Exhibit 10.69


 


LEASE AGREEMENT


 


Between


 


BANK OF AMERICA,
N.A.


 


as Tenant


 


and


 


FIRST STATES
INVESTORS 4100A, LLC


 


as Landlord


 


Dated as of September 24,
2003


 


Leased
Property:  74 Group “A” Properties
Located in North Carolina


 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS:

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  DEMISE; TITLE;
  CONDITION:

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.

  	
  TERM; RENEWAL OPTION:

  	
  8

  
	
   

  	
   

  	
   

  
	
  4.

  	
  RENT:

  	
  9

  
	
   

  	
   

  	
   

  
	
  5.

  	
  USE:

  	
  12

  
	
   

  	
   

  	
   

  
	
  6.

  	
  NET LEASE;
  NONTERMINABILITY:

  	
  12

  
	
   

  	
   

  	
   

  
	
  7.

  	
  TAXES AND OTHER
  CHARGES; LAW AND AGREEMENTS:

  	
  14

  
	
   

  	
   

  	
   

  
	
  8.

  	
  LIENS:

  	
  15

  
	
   

  	
   

  	
   

  
	
  9.

  	
  INDEMNIFICATION; FEES
  AND EXPENSES:

  	
  16

  
	
   

  	
   

  	
   

  
	
  10.

  	
  ENVIRONMENTAL MATTERS:

  	
  16

  
	
   

  	
   

  	
   

  
	
  11.

  	
  MAINTENANCE AND REPAIR:

  	
  20

  
	
   

  	
   

  	
   

  
	
  12.

  	
  ALTERATIONS AND
  ADDITIONS:

  	
  20

  
	
   

  	
   

  	
   

  
	
  13.

  	
  CONDEMNATION AND
  CASUALTY:

  	
  23

  
	
   

  	
   

  	
   

  
	
  14.

  	
  INSURANCE:

  	
  27

  
	
   

  	
   

  	
   

  
	
  15.

  	
  FlNANCIAL STATEMENTS:

  	
  30

  
	
   

  	
   

  	
   

  
	
  16.

  	
  RIGHT OF FIRST REFUSAL:

  	
  31

  
	
   

  	
   

  	
   

  
	
  17.

  	
  PURCHASE PROCEDURE:

  	
  32

  
	
   

  	
   

  	
   

  
	
  18.

  	
  INTENTIONALLY OMITTED.

  	
  32

  
	
   

  	
   

  	
   

  
	
  19.

  	
  QUIET ENJOYMENT:

  	
  32

  
	
   

  	
   

  	
   

  
	
  20.

  	
  TERMINATION:

  	
  33

  
	
   

  	
   

  	
   

  
	
  21.

  	
  SUBLETTING; ASSIGNMENT:

  	
  33

  
	
   

  	
   

  	
   

  
	
  22.

  	
  ADVANCES BY LANDLORD:

  	
  34

  
	
   

  	
   

  	
   

  
	
  23.

  	
  CONDITIONAL LIMITATIONS
  - EVENTS OF DEFAULT AND REMEDIES:

  	
  34

  



 


i

















 


	
  24.

  	
  NOTICES:

  	
  38

  
	
   

  	
   

  	
   

  
	
  25.

  	
  ESTOPPEL CERTIFICATES:

  	
  40

  
	
   

  	
   

  	
   

  
	
  26.

  	
  NO MERGER:

  	
  40

  
	
   

  	
   

  	
   

  
	
  27.

  	
  SURRENDER:

  	
  40

  
	
   

  	
   

  	
   

  
	
  28.

  	
  SEPARABILITY:

  	
  41

  
	
   

  	
   

  	
   

  
	
  29.

  	
  BINDING EFFECT; MERGER,
  CONSOLIDATION AND DISPOSAL OF ASSETS:

  	
  41

  
	
   

  	
   

  	
   

  
	
  30.

  	
  SHOWING:

  	
  41

  
	
   

  	
   

  	
   

  
	
  31.

  	
  NATURE OF LANDLORD’S
  OBLIGATIONS:

  	
  42

  
	
   

  	
   

  	
   

  
	
  32.

  	
  SUBORDINATION:

  	
  42

  
	
   

  	
   

  	
   

  
	
  33.

  	
  ARBITRATION:

  	
  42

  
	
   

  	
   

  	
   

  
	
  34.

  	
  GRANTING OF EASEMENTS,
  ETC.:

  	
  46

  
	
   

  	
   

  	
   

  
	
  35.

  	
  WAIVER OF TRIAL BY JURY

  	
  47

  
	
   

  	
   

  	
   

  
	
  36.

  	
  RECORDING OF LEASE

  	
  47

  
	
   

  	
   

  	
   

  
	
  37.

  	
  MISCELLANEOUS:

  	
  48

  
	
   

  	
   

  	
   

  
	
  38.

  	
  TERMINATION OF ORIGINAL
  LEASE:

  	
  48

  



 


	
  SCHEDULE A

  	
  DESCRIPTION OF LEASED
  PROPERTY; BASIC RENT SCHEDULE

  
	
  SCHEDULE B

  	
  INTENTIONALLY OMITTED

  
	
  SCHEDULE C

  	
  TERMINATION VALUES

  
	
  SCHEDULE D

  	
  FORM OF ESTOPPEL
  CERTIFICATE

  
	
  SCHEDULE E

  	
  PERMITTED ENCUMBRANCES

  
	
  SCHEDULE F

  	
  FORM OF SUBORDINATION,
  NON-DISTURBANCE AND ATTORNMENT AGREEMENT

  



 


ii

















 


LEASE
AGREEMENT


 


THIS LEASE AGREEMENT
(this “Lease”) is dated as of September     ,
2003, between FIRST STATES INVESTORS 4100A, LLC (“Landlord”), a Delaware
limited liability company, having an office c/o First States Group, L.P., 1725
The Fairway, Jenkintown, Pennsylvania 19046, and BANK OF AMERICA, N.A. (“Tenant”),
a national banking association organized under the laws of the United States,
having an office at 100 North Tryon Street, 52nd Floor, Charlotte, North Carolina 28255.


 


BACKGROUND
OF AGREEMENT


 


WHEREAS,
NCNB National Bank of North Carolina (the predecessor in interest to Tenant)
and PREFCO III Limited Partnership (the predecessor in interest to PREFCO III
Realty LLC) (“Prefco”) were parties to a certain Lease dated as of December 1,
1988 (as heretofore amended or modified, the “Original Lease”); and


 


WHEREAS,
First States Group, L.P. has acquired the interest of Prefco, as landlord, in
and to the Original Lease, and, with respect to the Leased Property hereinafter
described in Article 2, has assigned such interest to Landlord; and


 


WHEREAS,
Landlord has also acquired from Liberty North Carolina Inc. (the “Remainderman”)
the interest of the Remainderman in the Leased Property, so that Landlord owns
the entire fee interest in the land and improvements that constitute the Leased
Property; and


 


WHEREAS,
Landlord and Tenant desire to terminate the Original Lease as it pertains to
the Leased Property and enter into this Lease for the purpose of setting forth
their agreement respecting the Leased Property, all as more fully hereinafter
set forth.


 


NOW,
THEREFORE, in consideration of the mutual covenants and
agreements herein contained and intending to be legally bound, Landlord and
Tenant covenant and agree as follows:


 


1.             DEFINITIONS:


 


As used in this Lease the
following terms have the meanings set forth below.  Defined terms used in the Background of
Agreement above, but not defined below, shall have the meanings set forth in
the Original Lease:


 


“AAA” shall have
the meaning given to that term in Paragraph (d) of Article 33 hereof.


 


“Additional
Improvements” shall have the meaning given to that term in Paragraph (a) of
Article 12 hereof.


 


“Additional Rent”
shall have the meaning given to that term in Paragraph (c) of Article 4
hereof.


 

















 


“Affiliate” or “Affiliates”
means any person or entity controlling, controlled by, or under common control
with another such person or entity.  “Control”
as used herein shall mean the possession, direct or indirect, or the power to
direct or cause the direction, of the management and policies of such
controlled person or entity.  The
ownership, directly or indirectly, of more than fifty percent (50%) of the
voting securities of, or possession of the right to vote in, the ordinary
direction of its affairs, more than fifty percent (50%) of the voting interest
in, any person or entity shall be presumed to constitute such control.  In the case of Landlord (if Landlord is a
partnership), the term Affiliate shall also include any person or entity
controlling or controlled by or under common control with any general partner
of Landlord or any general partner of Landlord’s general partner.


 


“Aggregate FMRV Rent”
shall have the meaning given to that term in Paragraph (e)(i) of Article 4
hereof.


 


“Alteration Threshold”
shall have the meaning given to that term in Paragraph (a) of Article 12
hereof.


 


“Applicable Rate”
shall mean an annual rate of interest equal to the lesser of (i) the Prime
Rate plus two percent (2%) and (ii) the maximum contract interest rate per
annum allowed by North Carolina law.


 


“Appraiser” shall
mean an independent professional real estate appraiser, MAI or equivalent, with
at least ten (10) years’ experience appraising commercial real estate
comparable to the Leased Property, who shall be associated with a
nationally-recognized real estate services firm offering appraisal services,
with local offices in the region where the Leased Property is located, and
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 (it being agreed that an Appraiser that performs residential
or commercial property appraisals for Tenant in Tenant’s capacity as a mortgage
lender shall not be disqualified from serving as an Appraiser solely as a
result of such other relationship with Tenant).


 


“Approval Matter”
shall have the meaning given to that term in Paragraph (b)(ii) of Article 33
hereof.


 


“Arbitration Notice”
shall have the meaning given to that term in Paragraph (b)(i) of Article 33
hereof.


 


“Bankruptcy Act”
shall mean Title 11 of the United States Code and any other Federal
insolvency or similar law, now or hereafter in effect.


 


“Base Price Index”
shall mean the CPI for September 2003.


 


“Basic Rent” shall
have the meaning given to that term in Paragraph (a) of Article 4
hereof.


 


“Binding ADR Dispute”
shall have the meaning given to that term in Paragraph (b)(ii) of Article 33
hereof.


 


2

















 


“Business Day”
shall mean any day except Saturdays, Sundays, the days observed by the Federal,
Commonwealth of Pennsylvania or State of North Carolina governments as public
holidays, and days which Tenant observes as regularly scheduled bank holidays.


 


“Casualty” shall
have the meaning given to that term in Paragraph (a) of Article 13
hereof.


 


“CPI” shall mean
the Consumer Price Index published by the Bureau of Labor Statistics of the
United States Department of Labor for “All Urban Consumers” in the table
entitled “Consumer Price Index: United States City Average,” or any successor
index thereto, all Items (1982-84=100) for the calendar year in question.  In the event that the CPI is converted to a
different standard reference base or otherwise revised, the determination of
amounts hereunder to be determined by reference to the CPI shall be made with
the use of such conversion factor, formula or table for converting the CPI as
may be published by the Bureau of Labor Statistics or, if not so published,
then with the use of such conversion factor, formula or table as may be
published by Prentice-Hall, Inc. or any other nationally recognized
publisher of similar statistical information, or if a conversion factor,
formula or table is unavailable, Landlord and Tenant shall agree on another
method to adjust the CPI, or any successor thereto, to the figure that would
have been arrived at had the manner of computing the CPI in effect on the date
of this Lease not been altered. If Landlord and Tenant fail to agree upon a
conversion factor, formula, table or other method, the matter will be submitted
for resolution by a nationally recognized firm of certified public accountants
selected by Landlord and approved by Tenant, which approval shall not be
unreasonably withheld, at Tenant’s expense.


 


“Commencement Date”
shall mean September     , 2003, or such later date as
Landlord shall acquire title to the Leased Property from Prefco.


 


“Condemnation”
shall have the meaning given to that term in Paragraph (a) of Article 13
hereof.


 


“Contaminated Property”
shall have the meaning given to that term in Paragraph (e) of Article 10
hereof.


 


“Depository” shall
have the meaning given to that term in Paragraph (d) of Article 13
hereof.


 


“Environmental Laws”
shall mean and include the Resource Conservation and Recovery Act, as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, Clean Air Act, the
Federal Insecticide, Fungicide and Rodenticide Act and all applicable federal,
state and local environmental laws, ordinances, rules, regulations and
publications, as any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, and any other federal, state or local
laws, ordinances, rules, regulations and publications, now or hereafter
existing relating to regulation or control of toxic or hazardous substances or
materials.


 


3

















 


“Equipment” shall
have the meaning given to that term in Article 2 hereof, but shall not
include any Tenant’s Equipment.


 


“Event of Default”
shall have the meaning given that term in Paragraph (a) of Article 23
hereof.


 


“Fair Market Purchase
Value” shall mean the fair market purchase sale value, as of the date the
determination is made, that would be obtained in an arm’s-length purchase and
sale agreement between an informed and willing seller and an informed and
willing buyer, neither of whom is under any compulsion to enter into such
transaction.


 


“Fair Market Rental
Value” shall mean the fair market rental value, as of the date the
determination is made, that would be obtained in an arm’s-length bond net lease
between an informed and willing tenant (other than a tenant in possession) and
an informed and willing landlord, neither of whom is under any compulsion to
enter into such transaction, for properties comparable in size, location and
quality to the Leased Property, for an equivalent term.  Such Fair Market Rental Value shall be
calculated assuming that (i) the Leased Property is in the condition and
state of repair required under the Lease, (ii) Tenant is in compliance
with the requirements of the Lease and (iii) Tenant will accept the Leased
Property in “AS-IS” condition.


 


“FDIC” shall have
the meaning given to that term in Paragraph (a) of Article 15 hereof.


 


“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).


 


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


 


“Hazardous Substance”
shall mean and include any, each and all substances or materials regulated
pursuant to any Environmental Laws, including, but not limited to, any such
substance, emission or material now or hereafter defined as or deemed to be a
regulated substance, hazardous substance, toxic substance, pesticide, hazardous
waste or any similar or like classification or categorization, thereunder.


 


“Improvements”
shall have the meaning given to that term in Article 2 hereof.


 


“Indemnitee” shall
have the meaning given to that term in Paragraph (g) of Article 10
hereof.


 


“Initial Term”
shall have the meaning given to that term in Paragraph (a) of Article 3
hereof.


 


4

















 


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


 


“Land” shall have
the meaning given to that term in Article 2 hereof.


 


“Landlord’s mortgagee”
shall mean any institutional lender that holds a mortgage or deed of trust
given by Landlord which encumbers Landlord’s interest in the Leased Property.


 


“Leased Property”
shall have the meaning given to that term in Article 2 hereof.  Each time there is an addition to,
substitution, subtraction from or other change in the configuration of the
Leased Property as herein provided, including, without limitation, pursuant to Article 13(c) (Casualty
or Condemnation) and Article 16 (Purchase and Sale), Landlord and Tenant
shall execute an amendment to Schedule A
of this Lease.


 


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


 


“Litigating Party”
shall have the meaning given to that term in Paragraph (f) of Section 23
hereof.


 


“Major Dispute”
shall have the meaning given to that term in Paragraph (b)(iii) of Article 33
hereof.


 


“Maximum Renewal Term
Basic Rent” shall have the meaning given to that term in Paragraph (e)(i) of
Article 4 hereof.


 


“Net Award” shall
mean the entire award, compensation, insurance proceeds or other payment, if
any, on account of any Condemnation or Casualty, less any expenses (including,
but not limited to, reasonable attorneys’ fees and expenses) incurred by
Landlord in collecting such award, compensation, insurance proceeds or other
payment and not paid (or reimbursed to Landlord) by Tenant pursuant to Article 13
hereof.


 


“OCC” shall have
the meaning given to that term in Paragraph (a) of Article 15 hereof.


