations or
activities required to support or otherwise provide services in support of
Tenant’s business operations, regardless of whether 


 


28

















 


or not those business
operations are conducted within the Leased Premises. If Tenant receives notice
of any material directive, order, citation or of any violation of any Legal
Requirement or any insurance requirement, Tenant shall endeavor to promptly
notify Landlord in writing of such alleged violation and furnish Landlord with
a copy of such notice.


 


1.6          Survival


 


Any claim, cause of action, liability or obligation
arising during the Term of this Lease in favor of a party hereto and against or
obligating the other party hereto shall (to the extent not theretofore fully
performed) survive the expiration or any earlier termination of this Lease.


 


1.7          Release Premises


 


(a)           The rights and obligations of the parties with
respect to the Release Premises shall be as set forth in this Section 1.7.
The Release Premises shall not constitute part of the Leased Premises (unless
and until, and only to the extent that, the same are added to the Leased
Premises pursuant to the provisions of Section 1.7(e) or (f) below),
but the same shall be deemed demised by this Lease, and the provisions of this
Lease (other than this Section 1.7) shall apply to the Release
Premises to the extent expressly provided in this Section 1.7.


 


(b)           During the Preliminary Period, Tenant may use and
occupy the Release Premises subject to, and in accordance with, the following:


 


(1)           Tenant shall not pay any
Annual Basic Rent with respect to the Release Premises.


 


(2)           Tenant shall pay only
Additional Rent with respect to the Release Premises, and shall do so on the
same terms and conditions as it pays Additional Rent with respect to the Leased
Premises, but not, with respect to any portion of the Release Premises, after
the date (even if such date is prior to the end of the Preliminary Period) that
Tenant shall have surrendered the same with reasonable notice to Landlord and
otherwise consistent with the provisions of Section 1.7(d)(3) hereof
(and, accordingly, solely for purposes of calculating Tenant’s Occupancy
Percentage during the Preliminary Period, the numerator thereof shall include,
in addition to the Net Rentable Area of the Leased Premises, the Net Rentable
Area of the Release Premises to the extent the same has not yet been
surrendered by Tenant consistent with the foregoing).


 


(3)           Tenant’s use of the Release
Premises shall be subject to the provisions of Section 1.5 hereof,
and, except for the provisions of this Lease requiring the payment of Rent, all
the other provisions of this Lease shall apply to the Release Premises as fully
as the same to the Leased Premises.


 


(c)           On or prior to the Release Premises Election Date,
Tenant shall advise Landlord of Tenant’s election to (i) surrender any
portion of the Release Premises as of a date not later than the expiration of
the Preliminary Period, (ii) add any portion of the Release Premises to
the Leased Premises on a coterminous basis pursuant to Section 1.7(e) effective
as of the first day immediately following the Preliminary Period, or (iii) add
any portion of the Release Premises to the Leased Premises on a short term
basis pursuant to Section 1.7(f) effective as of the first day



 


29

















 


immediately following the Preliminary Period.  Tenant shall be permitted to make different
elections with respect to different portions of the Release Premises. If Tenant
fails to notify Landlord of its election with respect to any portion of the
Release Premises prior to the expiration of the Release Premises Election Date,
then Tenant shall be deemed to have elected to surrender such portion of the
Release Premises not later than the expiration of the Preliminary Period.


 


(d)           With respect to any portion of the Release Premises
that Tenant shall have elected (or is deemed to have elected) to surrender as
herein-above provided (any such portion of the Release Premises being herein
called “Surrender Release Space”), the following provisions shall apply:


 


(1)           Tenant shall surrender all
Surrender Release Space on or prior to the expiration of the Preliminary Period
(the earlier of (x) the date upon which Tenant actually surrenders any
Surrender Release Space, and (y) the last day of the Preliminary Period,
is herein called the “Release Space Expiration Date” with respect to
such Surrender Release Space).


 


(2)           If Tenant shall fail to
surrender any Surrender Release Space on or prior to the expiration of the
Preliminary Period, then, for the period commencing on the date immediately
following the Preliminary Period and ending on the date that such Surrender
Release Space shall be surrendered, Tenant (i) shall pay Annual Basic Rent
with respect to such Release Premises at the Fair Market Rental Value Per RSF
thereof, and (ii) shall continue to pay Additional Rent on the same basis
as during the Preliminary Period. Notwithstanding the foregoing, either
Landlord or Tenant may terminate Tenant’s right to possess and occupy such
Surrender Release Space at any time following the expiration of the Preliminary
Period upon thirty (30) days’ prior written notice to the other party.


 


(3)           Tenant shall surrender all
Surrender Release Space consistent with the provisions of Section 4.1
hereof (as applied to Surrender Release Space as if the same were part of the
Leased Premises), subject, however,
to the provisions of Section 1.7(d)(4) below.


 


(4)           If any Surrender Release
Space is not in Separately Leasable Condition on the Release Space Expiration
Date with respect thereto, then Landlord, promptly following the Release Space
Expiration Date, shall proceed to cause the Demising Work with respect to such
Surrender Release Space to be performed in accordance with the provisions of Section 5.7
hereof; provided, however, that (i) any Demising Work
performed by Landlord while Tenant is still in occupancy of the Surrender
Release Space shall be performed subject to, and in a manner that is consistent
with Tenant’s continued occupancy, and (ii) Landlord shall not have the right
or obligation under this Lease to perform any Demising Work with respect to any
Surrender Release Space if, as of the Release Space Expiration Date with
respect thereto, either (x) no Leased Premises or Release Premises is
remaining within the Building, or (y) no Leased Premises exists in the
Building, and Tenant’s right to convert any remaining Release Premises to
Leased Premises pursuant to in Sections 1.7(e) and (f) has
either lapsed by its terms or been irrevocably waived by Tenant, in writing.


 


(e)           Any Release Premises that Tenant shall have elected
to add to the Leased Premises on a coterminous basis pursuant to this Section 1.7(e) (“Coterminous
Former Release 


 


30

















 


Space”), as herein-above provided, shall be added to the
Leased Premises, effective upon the date immediately following the Preliminary
Period upon, subject to, and in accordance with, the provisions:


 


(1)           (A) the initial term of
this Lease with respect to the Coterminous Former Release Space shall be the
balance of the Initial Term (i.e.,
the period commencing on the date immediately following the Preliminary Period
and ending on the Expiration Date), and (B) the provisions of Section 1.4
hereof shall apply to the Coterminous Former Release Space as fully and
completely as the same apply to the balance of the Leased Premises;


 


(2)           the Annual Basic Rent for
the Coterminous Former Release Space shall be payable at the same rate as that
applicable to the balance of the Base Leased Premises (i.e., at a rate, per RSF, equal to the
Annual Basic Rent Factor from time to time in effect), and, accordingly, upon
the date that the Coterminous Former Release Space is added to the Leased
Premises, the Annual Basic Rent hereunder shall be recalculated based on the
addition of the Net Rentable Area of the Coterminous Former Release Space to
the Net Rentable Area of the Leased Premises;


 


(3)           Additional Rent shall be
payable with respect to the Coterminous Former Release Space on the same basis
as the same is payable with respect to the balance of the Leased Premises, and,
accordingly, upon the date that the Coterminous Former Release Space is added
to the Leased Premises, Tenant’s Occupancy Percentage shall be adjusted based
on the addition of the Net Rentable Area of the Coterminous Former Release
Space to the Net Rentable Area of the Leased Premises; and


 


(4)           subject to the foregoing,
and except as otherwise expressly provided herein, all of the other then
executory terms and conditions of this Lease shall apply to the Coterminous
Former Release Space as fully and completely as the same apply to the balance
of the Leased Premises.


 


(f)            Any Release Premises that Tenant shall have elected
to add to the Leased Premises on a short-term basis pursuant to this Section 1.7(f) (“Short-Term
Former Release Space”), as herein-above provided, shall be added to the
Leased Premises, effective upon the date immediately following the Preliminary
Period upon, subject to, and in accordance with, the following provisions:


 


(1)           (A) the initial term of
this Lease with respect to the Short-Term Former Release Space shall be a five (5) year
period commencing on the date immediately following the Preliminary Period and
ending on the fifth (5th) anniversary
of such date, and (B) from and after such initial term (and until the end
of the Initial Term), Tenant shall have the right(s) to renew the term of
this Lease with respect to the Short-Term Former Release Space for one or more
special renewal periods, as Tenant may elect, each equal to the lesser of (x) five
(5) years or (y) the then remaining balance of the Initial Term, each
such right to be exercisable, by written notice to Landlord, given not less
than nine (9) months prior to the expiration of the then current term of
this Lease with respect to the Short-Term Former Release Space, and (C) the
provisions of Section 1.4 hereof shall apply to the Short-Term
Former Release Space as fully and completely as the same apply to the balance
of the Leased Premises;


 


31














 


(2)           the Annual Basic Rent for
the Short-Term Former Release Space, for the initial term of this Lease with
respect to the Short-Term Former Release Space, and for each of the special
renewal periods described in Section 1.7(f)(1)(B) above, shall
be payable based on STAS Basic Rental Factor equal to the Fair Market Rental
Value Per RSF for the Short-Term Former Release Space; it being agreed that the
Fair Market Rental Value Per RSF for the Short-Term Former Release Space shall
be determined separately for (i) the initial term of this Lease with
respect to the Short-Term Former Release Space, and (ii) each such special
renewal period in accordance with the following:


 


(A)          within thirty (30) days
following the Release Premises Election Date (in the case of such initial
term), or the date of Tenant’s exercise of such renewal right(s) (in the
case of each such special renewal period), Landlord shall deliver to Tenant, a
proposal setting forth Landlord’s determination of the Fair Market Rental Value
Per RSF for such Short-Term Former Release Space for such initial term or
special renewal period, as the case may be;


 


(B)           thereafter, and until the
date that is sixty (60) days following the Release Premises Election Date (in
the case of such initial term), or the date of Tenant’s exercise of such
renewal right(s) (in the case of each such special renewal period),
Landlord and Tenant shall endeavor to reach agreement as to such Fair Market
Rental Value Per RSF; and


 


(C)           if Landlord and Tenant are
unable to reach a definitive agreement as to such Fair Market Rental Value Per
RSF within sixty (60) days following the Release Premises Election Date (in the
case of such initial term), or the date of Tenant’s exercise of such renewal
right(s) (in the case of each such special renewal period), then either
Landlord or Tenant, by written notice thereof to the other party, may cause
such Fair Market Rental Value Per RSF to be submitted for determination in
accordance the provisions of subsections (1) through (5) of
Section 1.4(e) hereof, which subsections shall be applied, mutatis mutandis, to the determination of such Fair Market
Rental Value Per RSF, and the rights and obligations of the parties in respect
thereof;


 


(3)           Additional Rent shall be
payable with respect to the Short-Term Former Release Space on the same basis
as the same is payable with respect to the balance of the Leased Premises, and,
accordingly, upon the date that the Short-Term Former Release Space is added to
the Leased Premises, Tenant’s Occupancy Percentage shall be adjusted based on
the addition of the Net Rentable Area of the Short-Term Former Release Space to
the Net Rentable Area of the Leased Premises; and


 


(4)           subject to the foregoing,
and except as otherwise expressly provided herein, all of the other then
executory terms and conditions of this Lease shall apply to the Short-Term
Former Release Space as fully and completely as the same apply to the balance
of the Leased Premises.


 


32

















 


ARTICLE II


RENTAL, OPERATING EXPENSES AND REAL ESTATE TAXES


 


2.1          Rental Payments


 


(a)           Beginning on the Commencement Date, and continuing
throughout the Term of this Lease, Tenant shall pay Annual Basic Rent and
Additional Rent with respect to the Leased Premises, all as applicable and as
required by and in conformity with the provisions of this Lease. Annual Basic
Rent shall be due and payable in equal monthly installments on the first day of
each calendar month during the Term, in advance. Tenant’s Operating Expense
Share and Tenant’s Tax Share shall be due and payable in accordance with Sections
2.2 and 2.3 hereof. Unless otherwise specified herein, any
Additional Rent (other than Tenant’s Operating Expense Share and Tenant’s Tax
Share, but including any Above Standard Services Rent) shall be payable thirty
(30) days following Landlord’s submission to Tenant of an invoice therefor.


 


(b)           If the Term commences on a day other than the first
day of a calendar month, or if the Term expires or terminates on other than the
last day of a calendar month, then all installments of Rent that are payable on
a monthly basis shall be prorated for the month in which the Term commences or
expires or terminates, as the case may be, and the installment or installments
so prorated for the month in which such Term commences or expires or
terminates, as the case may be, shall be paid in advance on the first day of
such month occurring within the Term. Said installments for such prorated month
or months shall be calculated by multiplying the full monthly installment by a
fraction, the numerator of which shall be the number of days of such month
occurring within the Term, and the denominator of which shall be the total
number of days in such month. If the Term commences on other than the first day
of a calendar year, or if the Term expires or terminates on other than the last
day of a calendar year, then all Rent payable on a calendar year basis shall be
prorated for such calendar year in which the Term commences or expires or
terminates, as the case may be, by multiplying such Rent by a fraction, the
numerator of which shall be the number of days of such calendar occurring
within the Term, and the denominator of which shall be the total number of days
in such calendar year. In such event, the foregoing calculation shall be made
as soon as is reasonably possible. Landlord and Tenant hereby agree that the
provisions of this Section 2.1(b) shall survive the expiration
or termination of this Lease.


 


(c)           Tenant agrees to pay all Rent as shall become due
from and payable by Tenant to Landlord under this Lease at the times and in the
manner provided in this Lease, without abatement (except as specifically
provided in this Lease), demand, offset (except as specifically provided in
this Lease) or counterclaim, at Landlord’s address as provided herein (or such
other address in the continental United States as may be designated in writing
by Landlord from time to time).  Tenant
shall have the right, at its option, to pay Rent by means of electronic funds
transfer to such account and depository institution as Landlord shall specify
from time to time upon Tenant’s request.


 


(d)           All past-due Rent owed by Tenant to Landlord under
this Lease shall bear interest from the due date thereof until payment is
received by Landlord at the Applicable Rate, but only if Tenant’s failure to
pay such Rent shall continue for a period of five (5) Business Days after
notice of such failure from Landlord, which notice shall refer to this Section 2.1(d) and
state, in 


 


33

















 


all capital letters (or other prominent display), that Tenant’s failure
to pay such Rent by such 5th Business Day shall result in interest accruing
thereon from the due date thereof. All past-due sums owed by Landlord to Tenant
pursuant to this Lease shall bear interest from the date due thereof until
payment is received by Tenant at the Applicable Rate, but only if Landlord’s
failure to pay such sums shall continue for a period of five (5) Business
Days after notice of such failure from Tenant, which notice shall refer to this
Section 2.1(d) and state, in all capital letters (or other
prominent display), that Landlord’s failure to pay such sums by such 5th
Business Day shall result in interest accruing thereon from the due date
thereof; provided, further, however, that, in any
case that Landlord receives a late charge as provided in Section 2.1(e) below,
interest shall only accrue from and after date that is thirty (30) days after
the due date thereof. Any payments made by Landlord or Tenant to the other
hereunder shall not be deemed a waiver by such party of any rights against the
other party.


 


(e)           Without limiting any other remedies for non-payment
of Rent (other than as expressly provided in Section 2.1(d) above),
(i) in the event any installment of Annual Basic Rent is not paid by
Tenant on or before the fifth (5th) day of the month for which it is due, and
such amount shall remain unpaid for more than five (5) Business Days after
Tenant’s receipt of written notice from Landlord that such amount is past due,
then Tenant shall pay to Landlord a late charge equal to one percent (1%) of
the past due installment of Annual Basic Rent, and (ii) in the event any
payment of Additional Rent is not paid by Tenant on or before the due date
thereof, and such amount shall remain unpaid for more than five (5) Business
Days after Tenant’s receipt of written notice from Landlord that such amount is
past due, then Tenant shall pay to Landlord a late charge equal to one percent
(1%) of the past due amount. Any notice from Landlord to Tenant of past-due
Rent under this Section 2.1(e), to be effective, must refer to this
Section 2.1(e) and state, in all capital letters (or other prominent
display), that Tenant’s failure to remit payment by the appointed date shall
result in the imposition of a late charge. Landlord may not send any such
notice of overdue payment to Tenant prior to the fifth (5th) day following the
date such payment is due, and if any such premature notice is sent, it shall be
deemed to have been sent on the fifth (5th) day following the date such payment
was due. Notwithstanding the foregoing, Tenant shall not be obligated to pay a
late charge on installments of Rent to the extent properly abated or set-off by
Tenant pursuant to an express right to do so as set forth in this Lease or to
the extent that Tenant’s payment is deficient by an amount that is less than or
equal to one (1%) percent of the total amount due (but the foregoing shall not
relieve Tenant of its obligation to promptly remit the amount of any such
deficiency). The late charge described herein is not intended as a penalty, but
is intended as liquidated damages to compensate Landlord for its additional
costs in processing the applicable late payment.


 


(f)            If, during any period that multiple items of Rent
are past-due, Landlord shall receive any payments from Tenant that are not
expressly attributed to any particular items of Rent and are not otherwise
evidently in payment of any particular items of Rent, then, and only in such
events, such payments shall be applied by Landlord in the following order (as
amongst then past-due items of Rent): (i) Annual Basic Rent, (ii) Tenant’s
Operating Expense Share, (iii) Tenant’s Tax Share, (iv) Above
Standard Services Rent, and (v) to any remaining items of Additional Rent.


 


34

















 


(g)           In those instances for which the right of offset is
expressly provided hereunder, Tenant shall be entitled to offset against Rent
next coming due, any amounts that are owed or payable by Landlord to Tenant
under or pursuant to the terms of this Lease.


 


2.2          Operating Expenses


 


(a)           For each calendar year occurring during the Term,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to Tenant’s
Occupancy Percentage of the Operating Expenses for such calendar year as
hereinafter provided (the amount so payable by Tenant being herein called “Tenant’s
Operating Expense Share”). However, (i) for the first calendar year
occurring within the Term (i.e., the calendar
year commencing on January 1, 2004 and ending on December 31, 2004),
Operating Expenses shall be deemed to consist only of amounts paid or incurred
on, or subsequent to, the Commencement Date, and (ii) for any calendar
year which ends later than the last day of the Term, the Tenant’s Operating
Expense Share shall be prorated to correspond to that portion of such calendar
year occurring within the Term.


 


(b)           Tenant shall pay Tenant’s Operating Expense Share
for each such calendar year pursuant to the following provisions:


 


(1)           For each calendar month
occurring during any such calendar year, Tenant, on the first (1st) day of such calendar
month, shall make a payment on account of Tenant’s Operating Expense Share
equal to one-twelfth (1/12th) of Landlord’s good-faith estimate of Tenant’s Operating Expense Share
for such calendar year as shown on the Final Budget for such calendar year
(such payments on account being herein called the “Monthly Estimated OE
Payments”). However, (A) Landlord, by notice to Tenant, may, at any
time and from time to time during any calendar year, reduce the amount of the
Monthly Estimated OE Payment for such calendar year, and (B) for the
balance of the first calendar year occurring within the Term (i.e., the period commencing on the
Commencement Date and ending on December 31, 2004), the Monthly Estimated
OE Payments shall be in the amount set forth on Exhibit C hereto,
and shall be payable only on the first (1st) day of each calendar month occurring after the
calendar month in which the Commencement Date occurs, and (C) for any
calendar year which ends later than the last day of the Term, the Monthly
Estimated OE Payments shall be made only for calendar months during such
calendar year occurring within the Term.


 


(2)           Any overpayment or
underpayment of Tenant’s Operating Expense Share for any calendar year based on
the Monthly Estimated OE Payments on account thereof shall be reconciled after
the end of such calendar year as provided in Section 2.2(f).


 


(c)           “Operating Expenses”, for each calendar year,
shall be determined in accordance with the provisions of the following Sections
2.2(c)(1), (2) and (3) below, sequentially
applied:


 


(1)           Subject to the provisions of
Section 2.2(c)(2) and (3) below, Operating
Expenses shall include all expenses and costs of every kind and nature incurred
by, or on behalf of, Landlord in connection with the operation, management,
repair and maintenance of the Property in respect of such calendar year,
consistent with accepted principles of sound management practices (determined
with reference to the operation, management, repair and maintenance of
Comparable Buildings), and which, except as otherwise expressly provided 


 


35

















 


herein, shall be allocable to such calendar
year in accordance with GAAP, on an accrual basis, including the expenses and
costs set forth in items (i) through (ix) below:


 


(i)            wages and salaries,
including payroll taxes, insurance and fringe benefits (collectively, “Personnel
Costs”), paid to employees of Landlord (or employees of the Property
Manager, employed on Landlord’s behalf) engaged in operation, management,
repair and maintenance of the Property;


 


(ii)           the costs of acquiring or
leasing tools and equipment, and the costs of purchasing materials and
supplies, to the extent used in the operation, management, repair and
maintenance of the Property;


 


(iii)          the costs of providing
utilities and services (including electricity, water, gas, steam, sewer,
cleaning and HVAC services) to the Leased Premises, other Leasable Areas and
the Common Areas;


 


(iv)          the costs of repairing,
replacing and/or maintaining the Base Building and/or the Common Areas
(together with any personal property of Landlord therein or thereon that
constitute part of the Property) whether such repair, replacement and/or
maintenance is structural or non-structural, ordinary or extraordinary,
foreseen or unforeseen;


 


(v)           the costs of all maintenance
and service agreements with respect to the Base Building and/or the Common
Areas, including access control service, window cleaning, mechanical,
electrical and plumbing service contracts, including elevator maintenance,
janitorial service, security, landscaping maintenance, garbage and waste
disposal;


 


(vi)          insurance premiums under
insurance with respect to the Property (including any personal property
included within the definition of Property hereunder) that is either (a) required
to be obtained by Landlord pursuant to this Lease or (b) customarily
obtained by the owners of Comparable Buildings, including, as applicable,
property and liability insurance, insurance against rental loss following fire,
condemnation or other insured occurrences at the Property;


 


(vii)         the costs of Remedial Work
performed to the Common Areas (other than Common Areas located on floors not
leased in whole or in part by Tenant);


 


(viii)        the management fees of the
Property Manager, but only up to (and not in excess of ) an annual fee equal to
two and one-half percent (2.5%) of Gross Revenues for the Property; provided,
however, that, during any Tenant Management Period, Operating Expenses
shall include (in addition to the management fees paid to Tenant pursuant to
the Tenant Management Agreement as set forth in Section 3.6(c)(2) hereof)
the amount of the asset management fees that Landlord is entitled to receive
pursuant to the provisions of Section 3.6(c)(4) hereof;


 


(ix)           if, and only if, the
Property Manager utilizes space in the Building as a management office for the
Property, which space would otherwise constitute part of the Leasable Areas,
then Operating Expenses shall be deemed to include an amount equal to the fair
market rental of such management office; provided, however, that
in no event shall Operating 


 


36

















 


Expenses include the fair
market rental of any such office to the extent used for development or leasing
purposes (as opposed to management purposes) (it being agreed if any such
office is used, in part, as a management office, and, in part, for development
or leasing purposes, then such fair market rental shall be allocated on a fair
and equitable basis between such uses); and


 


(x)            rent payable under an
Existing Overlease (exclusive of items of additional rent which reflect a
pass-through of (i) items included in Real Estate Taxes or (ii) items
otherwise included in Operating Expenses hereunder).


 


(2)           Anything contained in the
provisions of Section 2.2(c)(1) above notwithstanding,
Operating Expenses shall not include any of the following:


 


(A)          any Personnel Costs paid to (i) any
persons above the grade of building or property manager, and/or (ii) any
persons engaged in the development and/or leasing of the Property (it being
agreed that Personnel Costs paid to employees, above the grade of building
manager, who are, in part, engaged in the operation, management, repair and
maintenance of the Property, and, in part, engaged in the development and
leasing of the Property, shall be allocated on a fair and equitable basis
between such duties);


 


(B)           the costs of furnishing any
utilities or services to any Leasable Areas, unless such utility or service is
furnished by Landlord to the Leased Premises pursuant to this Lease as a
Building Standard Service and otherwise without any additional or separate charge
to Tenant;


 


(C)           the costs of repairing and
maintaining (as well as any costs of maintenance and service agreements with
respect to) any Leasable Areas, except as to
the components of the Base Building located within such Leasable Areas;


 


(D)          the costs of performing any
other work (including any work needed to effect compliance with Legal
Requirements) in or to any Leasable Areas (or any Common Areas on floors not
leased in whole or in part by Tenant), except as to
the components of the Base Building located within such Leasable Areas (or, as
the case may be, such Common Areas);


 


(E)           any costs of Remedial Work
performed to any Leasable Areas (or any Common Areas on floors not leased in
whole or in part by Tenant), even if
performed to the components of the Base Building located within such Leasable
Areas (or, as the case may be, such Common Areas);


 


(F)           any costs (including any
costs of repairs or other work) occasioned by fire, windstorm or other casualty
(except, subject to the other provisions hereof, to the extent of a
commercially reasonable deductible under an insurance policy maintained by
Landlord consistent with the provisions of this Lease);


 


(G)           any costs (including any
costs of repairs or other work) arising out of any condemnation or proceeding
relating thereto;


 


37

















 


(H)          marketing, advertising and
promotion costs relating to the Property and/or any other costs relating to the
development and/or leasing of the Property;


 


(I)            legal fees and disbursements,
regardless of the purpose (other than legal fees and disbursements incurred to
ascertain the need for, or scope of, Remedial Work or other work required to
comply with Legal Requirements, but only if, and to the extent, the costs of
such Remedial Work or other work is included within Operating Expenses
hereunder);


 


(J)            leasing and brokerage
commissions, and any costs and expenses incurred in connection with (i) the
negotiation or enforcement of any leases or prospective leases, and/or (ii) any
negotiations or disputes with tenants or other occupants of the Property or
prospective tenants or other occupants of the Property;


 


(K)          any costs of any lease
concessions or inducements, including workletters and work allowances, any
costs of obtaining any temporary or permanent certificates of occupancy for any
tenant or other occupant(s) and/or any other costs of renovating or
otherwise improving or decorating or redecorating any part of the Property
(including the Base Building and/or the Common Areas) for any particular tenant(s) or
other occupant(s) of the Property;


 


(L)           amortization (except as set
forth in Section 2.2(c)(3))and depreciation;


 


(M)         costs incurred due to the
violation by Landlord or any tenant or other person of the terms and conditions
of any lease or other agreement pertaining to the Property or of any Legal
Requirement;


 


(N)          fines or penalties incurred
due to the Property being in violation of Legal Requirements;


 


(O)          costs incurred due to acts
of any tenant or other occupant causing an increase in the rate of insurance on
the Building or its contents;


 


(P)           any amounts paid to any
Landlord Party or any Affiliate of Landlord for goods, services or other items,
to the extent such amounts exceed the amounts which would have been paid or
incurred for such goods, services or other items if the same had been furnished
by unrelated and unaffiliated third parties on a arms-length basis;


 


(Q)          management fees other than
those expressly included in Operating Expenses pursuant Section 2.2(c)(1)(viii) above,
as well as (i) any actual or deemed rental payment for a building
management office except as expressly included in Operating Expenses pursuant Section 2.2(c)(1)(ix) above,
and (ii) any costs or expenses for services that are normally performed by
a management company, without separate charge, when retained under a management
agreement providing for a management fee equal to two and one-half percent
(2-1/2%) of gross revenues for the property;


 


(R)           principal, points, fees and
interest on any Mortgage or other debt;


 


38

















 


(S)           rental or other charges
under any Overlease (other than rent payable under an Existing Overlease,
exclusive of items of additional rent which reflect a pass-through of (i) items
included in Real Estate Taxes or (ii) items otherwise included in
Operating Expenses hereunder);


 


(T)           general overhead and
administration expenses (including any costs and expenses relating to the
preparation of partnership, corporate or limited liability company tax or
disclosure statements, or other filings relating to the corporate, partnership
or other organization status of Landlord or any Landlord Party);


 


(U)          any compensation paid to
clerks, attendants or other persons in commercial concessions operated by Landlord;


 


(V)           any costs or expenses to the
extent Landlord is entitled to payment or reimbursement thereof from any tenant
or other occupant, insurer or other person (other than from a tenant or other
occupant through payment of its proportionate share of Operating Expenses);


 


(W)         any costs incurred in
installing, operating and maintaining any specialty facility, including an
observatory, broadcasting facilities (other than the Building’s music system,
life support and security system), child-care facilities, and, to the extent
not available to Tenant (or, if available to Tenant, Tenant nevertheless elects
not to, and does not, utilize the same), the costs of any luncheon club,
athletic or recreational club or facility;


 


(X)          any expenses in connection
with Separate Charge Parking Areas, except to the extent, if any, that such
expenses exceed all income in connection with such Separate Charge Parking
Areas;


 


(Y)           any fines, penalties, legal
judgments or settlements or causes of action by or against Landlord, any
Landlord Party or the Property; and


 


(Z)           Real Estate Taxes (as well
as any taxes or charges expressly excluded from the definition of Real Estate
Taxes, as set forth in Section 2.3(b) below), and any fines,
penalties or interest payable in connection therewith;


 


(AA)       any costs relating to any
sale, financing or re-financing relating of, or involving, the Property or any
interest in Landlord or any Landlord Party;


 


(BB)        costs of any insurance,
other than those expressly included in Operating Expenses pursuant Section 2.2(c)(1)(vii) above;


 


(CC)        any costs (i) attributable
to Landlord’s violation of one or more provisions of this Lease (including any
failure by Landlord to comply with the terms of Section 2.2(d) below),
(ii) attributable to Landlord’s default under other lease or other
contract relating to the Real Property, or (ii) attributable to Landlord’s
willful misconduct or negligence; and


 


39

















 


(DD)       any overhead and profit
associated with employees of Landlord (or employees of the Property Manager,
employed on Landlord’s behalf) who are engaged in the operation, management,
repair and maintenance of the Property.