 


“OTS” shall have
the meaning given to that term in Paragraph (a) of Article 15 hereof.


 


“Permitted
Encumbrances” shall mean, with respect to the Leased Property: (a) rights
reserved to or vested in any public authority by the terms of any right, power,
franchise, grant, license, permit or provision of law affecting the Leased
Property, to (i) terminate such right, power, franchise, license or
permit, provided that the exercise of such right would not materially impair
the use of the Leased Property or materially and adversely affect the value
thereof, or (ii) purchase, condemn, appropriate or recapture, or designate
a purchaser of, the Leased Property or any portion thereof; (b) any liens
thereon for taxes, assessments, fees and other governmental and similar charges
referred to in Article 7 of this Lease, and any liens of mechanics,
materialmen and laborers for work or services performed or material furnished
in connection with the Leased Property, which are not due and payable, or which
are not delinquent to the extent that penalties for nonpayment may be assessed,
or the 


 


5

















 


amount or validity of
which are being contested as permitted by Paragraph (d) of Article 7
hereof; (c) easements, rights-of-way, servitudes, restrictions and other
minor defects, encumbrances and irregularities in the title to the Leased
Property which do not materially impair the use of the Leased Property or
materially and adversely affect the value thereof; (d) rights reserved to
or vested in any public authority to control or regulate or use the Leased
Property, which rights do not materially impair the.  use of the Leased Property or materially and
adversely affect the value thereof; (e) any mortgage affecting Landlord’s
interest in the Leased Property and any assignment of this Lease as further
security for the note or notes secured thereby; and (f) the matters
affecting title set forth in Schedule E
hereto.


 


“Prime Rate” shall
mean the “prime rate” announced by Bank of America, N.A., 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).


 


“Renewal Option(s)”
shall have the meaning given to that term in Paragraph (b) of Article 3
hereof.


 


“Renewal Option Notice
Date” shall mean, with respect to a Renewal Option, the date on which
Tenant sends written notice of exercise of such Renewal Option to Landlord as
provided in Paragraph (c) of Article 4 hereof.


 


“Renewal Property”
shall have the meaning given to that term in Paragraph (b) of Article 3
hereof.


 


“Renewal Term(s)”
shall have the meaning given to that term in Paragraph (b) of Article 3
hereof.


 


“Rent” means
annual Basic Rent and Additional Rent.


 


“Rent Payment Date”
shall have the meaning given to that term in Paragraph (a) of Article 4
hereof.


 


“Requesting Party”
shall have the meaning given to that term in Paragraph (a)(i) of Article 33
hereof.


 


“Responding Party”
shall have the meaning given to that term in Paragraph (a)(i) of Article 33
hereof.


 


“SEC” shall mean
the Securities and Exchange Commission.


 


“Tenant’s Equipment”
shall mean computer systems, automated teller machines, bank security systems
including closed circuit television systems, safe deposit boxes, modular
vaults, teller equipment, counters (excluding undercounter steel and
equipment), shelving, signs, surrounds, modular furniture, furniture, drive-up
motor bank equipment, satellite communications equipment including antennas,
trade fixtures, machinery, equipment and other property of Tenant now or
hereafter used or useful in connection with Tenant’s business.


 


6

















 


“Tenant’s Minimum
Credit Rating” shall have the meaning given to that term in Paragraph (e)(i) of
Article 10 hereof.


 


“Tenant’s Loss”
shall have the meaning given to that term in Paragraph (a) of Article 13
hereof.


 


“Term” shall mean
the Initial Term, plus any Renewal Term which may be effected pursuant to Article 3
hereof.


 


“Termination Date”
shall have the meaning given to that term in Paragraph (c) of Article 13
hereof.


 


“Termination Value”
shall have the meaning given to that term in Paragraph (c) of Article 13
hereof.


 


“Third Party Offer”
shall have the meaning given to that term in Article 16 hereof.


 


2.             DEMISE; TITLE; CONDITION:


 


In consideration of the
agreements and provisions of this Lease hereinafter stipulated to be observed
and performed by Tenant, Landlord hereby demises and lets to Tenant, and Tenant
hereby leases from Landlord, subject to the terms and conditions hereinafter
set forth, for the term described in Article 3 hereof, those certain
parcels of land (the “Land”) described in Schedule A annexed hereto, together with all
buildings, structures and improvements (the “Improvements”) thereon, and
all easements and appurtenances thereto, and all other facilities, fixtures, machinery,
apparatus, installations, equipment and other property used in connection with
the maintenance and operation of the Improvements, including, but not limited
to, all heating, ventilating, air conditioning, plumbing, and electrical
equipment, lighting and lighting equipment, elevators and escalators, non-bank
security systems, vault doors, teller counters, cages and undercounter steel,
drive-up motor bank facilities, night depository boxes, security system wiring,
utility lines, refuse facilities, waste removal systems, generators,
transformers, cooling towers, maintenance depots, power plants, storage tanks,
fire pumps, fire control, sprinkler and stand pipe systems, emergency power and
automatic transfer switches, air conditioning units, building and site
controls, sewerage facilities, automated mail distribution systems and all
associated piping, wiring, conduits, feeders, tracks, plumbing, drainage
facilities and all other property owned by Landlord and now or hereafter
located on the Land and used or procured for use in connection with the
Improvements (collectively the “Equipment”; the Land, the Improvements
and the Equipment being hereinafter referred to individually or collectively
from time to time as the context requires as the “Leased Property”).  The Leased Property shall exclude Tenant’s
Equipment, which is, and shall remain, the property of Tenant.


 


The Leased Property is
demised and let in its present condition without representation or warranty by
Landlord, subject to (a) the rights of any parties in possession thereof, (b) the
Permitted Encumbrances, (c) any state of facts which an accurate survey or
physical inspection might show, (d) all applicable laws, rules,
regulations, ordinances and restrictions now in effect, and (e) any violations
of such laws, rules, regulations, ordinances and restrictions which may 


 


7

















 


exist at the commencement
of the Term of this Lease.  Tenant has
examined the Leased Property and has found the same to be satisfactory.


 


Tenant acknowledges that
Tenant is fully familiar with the physical condition of the Leased Property and
that Landlord makes no representation or warranty, express or implied, with
respect to same or the location, use, description, design, merchantability,
fitness for use for a particular purpose, condition or durability thereof, or
as to quality of the material or workmanship therein, or otherwise; and all
risks incidental to the Leased Property shall be borne by Tenant to the extent
of matters which arise during the Term of this Lease.  Landlord leases and Tenant accepts the Leased
Property as is with all faults and in the event of any defect or deficiency of
any nature in the Leased Property or any fixture or other item constituting a
portion thereof, whether patent or latent, neither Landlord nor Landlord’s
mortgagee shall have any responsibility or liability with respect thereto.  THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION BY LANDLORD
OF, AND LANDLORD DOES HEREBY DISCLAIM ANY AND ALL WARRANTIES BY LANDLORD,
EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR ANY FIXTURE OR OTHER
ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL
CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.


 


3.             TERM; RENEWAL OPTION:


 


(a)           Subject to the provisions hereof,
Tenant shall have and hold the Leased Property for an initial term (“Initial
Term”) which shall begin on the Commencement Date and shall end on the last
day of the month in which the twentieth (20th) anniversary of the Commencement
Date occurs.  Except as otherwise
expressly noted, the Term of this Lease shall also include any Renewal Term(s) properly
exercised by Tenant as hereinafter provided.


 


(b)           Provided that no Event of Default
shall have occurred and be continuing and 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 of this
Lease for one or more Leased Properties which remain subject to this Lease at
the time of notice and at the time of renewal (each Leased Property for which a
Renewal Option is exercised by Tenant, a “Renewal Property”; and if more
than one, the “Renewal Properties”) for up to thirty (30) years in
consecutive periods of not less than five (5) years (nor more than ten (10) years)
each, as determined by Tenant in its sole discretion (individually, a “Renewal
Term” and collectively the “Renewal Terms”); provided that the Term
of this Lease shall not extend for more than fifty (50) years, beginning on the
Commencement Date of this Lease.  Tenant
shall not have the right to exercise its option to renew this Lease for any one
or more Renewal Properties for more than one (1) Renewal Term at a
time.  All of the terms, conditions,
covenants and agreements contained herein shall continue with equal force and
effect with respect to any Renewal Terms created by the proper exercise by
Tenant of its option to renew as contained herein; provided that the Basic Rent
for each Renewal Property shall be determined as provided in Paragraph (e) of
Article 4 below.


 


8














 


(c)           The first
Renewal Term shall commence at the expiration of the Initial Term, and each
subsequent Renewal Term shall commence at the expiration of the prior Renewal
Term.  Tenant shall exercise its options
to renew, if at all, by delivering notice of such election to Landlord not
later than twelve (12) months prior to the expiration of the Initial Term or
the expiration of the then current Renewal Term, as the case may be.  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) DAYS FOLLOWING THE
DELIVERY OF SUCH NOTICE.


 


4.             RENT:


 


(a)           Basic Rent.  Beginning on the Commencement
Date and continuing throughout the Term of this Lease, Tenant shall pay to
Landlord the annual basic rent provided for in Schedule
A annexed hereto (“Basic Rent”), in advance, on October 1
of each year (the “Rent Payment Date”). 
Tenant shall pay to Landlord all Basic Rent and (to the extent payable
to Landlord) and Additional Rent by wire transfer of federal funds or collected
funds immediately available to Landlord on the dates when rent is due, at
Landlord’s address set forth above, or at such other place in the continental
United States as Landlord may from time to time designate.  In the event that a Leased Property ceases to
be subject to this Lease and, as a result thereof, Tenant’s obligation to pay
Basic Rent with respect thereto terminates as herein provided, effective as of
the date the of such termination, the Basic Rent payable by Tenant hereunder
shall be reduced by the percentage allocated to the removed Leased Property on Schedule A annexed hereto.  Whenever during the Term a Leased Property is
added to or removed from this Lease as herein provided, Landlord and Tenant shall
amend Schedule A to reflect such addition
or removal and to reallocate the Basic Rent among the Leased Properties then
subject to this Lease.


 


(b)           Holidays.  If any Rent Payment Date
falls on a day which is not a Business Day, Basic Rent shall be due and payable
on the next succeeding Business Day without interest or penalty if paid on such
Business Day.


 


(c)           Additional Rent.  All amounts which Tenant
is required to pay or discharge pursuant to this Lease in addition to Basic
Rent (including any amount payable as the purchase price for the Leased
Property pursuant to any provision hereof or as liquidated damages pursuant to
paragraph (c) of Article 23) together with any interest or penalty
which may be added for late payment thereof, shall constitute additional rent
hereunder (“Additional Rent”). In the event of any failure by Tenant to
pay or discharge any such amount, Landlord shall have all rights, powers and
remedies provided for herein or by law or otherwise in the case of nonpayment
of Basic Rent. Tenant may pay Additional Rent directly to the person entitled
thereto.


 


(d)           Late Charge.  Tenant recognizes that
late payment of any Rent will result in administrative and other expense to
Landlord.  Therefore, other remedies for
nonpayment of Rent notwithstanding, (i) in the event any installment of
Basic Rent is not received by Landlord 


 


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on or before the fifth
(5th) day following the Rent Payment Date, and such amount shall remain unpaid
for more than five (5) days after Tenant’s receipt of written notice that
such amount is past due, then Tenant shall pay to Landlord a late charge equal
to two and one half (21⁄2%) percent of the past due installment of Basic Rent,
and (ii) in the event any payment of Additional Rent is not received by
Landlord within five (5) days after Tenant’s receipt of written notice
that such amount is past due, then Tenant shall pay to Landlord an additional
charge in an amount equal to the lesser of Two Thousand Five Hundred Dollars
($2,500.00) or one percent (1%) of the overdue amount.  Any notice of overdue payment for which
Tenant shall be subject to a late charge shall 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 that Tenant’s payment is deficient by an amount that is less than or
equal to one percent (1%) of the total amount due; provided that Tenant shall
remit the amount of the deficiency promptly upon and, in any extent, within
five (5) Business Days following Tenant’s receipt of written notice from
Landlord that the same is past due.  All
additional charges described herein are not intended as a penalty, but are
intended to liquidate the damages so occasioned to Landlord and to reimburse
Landlord for Landlord’s additional costs in processing such late payment, which
amounts shall be added to the Rent then due.


 


(e)           Rent During Renewal Term.


 


(i)             The
annual Basic Rent to be paid by Tenant for each Renewal Property during a
Renewal Term shall equal the Fair Market Rental Value of such Renewal Property
during such Renewal Term as determined by the parties or, in the absence of
their agreement, determined by appraisal as expressed below; provided that (i) during
the first Renewal Term immediately following the expiration of the Initial
Term, the annual Basic Rent payable for all Renewal Properties, computed on an
aggregate basis, shall not exceed one hundred ten percent (110%) of the annual
Basic Rent payable by Tenant for all Renewal Properties immediately prior to
the commencement of such first Renewal Term, computed on an aggregate basis,
and (ii) during the second and all subsequent Renewal Terms, the annual
Basic Rent payable for all Renewal Properties shall not exceed one hundred five
percent (105%) of the annual Basic Rent payable by Tenant for all Renewal Properties
immediately prior to the commencement of such Renewal Term, computed on an
aggregate basis (the maximum aggregate annual Basic Rent as so determined, the “Maximum
Renewal Term Basic Rent”).  If the
aggregate Fair Market Rental Values of the Renewal Properties (collectively,
the “Aggregate FMRV Rent”) exceeds the Maximum Renewal Term Basic Rent,
the Fair Market Rental Values of the Renewal Properties shall be
proportionately reduced by multiplying each such Fair Market Rental Values by a
fraction, expressed as a decimal, the numerator of which is the Maximum Renewal
Term Basic Rent and the denominator of which is the Aggregate FMRV Rent, so
that the annual Basic Rent for the Renewal Properties shall, in the aggregate,
equal the Maximum Renewal Term Basic Rent.


 


(ii)            Within thirty (30)
days following the Renewal Option Notice Date, Landlord shall deliver to Tenant
a proposal setting forth Landlord’s determination of the Fair 


 


10

















 


Market Rental Value for
the Renewal Properties during the applicable Renewal Term.  For thirty (30) days thereafter, Landlord and
Tenant shall negotiate in good faith to reach agreement as to the Fair Market
Rental Value for the Renewal Properties. 
Tenant’s leasing of the Renewal Properties shall be upon the same terms
and conditions as set forth in this Lease, except (A) the annual Basic
Rent during the Renewal Term shall be determined as specified in Paragraphs (e)(i) and
(e)(iii) of this Article 4 and (B) the leasehold improvements
for the space in question will be provided in their existing condition, on an “AS-IS”
basis at the time the Renewal Term commences. 
Once established, the annual Basic Rent for the applicable Renewal Term
will remain fixed for each Renewal Term, and be paid annually in advance on the
Rent Payment Date.