 


(3)           Anything contained in the
provisions of Section 2.2(c)(1) or Section 2.2(c)(2) above
notwithstanding, Operating Expenses shall not include any costs for
alterations, repairs and/or replacements or any other costs that are considered
capital expenditures under GAAP (including capital improvements, capital
repairs, capital equipment and capital tools), except as expressly permitted
under the following provisions of this Section 2.2(c)(3). Operating
Expenses shall include the costs incurred by Landlord for any OE Includable
Capital Item, but only as
amortized over the useful life of such OE Includable Capital Item (determined
in accordance with GAAP), together with interest thereon at the Prime Rate (i.e., there shall be included in Operating
Expenses for each calendar year occurring within the period of the useful life
of such OE Includable Capital Item, an amount equal to the sum of all the
principal and interest payments which would have been payable during such
calendar year under a hypothetical loan (w) in an original principal
amount equal to the costs of such OE Includable Capital Item, (x) which
was funded on the first day of such useful life and has a term equal in length
thereto, (y) bearing interest at the Prime Rate (determined as of the
first day of such useful life), and (z) providing for level monthly
payments of principal and interest sufficient to fully amortize such loan over
its term). As used herein, the term “OE Includable Capital Item” shall
mean either of the following:


 


(A)          any Remedial Work to the
Common Areas (excluding Common Areas on floors not leased in whole or in part
by Tenant), but only if (i) Landlord’s failure to perform the Remedial
Work constitutes a violation of Legal Requirements, (ii) Landlord is
required to perform the Remedial Work by any notice of violation, order,
decree, permit, rule or regulation issued by any Governmental Authority,
or (iii) Landlord’s failure to perform the Remedial Work would endanger
the health, safety or welfare of any person on or about the Property; or


 


(B)           any other repair or
replacement of a capital nature, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, made by Landlord to the Base Building
or the Common Areas (excluding Common Areas on floors not leased in whole or in
part by Tenant) to the extent necessary to operate, repair and maintain the Property
in conformity with the requirements of this Lease and in accordance with the
accepted principles of sound property management (determined with reference to
the operation, repair and maintenance of Comparable Buildings), excluding,
however, any such repair or replacement which (aa) expands the Net Rentable
Area of the Property, (bb) except as otherwise expressly required by this
Lease, upgrades or improves the general character or quality of the Property,
or (cc) was not properly included within the Final Budget (and without a Tenant
Budget Objection being noted thereon with respect to the same, other than a
Tenant Budget Objection which was subsequently resolved in favor of Landlord).


 


(4)           If (i) any particular
item of cost incurred by, or on behalf of Landlord, is only attributable, in
part, to the operation, management, repair and maintenance of the Property,
and, in part, to the operation, management, repair and maintenance of one or
more other properties owned or operated by Landlord or any Affiliates of
Landlord, and (ii) such item of 


 


40

















 


cost is otherwise includable in “Operating
Expenses” (based on the foregoing Sections 2.2(c)(1), (2) and
(3), sequentially applied),
then item of cost shall be allocated between the Property and such other
property or properties, on a fair and equitable basis.


 


(5)           Whenever this Section 2.2(c) requires
that a particular item(s) of cost is to be allocated on a “fair and equitable basis”, the same shall
be deemed to require that such item(s) of cost be allocated reasonably, (i) using
an allocation method based on the comparative measure(s) that best reflect
the appropriate portion of such item(s) of cost that should be included
within “Operating Expenses” (e.g.,
time, square footage and/or other measure as appropriate), and that is
consistently applied from calendar year to calendar year, and (ii) otherwise
in a manner that does not result in a profit to Landlord, result in a
disproportionate burden to Tenant, or result in a disproportionate benefit to
any other person(s) or propert(ies).


 


(d)           Landlord shall use its reasonable efforts to make
payments on account of Operating Expenses in a time and manner to obtain the
appropriate discounts or rebates available. 
Landlord shall operate the Property in an efficient manner and exercise
reasonable efforts to minimize Operating Expenses consistent with maintaining
services at a level consistent with Comparable Buildings.


 


(e)           If, during any calendar year, the Property is less
than ninety five (95%) occupied, then appropriate adjustments shall be made (on
a consistent basis from calendar year to calendar year) to those components of
Operating Expenses which vary with Building occupancy, so as to calculate
Operating Expenses as though the Building had been ninety five percent (95%)
occupied during such calendar year. The percentage of Building occupancy during
any calendar year shall be determined by adding together the total leased space
on the first day of each month during such year and dividing by twelve (12).
The foregoing notwithstanding, for any calendar year, Landlord shall not
recover from Tenant and other the tenants and occupants of the Property,
collectively, an amount in excess of one hundred percent (100%) of the total Operating
Expenses with respect to the Property.


 


(f)            Within ninety (90) days after the end of each
calendar year during the Term or as soon thereafter as possible in the exercise
of reasonable diligence (but, in all events, not later than one hundred twenty
(120) days after the end of the calendar year), Landlord shall provide Tenant a
statement (the “Operating Expense Statement”) prepared by Landlord (i) showing
Operating Expenses for such calendar year broken down by component expenses, in
reasonable detail, (ii) calculating Tenant’s Operating Expense Share for
such calendar year, and (iii) reconciling the same with the Monthly
Estimated OE Payments for such calendar year. The Operating Expense Statement
shall be accompanied by a written certification of Landlord’s controller, or
other financial officer knowledgeable of the facts certified to therein,
certifying to Tenant that, to the best of his or her knowledge, the Operating
Expense Statement has been prepared in accordance with the definitions and
provisions pertaining to Operating Expenses contained in this Lease. If, for
any calendar year, the Operating Expense Statement indicates that Tenant’s
Operating Expense Share exceeds the Monthly Estimated OE Payments theretofore
made (any such excess being herein called an “OE Underpayment”), then
Tenant shall pay the amount thereof to Landlord within thirty (30) days after
delivery of the Operating Expense Statement. If, for any calendar year, the
Operating Expense Statement indicates that the Monthly Estimated OE Payments
theretofore made exceed the Tenant’s Operating Expense Share (any 


 


41

















 


such excess being herein called an “OE Overpayment”), then
Landlord, together with such Operating Expense Statement, shall pay the amount
thereof to Tenant; it being further agreed
that if OE Overpayment exceeds five percent (5%) of Tenant’s Operating Expense
Share, then Landlord, together with its aforesaid payment to Tenant in the
amount of the OE Overpayment, shall also pay to Tenant interest thereon,
computed at the Prime Rate, for the period from July 1st of calendar year to which the Operating
Expense Statement relates to the date that Landlord makes such aforesaid
payment.


 


(g)           (1)           If, for any calendar year, Landlord shall fail to
deliver an Operating Expense Statement on or prior to the date that is one
hundred twenty (120) days after the end of the calendar year, then (i) Landlord
shall still be obligated to deliver an Operating Expense Statement for such
calendar year, and (ii) Landlord, together with such Operating Expense
Statement, shall refund to Tenant the amount of such OE Overpayment, together
with interest on the amount thereof at the Applicable Rate (rather than at the
Prime Rate as provided in Section 2.2(f) above) for the period
from July 1st of calendar year to which the Operating
Expense Statement relates to the date that Landlord makes such refund.


 


(2)           After delivery of an
Operating Expense Statement for any calendar year, Landlord shall have the
right to amend the same, subject, however, to the following provisions of this Section 2.2(g)(2).
Notwithstanding any other provision of this Lease, Landlord shall be estopped
from amending, and hereby waives the right to amend, any Operating Expense
Statement not amended by Landlord within two (2) years after the end of
the calendar year to which said Operating Expense Statement applies, nor shall
Landlord have the right through any other procedures or mechanism to collect
any Operating Expense not included on the pertinent Operating Expense Statement
after the second (2nd) anniversary
of the last day of the calendar year to which said Operating Expense Statement
applies, unless before said second (2nd) anniversary Landlord has delivered to Tenant a
revised Operating Expense Statement reflecting such revised Operating Expense
(with a reasonably detailed explanation of the reasons for any such revision)
and made a written demand for payment of said Operating Expense.


 


(h)           Any Operating Expense Statement or other notice from
Landlord pursuant to this Section 2.2 shall be subject to Tenant’s
rights of review and audit set forth in Section 2.5 hereof. Pending
the resolution of any dispute, however, Tenant shall make payments in
accordance with said Operating Expense Statement or other notice.


 


2.3          Real Estate Taxes


 


(a)           Tenant shall pay to Landlord, as Additional Rent, an
amount equal to Tenant’s Occupancy Percentage of each component of Real Estate
Taxes as same becomes due and payable from time to time for each fiscal period
fixed by any taxing authority with respect to such component of Real Estate
Taxes (each a “Fiscal Period”) that occurs during the Term as
hereinafter provided (the amount so payable by Tenant for such component being
herein called “Tenant’s Tax Share”). In respect of any Fiscal Period
that begins prior to the first day of the Term, or ends later than the last day
of the Term, the Tenant’s Tax Share shall be prorated to correspond to that
portion of such Fiscal Period occurring within the Term. Tenant shall pay
Tenant’s Tax Share for each such Fiscal Period pursuant to the following
provisions:


 


42

















 


(1)           For the first Fiscal Period
occurring during the Term (i.e.,
the Fiscal Period within which the Commencement Date occurs), Tenant’s Tax
Share shall be paid on the Commencement Date (and, if applicable, adjusted)
pursuant to the apportionment provisions of the Purchase Agreement.


 


(2)           For each subsequent Fiscal
Period, upon receipt of any invoice or bill for such component of Real Estate
Taxes, Landlord shall deliver to Tenant a written statement (the “Tax
Statement”) which shall (A) set forth (i) the amount of such Real
Estate Tax component (determined consistent with definition of Real Estate
Taxes set forth below and the invoices in respect of such component theretofore
received by Landlord), (ii) Tenant’s Tax Share (consistent therewith, and
assuming the then applicable Tenant’s Occupancy Percentage), and (iii) the
due date of such component of Real Estate Taxes, and (B) include a copy of
such invoice or bill.  Tenant, within
thirty (30) days after its receipt such Tax Statement shall pay to Landlord the
amount of Tenant’s Tax Share indicated by the Tax Statement; provided, however,
that if such component has a due date that is more than sixty (60) days after
the rendering of such Tax Statement, then Tenant may defer the payment of
Tenant’s Tax Share until the date that is thirty (30) days prior to the due
date of such component of Real Estate Taxes.


 


(3)           If, after the delivery of
any Tax Statement for any component of Real Estate Taxes for any Fiscal Period,
there shall occur any decrease in such component of Real Estate Taxes in
respect of such Fiscal Period (including a decrease therein resulting from any
net refund of such component of Real Estate Taxes), then Landlord shall
promptly (and, in all events, within thirty (30) days after such decrease shall
become effective) furnish to Tenant a revised Tax Statement for such component
of Real Estate Taxes for such Fiscal Period. If any revised Tax Statement shall
set forth a Tenant’s Tax Share that is less than that set forth on the previous
Tax Statement, then Landlord, together with its delivery of the revised Tax
Statement, shall pay to Tenant the amount of the difference between the Tenant’s
Tax Share set forth on the previous Tax Statement and the Tenant’s Tax Share
set forth on the revised Tax Statement.


 


(4)           If, after the delivery of a
Tax Statement for any component of Real Estate Taxes for any Fiscal Period,
there shall occur any increase in the Real Estate Taxes in respect of such
Fiscal Period (including any increase therein resulting from an assessment or
rate adjustment), then, and in each such case, Landlord may furnish to Tenant a
revised Tax Statement for such component of Real Estate Taxes for such Fiscal
Period. If any revised Tax Statement shall set forth a Tenant’s Tax Share that
is greater than that set forth on the previous Tax Statement, then Tenant,
within thirty (30) days after the delivery of such revised Tax Statement, shall
pay to Landlord the difference between the Tenant’s Tax Share set forth on the
revised Tax Statement and the Tenant’s Tax Share set forth on the previous Tax
Statement.


 


(b)           “Real Estate Taxes” shall mean all real estate
taxes, assessments and other governmental levies and charges, general and
special, ordinary or extraordinary, of any kind and nature (including any
interest on such assessments whenever the same are permitted to be paid in
installments) which may presently or hereafter be imposed, levied or assessed
by any lawful taxing authorities upon or against the whole, or any part, of the
Property, including taxes imposed on (i) the gross rents or gross receipts
(but not the net income) of the Property and (ii) personal property of
Landlord which comprises part of the Property, but only to the extent that the
same would be payable if the Property were the only property of Landlord.  If at any time 


 


43

















 


during the Term the present system of ad valorem taxation of real
property is changed or supplemented so that in lieu of, or in addition to, the
ad valorem tax on real property, there shall be assessed on Landlord or the
Property any new tax which, by its nature, is imposed in substitution for, or
in lieu of, the whole or any part of a tax which would otherwise have
constituted a Real Estate Tax, such new tax shall be included within the term Real Estate Taxes, but only to the extent that the same
would be payable if the Property were the only property of Landlord. Such new
taxes may include, but shall not be limited to, a capital levy or other tax on
the gross rents or gross receipts (but not the net income) of the Property or
similar tax, assessment, levy or charge measured by or based, in whole or in
part, upon any such gross rents or gross receipts.  Notwithstanding anything herein-above
contained to the contrary, Real Estate Taxes
shall never include (i) any transfer, sales, excise or similar taxes (e.g., realty transfer taxes, sales taxes, recording taxes,
etc.), (ii) taxes and assessments imposed, levied or assessed upon or
against any personal property of tenants or other occupants of the Building (or
any other personal property not included within the term Property
hereunder), (iii) federal, state and local taxes on income, (iv) death
taxes (including estate and inheritance taxes), (v) franchise taxes and
the like (including unincorporated business taxes, etc.), (vi) any other
taxes imposed or measured on or by the net income of Landlord or the net income
from the operation of the Property, (vii) any other taxes attributable to
the corporate, partnership or other organization status of Landlord or any
Landlord Party (including filing fees, etc.), or (viii) any other taxes
imposed in connection with any (direct or indirect) change of ownership of the
Property. In addition, and notwithstanding anything herein-above contained to
the contrary: (1) Real Estate Taxes
shall be deemed reduced by the amount thereof, if any, that is attributable to
the value of leasehold improvements of any other tenant of the Building
hereafter made (or leasehold improvements already existing and separately
charged as an expense to be paid by such tenant) to the extent the same exceed
the value of the other leasehold improvements generally found in the Building; (2) any
Real Estate Taxes for which a discount
is available for early payment shall be deemed reduced by the greatest possible
discount available to Landlord for such early payment, regardless of when such
taxes are actually paid and regardless of whether Landlord actually obtains a
discount for early payment; (3) Real Estate Taxes,
for any Fiscal Period, shall include only the amounts actually due and payable
during such Fiscal Period (determined net of any abatements, credits or offsets
with respect thereto); and (4) in the case of Real Estate
Taxes that may be paid in installments, only the amount of each
installment due and payable during a Fiscal Period shall be included in Real Estate Taxes for such Fiscal Period.


 


(c)           The rights and obligations of the parties with
respect to the contest or appeal of the validity or amount of Real Estate Taxes
by appropriate proceedings (any such contest or appeal being herein called a “RE
Tax Contest”) shall be as follows:


 


(1)           Landlord, for any Fiscal
Period, may, on its own initiative, bring a RE Tax Contest (any such RE Tax
Contest being herein called a “Landlord Initiated Contest”). For each
applicable Fiscal Period, Landlord shall advise Tenant, in writing, as to
whether it will elect to bring a Landlord Initiated Contest sufficiently in
advance of the applicable deadlines for bringing RE Tax Contests such that
Tenant can effectively exercise, or refrain from exercising, its rights under
the following provisions of Section 2.3(c)(2).  If Landlord shall elect to bring a Landlord
Initiated Contest, then Landlord shall timely and diligently bring and
prosecute such Landlord Initiated Contest, and keep Tenant advised of the
progress thereof. The costs of any Landlord Initiated Contest shall, subject to
the provisions of Section 2.3(c)(4), be borne by Landlord.


 


44

















 


(2)           If, for any Fiscal Period, (i) Landlord
shall elect not to bring a Landlord Initiated Contest, and (ii) Tenant’s
Occupancy Percentage is at least twenty-five percent (25%), then Tenant may, by
notice to Landlord, require that Landlord bring a RE Tax Contest for such
Fiscal Period (any such RE Tax Contest being herein called a “Tenant
Required Contest”). If Tenant shall require Landlord to bring a Tenant
Required Contest, then Landlord shall timely and diligently bring and prosecute
such Tenant Required Contest, and keep Tenant advised of the progress thereof.
The costs of any Tenant Required Contest shall, subject to the provisions of Section 2.3(c)(4),
be borne by Tenant.


 


(3)           If, for any calendar year,
Tenant’s Occupancy Percentage is at least ninety percent (90%), then Tenant
may, by notice to Landlord, require Landlord to permit Tenant the sole and
exclusive right to bring a RE Tax Contest for such Fiscal Period (any such RE
Tax Contest being herein called a “Tenant Controlled Contest”). For each
applicable Fiscal Period, Tenant shall advise Landlord, in writing, as to
whether it will elect to require Landlord to permit Tenant the sole and
exclusive right to bring a RE Tax Contest for such Fiscal Period sufficiently
in advance of the applicable deadlines for bringing RE Tax Contests such that
Landlord can effectively exercise, or refrain from exercising, its rights under
the provisions of Section 2.3(c)(1). If Tenant shall require
Landlord to permit Tenant to bring a Tenant Controlled Contest, then Tenant
shall timely and diligently bring and prosecute such Tenant Controlled Contest,
and keep Landlord advised of the progress thereof. Tenant may bring any Tenant
Controlled Contest in Landlord’s name; and Landlord shall cooperate with Tenant
in bringing and prosecuting such Tenant Controlled Contest. The costs of any
Tenant Controlled Contest shall, subject to the provisions of Section 2.3(c)(4),
be borne by Tenant.


 


(4)           If, for any Fiscal Period,
any RE Tax Contest shall result in a reduction in Real Estate Taxes for such
calendar year, then, after the final determination of such RE Tax Contest, the
aggregate refund monies received thereon (including any amounts paid in respect
of interest thereon) shall applied as follows: (i) first, the same may be
retained by or paid to the party or parties bearing the costs of such RE Tax
Contest, up to (but not in excess of) the reasonable out-of-pocket costs
incurred by such party or parties (and, as among the parties, if applicable, in
the same proportion as they bear such costs); and (ii) second, the balance
thereof, shall be deemed a “net refund” of Real Estate Taxes for such Fiscal
Period. Within thirty (30) days after such final determination, Landlord shall
issue a revised Tax Statement as required under Section 2.3(a)(4) above
reflecting Real Estate Taxes after such net refund.


 


(5)           During the pendency of any
RE Tax Contest, Tenant shall continue to make payments of Additional Rent due
pursuant to the foregoing provisions of this Section 2.3.


 


(d)           Any Tax Statement or other notice from Landlord
pursuant to this Section 2.3 shall be subject to Tenant’s rights of
review and audit set forth in Section 2.5.  Pending the resolution of any dispute,
however, Tenant shall make payments in accordance with said Tax Statement or
other notice.


 


2.4          Budget


 


(a)           On or before June 1st of each calendar year
during the Term, Landlord shall deliver to Tenant for Tenant’s review and
comment, a projected Budget for the next succeeding


 


45














 


calendar year, except that (A) Landlord
shall have no obligation to deliver a projected Budget for balance of the 2004
calendar year (i.e., the period commencing on
the Commencement Date and ending on December 31, 2004), and (B) the
projected Budget for calendar year 2005 need only be delivered by Landlord to
Tenant on or before the date that is ninety (90) days after the Commencement
Date. The term “Budget”, for any calendar year (as to each Budget, the “Budget
Year”), shall mean a budget for the Property for such Budget Year, showing (i) estimates,
in reasonable detail, of Operating Expenses, Tenant’s Operating Expense Share
and Real Estate Taxes for such Budget Year and Tenant’s Tax Share of all
components of Real Estate Taxes for all Fiscal Periods occurring within such
Budget Year, (ii) the estimated amount for each major category of expense
that is expected to be included in Operating Expenses for the Property for such
Budget Year, including any items that constitute OE Includable Capital Items, (iii) without
limiting the foregoing, an itemized estimate for each contemplated repair
and/or replacement to any major component of the Base Building which Landlord
believes will constitute an OE Includable Capital Item (each, a “Contemplated
OE Includable Capital Item”) (clearly distinguishing any such repair and/or
replacement item, on the one hand, from ordinary repairs and maintenance, on
the other), together with the resulting amortized amounts which would be
included in Operating Expenses during the Term under Section 2.2(c)(3) hereof
based on such Contemplated OE Includable Capital Item, assuming the same were
made in accordance with such itemized estimate and properly constituted an OE
Includable Capital Item, (iv) the estimated rates to be charged by Landlord
for Above Standard Services (including Required Above Standard Services and
other Above Standard Services then available to Tenant) for such Budget Year,
and (v) the actual amounts for all such items for the calendar year prior
to the Budget Year. It is understood and agreed by Landlord and Tenant that
each Budget shall set forth amounts for Operating Expenses and Real Estate
Taxes that are estimated, on a reasonable good faith basis, taking into
consideration, among other things, the actual Operating Expenses and Real
Estate Taxes for the calendar year prior to the Budget Year, actual known
prospective increases therein and a good faith estimate of the rate of other
increases therein likely to occur prior to, or during, the Budget Year, and a
good faith estimate for contingencies for the Budget Year, which estimate shall
be no more than five (5%) percent of the amount of the Final Budget.


 


(b)           Tenant, after its receipt of the proposed
Budget, shall have the right (but not the obligation) to object to any portion
of the proposed Budget which fails to reflect the provisions of this Lease
(including the inclusion in Operating Expenses or Real Estate Taxes of amounts
not permitted to be so included hereunder) (any objection by Tenant pursuant to
the provisions of this sentence being herein called a “Tenant Budget
Objection”). If Tenant elects to raise Tenant Budget Objections, then it
shall do so by notice to Landlord, which notice shall set forth the Tenant
Budget Objections, in reasonable detail, stating the basis for each Tenant
Budget Objection. Notwithstanding the foregoing, Tenant may raise the following
objections, as Tenant Budget Objections, only if Tenant’s Occupancy Percentage
is greater than twenty-five percent (25%): (1) an objection to Landlord’s
decision to make a Contemplated OE Includable Capital Item with respect to any
major component of the Base Building, as opposed to performing ordinary repairs
and/or maintenance with respect to such major component of the Base Building;
and (2) an objection to Landlord’s decision to perform ordinary repairs
and/or maintenance with respect to such major component of the Base Building,
as opposed to making a Contemplated OE Includable Capital Item with respect to
such major component of the Base Building; provided, however,
that clause (1) of this sentence shall never be deemed to preclude
(regardless of Tenant’s Occupancy Percentage) a Tenant Budget Objection
relating to whether a particular 


 


46

















 


Contemplated OE Includable Capital Item, set
forth in Landlord’s proposed Budget, is in fact an OE Includable Capital Item.


 


(c)           Landlord and Tenant shall negotiate in good
faith to resolve all Tenant Budget Objections with respect to the proposed
Budget. If the parties shall be unsuccessful in their efforts to resolve all
Tenant Budget Objections, then, subject to the provisions of the next
succeeding sentence, all disputes with respect Tenant Budget Objections shall
be resolved in accordance with the provisions of Article XII of
this Lease. Notwithstanding the foregoing, and without regard to any
arbitration result, it is agreed that (i) with respect to any Tenant
Budget Objection described in Section 2.4(b)(1) above,
Landlord shall have the right to make a Contemplated OE Includable Capital Item
with respect to any major component of the Base Building, as opposed to
performing ordinary repairs and/or maintenance with respect to such major
component of the Base Building, if Landlord establishes, by certification of a
qualified engineer reasonably acceptable to Tenant, that such component of the
Base Building is beyond its useful life and that continued repair or
maintenance (as opposed to replacement) is not commercially practicable (it
being agreed that in any such case that Landlord, pursuant to this clause (i),
establishes the right to make a Contemplated OE Includable Capital Item with
respect to any major component of the Base Building, Tenant may still object to
the characterization of such item as an OE Includable Capital Item for purposes
of Section 2.2(c)(3) hereof, but only if the same otherwise
fails to meet one or more of the requirements of an OE Includable Capital Item
as delineated in such Section 2.2(c)(3) hereof), and (ii) with
respect to any Tenant Budget Objection described in Section 2.4(b)(2) above,
Tenant shall have the right to require Landlord to make a Contemplated OE
Includable Capital Item with respect to any major component of the Base
Building, as opposed to performing ordinary repairs and/or maintenance with
respect to such major component of the Base Building, if Tenant establishes, by
certification of a qualified engineer reasonably acceptable to Landlord, that
such component of the Base Building is beyond its useful life and that continued
repair or maintenance (as opposed to replacement) is not commercially
practicable (it being agreed that in any such case that if Tenant, pursuant to
this clause (ii), requires Landlord to make a Contemplated OE Includable
Capital Item with respect to any major component of the Base Building, Tenant
may not object to the characterization of such item as an OE Includable Capital
Item for purposes of Section 2.2(c)(3) hereof).


 


(d)           Within thirty (30) days after the resolution
of all Tenant Budget Objections (by agreement of the parties or otherwise as
contemplated by Section 2.4(c) above), Landlord shall prepare
and deliver to Tenant the final Budget for the Budget Year, which final Budget
shall reflect the resolution of all Tenant Budget Objections (such final
Budget, for any Budget Year, being herein called the “Final Budget”).
Notwithstanding the foregoing, even if all of the Tenant Budget Objections have
not theretofore been resolved, Landlord, on or prior to the date that is
forty-five (45) days prior to the first (1st) day of the Budget Year, shall nevertheless issue a
Final Budget; it being agreed, in such event, that all unresolved Tenant Budget
Objections shall be duly noted thereon.


 


(e)           Notwithstanding anything to the contrary
contained in this Section 2.4, Tenant’s right to receive Budgets
under this Section 2.4, and to elect to raise Tenant Budget
Objections with respect thereto, are rights in addition to (and are not
intended in any manner to limit) the rights of Tenant hereunder; and, without
limiting the generality thereof, neither (i) the issuance of any proposed
Budget, (ii) Tenant’s failure to raise (or its election not to raise)
objections (or 


 


47

















 


its election to raise certain objections and
not others) with respect to any proposed Budget, nor (iii) the issuance of
a Final Budget, shall, in any case, be deemed either (x) Tenant’s
agreement that any item set forth in such Budget is either properly includable
within “Operating Expense” or “Real Estate Taxes”, as the case may be, or
otherwise an item by which it is bound, or (y) a waiver by Tenant of any
of its rights under any provisions of this Lease, including the provisions of Section 2.5
hereof; provided, however, that (I) all Contemplated OE Includable
Capital Items that are included within the Final Budget without a Tenant Budget
Objection noted thereon shall be deemed an OE Includable Capital Item (but in
no event shall the amounts to be included Operating Expenses based thereon, be
deemed approved or accepted), and (II) all resolutions of Tenant Budget
Objections (by agreement of the parties or otherwise as contemplated by Section 2.4(c) above)
shall be binding upon both Landlord and Tenant.


 


(f)            During any Tenant Management Period, Tenant
shall be responsible for preparing the Budget and Final Budget and the
foregoing provisions of this Section 2.4 shall apply mutatis mutandis, provided that: (i) references
therein to “Landlord” shall be deemed to refer to Tenant, (ii) references
therein to “Tenant” shall be deemed to refer to Landlord, (iii) references
therein to “Tenant Budget Objection” shall be deemed to refer to a “Landlord
Budget Objection”, which term shall mean any objection by Landlord to Budget
pursuant to the provisions of the first sentence of Section 2.4(b),
(iv) the last sentence of Section 2.4(b) shall be deemed
deleted, (v) the last parenthetical in Section 2.4(c) shall
be deemed deleted, and (vi) Section 2.4(e) shall be
deemed deleted.


 


2.5                                 Audit
Rights


 


(a)           Tenant, at Tenant’s sole cost and expense,
shall have the right, to be exercised by notice given to Landlord (each, an “Audit
Notice”) within two (2) years after receipt of an Operating Expense
Statement, Tax Statement or other invoice, to audit and/or inspect (I) in
the case of an Operating Expense Statement, Landlord’s books and records
pertaining to Operating Expenses for the calendar year for which such Operating
Statement is issued (and/or any other items or matters that impact the amount
of Tenant’s Operating Expense Share for such calendar year), (II) in the
case of a Tax Statement, Landlord’s books and records pertaining to Real Estate
Taxes for the calendar year for which such Tax Statement is issued (and/or any
other items or matters that impact the amount of Tenant’s Tax Share for such
calendar year), (III) in the case of any OE Includable Capital Item(s),
copies of all specifications, contracts and invoices pertaining to the OE
Includable Capital Item(s), and (IV) in the case of any other invoice,
Landlord’s books and records pertaining to any and all sums stated to be due
and owing from Tenant pursuant to such invoice (Landlord’s books and records
described in clauses (I), (II), (III) or (IV) of this sentence, as
applicable, are herein called the “Relevant Books and Records”); provided, that (1) such audit and/or inspection (i) commences
within ninety (90) days after the later of (x) the date of the Audit
Notice, and (y) the date that Landlord makes all the Relevant Books and
Records available to Tenant consistent with the provisions of Section 2.5(b) below,
and (ii) thereafter proceeds reasonably to conclusion, (2) Tenant may
audit any single calendar year only once in response to any particular
Operating Expense Statement, Tax Statement or other invoice (it being understood
that any amended Operating Expense Statement, revised Tax Statement or other
revised or re-submitted invoice shall be deemed a separate Operating Expense
Statement, Tax Statement or invoice, as the case may be, for purposes of this Section 2.5).
Tenant may conduct any audit or inspection of the Relevant Books and Records
with Tenant’s own employees, or 


 


48

















 


through an accountant or other agent selected
by Tenant, or both in combination. With respect any such audit or inspection,
Tenant agrees to treat, and, if applicable, use all reasonable efforts to cause
its accountant or other agent, to treat, all information regarding the Relevant
Books and Records (other than information within the public domain) as
confidential; provided, however, that nothing in this sentence
shall prevent any disclosure in any dispute regarding the Relevant Books and
Records, or otherwise in any court or arbitration proceeding under this Lease,
or otherwise as required by any court or other Governmental Authority.


 


(b)           Landlord shall cause all of its books and
records which are (or may become) Relevant Books and Records to be maintained
in a complete manner, and one which will permit any audit or inspection thereof
to proceed reasonably to conclusion. Without limiting the foregoing in any
manner, the Relevant Books and Records with respect to Operating Expenses, for
any calendar year, shall include all records and other documentation needed to
ascertain that any allocation made by Landlord with respect to the costs
described in Section 2.2(c)(5) hereof conforms to the
requirements of Section 2.2(c)(5) hereof (including, as
applicable, records and documentation relating to Operating Expenses for prior
calendar years, and records and documentation relating to other properties
owned or operated by Landlord and/or Affiliates of Landlord).