 


(iii)           If Landlord and Tenant
are unable to reach a definitive agreement as to the Fair Market Rental Value
applicable to the Renewal Properties within sixty (60) days following the
Renewal Option Notice Date, the Fair Market Rental Value will be submitted for
resolution in accordance with the provisions of this Article 4(e)(iii).  Within seventy-five (75) days following the
Renewal Option Notice Date (or, if later, within fifteen (15) days following
the date on which either Landlord or Tenant notifies the other party in writing
that such notifying party desires to have the annual Basic Rent for a Renewal
Term determined by appraisal), Landlord and Tenant shall each select and engage
an Appraiser to determine the Fair Market Rental Value of the Renewal
Properties.  If either party fails to
select and engage an Appraiser within such time, 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, the Fair
Market Rental Value will be determined by the Appraiser engaged by the other
party.  Each Appraiser shall prepare an
appraisal report and submit it to both Landlord and Tenant within thirty (30)
days following the date on which the last Appraiser was selected.  If the higher of the two appraisals of Fair
Market Rental Value does not exceed one hundred five percent (105%) of the
lower of the two appraisals of Fair Market Rental Value, then the average of
the two (2) appraisals shall be the Fair Market Rental Value for the
Renewal Property.  If the higher of the
two appraisals of Fair Market Rental Value exceeds one hundred five percent
(105%) of the lower of the two appraisals of Fair Market Rental Value, then
within seven (7) days after receipt by Landlord and Tenant of both
appraisal reports, the Appraisers selected by Landlord and Tenant shall agree
on a third Appraiser to determine Fair Market Rental Value.  The third Appraiser shall not perform a third
appraisal, but shall, within ten (10) days after his or her designation,
select one (1) of the two (2) appraisals already performed, whichever
of the two appraisals the third Appraiser determines to be closest to Fair
Market Rental Value, as the controlling determination of the Fair Market Rental
Value.  The decision of the third
Appraiser shall be conclusive, and, subject to the limitations expressed in
Paragraph (e)(i) of this Article 4, shall be the Fair Market Rental
Value for the Renewal Properties for the Renewal Term.  Each party shall pay the costs of its
Appraiser and one-half of the cost of the third Appraiser.  The instructions to the Appraisers with
respect to the determination of the Fair Market Rental Value applicable to such
space will be to determine the Fair Market Rental Value for such space as of
the relevant Renewal Term, assuming that such space will be leased on an “AS-IS”
basis.  Within thirty (30) days following
the determination of the Fair Market Rental Value, Tenant shall elect one (1) of
the following options:  (A) to
revoke the exercise of the subject Renewal Option, in which event, the Term of
this Lease for the Leased Properties to which the notice of 


 


11

















 


revocation applies shall
automatically, and without further action of Landlord or Tenant, expire on the
later of (1) the expiration of the then existing Term of this Lease or (2) the
last day of the calendar month that is six (6) months following the month
in which Tenant’s notice of revocation was given to Landlord or (B) to
renew the Lease at the rate to be determined in accordance with this Article 4(e)(iii) after
the Fair Market Rental Value has been determined by appraisal.  If Tenant fails to exercise any of the
foregoing options within the thirty (30) day period, Tenant shall be deemed to
have elected option (A).  If Tenant has
elected option (B), Tenant thereby shall have irrevocably exercised its right
to renew the Term and Tenant may not thereafter withdraw the exercise of the
Renewal Option; in such event the renewal of this Lease (as to the Renewal
Properties) shall be upon the same terms and conditions of this Lease, except (i) the
annual Basic Rent during the Renewal Term shall be determined in accordance
with the foregoing provisions and (ii) the leasehold improvements for the
space in question will be provided in their existing condition, on an “AS-IS”
basis at the time the Renewal Term commences. 
If the annual Basic Rent for a Renewal Term has not been determined
prior to the commencement of such Renewal Term, Tenant shall pay to Landlord as
of the commencement of the Renewal Term the same annual Basic Rent as Tenant
was paying immediately prior to the commencement of the Renewal Term, subject
to adjustment upon final determination. 
Once established, the annual Basic Rent for the Renewal Term will remain
fixed for each Renewal Term, and be paid annually in advance on the Rent
Payment Date.


 


(iv)          Notwithstanding anything
to the contrary contained in this Article 4(e), subject to the provisions
of Paragraph (b) of Article 3 above, Tenant’s failure to give the
required renewal notice with respect to the Leased Properties in conformity
with the requirements of Paragraph (c) of Article 3 above shall
render the upcoming and all subsequent Renewal Options for such Leased
Properties, if there by any, null and void.


 


5.             USE:


 


Tenant
may use each Leased Property as a branch bank or for administrative office
purposes or for other activities permitted under applicable banking laws; or
for any purpose not prohibited by law and by any certificate of occupancy
provided that any such use or uses shall not materially reduce the fair market
value of such Leased Property nor increase by more than a de minimis
amount the risk of contamination by any toxic or hazardous substances or in
violation of Environmental Laws, or result in any increased risk of liability
to Landlord, in Landlord’s reasonable judgment, and provided, further, that any
and all alterations and improvements to each Leased Property shall be subject
to the terms, conditions and limitations contained in Article 12,
below.  It is expressly agreed by
Landlord that Tenant’s ceasing to do business in a Leased Property and vacating
a Leased Property shall not constitute an Event of Default hereunder so long as
such Leased Property continues to be maintained by Tenant as otherwise required
by the terms hereof.


 


6.             NET LEASE; NONTERMINABILITY:


 


(a)            Tenant to Pay All Costs.  This
Lease is a “net lease” and Tenant’s obligations arising or accruing during the
Term of this Lease to pay all Basic Rent, Additional Rent, and all other
payments hereunder required to be made by Tenant shall be absolute and
unconditional, and Tenant shall pay all Basic Rent, Additional Rent and all
other payments 


 


12

















 


hereunder
required to be made by Tenant without notice, demand, counterclaim, set-off,
deduction, or defense, and without abatement, suspension, deferment, diminution
or reduction, free from any charges, assessments, impositions, expenses or
deductions of any and every kind or nature whatsoever.  All costs, expenses and obligations of every
kind and nature whatsoever relating to the Leased Property and the
appurtenances thereto and the use and occupancy thereof which may arise or
become due and payable with respect to the Term of this Lease (whether or not
the same shall become payable during such Term or thereafter) shall be paid by
Tenant, and Landlord shall be indemnified, defended and saved harmless by
Tenant from and against the same other than by reason of Landlord’s willful
misconduct or negligence.  Tenant assumes
the sole responsibility for the condition, use, operation, maintenance,
underletting and management of the Leased Property, and Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all liability,
costs, damages, losses and claims (including reasonable attorneys’ fees and
expenses) in respect thereof, except as caused by the negligence or willful
misconduct of Landlord, and Landlord shall have no responsibility in respect
thereof and shall have no liability for damage to the property of Tenant or any
subtenant of Tenant on any account or for any reason whatsoever, except as
caused by the negligence or willful misconduct of Landlord.  Without limiting the generality of the
foregoing, during the Term of this Lease Tenant shall perform all of the
obligations of the sublessor under any sublease affecting all or any part of
the Leased Property which Tenant may hereafter enter into as sublessor.


 


(b)           Nonterminability.  Except
as otherwise expressly provided herein, this Lease shall not terminate, nor
shall Tenant have any right to terminate this Lease or to be released or
discharged from any obligations or liabilities hereunder for any reason, including,
without limitation: (i) any damage to or destruction of any Leased
Property; (ii) any restriction, deprivation or prevention of, or any
interference with, any use or the occupancy of any Leased Property; (iii) any
Condemnation, requisition or other taking or sale of the use, occupancy or
title to any Leased Property; (iv) any action, omission or breach on the
part of Landlord under this Lease or under any other agreement between Landlord
and Tenant; (v) the inadequacy or failure of the description of any Leased
Property to demise and let to Tenant the property intended to be leased hereby;
(vi) Tenant’s acquisition of ownership of any Leased Property, or any sale
or other disposition of a Leased Property; (vii) the impossibility or
illegality of performance by Landlord or Tenant or both; or (viii) any
other cause, whether similar or dissimilar to the foregoing, any present or
future law notwithstanding.


 


(c)            Bankruptcy; Tenant to Remain Liable.  Tenant
will remain obligated under this Lease in accordance with its terms, and will
not take any action to terminate (except in accordance with the express
provisions of Article 13 hereof), rescind or avoid this Lease for any
reason, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Landlord or any assignee
of Landlord, or any action with respect to this Lease which may be taken by any
receiver, trustee or liquidator or by any court.  Tenant waives all rights at any time
conferred by statute or otherwise to quit, terminate or surrender this Lease or
the Leased Property, or to any abatement or deferment of any amount payable by
Tenant hereunder, or for damage, loss or expense suffered by Tenant on account
of any cause referred to in this Article 6 or otherwise, or for damage,
loss or expense suffered by Tenant on account of any cause referred to in this Article 6
or otherwise.


 


13

















 


7.             TAXES AND OTHER CHARGES; LAW AND AGREEMENTS:


 


(a)           Taxes, Assessments.  Tenant
shall pay and discharge, not later than the last day upon which the same may be
paid without interest or penalty, all taxes, assessments, levies, fees, water
and sewer rents and other governmental and similar charges, general and
special, ordinary or extraordinary, and any interest and penalties thereon,
which are levied or assessed and become due and payable with respect to the
Term of this Lease, whether or not the same become payable during the Term of
this Lease (including all of the taxes, assessments, levies, fees, water and
sewer rents and other governmental charges for the year in which this Lease is
executed which are now a lien but not yet due and payable) against (i) Landlord
and which relate to Landlord’s ownership of the Leased Property, the use and
occupancy of the Leased Property or the transactions contemplated by this
Lease, (ii) Landlord’s mortgagee and which are imposed in respect of
Landlord’s mortgagee’s interest in the Leased Property, the use and occupancy
of the Leased Property or the transactions contemplated by this Lease, (iii) the
Leased Property or the interest of Tenant or Landlord therein, (iv) Basic
Rent, Additional Rent or any other amount payable by Tenant hereunder, (v) this
Lease or the interest of Tenant or Landlord hereunder, (vi) the use,
occupancy, construction, repair or rebuilding of the Leased Property or any
portion thereof, or (vii) gross receipts from the Leased Property.  If any tax or assessment levied or assessed
against the Leased Property may legally be paid in installments, Tenant shall
have the option to pay such tax or assessment in installments.  Nothing in this Lease shall require payment
by Tenant of any franchise, estate, inheritance, succession, transfer, net
income or profits taxes of Landlord or Landlord’s mortgagee, unless such tax is
in lieu of or a substitute for any other tax or assessment upon or with respect
to the Leased Property, which, if such other tax or assessment were in effect,
would be payable by Tenant hereunder. 
Tenant shall furnish to Landlord, promptly, and in any event within
sixty (60) days after payment thereof, at Landlord’s request, proof of the
payment of any such tax, assessment, levy, fee, rent or charge which is payable
by Tenant, subject to Tenant’s right to contest such charges pursuant to Article 7(d) hereof.  Such taxes, assessments, levies, fees, water
and sewer rents and other governmental charges shall be apportioned between
Landlord and Tenant as of the date on which this Lease terminates or expires.


 


(b)           Utility Charge.  Tenant shall pay all charges for
utility, communication and other services rendered or used on or about the
Leased Property during the Term of this Lease, whether or not payment therefor
shall become due after the Term of this Lease.


 


(c)           Compliance with Laws.  Tenant
shall at all times during the Term of this Lease, at Tenant’s own cost and
expense, perform and comply with, and shall use its reasonable efforts to cause
its agents, visitors and invitees to comply with, all Legal Requirements relating
to the Leased Property, or the Improvements thereon, or the facilities or
equipment thereon or therein, or the
streets, sidewalks, vaults, vault spaces, curbs and gutters adjoining the
Leased Property, or the appurtenances to the Leased Property, or the franchises
and privileges connected therewith, whether or not such Legal Requirements so
involved shall necessitate structural changes, improvements, interference with
use and enjoyment of the Leased Property, replacements or repairs, extraordinary
as well as ordinary, and Tenant shall so perform and comply, whether or not
such Legal Requirements shall now exist or shall hereafter be enacted or
promulgated, and whether or not such Legal Requirements can be said to be
within the present contemplation of the parties hereto.


 


14

















 


(d)           Contest Charges and Compliance.  Tenant
shall have the right to contest, by appropriate legal proceedings, any tax,
charge, levy, assessment, lien or other encumbrance, and/or any Legal
Requirement affecting the Leased Property, and to postpone payment of or
compliance with the same during the pendency of such contest; provided that in
the event of such postponement or payment or noncompliance: (i) Tenant
shall not postpone the payment of any such tax, charge, levy, assessment, lien
or other encumbrance for such length of time as shall permit the Leased
Property, or any lien thereon created by such item being contested, to be sold
by federal, state, county or municipal authority for the non-payment thereof; (ii) Tenant
shall not postpone compliance with any such Legal Requirement if Landlord will
thereby be subject to civil liability or criminal prosecution, or if any
Governmental Authority shall commence a process according to applicable law to
carry out any work to comply with the same or to foreclose or sell any lien
affecting all or part of the Leased Property which shall have arisen by reason
of such postponement or failure of compliance; and (iii) Tenant shall pay,
in a timely fashion, all Basic Rent and Additional Rent (other than any item of
Additional Rent that Tenant is permitted to contest pursuant to this Lease, so
long as Tenant satisfies all of the requirements of this Lease relating to such
contest) which shall become due and payable under this Lease.  At the request of Tenant, Landlord agrees to
cooperate with Tenant in connection with any such contest, provided that Tenant
pays all reasonable expenses, including reasonable attorneys’ fees, incurred by
Landlord in connection with any such contest.


 


8.             LIENS:


 


Tenant
will promptly, but no later than sixty (60) days after receipt of actual notice
of the filing thereof, remove and discharge of record, by bond or otherwise,
any charge, lien, security interest or encumbrance upon the Leased Property, or
any Basic Rent, or Additional Rent which arises for any reason, including all
liens which arise out of the possession, use, occupancy, construction, repair
or rebuilding of the Leased Property or by reason of labor or materials
furnished or claimed to have been furnished to Tenant for the Leased Property,
but not including any Permitted Encumbrances. 
Nothing contained in this Lease shall be construed as constituting the
consent or request of Landlord, express or implied, to or for the performance
by any contractor, laborer, materialman, or vendor of any labor or services or
for the furnishing of any materials for any construction, alteration, addition,
repair or demolition of or to the Leased Property or any part thereof.  Notice is hereby given that Landlord will not
be liable for any labor, services or materials furnished or to be furnished to
Tenant, or to anyone holding an interest in the Leased Property or any part
thereof through or under Tenant, and that no mechanics’ or other liens for any
such labor, services or materials shall attach to or affect the interest of
Landlord in and to the Leased Property. 
In the event of the failure of Tenant to discharge any charge, lien,
security interest or encumbrance as aforesaid, Landlord may discharge such
items by payment or bond or both, and Tenant will repay to Landlord, upon
demand, any and all amounts paid by Landlord therefor, or by reason of any
liability on such bond, and also any and all incidental expenses, including reasonable
attorneys’ fees, incurred by Landlord in connection therewith.


 


15

















 


9.             INDEMNIFICATION; FEES AND EXPENSES:


 


(a)           Indemnification by Tenant.  Tenant
shall pay, and shall protect, defend, indemnify and hold Landlord and Landlord’s
mortgagee harmless from and against all liabilities, losses, damages, costs,
expenses (including reasonable attorneys’ fees and expenses), claims, demands
or judgments of any nature arising from or in connection with the following
events to the extent such events arise during the Term of this Lease: (i) any
injury to, or the death of, any person or any damage to or loss of property on
the Leased Property or growing out of or directly or indirectly connected with
the ownership by Landlord, use, nonuse, occupancy, construction, repair or
rebuilding of the Leased Property (or adjoining property, to the extent that
any loss or damage to adjoining property arises from or out of the Leased
Property), or resulting from the condition thereof, other than any injury,
death, damage or loss arising out of Landlord’s or Landlord’s mortgagee’s
willful misconduct or negligence; and (ii) violation by Tenant of any
provision of this Lease whether or not such violation results in a violation of
any provision of any mortgage affecting Landlord’s interest in the Leased
Property, or of any law, rule, regulation, ordinance or restriction, now or
hereafter in effect and affecting the Leased Property, or of any lease or other
agreement relating to the Leased Property now or hereafter in effect to which
Tenant is a party or by which Tenant is bound, or of any agreement of which
Tenant now has actual or constructive notice and which is now in effect,
affecting the Leased Property or the ownership by Landlord, use, nonuse,
occupancy, construction, repair or rebuilding thereof.