 


(c)           Promptly after its receipt of an Audit
Notice, and until the pertinent audit or inspection is completed, Landlord
shall make all the Relevant Books and Records continuously available to Tenant
or Tenant’s agents at one (1) single business location (which business
location shall be either (i) the Property, or (ii) Landlord’s
headquarters or main office, which shall be located in the continental United
States) during Building Operating Hours (until such audit or inspection is
completed). Throughout Tenant’s conduct of any such audit or inspection,
Landlord agrees to cooperate in good faith therewith. As part of its conduct of
any such audit or inspection, Tenant or Tenant’s agents may make and retain
copies of the whole or any portion of the Relevant Books and Records.


 


(d)           If Tenant’s audit or inspection of the
Relevant Books and Records indicates that Landlord’s calculation of Tenant’s
Operating Expense Share for any calendar year, Tenant’s Tax Share for any
calendar year, or any other invoiced component of Additional Rent, was
overstated and resulted in Tenant overpaying the pertinent item of Additional
Rent, or Landlord has included costs in the calculation of Tenant’s Operating
Expense Share for any calendar year that are not documented by Landlord, then (i) Landlord,
within thirty (30) days after the completion of such audit and/or inspection,
shall refund to Tenant the amount of such overpayment, together with interest
on the amount thereof at the Applicable Rate for the period from date Tenant
made such payment to the date that Landlord makes such refund, and (ii) if
such overpayment exceeds four percent (4%) of the actual amount of the pertinent
item of Additional Rent, then, in addition, Landlord, within thirty (30) days
after Tenant’s request, shall pay to Tenant an amount equal to Tenant’s
reasonable out-of-pocket costs in conducting such audit or inspection.


 


(e)           In any case, should Landlord disagree with
the results of Tenant’s audit or inspection, Landlord and Tenant shall refer
the matter to a mutually acceptable independent certified public accountant,
who shall work in good faith with Landlord and Tenant to resolve the
discrepancy. The fees and costs of such independent accountant to which such
dispute is referred shall be borne by the unsuccessful party and shall be
shared pro rata to the extent each party is 


 


49

















 


unsuccessful as determined by such
independent certified public accountant, whose decision shall be final and
binding.


 


ARTICLE III

BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT


 


3.1                                 Building
Standard and Above Standard Services


 


During the Term, Landlord shall furnish the
following services to Tenant:


 


(a)           Building Standard Services.  Landlord shall furnish the following services
to Tenant throughout the Term (“Building Standard Services”), all of
which shall comply with and shall be subject to Legal Requirements and, except
as expressly provided to the contrary in this Section 3.1(a), shall
be equal to or exceed services customarily provided for Comparable Buildings:


 


(i)            At all times, hot (i.e., thermostat set in the range of 105° to 110° Fahrenheit
for comfort and energy conservation purposes but with the capability to produce
hot water for specified purposes at 140° Fahrenheit if requested by Tenant) and
cold domestic water in, and for, (x) all restrooms, drinking fountains,
kitchen and pantry areas (and other areas or facilities requiring domestic
water) within the Leased Premises, and (y) all restrooms, drinking
fountains, kitchen and pantry areas (and other areas or facilities requiring
domestic water) located in Common Areas.


 


(ii)           During Building
Operating Hours, HVAC service to the Leased Premises and the Common Areas of
the Building sufficient to maintain temperatures that are reasonably required
for comfortable use and occupancy thereof, in conformity with the standards and
specification in effect on the Commencement Date (such HVAC service, as to the
Leased Premises, being herein called “Building System HVAC Service”).


 


(iii)          Electric lighting
service for the Common Areas, including the Parking Areas, and, as more
particularly set forth in subsection (vi) below, the Leased Premises, all
in conformity with the practices for the Property on the Commencement Date.


 


(iv)          Janitorial service to
the Leased Premises and the Common Areas in conformity with the janitorial
specifications for the Property as set forth in Exhibit C hereto; provided,
however, that (A) Tenant, from time to time, shall have the right,
upon sixty (60) days written notice to Landlord, to elect to separately
contract for janitorial services for the Leased Premises, and, if Tenant makes
such election, then, during all such periods that such election is in effect,
Operating Expenses shall exclude the cost of providing janitorial services to
the Leased Premises and all other Leasable Areas (and the calculation of the
Monthly Estimated OE Payments and Tenant’s Operating Expense Share shall be
adjusted accordingly), and (B) during any Tenant Management Period,
Tenant, in addition, shall, from time to time, have the right, upon sixty (60)
days written notice to Landlord, to take over responsibility for providing
janitorial services for the Property, and, if Tenant makes such election, then,
during all such periods for which such election is in effect, (I) Operating
Expenses shall exclude the cost of providing janitorial services to the
Property (and the calculation of the Monthly Estimated OE Payments and Tenant’s
Operating Expense Share shall be adjusted accordingly), and (II) 


 


50

















 


Landlord shall
reimburse Tenant an amount equal to the sum of (aa) the reasonable costs
incurred by Tenant in providing such janitorial services to the Leasable Areas
outside the Premises, plus (bb) the excess of (x) the
reasonable costs incurred by Tenant in providing such janitorial services to
the Common Areas, over (y) Tenant’s Occupancy
Percentage of such reasonable costs.


 


(v)           Access control services
for the Building providing Tenant and its employees access to the Leased
Premises and the Common Areas at all times; it being understood that Tenant
shall have the right, at Tenant’s sole cost and expense, to install and operate
such additional access control systems as it shall determine desirable for the
purpose of limiting access to or within the Leased Premises, so long as any
additional access control systems installed by Tenant are monitored and
maintained by Tenant at Tenant’s sole expense.


 


(vi)          At all times,
electricity to Tenant (for use within the Leased Premises and in connection
with any Tenant Property located outside of the Leased Premises that consumes
electricity), it being agreed that (A) dedicated electrical capacity shall
be available to Tenant therefor, at all times, in an amount not less than the
dedicated electrical capacity available therefor on the Commencement Date (such
dedicated electrical capacity being herein called “Tenant’s Dedicated
Electrical Capacity”) (it being agreed that Tenant’s Dedicated Electrical
Capacity shall not be deemed to include any electrical capacity available for
any Common Areas and/or the operation of any Building Systems), and (B) such
electricity shall be made available to Tenant at, and transformed to, a panel
box(es) located in the core of each floor of the Building on which the Leased
Premises are located (and/or such other panel box(es) servicing the Leased
Premises on the Commencement Date). Without limiting the foregoing, Landlord
shall have the right, but not the obligation, at Landlord’s sole cost and
expense, to install and operate one or more electrical submeters to separately
measure Tenant’s electrical consumption with respect to the Leased Premises and
any Tenant Property located outside of the Leased Premises, but in no event any
electrical consumption attributable to the Common Areas or the operation of any
Building Systems (such submeter(s) being herein collectively called the “Premises
Submeter”), but only if Landlord likewise installs one or more electrical
submeters to separately measure the electrical consumption of all other tenants
or occupants of the Property (which, in all events, shall include all
electrical demand and consumption with respect to all Leasable Areas, other
than the Leased Premises, even if vacant, and with respect to all property
belonging to any such other tenants or occupants located outside of Leasable
Areas) (such submeter(s) being herein called the “Other Leasable Area
Submeters”). If Landlord installs and operates both the Premises Submeters
and the Other Leasable Area Submeters (collectively, the “Leasable Area
Submeters”) pursuant to the preceding sentence, then, during all periods
that all the Leasable Area Submeters are operational, (I) Operating
Expenses shall not include any costs of any electricity, the consumption of
which is being measured (or which is required to be measured) by any of the
Leasable Area Submeters (and the calculation of the Monthly Estimated OE
Payments and Tenant’s Operating Expense Share shall be adjusted accordingly),
and (II) Tenant, in respect of Tenant’s electrical usage, shall pay to
Landlord, as Additional Rent, for any billing period, within thirty (30) days
following Tenant’s receipt of Landlord’s billing statement therefor (each, a “Landlord
Electrical Invoice”), an amount equal to (a) the product of (x) Tenant’s
consumption of electricity, as measured, in KWHs, by the Premises Submeter for
such billing period, multiplied by (y) Landlord’s
Average Cost Per KWH for such billing period, plus (b) if applicable, any
sales tax or other charges payable, by law, on the amount described in clause (a) 


 


51

















 


of this
sentence. As used herein, the term “Landlord’s Average Cost Per KWH”,
for any billing period, shall mean an amount equal to the quotient obtained by dividing (1) the total dollar amount charged to
Landlord by the electric utility company serving the Property (the “Electric
Utility Company”) for all electricity furnished to the Property for such
billing period, as shown on the Electric Utility Company’s bill therefor
(excluding, however, the amount of any sales tax or other charges payable, by
law, which may be payable pursuant to such bill), by
(2) the total number of kilowatt hours (“KWHs”) of electricity
consumed by or in the Property during such billing period, as shown on the
Electric Utility Company’s bill therefor. Landlord’s Electrical Invoice, for
any billing period, shall (aa) separately set forth (xx) Tenant’s consumption
of electricity, as measured, in KWHs, by the Premises Submeter for such billing
period, (yy) Landlord’s Average Cost Per KWH for such billing period, and a
reasonably detailed computation thereof, and (zz) the sales tax or other
charges payable, by law, that are payable by Tenant pursuant to such invoice
(and Landlord covenants to remit to the appropriate governmental agency, all
such sales tax and other charges paid by Tenant pursuant to such invoice), and
(bb) be accompanied by the Electric Utility Company’s bill for such billing
period. Notwithstanding the foregoing, during any Tenant Management Period,
Tenant shall, from time to time, have the right, upon sixty (60) days written
notice to Landlord, to take over responsibility for making payments directly to
the Electric Utility Company providing the electric service to the Property,
and, if Tenant makes such election, then, during all such periods for which
such election is in effect, (I) Operating Expenses shall exclude the cost
of providing electricity (and the calculation of the Monthly Estimated OE
Payments and Tenant’s Operating Expense Share shall be adjusted accordingly),
and (II) Landlord shall reimburse Tenant an amount equal to the excess of (x) the reasonable costs incurred by Tenant
in providing electricity, over (y) Tenant’s
Occupancy Percentage of such reasonable costs. In addition, Tenant shall
indemnify and hold harmless Landlord from and against all third party claims
(including claims by other tenants or occupants of the Property) arising out of
or relating to any failure or alleged failure to adequately provide the
electricity during such periods for which such election is in effect.


 


(vii)         Security for the Property
(including the Building, the Leasable Areas therein and the Common Areas,
including the Parking Areas) and/or for the enforcement and control of Parking
Areas, all substantially similar to the security services existing on the
Commencement Date (such security being herein called the “Property Security”);
it being agreed that any additional
security (above the Property Security) required for the Leased Premises in
order to comply with Legal Requirements in effect from time to time pertaining
to banking security systems, devices, services, equipment and procedures, or as
otherwise deemed necessary by Tenant, shall be the sole responsibility of
Tenant, and not part of the Property Security, and Landlord shall have no
responsibility or liability therefor. Notwithstanding the foregoing, during any
Tenant Management Period, Tenant shall, from time to time, have the right, upon
sixty (60) days written notice to Landlord, to take over responsibility for
providing the Property Security, and, if Tenant makes such election, then,
during all such periods for which such election is in effect, (I) Operating
Expenses shall exclude the cost of providing the Property Security (and the
calculation of the Monthly Estimated OE Payments and Tenant’s Operating Expense
Share shall be adjusted accordingly), and (II) Landlord shall reimburse
Tenant an amount equal to the excess of (x) the reasonable costs incurred
by Tenant in providing the Property Security, over (y) Tenant’s Occupancy
Percentage of such reasonable costs. In addition, Tenant shall indemnify and
hold harmless Landlord from and against all third party claims (including
claims by other 


 


52

















 


tenants or
occupants of the Property) arising out of or relating to any failure or alleged
failure to adequately provide the Property Security during such periods for
which such election is in effect.


 


(viii)        All bulb and ballast
replacement in all Common Areas and Building Standard bulb and ballast
replacement in the Leased Premises, it being understood that replacement of all
fluorescent, incandescent, halogen and other types of bulbs and ballasts in all
fixtures existing in the Leased Premises as of the Commencement Date shall be
deemed to be Building Standard and that Landlord shall not be obligated to
replace any bulbs and ballasts in Tenant’s furniture or furnishings in the
Leased Premises.


 


(ix)           At all times, passenger
elevator service to the Leased Premises, subject, outside of Building Operating
Hours, to (x) temporary cessation for ordinary repair and maintenance
(but, as to each floor of the Building on which the Leased Premises are
located, such temporary cessation for ordinary repair and maintenance shall not
occur simultaneously for all passenger elevator cabs serving such floor) and (y) reasonable
security measures consistent with those generally being employed at Comparable
Buildings.


 


(x)            Maintenance and
cleaning of the Property (including the Base Building and the Common Areas,
including (aa) the Common Areas on each floor of the Building on which any part
of the Leased Premises is located, (bb) the Parking Areas and (cc) all exterior
landscaped portions on the Land or immediately adjacent thereto).


 


(xi)           During Building
Operating Hours, non-exclusive use (in common with Landlord and other tenants
or occupants of the Property) of the Building’s loading dock(s), freight
elevator(s) and related facilities (if and to the extent that such the
same either exist on the Commencement Date or are hereafter constructed)
(collectively, the “Building’s Loading & Delivery Facilities”),
which use shall be without charge, on first-come, first-serve basis, and shall
otherwise be subject to the Building Rules.


 


(xii)          At all times, sanitary
sewer service to the Leased Premises and Common Areas.


 


(xiii)         Trash removal from the
Property at designated locations; provided, however, that Tenant,
from time to time, shall have the right, upon sixty (60) days written notice to
Landlord, to elect to separately contract for trash removal services for the
Leased Premises, and, if Tenant makes such election, then, during all such
periods that such election is in effect, Operating Expenses shall exclude the
cost of providing trash removal services to the Leased Premises and all other
Leasable Areas (and the calculation of the Monthly Estimated OE Payments and
Tenant’s Operating Expense Share shall be adjusted accordingly).


 


(xiv)        Snow and ice removal
services as required to maintain safe access to the Property at all times
during Building Operating Hours.


 


(xv)         Appropriate precautionary
measures to protect the Property from windstorm, hurricanes, flooding and other
predictable natural disasters as customarily taken by prudent property owners
at Comparable Buildings or as may be required by the insurance provider for the
Property.


 


53

















 


(xvi)        Maintenance, service and
testing of any electric generation systems and equipment to the extent such
equipment and systems serve the Common Areas, Leased Premises and Leasable
Areas of the Building (and not exclusively the Leased Premises).


 


(xvii)       Life safety services
(through fire alarm systems, energy management systems, etc.) as provided as of
the Commencement Date, and, thereafter, as needed to provide such services at
level consistent with Comparable Buildings.


 


(xviii)      Other utilities and services
provided to Tenant, the Leased Premises or the Common Areas, as of the
Commencement Date, including, if applicable, gas, steam, fuel oil, etc.


 


Landlord and Tenant acknowledge
that Tenant owned and operated the Property prior to the Commencement Date, and
Tenant is fully aware of the capabilities and limitations of the Building
Systems as of the Commencement Date. Nothing in this Section 3.1(a) shall
be deemed to be a covenant or agreement of Landlord, or a representation or
warranty of Landlord, express or implied, that Landlord shall upgrade the
Building Systems so that the same will hereafter be capable of greater
performance then the same are capable of on the Commencement Date, and if the
particular standards or specifications herein-above set forth for any Building
Standard Service can not be furnished without such an upgrade, then,
notwithstanding the foregoing provisions of this Section 3.1(a),
Landlord need only provide such service at the highest level (or the level
closest to such standards or specifications) which can be provided without such
an upgrade (but, in all events, at a level at least equal to that being
provided as of the Commencement Date). With respect to the Building Standard
Services referenced in Section 3.1(a)(i), (ii), (v) and (ix),
Landlord shall furnish such services in such quantities and at such levels that
are at least equal to the quantities and levels being furnished at the Property
immediately prior to the Commencement Date, with Tenant acknowledging and
agreeing that Landlord shall not be required to provide during the Term greater
quantities or higher levels of service than is capable of being provided
through the Building Systems as the same exist as of the Commencement Date, and
that Landlord has no obligation to replace or improve such Building Systems
other than in the ordinary course as may be consistent with sound building
management practices or as required by Section 5.5 hereof.


 


(b)           (1)           If
Tenant requires electricity for use in the Leased Premises in excess of Tenant’s
Dedicated Electrical Capacity, and such required additional electrical capacity
is then available at the Property or can be obtained for the Property by
Landlord from the Electric Utility Company, then Landlord shall, upon Tenant’s
request and at Tenant’s sole cost and expense, furnish and install, or cause to
be furnished and installed, the additional equipment (if any) that is
reasonably required to furnish such additional electrical capacity to the
Leased Premises (including, as needed, wires, risers, conduits, feeders,
switchboards and circuit panels), whereupon Tenant’s Dedicated Electrical
Capacity shall be automatically increased by such additional electrical
capacity.


 


(2)           Tenant, from time to
time, shall have the right to install within the Leased Premises (at locations
selected by Tenant), or within the Common Areas, or on the grounds, or roof of
the Building, subject to Landlord’s approval not to be unreasonably withheld or
delayed, one or more supplemental HVAC units, together with the equipment pads,
ducts and other 


 


54

















 


equipment needed to accommodate
the equipment and distribute and vent the air generated thereby (collectively,
the “Tenant’s Supplemental HVAC Equipment”) for the purpose of providing
additional HVAC service (i.e.,
HVAC service in addition to the Building System HVAC Service) for the Leased
Premises or any portion thereof.


 


(3)           If the Building
Systems, as of the date hereof, shall include any chilled or condenser water
system (herein called the “Building’s CW System”), then Tenant, in
connection with the operation of any Tenant’s Supplemental HVAC Equipment, then
Landlord, as a Building Standard Service, shall furnish chilled or condenser
water therefrom to Tenant, at a level equal to the level that is being
furnished to Tenant therefrom on the Commencement Date (such level being herein
called “Tenant’s Allotted CW Capacity”) and at the times that such
Tenant’s Allotted CW Capacity is being furnished, or made available, on the
Commencement Date, without charge to Tenant. If, at any time hereafter, Tenant,
by notice to Landlord, may request an increase in Tenant’s Allotted CW
Capacity, and, in any such case, (i) if, at the time of such request, the
Building’s CW System has sufficient available capacity to permit the requested
increase, then Tenant’s Allotted CW Capacity shall be automatically increased
by the requested increase, or (ii) if, at the time of such request, the
Building’s CW System does not have sufficient available capacity to permit the
requested increase, then Landlord shall so notify Tenant, which notice shall
indicate whether or not the Building’s CW System is susceptible of an upgrade
which would create sufficient available capacity to permit the requested
increase. In any case that Landlord’s notice to Tenant shall indicate that the
Building’s CW System is susceptible of an upgrade, Tenant shall have to
authorize such an upgrade be effected, in which event Landlord, at Tenant’s
sole cost and expense, shall cause such upgrade to be effected with reasonable
dispatch, whereupon Tenant’s Allotted CW Capacity shall be automatically
increased by such requested increase.


 


(c)           (1)           If
and to the extent requested by Tenant from time to time and to the extent the
same are reasonably available, Landlord shall provide Tenant with services in
excess of Building Standard Services as described in Section 3.1(a) and
Section 3.1(b)(3) hereof (“Above Standard Services”).
All of the costs incurred by Landlord in connection with providing any special
Tenant services shall be paid by Tenant as Above Standard Services Rent,
including costs that would not have been incurred but for Tenant’s request for
Above Standard Services. Landlord’s charges for Above Standard Services may be
established and revised from time to time by Landlord; provided that at no time
shall Landlord’s charges for Above Standard Services exceed Landlord’s actual
out-of-pocket costs, nor shall Landlord (i) include any overhead or profit
in the calculation of Above Standard Services costs or (ii) charge Tenant
at a higher rate for Above Standard Services than Landlord charges any other
tenant of a Building for comparable services.


 


(2)           Notwithstanding the provisions
of Section 8.1(c)(1) above, or anything else to the contrary
contained in this Lease, Landlord shall be required to furnish the following
Above Standard Services (herein called the “Required Above Standard Services”),
upon the following terms and conditions:


 


(A)          If Tenant shall request
that Building System HVAC Service be furnished to the Leased Premises during
times other than during Building Operating Hours (such service, during such
times, being herein called “OT Building System HVAC Service”), then 


 


55

















 


Landlord shall furnish OT
Building System HVAC Service to Leased Premises during such time or times,
consistent with such request and the foregoing specifications. Tenant shall
request OT Building System HVAC Service no later than 3:00 p.m. on the
Business Day for which the same is requested, or no later than 3:00 p.m.
on the last preceding Business Day, in any case where OT Building System HVAC
Service is requested for any day that is not a Business Day. Tenant, in respect
of OT Building System HVAC Service requested and furnished, shall pay to
Landlord an hourly charge therefor, as Above Standard Services Rent, for each
hour that OT Building System HVAC Service was requested and furnished, which hourly
charge, during any calendar year, shall be at the rate(s) therefor set
forth in the Final Budget for such calendar year, and shall not, in any event,
exceed the hourly charge generally applicable in Comparable Buildings for
overtime HVAC service or other tenants or occupants of the Property.


 


(B)           If Tenant shall request
use of the Building’s Loading & Delivery Facilities during times other
than during Building Operating Hours, then Landlord shall make the same
available to Tenant to use the same during such times; subject to availability,
which shall be on a first-reserved, first served, basis as amongst the tenants
and other occupants of the Property. Tenant shall make such a request no later
than 3:00 p.m. on the Business Day for which such use is requested, or no
later than 3:00 p.m. on the last preceding Business Day, in any case where
such use is requested for any day that is not a Business Day. Tenant’s use of
the Building’s Loading & Delivery Facilities outside of Building
Operating Hours shall be without charge, except that Tenant shall reimburse
Landlord, as Above Standard Services Rent, for the actual, reasonable
out-of-pocket costs to third parties (without allowance for overhead or profit)
to furnish such service to Tenant.


 


(C)           If Tenant shall request
chilled or condenser water from the Building’s CW System during times other
than the times that chilled or condenser water is furnished, or made available,
to Tenant on the Commencement Date, then Landlord shall furnish same to Tenant
during such other times; provided, however, that if Landlord is
not then generally furnishing, or making available, chilled or condenser water
during such other times without an additional charge, then Tenant shall pay
Landlord an hourly charge therefor, as Above Standard Services Rent, for each
hour that chilled or condenser water was requested and furnished during such
other times, which hourly charge, during any calendar year, shall be at the
reasonable rate(s) therefor set forth in the Final Budget for such calendar
year, but shall not, in any event, exceed either (x) the hourly charge
generally applicable in Comparable Buildings for overtime chilled or condenser
water service or (y) Landlord’s hourly charge to other tenants or
occupants of the Property for overtime chilled or condenser water service from
the Building’s CW System.


 


(d)           Landlord shall furnish Tenant at least five (5) Business
Days prior written notice of any non-emergency suspension or interruption in
the Building Standard Services scheduled by Landlord for routine repairs or
maintenance; provided, however, that (i) no such
non-emergency suspension or interruption shall be during Building Operating
Hours, and (ii) if any such non-emergency suspension or interruption will
render the Common Areas or the Leased Premises inaccessible, without electric
power, without cold domestic water or sanitary sewer service or otherwise
untenantable in the ordinary course, then Landlord shall provide Tenant with
not less than sixty (60) days’ prior notice thereof.


 


56

















 


(e)           To the extent the services described in this
Section 3.1 require electricity, water or other utility services
supplied by public utilities, Landlord shall not be deemed to be in breach of
Landlord’s covenants hereunder because of the failure of a public utility to
supply the required services so long as Landlord uses all commercially
reasonable efforts to cause the applicable public utility to furnish the
same.  Except as expressly provided in Section 3.1(f) and
Section 6.3, the failure by Landlord to furnish the services
described in this Section 3.1 (or any cessation thereof), if caused
solely by reason of Force Majeure Events, shall not render Landlord liable for
damages to Tenant, be construed as an eviction of Tenant, give rise to an
abatement of Rent, or relieve Tenant from fulfillment of any covenant or
agreement hereof.


 


(f)            Notwithstanding the foregoing, if (i) Landlord
fails to provide any of the services Landlord is obligated to provide under this
Lease (for any reason other than the gross negligence or willful misconduct of
Tenant or any Tenant Party), (ii) such failure adversely impacts Tenant’s
use or enjoyment of the Leased Premises or any portion thereof (and Tenant
actually ceases to use the affected area for business operations), and (iii) such
failure continues for more than three (3) consecutive days after notice
from Tenant to Landlord (any such failure, a “Service Failure”), then
all Rent due under this Lease for the affected portion of the Leased Premises
shall be abated for the entire duration of the Service Failure.  In addition to Tenant’s foregoing rights,
Tenant shall have the right, but not the obligation, to cure any Services
Failure if, and to the extent, permitted under Section 13.1(b) and,
as provided therein, to recover the reasonable cost thereof from Landlord.


 


3.2                                 Separate
Charge Parking Areas


 


(a)           If there are any Separate Charge Parking
Areas located upon the Property as of the Commencement Date, Landlord may
assess a separate charge(s) for the use thereof (whether such use is by
Tenant, any Tenant Parties and/or the customers, invitees and guests of Tenant
or any Tenant Parties), provided, that
any such separate charge(s) shall be uniformly applied to all users of the
Separate Charge Parking Areas (including other tenants and occupants of the
Property, and their customers, invitees and guests, as well as any others
permitted to use the Separate Charge Parking Areas), and (iii) shall not
exceed, in any event, the separate charge(s) generally applicable with
respect to similar parking areas appurtenant to, or operated by owners or
operators of, Comparable Buildings.


 


(b)           Except for the Separate Charge Parking Areas
(if any), Landlord may not assess any separate charge for use of any Parking
Areas (whether Tenant Dedicated Parking Areas or Non-Dedicated Parking Areas),
or the use of any other Common Areas.


 


3.3                                 Graphics
and Building Directory


 


(a)           On each floor of the Building on which the
Leased Premises are located, and at each location within the Property where
Tenant maintains such signage as of the Commencement Date, Tenant may install
and maintain signage using Tenant’s name, identity, logos and/or graphics (as
Tenant may change its name, identity, logo and/or graphics from time to time),
and/or the similar signage of any Tenant Party or Affiliate of Tenant occupying
the Leased Premises, and/or any directory signage for the Leased Premises
containing the name of Tenant and/or any Tenant Parties or Affiliates of Tenant
occupying the Leased Premises, suite or room


 


57














 


number references and/or businesses or
departments references. Such signage shall be located on or adjacent to
entrances to the Leased Premises (or, as to any such signage maintained as of
the Commencement Date, it may be kept in its current location). If, at any time
after the installation of any such signage on any particular floor of the
Building on which the Leased Premises are located, no portion of the Leased
Premises shall any longer be located on such floor of the Building, then
Tenant, at its cost, shall remove such signage.


 


(b)           If the lobby of the Building contained a
building directory on the Commencement Date, or if Landlord elects to install
or construct a building directory in the lobby of the Building at any time,
then any such building directory board shall contain the listing of Tenant’s
name and such other information as Tenant shall reasonably require from time to
time (including, at Tenant’s option, the names of all of Tenant’s businesses,
Tenant Parties and Affiliates as Tenant shall designate), and Tenant shall be
entitled to Tenant’s Occupancy Percentage, from time-to-time, of the space
contained in such directory. Any new listings designated by Tenant from time to
time shall be installed by Landlord at Tenant’s expense.


 


(c)           Nothing contained in this Section 3.3
(or otherwise in this Lease) shall be deemed to restrict, in any manner, Tenant’s
rights to maintain any signage, directories or other displays, within the
Leased Premises or any part thereof.


 


3.4           Building Signage;
Exclusivity


 


(a)           (1)           For
purposes hereof, the following terms shall have the meanings hereinafter
ascribed thereto:


 


(A)          “Building Signage”
shall mean, collectively, (i) exterior building signage (i.e.,
signage affixed to the exterior of the Building), (ii) lobby signage (i.e.,
signage within the Building’s main or other multi-tenant lobby or lobbies, but
distinguished from any signage described in Section 3.3 hereof), (iii) monuments
which accommodate signage anywhere upon the Property, together with any signage
placed thereon, and (iv) any other signage upon the Property located
outside of the interior of the Building.


 


(B)           “Building
Identification Signage” shall mean Building Signage which, due to its size,
location and other incidents of prominence, has the effect of naming or
identifying the Building, from the standpoint of the public.


 


(C)           “Tenant’s Building
Signage” shall mean any and all Building Signage (i) installed or
maintained by Tenant (or at its instance), and (ii) displaying the name,
identity, logo and/or graphics of (x) Tenant (and/or any of its
Affiliates) or (y) any Tenant Party (and/or any of its Affiliates).


 


(D)          “Other Building
Signage” shall mean any and all Building Signage that is not Tenant’s
Building Signage.


 


(2)           Tenant, throughout the
Term, shall have the right to continue to maintain all Tenant’s Building
Signage existing as of the Commencement Date.


 


58

















 


(3)           In addition, Tenant,
throughout the Term, shall have the right to (i) erect, install and
maintain additional Tenant’s Building Signage, (ii) make alterations to
any then existing Tenant’s Building Signage which change the name, identity,
logo and/or graphics comprising the content thereof (so long as the same
remains Tenant Building Signage as hereinabove defined), and/or (ii) make
any other alterations to any then existing Tenant’s Building Signage (it being
understood that alterations to any then existing Tenant’s Building Signage may
include the removal and replacement thereof, or the mere removal thereof), but
all such additional Tenant’s Building Signage and/or any such alterations shall
be subject to Landlord’s approval (but only as to construction means and
methods, size and location, and not as to content, style, shape, color or other
aesthetics), which approval shall not be unreasonably withheld or delayed.


 


(4)           Notwithstanding the
foregoing, Tenant may not make any alterations to any Building Identification
Signage which change the name comprising the content thereof unless the new
name is either (i) the name of a Wachovia Party, (ii) the name of
another financial institution (or one of its Affiliates), (iii) the name
of a Fortune 500  company
(or one of its Affiliates), or (iv) another name (not described in clauses
(i) through (iii) of this sentence) which Tenant shall propose, and
Landlord shall approve (which approval shall not be unreasonably withheld or
delayed).