 


(b)           Notice; Proceedings.  Should any event occur for which any party
hereto is entitled to indemnification pursuant to this Article 9 or other
provisions of this Lease, such party shall provide prompt written notice to the
other parties describing the nature of such claim. The indemnifying party may
assume responsibility for any action to be taken to contest the claim provided
that the indemnifying party will notify the indemnitees in writing of its
intention to contest such claim within thirty (30) days after receipt of notice
of the claim from the indemnitees. The indemnifying party, at its sole expense,
may control all proceedings relating to such contest. The indemnitees will
cooperate with the indemnifying party in contesting such claim, provided that
the indemnifying party indemnifies and holds harmless the indemnitees for all
reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees and expenses) relating to contesting such claim.


 


10.           ENVIRONMENTAL MATTERS:


 


(a)            Representations and
Covenants.  Tenant represents,
covenants and warrants to Landlord that:


 


(i)            at all times during the Term of this Lease Tenant
and the Leased Property shall comply in all material respects with all
Environmental Laws;


 


(ii)           to the best of Tenant’s knowledge, no notices, complaints or orders of
violation or non-compliance of any nature whatsoever have been issued to Tenant
or, to the best of Tenant’s knowledge, any current or prior tenant or owner of
the Leased Property, and no federal, state or local environmental investigation
is pending or overtly 


 


16

















 


threatened,
with regard to the Leased Property or any use thereof or any alleged violation
of Environmental Laws with regard to the Leased Property;


 


(iii)          the Leased Property has not been used by Tenant or, to the best of Tenant’s
knowledge, by any prior owner, and will not be used by Tenant at any time
during the Term of this Lease to generate, manufacture, refine, produce, or
process any Hazardous Substance or to store, handle, transfer or transport any
Hazardous Substance other than routine uses of products in lawful quantities in
compliance with Environmental Laws;


 


(iv)          to the best of Tenant’s knowledge, no underground storage tanks or
surface impoundments are constructed, operated or maintained on or under the
Leased Property;


 


(v)           to the best of Tenant’s knowledge, the Leased Property is and at all
times during the Term of this Lease will be maintained free of Hazardous
Substances, the removal of which is required or the maintenance of which is
prohibited or penalized by Environmental Law; and


 


(vi) to the
best of Tenant’s knowledge, the Leased Property contains no Hazardous Substances
or friable asbestos which could materially adversely affect any person, the
environment or the Leased Property or in any case or in the aggregate, could
impose a material liability on Landlord or Landlord’s mortgagee, and if any
Leased Property contains friable asbestos, Tenant shall comply with Paragraph (f) of
this Article 10 below.


 


For
purposes of this Article 10(a), the phrase “to the best of Tenant’s
knowledge” means the actual, current awareness, as of the date of this Lease,
of Michael F. Hord, Associate General Counsel of Tenant, Chuck Dunn, Senior
Vice President of Trammell Crow Corporate Services, Inc., and Jeffrey W.
Dixon, Senior Vice President — Property Management of Tenant, without
independent investigation or inquiry.


 


(b)            Environmental Covenants. Tenant covenants that during the Term of
this Lease it (i) shall comply, and cause the Leased Property to comply,
with all Environmental Laws applicable to the Leased Property, (ii) shall
prohibit the use of the Leased Property for the generation, manufacture,
refinement, production, or processing of any Hazardous Substance or for the
storage, handling, transfer or transportation of any Hazardous Substance (other
than in connection with the operation and maintenance of the Leased Property and
in commercially reasonable quantities as a consumer thereof and in compliance
with Environmental Laws), (iii) shall not install or permit the
installation on the Leased Property of any underground storage tanks or surface
impoundments and shall not permit there to exist any petroleum contamination in
violation of applicable Environmental Laws to the Leased Property originating
on or off the Leased Property (other than in connection with the use, operation
and maintenance of the Leased Property and then only in compliance with
applicable Environmental Laws and all other applicable laws, rules, orders,
ordinances, regulations and requirements now or hereafter enacted or
promulgated of every government and municipality having jurisdiction over the
Leased Property and of any agency thereof) or asbestos-containing materials in
violation of applicable 


 


17

















 


Environmental Laws and (iv) shall
cause any alterations of the Leased Property to be done in a way so as to not
expose the persons working on or visiting the Leased Property to Hazardous
Substances and in connection with any such alterations shall remove any
Hazardous Substances present upon the Leased Property which are not in
compliance with Environmental Laws or which present a danger to persons working
on or visiting the Leased Property.  With
respect to any violation of applicable Environmental Laws related to the Leased
Property caused by Hazardous Substances originating off of the Leased Property
and not generated therefrom by Tenant, its agents, employees or contractors,
Landlord authorizes Tenant to institute any action against the party
responsible for such violation.  So long
as Tenant is diligently pursuing all available recourse against the party
responsible for such violation, and so long as such violation does not pose a
risk to public health, materially threaten the use of the Leased Property or
the value thereof, or expose Landlord or Landlord’s mortgagee, in any manner,
to any claim or liability, Tenant may defer taking remedial measures to correct
the violation caused by Hazardous Substances originating off of the Leased
Property; provided that such period of deferral may be terminated by Landlord
or Landlord’s mortgagee at any time if either Landlord or Landlord’s mortgagee,
each in its sole and absolute discretion, believes that the public health, the
use of the Leased Property or the value thereof are threatened by such
violation or such Hazardous Substances. 
In no event shall the ability to defer remedial measures relieve Tenant
of the responsibility therefor, which responsibility shall expressly survive
the expiration or sooner termination of this Lease.


 


(c)           Notice; Right to
Contest.  As soon as reasonably
possible after obtaining knowledge thereof, Tenant shall give to Landlord
notice of the occurrence of any of the following events: (i) the failure
of the Leased Property to comply with any Environmental Law; (ii) the
receipt by Tenant or any sublessee or assignee of Tenant of any notice, complaint
or order of violation or non-compliance of any nature whatsoever with regard to
the Leased Property or the use thereof with respect to Environmental Laws; or (iii) the
receipt by Tenant or any sublessee or assignee of Tenant of any notice of a
pending or threatened investigation that Tenant’s (or its sublessees’ or
assignees’) operations on the Leased Property are not in compliance with any
Environmental Law. Tenant shall have the right to contest, by appropriate
proceedings, any notice, complaint, order or finding of violation or
non-compliance with any Environmental Laws affecting the Leased Property or any
use thereof by Tenant or its sublessees or assignees, provided the same will
not thereby subject Landlord or Landlord’s mortgagee to civil liability or
criminal prosecution or permit any Governmental Authority to commence a process
according to applicable law to carry out any work to comply with the same or to
foreclose or sell any lien affecting all or any portion of the Leased Property
which may arise in connection therewith. If Tenant determines that the Leased
Property is in violation of an Environmental Law, Tenant will promptly give
Landlord written notice thereof notwithstanding the fact that the matter giving
rise to such violation may have been disclosed in the Environmental Report
delivered to Landlord and Landlord’s mortgagee.


 


(d)           Audit.  At any time that Landlord receives notice
that an adverse change in the environmental condition of one or more parcels
comprising the Leased Property has occurred, Landlord shall give notice thereof
to Tenant, and if Tenant shall not diligently commence to cure such condition
within thirty (30) days of receipt of such notice (or such shorter period as
may be required by law or in the event of an emergency), Landlord may
reasonably cause to be performed an environmental audit or risk assessment of
the relevant portion of the Leased 


 


18

















 


Property and the
then uses thereof, and may take such other actions as Landlord may deem
necessary to cure such condition.  Such
an environmental audit or assessment shall be performed by an environmental
consultant satisfactory to Landlord and shall include a review of the uses of
the Leased Property and compliance of the same with all Environmental
Laws.  All reasonable costs and expenses
incurred by Landlord in connection with such environmental audit or assessment
shall be paid by Tenant upon demand.


 


(e)            Contaminated
Property.  If at any time an event or
condition shall have occurred and be continuing which results in conditions at
any parcel of the Leased Property that exceed any applicable standards under
any Environmental Law, or a notice, complaint, or order or finding of violation
or non-compliance with any Environmental Law shall have been received by Tenant
with respect to any parcel comprising the Leased Property (a “Contaminated
Property”), Tenant shall diligently perform all remedial work to the
Contaminated Property at Tenant’s own cost and expense to bring the Contaminated
Property into full compliance with Environmental Laws and the requirements of
this Article 10 by not later than the end of the Term of this Lease,
provided that (x) at the time the remedial work begins and at all times
while the remedial work is continuing, Tenant has a credit rating of Baa1 or higher from Moody’s Investors Service (or BBB+
from Standard & Poor’s) (“Tenant’s Minimum Credit Rating”)
and a net worth of One and One-Half Billion Dollars ($1,500,000,000) or higher,
or (y) (A) the cost of such remedial work is less than One Million
Dollars ($1,000,000) with respect to the Contaminated Property at the outset
and at all times while the remedial work is continuing, as determined by an
environmental consultant selected by Tenant and approved by Landlord and
Landlord’s mortgagee, which approval shall not be unreasonably withheld or
delayed, and (B) in the opinion of an environmental consultant selected by
Tenant and approved by Landlord and Landlord’s mortgagee, which approval shall
not be unreasonably withheld or delayed, the remedial work can be completed
within one year and in no event later than the end of the Term of this Lease
(the consultant’s reports referred to in (A) and (B) above being
provided at the beginning of the remediation period and updated every
forty-five (45) days thereafter).


 


(f)            Asbestos Program.  As to
all Leased Properties which are known or become known by Tenant to contain
asbestos, Tenant shall continue its present program or shall implement a
program for monitoring and maintaining any asbestos contained in the
Improvements in a manner designed to minimize the risk of harm resulting from
its presence.  Tenant represents that its
present asbestos program includes (i) procedures to monitor the condition
of any asbestos known to be contained in the Improvements, to notify employees
and third party contractors engaged to do work in the Leased Property of a sort
which might increase the risk of exposure to asbestos and to cause any such
work to be done in a manner which minimizes the risk of such increased
exposure, (ii) procedures to remove any asbestos, the condition of which
might be disturbed by any alterations or renovations of the Leased Property
undertaken by Tenant, prior to undertaking to do such alterations or renovations,
and (iii) plans to remove promptly any asbestos which is revealed by the
monitoring program to have deteriorated in condition to a point which creates a
significant risk of exposure or the removal of which is required by any
Environmental Laws.  Tenant shall also
continue its present practices respecting the possibility of the existence of
asbestos in Leased Properties not known to contain asbestos, which include (i) requiring
qualified property operations and maintenance personnel to conduct periodic
inspections of the Leased Property and to report the presence of any material
suspected to be asbestos found in the course of inspections of the Leased
Properties, 


 


19

















 


(ii) inspection
of Leased Properties so reported to confirm the presence or absence of
asbestos, and (iii) inspection of affected areas of Improvements prior to
and during alteration, repair or renovation to confirm the presence or absence
of asbestos.


 


(g)           Indemnification.  Tenant agrees to indemnify,
defend and hold harmless Landlord and each and all of Landlord’s members,
partners, shareholders, officers, directors, employees, attorneys and agents
and Landlord’s mortgagee and all of Landlord’s mortgagee’s members, partners,
shareholders, officers, directors, employees, attorneys and agents
(collectively called the “Indemnitees”) from and against any and all
losses (including, without limitation, diminution in value of the Leased
Property), liabilities (including, without limitation, strict liability),
suits, obligations, fines, damages, judgments, penalties, claims, charges,
costs and expenses (including, without limitation, reasonable fees and
disbursements of counsel and consultants for such Indemnitees), which
may be suffered or incurred by, or asserted against, an Indemnitee and which
arise directly or indirectly out of a violation prior to and during the Term of
this Lease of this Article 10 or arise directly or indirectly from the
presence of Hazardous Substances on the Leased Property prior to or during the
Term of this Lease in amounts or concentrations requiring remediation under
applicable law or by order of Governmental Authority.


 


(h)           Survival.  The warranties and obligations of Tenant, and
the rights and remedies of Landlord under this Article 10, are in addition
to and not in limitation of any other warranties, obligations, rights and
remedies provided in this Lease or otherwise at law or in equity and shall
survive the termination of this Lease, either pursuant to the terms hereof or
following an Event of Default.


 


11.           MAINTENANCE AND REPAIR:


 


Tenant
will, at its cost and expense, keep and maintain the Leased Property in good
repair and condition, and will make all structural and non-structural, and
ordinary and extraordinary changes, repairs and replacements which may be
required to be made upon or in connection with the improvements to the Leased
Property in order to keep the same in good repair and condition.  Except as otherwise provided in Article 13
with respect to making insurance proceeds available to restore a Leased
Property, Landlord shall not be required to maintain, alter, repair, rebuild or
replace any Improvements on the Leased Property or to maintain the Leased
Property, and Tenant expressly waives the right to make repairs at the expense
of Landlord pursuant to any law at any time in effect.


 


12.                               ALTERATIONS AND ADDITIONS:


 


(a)           No Consent for Certain Alterations; Additional
Improvements.  Subject to the terms and conditions contained
in this Article 12, Tenant may, without the consent of Landlord, at Tenant’s
own cost and expense, make additions or improvements to or alterations of the
Improvements now or hereafter erected on the Leased Property, including,
without limitation, the construction of new buildings and improvements and the
demolition of existing Improvements to replace them with new buildings and
improvements (“Additional Improvements”).  Notwithstanding the foregoing, Tenant
shall not make any Additional Improvements in violation of the terms of any
restriction, easement, condition or covenant or other matter affecting title to
the Leased Property.  The demolition of
any existing Improvements 


 


20

















 


and the construction of
all such Additional Improvements shall be subject to the following conditions:


 


(i)            Continuation of
Bank Use.  The demolition of any existing Improvements and/or the
construction of all such Additional Improvements shall not cause a permanent
reduction in the area of the Leased Property improved for retail bank use,
provided that Landlord acknowledges that (a) the design, plans and
physical configuration of a retail bank facility are subject to change to
reflect Tenant’s then current design standards for retail bank facilities, as
well as the prevailing standards for retail bank facilities observed by
national banks within the same geographic region, and (b) additions,
improvements, or alterations made by or for Tenant to physically adapt and
improve its retail bank facility to meet such internal or industry standards
shall not itself constitute a change in use from a bank facility;


 


(ii)           Title
to Additional Improvements.  Title to any such Additional Improvements
shall remain the property of Tenant during the Term and shall vest in Landlord
immediately upon the expiration or earlier termination of the Term of this
Lease;


 


(iii)          Authorizations.  No
Additional Improvements shall be undertaken until Tenant shall have procured
and paid for, so far as the same may be required from time to time, all permits
and authorizations of all municipal and other governmental authorities having
jurisdiction of the Leased Property. 
Landlord shall, at Tenant’s expense, join in the application for any
such permit or authorization and execute and deliver any document in connection
therewith, whenever such joinder is necessary;


 


(iv)          Standard
of Construction.  The making of the Additional Improvements
shall be expeditiously completed in a good and workmanlike manner and in
compliance with all applicable laws, rules, regulations, ordinances and
covenants and restrictions then in effect;


 


(v)           Approval
of Architect or Engineer May be Required.  The demolition of any existing
Improvements, the making of any structural alterations and the construction of
new buildings on a Leased Property, shall be conducted under the supervision of
an architect or engineer employed or engaged and paid by Tenant and approved in
writing by Landlord, which approval shall not be unreasonably withheld and
which architect or engineer shall be deemed approved by Landlord if such
approval or denial is not received within ten (10) Business Days after
receipt of said notice; and neither shall be undertaken except in accordance
with detailed plans and specifications and cost estimates prepared by Tenant
and approved by Landlord, which approval shall not be unreasonably withheld and
which plans and specifications shall be deemed approved by Landlord if such
approval or denial is not received within ten (10) Business Days after
receipt of said notice;


 


21

















 


(vi)          No
Adverse Effect on Fair Market Value.  Any Additional Improvements
shall, when completed, be of such a character as not to adversely affect the
fair market value of the Leased Property or any part thereof.  Prior to the commencement of the demolition
of any existing Improvements or the construction of any Additional
Improvements, Tenant shall furnish Landlord with a certificate (which may be in
letter form) confirming that said Additional Improvements is of such a
character as to not adversely affect the fair market value of the Leased
Property or any part thereof; if required by Landlord’s mortgagee, an Appraiser
reasonably acceptable to Landlord and Tenant shall resolve any objections made
by Landlord to such certificate by appraising, at Tenant’s cost and expense,
the subject Leased Property both with or without such Additional Improvements.