 


(5)           In connection with any
initial installation of, or alterations to, any Tenant’s Building Signage
during the Term (as well as any repair or maintenance of Tenant’s Building
Signage during the Term), Tenant, at Tenant’s sole cost and expense, shall
comply with all Legal Requirements. Tenant, in addition, shall repair any
damage to the interior or exterior of the Building caused by Tenant’s initial
installation of, alterations to, any Tenant’s Building Signage; but the
foregoing shall not obligate Tenant to restore any portions of the Building’s
façade that are affected by Tenant’s Building Signage being affixed thereto
(but, in the case of Tenant’s removal thereof, Tenant, at its expense, shall
patch any holes in, and/or cover over, by sign blanks of similar size, shape
and appearance, the affected areas of Building’s façade, to the extent
visible).


 


(b)           Throughout the Term, Other Building Signage
shall be restricted as follows:


 


(1)           During any period
during the Term that either (i) Tenant’s Occupancy Percentage shall be at
least fifty percent (50%), or (ii) the Leased Premises shall include a
retail bank location (whether or not the same is then being operated) (any such
period being herein called a “Tenant Prominence Period”), Landlord shall
not erect, install or maintain, or permit any person (other than Tenant) to
erect, install or maintain, any Other Building Signage, unless (x) there
is then existing Tenant’s Building Signage, and (y) such Other Building
Signage is of less prominence than such then
existing Tenant’s Building Signage.


 


(2)           During any period
during the Term other than a Tenant Prominence Period, Landlord shall not
erect, install or maintain, or permit any person (other than Tenant) to erect,
install or maintain, any Other Building Signage, unless (x) there is then
existing Tenant’s Building Signage, and (y) such Other Building Signage is
of equal or less prominence than such
then existing Tenant’s Building Signage.


 


59

















 


(3)           Without limiting the
foregoing in any respect, during any Tenant Prominence Period, Tenant shall
have (i) the sole and exclusive right to name the Building (or any other
part of the Property), and (ii) the sole and exclusive right to erect (or
permit to be erected) any Building Identification Signage.


 


(c)           During the Term, for so long as (i) Tenant’s
Occupancy Percentage shall be at least twenty-five percent (25%), or (ii) the
Leased Premises shall include a retail bank location (whether or not the same
is then being operated), Landlord will not allow any portion of the Property
(other than the portion of the Property then leased to Tenant) to be used as a
retail financial services operation, without Tenant’s prior written consent,
which consent may be withheld in Tenant’s sole and absolute discretion.  For purposes of this Lease, the term “retail financial services operation” shall include any
retail banking, or other operation constituting a banking use or purpose,
including any operation involving receiving deposits, making loans (commercial
or consumer), sale of securities or mutual funds or sale of insurance products
to the general public, whether done by a state bank, national bank, savings and
loan association, trust company, credit union, mortgage or securities broker or
company, insurance company, or other entity, whether by walk-up, drive-in
teller facility or otherwise; provided, however, that (x) the
term retail financial services operation
shall not include general office use, and (y) in that regard, the offices
of an insurance company engaged primarily in underwriting activities shall not
be deemed a retail financial services operation
solely because insurance policies are sold from such offices on an incidental
basis.


 


(d)           Tenant’s exclusivity rights as described
above at Section 3.4(c) hereof also includes the exclusive
right to place ATMs in the Building or otherwise on the Property, including all
exterior areas of the Building and the Land. Tenant shall have the right, for
no additional Rent, to place not more than five (5) ATMs at locations
outside of the Leased Premises in and about the Common Areas. There is no
restriction on the number of ATMs that Tenant can maintain within the Leased
Premises, including any Drive-Through Banking Facilities. However, except for
any ATMs existing as of the Commencement Date, the plans and specifications,
and specific locations, for any ATMs located outside the Leased Premises are
subject to Landlord’s prior written consent, which consent will not be
unreasonably withheld or delayed. Tenant, at its expense, shall install,
maintain, operate and repair such ATMs in compliance with all Legal Requirements.
At the expiration or earlier termination of this Lease, Tenant, at its expense,
shall remove the ATMs in accordance with Section 5.3 hereof. The
restrictions set forth herein shall not apply to ATMs operated by third parties
as of the date of this Lease.


 


(e)           Notwithstanding anything to the contrary
contained in this Lease, the rights granted to Tenant pursuant to this Section 3.4
shall be subject and subordinate to the rights of any Building tenants whose
leases are in effect as of the Commencement Date (but if, and to the extent,
such rights are set forth in such leases as of the Commencement Date). For
example purposes only, and not as a means of limitation, if an existing tenant’s
lease (as in effect on the Commencement Date) requires such existing tenant’s
approval for a change in the name of the Building, then Tenant may not cause
the name of the Building to change without such existing tenant’s approval. As
another example, if an existing tenant’s lease (as in effect on the
Commencement Date) provides for such existing tenant to place its name on
exterior and/or 


 


60

















 


monument signage, then any exercise of such
existing tenant’s rights shall not be deemed to be a violation of Tenant’s
rights under this Lease.


 


3.5           Tenant’s Exterior
Equipment


 


(a)           Tenant, throughout the Term, shall have the
right to continue to maintain and operate all of Tenant’s communications,
service and other equipment (including any satellite dishes, transmitters
and/or antennas, Tenant’s Supplemental HVAC Equipment, fuel tanks, generators,
etc., as well as any other equipment required to operate the foregoing or to
connect the same to the Leased Premises, e.g., conduits
and cables) which, as of the Commencement Date, are located upon the roof of
the Building or otherwise in a portion(s) of the Property located outside
of the Leased Premises (collectively, “Tenant’s Existing Exterior Equipment”).


 


(b)           In addition to Tenant’s Existing Exterior
Equipment, Tenant, throughout the Term, shall have the right to install (and,
after such installation, maintain and operate) additional communications,
service and other equipment upon the roof of the Building and/or any other
portion(s) of the Property outside of Leasable Areas, subject,
however, to obtaining Landlord’s consent thereto, which consent
shall not be unreasonably withheld or delayed, provided,
that (i) such additional communications, service and other
equipment shall not materially compromise the aesthetics or appearance of the
Building, (ii) such additional communications, service and other equipment
shall not impose any additional expense upon Landlord which Tenant is not
willing to pay or reimburse Landlord for, and (iii) such additional
communications, service and other equipment shall be designed and installed in
compliance with all Legal Requirements, and otherwise in a manner so as not to (1) adversely
affect the Base Building, including the operation of any of then existing
Building Systems, (2) create an unreasonable risk of injury to persons or
property, or (3) in the case of equipment to be located upon the roof of
the Building, void or impair any applicable roof warranty.


 


(c)           The following provisions shall apply to
Tenant’s Existing Exterior Equipment, as well as any additional communications,
service and other equipment installed by Tenant under Section 3.4(b) above
(herein collectively called “Tenant’s Exterior Equipment”):


 


(1)           All Tenant’s Exterior
Equipment shall be maintained and operated at Tenant’s sole cost and expense
and in accordance with all Legal Requirements.


 


(2)           Any material changes to
any then existing Tenant’s Exterior Equipment (i.e., changes regarding
size, location, etc.) shall first be approved by Landlord, which approval will
not be unreasonably withheld or delayed.


 


(3)           At all times, Tenant
and the pertinent Tenant Parties shall have unrestricted access to all the
areas of the Property upon, or within, which any of Tenant’s Exterior Equipment
is located for purposes of operating, servicing, repairing or otherwise
maintaining said equipment. In connection therewith, Tenant shall not
unreasonably disturb any other tenants of the Building.


 


(d)           The following provisions shall apply to
Tenant’s Exterior Equipment located on the roof of the Building (sometimes
herein separately called “Tenant’s Rooftop Equipment”):


 


61

















 


(1)           In order to maintain
rooftop availability consistent with the needs of Tenant and other tenants and
occupants of the Building, Landlord shall not install, or permit to be
installed, any equipment on the roof of the Building other than Tenant’s
Rooftop Equipment and the Other Qualified Rooftop Equipment.  “Other Qualified Rooftop Equipment”
shall mean (i) any rooftop equipment constituting a component of the
Building Systems, (ii) any communications or other rooftop equipment
belonging to any other tenant or occupant of the Building for use in connection
with its business operations in the Building, and (iii) if sufficient
space on the roof of the Building is available therefor (after taking into
account both the current and future needs of Tenant, and other tenants and
occupants of the Building, and after consultation with Tenant as to its current
and future needs), any communications equipment belonging to an area service
provider.


 


(2)           In the event that
Landlord’s performance of any repair or maintenance to the Common Areas,
including the roofs of the Building, require the temporary relocation of any
Tenant’s Rooftop Equipment, then (i) Landlord shall provide Tenant with
sixty (60) days’ notice of the need therefor, (ii) Tenant, as soon
thereafter as is reasonably practicable, shall effect such temporary relocation
of such Tenant’s Rooftop Equipment (it being understood that Tenant shall have
the right to effect such temporary relocation in a manner that will prevent any
interruption in the service provided by Tenant’s Rooftop Equipment), (iii) Landlord
shall complete its repair or maintenance in question as soon as reasonably
practicable, and (iv) Tenant, as soon as reasonably practicable after
Landlord’s completion of such repair or maintenance, shall re-install such
Tenant’s Rooftop Equipment in its prior location; it being agreed that (x) the temporary relocation and
re-installation work to be done by Tenant shall be done at Tenant’s expense; it
being agreed that in no event shall Operating Expenses ever include any amounts
associated with the repair, maintenance or temporary relocation of any rooftop
equipment (other than Other Qualified Rooftop Equipment constituting a
component of the Building Systems, as opposed to any Other Qualified Rooftop
Equipment of any tenant or occupant of the Building or any other person other
than Landlord as to the Building Systems).


 


(3)           If Landlord shall install,
or permit the installation, of any Other Qualified Rooftop Equipment, then the
same shall be located, designed and operated so as not to interfere with the
operation (including, as applicable, any signals to and from) any of Tenant’s
Rooftop Equipment, the installation of which, in accordance with this Section 3.5,
predates the installation of such Other Qualified Rooftop Equipment. Similarly,
any Tenant’s Rooftop Equipment hereafter installed by Tenant shall be located
and designed so as not to interfere with the operation (including, as
applicable, any signals to and from) any Other Qualified Rooftop Equipment that
may have previously been installed. The party responsible for the equipment
which interferes with equipment previously installed by the other shall be
required, at its or their expense, to take all measures necessary to eliminate
the source of interference caused by such party’s equipment.


 


3.6           Building Management


 


(a)           During any period during the Term (each such
period, a “Landlord Management Period”) that is not a Tenant Management
Period, Landlord, subject to and in accordance with the provisions of Section 3.6(b) hereof,
shall appoint a property management company (each, a “Landlord Appointed
Property Manager”) to manage the Property. 
During any period during the 


 


62

















 


Term that is a Tenant Management Period,
Tenant, subject to and in accordance with the provisions of Section 3.6(c) hereof,
shall itself be the property manager of the Property. The term “Property
Manager” shall mean (i) during any Landlord Management Period, the
Landlord Appointed Property Manager and (ii) during any Tenant Management
Period, Tenant.


 


(b)           During any Landlord Management Period,
Landlord shall appoint the Landlord Appointed Property Manager (and Landlord
shall have the right to change the Landlord Appointed Property Manager at any
time, or from time to time, during such Landlord Management Period); provided,
however, that (i) prior to appointing a Landlord Appointed Property
Manager, Landlord shall notify Tenant of Landlord’s intention to do so, which
notice shall provide the name, address and profile of the property management
company that Landlord intends to appoint as Landlord Appointed Property
Manager, and Landlord shall not appoint a Landlord Appointed Property Manager
as to which Tenant has a reasonable objection (it being acknowledged by Tenant
that, as of the date hereof, it has no reasonable objection to an Affiliate of
Landlord), and (ii) if any Landlord Appointed Property Manager
consistently fails to perform its property management duties in a timely,
complete and professional manner that is consistent with the highest level of
property management services provided at Comparable Buildings, Tenant, by
notice to Landlord, may require Landlord to replace such non-performing
Landlord Appointed Property Manager with a new Landlord Appointed Property
Manager appointed by Landlord, and reasonably approved by Tenant (in which
event, Landlord, promptly after receipt of such notice, shall propose, for
Tenant’s consideration, one or more other property management companies to act
as the new Landlord Appointed Property Manager, and upon Tenant’s approval of
any thereof, Landlord shall appoint such property management company as the new
Landlord Appointed Property Manager).


 


(c)           Tenant, from time to time during the Term,
shall have the right, upon notice to Landlord (each, a “Management
Designation Notice”), (i) to designate the Property as a “Tenant
Managed Property” and (ii) if the Property is then designated as a
Tenant Managed Property, to re-designate the Property as a “Non-Tenant
Managed Property”.  If, at any time,
Tenant shall designate the Property as a Tenant Managed Property, then each
period that commences on the date forty-five (45) days after the date on which
Tenant gives Landlord a Management Designation Notice so designating the
Property and ending on the date forty-five (45) days after the date on which
Tenant gives Landlord a Management Designation Notice re-designating the
Property as a Non-Tenant Managed Property is herein referred to as a “Tenant
Management Period”.  If Tenant shall
give Landlord a Management Designation Notice designating the Property as a
Tenant Managed Property, then the following provisions shall apply:


 


(1)           Prior to the first day of the Tenant
Management Period in question, Landlord shall (i) terminate its existing
agreement(s) (if any) with the then current Landlord Appointed Property
Manager (and Landlord shall pay, without any obligation on the part of Tenant
to reimburse Landlord by way of Operating Expenses or otherwise, any premium or
penalty associated with such termination), and (ii) enter into a property
management agreement for the Property with Tenant (as the property manager of
the Property), which agreement shall be in form and substance reasonably
satisfactory to Landlord and Tenant, shall be consistent with the rights
afforded Tenant in this Section 3.6(c) and shall set forth,
among other things, the rights and obligations of the parties delineated in Section 3.6(c)(2) and
(3) below. Each such property management agreement 


 


63

















 


for the Property entered into by Landlord and
Tenant is herein called a “Tenant Management Agreement”; the management
services to be furnished by Tenant (as the property manager) from time to time
pursuant to a Tenant Management Agreement are herein collectively referred to
as the “Tenant Management Services”.


 


(2)           During any Tenant Management Period, Tenant,
as reflected in the Tenant Management Agreement, (i) shall be the Property
Manager (and may, from time to time during such Tenant Management Period,
manage the Property using one or more groups of its own employees or through a
Tenant, and/or a Tenant Sub-Manager appointed pursuant to the provisions of Section 3.6(c)(3) below),
(ii) shall receive an annual management fee equal to two and one-half
percent (2.5%) of Gross Revenues for the Property (and the amount of such
management fee actually paid to Tenant shall be included in Operating Expenses
pursuant to Section 2.2(c)(1)(viii) above), (iii) shall,
without the need to obtain Landlord’s prior approval, direct the day-to-day
services, supervision of contractors and service providers, maintenance and
repairs and the performance of work that is included in the Final Budget
(capital or ordinary) for such calendar year, (iv) shall without the need
to obtain Landlord’s prior approval, have the right to perform (or cause to be
performed) work that is required to address an emergency situation and that
costs less than ten percent (10%) of the Final Budget for such calendar year, (v) shall,
with Landlord’s prior approval (which approval shall not be unreasonably
withheld, and with Landlord having the obligation to respond within twenty-four
(24) hours of Tenant’s request), have the right to perform (or cause to be
performed) other work that is required to address an emergency situation (i.e.,
work costing ten percent (10%) or more of the Final Budget for such calendar
year), and (vi) shall, during any portion of the Tenant Management Period
during which Tenant’s Occupancy Percentage is ninety percent (90%) or greater,
have the right to elect to have the Tenant Management Services include rent
collection services, bill paying services or accounting services (collectively,
the “Financial Services”).


 


(3)           During any Tenant Management Period, Tenant,
at Tenant’ sole cost and expense (which shall not be included in Operating
Expenses), shall have the right to retain one or more third party property
management companies as a sub-manager(s) (each, a “Tenant Sub-Manager”)
to perform some or all of the Tenant Management Services (which right shall
include the right, at any time and from time to time during such Tenant
Management Period, to change any Tenant Sub-Manager(s) and to eliminate
the use of any or all Tenant Sub-Managers); provided, however,
that (I) prior to appointing a Tenant Sub-Manager, Tenant shall notify
Landlord of Tenant’s intention to do so, which notice shall, in the case of
qualified third party property management company, provide the name, address
and profile of the property management company that Tenant intends to appoint
as a Tenant Sub-Manager, or, in the case of a designated group of Tenant’s own
employees, the qualifications of such designated employees, and Tenant shall
not appoint, as a Tenant Sub-Manager, any third party property management
company to which Landlord has a reasonable objection, and (II) if any
property management company then serving as a Tenant Sub-Manager consistently
fails to perform its property management duties in a timely, complete and
professional manner that is consistent with the highest level of property
management services provided at Comparable Buildings, Landlord, by notice to
Tenant, may require Tenant to replace 


 


64

















 


such non-performing Tenant Sub-Manager with a
new Tenant Sub-Manager appointed by Tenant, and reasonably approved by Landlord
(in which event, Tenant, promptly after receipt of such notice, shall propose,
for Landlord’s consideration, one or more other property management companies
or group of Tenant’s own employees to act as the new Tenant Sub-Manager, and
upon Landlord’s approval of any thereof, Tenant shall appoint such property
management company or group of Tenant’s employees as the new Tenant
Sub-Manager).


 


(4)           During any portion of any Tenant Management
Period during which the Tenant Management Services include the Financial
Services, there shall be included in the Operating Expenses (notwithstanding
anything to the contrary contained in Section 2.2(c) above),
and Landlord shall be entitled to receive, an asset management fee equal to
one-half percent (0.5%) of the Gross Revenues for the Property attributable to
such portion of Tenant Management Period. 
During any portion of any Tenant Management Period that the Tenant
Management Services do not include the Financial Services, there shall be
included in the Operating Expenses (notwithstanding anything to the contrary
contained in Section 2.2(c) above), and Landlord shall be
entitled to receive, an asset management fee equal to one percent (1.0%) of the
Gross Revenues for the Property attributable to such portion of Tenant
Management Period.


 


(d)           Any disputes between Landlord and Tenant
with respect to any matters arising under this Section 3.6 shall be
subject to resolution as provided in Article XII.


 


ARTICLE IV

CARE OF PREMISES; LAWS, RULES AND REGULATIONS


 


4.1           Surrender of Leased
Premises


 


Upon the expiration or any earlier
termination of this Lease, Tenant shall surrender the Leased Premises to
Landlord subject to the provisions of Section 5.3 hereof, and
otherwise in good condition and repair, reasonable wear and tear excepted
(subject, however, in addition, to such damage or destruction that Tenant, as
of such expiration or earlier termination, is not, pursuant to the express
provisions hereof, obligated to repair or restore). Upon such expiration or
termination of this Lease, Landlord shall have the right to re-enter and resume
possession of the Leased Premises immediately.


 


4.2           Access of Landlord
to Leased Premises


 


(a)           Subject to the provisions of this Section 4.2,
Landlord (through its authorized contractors, agents or representatives) may
enter into and upon any part of the Leased Premises during reasonable hours and
upon reasonable notice (which shall mean (x) except cases of emergency, at
least 24 hours prior notice to Tenant, and (y) in cases of emergency, such
prior notice, if any, or contemporaneous notice, as shall be reasonable under
the circumstances), for the following purposes: (i) to make such
alterations or repairs to the Property as Landlord is required, or expressly
authorized, to make pursuant to this Lease; (ii) to otherwise perform
Landlord’s obligations under this Lease; (iii) for the purpose of showing
the same to existing or prospective purchasers or lenders; (iv) at any
time during the last twelve (12) months of the Term 


 


65

















 


(assuming no further Renewal Option is then
available to Tenant), to show the Leased Premises to prospective tenants; and (v) with
respect to any portion of the Leased Premises which then constitutes Surrender
Space, at any time after Landlord’s receipt of the notice from Tenant rendering
the same Surrender Space, to show the same to prospective tenants.
Notwithstanding the foregoing, for so long as Landlord shall be providing
routine janitorial services to the Leased Premises pursuant to Section 3.1(a)(iv) hereof,
Landlord, through it cleaning contractor, shall have access, without any
requirement of notice, to perform such routine janitorial service.


 


(b)           With respect to any of the aforementioned
authorized entries by Landlord into and upon any part of the Leased Premises
(other than for routine janitorial service), Tenant shall be entitled to have
its representative accompany Landlord.


 


(c)           Tenant shall not be entitled to any
abatement or reduction of Rent by reason of any of the aforementioned authorized
entries by Landlord, so long as Landlord shall comply with its obligations
hereunder (including those set forth in Section 4.2(d) below).


 


(d)           Landlord shall not interfere with the
operation of Tenant’s business during any of the aforementioned authorized
entries. Without limiting the generality of the foregoing, Landlord shall make
any routine repairs requiring access to the Leased Premises after Building
Operating Hours.


 


(e)           Notwithstanding any of the foregoing, unless
otherwise instructed by Tenant in writing, Landlord shall not enter areas
designated by Tenant as high security areas (the “Security Areas”)
unless an emergency situation exists. All access by Landlord shall be subject
to applicable federal banking regulations.


 


(f)            If the demarcation point of services for
the Building, including but not necessarily limited to telecommunications,
electricity, water, fire suppression, etc. (the “Service Entrance”) is
located within the Leased Premises, then Landlord may, at Landlord’s option, at
Landlord’s sole expense, relocate such Service Entrance to a location outside
of the Leased Premises, and make all necessary modifications to maintain Tenant’s
then existing services to the Leased Premises. If the Service Entrance for the
Building is located within the Leased Premises and if such location of the
Service Entrance for the Building at any time in the future is deemed by Tenant
to interfere with Tenant’s desired reconfiguration of its use of or
improvements in the Leased Premises, then Landlord shall, at Landlord’s sole
expense, relocate such Service Entrance to a location outside of the Leased
Premises, and make all necessary modifications to maintain Tenant’s then
existing services to the Leased Premises, within a reasonable time after Tenant’s
written request. If the Service Entrance for the Building is located within the
Leased Premises, then until Landlord relocates such Service Entrance to a
location outside of the Leased Premises, Tenant shall allow Landlord and other
tenants of the Building reasonable access to the Service Entrance as required
to connect services thereto, but each and any such access shall be subject to
reasonable advance notice (not less than one (1) full Business Day, except
in the case of emergencies), and shall be supervised by security or technical
personnel designated by Tenant (which may be Tenant’s own employees), Landlord
shall be solely responsible for the cost of such security or technical
personnel, and Landlord shall reimburse Tenant, upon demand, therefor, and for
any and all additional costs incurred by Tenant because of such access. In no
event shall Landlord or any tenant of the Building other than Tenant be
entitled to connect to, 


 


66

















 


extend from, modify, alter, interrupt or
otherwise use, or in any way affect the operation of Tenant’s services.


 


4.3           Nuisance


 


Tenant shall conduct its business, and use
reasonable efforts to cause all Tenant Parties to conduct their activities upon
the Leased Premises, in such a manner as not to create any nuisance, or
unreasonably interfere with, or unreasonably annoy or disturb, any other tenant
or occupant of the Property in its occupancy of the Leasable Areas demised to
it or Landlord in its operation of the Property.  Landlord shall operate the Property, and use
reasonable efforts to cause all Landlord Parties to conduct their activities
upon the Property, in such a manner as not to create any nuisance, or
unreasonably interfere with, or unreasonably disturb Tenant or any Tenant Party
in its occupancy of the Leased Premises. Landlord shall use reasonable efforts
to cause all other tenants and occupants of the Property to conduct their
businesses, and use reasonable efforts to cause their employees, agents and
contractors to conduct their activities upon the Property, in such a manner as
not to create any nuisance, or unreasonably interfere with, or unreasonably
disturb Tenant or any Tenant Party in its occupancy of the Leased Premises.


 


4.4           Legal Compliance


 


(a)           Tenant shall comply with all Legal
Requirements requiring compliance (including compliance requiring the
performance of any alterations or repairs) in, to or upon, or with respect to,
the Leased Premises (inclusive of the Leasehold Improvements therein); provided,
however, that Tenant shall not be required to perform any alterations or
repairs to the Base Building in order to comply with Legal Requirements, except to extent that the need for such compliance arises by
reason of Tenant’s particular manner of use of the Premises.


 


(b)           Landlord shall not enforce Tenant’s
obligations to comply with Legal Requirements as set forth in Section 4.4(a) above
unless (i) Landlord’s failure to do so constitutes a violation of Legal
Requirements by Landlord or makes Landlord liable for Tenant’s continuing
violation, (ii) Landlord is required to do so by any notice of violation,
order, decree, permit, rule or regulation issued by any Governmental
Authority or (iii) Landlord’s failure to do so would endanger the health,
safety or welfare of any person on or about the Leased Premises or the
Property.


 


(c)           Landlord shall comply with all Legal
Requirements requiring compliance (including compliance requiring the
performance of any alterations or repairs) in, to or upon, or with respect to,
the Base Building (except to the extent that Tenant, pursuant to the express
provisions contained in the proviso to Section 4.4(a) above,
is required to comply therewith) and/or the Common Areas.


 


4.5           Rules of
Building


 


Tenant shall comply with, and use its reasonable
efforts to cause all Tenant Parties to comply with, the existing rules and
regulations of the Building, which are set forth in Exhibit C
hereto, and such reasonable changes therein as Landlord at any time or times
may hereafter make, and communicate in writing to Tenant, for the safety,
protection, care and cleanliness of 


 


67

















 


the Leased
Premises, the Building and the Property, the operation thereof, the
preservation of good order therein and the comfort of the tenants of the
Building and their agents, employees and invitees, consistent with Comparable
Buildings, which reasonable changes shall be binding upon Tenant upon Tenant’s
receipt of notice thereof (such existing rules and regulations, as the same
may be changed consistent herewith, being herein called the “Building Rules”).
In the event of a conflict between the provisions of this Lease and the
Building Rules, the provisions of this Lease shall control. In no event shall
the Building Rules impose any monetary obligations upon Tenant. Landlord
shall use its reasonable efforts to cause all tenants of the Building to comply
with the Building Rules to the extent that failure to so comply will
materially affect Tenant’s use or enjoyment of the Leased Premises.  Landlord shall not enforce the Building Rules with
respect to Tenant in a manner that is more restrictive than Landlord’s
enforcement of the Building Rules as to any other tenants of the Building.


 


4.6           Use and Violations
of Insurance Coverage


 


(a)           Tenant shall not occupy or use the Leased
Premises, or permit any portion of the Leased Premises to be occupied or used,
for any business or purpose that (i) is unlawful, (ii) creates
noxious or offensive odors emanating from the Leased Premises into other
Leasable Areas or the Common Areas, or (iii) increases the rate of fire
insurance coverage on the Property or its contents unless Tenant pays for the
cost of such increased insurance premium. Tenant shall have the right to amend
any then existing certificate of occupancy relating to the Leased Premises, or
pursue any separate license or permit, to permit additional lawful uses
consistent with the provisions of Section 1.5 hereof; and Landlord
shall reasonably cooperate with Tenant’s efforts in that regard, including
promptly executing (and providing any information known by Landlord for) any
applications or similar documents with respect thereto.


 


(b)           Tenant shall not cause or permit any
Hazardous Materials to be used, generated, treated, installed, stored or
disposed of in, on, under or about the Leased Premises, except for such
quantities of the same which are included within items used by Tenant (or any
Tenant Party) in connection with its business at the Leased Premises; provided, that (i) the use of such Hazardous Materials
is consistent with the customary and reasonable business practice of entities
conducting similar business to that being conducted at the Leased Premises, and
(ii) Tenant complies with all Legal Requirements applicable to such Hazardous
Materials.  It is hereby agreed that
possession and use of copy machines and machines used to electronically accept
or produce written data which utilize small amounts of chemicals which may be
included in the definition of Hazardous Materials shall be considered a “customary
and reasonable business practice” within the meaning of the previous sentence.


 


4.7           Environmental Laws


 


(a)           Tenant has conveyed the Property to
Landlord, and Landlord has accepted and acquired ownership of the Property,
pursuant to the Purchase Agreement.  As
used herein, the term “Environmental Information”  shall mean all environmental reports and
studies delivered to Landlord by Tenant or obtained by Landlord in connection
with the acquisition of the Property, which reports and studies are listed on Exhibit C
hereto.  The term “Environmental
Matters” shall mean any matters reported in the Environmental Information.


 


68

















 


(b)           Landlord shall be solely responsible for and
shall undertake all Remedial Work required by any Governmental Authority, or as
necessary to comply with, and not violate, Legal Requirements, arising from: (1) Hazardous
Materials on or in the Property as of the Commencement Date (including the
Environmental Matters to the extent thereon or therein), excluding,
however, Hazardous Materials on or in the Leased Premises (inclusive
of the components of the Base Building located within the Leased Premises) as
of the Commencement Date (including the Environmental Matters to the extent
thereon or therein); or (2) Hazardous Materials introduced on, in or under
the Property solely by Landlord or any Landlord Party after the Commencement
Date.


 


(c)           Landlord hereby agrees to and does
indemnify, defend, and hold harmless, Tenant and any Tenant Party from and
against any and all claims, demands, causes of action, fines, penalties, costs,
expenses (including attorneys’ fees and court costs), liens, or liabilities,
if, and to the extent, caused by, or arising out of Landlord’s failure to
comply with its obligations under Section 4.7(b) above.


 


(d)           Tenant shall be solely responsible for and
shall undertake all Remedial Work required by any Governmental Authority, or as
necessary to comply with, and not violate, Legal Requirements, arising from: (1) Hazardous
Materials on or in the Leased Premises (inclusive of the components of the Base
Building located within the Leased Premises) as of the Commencement Date
(including the Environmental Matters to the extent thereon or therein); or (2) Hazardous
Materials introduced on, in or under the Property solely by Tenant or any
Tenant Party after the Commencement Date. Landlord shall not enforce Tenant’s
performance of Remedial Work unless (i) Landlord’s failure to do so
constitutes a violation of Legal Requirements by Landlord or makes Landlord
liable for Tenant’s continuing violation, (ii) Landlord is required to do
so by any notice of violation, order, decree, permit, rule or regulation
issued by any Governmental Authority or (iii) Landlord’s failure to do so
would endanger the health, safety or welfare of any person on or about the
Leased Premises or the Property.


 


(e)           Tenant hereby agrees to and does indemnify,
defend, and hold harmless, Landlord and all Landlord Parties from and against
any and all claims, demands, causes of action, fines, penalties, costs,
expenses (including attorneys fees and court costs), liens, or liabilities, if,
and to the extent, caused by, or arising out of Tenant’s failure to comply with
its obligations under Section 4.7(d) above.


 


4.8           Prohibited Uses


 


(a)           Throughout the Term, Landlord shall not
further develop the Property, other than consistent with the provisions of this
Lease, and, without limiting the generality thereof, no such further
development shall be permitted if (1) the same would cause a violation of
the provisions of Section 4.8(b) hereof or Section 14.20
hereof, or (2) the same would otherwise result in (i) an increase in
the amount of any Additional Rent payable by Tenant hereunder, (ii) any
other cost or expense being imposed upon Tenant or any Tenant Party, (iii) any
reduction in the value of the Leased Premises to Tenant or any Tenant Party, (iv) parking
or traffic flow on the Property being adversely affected from the perspective
of Tenant or any Tenant Party, (v) any reduction in the function or
utility of the Common Areas (or any portion thereof) from the perspective of
Tenant or any Tenant Party.


 


69

















 


(b)           Throughout the Term, Landlord shall not use,
or permit the use of, the Property (or any part thereof) for any Prohibited
Uses. The term “Prohibited Uses” shall mean (i) any use that emits
an obnoxious odor, noise or sound that can be heard or smelled outside of the
premises; (ii) any use in violation of zoning regulations or any other
governmental restrictions applicable to the Property; (iii) any use that,
by its nature, (even if such use is legally permissible) would result in
parking or traffic flow on the Property being materially adversely affected from
the perspective of Tenant or any Tenant Party; (iv) any operation
primarily used as a warehouse or storage facility, assembling or manufacturing,
distilling, refining, rendering, processing, smelting, agricultural or mining
operations; (v) any mobile home park or sales, trailer court, labor camp,
junk yard or stockyard; (vi) any central laundry, dry cleaning plant or
laundromat; provided, however, this prohibition shall not be applicable to
on-site services oriented only to pickup and delivery by consumers; (vii) any
automobile, truck, trailer or recreational vehicle sales, leasing, display,
repair or body shop; (viii) any living quarters, sleeping apartments,
hotel or lodging rooms; (xi) veterinary hospitals, animal raising or breeding
facilities, animal boarding facilities or pet shops; (x) mortuaries or
funeral homes; (xi) any establishment that sells, rents or exhibits
pornographic materials; (xii) massage parlors or any form of sexually oriented
business (including novelty merchandise sales); (xiii) bars, taverns or brew
pubs; (xiv) flea markets, amusement or video arcades, computer game rooms, pool
or billiard halls, bingo halls, dance halls, discos or night clubs; (xv) sales
of paraphernalia for use with illicit drugs; (xvi) carnivals, amusement parks
or circuses; (xvii) pawn shops, auction houses, second hand stores, consignment
shops, army/navy surplus stores or gun shops; (xviii) gambling facilities or
sports betting parlor; (xix) churches, synagogues or other places of worship;
(xx) assembly halls or meeting facilities; (xxi) technical or vocational
schools or any other operation primarily engaged in education or training
activities; (xxii) medical clinics, abortion clinics, medical laboratories or
screening facilities; (xxiii) any agency (public or private) providing health,
welfare, social or human services, or (xxiv) tattoo parlors, fortune telling or
spiritual readings; (xxv) facilities that collect donated goods and products;
(xxvi) bowling alleys, skating rinks, archery or gun ranges, (xxvii) postal
facilities, tax collectors, tag agencies, jails or detention centers,
courthouses or any other form of agency dealing with civil authority.
Notwithstanding the foregoing, the term “Prohibited Uses”
shall not include any use which is permitted under a third party tenant lease
of space in the Building which is in effect as of the Commencement Date.


 


ARTICLE V

LEASEHOLD IMPROVEMENTS AND REPAIRS


 


5.1           Leasehold
Improvements


 


Subject to the provisions of this Lease,
Tenant hereby accepts the Leased Premises, including any and all existing
Leasehold Improvements, in their “AS-IS” condition, and acknowledges that
Landlord has no obligation to construct additional Leasehold Improvements or to
provide any money, work, labor, material, fixture, decoration or equipment
toward the construction of any Leasehold Improvements.


 


70

















 


5.2           Alterations


 


(a)           Except as provided below (as to Non-Consent
Alterations), and as provided in Section 3.6 hereof as to Tenant
Managed Properties, Tenant shall not make or allow to be made any alterations
in or to the Leased Premises (collectively, “Alterations”), without
first obtaining the written consent of Landlord to the plans and specifications
and contractors therefor, which consent shall not be unreasonably withheld or
delayed.


 


(b)           All Alterations shall be made in compliance
with Legal Requirements.


 


(c)           Notwithstanding the foregoing, Tenant shall
have the right to make Non-Consent Alterations without Landlord’s consent. The
term “Non-Consent Alterations” shall mean any Alterations that (i) either
(x) cost less than Threshold Alteration Amount, or (y) regardless of
cost, are of such a nature as not to require a building permit, and (ii) do
not materially, adversely affect the Base Building. The term “Threshold
Alteration Amount” shall mean (1) during any Tenant Management Period
or any period that Tenant’s Occupancy Percentage is greater than seventy-five
percent (75%), an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000.00),
and (2) during any other period during the Term, Seven Hundred Fifty
Thousand Dollars ($750,000.00).


 


(d)           Prior to commencing any Alterations (other
than Non-Consent Alterations for which no building permit is required), Tenant
shall (i) notify Landlord thereof, (ii) furnish Landlord with plans
and specifications therefor (unless, consistent with Legal Requirements, no
such plans and specifications were prepared), and (iii) inform Landlord of
the names of the contractors then retained with respect thereto (all of which
shall be of Tenant’s own choosing).


 


(e)           Upon the completion of any Alterations,
Tenant shall provide Landlord with “as-built” plans related thereto.


 


(f)            If any Alterations involve work to be
performed in, or which otherwise impacts operations in, areas of the Property
located outside the Leased Premises, then Tenant shall coordinate such work
with the Property Manager.


 


(g)           Landlord shall reasonably cooperate with
Tenant’s efforts to obtain any building permit, or governmental approval,
sign-off or certificate, in connection with the performance or completion of
any Alterations, including promptly executing (and providing any information
known by Landlord for) any applications or similar documents with respect
thereto.


 


(h)           In no event shall Tenant be obligated to pay
any charge to Landlord or any Landlord Party for (i) the supervision of
any Alterations, (ii) obtaining Landlord’s consent to any plans and
specifications setting forth any Alterations (in cases where such consent is
required hereunder), (iii) Landlord’s cooperation pursuant to Section 5.2(g) above,
or (iv) Landlord’s review of plans or specifications setting forth
proposed Alterations (other than the actual, out-of-pocket costs reasonably
incurred by Landlord to have Tenant’s plans and specifications reviewed to (x) confirm
that same do not materially, adversely affect the Base Building, and/or (y) determine
whether its consent thereto is required, and/or, if required, whether to grant
or reasonably withhold the same).


 


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5.3           Leasehold
Improvements; Tenant Property


 


(a)           Upon the expiration or any earlier
termination of this Lease, Tenant shall surrender the Leased Premises together
with the then existing Leasehold Improvements.


 


(b)           Upon, or prior to, the expiration or earlier
termination of this Lease, Tenant shall remove all Tenant Property from the
Leased Premises; provided that Tenant shall not be required to remove any
cabling or wiring installed within the walls, ceilings, ducts or chases of the
Building (the “Tenant’s Cabling”). Tenant shall repair any damage to the
Property (including the Leased Premises) resulting from any such removal of
Tenant Property. Any items of Tenant Property other than Tenant’s Cabling which
shall remain in the Premises after the expiration or earlier termination of
this Lease, may, at the option of Landlord, be deemed to have been abandoned,
and in such case such items may be retained by Landlord, as its property, or
disposed of by Landlord (at Tenant’s expense) in such manner as Landlord shall
reasonably determine.  Any Tenant’s
Cabling which shall remain in the Premises after the expiration or earlier
termination of the Lease shall, upon the date this Lease expires or earlier
terminates, become the property of Landlord.


 


5.4           Mechanics Liens


 


(a)           Tenant shall have no authority or power,
express or implied, to create or cause to be created any mechanic’s,
materialmen’s or other lien, charge or encumbrance of any kind against any
Leased Premises.


 


(b)           If any mechanic’s, materialmen’s or other lien,
charge or encumbrance of any kind be filed against the Leased Premises by
reason of Tenant’s acts or because of a claim against Tenant (each, a “Tenant
Created Lien”), then Tenant shall cause the same to be cancelled or
discharged of record by bond or otherwise within the Tenant Lien Cure Period as
to such Tenant Created Lien. The “Tenant Lien Cure Period”, with respect
to any Tenant Created Lien, shall mean the period of sixty (60) days after
Landlord shall have given notice to Tenant of such Tenant Created Lien; provided,
however, that Tenant, after notice thereof to Landlord, shall have the
right to contest, by appropriate proceedings prosecuted diligently and in good
faith, the validity or applicability of any Tenant Created Lien, in which event
the Tenant Lien Cure Period shall be extended during the pendency of such
contest, provided that (x) the Leased
Premises shall not thereby be placed in danger of being forfeited or lost, and (y) Landlord
would not thereby be subject to any criminal or civil penalty or fine. If
Tenant shall fail to cancel or discharge any Tenant Created Lien within the
Tenant Lien Cure Period, Landlord may, at its sole option, cancel or discharge
the same, and upon Landlord’s demand, Tenant shall promptly reimburse Landlord
for all reasonable costs incurred in canceling or discharging such liens.  Except to the extent that such costs are
caused by Landlord’s actions.


 


(c)           Tenant shall indemnify and hold Landlord
harmless from and against all costs (including reasonable attorneys’ fees and
costs of suit), losses, liabilities, or causes of action if, and to the extent,
arising out of the performance of any Alterations, including any Tenant Created
Lien asserted in connection therewith.


 


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(d)           Landlord and Tenant expressly agree and
acknowledge that no interest of Landlord in the Leased Premises or the Property
shall be subject to any lien for improvements made by Tenant in or for the
Leased Premises, and that Landlord shall not be liable for any lien for any
improvements made by Tenant, such liability being expressly prohibited by the
terms of this Lease. Landlord may file in the public records of the county in
which the Building is located, a public notice containing a true and correct
copy of this paragraph.


 


5.5           Repairs by Landlord


 


(a)           Landlord shall keep and maintain, and make
all needed repairs to, the Base Building and the Common Areas in good condition
and repair in accordance with the standards generally applicable with respect
to Comparable Buildings (any such maintenance and/or repairs for which Landlord
is responsible being herein collectively called “Landlord Repairs”).


 


(b)           If, and to the extent that, the need for any
Landlord Repair arises out of any negligent or wrongful act or omission by
Tenant or any Tenant Party, then Tenant, within thirty (30) days after written
demand, shall pay or reimburse Landlord for all the reasonable out-of-pocket
costs incurred by Landlord in performing such repair (together with interest
thereon, at the Applicable Rate, from the date incurred to the date so paid or
reimbursed).


 


(c)           Landlord shall promptly make all Landlord
Repairs (considering the nature and urgency of the repair), and perform the
same in a good and workmanlike manner. Access to the Leased Premises in
connection with the making of any such repairs shall be governed by the
provisions of Section 4.2 above.


 


(d)           If Landlord should fail to make any Landlord
Repair with reasonable promptness after written notice from Tenant, then Tenant’s
cure rights under Section 13.1(b) hereof shall be applicable
to the extent provided therein, and, as provided therein, Tenant may (except to
the extent that the provisions of Section 5.5(b) hereof are
applicable) recover the reasonable cost thereof from Landlord.


 


5.6           Repairs by Tenant


 


(a)           Tenant, at its expense, shall keep and
maintain, take good care of, and make all needed repairs to, (i) the
Leased Premises (inclusive of the Leasehold Improvements) , excluding, however,
the components of the Base Building located within the Leased Premises, and (ii) any
Tenant Property located outside of the Leased Premises (any such maintenance
and/or repairs for which Tenant is responsible being herein collectively called
“Tenant Repairs”).


 


(b)           If, and to the extent that, the need for any
Tenant Repair arises out of any negligent or wrongful act or omission by
Landlord or any Landlord Party, then Landlord, within thirty (30) days after
written demand, shall pay or reimburse Tenant for all the reasonable out-of-pocket
costs incurred by Tenant in performing such repair (together with interest
thereon, at the Applicable Rate, from the date incurred to the date so paid or
reimbursed).


 


(c)           Tenant shall promptly make all Tenant
Repairs (considering the nature and urgency of the repair), and perform the
same in a good and workmanlike manner.


 


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(d)           If Tenant should fail to make any Tenant
Repair with reasonable promptness after written notice from Landlord, then Landlord’s
cure rights under Section 7.1(f) hereof shall be applicable to
the extent provided therein, and, as provided therein, Landlord may (except to
the extent that the provisions of Section 5.6(b) hereof are
applicable) recover the reasonable cost thereof from Tenant.


 


(e)           Notwithstanding the foregoing, if, and to
the extent that, Tenant shall request that Landlord perform any Tenant Repairs,
then Landlord agrees to perform the same, as Above Standard Services. In any
such event, Tenant shall notify Landlord of the need for any such Tenant Repair
and its request that Landlord perform the same, and Landlord shall endeavor to
respond timely to each such request.


 


5.7           Demising Work


 


(a)           For purposes of this Agreement, the
following terms shall have the following meanings:


 


(1)           “Demising Work”,
with respect to any Surrender Release Space (that is not then in Separately
Leasable Condition) or Vacate Space (that is not then in Separately Leasable
Condition), shall mean all the work in and to the Building (including in and to
such space) that is required to cause such space to be put in a Separately
Leasable Condition; provided, however, that in no event shall the
term “Demising Work” ever be
deemed to include (i) any work which internally sub-divides such space, or
any other work designed to permit such space to be occupied by multiple tenants
or occupants (as opposed to a single tenant or occupant), or (ii) the
construction of any leasehold improvements within such space.


 


(2)           “Primary Demising
Work”, with respect to any Surrender Release Space (that is not then in
Separately Leasable Condition) or Vacate Space (that is not then in Separately
Leasable Condition), shall mean the following portions of the Demising Work
with respect to such space (if, and to the extent, the same are part of such
Demising Work): (i) the construction of demising walls, and independent
entrances, for such Leasable Area; (ii) the construction of corridors and
other passageways required to provide an independent means of access (i.e., independent of any other Leasable
Area) for such space to, and from, the outside of the Building and the Common
Areas, and (iii) in the event access to existing Common Areas of the
Building is impractical or unachievable, the construction of additional Common
Areas which will serve such space.


 


(3)           “Other Demising Work”,  with respect to any Surrender Release Space
(that is not then in Separately Leasable Condition) or Vacate Space (that is
not then in Separately Leasable Condition), shall mean all the portions of the
Demising Work with respect to such space (if any) that are not Primary Demising
Work, but may be required to any pre-existing component of the Base Building
and/or Common Areas in order to obtain a building permit or other governmental
approval with respect to the Primary Demising Work.


 


(4)           “Demising Work Costs”
shall mean all the costs of designing and prosecuting the Demising Work
(including architectural, space planning and engineering expenses, building
permit and other governmental fees and all construction costs.


 


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(5)           “Primary Demising
Work Costs” shall mean the portion of the Demising Work Costs attributable
to the Primary Demising Work.


 


(6)           “Other Demising Work
Costs” shall mean the portion of the Demising Work Costs attributable to
the Other Demising Work.


 


(b)           Any Demising Work required to be performed
by Landlord (i) under Section 1.7(d)(4) hereof with
respect to any Surrender Release Space or (ii) under Section 11.2(b)(3) hereof
with respect to any Vacate Space, shall, in each instance, be performed as
follows:


 


(1)           Landlord shall retain a
licensed architect, space planner or engineer, reasonably acceptable to Tenant,
to develop a space plan (the “SLC Space Plan”) in connection with the
Demising Work. The SLC Space Plan shall be subject to the reasonable approval
of both Landlord and Tenant, and Landlord shall cause the same to be revised
until the same has been approved by both parties (the SLC Space Plan, as
finally approved by both Landlord and Tenant, being herein called the “Final
SLC Space Plan”). Any disputes with respect to either party’s approval of
the SLC Space Plan shall be resolved in accordance with Article XII
hereof. The SLC Space Plan shall (i) detail the functional layout of the
affected areas (including (x) the Surrender Release Space or the Vacate
Space, as the case may be, and (y) the balance of the Leased Premises), (ii) identify
the need, if any, to establish additional Common Areas, (iii) separately
identify, and sufficiently describe the scope of, each of the Primary Demising
Work and the Other Demising Work, (iv) provide measurements of the
affected areas in accordance with the Measurement Standard, and (v) include
an estimate of each of the Demising Work Costs, the Primary Demising Work Costs
and the Other Demising Work Costs.


 


(2)           After both parties have
approved the SLC Space Plan, Landlord shall cause design professionals
reasonably acceptable to Tenant to prepare plans and specifications setting
forth the Demising Work (including, as applicable, architectural, mechanical,
electrical, lighting and plumbing plans), based on the Final SLC Space Plan,
and detailing all of the proposed improvements shown on the SLC Space Plan
(such plans and specifications being herein called the “SLC Plans &
Specifications”). The SLC Plan & Specifications shall be subject
to the reasonable approval of both Landlord and Tenant, and Landlord shall
cause the same to be revised until the same has been approved by both parties
(the SLC Plan & Specifications, as finally approved by both Landlord
and Tenant, being herein called the “Final SLC Plans &
Specifications”). Any disputes with respect to either party’s approval of
the SLC Plans & Specifications shall be resolved in accordance with Article XII
hereof. The SLC Plans & Specifications shall reflect improvements of a
type and quality consistent with Building Standards.


 


(3)           After both parties have
approved the SLC Plans & Specifications, Landlord will (i) apply
for, and obtain, all necessary governmental approvals and permits in connection
with the Demising Work as shown on the Final SLC Plans &
Specifications, and (ii) cause the Demising Work to be performed in
substantial accordance with the Final SLC Plans & Specifications,
utilizing one or more contractors reasonably approved by Tenant; it being agreed, in that regard, that
Landlord shall solicit bids from no less than three (3) contractors for
the Demising Work and review the same with Tenant prior to proposing a
contractor for Tenant’s 


 


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reasonable acceptance. Landlord
shall cause all contractors to allocate their price and/or costs between the
Primary Demising Work and the Other Demising Work. Landlord and Tenant shall
cooperate with each other, in good faith, to coordinate the scheduling of the
Demising Work in an effort to complete the same in as timely a manner as
practicable, consistent with (x) the requirements of Section 1.7(d)(4) or
Section 11.2(b)(3) hereof, as the case may be, and (y) in
all events, Tenant’s continued use and occupancy of any adjoining portions of
the Leased Premises.


 


(4)           All Demising Work Costs
shall be paid by Landlord; provided, however, that Tenant, as
hereinafter provided, shall be obligated to pay to Landlord, as Additional
Rent, an amount (“Tenant’s Reimbursement Amount”) equal to the sum of (i) 100% of the portion of the
Primary Demising Work Costs, plus
(ii) Tenant’s share of the Other Demising Work Costs, determined by
multiplying the Other Demising Work Costs by the Tenant’s Occupancy Percentage
(determined immediately following the surrender of such Surrender Release Space
or Vacate Space, as the case may be). Within thirty (30) days after completion
of the Demising Work (and finalization, between the parties, of the Primary
Demising Work Costs and the Other Demising Work Costs), Tenant shall either (i) pay
Tenant’s Reimbursement Amount to Landlord in a lump-sum payment, or (ii) elect
to pay the same to Landlord on an amortized basis over the balance of the
Initial Term, with an interest factor using a rate equal to the Prime Rate (in
effect as of the completion of the Demising Work), in which event, Tenant shall
pay such amount, as so amortized, through equal monthly Additional Rent
payments payable on the first day of each month then remaining in Initial Term;
provided, however, that if, for any reason (other than any act
of, or default by, Landlord), the Initial Term shall end prior to the
Expiration Date, then any unamortized portion of such amount shall be paid by
Tenant to Landlord within thirty (30) days after the end of the Term.
Notwithstanding the foregoing, during the Integration Period, Tenant shall have
the right to finance Tenant’s Reimbursement Amount pursuant to Section 10
of the Master Agreement.


 


(5)           Landlord and Tenant hereby acknowledge that,
pursuant to the Purchase Agreement, Tenant, as seller, agreed to a reduce the
purchase price for certain Portfolio Properties (i.e.,
those defined in the Purchase Agreement as “Demising Work Properties”)
by an amount defined in the Purchase Agreement as the “Estimated
Tenant Reimbursement Amount” with respect to such Portfolio
Property. Notwithstanding the foregoing provisions of this Section 5.7,
if the Property constitutes one of such Demising Work Properties
under the Purchase Agreement, then, in consideration of such reduction in such
purchase price, the following provisions shall apply: (A) Tenant shall not
be obligated to pay any Tenant Reimbursement Amounts that accrue hereunder
prior to the last day of the third Lease Year, except for the reconciliation
payment that may be required of Tenant under Section 5.7(b)(5)(C)(I) hereof;
(B) within thirty (30) days after the last day of the third Lease Year,
Landlord and Tenant shall reconcile (i) all
Tenant Reimbursement Amounts that shall have accrued hereunder prior to the
last day of the third Lease Year (collectively, the “Accrued TRA”), with (ii) the Estimated Tenant
Reimbursement Amount which constituted a reduction in the purchase
price for the Property under the Purchase Agreement; and (C) within thirty
(30) days after such reconciliation shall become final between the parties, (I) Tenant
shall pay to Landlord the amount (if any) by which the Accrued TRA shall exceed
such Estimated Tenant Reimbursement Amount,
which payment shall be in full satisfaction of all Tenant Reimbursement Amounts
that shall have accrued prior to the last day of the third Lease Year, or (II) Landlord
shall pay to Tenant the amount (if any) by which such Estimated
Tenant Reimbursement Amount shall exceed the Accrued TRA.


 


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5.8           Payment of Refund
Amount Per Section 26 of Purchase Agreement


 


Section 26
of the Purchase Agreement provides that, under certain circumstances set forth
in the Purchase Agreement, Landlord, as purchaser, may, have the obligation to
pay to Tenant, as seller, with respect to the Property, a certain amount that
is defined therein as the “Refund Amount”.
Landlord and Tenant hereby agree that any such obligation to pay Tenant the
Refund Amount with respect to the Property is hereby incorporated into this
Lease as an obligation of Landlord (as Landlord hereunder), and, accordingly,
in the event that Landlord shall fail to pay to such amount as and when due,
then Tenant shall have all its rights and remedies hereunder on account thereof
(including, as applicable, its rights and remedies under Section 13.2
hereof).


 


ARTICLE VI

CONDEMNATION, CASUALTY AND INSURANCE


 


6.1           Condemnation


 


(a)           If all or a portion of the Property as would
render the continuance of Tenant’s business from the Leased Premises
impracticable (as reasonably determined by Tenant) is permanently taken or
condemned for any public purpose, then Tenant shall have the option of
terminating this Lease upon the giving of notice to Landlord within twenty (20)
days from the date of such condemnation or taking.


 


(b)           If all or substantially all of the Property,
or so much thereof as to cause the remainder not to be economically feasible to
operate, as reasonably determined by Landlord, is permanently taken or
condemned for any public purpose, and Landlord theretofore (or therewith)
terminates all similarly affected leases in the Building, then Landlord shall
have the option of terminating this Lease upon the giving of notice to Tenant
within twenty (20) days from the date of such condemnation or taking.


 


(c)           If this Lease is terminated as provided in Sections
6.1(a) or (b) above, then this Lease shall cease and
expire as to such Leased Premises as of the date of transfer of possession of
the Leased Premises, the Property, or the applicable portion thereof, as if
such date was the expiration date of this Lease.


 


(d)           If, upon any condemnation or taking of a
portion of the Leased Premises, this Lease is not terminated by either Landlord
or Tenant as aforesaid, then Tenant shall pay all Rent up to the date of
transfer of possession of such portion of the Leased Premises so taken or
condemned and this Lease shall thereupon cease and terminate with respect to such
portion of the Leased Premises so taken or condemned as if the date of transfer
of possession of the Leased Premises was the expiration date of the Term
relating to such portion of the Leased Premises.  Thereafter, the Annual Basic Rent, and Tenant’s
Operating Expense Share and Tenant’s Tax Share shall be calculated based on the
Net Rentable Area of the Leased Premises not so taken or condemned.  If any such condemnation or taking of all or
any part of the Property occurs and this Lease is not so terminated, then
Landlord shall, within sixty (60) days after the date of such condemnation or
taking, commence such restoration work to the remaining portions Property
(including the Building, the Common Areas, the Leased Premises and the other
Leasable Areas, 


 


77

















 


but not including, in any event, any Tenant
Property or the trade fixtures or personal property of other tenants or
occupants) as shall be needed so that such remaining portion of the Property
shall constitute a complete architectural unit, reasonably fit for Tenant’s
occupancy and business as reasonably determined by Tenant and Landlord. If
Landlord fails to cause such restoration work to be substantially completed
within twelve (12) months after the date of such condemnation or taking, for
any reason other than a delay caused by an act or omission of Tenant, and such
failure materially interferes with Tenant’s use and occupancy of the Property,
then Tenant shall have the right to terminate this Lease by notifying Landlord
in writing of such termination within thirty (30) days after the expiration of
such 12-month period. The 12-month period described in the preceding sentence
shall be automatically extended for each day of delays caused by Force Majeure
Events; but such extensions, in the aggregate, shall not exceed a total of
sixty (60) days.


 


(e)           In the event of any condemnation or taking
of all or a portion of the Leased Premises, and in the event of any
condemnation or taking of all or a portion of the Parking Areas or other Common
Areas of the Property which materially adversely affects the value of or Tenant’s
use or enjoyment of the Leased Premises, Tenant, at Tenant’s expense may,
jointly appear with Landlord in proceedings relative to such taking, and Tenant
may claim, prove and recover, in such proceedings, (i) the value of any
Tenant Property taken, (ii) the loss of Tenant’s business as the result of
such condemnation or taking, and (iii) any relocation and moving expenses.


 


(f)            If (i) any taking or condemnation for
any public purpose is of a portion (but less than all) of the Leased Premises
or any portion thereof, (ii) the same occurs for only a period of three (3) months
or less, and (iii) during such period, the portions of the Leased Premises
not so taken, together with the portions of the Common Areas not so taken, are
in Tenant’s reasonable judgment sufficient to allow the conduct of Tenant’s
business in the portion of the Leased Premises not so taken to substantially
the same extent and quantity as before the taking (and Tenant, in fact, ceases
its use, for business purposes, only in the portions of the Leased Premises so
taken, but continues to operate in the portions of the Leased Premises not so
taken), then such taking or condemnation shall be deemed a temporary taking and
this Lease shall continue in full force and effect, except that, throughout the
period of such temporary taking, Annual Basic Rent, Tenant’s Operating Expense
Share and Tenant’s Tax Share shall be calculated based on the Net Rentable Area
of the Leased Premises not so taken.


 


6.2           Damages from Certain
Causes


 


Except as provided in Section 3.1,
Section 6.3 and/or Section 6.6, and subject to Landlord’s
obligations to restore, repair and maintain as specifically provided in this
Lease, Landlord shall not be liable or responsible to Tenant for any loss or
damage to any property or person if, and to the extent, occasioned by one or
more Force Majeure Events.


 


6.3           Casualty Clause


 


(a)           If, at any time during the Term, the
Property (including the Building, the Common Areas, the Leased Premises,
inclusive of the Leasehold Improvements, and the other Leasable Areas and the
leasehold improvements therein) or any part thereof (collectively, the 


 


78

















 


“Damaged Property”) is damaged by
fire, earthquake, flood or by any other casualty of any kind or nature (a “Casualty”)
then, unless this Lease is terminated as hereinafter provided in this Section 6.3(a) or
Section 6.3(b) below, Landlord shall proceed to rebuild or
restore the Damaged Property at Landlord’s sole cost and expense; provided,
that, in no event shall Damaged Property include, nor shall Landlord or
Tenant have any obligation to rebuild or restore, any of Tenant’s Property or
the trade fixtures or personal property of other tenants or occupants. Such
rebuilding and restoration work required of Landlord is herein collectively
called “Landlord’s Restoration Work”. 
If any Casualty shall render the Leased Premises completely or partially
untenantable for any period (regardless of whether the Damaged Property
includes any part of the Leased Premises), then all Rent shall be abated in the
proportion that the untenantable area of the Leased Premises bears to the total
area of the Leased Premises for the period of such untenantability. The term “untenantable”,
when used with respect to the Leased Premises, or any portion thereof, shall
mean that the Leased Premises, or such portion thereof, is not reasonably
capable of being used (and, in fact, is not used) by Tenant or any Tenant Party
theretofore occupying the same for the purposes demised hereunder. Within
thirty (30) days following any Casualty, Landlord shall cause to be prepared
and delivered to Tenant an estimate of the date by which the Landlord’s
Restoration Work necessitated by Casualty shall be completed (which estimate
shall be prepared by an independent reputable contractor, registered architect
or licensed professional engineer designated by Landlord, and reasonably
approved by Tenant) (such estimate being herein called the “LRW Estimate”).
If the LRW Estimate is a date later than the date that is eighteen (18) months
after the date of the Casualty, then Tenant may terminate this Lease by giving
Landlord notice to such effect within thirty (30) days after the LRW Estimate
is delivered to Tenant (and in the event of such termination, the Rent shall be
prorated and adjusted as of the date of such termination, subject to the
abatement provisions herein-above set forth).


 


(b)           In the case of a Casualty resulting in
Qualified Damage, Landlord may elect to terminate this Lease on account thereof
by delivering written notice to Tenant within forty-five (45) days after the
date of the Casualty; provided, that Landlord theretofore (or
therewith) also terminates all other similarly affected leases in the Building.
As used herein, a “Qualified Damage” shall mean any one or more of the
following:


 


(i)            Damage to the Building
to an extent greater than fifty percent (50%) of the replacement cost of the Building,
above the foundation, and such damage or destruction shall be caused by a risk
covered by insurance maintained or required to be maintained (whether or not
actually maintained) by Landlord pursuant to this Lease (i.e.,
an “insurable risk”).


 


(ii)           Damage to the Building,
resulting from a risk other than an insurable risk, to an extent greater than
twenty-five percent (25%) of the replacement cost of the Building, above the
foundation.