 


(vii)         Bond.  If at
the time of a total or substantial demolition of an existing Improvement,
Tenant shall fail to maintain Tenant’s Minimum Credit Rating, then Tenant
shall, prior to the commencement thereof, deposit with the Depository a bond or
cash in an amount equal to the cost of the Additional Improvements or such
lesser amount as shall be satisfactory to Landlord to assure the completion of
the making of such Additional Improvements, as the case may be (such bond or
other collateral to be reduced from time to time as construction of the
Additional Improvements progresses).  The
foregoing requirement of a bond or cash security shall not apply for so long as
Tenant shall maintain Tenant’s Minimum Credit Rating;


 


(viii)        No Liens.  Subject
to the provisions of Article 8 hereof, the cost of any Additional
Improvements shall be paid by Tenant when due so that the Leased Property shall
at all times be free of liens for labor and materials supplied or claimed to
have been supplied to the Leased Property;


 


(ix)           Compliance
with Article 5; Independent Operation.  After completion of any
Additional Improvements, the subject Leased Property shall continue to comply
with Article 5 of this Lease, shall not be connected to any buildings or
improvements not located wholly on such Leased Property and shall be capable of
being operated independently of any other buildings or improvements not owned
by Landlord at the end of the Term of this Lease;


 


(x)            Insurance.  During
the period when any demolition or construction in connection with any
Additional Improvements is underway, Tenant, or its contractors and
subcontractors, shall maintain or cause to be maintained the following
insurance (in addition to the insurance required to be maintained by Tenant
pursuant to the provisions of Article 14 hereof, but subject to Tenant’s
right to self insure as provided in such Article 14 hereof): (A) completed
value builder’s risk insurance for the Leased Property, including all building
materials thereon, covering loss or damage from all risk perils including, but
not limited to, flood, earthquake, terrorism, collapse, loss resulting from
faulty work, fire, lightning, extended coverage perils, sprinkler leakage,
vandalism and malicious


 


22














 


mischief
in an amount not less than the cost, as estimated by Tenant, of the
construction of the Additional Improvements, (B) workmen’s compensation
insurance covering the full statutory liability as an employer of the
contractor performing the work of making such Additional Improvements, and (C) commercial
general and umbrella liability provided by all contractors and subcontractors
naming Landlord and Landlord’s mortgagee in an amount not less than One Million
Dollars ($1,000,000) per project;


 


(xi)                                Title Report; Certificate of Occupancy.  Upon
completion of the making of the Additional Improvements, Tenant shall furnish
Landlord with (A) a current title report for such Leased Property and (B) copies
of all Certificates of Occupancy or other certificates required by applicable
laws; and


 


(xii)                             Survey.  In the case of any Additional Improvement
constituting or including construction of, or a change in the location of any
exterior walls of, a building, or the construction of a new building, Tenant
shall furnish Landlord with a survey showing the location of said Additional
Improvements, prepared by a licensed surveyor acceptable to Landlord, certified
to Landlord, Landlord’s mortgagee and the title insurance company or companies
issuing a policy or an endorsement pursuant to clause (x) of
Paragraph (a) of this Article 12.


 


(xiii)                         Limitations on Demolition.  Tenant
shall not cause the total or substantial demolition of the existing
Improvements at more than three (3) of the Leased Properties at any one
time.


 


Without diminishing or
impairing Landlord’s rights of receipt, consent and approval as set forth in
this Article 12(a) and subject to Tenant’s compliance with the terms
and conditions of this Article 12, Landlord shall be deemed to have
consented to the making of any Additional Improvements (if such consent is
required under this Lease) if Landlord’s consent or denial is not received by
Tenant within twenty (20) days after Landlord’s receipt of a notice from Tenant
identifying the Leased Property and describing the proposed Additional
Improvements, in reasonable detail.


 


(b)                                Tenant’s Equipment.  Except
as otherwise expressly provided in this Lease, Tenant may, at its own cost and
expense, install or place upon or reinstall or replace upon and remove from the
Leased Property any trade fixtures, machinery and equipment.  Any such trade fixtures, machinery and
equipment shall not become the property of Landlord (other than replacements of
machinery and equipment which are the property of Landlord, which replacement
shall also be the property of Landlord). 
Replacements of Equipment which are property of the Landlord
shall be of at least equal quality and fair market value to the replaced
Equipment when the replaced items were new. 
Tenant shall repair any damage caused by removal of Equipment from the
Leased Property, at Tenant’s own cost and expense.


 


13.                               CONDEMNATION AND CASUALTY:


 


(a)                                 Assignment of Proceeds; Tenant Authorized to Act
for Landlord.  Except as provided herein, Tenant hereby
assigns to Landlord any award, compensation, insurance 


 


23

















 


proceeds
or other payment (including the proceeds of any self insurance and deductibles)
to which Tenant may become entitled by reason of its interest in any Leased Property,
other than any award, compensation or insurance payment made to Tenant for
interruption or loss of business, for moving expenses or for any inventory,
machinery, equipment or other personal property belonging to Tenant
(hereinafter referred to as “Tenant’s Loss”) by reason of (i) damage
to or destruction of any Leased Property by fire or other casualty (a “Casualty”),
or (ii) by reason of any Condemnation, requisition or other taking or sale
of the use, occupancy, access or title to any Leased Property or any portion
thereof in, by or on account of any actual or threatened eminent domain
proceeding or other action by any Governmental Authority or other person having
the power of eminent domain (a “Condemnation”).  Tenant is hereby authorized and empowered, at
its cost and expense, in the name and on behalf of Landlord, Tenant or
otherwise, to appear in any such proceeding or other action, to negotiate,
accept and prosecute any claim for any award, compensation, insurance proceeds
or other payment on account of any such Casualty or Condemnation, and to cause
any such award, compensation, insurance proceeds or other payment to be paid to
Landlord, except that Tenant shall be entitled to submit a claim for Tenant’s
Loss and receive and retain any award applicable thereto.  All amounts so paid or payable to Landlord or
Tenant shall be retained or paid over to the party entitled thereto in
accordance with the provisions of this Article 13.  Tenant shall take all appropriate action in
connection with each such claim, proceeding or other action, however, Landlord
and Landlord’s mortgagee may participate in such proceeding(s), and Tenant
shall deliver all instruments reasonably requested by Landlord and Landlord’s
mortgagee to permit such participation, and Tenant shall pay all costs and
expenses in connection therewith.


 


(b)                                Partial Damage or Condemnation; Restore or Repair.  If
Tenant shall reasonably determine that less than a substantial portion of any
Leased Property has been (i) damaged or destroyed by Casualty, or (ii) condemned,
then Tenant shall give prompt written notice thereof to Landlord, and this
Lease shall continue in full force and effect, and Tenant shall, at Tenant’s
own cost and expense and in conformity with the requirements set forth in Paragraph (a) of
Article 12 hereof, proceed with reasonable diligence and promptness to
carry out any necessary demolition and to restore, repair, replace, and/or
rebuild such Leased Property in order to restore such Leased Property, as
nearly as practicable, to the condition and fair market value thereof
immediately prior to such Casualty or Condemnation.


 


(i)                                     No
Abatement.  Except as expressly
provided herein, Basic Rent shall not abate hereunder by reason of any such
Casualty or Condemnation of such Leased Property, and Tenant shall continue to
perform and fulfill all of Tenant’s obligations, covenants and agreements
hereunder notwithstanding such damage or destruction.


 


(ii)                                  Cost
or Repair and Net Award.  Landlord
and Tenant shall agree on the maximum cost of such restoration, repair,
replacement or rebuilding and such cost shall be paid first out of the Net
Award and then out of Tenant’s own funds to the extent such cost exceeds the
Net Award.  Provided no Event of Default
shall have occurred and be continuing, and provided that Tenant shall have
maintained Tenant’s Minimum Credit Rating, then the Net Award shall be paid to
Tenant (and to the extent the Net Award was previously assigned to Landlord,
will be remitted by Landlord to Tenant) to be applied to 


 


24

















 


the repair and
rebuilding work required by this Paragraph (b). 
If Tenant has not maintained Tenant’s Minimum Credit Rating, the
proceeds shall be disbursed in accordance with clauses (i) - (iv) of
Paragraph (d) of this Article 13.


 


(c)                                (i)                                     Substantial or Complete Destruction or
Condemnation: Repair or Terminate.  If, at any time during the Term of this
Lease, Tenant shall reasonably determine that all or a substantial portion of
any Leased Property has been destroyed by Casualty, or all or substantially all
of any Leased Property has been taken by Condemnation, or after any substantial
Condemnation of such Leased Property if such Leased Property is unsuitable for
continued use in Tenant’s business, Tenant shall promptly notify Landlord of
such event in writing within sixty (60) days
of such Condemnation or Casualty.  In
such event, Tenant may either (i) rebuild and/or restore such Leased
Property, at Tenant’s own cost and expense and in conformity with the requirements
set forth in paragraphs (a) and (b) of Article 12 hereof and Article 13(d) hereof
or (ii) give written notice to Landlord within one (1) year after
such Condemnation or Casualty of Tenant’s intention to terminate this Lease
with respect to such Leased Property in conformity with the requirements herein
set forth.


 


(ii)                                 Determination of Substantial Destruction or
Condemnation.  Substantially all of a Leased Property
shall be deemed to have been taken by Condemnation if the remaining portion of
such Leased Property shall not be of sufficient size or character to permit the
operation by Tenant on an economically feasible basis of the business conducted
thereon immediately prior to the Condemnation, assuming that such remaining
portion had been repaired and restored to the fullest extent possible.  Substantially all of a Leased Property shall
be deemed to have been destroyed by Casualty, if Tenant determines in its
reasonable discretion that such Leased Property is no longer suitable for use
in its business.


 


(iii)                              Notice of Termination; Purchase; Net Award.  Tenant’s
notice to Landlord of Tenant’s intent to terminate this Lease shall (i) contain
a brief description of the relevant Condemnation or Casualty, (ii) specify
such termination date, which shall be at least sixty (60) days after such
notice is given (the “Termination Date”), (iii) if such notice of
termination shall be based on a reasonable determination by Tenant that after
such Casualty or Condemnation such Leased Property is no longer suitable for
use in Tenant’s business as aforesaid, contain a certification by Tenant that
an officer of Tenant has made such determination, and that, on or before such
Termination Date, Tenant will discontinue the use of such Leased Property in
Tenant’s ordinary course of business, (iv) if such Termination Date shall
occur during the Initial Term, contain the irrevocable offer of Tenant to
purchase Landlord’s interest in such Leased Property (and the Net Award
hereinafter referred to) on such Termination Date at the Termination Value
(defined as the amount relating to the subject Leased Property corresponding to
the applicable Termination Date on Schedule C
annexed hereto); and (v) if such notice of termination is given during the
Initial Term and if Tenant shall fail to maintain Tenant’s Minimum Credit
Rating, contain a commitment by Tenant to deposit with a Depository not later
than one (1) year after the date of the Condemnation or Casualty as
security for payment of the purchase price for such Leased Property the
applicable Termination Value less the amount of any insurance proceeds or
Condemnation award previously paid with respect to such Casualty or taking and
held by Landlord or Landlord’s designee pursuant to Paragraph (a) of
this Article 13.  If Landlord shall
reject such offer to purchase by notice given to Tenant not later than
twenty (20) Business Days prior to such Termination Date, or if such
Termination Date 


 


25

















 


shall
occur during a Renewal Term, then this Lease shall terminate as to such Leased
Property on such Termination Date and the Net Award relating to such Leased
Property shall be paid and belong to Landlord; plus an amount equal to the
deductible payable under the policy or policies of insurance, which shall be
paid by Tenant to Landlord, and no further Basic Rent or payment of Termination
Value will be payable with respect to such Leased Property.  Unless Landlord shall reject such offer to
purchase as provided in the preceding sentence, Landlord shall be conclusively
deemed to have accepted such offer, and on such Termination Date Landlord shall
transfer, and Tenant shall purchase, Landlord’s interest in such Leased
Property (and the Net Award) in accordance with the provisions of Article 17
hereof.  The additional amount, if any,
deposited by Tenant pursuant to clause (v) of Paragraph (c)(iii) of
this Article 13 and not applied towards the purchase price of such Leased
Property shall be paid to Tenant on the Termination Date if no Event of Default
shall have occurred and be continuing.


 


(iv)                              Failure
to Give Termination Notice.  If
Tenant shall not give notice of its intention to terminate this Lease as to
such Leased Property in accordance with Paragraph (c) of this Article 13
or shall not be entitled to give notice of its intention to terminate this
Lease as to such Leased Property, then this Lease shall continue in full force
and effect.  Nothing contained herein
shall be deemed to affect this Lease as to the other Leased Properties subject
hereto, and this Lease shall continue in full force and effect as to such other
Leased Properties not the subject of such condemnation or casualty.


 


(d)                                Failure to Maintain Tenant’s Minimum Credit
Rating; Tenant in Default.  If Tenant shall not have maintained Tenant’s
Minimum Credit Rating, or if an Event of Default shall have occurred and be
continuing, then:


 


(i)                                     Net Award Paid to Depository.  The full
amount of the Net Award shall be paid to a depository (the “Depository”)
to be selected as hereinafter provided. 
The Depository shall be a bank or trust company selected by Landlord and
approved by Tenant, which is authorized to do business in the
Commonwealth of Pennsylvania or the State of North Carolina, and which has a
net worth of One Billion Dollars ($1,000,000,000) or more.  The Depository shall have no affirmative
obligation to prosecute a determination of the amount of, or to effect the
collection of, any insurance proceeds or Condemnation award or awards, unless
the Depository shall have been given an express written undertaking to do so by
Landlord and Tenant.  Moneys received by
the Depository pursuant to the provisions of this Lease shall not be mingled
with the Depository’s own funds and shall be held by the Depository in trust,
either separately or with other trust funds, for the uses and purposes provided
in this Lease.  The Depository shall
place any moneys held by it into an interest bearing account; and the interest
paid or received by the Depository on the moneys so held in trust shall be added
to the moneys so held in trust.  The
Depository shall not be liable or accountable for any action taken or suffered
by the Depository or for any disbursement of moneys made by the Depository in
good faith in reliance on advice of legal counsel.  In disbursing monies pursuant to clause (ii) of
this paragraph (d), the Depository may rely conclusively on the information
contained in any notice given to the Depository by Tenant in accordance with
the provisions of said clause (ii), unless Landlord shall notify the Depository
in writing within 


 


26

















 


five (5) Business
Days after the giving of any such notice that Landlord intends to dispute such
information, in which case the disputed amount shall not be disbursed but shall
continue to be held by the Depository until such dispute shall have been
resolved;


 


(ii)                                  Agreement on Repair Costs and Payment Thereof.  Prior to
any such rebuilding, restoration or repair, Landlord and Tenant shall
agree on the maximum cost of such rebuilding, restoration or repair, and such
cost shall be paid first out of the Net Award and then out of Tenant’s own
funds to the extent such cost exceeds the Net Award;


 


(iii)                               Tenant Reimbursements from Net Award.  From
time to time, but not more often than once in any thirty (30) day period,
Tenant may request reimbursement out of the Net Award for the actual costs and
expenses incurred by Tenant in connection with such repair and rebuilding.  Any such costs and expenses will be paid by
Tenant to the extent of the deductible amount under the policy of insurance
covering the Casualty in question before the insurance proceeds are applied for
such purpose.  Such requests shall be
made by written notice to the Depository, with a copy to Landlord, setting
forth in reasonable detail all of such costs and expenses incurred by
Tenant.  If Landlord shall in good faith
desire to dispute the information contained in any notice given by Tenant
pursuant to this clause (iii), Landlord shall so notify Tenant and the
Depository in writing within five (5) Business Days after the giving
of such notice, specifying the amount intended to be disputed and the nature of
the dispute.  The Depository shall
disburse to Tenant out of the Net Award the amount of such costs and expenses
as set forth in clause (ii) above immediately following the later of (A) the
five (5) Business Day period referred to above, or (B) the date
on which any dispute as to the cost or expense in question is resolved; and


 


(iv)                              Excess Net Award to Landlord.  Upon the
completion of such repair and rebuilding, any remaining Net Award (less an
amount equal to the cost of any Additional Improvements paid for or financed by
Tenant pursuant to Article 12(c) hereof) shall be paid to and belong
to Landlord.