 


(c)           Notwithstanding any language herein to the
contrary, if at the time of any substantial damage to the Leased Premises from
a Casualty, less than one (1) year remains in the Term (and Tenant has no
further outstanding Renewal Options), then (i) Landlord shall have the
right, in its sole option, to elect not to rebuild or restore the Damaged
Property, such right to be exercised, if at all, by written notice to Tenant
within thirty (30) days after the date of such Casualty, and (ii) Tenant
shall have the right, in its sole option, to terminate this Lease, such 


 


79

















 


right to be exercised, if at all, within
thirty (30) days after the date of such Casualty or within thirty (30) days
after Tenant’s receipt of Landlord’s notice pursuant to Section 6.3(c)(i) above.


 


(d)           If Landlord is herein required to perform
any Landlord’s Restoration Work (i.e., a
Casualty shall occur and this Lease shall not be terminated as herein-above
provided), then the following provisions shall apply:


 


(1)           Landlord shall commence
Landlord’s Restoration Work as expeditiously as possible but not later than
sixty (60) days following the Casualty, and shall thereafter diligently
prosecute the same to completion. Landlord shall notify Tenant of the date on
which it commences Landlord’s Restoration Work, which notice shall be
accompanied by the written statement of Landlord’s architect supervising such
work certifying to such date.


 


(2)           Notwithstanding
anything herein contained to the contrary, if Landlord fails to substantially
complete Landlord’s Restoration Work (it being understood that in no event
shall Landlord’s Restoration Work be deemed substantially
completed unless and until the Leased Premises are tenantable and
the Common Areas functional for all purposes hereunder) on or prior to the
Outside Completion Date, then Tenant may terminate this Lease by delivering
written notice to Landlord within thirty (30) days after the Outside Completion
Date, but before Landlord’s Restoration Work shall have been substantially
completed.  If Tenant fails to deliver
such notice within such thirty (30) day period, then Tenant shall have waived
its right to terminate this Lease under this Section 6.3(d)(2) for
a period of six (6) months; after which 6-month period, such right shall
again be available for a period of thirty (30) days, on the same terms, if the
Landlord’s Restoration Work is still not substantially completed. The
provisions of the two immediately preceding sentences shall implemented
repeatedly until the Landlord’s Restoration Work is substantially completed or
this Lease is terminated as therein provided. The “Outside Completion Date”
shall mean the date of the LRW Estimate; provided, however, that
the Outside Completion Date shall be automatically extended one day for each
day by which Landlord is delayed in substantially completing Landlord’s
Restoration Work by reason of Force Majeure Events (but in no event shall the
Outside Completion Date be extended, in the aggregate, for more than sixty (60)
days by Force Majeure Events).


 


6.4           Property Insurance


 


Landlord shall maintain standard fire and
extended coverage insurance covering the Property (including the Building, the
Common Areas, the Leased Premises, inclusive of the Leasehold Improvements, and
the other Leasable Areas and the leasehold improvements therein, but excluding
Tenant Property and the personal property and trade fixtures of other tenants
and occupants of the Property) against loss or damage by reason of fire and/or
other risks and perils included within a standard “all risk” insurance policy
(or its equivalent, e.g., a “special
causes of loss” policy), containing a so-called “extended coverage endorsement”
(or its equivalent), and/or, to the extent not otherwise included therein, by
reason of acts of terrorism, in an amount not less than one hundred percent
(100%) of the full replacement cost thereof above the foundation. The policy of
such insurance shall include a waiver of the insurer’s right of subrogation
against Tenant consistent with release and waiver provisions of Section 6.7
below. Upon the request of Tenant, a copy of a duly executed certificate of
insurance reflecting Landlord’s maintenance of the insurance required under
this Section 6.4 (including the aforementioned waiver of 


 


80

















 


subrogation)
shall be delivered to Tenant. Said insurance shall be maintained with a
reputable insurance company selected by Landlord and qualified and licensed to
do business in the State and having a current Best’s Rating of A or better
(provided, that, during any period that the required insurance coverage is not
available on commercially reasonable terms from insurers with such a rating,
then Landlord may utilize a company with a lower rating, so long as such
company has a rating equal to the highest rating as among the insurers then
making available the required insurance coverage on commercially reasonable
terms). All payments for losses thereunder shall be made solely to Landlord.


 


6.5           Liability Insurance


 


Landlord and Tenant shall each maintain a policy
or policies of commercial general liability insurance, with the premiums
thereon fully paid on or before the due dates, issued by and binding upon a
reputable insurance company qualified and licensed to do business in the State,
with a current Best’s Rating of A or better (provided, that during any period
that the required insurance coverage is not available on commercially
reasonable terms from insurers with such a rating, then Landlord or Tenant may
utilize a company with a lower rating, so long as such company has a rating
equal to the highest rating as among the insurers then making available the
required insurance coverage on commercially reasonable terms). Such insurance
shall be written on occurrence basis, and shall afford minimum coverage (which
may be effected by primary and/or excess coverage) of not less than Three
Million Dollars ($3,000,000.00) for bodily injury, death or property damage in
any one (1) accident or occurrence. Notwithstanding anything to the
contrary contained herein, so long as Tenant satisfies the Self-Insurance Net
Worth Test, Tenant may elect to self-insure in lieu of meeting Tenant’s
liability insurance requirements under this Section 6.5. If, and to
the extent, Tenant does not, in whole or in part, carry insurance that complies
with the requirements of this Section 6.5, then Tenant shall be
deemed to have elected to self-insure to such extent. Either Landlord or Tenant
may, from time to time, request the consent of the other party to increase the
aforementioned level of minimum coverage, and such other party shall not
unreasonably withhold its consent thereto, so long as the requested increased
level of minimum coverage is not in excess of the limits then generally
maintained by similarly situated parties in Comparable Buildings.
Notwithstanding the foregoing provisions of this Section 6.5, if,
and for so long as, Tenant hereunder is a Wachovia Party, Tenant may elect to
maintain the liability insurance required of Tenant under this Section 6.5
though policies issued by a captive insurance company that is wholly owned by
Wachovia Corporation (whether or not such insurance company is licensed or
rated as herein-above otherwise required).


 


6.6           Hold Harmless


 


(a)           Landlord shall not be liable to Tenant, or
to any Tenant Party, for any damage to person or property to the extent caused
by any negligent act or omission of Tenant or any Tenant Party; and Tenant
agrees to and does hereby indemnify, defend and hold harmless, Landlord and all
Landlord Parties from and against any and all claims, demands, causes of
action, fines, penalties, costs, expenses (including reasonable attorneys’ fees
and court costs), liens or liabilities to the extent caused by any willful
misconduct, or negligent act or omission, of Tenant or any Tenant Party.


 


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(b)           Tenant shall not be liable to Landlord, or
to any Landlord Party, for any damage to person or property to the extent
caused by any negligent act or omission of Landlord or any Landlord Party; and
Landlord agrees to and does indemnify, defend and hold harmless Tenant and all
Tenant Parties from and against any and all claims, demands, causes or action,
fines, penalties, costs, expenses (including reasonable attorneys fees and
costs), liens or liabilities to the extent caused by any willful misconduct, or
negligent act or omission, of Landlord or any Landlord Party.


 


6.7           WAIVER OF RECOVERY


 


ANYTHING IN THIS LEASE TO THE CONTRARY
NOTWITHSTANDING, LANDLORD AND TENANT EACH HEREBY WAIVES ANY AND ALL RIGHTS OF
RECOVERY, CLAIM, ACTION OR CAUSE OF ACTION, AGAINST THE OTHER, AND ITS AGENTS,
SERVANTS, PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS OR EMPLOYEES, FOR ANY
LOSS OR DAMAGE THAT MAY OCCUR TO THE LEASED PREMISES, THE PROPERTY OR ANY
IMPROVEMENTS THERETO OR THEREON, OR ANY PROPERTY OF SUCH PARTY THEREIN OR
THEREON, BY REASON OF FIRE, THE ELEMENTS, OR ANY OTHER CAUSE THAT IS INSURED
AGAINST (OR IS INSURABLE, WHETHER OR NOT ACTUALLY INSURED) UNDER THE TERMS OF
STANDARD FIRE AND EXTENDED COVERAGE INSURANCE POLICIES IN THE STATE, REGARDLESS
OF THE AMOUNT OF THE PROCEEDS, IF ANY, PAYABLE UNDER SUCH INSURANCE POLICIES
AND THE CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY HERETO, OR ITS
AGENTS, OFFICERS, PARTNERS, SHAREHOLDERS, SERVANTS OR EMPLOYEES, AND COVENANTS
THAT NO INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST SUCH OTHER PARTY ON
ACCOUNT THEREOF.


 


ARTICLE VII

DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION


 


7.1           Default and Remedies


 


(a)           The occurrence of any of the following
events shall constitute an event of default (“Event of Default”) under
this Lease on the part of Tenant:


 


(i)            Tenant shall default
in the payment of any Rent when due (including Annual Basic Rent, Tenant’s
Operating Expense Share, Tenant’s Tax Share and Above Standard Services Rent),
and such default shall continue for a period of ten (10) Business Days
after written notice thereof from Landlord to Tenant; or


 


(ii)           At any time that Tenant
does not satisfy the Self-Insurance Net Worth Test, Tenant shall default in its
obligation to maintain any policy of insurance that Tenant is required to
maintain under Section 6.5 hereof, and such default shall continue
for a period of ten (10) Business Days after written notice from Landlord
to Tenant of such default, which notice shall (A) specifically refer to Section 6.5
hereof, and the insurance policy which Tenant has failed to maintain, and (B) state,
in all capital letters and in a prominent place, that the 


 


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continuance of
such failure to maintain insurance for five (5) Business Days after Tenant’s
receipt of such written notice will constitute an Event of Default under this Section 7.1(a)(ii);
or


 


(iii)          Tenant shall default
under any of its other obligations under this Lease (other than any default
described in Section 7.1(a)(i) and (ii) above),
and such default shall continue for a period of thirty (30) days after written
notice from Landlord to Tenant thereof (or, if such default is curable but
reasonably cannot be cured within such thirty (30) day period, then Tenant
shall not commence the cure thereof within such thirty (30) day period or
thereafter shall not diligently pursue such cure until the same is
accomplished).


 


(b)           Upon the occurrence of an Event of Default,
subject to Section 7.1(e) below, Landlord, in addition to all
other remedies available to it at law or in equity, shall have the right to
terminate this Lease, or terminate Tenant’s right to possession hereunder, by
written notice to Tenant, whereupon the following provisions shall apply:


 


(i)            Tenant shall
immediately vacate the Leased Premises pursuant to Section 4.1
hereof, whereupon Landlord shall have the right to re-enter and take possession
of the Leased Premises.


 


(ii)           Landlord may
immediately or at any time thereafter re-enter the Leased Premises, and (x) repair
any condition which shall constitute a default on Tenant’s part hereunder, and (y) remove
any Tenant Property then located within the Leased Premises consistent with the
provisions of Section 5.3 hereof.


 


(iii)          Landlord may immediately
or at anytime thereafter relet the Leased Premises or any part thereof, for
such time or times, at such rental or rentals and upon such other terms and
conditions as Landlord deems reasonable, and Landlord may make any alterations
or repairs to the Leased Premises that are necessary or proper to facilitate
such reletting as office space. Landlord hereby agrees to use its commercially
reasonable efforts to relet the Leased Premises to mitigate or otherwise reduce
the damages for which Tenant may be liable hereunder; provided that in no event
shall Landlord’s leasing or attempted leasing of other space in the Building
instead of the Leased Premises, in and of itself, violate the provisions of
this sentence.  Any such reletting may be
for such rent, for such time, and upon such terms as the Landlord, in the
Landlord’s good faith discretion, shall determine, provided, that the same
shall, in all events, be commercially reasonable.  Landlord shall be deemed to have exercised
commercially reasonable efforts to relet the Leased Premises so long as
Landlord or Landlord’s agents employ marketing methods and procedures
substantially similar to marketing methods and procedures used by Landlord or
Landlord’s agents to market and lease other vacant space in the Building or
other buildings, which are similar in nature and quality to the Building, owned
by Landlord or an Affiliate of Landlord.


 


(iv)          Landlord shall have the
right to recover from Tenant, as damages, the sum of
(1) the full amount of all unpaid Annual Basic Rent and Additional Rent
payable up to the time of such termination of this Lease (or termination of
Tenant’s right to possession, as the case may be) (including, if applicable,
any unpaid interest payable by Tenant under Section 2.1(d) hereof),
plus (2) all reasonable costs
incurred by Landlord in connection with (x) evicting Tenant from the
Leased Premises, and (y) any repairs or removals made pursuant to


 


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Section 7.1(b)(ii) above,
plus (3) damages pursuant to either
“(A)” or “(B)” below, as Landlord shall elect:


 


(A)          damages, payable monthly
throughout the period (the “Damages Period”) commencing on the day after
the date of such termination and ending on the last day of the Term (determined
without regard to any theretofore unexercised Renewal Options), in a monthly
sum equal to the excess (if any) of
(i) the monthly Rent which would have been payable by Tenant under this
Lease for such month had this Lease remained in effect, over (ii) the monthly sums payable to
Landlord for such month under any lease(s) of the Leased Premises then in
effect (net of the reasonable costs incurred by Landlord to re-let the Leased
Premises pursuant to such lease(s)) (it being agreed that Tenant shall not be
entitled to receive any excess of the sums described in clause (ii) of
this sentence over the sums described in clause (i) of this sentence); or


 


(B)           damages, payable in a
one-time lump-sum, equal to the excess, if
any, of (i) the present value (discounted at the Prime Rate) of
the total amount of all Rent which would have been payable by Tenant under this
Lease for the entire Damages Period had this Lease remained in effect, over (ii) the present value
(discounted at the same rate) of the fair market rental value of the Leased
Premises for the entire Damages Period.


 


(c)           If Landlord re-enters the Leased Premises after
terminating this Lease pursuant to Section 7.1(b) above,
Tenant hereby waives all claims for damages that may be caused by such re-entry
by Landlord, other than claims based on Landlord’s willful misconduct or
negligence.


 


(d)           The exercise by Landlord of any one or more of the
rights and remedies provided in this Lease shall not prevent the subsequent
exercise by Landlord of any one or more of the other rights and remedies herein
provided or otherwise permitted at law or in equity.  Except as otherwise provided in this Lease,
remedies provided for in this Lease are cumulative and may, at the election of
Landlord, be exercised alternatively, successively, or in any other manner and
are in addition to any other rights provided for or allowed by law or in
equity.


 


(e)           Notwithstanding the provisions set forth in Section 7.1(b),
Landlord may not terminate this Lease pursuant thereto unless Tenant shall have
failed to pay, without the contractual right to abate or offset as herein
otherwise provided, Rent in an amount equal to or greater than the Threshold
Default Amount, and such failure to pay continues, beyond the point of becoming
an Event of Default, for an additional period of ten (10) Business Days
following Tenant’s receipt of second written notice thereof from Landlord,
which notice shall refer to this Section 7.1(e), and state in all
capital letters (or other prominent display) that this Lease may be terminated
if Tenant fails to promptly pay all overdue Rent. The “Threshold Default
Amount” shall mean an amount equal to two (2) months’ Annual Basic
Rent hereunder.


 


(f)            If (i) Tenant shall default in the performance
of any of Tenant’s obligations under this Lease, and (ii) such default
shall thereafter become an Event of Default hereunder (or, in cases of
emergency only, such default shall continue for 24 hours after notice thereof
from Landlord to Tenant), then Landlord, without thereby waiving such default
(and without limiting any other right or remedy it might have on account
thereof, in law or in equity), may (but shall not be obligated to) perform such
obligation for the account, and at the expense, of Tenant. In 


 


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any such event, Tenant, within thirty (30) days after Landlord’s
delivery of an invoice therefor (together with reasonable supporting
documentation), shall reimburse Landlord for any reasonable out-of-pocket
expenses incurred by Landlord (including reasonable attorneys’ fees) in
connection with Landlord’s performance of any such obligation for the account
of Tenant pursuant to this Section 7.1(f), together with interest
thereon, at the Applicable Rate, from the date that such expenses were incurred
by Landlord to the date that the same are reimbursed to Landlord by Tenant.


 


7.2           Insolvency or Bankruptcy


 


The appointment of a receiver to take possession of
all or substantially all of the assets of Tenant, or any general assignment by
Tenant for the benefit of creditors, or any action taken by Tenant under any
insolvency, bankruptcy, or reorganization act, or an involuntary proceeding
against Tenant that is not dismissed or bonded against within one hundred
twenty (120) days after the filing thereof, shall at Landlord’s option,
constitute an Event of Default hereunder (and the provisions of Section 7.1
hereof shall apply in respect thereof). In no event shall this Lease be
assigned or assignable by voluntary or involuntary bankruptcy or a proceeding
in lieu thereof, other than in accordance with Article VIII hereof.


 


7.3           Negation of Lien for Rent


 


(a)           Landlord hereby expressly waives and negates any and
all contractual liens and security interests, statutory liens and security
interests or constitutional liens and security interests arising by operation
of law (collectively, “Landlord’s Liens”) to which Landlord might now or
hereafter be entitled on all property of Tenant (whether owned or Leased by Tenant)
now or hereafter placed in or upon the Leased Premises, except for judgment
liens, if any.


 


(b)           To the extent that the aforesaid waiver and negation
is not effective or unenforceable, Landlord hereby subordinates all of Landlord
Liens to any and all liens placed on the property of Tenant (whether owned or
leased by Tenant), including all liens created as a result of any security
interest granted in or chattel mortgage placed upon such property of Tenant.


 


(c)           Landlord shall from time to time, upon request of
Tenant, confirm the aforedescribed waiver and negation or subordination, as
applicable, in writing.  If (x) Landlord
shall fail to execute (and if requested by Tenant, acknowledge) such
confirmation within twelve (12) Business Days after Tenant’s request and (y) such
failure shall continue for five (5) Business Days after delivery of a
notice from Tenant indicating such failure, which notice shall refer to this Section 7.3(c) and
recite, in all capital letters (or other prominent display), the provisions of Section 7.3(c),
then Tenant shall be appointed Landlord’s true and lawful attorney-in-fact,
coupled with an interest, for the purpose of executing and delivering such
confirmation.


 


7.4           Attorney’s Fees


 


If either party shall bring any legal action or
proceeding in any court of competent jurisdiction to enforce its rights or the
other party’s obligations under this Lease, or if the parties hereto shall
otherwise become adverse parties in any such action or proceeding, then the
prevailing party in such action or proceeding shall be entitled to be
reimbursed by the


 


85

















 


non-prevailing party for all
reasonable attorneys’ fees and disbursements actually incurred by the
prevailing party (without regard to any statutory presumption) in connection
with such action or proceeding (at all levels, before, during and after trial,
and on appeal).


 


7.5           No Waiver of Rights


 


No failure or delay of Landlord or Tenant in any one
instance to exercise any remedy or power given it herein or to insist upon
strict compliance by Tenant or Landlord of any obligation imposed on it herein
in any other instance and no custom or practice of either party hereto at
variance with any term hereof shall constitute a waiver or a modification of
the terms hereof by such party in any one instance or any right it has herein
to demand strict compliance with the terms hereof by the other party in any
other instance.  No express waiver shall
affect any condition, covenant, rule, or regulation other than the one
specified in such waiver and then only for the time and in the manner specified
in such waiver.  No person has or shall
have any authority to waive any provision of this Lease unless such waiver is
expressly made in writing and signed by an authorized officer of Landlord or
Tenant.  No endorsement or statement on
any check or letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.


 


7.6           Holding Over


 


(a)           Except as provided in Section 7.6(b), in
the event of holding over by Tenant after expiration or termination of this
Lease without the written consent of Landlord, Tenant shall pay throughout the
entire holdover period (i.e., the
period commencing on such expiration or termination and continuing until Tenant
shall no longer be holdover in the Leased Premises), as liquidated damages,
rent (or a charge in respect of use and occupancy) at a per diem rate, (A) equal,
for each day of the first one hundred twenty (120) days of such holdover
period, to one hundred twenty-five (125%) percent of the average per diem rate
of Rent payable by Tenant during the last month of the Term, and (B) equal,
for each day of the holdover period thereafter, to one hundred fifty (150%)
percent of the average per diem rate of Rent payable by Tenant during the last
month of the Term. Nothing in this Section 7.6(a) shall be construed
as granting Tenant a right to retain possession of the Leased Premises, or as
limiting Landlord’s right to recover possession of the Leased Premises, after
the expiration or termination of this Lease.


 


(b)           Notwithstanding the provisions of Section 7.6(a),
Tenant shall be permitted to holdover in the Leased Premises, or a portion
thereof, for a period of time not to exceed sixty (60) days after the
expiration of the Term (whether the Initial Term or the Term as renewed) if and
only if: (1) Landlord has not already leased the portion of the Leased
Premises in which Tenant is holding over; and (2) Tenant gives Landlord
written notice of such intent to holdover within thirty (30) days prior to the
expiration of the Term; such written notice shall specify the length of time
Tenant intends to holdover and the portion of the Leased Premises in which
Tenant intends to holdover. If Tenant elects to holdover pursuant to the
preceding sentence, such holdover will be on an AS-IS basis except that the
Annual Basic Rent shall be one-hundred ten percent (110%) of the Annual Basic
Rent applicable to such Leased Premises immediately prior to such holdover.


 


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7.7           Subordination


 


(a)           Landlord represents to Tenant that, as of the date
of this Lease, (i) except for the Existing Mortgages (if any) identified
in Section 15.1 hereof, there are no Mortgages affecting the
Property, and (ii) except for the Existing Overleases (if any) identified
in Section 15.2 hereof, there are no Overleases affecting the
Property.


 


(b)           This Lease shall be and remain superior to any and
all Mortgages which may hereafter take effect, unless and until, in the case of
any such Mortgage, the Mortgagee thereunder and Tenant shall execute,
acknowledge and deliver a Mortgage SNDA (in which event this Lease shall be
subordinated to such Mortgage pursuant to such Mortgage SNDA). If, in the case
of any Mortgage that hereafter takes effect, (i) Landlord shall deliver to
Tenant a form of Mortgage SNDA (i.e., an
agreement meeting the definition thereof herein-above set forth) executed and
acknowledged by the Mortgagee thereunder, together with Landlord’s written
request that Tenant counter-execute, acknowledge and deliver the same, and (ii) such
Mortgagee shall be an institutional lender that is not an Affiliate of
Landlord, then Tenant shall counter-execute, acknowledge and deliver such
Mortgage SNDA within the period of twelve (12) Business Days thereafter.
Furthermore, if (x) Tenant shall fail to counter-execute, acknowledge and
deliver such Mortgage SNDA within such twelve (12) Business Day period, and (y) such
failure shall continue for a period of five (5) Business Days after
delivery of a notice from Landlord indicating such failure, which notice shall
refer to this Section 7.7(b) and recite, in all capital
letters (or other prominent display), the provisions of this Section 7.7(b),
then Tenant shall be deemed to have counter-executed, acknowledged and
delivered such Mortgage SNDA.


 


(c)           This Lease shall be and remain superior to any and
all Overleases which may hereafter take effect, unless and until, in the case
of any such Overlease, the Overlessor thereunder and Tenant shall execute,
acknowledge and deliver an Overlease SNDA (in which event this Lease shall be
subordinated to such Overlease pursuant to such Overlease SNDA). If, in the
case of any Overlease hereafter entered into as part of a Sale-Leaseback
Transaction,, (i) Landlord shall deliver to Tenant a form of Overlease
SNDA (i.e., an agreement meeting the
definition thereof herein-above set forth) executed and acknowledged by the
Overlessor thereunder, together with Landlord’s written request that Tenant
counter-execute, acknowledge and deliver the same, and (ii) such
Overlessor shall be an institutional lender that is not an Affiliate of
Landlord, then Tenant shall counter-execute, acknowledge and deliver such
Overlease SNDA within the period of twelve (12) Business Days thereafter.
Furthermore, if (x) Tenant shall fail to counter-execute, acknowledge and
deliver such Overlease SNDA within such twelve (12) Business Day period, and (y) such
failure shall continue for a period of five (5) Business Days after
delivery of a notice from Landlord indicating such failure, which notice shall
refer to this Section 7.7(c) and recite, in all capital
letters (or other prominent display), the provisions of this Section 7.7(c),
then Tenant shall be deemed to have counter-executed, acknowledged and
delivered such Overlease SNDA.


 


7.8           Estoppel Certificate


 


At the request of either Landlord or Tenant, the
other party will execute within twelve (12) Business Days from the date of
receipt of the request, from time to time, an estoppel certificate
substantially in the form attached as Exhibit E hereto, or in such
other form as may be 


 


87

















 


reasonably requested by the
requesting party (so long as such other form contains only those statements set
forth on the form attached as Exhibit E hereto, and other
statements confirmatory of reasonably ascertainable matters regarding the
express provisions of this Lease); provided that
any request submitted by Landlord requesting an estoppel certificate by Tenant
shall be accompanied by an estoppel certificate executed by Landlord indicating
whether or not there are any then existing defaults by Tenant under this Lease,
and if so, describing said defaults. Tenant and any third party certifying, to
the best of such party’s knowledge and belief, to the facts (if true) described
in such certificate.


 


7.9           Subsequent Documents


 


Any provision in this Lease expressly requiring that
Tenant or Landlord execute any estoppel certificate, SNDA or other document, is
subject to the requirements that, except as provided in this Lease or otherwise
agreed to, no such estoppel certificate, SNDA or other document shall (i) effect
(or purport to effect) either (x) any diminution of Tenant’s or Landlord’s
rights provided for in this Lease, or (y) any increase in Tenant’s or
Landlord’s obligations provided for in this Lease, or (ii) impose any
additional liability or costs upon Tenant or Landlord beyond that contemplated
by this Lease; and any statements contained in any estoppel certificate
regarding Lease defaults or breaches shall be limited to the actual knowledge
of the signing representative.


 


7.10         Interest Holder Privileges


 


If, as and when Tenant shall give any Landlord
Default Notice hereunder, Tenant shall give a copy of such notice to any
Interest Holder whose address shall have been furnished to Tenant, such copy to
be delivered to said Interest Holder at the same time such notice is delivered
to Landlord. Without limitation of the requirements of any SNDA between Tenant
and any such Interest Holder, Tenant hereby agrees to accept a cure of any such
default by Landlord hereunder from any such Interest Holder (with the same
force and effect as though cured by Landlord), but only during the same period
that Landlord is entitled to effect such cure. Nothing contained herein shall
require Tenant to forbear in the exercise of any of its rights under Article XIII
hereof for any period after it becomes entitled to exercise its rights
thereunder. The term “Landlord Default Notice” shall mean (x) any
notice sent by Tenant to Landlord pursuant to any of clauses (i), (ii) or
(iii) of Section 13.1(a) hereof indicating a
default by Landlord hereunder, and (y) any 24-hour notice sent by Tenant
to Landlord pursuant to the parenthetical under Section 13.1(b)(ii) hereof.


 


ARTICLE
VIII

ASSIGNMENT AND SUBLETTING


 


8.1           General


 


8.1.1        For purposes of this Lease, the following terms
shall have the following meanings:


 


(a)           “Assignment” shall mean any assignment or
other transfer of Tenant’s interest in this Lease (whether voluntarily, by
operation of law or otherwise); it being agreed that a Change of Control
Transaction with respect to Tenant shall also be deemed an “Assignment” (and shall 


 


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be deemed entered into by Tenant), but only if a principal purpose or
effect of such Change in Control Transaction is the transfer of Tenant’s
interest in this Lease.


 


(b)           “Change in Control Transaction,” with respect
to a person, shall mean any transaction or related series of transactions
(including any transfer(s) of stock or partnership, membership or other
equity interests) which results, directly or indirectly, in a change in the
control of such person (except, that, as used in this definition, the term “transaction” shall not include sales or issuances of stock
over a recognized stock exchange or “over-the-counter” market or otherwise as
part of a public offering).


 


(c)           “Retail Conversion Transaction” shall mean
either (1) an Assignment which (i) becomes effective at a time when
the Leased Premises include a portion of the Leased Premises theretofore used
as a retail bank branch, (ii) the Net Rentable Area of such portion of the
Leased Premises used as a retail bank branch comprises more than fifty percent
(50%) of the total Net Rentable Area of the Leased Premises, and (iii) permits
the assignee thereunder to use the same for a retail purpose other than a
retail bank branch, or (2) a Sublease which (x) demises a portion of
the Leased Premises theretofore used as a retail bank branch, (y) the Net
Rentable Area of such portion of the Leased Premises used as a retail bank
branch comprises more than fifty percent (50%) of the total Net Rentable Area
demised by such Sublease, and (z) permits the Subtenant thereunder to use
the same for a retail purpose other than a retail bank branch.


 


8.1.2        Except for Section 8.5 Transactions and Retail
Conversion Transactions, Tenant shall not enter into an Assignment or a
Sublease, other than subject to, and in accordance with, the provisions of Section 8.2
hereof. Except for Section 8.5 Transactions, Tenant shall not enter into a
Retail Conversion Transaction, other than subject to, and in accordance with,
the provisions of Section 8.3 hereof.


 


8.2           Landlord’s General Offer Rights


 


The following provisions shall apply with respect to
(i) any Assignment, other than an Assignment that is a Section 8.5
Transaction or a Retail Conversion Transaction, or (ii) any Sublease,
other than a Sublease that is either a Section 8.5 Transaction or a Retail
Conversion Transaction:


 


8.2.1        Tenant, prior to entering into such an Assignment or
Sublease, shall give Landlord notice of its desire or intention to do so under
this Section 8.2 (herein called “Tenant’s Offer Notice”),
which notice shall indicate whether Tenant contemplates an Assignment, a
Sublease or either an Assignment or Sublease, and, as applicable, shall set
forth (i) the earliest possible effective date of such contemplated
Assignment, and/or the earliest possible commencement date under the
contemplated Sublease, and (ii) in the case of a contemplated Sublease
demising less than the entire Leased Premises, set forth a description of the
portion(s) of the Leased Premises to be demised thereunder (the “Contemplated
Sublease Area”).


 


8.2.2        Each Tenant’s Offer Notice shall be deemed an offer
from Tenant to Landlord, whereby Landlord, at any time within the period of
thirty (30) days after the delivery of such Tenant’s Offer Notice (which period
is herein called “Landlord’s Recapture Period”), may, at Landlord’s
option (such option of Landlord, as described in either clause (i) or
clause (ii) of this 


 


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sentence, as applicable, being herein called “Landlord’s Recapture
Option”), either (i) in the case of any Tenant’s Offer Notice that
sets forth either (x) a contemplated Assignment or (y) a contemplated
Sublease of the entire Leased Premises, terminate this Lease (in its entirety),
or (ii) in the case of any other Tenant’s Offer Notice, terminate this
Lease as to the Contemplated Sublease Area. Landlord’s Recapture Option may be
exercised only by notice to Tenant (“Landlord’s Recapture Notice”) given
within Landlord’s Recapture Period.


 


8.2.3        If, in any instance that Tenant shall deliver a
Tenant’s Offer Notice to Landlord, Landlord shall exercise Landlord’s Recapture
Option, then the following provisions shall apply:


 


(a)           Effective as of the date that is sixty (60) days
after the last day of Landlord’s Recapture Period (or, if later, the date that
Tenant included in Tenant’s Offer Notice as either the earliest possible
effective date of the contemplated Assignment set forth therein, or the
earliest possible commencement date of the contemplated Sublease set forth
therein) (such date being herein called the “Recapture Effective Date”),
this Lease (i) in the case of any Tenant’s Offer Notice that sets forth
either (x) a contemplated Assignment or (y) a contemplated Sublease
of the entire Leased Premises, shall automatically terminate (in its entirety),
or (ii) in the case of any other Tenant’s Offer Notice, shall
automatically terminate as to the Contemplated Sublease Area.


 


(b)           In any case described in Section 8.2.3(a)(ii) that
this Lease shall automatically terminate as to the Contemplated Sublease Area
(as opposed to the entirety of the Leased Premises), Landlord, at its expense,
shall perform all the work (if any) required to cause all portions of the
Contemplated Sublease Area to be put in a Separately Leasable Condition.


 


(c)           If there is an NPV Profit Amount with respect to the
Leased Premises (in any case that this Lease shall terminate in its entirety)
or the Contemplated Sublease Area (in any case that this Lease shall terminate
as to the Contemplated Sublease Area), then Landlord, within thirty (30) days
after the Recapture Effective Date (or, if later, within thirty (30) days after
the final determination of the applicable Fair Market Rental Value Per RSF as
between Landlord and Tenant), shall pay to Tenant an amount equal to fifty
percent (50%) of such NPV Profit Amount. In that regard:


 


(1)           The term “NPV Profit
Amount” shall mean, with respect to the Leased Premises or any portion
thereof, an amount, determined as of the Recapture Effective Date, equal to the
excess (if any) of (1) the net present value of
all fixed rent that would have been payable to Tenant by a Subtenant under a
hypothetical Sublease that (i) demises the Leased Premises (or the
applicable portion thereof) for a hypothetical term commencing on the Recapture
Effective Date and ending on the last day of the Term (determined without
regard to any unexercised Renewal Options), (ii) provides for fixed rent
to be payable at a rate equal to the Fair Market Rental Value Per RSF of the
Leased Premises (or the applicable portion thereof) multiplied by the Net Rentable Area thereof, and (iii) is
otherwise consistent with the assumptions and criteria set forth in the
definition of Fair Market Rental Value Per RSF hereunder (i.e., the same, inter alia, (x) provides for additional rent to paid
by the Subtenant upon all the same terms and conditions of this Lease, i.e., a direct pass-through of all
additional rent payable hereunder with respect to the space demised by such
hypothetical Sublease, and (y) does not provide for any workletter,
improvement or other allowance or contribution, or period of free rent or rent
abatement) (which net present value shall be determined using a discount rate
equal the Prime Rate, and discounting 


 


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the same from the dates that such fixed rent
amounts would be payable to Tenant by such Subtenant under such hypothetical
Sublease to the Recapture Effective Date), over
(2) the sum of (A) the
net present value of all Annual Basic Rent which shall would have accrued under
this Lease with respect to the Leased Premises (or the applicable portion thereof)
during such hypothetical term (which net present value shall be determined
using a discount rate equal the Prime Rate, and discounting the same from the
dates that such Annual Basic Rent amounts would be payable by Tenant hereunder
to the Recapture Effective Date) plus
(B) the estimated cost, if any, that Tenant would have incurred in
connection with such hypothetical Sublease to perform the work required to
cause all portions of the Contemplated Sublease Area to be put in Separately
Leasable Condition (which estimate shall be determined by agreement of the
parties, acting reasonably, and, failing such an agreement, by an arbitration
pursuant to the provisions of Article XII hereof).


 


(2)           For a period of thirty (30)
days after the delivery of Landlord’s Recapture Notice, Landlord and Tenant
shall endeavor to reach agreement as to such Fair Market Rental Value Per RSF
for the Leased Premises (in any case that this Lease shall terminate in its
entirety) or the Contemplated Sublease Area (in any case that this Lease shall
terminate as to the Contemplated Sublease Area). If Landlord and Tenant are
unable to reach a definitive agreement as to such Fair Market Rental Value Per
RSF within such 30-day period, then either Landlord or Tenant, by written
notice thereof to the other party, may cause such Fair Market Rental Value Per
RSF to be submitted for determination in accordance the provisions of
subsections (1) through (3) of Section 1.4(e) hereof,
which subsections shall be applied, mutatis
mutandis, to the determination of such Fair Market Rental Value Per
RSF, and the rights and obligations of the parties in respect thereof.


 


8.2.4        If, in any instance that Tenant shall deliver a
Tenant’s Offer Notice to Landlord, Landlord shall not exercise Landlord’s
Recapture Option, then Tenant, within the period of two hundred seventy (270)
days after the expiration of Landlord’s Recapture Period (which period is
herein called the “Tenant’s Transfer Period”), shall have the right
(without any need to obtain Landlord’s consent) to enter into any Assignment or
one or more Subleases of the Leased Premises (or any portion thereof), or, if
applicable, the Contemplated Sublease Area (or any portion thereof), provided, that, in each case, at least ten (10) Business
Days prior to the effective date of any such Assignment, or the commencement
date of any such Sublease, Tenant shall deliver to Landlord a notice (each, a “Tenant’s
Transfer Notice”) describing the same, which notice shall (i) in case
of an Assignment, set forth the identity of the prospective assignee, and be
accompanied by a true and complete copy of the instrument of Assignment (which
instrument shall be fully executed and delivered between Tenant and the
assignee), and (ii) in case of a Sublease, set forth the identity of the
prospective Subtenant, and be accompanied by a true and complete copy of the
Sublease (which Sublease shall be fully executed and delivered between Tenant
and the Subtenant).  Notwithstanding
anything to the contrary in this Section 8.2.4, Tenant shall not have the
right to enter into a Retail Conversion Transaction without first complying
with Section 8.3 hereof.


 


8.2.5        Upon the expiration of the Tenant’s Transfer Period
with respect to a particular Tenant’s Offer Notice, Tenant shall no longer have
the right to enter into any Assignment or one or more Subleases of the Leased
Premises (or any portion thereof), or, if applicable, the Contemplated Sublease
Area (or any portion thereof) as herein-above provided in this 


 


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Section 8.2, unless and until (i) Tenant shall
deliver another Tenant’s Offer Notice, and (ii) another Tenant’s Transfer
Period shall thereafter become applicable as herein-above provided in this Section 8.2.


 


8.3           Landlord’s Offer Rights For Retail Conversion
Transactions


 


The following provisions shall apply with respect to
any Retail Conversion Transaction, other than a Section 8.5 Transaction:


 


8.3.1        Tenant shall not enter into a prospective Retail
Conversion Transaction unless Tenant, at least thirty (30) days prior to the
proposed effective date or commencement date thereof, gives Landlord a notice
under this Section 8.3 describing the prospective Retail Conversion
Transaction (herein called “Tenant’s RCT Notice”), which notice shall (i) state
that the proposed transaction would be a Retail Conversion Transaction under
this Article VIII, (ii) set forth the identity of the prospective
assignee or Subtenant, and (iii) be accompanied by either (A) a true
and complete copy of the instrument of Assignment or the Sublease in question
(fully executed and delivered between Tenant and the assignee or Subtenant, as
the case may be, but expressly providing that it shall not become effective or
commence unless and until Landlord’s RCT Termination Option shall have lapsed
as herein-below described), or (B) a letter of intent (fully executed and
delivered between Tenant and the assignee or Subtenant, as the case may be)
setting forth the material terms and conditions of the prospective Retail Conversion
Transaction, including (x) the earliest possible effective date of such
prospective Assignment, and/or the earliest possible commencement date under
such prospective Sublease, and (y) in the case of a contemplated Sublease
demising less than the entire Leased Premises, set forth a description of the
portion(s) of the Leased Premises to be demised thereunder.


 


8.3.2        Each Tenant’s RCT Notice shall be deemed an offer
from Tenant to Landlord, whereby Landlord, at any time within the period of
thirty (30) days after the delivery of such Tenant’s RCT Notice (which period
is herein called “Landlord’s RCT Period”), may, at Landlord’s option
(such option of Landlord being herein called “Landlord’s RCT Termination
Option”), either (i) in the case of a prospective Assignment, or a
prospective Sublease of the entire Leased Premises, terminate this Lease (in
its entirety), or (ii) in the case of a prospective Sublease of less than
the entire Leased Premises, terminate this Lease as to the portion of the
Leased Premises to be demised thereby. Landlord’s RCT Termination Option may be
exercised only by notice to Tenant (“Landlord’s RCT Termination Notice”)
given within Landlord’s RCT Period.


 


8.3.3        If, in any instance that Tenant shall deliver a
Tenant’s RCT Notice to Landlord, Landlord shall exercise Landlord’s RCT
Termination Option, then the following provisions shall apply:


 


(a)           Effective as of the last day of the Landlord’s RCT
Period (or, if later, the date that Tenant included in Tenant’s RCT Notice as
either the earliest possible effective date of the prospective Assignment set
forth therein, or the earliest possible commencement date of the prospective
Sublease set forth therein) (herein called the “RCT Termination Date”),
this Lease shall (i) in the case of a prospective Assignment or a
prospective Sublease of the entire Leased Premises, automatically terminate (in
its entirety), or (ii) in the case of a prospective Sublease of 


 


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less than the entire Leased Premises, automatically terminate as to the
portion of the Leased Premises to be demised thereby.


 


(b)           In the case of a prospective Sublease of less than
the entire Leased Premises, Landlord, at its expense, shall perform all the
work (if any) required to cause such area(s) to be put in a Separately
Leasable Condition.


 


(c)           If there is an NPV Profit Amount with respect to the
Leased Premises (in any case that this Lease shall terminate in its entirety)
or the portion the Leased Premises as to which this Lease is terminated (in any
case that this Lease shall terminate as to less than the entire Leased
Premises), then Landlord, within thirty (30) days after the RCT Termination
Date (or, if later, within thirty (30) days after the final determination of
the applicable Fair Market Rental Value Per RSF as between Landlord and
Tenant), shall pay to Tenant an amount equal to fifty percent (50%) of such NPV
Profit Amount. In that regard:


 


(1)           The definition of NPV Profit
Amount shall be applied using the RCT Termination Date (as opposed to the
Recapture Effective Date).


 


(2)           For a period of thirty (30)
days after the delivery of Landlord’s RCT Termination Notice, Landlord and
Tenant shall endeavor to reach agreement as to such Fair Market Rental Value
Per RSF for the Leased Premises (in any case that this Lease shall terminate in
its entirety) or the portion the Leased Premises as to which this Lease is
terminated (in any case that this Lease shall terminate as to less than the
entire Leased Premises). If Landlord and Tenant are unable to reach a
definitive agreement as to such Fair Market Rental Value Per RSF within such
30-day period, then either Landlord or Tenant, by written notice thereof to the
other party, may cause such Fair Market Rental Value Per RSF to be submitted
for determination in accordance the provisions of subsections (1) through
(3) of Section 1.4(e) hereof, which subsections
shall be applied, mutatis mutandis,
to the determination of such Fair Market Rental Value Per RSF, and the rights
and obligations of the parties in respect thereof.


 


8.3.4        In any instance that Tenant shall deliver a Tenant’s
RCT Notice to Landlord, if Landlord shall not exercise Landlord’s RCT
Termination Option, then (i) in any case that an instrument of Assignment
or Sublease accompanied such Tenant’s RCT Notice, the same may become effective
or commence in accordance with its terms (without any need to obtain Landlord’s
consent thereto), or (ii) in any case that a letter of intent describing a
Retail Conversion Transaction accompanied such Tenant’s RCT Notice, Tenant
(without any need to obtain Landlord’s consent thereto) shall have the right,
for a period of two hundred seventy (270) days after the expiration of Landlord’s
RCT Period, to enter into the Retail Conversion Transaction so described,
substantially upon all the terms and conditions set forth in such letter of
intent (and with no change in the permitted use set forth in such letter of
intent), whereupon Tenant shall deliver to Landlord a true and compete copy of
the instrument of Assignment or Sublease in question. In the latter case, if
the instrument of Assignment or Sublease is not fully entered into within such
270-day period, then Tenant shall no longer have the right to enter into the
same unless and until it again complies with the foregoing provisions of this Section 8.3.


 


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8.4                                Profit Payments Re:
Certain Assignments and Subleases


 


With respect to any Assignment or Sublease
entered into pursuant to Section 8.2 or 8.3 hereof, the
following shall apply:


 


8.4.1        In the case of an Assignment, Tenant, within
thirty (30) days after it shall receive any consideration from the assignee for
such Assignment, shall pay to Landlord an amount equal to fifty percent (50%)
of the amount thereof, but only to if, and to the extent that, such
consideration exceeds the sum of (i) any
inducements provided or paid by Tenant to the assignee in respect of such
Assignment, plus (ii) the cost of any other
work performed by Tenant in respect of such Assignment, plus
(iii) any and all out-of-pocket advertising expenses, brokerage
commissions and legal expenses paid or incurred by Tenant in connection with
such Assignment.


 


8.4.2        In the case of a Sublease, Tenant, within
thirty (30) days after the close of each calendar year during the Term in which
such Sublease shall be in effect, shall pay to Landlord an amount equal to
fifty percent (50%) of the Net Sublease Consideration with respect to such
Sublease for such calendar year, but only to if, and to the extent that, such
Net Sublease Consideration exceeds the sum of (i) any
inducements provided or paid by Tenant to the Subtenant pursuant to such
Sublease, plus (ii) the cost of any other
work performed by Tenant in respect of such Sublease (including demising work),
plus (iii) any and all
out-of-pocket advertising expenses, brokerage commissions and legal expenses
paid or incurred by Tenant in connection with such Sublease. The term “Net
Sublease Consideration”, with respect to any Sublease, shall, for any
calendar year, mean the positive excess (if any)
of (x) all rents, additional
charges or other consideration paid to Tenant by the Subtenant under such
Sublease during such calendar year, over (y) the
Annual Basic Rent and Additional Rent accruing under this Lease with respect to
the space demised by such Sublease (determined on a pro-rated rentable square foot
basis) during such calendar year (or the portion thereof for which such
Sublease was in effect).


 


8.5                                Transactions Exempt
From Section 8.2, 8.3 and 8.4


 


8.5.1        Notwithstanding anything to the contrary
contained herein, Tenant, from time to time, and at any time, during the Term,
shall have the absolute right (without any need to obtain Landlord’s consent,
and without any need to comply with the provisions of Sections 8.2, 8.3
or 8.4 hereof, but subject, as applicable, to the provisions of Sections
8.5.2 and 8.6 hereof) to enter into one or more of the following
transactions (each, a “Section 8.5 Transaction”):


 


(a)           An Assignment to any person with which, or
into which, Tenant is merged or consolidated, or to which all or substantially
all of Tenant’s assets are transferred, so long as the transfer of Tenant’s
interest in this Lease is not a principal purpose or effect of such merger,
consolidation or asset transfer.


 


(b)           An Assignment or Sublease that constitutes a
part of, or is incident to, a Bank Divestiture Transaction. The term “Bank
Divestiture Transaction” shall mean a transaction whereby Tenant sells,
conveys or otherwise divests itself of certain loans and/or deposits derived
from any retail banking operations located within the Leased Premises the terms
of which 


 


94

















 


include the transfer of all or any portion of
the Leased Premises from which the respective loans and/or deposits originate.


 


(c)           An Assignment or Sublease to any person that
acquires any separate division of, or operational group within, Tenant (each, a
“Tenant Business Group”), but only if, immediately prior to such
acquisition, (i) in the case of an Assignment, such Tenant Business Group
occupied a part of the Leased Premises, or (ii) in the case of a Sublease,
such Tenant Business Group occupied a part of the portion(s) of the Leased
Premises demised by such Sublease.


 


(d)           An Assignment or Sublease to any Affiliate
of Tenant.


 


(e)           A Sublease to any person if the term of such
Sublease (assuming all options to extend or renew the term thereof are
exercised) is equal to, or less than, five (5) years.


 


8.5.2       Within ten (10) days after entering into
any Section 8.5 Transaction, Tenant shall notify Landlord thereof, and
furnish Landlord with a duplicate original of either (i) the instrument
effecting the Assignment, which shall be duly executed by assignor and
assignee, or (ii) the Sublease, which shall be duly executed by Tenant and
the Subtenant.


 


8.5.3       Notwithstanding anything contained in this Article VIII,
Tenant shall have the absolute right, from time to time, and at any time,
during the Term, to permit its Affiliates to utilize any portion(s) of the
Leased Premises without the necessity of a Sublease (in which event, the
provisions of this Article VIII, including the provisions of Section 8.5.2
above, shall not apply).


 


8.6                                Miscellaneous


 


8.6.1        No termination of this Lease pursuant to either
Section 8.2.3(a) or Section 8.3.3(a) shall
release Landlord or Tenant from any obligations accruing under the Lease prior
to the date of such termination unless (and to the extent) agreed by the
parties hereto in writing.


 


8.6.2        Except as provided in Section 8.8
hereof, no Assignment or Sublease (whether a Section 8.5 Transaction or
effected pursuant to Section 8.2 or 8.3 hereof) shall have
the effect of releasing Tenant from any of its obligations under this Lease
(including its obligation to pay Rent).


 


8.6.3        All Subleases shall be subject and subordinate
to this Lease and the terms and conditions hereof; and each Sublease shall
expressly so provide. No Sublease shall be for a term ending later than one (1) day
prior to the then expiration date of this Lease.


 


8.6.4        If an Event of Default shall occur, then
Landlord, thereafter, at its option, and without waiving the same, may collect
from any then existing Subtenant, the rent and additional rent due under its
Sublease (in which event, Landlord shall apply the same against the Rent).


 


8.6.5        Tenant shall not have the right to enter into
an Assignment or Sublease to any person enjoying sovereign or diplomatic
immunity. In addition, no Assignment or Sublease shall permit the Leased
Premises, or any portion thereof, to be used (i) for any Prohibited Uses,
or (ii) for any other use not permitted under Section 1.5
hereof. No Assignment or Sublease shall be 


 


95

















 


effective to enlarge Landlord’s obligations
under this Lease, which shall remain solely as set forth herein.


 


8.6.6        No Subtenant shall assign its interest under
its Sublease, or sub-sublease the whole or any part of the space demised by its
Sublease, without first obtaining the consent of Landlord thereto (which
consent shall not be unreasonably withheld); provided, however,
that Landlord’s consent shall not be required to any such assignment or
sub-sublease if the same would have constituted a Section 8.5 Transaction
(other than a transaction described in Section 8.5(e)) if entered
into by Tenant hereunder (as opposed to such Subtenant).


 


8.7                                Sublease SNDAs


 


8.7.1        Landlord hereby agrees to enter into a Sublease
SNDA with each Subtenant under an Eligible Sublease, subject to, and in
accordance with, the provisions of this Section 8.7. As used
herein, the term “Eligible Sublease” shall mean a Sublease entered into
by and between Tenant and a Subtenant consistent with the terms of this Article VIII,
and which (i) demises a portion(s) of the Leased Premises containing
either (x) a full floor of the Building (i.e.,
all the Leasable Area on a floor of the Building), or (y) not less than
5,000 RSF of Net Rentable Area (in the aggregate), and (ii) has a term of
at least five (5) years.


 


8.7.2        If, in the case of any Eligible Sublease,
Tenant shall deliver to Landlord a form of Sublease SNDA (i.e.,
an agreement meeting the definition thereof herein-above set forth) executed
and acknowledged by the Subtenant thereunder, together with Tenant’s written
request that Landlord counter-execute, acknowledge and deliver the same, then
Landlord shall counter-execute, acknowledge and deliver such Sublease SNDA
within the period of twelve (12) Business Days thereafter. Furthermore, if (x) Landlord
shall fail to counter-execute, acknowledge and deliver such Sublease SNDA
within such twelve (12) Business Day period, and (y) such failure shall
continue for a period of five (5) Business Days after delivery of a notice
from Tenant indicating such failure, which notice shall refer to this Section 8.7.2
and recite, in all capital letters (or other prominent display), the provisions
of this Section 8.7.2, then Landlord shall be deemed to have
counter-executed, acknowledged and delivered such Sublease SNDA.


 


ARTICLE IX

TRANSFERS OF LANDLORD’S ESTATE(11)


 


ARTICLE X

EXPANSION RIGHTS


 


10.1                          Tenant Expansion Notices


 


If Tenant desires to Lease additional
Leasable Areas hereunder, Tenant shall have the right, from time to time during
the Term (but not more frequently than one time every six (6) 


 






(11)                          Insert appropriate version of
Article IX into each Lease at Closing, per the provisions of Section 25 of
the purchase agreement.


 


96

















 


months), to
request that Landlord advise Tenant (any such request, a “Tenant Expansion
Notice”) of all the Leasable Areas that are then available for leasing or
which are scheduled to become available for leasing within the next eighteen
(18) months (all such Leasable Areas, at any time, being herein called “Available
Leasable Areas”).


 


10.2                         Landlord Expansion Response


 


Landlord shall, within fifteen (15) days
following Landlord’s receipt of a Tenant Expansion Notice, respond to Tenant’s
inquiry (any such response, a “Landlord Expansion Response”) by advising
Tenant of (a) all the Available Leasable Areas, including the approximate
Net Rentable Area, location and configuration thereof, (b) the date(s) by
which Landlord anticipates that the Available Leasable Areas will become
available for leasing (such date with respect to any Available Leasable Area
being herein called the “Availability Date”), and (c) Landlord’s
opinion of the Fair Market Rental Value Per RSF of the Available Leasable
Areas. If there are then no Available Leasable Areas, then Landlord Expansion
Response shall so state.


 


10.3                         Expansion Space Leases


 


Tenant, from and after its receipt of any
Landlord Expansion Response, shall have the right (each, an “Expansion Right”)
to lease hereunder all, or one or more portions, of the Available Leasable
Areas identified in such Landlord Expansion Response (the portions of the
Available Leasable Areas as to which Tenant exercises its Expansion Right being
herein called “Expansion Space”), either, at Tenant’s election, (A) on
a coterminous basis as herein-after provided (any such Expansion Space being
herein called “Coterminous Expansion Space”) (provided, that Tenant may
not elect to lease Expansion Space on coterminous basis under this clause (A) after
the expiration of the fifteenth (15th) Lease Year), or (B) on a short term
basis as herein-after provided (any such Expansion Space being herein called “Short-Term
Expansion Space”). Tenant shall exercise an Expansion Right by written
reply to a Landlord Expansion Response (each, an “Expansion Space Acceptance”),
which shall specify, with particularity, (i) the Expansion Space,
including the location, approximate Net Rentable Area and configuration of the
same, (ii) whether Tenant is electing to lease such Expansion Space as
Coterminous Expansion Space or Short-Term Expansion Space, and (iii) in
any case that Tenant elects to lease such Expansion Space as Short-Term Expansion
Space, whether or not Tenant agrees with Landlord’s opinion of the Fair Market
Value Per RSF of such Expansion Space. Tenant’s right to specify Expansion
Space comprising less than all of the Available Leasable Areas identified in
the Landlord Expansion Response shall be qualified by the requirement that
Tenant may only specify Expansion Space comprised of less than all the
Available Leasable Areas on a particular floor of the Building if the portion
of the Available Leasable Areas on such floor that is not so specified is of a
size and configuration that makes it separately leasable to third party
tenants.


 


For a period of seven (7) Business Days
after its receipt of the Landlord Expansion Response (“Tenant’s Exclusive
Period”), Tenant’s Expansion Right shall be an exclusive right or option (i.e., not subject to any Third Party Leasing Rights, except
as provided in Section 10.4(a) hereof); after Tenant’s
Exclusive Period, Tenant’s Expansion Right shall be a non-exclusive right or
option (i.e., subject to any Third Party Leasing
Rights granted after the end of Tenant’s Exclusive Period and prior to the
delivery of the Expansion Acceptance).


 


97

















 


All Expansion Space shall be added to the
Leased Premises, upon, subject to, and in accordance with, the provisions:


 


(a)           Landlord shall deliver to Tenant, and Tenant
shall accept, the Expansion Space in its “AS - IS” condition (as of the date of
the Expansion Space Acceptance), except that Landlord, at its expense, shall
cause the same to be placed in Separately Leasable Condition. Tenant shall be
solely responsible for all the costs of Tenant’s moving into and making the
Expansion Space ready for Tenant’s initial use and occupancy, including the
making of any Alterations, which shall be performed by Tenant in conformity
with the provisions of Section 5.2 hereof.


 


(b)           Landlord shall deliver exclusive vacant
possession of the Expansion Space to Tenant (in such required condition) on, or
prior to, the date (the “Scheduled Delivery Date”) that is later of (i) the
Availability Date with respect to such Expansion Space, and (ii) the date
that is thirty (30) days after Tenant’s delivery of the Expansion Space
Acceptance (the term “Actual Delivery Date” shall mean the date, if any,
that Landlord actually delivers exclusive vacant possession of the Expansion
Space to Tenant (in the required condition)). If, by reason of one or more
Force Majeure Events, Landlord is unable to cause the Actual Delivery Date to
occur on or prior to the Scheduled Delivery Date, then Landlord shall use all
commercially reasonable efforts to cause the Actual Delivery Date to occur as
soon as possible thereafter (such obligation to use reasonable efforts to
include, in cases of the holdover of a prior tenant or occupant, the
institution and prosecution of holdover or other appropriate proceedings
against such prior tenant or occupant). If, for any reason, the Actual Delivery
Date does not occur on or prior to the date that is sixty (60) days after the
Scheduled Delivery Date, then, at any time thereafter until the Actual Delivery
Date shall occur, Tenant shall have the right (at its option) to rescind its
delivery of the Expansion Space Acceptance with respect to such Expansion Space
(it being agreed that such rescission right shall be Tenant’s sole remedy if
Landlord’s inability to cause the Actual Delivery Date to occur on or prior to
the Scheduled Delivery Date was the result of Force Majeure Events and Landlord
complied with its aforesaid obligation to use reasonable efforts).


 


(c)           The Expansion Space shall be added to the
Leased Premises effective as of the later to occur of (i) the Scheduled
Delivery Date, and (ii) the Actual Delivery Date.


 


(d)           In the case of Coterminous Expansion Space:


 


(1)            (i) the initial
term of this Lease with respect to Coterminous Expansion Space shall be the
balance of the Initial Term (i.e.,
the period commencing on the date such Coterminous Expansion Space is added to
the Leased Premises and ending on the Expiration Date), and (ii) the
provisions of Section 1.4 hereof shall apply to such Coterminous
Expansion Space with respect to all Renewal Options and/or Renewal Terms, as
fully and completely as the same apply to the balance of the Leased Premises;
and


 


(2)            except as provided in Section 10.3(g) below,
the Annual Basic Rent for the Coterminous Expansion Space shall be payable at
the same rate as that applicable to the balance of the Base Leased Premises (i.e., at a rate, per RSF, equal to the
Annual Basic Rent Factor from time to time in effect), and, accordingly, upon
the date that the Coterminous Expansion Space is added to the Leased Premises,
the Annual Basic Rent hereunder shall be 


 


98

















 


adjusted based on the addition
of the Net Rentable Area of the Coterminous Expansion Space to the Net Rentable
Area of the Leased Premises.


 


(e)           In the case of Short-Term Expansion Space:


 


(1)            (i) with respect
to Short-Term Expansion Space added during the Initial Term, (A) the
initial term of this Lease with respect to the Short-Term Expansion Space shall
be a period equal to the shorter of (x) five (5) years (i.e., the period commencing on the date
such Short-Term Expansion Space is added to the Leased Premises and ending on
the day immediately prior to the fifth (5th) anniversary of such date) or (y) the then
remaining balance of the Initial Term (i.e.,
the period commencing on the date such Short-Term Expansion Space is added to
the Leased Premises and ending on the Expiration Date), and (B) from and
after such initial term (and until the end of the Initial Term), Tenant shall
have the right(s) to renew the term of this Lease with respect to such
Short-Term Expansion Space for one or more special renewal periods, as Tenant
may elect, each equal to the lesser of (x) five (5) years or (y) the
then remaining balance of the Initial Term, each such right to be exercisable,
by written notice to Landlord, given not less than nine (9) months prior
to the expiration of the then current term of this Lease with respect to the
Short-Term Expansion Space, (ii) with respect to Short-Term Expansion
Space added during a Renewal Term, the initial term of this Lease with respect
to the Short-Term Expansion Space shall be a period equal to the balance of
such Renewal Term (i.e., the
period commencing on the date such Short-Term Expansion Space is added to the
Leased Premises and ending on the last day of such Renewal Term), and (iii) in
either case, the provisions of Section 1.4 hereof shall apply to
Short-Term Expansion Space with respect to all outstanding Renewal Options
and/or Renewal Terms (as of the date such Short-Term Expansion Space is added
to the Leased Premises), as fully and completely as the same apply to the
balance of the Leased Premises; and


 


(2)            except as provided in Section 10.3(g) below,
the Annual Basic Rent for such Short-Term Expansion Space, for the initial term
of this Lease with respect to such Short-Term Expansion Space, and, if
applicable, for each of the special renewal periods described in Section 10.3(e)(1)(i)(B) above,
shall be payable based on a STAS Basic Rental Factor equal to the Fair Market
Rental Value Per RSF for such Short-Term Expansion Space; it being agreed that
the Fair Market Rental Value Per RSF for such Short-Term Expansion Space shall
be determined separately for each of the initial term of this Lease and each of
such special renewal periods in accordance with the following:


 


(A)          in the case of such
initial term, until the date that is sixty (60) days following the delivery of
the Expansion Space Acceptance, Landlord and Tenant shall endeavor to reach
agreement as to such Fair Market Rental Value Per RSF;


 


(B)           in the case of each
such special renewal period, within thirty (30) days following the date of
Tenant’s exercise of such renewal right(s), Landlord shall deliver to Tenant, a
proposal setting forth Landlord’s determination of the Fair Market Rental Value
Per RSF for such Short-Term Expansion Space for such special renewal period,
and, thereafter, and until the date that is sixty (60) days following the date
of Tenant’s exercise of such renewal right(s), Landlord and Tenant shall
endeavor to reach agreement as to such Fair Market Rental Value Per RSF; and


 


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(C)           in either case, if
Landlord and Tenant are unable to reach a definitive agreement as to such Fair
Market Rental Value Per RSF within sixty (60) days following the delivery of
the Expansion Space Acceptance (in the case of such initial term), or the date
of Tenant’s exercise of such renewal right(s) (in the case of each such
special renewal period), then either Landlord or Tenant, by written notice
thereof to the other party, may cause such Fair Market Rental Value Per RSF to
be submitted for determination in accordance the provisions of subsections (1) through
(5) of Section 1.4(e) hereof, which subsections
shall be applied, mutatis mutandis, to the
determination of such Fair Market Rental Value Per RSF, and the rights and
obligations of the parties in respect thereof.