 


(e)                                 Temporary Condemnations. 
Notwithstanding any other provision to the contrary contained in this Article 13,
in the event of a temporary Condemnation, this Lease shall remain in full force
and effect and Tenant shall be entitled to the Net Award allocable to such
temporary Condemnation; except that such portion of the Net Award allocable to
the time period after the expiration or termination of the Term of this Lease
shall be paid to Landlord.


 


14.                               INSURANCE:


 


(a)                                 Tenant shall during the term hereof, at its cost
and expense, maintain valid and enforceable insurance of the following
character:


 


27

















 


(i)                                     “all risks” insurance coverage against losses by
fire and lightning and other risks including, but not limited to, boiler and
machinery, flood, earthquake and terrorism, for the full insurable replacement
value of the Improvements and the Equipment, and all building materials,
equipment, machinery, appliances, furniture, furnishings and other property
which constitute part of the Leased Property, with agreed amount endorsement or
endorsements providing equivalent protection, including loss by windstorm,
hail, explosion, riot - (including riot attending a strike), civil commotion,
aircraft, vehicles, smoke damage, and vandalism and malicious mischief, but
excluding insurrections, rebellions, revolutions and civil wars, in amounts not
less than the full insurable value of all buildings and other improvements on
the Leased Property.  The term “full
insurable value” as used herein means the actual replacement cost, including
the costs of debris removal, but excluding the cost of constructing foundation,
footings and excavations.


 


(ii)                                  Comprehensive general public liability insurance
covering the legal liability of Landlord and Tenant against claims for bodily
injury, death or property damage, occurring on, in or about the Leased Property
and the adjoining land or occurring as a result of ownership of facilities
located on the Leased Property or as a result of the use of products or
materials manufactured, processed, constructed or sold, or services rendered,
on the Leased Property, in the minimum amount of Three Million Dollars
($3,000,000) with respect to any one occurrence, accident or disaster or
incidence of negligence.  Coverage should
include “premises/operations”, “independent contractors”, and “blanket
contractual” liabilities.  If the
insurance is provided on a claims made basis, the insured amount shall be Three
Million Dollars ($3,000,000) per claim and the coverage shall be the same as
under the occurrence form.  Any claims
made policy shall provide that (A) coverage will be continuous, (B) the
retroactive date of the first claims made policy shall be the expiration date
of the preceding continuous occurrence coverage, (C) at each renewal of
the claims made coverage the retroactive date shall not be advanced, (D) if
the retroactive date is advanced or coverage is cancelled for whatever reason,
Tenant shall deliver to Landlord a certificate of insurance showing that Tenant
has purchased the extended reporting period or supplemental tail endorsement
under the previous policy extending the period for an unlimited time, if
reasonably available, during which a claim may first be made, and (E) the
certificate of insurance shall show the retroactive date.


 


(iii)                              Workmen’s compensation insurance.  Tenant shall comply with applicable workmen’s
compensation laws of the state where the Leased Property is located, and shall
maintain such insurance if and to the extent necessary for such compliance.


 


(iv)                              Such other insurance, in such amounts and against
such risks, as is customarily maintained by operators of similar properties.


 


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(v)                                 Catastrophe excess - single limit liability insurance
in the amount of Three Million Dollars ($3,000,000) with respect to the risk
referred to in clause (ii) of this Paragraph (a) of Article 14.


 


Such
insurance shall be written by companies of recognized financial standing which
are rated at least AXV by national rating organizations and have a claims
paying ability rating from Standard & Poor’s Corporation of AAA or a
rating from Best’s of at least A:XIII, and are legally qualified to issue such
insurance, and are acceptable to Landlord and Landlord’s mortgagee, and shall
name as the insured parties Landlord and Tenant, any mortgagee of Landlord’s
interest in the Leased Property, with respect to the insurance listed in (ii) through
(v) above as their interests may appear. 
Such insurance may provide for such reasonable deductible amounts as are
customarily provided for in insurance maintained by operators of comparable
buildings (but in no event in excess of Two Hundred Fifty Thousand Dollars
($250,000) per occurrence, adjusted for increases in the CPI), and may be
obtained by Tenant by endorsement on its blanket insurance policies provided
that each such endorsement on the blanket insurance policy shall provide for a
reserved amount thereunder with respect to the Leased Property so as to assure
that the amount of insurance required by clause (i) of
Paragraph (a) of this Article 14 will be available
notwithstanding any losses with respect to other property covered by such
blanket policy, or, if reservation of amounts under Tenant’s blanket insurance
policy is not available under the terms of such policies, shall otherwise be
acceptable to Landlord and Landlord’s mortgagee.  Tenant may, at its cost and expense,
prosecute any claim against any insurer or contest any settlement proposed by
any insurer, and Tenant may bring any such prosecution or contest during the
Term of this Lease in the name of Landlord, Tenant or both, and Landlord will
join therein at Tenant’s request, provided that Tenant shall indemnify Landlord
against any costs or expenses which Landlord may incur in connection with such
prosecution or contest.  Notwithstanding
anything in this Lease to the contrary, so long as Tenant shall maintain Tenant’s
Minimum Credit Rating, Tenant may self-insure in order to meet any insurance
requirements in this Lease.  In the event
Tenant fails, in whole or in part, to carry insurance that complies with the
requirements of this Article 14(a), Tenant shall be deemed to self-insure
to the extent of such noncompliance.


 


(b)                                Insurance claims by reason of damage or
destruction to any portion of the Leased Property shall be adjusted by Tenant,
subject to the approval of Landlord if Tenant has not maintained Tenant’s
Minimum Credit Rating, which approval Landlord agrees not to unreasonably
withhold or delay.


 


(c)                                 Every insurance policy maintained pursuant to
clause (ix) of Paragraph (a) of Article 12, or
Paragraph (a) of this Article 14 shall: (i) name Landlord
and Landlord’s mortgagee, as additional insureds as their interests may appear;
(ii) contain a standard first mortgage endorsement naming any mortgagee of
Landlord’s interest in the Leased Property; (iii) provide that in the
event that Tenant has failed to maintain Tenant’s Minimum Credit Rating, all of
such proceeds shall be paid as provided in Article 13 hereof; (iv) provide
that the issuer waives all rights of subrogation against Landlord, any
successor to Landlord’s interest in the Leased Property, and any mortgagee of
Landlord’s interest in the Leased Property; (v) provide that thirty (30)
days’ prior written notice of cancellation, modification, termination or lapse
of coverage shall be given to Landlord and any mortgagee of Landlord’s interest
in the Leased 


 


29

















 


Property
and that such insurance, as to the interest of such mortgagee, shall not be
invalidated by any act or neglect of Tenant or of Landlord or any owner of the
Leased Property, nor by any foreclosure or any other proceedings relating to
the Leased Property, nor by any change in the title ownership of the Leased
Property, nor by occupation of the Leased Property for purposes more hazardous
than are permitted by such policy; and (vi) be primary and without right
or provision of contribution as to any other insurance carried by Landlord or
any other interested party; and (vii) in the event any insuring company is
not domiciled within the United States of America, include a United States
Service of Suit clause (providing any actions against the insurer by the
named insured or Landlord are conducted within the jurisdiction of the United
States of America).


 


(d)                                Except to the extent Tenant self-insures as
permitted by Article 14(a) hereof, Tenant shall deliver to Landlord
upon the execution and delivery of this Lease certificates of insurance, on an
Acord 27 form for property and Acord 25 form for other insurance, signed by an
authorized insurance company representative, reasonably satisfactory to
Landlord and any mortgagee of Landlord’s interest in the Leased Property,
evidencing all the insurance which is then required to be maintained by Tenant,
and Tenant shall, within thirty (30) days prior to the expiration of any such
insurance, deliver certificates of insurance, on an Acord 25 or 27 form, as the
case may be, evidencing the renewal of such insurance, signed by an authorized
insurance company representative, evidencing the renewal of such insurance.


 


(e)                                 Tenant shall comply with all of the terms and
conditions of each insurance policy maintained pursuant to the terms of this
Lease.


 


15.                              FlNANCIAL STATEMENTS:


 


Subject
to the last paragraph of this Article 15, Tenant shall furnish the
following statements to Landlord:


 


(a)                                  as soon as practicable and in any event within
one hundred fifty (150) days after the end of each fiscal year, a consolidated
statement of earnings, and a consolidated statement of changes in financial
position, a consolidated statement of stockholders’ equity, and a consolidated
balance sheet of Tenant as of the end of each such year, all in the form
as furnished by Tenant to the SEC, the Federal Deposit Insurance Corporation (“FDIC”),
the Office of the Comptroller of the Currency (“OCC”), the Office of
Thrift Supervision (“OTS”), or similar federal agency having regulatory
jurisdiction over Tenant, or, if no such jurisdiction exists, in reasonable
detail and reasonably satisfactory in scope to Landlord and certified to Tenant
as to consolidated statements by independent public accountants of recognized
standing selected by Tenant whose certificate shall be based upon an
examination conducted in accordance with generally accepted auditing standards
and the application of such tests as said accountants deem necessary in the
circumstances; and


 


(b)                                on request from Landlord, with reasonable
promptness, copies of all financial statements and copies of each Form 10-K,
Form 10-Q, Call Reports, proxy statement and registration statement (other
than preliminary proxy statements and Form S-8 registration statements),
or copies of any successor forms or statements substituted therefor, which
Tenant shall file with the SEC, the FDIC, the OCC, the OTS or any governmental
agency substituted to 


 


30

















 


the
functions of such agency, as the case may be; provided that Landlord shall not
be entitled to any registration statement or any other financial information or
statements before it becomes effective or any other document filed with a
governmental agency until it is generally available to the public.


 


So long as Tenant is Bank
of America, N.A., and so long as all of the financial information requested in
Paragraphs 15(a) and (b) above is available to the general public (at
no cost, or if a cost shall be charged the same shall be reimbursed to Landlord
or Landlord’s mortgagee, as the case may be, promptly upon invoicing) at
websites maintained by either Bank of America, N.A., the SEC, the FDIC, the OCC
or the OCS, Tenant’s requirement to furnish such financial information to
Landlord shall be deemed satisfied.


 


16.                               RIGHT OF FIRST REFUSAL:


 


If at any time during the Term of this Lease, Landlord
shall receive a bona fide offer (a “Third Party Offer”) from a third
party (other than a purchaser making a bid or offer to purchase the Leased
Property at any sale incidental to the exercise of any remedy provided for in
any mortgage on the Leased Property) to purchase the Leased Property,
containing terms and conditions satisfactory to Landlord, then Landlord shall
notify Tenant of such Third Party Offer, including the identity of the
offeror.  If at the time of Landlord’s
receipt of the Third Party Offer no Event of Default has occurred hereunder and
is continuing, and provided that Tenant shall not have vacated the Leased
Property or subleased the entirety thereof, then for a period of (i) sixty
(60) days, if during the Initial Term, or (ii) thirty (30) days, if during
a Renewal Term, after Tenant’s receipt of Landlord’s notice, Tenant shall have
the exclusive right to accept Landlord’s offer to purchase Landlord’s interest
in the Leased Property upon the terms and conditions set forth in the Third
Party Offer.  Tenant shall exercise such
right of first refusal, if at all, by delivering its written purchase offer to
Landlord within said sixty (60) or thirty (30) day period, as the case may be,
following receipt of Landlord’s notice. 
Such purchase shall occur on the date that is at least forty-five (45)
days after Landlord’s receipt of such notice. 
On the date of such purchase Landlord shall convey and assign to Tenant,
or its designee, Landlord’s interest in the Leased Property or portion thereof
against payment of the sale price therefor, in accordance and upon compliance
with the terms and conditions of the Third Party Offer and this Lease, and
Tenant’s obligation to pay Rent, shall terminate with respect to the Leased
Property conveyed to Tenant.  If Tenant
fails to accept Landlord’s offer within such sixty (60) or thirty (30) day
period, as the case may be, then Landlord shall be free, subject to the
restrictions set forth in Paragraph (g) of Article 21 hereof, to sell
the Leased Property described in the Third Party Offer at a price not less than
the purchase price contained in the Third Party Offer for a period of nine (9) months
thereafter without offering such Leased Property to Tenant. If Landlord does
not convey its interest in such Leased Property within such nine (9) month
period or in the event of any material change in the terms of the Third Party
Offer, Tenant’s rights pursuant to this paragraph shall be reinstated.  The term “material change” as used in the
preceding sentence shall include a change of identity of a third party or its
assignee, to a bank which is a substantial competitor in Tenant’s market.  Any third party that purchases the Leased
Property pursuant to this Article 16 shall take the Leased Property subject
to the terms hereof, and such purchaser shall assume Landlord’s rights and
obligations under the Lease thereafter accruing, and this Lease shall remain in
full force and effect.  Landlord shall
cause any third party purchasing the Leased Property pursuant to this Article 16
to execute and deliver to Tenant a document 


 


31

















 


confirming such third party’s assumption of Landlord’s
rights and obligations under this Lease thereafter accruing.


 


17.                               PURCHASE PROCEDURE:


 


(a)                                  In the event of the purchase of Landlord’s
interest in any Leased Property by Tenant pursuant to any provision of this
Lease, the terms and conditions of this Article 17 shall apply.


 


(b)                                 On the closing date fixed for the purchase of
Landlord’s interest in any Leased Property:


 


(i)                                   Tenant shall pay to Landlord, in lawful money of
the United States, at Landlord’s address hereinabove stated or at any other
place in the United States which Landlord may designate, the purchase price;
and


 


(ii)                                Landlord shall execute and deliver to Tenant a
limited warranty deed, assignment and/or such other instrument or instruments
as may be appropriate, which shall transfer Landlord’s interest in the Leased
Property being sold, subject to (A) Permitted Encumbrances (except, in the
case of a purchase by Tenant under Article 13 hereof, free of the lien of
any mortgage indebtedness incurred by Landlord), (B) all liens,
encumbrances, charges, exceptions and restrictions attaching to such Leased
Property created or caused by Tenant, and (C) all applicable laws, rules,
regulations, ordinances and governmental restrictions then in effect.  In the case of a purchase of Landlord’s
interest in any Leased Property by Tenant pursuant to Paragraph (c) of
Article 13 hereof, Landlord shall also pay to Tenant the Net Award, if
any.


 


(c)                                  Tenant
shall pay all charges incident to such transfer, including all recording fees,
reasonable attorneys’ fees and expenses, transfer taxes, title insurance
premiums and federal, state and local taxes, except for any net income or
profit taxes of Landlord, except in the case of a purchase by Tenant pursuant
to Article 16, in which case costs will be allocated between Landlord and
Tenant in the same manner as was provided for in the Third Party Offer.


 


(d)                                 Tenant shall pay to Landlord all Basic Rent and
Additional Rent due and payable only through the date Tenant purchases Landlord’s
interest in a Leased Property.


 


18.                              INTENTIONALLY OMITTED.


 


19.                              QUIET ENJOYMENT:


 


Upon due performance of
the covenants and agreements to be performed by Tenant under this Lease,
Landlord covenants that Tenant shall and may at all times peaceably and quietly
have, hold and enjoy the Leased Property during the Term of this Lease.
Notwithstanding the preceding sentence, Landlord, Landlord’s mortgagee, or
their respective agents may enter into and inspect the Leased Property at any
reasonable time during normal business hours, upon the giving of reasonable
notice, if they take precautions not to unreasonably inconvenience Tenant or


 


32














 


any persons occupying the
Leased Property in accordance with this Lease and are accompanied by an
employee or other representative of Tenant at all times during such entry and
inspection, or at any time in the event of an emergency. Notwithstanding the foregoing,
Tenant may exclude Landlord, Landlord’s mortgagee or their respective agents
from areas of the Leased Property designated as security areas by Tenant, for
example, vaults, modular vaults and automated teller machines.


 


20.          TERMINATION:


 


In the event of the
termination of this Lease as herein provided, the obligations and liabilities
of Landlord and Tenant, as the case may be, actual or contingent, under this
Lease which arose at or prior to such termination, and which remain unpaid or
unperformed, shall survive such termination.


 


21.          SUBLETTING; ASSIGNMENT:


 


(a)           Subleases Permitted.  Subject
to subparagraphs (d), (e) and (f) hereof and Article 5
hereof, Tenant may sublet the Leased Property or any portion or portions
thereof and retain any profits derived from such subleasing, provided that (i) no
Event of Default has occurred and is continuing, and (ii) each sublease
shall expressly be made subject to the terms of this Lease.


 


(b)           Assignments Permitted.  Subject
to subparagraphs (d), (e) and (f) hereof and Article 5
hereof, Tenant may assign its interest under this Lease, provided that
no Event of Default has occurred and is continuing and provided further that
such assignment shall expressly be made subject to the terms of this Lease.


 


(c)           Restriction on Term of Sublease or Assignment.  The term
of any subletting of the Leased Property or assignment of this Lease shall not
extend beyond the Term of this Lease. 
Any sublessee or assignee shall be permitted to use the Leased Property
for any lawful purpose, subject to the limitations set forth in Article 5
hereof.


 


(d)           Tenant’s Obligations Continue.  No
sublease or assignment shall affect or reduce any obligation of Tenant or right
of Landlord hereunder, and all obligations of Tenant hereunder shall continue
in full effect as the obligations of a principal and not of a guarantor or
surety, as though no subletting or assignment had been made. For the purposes
of this Lease generally and subparagraphs (a)(iii), (iv) and (v) of Article 23
hereof in particular, the term “Tenant” shall mean Bank of America, N.A., and
not its subtenants and assignees.


 


(e)           Conformed Copy of Sublease or Assignment.  For
any sublease or assignment from which Tenant receives more than Seventy-Five
Thousand and 00/100 Dollars ($75,000.00) in annual rents, Tenant shall, within
ten (10) days after the execution of any such sublease or assignment,
deliver to Landlord a conformed copy thereof (with acknowledgements) and a
conformed copy of any short-form lease or memorandum of lease suitable for
recording.


 


(f)            No Mortgages or Pledges. Neither this Lease nor the Term of this
Lease hereby demised shall be mortgaged or pledged by Tenant, nor shall Tenant
mortgage, pledge or 


 


33

















 


assign the interest of
Tenant in and to any sublease of the Leased Property or any portion thereof or
the rental payable thereunder.  Any such
mortgage, assignment or pledge, and any sublease or assignment not permitted by
this Article 21, shall be void.


 


(g)           Transfers by Landlord.  Subject
to the terms of this Lease, Landlord may assign, convey, encumber or otherwise
transfer its estate, right, title and interest hereunder or in the Leased
Property or any part thereof, and upon execution and delivery of any such assignment,
conveyance or other transfer, Landlord shall be released from its obligations
hereunder.  Any such assignment,
conveyance or other transfer shall be subject to this Lease.  Landlord shall not assign, convey or transfer
its interest in the Leased Property subject (other than by way of mortgage) to
this Lease to (i) any saving bank, savings and loan association, bank,
bank holding company or Affiliate of any of the above or (ii) more than
three (3) separate transferees without the prior written consent of
Tenant.


 


Landlord shall, within
thirty (30) days after the execution of any such instrument of mortgage,
assignment, conveyance or transfer, deliver written notice thereof to Tenant.
Any failure of Landlord so to deliver a notice of such instrument shall not,
however, in any way impair or affect the validity thereof.


 


22.          ADVANCES BY LANDLORD:


 


If an Event of Default
has occurred and is continuing, and at any time if Tenant fails to maintain
insurance in accordance with Article 14 hereof, if Tenant shall fail to
make or perform any payment or act required by this Lease within any applicable
cure period, then Landlord may at its option make such payment or perform such
act for the account of Tenant, and Landlord shall not thereby be deemed to have
waived any default or released Tenant from any obligation hereunder.  All amounts so paid by Landlord and all
incidental costs and expenses (including reasonable attorneys’ fees and
expenses) incurred in connection with such payment or performance, together with
interest at the Applicable Rate from and including the date of the making of
such payment or of the incurring of such costs and expenses to and including
the date of repayment, shall be paid by Tenant to Landlord on demand.


 


23.          CONDITIONAL LIMITATIONS - EVENTS OF DEFAULT AND REMEDIES:


 


(a)            Events of Default.  Any of
the following occurrences or acts shall constitute an “Event of Default” under
this Lease:


 


(i)            if Tenant
shall default in making payment when due of any installment of Basic Rent or
Additional Rent, and such default shall continue for the longer of (A) ten
(10) days, or (B) five (5) days after a written notice of such
default has been delivered to Tenant; provided that Tenant shall not be
entitled to such notice more than twice during any given twelve (12) month
period; or


 


(ii)           if Tenant shall default in the due performance of
any other covenant, agreement, obligation or condition on the part of Tenant to
be performed hereunder, other than as set forth in clause (i) or
clause (vii) of this Paragraph (a), and if such default shall
continue for forty-five (45) days after 


 


34

















 


written
notice from Landlord to Tenant specifying such default and demanding that the
same be cured (or, in the case of a default which cannot be cured with the
payment of money, or with due diligence be wholly cured within such
forty-five (45) day period, if Tenant shall fail to commence to cure the
same within said forty-five (45) day period, or, having promptly so
commenced to cure the same shall fail thereafter to prosecute the curing
thereof with all due diligence, it being intended that the time within which to
cure such a default shall be extended for such period as may be necessary to
complete the curing of the same in good faith and with due diligence; or


 


(iii)          if Tenant, or any corporation succeeding to
Tenant by merger, consolidation or acquisition of all or substantially all of
its assets, shall file a petition in bankruptcy or for reorganization or for an
arrangement pursuant to the Bankruptcy Act or under any similar federal or
state law now or hereafter in effect, or shall be adjudicated a bankrupt or
become insolvent or shall make an assignment for the benefit of its creditors,
or shall be unable to pay its debts generally as they become due, or shall be
dissolved, or shall suspend payment of its obligations, or shall take any
corporate action in furtherance of any of the foregoing; or


 


(iv)          if a petition or answer shall be filed proposing
the adjudication of Tenant or any corporation succeeding to Tenant by merger,
consolidation or acquisition of all or substantially all of its assets as a
bankrupt or its reorganization pursuant to the Bankruptcy Act or any similar
federal or state law, now or hereafter in effect, and (A) Tenant or its
successor corporation shall consent to the filing thereof, or (B) such
petition or answer shall not be discharged, or denied within ninety (90) days
after the filing thereof; or


 


(v)           if a receiver, trustee or liquidator (or other similar
official) shall be appointed for or take possession or charge of Tenant or any
corporation succeeding to Tenant by merger, consolidation or acquisition of all
or substantially all of its assets, or of all or substantially all of the
business or assets of Tenant or its successor corporation or of Tenant’s or its
successor corporation’s estate or interest in the Leased Property, and shall
not be discharged within ninety (90) days thereafter or if Tenant or its
successor corporation shall consent to or acquiesce in such appointment; or


 


(vi)          if the estate or interest of Tenant in the Leased
Property or any sublease thereof shall be levied upon or attached in any
proceeding and such process shall not be vacated or discharged within sixty
(60) days after such levy or attachment, unless Tenant shall be contesting such
levy or attachment in accordance with the requirements of Paragraph (d) of
Article 7 hereof; or


 


(vii)        if Tenant fails to pay Landlord the purchase
price of the Leased Property pursuant to Article 17 hereof or if Tenant
fails to maintain insurance in accordance with Article 14 hereof; or


 


35

















 


(viii)        if, as of
the time when the same shall have been made, any material representation or
warranty of Tenant to Landlord or Landlord’s mortgagee set forth in any notice,
certificate, demand, request or other instrument delivered in connection with
or pursuant to this Lease shall prove to be incorrect or misleading in any
material respect to the material detriment of Landlord or any mortgagee of
Landlord’s interest in the Leased Property.


 


(b)            Landlord’s Right to Re-enter or Terminate.  This
Lease and the Term of this Lease and estate hereby granted are subject to the
limitation that whenever an Event of Default shall have occurred and not be
cured as provided herein, subject to Paragraph (i) of this Article 23
below, Landlord may, at Landlord’s option, elect to (i) re-enter the
Leased Property, without notice, and remove all persons and property therefrom,
either by summary proceedings or by any suitable action or proceeding at law,
or otherwise, without being liable to indictment, prosecution or damages
therefor, and may have, hold and enjoy the Leased Property, together with the
appurtenances thereto and the improvements thereon; and/or (ii) terminate
this Lease at any time by giving twenty (20) days’ notice in writing to
Tenant, electing to terminate this Lease, and the Term of this Lease shall
expire at the expiration of said last mentioned twenty (20) days’ notice
as fully and completely as if said date were the date herein originally fixed
for the expiration of the Term of this Lease hereby granted, and Tenant shall
thereupon quit and peacefully surrender the Leased Property to Landlord, with
all appurtenances thereto and all improvements thereon, without any payment
therefor by Landlord, and Landlord, upon the expiration of said last mentioned
twenty (20) days’ notice, or at any time thereafter, may re-enter the
Leased Property as provided in the preceding clause (i).


 


(c)          Payments by Tenant.  In case
of any such re-entry, termination and/or dispossession by summary proceedings
or otherwise as provided in the immediately preceding paragraph, (i) the
Basic Rent and Additional Rent shall be paid up to the time of such re-entry,
dispossession and/or termination, together with such expenses, including
reasonable attorneys’ fees and expenses, as Landlord shall incur in connection
with such re-entry, termination and/or dispossession by summary proceedings or
otherwise; (ii) Landlord may in good faith relet the Leased Property or
any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may, at Landlord’s option, be equal to or less than or
exceed the period which would otherwise have constituted the balance of the
Term of this Lease; (iii) Tenant shall also pay to Landlord all other
damages and expenses which Landlord shall have sustained by reason of the
breach of any provision of this Lease, including, without limitation, legal
expenses, reasonable attorneys’ fees, brokerage commissions and expenses
incurred in removing Tenant’s trade fixtures or other assets from the Leased
Property, repairing and putting the Leased Property and any buildings and
improvements thereon in good order and condition and in preparing the same for
reletting, which expenses shall be paid by Tenant as they are incurred by
Landlord; (iv) Tenant shall also pay to Landlord the amount by which the
Basic Rent reserved in this Lease exceeds the net amount, if any, of the rents
collected on account of the leases of the Leased Property for each month of the
period which would otherwise have constituted the Term of this Lease (excluding
unexercised extension options), which amounts shall be paid in monthly installments
by Tenant on the respective Rent Payment Dates specified therefor, and any suit
brought to collect said amounts for any month or months shall not prejudice in
any way the rights of Landlord to collect the deficiency in any subsequent
month by a similar action or proceeding; 


 


36

















 


and/or
(v) at the option of Landlord exercised at any time, Landlord forthwith
shall be entitled to recover from Tenant as liquidated damages, in addition to
clause (i), but in lieu of and not in addition to any amount which would
thereafter have become payable under the preceding clauses (ii), (iii) and
(iv), whichever of the following sums Landlord shall elect:


 


(A)          an amount
equal to the excess, if any, of the Termination Value of a Leased Property
computed as of the Termination Date over the present value of the Fair Market
Rental Value of such Leased Property for the balance of the useful life of such
Leased Property, such Fair Market Rental Value to be determined by mutual
agreement of Landlord and Tenant, or if they cannot agree within ten (10) days
of such notice, by the appraisal procedure set forth in Paragraph (e) of Article 4
above, but without regard to any limitations imposed with respect to Maximum
Renewal Term Rent or Aggregate FMRV Rent;


 


(B)          if a Leased Property has
not been sold, an amount equal to the excess, if any, of the Termination Value
of such Leased Property, computed as of the Termination Date, over the Fair
Market Purchase Value of such Leased Property as of the Final Payment Date,
such Fair Market Purchase Value to be determined by mutual agreement of
Landlord and Tenant, or if they cannot agree within ten (10) days after
such notice, by the appraisal procedure set forth in Paragraph (e) of Article 4
above, but without regard to any limitations imposed with respect to Maximum
Renewal Term Rent or Aggregate FMRV Rent; or


 


(C)          the Termination Value of
a Leased Property computed as of the Termination Date, provided that upon
payment of such amount and the amount of any unpaid Rent referred to in clause (i) of
this Article 23(c)(C), Landlord shall assign and convey such Leased
Property to Tenant, without further consideration, in accordance with the terms
and provisions of Article 17 hereof.


 


Landlord, at Landlord’s
option, may make such alterations and/or decorations in the Leased Property as
Landlord, in Landlord’s sole judgment, considers advisable and necessary for
the purpose of reletting the Leased Property; and the making of such
alterations and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid.


 


(d)         Receipt of Money Not a Reinstatement; No
Accounting.  No receipts of moneys by Landlord from Tenant
after a termination of this Lease by Landlord shall reinstate, continue or
extend the Term of this Lease or affect any notice theretofore given to Tenant,
or operate as a waiver of the right of Landlord to enforce the payment of rent
then due or thereafter falling due, it being agreed that after the commencement
of suit for possession of the Leased Property, or after final order or judgment
for the possession of the Leased Property, Landlord may demand, receive and
collect any moneys due or thereafter falling due without in any manner
affecting such suit, order or judgment, all such moneys collected being deemed
payments on 


 


37

















 


account
of the use and occupation of the Leased Property or, at the election of
Landlord, on account of Tenant’s liability hereunder.  Subject to subsection (c)(iv) of
this Article 23, Landlord shall have, receive and enjoy as Landlord’s sole
and absolute property, without right or duty to account therefor to Tenant, any
and all sums collected by Landlord as rent or otherwise upon reletting the
Leased Property after Landlord shall resume possession thereof as hereinbefore
provided, including, without limitation upon the generality of the foregoing,
any amounts by which the sum or sums so collected shall exceed the continuing
liability of Tenant hereunder.