 


(f)            Except as provided in Section 10.3(g) below,
Additional Rent shall be payable with respect to any Expansion Space on the
same basis as the same is payable with respect to the balance of the Leased
Premises, and, accordingly, upon the date that the Expansion Space is added to
the Leased Premises, Tenant’s Occupancy Percentage shall be adjusted based on
the addition of the Net Rentable Area of the Expansion Space to the Net
Rentable Area of the Leased Premises.


 


(g)           Notwithstanding the foregoing provisions of
this Section 10.3, all Rent (including all Annual Basic Rent and
Additional Rent) otherwise payable with respect to any Expansion Space shall be
fully abated until the earlier of (i) the date Tenant commences its normal
business operation in such Expansion Space, and (ii) the date that is
ninety (90) days following the date that such Expansion Space is added to the
Leased Premises pursuant to Section 10.3(c) above.


 


(h)           Subject to the foregoing provisions of this Section 10.3,
and except as otherwise expressly provided herein, all the other then executory
terms and conditions of this Lease shall apply to any Expansion Space as fully
and completely as the same apply to the balance of the Leased Premises.


 


10.4                          Subordination of Expansion
Space Rights


 


(a)           Anything herein contained to the contrary
notwithstanding, Tenant’s Expansion Rights as provided in this Article X
with respect to any Leasable Area are and shall be subordinate to any Third
Party Leasing Rights with respect to such Leasable Area that are outstanding as
of the date of Tenant’s Expansion Notice. The term “Third Party Leasing
Rights”, with respect to any Leasable Area, shall mean any rights granted
to any third party to lease such Leasable Area (including any such rights
granted to other tenants of the Property pursuant to their leases, and any
rights granted to other third parties pursuant to a letter of intent executed
by Landlord).


 


(b)           For purposes of this Article X,
no Leasable Areas shall be considered “available for leasing”
if, and for so long as, any Third Party Leasing Rights with respect to such
Leasable Area are then outstanding. Nevertheless, if Tenant, in any Tenant
Expansion Notice, shall so request, then Landlord, in its Landlord Expansion
Notice, shall (i) identify any Leasable Areas that would then constitute
Available Leasable Areas, but for the existence of outstanding Third Party
Leasing Rights with respect thereto, and (ii) briefly describe such Third
Party Leasing Rights.


 


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(c)           Following the delivery of any Tenant’s
Expansion Notice, Landlord, during the period commencing on the date of such
Tenant’s Expansion Notice and ending on the last day of Tenant’s Exclusive
Period, shall not (i) lease any Leasable Area which was available for leasing on the date of Tenant’s Expansion
Notice, or (ii) grant any Third Party Leasing Rights.


 


(d)           Nothing contained in this Article X
is intended, nor may anything herein be relied upon by Tenant, as a
representation by Landlord or any other person as to the nature and extent of
the Available Leasable Areas that may exist from time to time. Without limiting
the foregoing, Landlord, subject to the provisions of Section 14.20
hereof, may convert any Leasable Area to offices for marketing or property
management purposes, without notifying or offering such space to Tenant, or
otherwise implicating Tenant’s Expansion Rights.


 


10.5                         Duration


 


Tenant’s Expansion Rights under this Article X
shall continue until there are fewer than twelve (12) months then remaining in
the Term, and Tenant shall no longer have any outstanding Renewal Options.


 


10.6                         Disputes


 


Landlord and Tenant shall endeavor to
resolve, in good faith, any disagreement arising as a result of Tenant’s
exercise of Expansion Rights under this Article X, failing which
such disagreement shall be resolved in accordance with Article XII;
provided that no disagreement between Landlord and Tenant regarding the
contents of any Expansion Space Acceptance shall render any otherwise effective
Expansion Space Acceptance ineffective.


 


ARTICLE XI

TERMINATION RIGHTS


 


11.1                         Wachovia’s Termination
Right


 


(a)           Subject to the terms and conditions of this Article XI,
during the Initial Term of this Lease (but not during any Renewal Term),
Wachovia shall have the right (herein called “Wachovia’s Termination Right”),
exercisable from time to time, to terminate this Lease with respect to all or
any portion(s) of the then Leased Premises (other than the whole or any
portion(s) of any Short-Term Additional Space then constituting a part of
the Leased Premises). Wachovia may exercise Wachovia’s Termination Right only
by written notice to Landlord (each, a “Termination Rights Exercise Notice”),
which shall (i) indicate whether Wachovia is exercising Wachovia’s Termination
Right with respect to the entirety of the then Leased Premises (which may be
done only if no Short-Term Additional Space then constitutes a part of the
Leased Premises), or less than the entirety of the then Leased Premises, (ii) in
any case that Wachovia is exercising Wachovia’s Termination Right with respect
to less than the entirety of the then Leased Premises, specify, with
particularity, the portion(s) of the Leased Premises with respect to which
Wachovia’s Termination Right is being exercised (such portion(s) of the
Leased Premises being herein separately referred to as the “Vacate Space”),
and be accompanied by a floor plan showing the location and configuration of
the Vacate Space, (iii) the date upon which Wachovia is electing to
terminate this Lease with respect to the entirety of the Leased Premises or the
Vacate Space, as the case may be, which date shall not be earlier than the date
that is nine 


 


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(9) months after the date of Wachovia’s
Termination Rights Exercise Notice (such date being herein called the “Early
Termination Date”). Notwithstanding the foregoing, Wachovia’s right to
specify Vacate Space comprising less than all of the then Base Leased Premises
located on any floor of the Building, shall be contingent upon such Vacate
Space being of a size and configuration that makes it separately leasable to
third party tenants.


 


(b)           Notwithstanding the provisions of Section 11.1(a) above,
during the Integration Period, Wachovia’s Termination Right shall be limited by
the provisions of [Section 3.3 of the Master Agreement].


 


(c)           Notwithstanding anything to contrary
contained herein, it is understood and agreed that Wachovia’s Termination Right
shall belong solely to Wachovia, and, notwithstanding any Assignment, shall
survive as a right belonging solely to Wachovia for the balance of the Initial
Term. Accordingly, Wachovia’s Termination Right may be exercised, at anytime
during the Initial Term, by, and only by, Wachovia (whether or not Wachovia is
then the Tenant hereunder). Upon request of Wachovia made, from time to time,
during any period that Wachovia is not the Tenant hereunder, Landlord shall
acknowledge the foregoing in writing.


 


11.2                          Effect of Termination


 


(a)           If Wachovia, consistent with the provisions
of Section 11.1 above, shall have exercised Wachovia’s Termination
Right with respect to the entirety of the then Leased Premises, then, as of the
Early Termination Date, this Lease shall terminate and end as fully and
completely as if the Early Termination Date was the Expiration Date.


 


(b)           If, and in each case that, Wachovia,
consistent with the provisions of Section 11.1 above, shall have
exercised Wachovia’s Termination Right with respect to less than the entirety
of the then Leased Premises (i.e., with
respect to Vacate Space), then the following provisions shall apply:


 


(1)            As of the Early
Termination Date, this Lease shall terminate with respect to the Vacate Space
only.


 


(2)            Tenant shall surrender
the Vacate Space on or prior to the Early Termination Date, which surrender
shall be consistent with the provisions of Section 4.1 hereof (as
applied to Vacate Space), subject, however,
to the following provisions of this Section 11.2(b)(3) below.
If Tenant shall fail to surrender the Vacate Space on or prior to the Early
Termination Date, then, for the period commencing on the date immediately
following the Early Termination Date and ending on the date that the Vacate
Space shall be surrendered, Tenant shall continue to pay Annual Basic Rent and
Additional Rent with respect to the Vacate Space on the same basis as prior to
the Early Termination Date. Notwithstanding the foregoing, either Landlord or
Wachovia may terminate Tenant’s right to possess and occupy the Vacate Space at
any time following the Early Termination Date upon thirty (30) days’ prior
written notice to the other party.


 


(3)            If the Vacate Space is
not (as of the date of the applicable Termination Rights Exercise Notice) in a
Separately Leasable Condition, then, and only in such events, Landlord,
promptly following the date of such Termination Rights Exercise Notice, shall
proceed 


 


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to cause the Demising Work with
respect to such Vacate Space to be performed in accordance with the provisions
of Section 5.7 hereof; provided, however, that
any Demising Work performed by Landlord prior to the Early Termination Date
shall be performed subject to, and in a manner that is consistent with, Tenant’s
continued use and occupancy of the Vacate Space until the Early Termination
Date.


 


ARTICLE XII

DISPUTE RESOLUTION


 


12.1                          Approvals and Consents


 


(a)           Whenever, pursuant to any express provision
of this Lease, one party hereto is required to obtain the consent or approval
of the other party (either as a condition to the exercise of a right hereunder
or otherwise), then the party from whom such consent or approval is required
shall not unreasonably withhold, condition or delay such consent or approval, unless, pursuant to such express provision of this Lease,
such party is granted the right to withhold such consent or approval in its
sole or absolute discretion (in which event such party may withhold the same in
its sole or absolute discretion). Nothing in this Section 12.1(a) shall
be deemed to limit or extend any time period expressly set forth in this Lease
for a party to respond to a request for its consent or approval.


 


(b)           With respect any such express provision of
this Lease that requires one party hereto to obtain the consent or approval of
the other party, if the party from whom such consent or approval is required,
pursuant to the provisions of this Lease (including Section 12.1(a) above),
not to unreasonably withhold, condition or delay such consent or approval, then
such consent or approval shall be requested, and granted or denied, in
accordance with the following provisions:


 


(i)            The party requesting
the approval or consent (the “Requesting Party”) shall submit to the
other party (the “Responding Party”) a written request for approval or
consent, together with (x) such information and supporting documentation
specifically required under in the pertinent provision of this Lease or (y) if
the pertinent provision of this Lease does not specifically require any
information or supporting documentation, then such information and supporting
documentation (if any) as is reasonably required to evaluate the request.


 


(ii)           Unless a specific time
period for the Responding Party’s response is provided for in the pertinent
provision of this Lease (in which case, such specific time period shall
control), the Responding Party shall have ten (10) Business Days to (A) approve
in writing the request, (B) deny in writing the request, or (C) if,
and to the extent, the Requesting Party failed to submit, with its request, the
information and/or documentation required to be submitted under Section 12.1(i)(x) or
(y) above, as applicable, then, and only in such event, respond
with a written demand for such information and/or documentation.  If (x) the Responding Party fails to
properly provide any of the above responses, and (y) such failure shall
continue for a period of five (5) Business Days after delivery of a notice
from the Requesting Party indicating such failure, which notice shall refer to
this Section 12.1(b)(ii) and recite, in all capital letters
(or other prominent display), the provisions of this Section 12.1(b)(ii),
then the requested approval or consent shall be deemed granted.


 


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(iii)          If the Responding Party
properly requests information and/or documentation pursuant to Section 12.1(b)(ii)(C) above,
then within five (5) Business Days after the Requesting Party delivers
same to the Responding Party, the Responding Party shall, in all events,
respond as set forth in Section 12.1(b)(ii)(A) above or Section 12.1(b)(ii)(B) above.
If (x) the Responding Party fails to timely so respond, and (y) such
failure shall continue for a period of three (3) Business Days after
delivery of a notice from the Requesting Party indicating such failure, which
notice shall refer to this Section 12.1(b)(iii) and recite, in
all capital letters (or other prominent display), the provisions of this Section 12.1(b)(iii),
then the requested approval or consent shall be deemed granted.


 


(iv)          All approvals, denials,
and requests for additional documentation or information, when given, shall be
in writing.


 


12.2                         Dispute Resolution


 


Whenever, pursuant to any express provision
of this Lease, a dispute is to be resolved pursuant to this Article XII,
the following provisions shall apply:


 


(a)           Any dispute to be resolved pursuant to this Article XII,
shall be resolved by arbitration conducted under the auspices of JAMS or its
successor in the State and in the county where the Property is located.  Either party may initiate such arbitration by
sending notice (an “Arbitration Notice”) of a demand to arbitrate to the
other party and to JAMS.  The Arbitration
Notice shall contain a description of the subject matter of the arbitration,
the dispute with respect thereto, the amount involved, if any, and the remedy
or determination sought.


 


(b)           JAMS shall provide a list of three (3) available
arbitrators from which each party may strike one.  The remaining arbitrator shall serve as the
arbitrator for the dispute.  JAMS shall
select arbitrators based on the nature of the dispute, which arbitrators shall
be independent third parties who have not acted for or been employed by either
party (or its Affiliate) within the five (5) years preceding initiation of
the arbitration with appropriate skills, background and experience (and such
persons shall have at least ten (10) years of applicable experience) to be
able to effectively and professionally resolve the particular dispute.


 


(c)           The arbitrator, so selected, shall schedule
the arbitration within thirty (30) days after its appointment, and shall render
its decision within thirty (30) days after the arbitration is concluded.  The parties agree to arbitrate pursuant to JAMS’
Streamlined Arbitration Rules as amended from time to time, and as
modified to the extent practicable to give effect to the agreement of the
parties as set forth in this Section 12.2 or in Section 12.3
below.   Arbitration shall not be
conducted in person unless either Landlord or Tenant shall request an in-person
arbitration.  The decision of the
arbitrator shall be final and shall be binding upon the parties, and judgment
on the award rendered by the arbitrator may be entered in any court having jurisdiction
thereof.


 


(d)           Landlord and Tenant agree to sign all
documents and to take all other actions necessary to submit such dispute to
arbitration and hereby waive any or all rights that it may at any time have to
revoke the agreement to submit such disputes to arbitration and to abide by the
decision rendered thereunder.


 


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(e)           This Article XII shall not apply
to any disputes, except to the extent expressly provided herein.


 


12.3                         Conduct of the Arbitration


 


Arbitration proceedings hereunder shall be
subject to the following additional provisions:


 


(a)           The hearing shall be conducted on a
confidential basis without continuance or adjournment.


 


(b)           Any offer made or the details of any
negotiation of the dispute subject to arbitration prior to arbitration shall
not be admissible.


 


(c)           Each party shall be entitled to all rights
and privileges granted by the arbitrator to the other party.


 


(d)           The arbitrators shall have the power to
impose on any party such terms, conditions, consequences, liabilities,
sanctions and penalties as they deem necessary or appropriate (which shall be
conclusive, final and enforceable as the award on the merits) to compel or
induce compliance with discovery and the appearance of, or production of
documents in the custody or, any officer, director, agent or employee of a
party any Affiliate of such party.


 


(e)           Arbitrators may not award indirect,
consequential or punitive damages or issue injunctive relief.


 


(f)            Arbitrators shall be bound by the
provisions of this Lease and shall not have the power to add to, subtract from,
or otherwise deviate from such provisions.


 


(g)           Landlord or Tenant’s failure to perform any
obligation hereunder shall not constitute a default under this Lease if such
party’s duty to perform such obligation is the subject of any arbitration or
any dispute that would be submitted to arbitration if unresolved during such
arbitration or until such dispute is otherwise resolved.


 


12.4                          Alternative Means of
Arbitration with AAA.


 


In the event that JAMS or any successor shall
no longer exist or if JAMS or any successor fails to refuses to, or is legally
precluded from, accepting submission of such dispute, then the dispute shall be
resolved by binding arbitration before the AAA under the AAA’s commercial
arbitration rules then in effect.


 


ARTICLE XIII

TENANT REMEDIES


 


13.1                          Generally


 


(a)           The term “Landlord Event of Default”
shall mean any one of the following events: (i) Landlord shall default in
the payment of any monetary sum to Tenant when due, and such default shall
continue for a period of ten (10) Business Days after written notice
thereof


 


105














 


from Tenant to Landlord; or (ii) Landlord
shall default in its obligation to maintain any policy of insurance that
Landlord is required to maintain under Section 6.4 or 6.5
hereof, and such default shall continue for a period of ten (10) Business
Days after written notice from Tenant to Landlord of such default, which notice
shall (x) specifically refer to Section 6.4 or 6.5
hereof, as applicable, and the insurance policy which Landlord has failed to
maintain, and (y) state, in all capital letters and in a prominent place,
that the continuance of such failure to maintain insurance for ten (10) Business
Days after Landlord’s receipt of such written notice will constitute a Landlord
Event of Default under this Section 13.1(a)(ii); or (iii) Landlord
shall default under any of its other obligations under this Lease (other than
any default described in Section 13.1(a)(i) and (ii) above),
and such default shall continue for a period of thirty (30) days after written
notice from Tenant to Landlord thereof (or, if such default is curable but
reasonably cannot be cured within such thirty (30) day period, then Landlord
shall not commence the cure thereof within such thirty (30) day period or
thereafter shall not diligently pursue such cure until the same is accomplished).


 


(b)           If
(i) Landlord shall default in the performance of any of Landlord’s
obligations under this Lease, and (ii) such default shall thereafter
become a Landlord Event of Default hereunder (or, in cases of emergency only,
such default shall continue for 24 hours after notice thereof from Tenant to
Landlord), then Tenant, without thereby waiving such default (and without
limiting any other right or remedy it might have on account thereof, in law or
in equity), may (but shall not be obligated to) perform such obligation for the
account, and at the expense, of Landlord. In any such event, Landlord, within
thirty (30) days after Tenant’s delivery of an invoice therefor (together with
reasonable supporting documentation), shall reimburse Tenant for any reasonable
out-of-pocket expenses incurred by Tenant (including reasonable attorneys’
fees) in connection with Tenant’s performance of any such obligation for the
account of Landlord pursuant to this Section 13.1(b), together with
interest thereon, at the Applicable Rate, from the date that such expenses were
incurred by Tenant to the date that the same are reimbursed to Tenant by
Landlord.


 


(c)           The
exercise by Tenant of any one or more of the rights and remedies provided in
this Lease shall not prevent the subsequent exercise by Tenant of any one or
more of the other rights and remedies herein provided or otherwise permitted at
law or in equity.  Except as otherwise
provided in this Lease, remedies provided for in this Lease are cumulative and
may, at the election of Tenant, be exercised alternatively, successively, or in
any other manner, and are in addition to any other rights provided for or
allowed by law or in equity, including the right to claim that Tenant has been
constructively evicted.


 


13.2                          Offset Rights


 


If (i) Landlord shall default in the payment of any monetary sum
to Tenant when due (including any sums due and owing to Tenant pursuant to the
provisions of Section 13.1(b) hereof), and (ii) such
default shall thereafter become a Landlord Event of Default hereunder, then
Tenant, without thereby waiving such default (and without limiting any other
right or remedy it might have on account thereof, in law or in equity), may, at
any time thereafter (if, and to the extent that, such sums remain unpaid), set-off
the amount of such sums against any installments of Rent thereafter becoming
due and payable to Landlord pursuant to the provisions of this Lease.


 


106

















 


ARTICLE XIV

MISCELLANEOUS


 


14.1                         Notices


 


Any notice or other communications required
or permitted to be given under this Lease (each, a “notice”) must be in
writing and shall be sent to all Notice Parties (i.e.,
notices sent by Landlord shall be sent to all Tenant’s Notice Parties, and
notices sent by Tenant shall be sent to all Landlord’s Notice Parties), and
sent (i) by certified United States Mail, return receipt requested, or (ii) by
Federal Express or other nationally recognized overnight courier service.  Any notice shall be deemed given upon receipt
or refusal thereof. Either party shall have the right to change its Notice
Parties (by addition and/or subtraction), and/or the addresses thereof, and/or
the party to whose attention a notice thereto shall be directed, by giving the
other party notice thereof in accordance with the provisions of this Section 14.1;
provided that (x) such notice of
any such change shall become effective only upon the other party’s receipt or
refusal thereof, and (y) neither Landlord or Tenant may designate more
than five (5) Notice Parties, in total, as its Notice Parties.  Additionally, Tenant agrees that copies of
all notices of a Landlord Default Notices hereunder shall also be sent to each
Interest Holder that notifies Tenant in writing of the address to which copies of
such notices are to be sent. Any notice sent by either party pursuant to this Section 14.1
shall set forth the address of the Property.


 


14.2                         Brokers


 


(a)           Tenant
represents that it has not engaged any broker, agent or similar party with
respect to the transactions contemplated by this Lease, nor has it dealt with
any broker, agent or similar party with respect to the transactions
contemplated by this Lease. Tenant agrees to indemnify and hold harmless
Landlord from and with respect to any claims for a brokerage fee, finder’s fee
or similar payment with respect to this Lease which is made by any broker,
agent or similar party with which Tenant has dealt and Landlord has not dealt.


 


(b)           Landlord
represents that it has not engaged any broker, agent or similar party with
respect to the transactions contemplated by this Lease, nor has it dealt with
any broker, agent or similar party with respect to the transactions
contemplated by this Lease.  Landlord
agrees to indemnify and hold harmless Tenant from and with respect to any
claims for a brokerage fee, finder’s fee or similar payment with respect to
this Lease which is made by any broker, agent or similar party with which
Landlord has dealt and Tenant has not dealt.


 


14.3                         Binding on Successors


 


This Lease shall be binding upon and inure to
the benefit of Landlord and its permitted successors and assigns, and shall be
binding upon and inure to the benefit of Tenant and its permitted successors
and assigns.  Where appropriate the
pronouns of any gender shall include the other gender, and either the singular
or the plural shall include the other.


 


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14.4                         Rights and Remedies
Cumulative


 


Except as otherwise provided herein, all
rights and remedies of Landlord and Tenant under this Lease shall be cumulative
and none shall exclude any other rights or remedies allowed by law.


 


14.5                         Governing Law


 


This Lease shall in all respects be governed
by, and construed in accordance with, the laws of the State, including all
matters of construction, validity and performance, except laws governing
conflicts of law; provided that to the extent the law of the jurisdiction where
the Property is located requires that the laws of such jurisdiction apply to
any aspect of this Lease, then, to that extent, such laws of such jurisdiction
will also apply to the Property.


 


14.6                         Rules of Construction


 


The terms and provisions of this Lease shall
not be construed against or in favor of a party hereto merely because such
party is the “Landlord” or the “Tenant” hereunder or such party or its counsel
is the draftsman of this Lease.


 


14.7                         Authority and Qualification


 


Tenant warrants that all consents or
approvals required of third parties (including its Board of Directors) for the
execution, delivery and performance of this Lease have been obtained and that
Tenant has the right and authority to enter into and perform its covenants
contained in this Lease.  Landlord
warrants that all consent or approvals required of third parties (including its
Board of Trustees) for the execution, delivery and performance of this Lease
have been obtained and that Landlord has the right and authority to enter into
and perform its covenants contained in this Lease.  Landlord and Tenant each also represents and
warrants that it is lawfully doing business in the State.


 


14.8                         Severability


 


If any term or provision of this Lease, or
the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and shall be enforceable to the extent permitted by
law.


 


14.9                         Quiet Enjoyment


 


Landlord covenants that Tenant shall and may
peacefully and quietly have, hold and enjoy the Leased Premises, subject to the
other terms hereof; provided that no Event of Default shall then be
outstanding.


 


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14.10                   Limitation of Personal Liability


 


Tenant specifically agrees to look solely to
Landlord’s interest in the Property and, during the Integration Period,
Landlord’s interest in the other Integrated Properties (which interest, in
either case, shall be deemed to include the rent and other income or proceeds
derived from such Property and/or, if applicable, the other Integrated
Properties) for the recovery of any monetary judgment against Landlord, it
being agreed that neither Landlord nor any Landlord Party shall ever be
personally liable for any such judgment or for any other liability or
obligation of Landlord under this Lease beyond such interest in the Property
(and, if applicable, the other Integrated Properties). The provision contained
in the foregoing sentence is not intended to, and shall not, limit any right
that Tenant might otherwise have (i) to obtain injunctive relief (or other
equitable relief) against Landlord or any other person, (ii) to offset
sums due and owing to Tenant against the Rent hereunder, or (iii) to
prosecute any suit or action in connection with enforcement of Tenant’s rights
hereunder or Landlord’s obligations hereunder.


 


14.11                   Memorandum of Lease


 


Upon the written request of Tenant, Landlord
and Tenant shall enter into a short form of this Lease for the purpose of
recording the same, and Tenant shall, at Tenant’s expense, have the right to
record the same.(12)


 


14.12                   Master Agreement


 


The Master Agreement has been executed and
delivered by the parties thereto contemporaneous with the execution and
delivery of this Lease. Throughout the Integration Period, (i) the Master
Agreement shall be deemed integrated into, and shall form a material part of,
this Lease, and (ii) this Lease shall be deemed integrated into, and shall
form a material part of, the Master Agreement. Throughout the Integration
Period, to the extent any provisions of this Master Agreement are expressly
referenced in one or more provisions of this Lease, such referenced provisions
of this Master Agreement shall be deemed incorporated into such provisions of
this Lease, as fully as if expressly set forth herein, and shall be controlling
in the case of any conflicts.


 


14.13                   Amendments


 


This Lease may not be altered, changed or
amended, except by an instrument in writing signed by Landlord and Tenant.


 






(12)                          Memorandum of Lease to be
executed on the Commencement Date in the form required by State law.  Memorandum of Lease to refer to the Master
Agreement and highlight certain of Tenant’s rights (e.g. exclusivity, renewal,
expansion, contraction and termination).


 


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14.14                   Entirety


 


This Lease, together with the Master
Agreement, embodies the entire agreement between Landlord and Tenant relative
to the subject matter of this Lease and all summaries, proposals, letters and
agreements with respect to the subject matter of this Lease that were entered
into prior to the date of this Lease shall be of no further force and effect
after the date hereof.


 


14.15                   References


 


All references in this Lease to days shall
refer to calendar days unless specifically provided to the contrary.


 


14.16                   Counterpart Execution


 


This Lease may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
together shall constitute one and the same instrument.


 


14.17                   No Partnership


 


Nothing in this Lease creates any
relationship between the parties other than that of lessor and lessee and
nothing in this Lease, whether the computation of rentals or otherwise,
constitutes the Landlord a partner of the Tenant or a joint venturer or member
of a common enterprise with the Tenant.


 


14.18                   Captions


 


The captions and headings used in this Lease
are for convenience and reference only and in no way add to or detract from the
interpretation of the provisions of this Lease.


 


14.19                   Required Radon Notice


 


RADON IS A NATURALLY OCCURRING RADIOACTIVE
GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
A HEALTH RISK TO PERSONS WHO ARE EXPOSED TO IT OVER TIME.  LEVELS OF RADON THAT EXCEED FEDERAL AND STATE
GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN THE STATE.  ADDITIONAL INFORMATION REGARDING RADON
TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT.


 


14.20                   Changes by Landlord


 


(a)                                Landlord
shall have the right at any time, without the same constituting an actual or
constructive eviction and without incurring liability to Tenant therefor, to
make reasonable alterations to the Common Areas (including the arrangement or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, and bathrooms in the Common Areas), so  long  as:


 


(1)           (x) the number of parking spaces located
within the Parking Areas shall not be reduced, and (y) access to and from
the Parking Areas (i.e., the
ingress and egress 


 


110

















 


between Parking Areas and the
street, and ingress and egress between the Parking Areas and the Leased
Premises) shall remain equivalent to, or become better than, the access to and
from the Parking Areas available on the Commencement Date;


 


(2)           access to and from the Leased Premises (i.e., the ingress and egress between the
Leased Premises and the street) shall remain equivalent to, or become better
than, the access to and from the Leased Premises available on the Commencement
Date, and


 


(3)           neither (i) the visibility of the ground floor
portion(s) of the Leased Premises, nor (ii) the visibility or
prominence of any Tenant’s Building Signage shall be adversely affected.


 


(b)                                Landlord
shall have the right to close, from time to time, portions of the Common Areas
for such temporary periods as Landlord reasonably deems legally necessary and
sufficient to evidence Landlord’s ownership and control thereof so as to
prevent any claim of adverse possession by, or any implied or actual dedication
to, the public or any party other than Landlord, so long as a reasonable means
of ingress and egress to and from the Leased Premises is maintained at all
times.


 


(c)                                 Landlord
may make alterations to the Leasable Areas other than the Leased Premises; provided, however,
that no reduction made to the aggregate amount of Leasable Areas shall reduce
the denominator used in computing Tenant’s Occupancy Percentage.


 


14.21                   Waiver of Jury Trial


 


LANDLORD AND TENANT EACH HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL OF ANY ISSUE OR CONTROVERSY ARISING UNDER THIS LEASE.


 


14.22                   Termination of Lease


 


If, as of any date occurring after the
Commencement Date and prior to the Expiration Date, no space is demised under
this Lease (i.e., (i) no Leased Premises shall be demised
hereunder, and (ii) no Release Premises shall be demised hereunder), then,
effective as of such date, this Lease (if, for any reason, not already
terminated) shall automatically terminate and be of no further force or effect,
and, accordingly, neither Landlord nor Tenant shall have any further rights or
obligations hereunder (or under the Master Agreement with respect to this
Lease).


 


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ARTICLE XV

ADDITIONAL PROVISIONS(13)


 






(13)                          Insert appropriate version of
Article XV into each Lease at Closing, per the provisions of Section 25
of the Purchase Agreement.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Lease as of the date aforesaid.(14)


 


	
  LANDLORD:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness(15):

  	
   

  	
  FIRST STATES INVESTORS 3300,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  TENANT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name:

  	
  [                                                                                       ]

  
	
   

  	
   

  	
  Title:

  	
  [                                                                                       ]

  



 






(14)                            Add
Acknowledgments as required by State law.


(15)                            In
Florida, 2 witnesses to Landlord’s signature are required.


 


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