 


(e)           Re-Entry Not a Termination.  The word
“re-enter,” as used in this Lease, is not and shall not be restricted to its
technical legal meaning, but is used in the broadest sense.  No such taking of possession of the Leased
Property by Landlord shall constitute an election to terminate the Term of this
Lease unless notice of such intention be given to Tenant or unless such
termination be decreed by a court having jurisdiction.


 


(f)            Enforcement Costs.  If an
action shall be brought for the enforcement of any provision of this Lease, in
which it shall be determined that Landlord or Tenant was in default, the
defaulting party shall pay to the non-defaulting party all costs and other
expenses which may become payable as a result thereof, including attorneys’
fees and expenses.  If either party
shall, without fault on its part, be made a party to any litigation commenced
against the other party (a “Litigating Party”), such Litigating Party
shall pay all costs and attorneys’ fees incurred or paid by the non-litigating
party in connection with such litigation.


 


(g)           Remedies Cumulative.  No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to any other legal or equitable right or remedy
given hereunder, or at any time existing. 
The failure of Landlord to insist upon the strict performance of any
provision or to exercise any option, right, power or remedy contained in this
Lease shall not be construed as a waiver or a relinquishment thereof for the
future.  Receipt by Landlord of any Basic
Rent or Additional Rent payable hereunder with knowledge of the breach of any
provision contained in this Lease shall not constitute a waiver of such breach
(other than the prior failure to pay such Basic Rent or Additional Rent), and
no waiver by Landlord of any provision of this Lease shall be deemed to have
been made unless made under signature of an officer of Landlord.


 


(h)           Notice of Default to Landlord.  Tenant
shall give Landlord prompt notice of any default which occurs and is
continuing.


 


(i)             Limitations.  Notwithstanding the provisions
set forth in this Article 32, Landlord may not terminate this Lease
in its entirety unless Tenant shall have failed to pay one or more installments
of Rent when due and payable under this Lease, and such failure to pay
continues for a period of ten (10) days following Tenant’s receipt of
written notice thereof from Landlord, which notice shall state in all capital
letters (or other prominent display) that this Lease may be terminated if
Tenant fails to promptly pay all overdue Rent.


 


24.          NOTICES:


 


All notices and other
instruments given or delivered pursuant to this Lease shall be in writing and
sent by prepaid United States registered or certified mail, return receipt
requested, 


 


38

















 


and the giving of such
notice or other communication shall be deemed to have been given (i) when
delivered by hand, (ii) on the earlier of receipt and three (3) Business
Days after being sent by first class registered or certified mail, postage
prepaid, return receipt requested, (iii) when sent by telegram or cable or
(iv) on the earlier of receipt and two (2) days after being sent by a
nationally recognized overnight courier. Copies of notices must be sent to all
of the parties listed below, together with a copy thereof sent by facsimile
transmission, if reasonable under the circumstances; provided that failure to
send a copy by facsimile transmission shall in no event cause any notice sent
in accordance with this Article 24 to be deemed improper. Landlord and
Tenant shall each have the right to specify, from time to time, as its address
for purposes of this Lease, any address and any addressee, in the continental
United States, upon giving fifteen (15) days’ written notice thereof to the
other party. The addresses of Landlord and Tenant for purposes of this Lease,
until notice has been given as above provided, shall be as follows:


 


	
  Landlord:

  	
   

  	
  First
  States Investors 4100A, LLC

  
	
   

  	
   

  	
  c/o First States Group,
  L.P.

  
	
   

  	
   

  	
  1725 The Fairway

  
	
   

  	
   

  	
  Jenkintown,
  Pennsylvania 19046

  
	
   

  	
   

  	
  Attn: Sonya A. Huffman,
  Senior Vice President — Operations

  
	
   

  	
   

  	
  Attn: Edward J. Matey
  Jr., Senior Vice President

  
	
   

  	
   

  	
  and General Counsel

  
	
   

  	
   

  	
  FAX: 215.887.9856

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Morgan,
  Lewis & Bockius LLP

  
	
   

  	
   

  	
  1701 Market Street

  
	
   

  	
   

  	
  Philadelphia,
  Pennsylvania 19103

  
	
   

  	
   

  	
  Attn: Eric L. Stern,
  Esquire

  
	
   

  	
   

  	
  FAX: 215.963.5001

  
	
   

  	
   

  	
   

  
	
  Tenant:

  	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  	
  525
  North Tryon

  
	
   

  	
   

  	
  3rd
  Floor — Corporate Real Estate Department

  
	
   

  	
   

  	
  NC1-023-03-03

  
	
   

  	
   

  	
  Charlotte,
  North Carolina 28255

  
	
   

  	
   

  	
  Attn:
  Property Services

  
	
   

  	
   

  	
  FAX:
  704.386.7339

  
	
   

  	
   

  	
   

  
	
  with
  a copy to:

  	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  	
  901
  Main Street, 68th Floor

  
	
   

  	
   

  	
  Dallas,
  Texas 75202-3714

  
	
   

  	
   

  	
  Attn:
  Michael F. Hord, Associate General Counsel

  
	
   

  	
   

  	
  FAX:
  214.209.0871

  



 


39

















 


	
  with
  a copy to:

  	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  	
  525
  North Tryon

  
	
   

  	
   

  	
  4th
  Floor — Corporate Real Estate Department

  
	
   

  	
   

  	
  NC1-023-04-03

  
	
   

  	
   

  	
  Charlotte,
  North Carolina 28255

  
	
   

  	
   

  	
  Attn:
  James Mezzanotte

  
	
   

  	
   

  	
  FAX:
  704.365.6075

  
	
   

  	
   

  	
   

  
	
  and
  to:

  	
   

  	
  Trammell
  Crow Corporate Services, Inc.

  
	
   

  	
   

  	
  2850
  North Federal Highway

  
	
   

  	
   

  	
  Lighthouse
  Point, Florida 33064

  
	
   

  	
   

  	
  Attn:
  Chuck Dunn, Senior Vice President

  
	
   

  	
   

  	
  FAX:
  954.786.4405

  



 


25.          ESTOPPEL CERTIFICATES:


 


At the request of
either Landlord or Tenant, the other party will execute within fifteen (15)
days from the date of receipt of the request, from time to time, an estoppel
certificate substantially in the form attached hereto as Schedule
D or in such other form as may be reasonably requested by the
requesting party; 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.


 


26.          NO MERGER:


 


There
shall be no merger of this Lease or of any leasehold or subleasehold estate
hereby or thereby created with the fee or any other estate or interest or
ownership interest in the Leased Property or any part thereof by reason of the
fact that the same person, firm, corporation or other entity may acquire or own
or hold, directly or indirectly, (a) this Lease or any leasehold or
subleasehold estate created hereby or thereby or any interest in this Lease or
in any such leasehold or subleasehold estate and (b) the fee estate or
other estate or interest or ownership interest in the Leased Property or any
part thereof, and this Lease shall not be terminated for any cause except as
expressly provided herein and any instrument of transfer shall so provide.


 


27.          SURRENDER:


 


(a)          Upon the expiration or earlier termination of the Term of this Lease, or
surrender of the Leased Property in accordance with Paragraph (d) of Article 6
hereof, Tenant shall surrender the Leased Property to Landlord in the same
condition and suitable for the same use in which the Leased Property was
originally received from Landlord except as repaired, rebuilt or altered as
required or permitted by this Lease (and/or except for such Casualty damage as
Tenant shall not be required to repair or restore hereunder), and except for
ordinary wear and tear.  Tenant shall
remove from the Leased Property on or prior to such expiration or earlier
termination all of Tenant’s Equipment, except that agreed upon by Landlord and Tenant
in writing, which agreement shall be entered into at least thirty (30)
days prior to the expiration or 


 


40

















 


earlier
termination of the Term of this Lease, and shall repair any damage caused by
such removal.  Property not so removed
following ten (10) days’ written notice from Landlord shall become the
property of Landlord, which may cause such property to be removed from the
Leased Property and disposed of, but the cost of any such removal and disposition
and of repairing any damage caused by such removal shall be borne by Tenant.


 


(b)           Except for surrender upon the expiration or earlier termination of the
Term of this Lease, or surrender of the Leased Property in accordance with
Paragraph (d) of Article 6 hereof, no surrender to Landlord of this
Lease or of the Leased Property shall be valid or effective unless agreed to
and accepted in writing by Landlord.


 


28.          SEPARABILITY:


 


Each
provision contained in this Lease shall be separate and independent and the
breach of any such provision by Landlord shall not discharge or relieve Tenant
from its obligation to perform each obligation of this Lease to be performed by
Tenant.  If any provision of this Lease
or the application thereof to any person or circumstance shall to any extent be
invalid and 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.


 


29.          BINDING EFFECT; MERGER, CONSOLIDATION AND DISPOSAL OF ASSETS:


 


(a)           Binding Effect.  All provisions contained in this
Lease shall be binding upon, inure to the benefit of and be enforceable by the
respective successors and permitted assigns and sublessees of Landlord and
Tenant to the same extent as if each such successor or assign or sublessee were
named as a party hereto.


 


(b)           Entire Agreement; Amendment.  This Lease
embodies the entire agreement between Landlord and Tenant relating to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.  Neither
this Lease nor any provision hereof may be amended, modified, waived,
discharged or terminated orally, but only as expressly provided herein or by an
instrument signed by Landlord and Tenant.


 


30.          SHOWING:


 


During
the one year period preceding the date on which the Term of this Lease shall
terminate or fully expire, Landlord may show the Leased Property or any part
thereof to prospective tenants or purchasers at such reasonable times during
normal business hours as Landlord may select upon reasonable prior notice to
Tenant.  The foregoing shall not apply to
Vacated Properties.


 


41

















 


31.          NATURE OF LANDLORD’S OBLIGATIONS:


 


Anything
in this Lease to the contrary notwithstanding, no recourse or relief shall be
had under any rule of law or equity, statute or constitution or by any
enforcement of any assessments or penalties, or otherwise or based on or in
respect of this Lease (whether by breach of any obligation, monetary or
non-monetary), against Landlord (or any officer or partner of Landlord or any
predecessor or successor corporation (or other entity) of Landlord), it being
expressly understood that any obligations of Landlord under or relating to this
Lease are solely obligations payable out of the Leased Property and are
compensable solely therefrom.  It is
expressly understood that all such liability is and is being expressly waived
and released as a condition of and as a condition for the execution of this
Lease, and Tenant expressly waives and releases all such liability as a
condition of, and as consideration for, the execution of this Lease.


 


32.          SUBORDINATION:


 


(a)           Subject to Landlord’s
compliance with the requirements of Paragraph 32(b) below, this Lease is
and shall be subject and subordinate to all ground or underlying leases of the
Leased Property and to all mortgages that may now or hereafter be secured upon
such leases or the Leased Property and to any and all renewals, modifications,
consolidations, replacements and extensions thereof, provided that in
connection with the transfer of any interest of Landlord in the Leased Property
or any portion thereof, whether through foreclosure or otherwise, Tenant’s
possession and right to occupy the Leased Property or any portion thereof shall
not be disturbed so long as no Event of Default shall have occurred and be
continuing beyond any applicable cure period, this Lease shall continue in full
force and effect and Tenant shall attorn to such party and shall execute,
acknowledge and deliver any instrument that has for its purpose and effect the
confirmation of such attornment.


 


(b)           Landlord will provide
to Tenant for execution, within thirty (30) days following the recording of a
mortgage or deed of trust encumbering a Leased Property, a subordination,
non-disturbance and attornment agreement from Landlord’s mortgagee, substantially
in the form attached hereto as Schedule F
or in another form reasonably satisfactory to Tenant and Landlord’s mortgagee,
duly executed by Landlord and such Landlord’s mortgagee.  As a condition to the subordination of this
Lease to any future mortgage or deed of trust or ground lease, Landlord shall
obtain for the benefit of Tenant a subordination, non-disturbance and
attornment agreement from the holder of such mortgage or deed of trust or
ground lease.


 


33.          ARBITRATION:


 


(a)            Approval Procedure;
Dispute Resolution.  When the
approval or consent by either Landlord or Tenant is required hereunder and such
approval or consent may not be expressly withheld in such party’s sole
discretion, the parties shall proceed as follows:


 


(i)             The party requesting
the approval or consent (the “Requesting Party”) shall submit a written
request for approval or consent together with such information and supporting
documentation as is reasonably required to evaluate the request to the other
party (the “Responding Party”).


 


42














 


(ii)           Unless a specific time period for the
Responding Party’s response is provided for in this Lease (in which case, such
specific time period shall control), the Responding Party shall have ten (10) days
to (A) approve in writing the request as submitted, (B) approve in
writing the request with conditions, (C) deny in writing the request, or (D) respond
with a written schedule of additional information and/or documentation to be
submitted by the Requesting Party.  If
the Responding Party fails to timely provide any of the above responses, the
approval or consent shall be deemed to be given as requested.


 


(iii)                               If
the Responding Party requests additional information and/or documentation, then
within five (5) days after the Requesting Party delivers same to the
Responding Party, the Responding Party shall again respond as set forth in
clause (ii) above.  If the
Responding Party fails to timely respond as set forth in clause (ii) above,
the approval or consent shall be deemed to be given as requested.


 


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


 


(b)                                 Dispute
Resolution.  The parties hereby agree
to attempt to resolve all disputes and controversies arising out of or in
connection with this Lease or its interpretation, performance or breach,
promptly, equitably and in a good faith manner, through discussions and
negotiations, but failing same, the parties shall proceed as follows:


 


(i)                                     Upon
the occurrence of any controversy or dispute arising out of or relating to this
Lease, or its interpretation, performance or breaches, which the parties have
not been able to resolve in the ordinary course through discussions and
negotiations within a period of thirty (30) days after the dispute or disagreement
arises, each party shall appoint a senior officer of its management, fully
authorized to settle the dispute or disagreement, to meet at a mutually agreed
time and place not later than twenty (20) days after such appointment, to
resolve such dispute or disagreement. 
Should a resolution of such dispute or disagreement not be obtained
within fifteen (15) days after a meeting of such senior officers for such
purpose, either party may then, by written notice to the other, submit the
controversy or dispute to arbitration in Charlotte, North Carolina (or in such
other city as Landlord and Tenant shall elect). 
The arbitration shall be conducted under the auspices of JAMS or its
successor.  The arbitration shall be
initiated by a party by sending notice (the “Arbitration Notice”) of a
demand to arbitrate by registered or certified mail 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.  If the dispute or
disagreement involves a Binding ADR Dispute, Landlord and Tenant shall submit
the matter to binding arbitration.  If
the dispute or disagreement involves a Major Dispute the parties may, but shall
not be required to submit the matter to non-binding arbitration.


 


(ii)                                  If
the dispute or controversy involves the granting, withholding or conditioning
of consent or approval of a matter described in Article 12 (Alterations)
(an “Approval Matter”) or if the dispute or controversy not involving an
Approval Matter involves a total cost to either party of One Million Dollars
($1,000,000.00) or less (a “Binding ADR Dispute”), and if the parties
shall be unsuccessful in their efforts to negotiate a mutually satisfactory
resolution of their dispute or disagreement, the parties shall submit the
matter to 


 


43

















 


binding arbitration, and
JAMS shall provide to the parties a list of three (3) arbitrators, and
each party may strike one arbitrator from such list.  The remaining arbitrator shall serve as the
arbitrator for the dispute.  The
arbitrator so selected shall furnish Landlord and Tenant with a written
decision within thirty (30) days after his or her selection.  The parties agree to arbitrate any Binding
ADR Dispute 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 stated above in this Article 33(b)(ii).  Binding ADR Disputes shall not be conducted
in person unless either Landlord or Tenant shall request an in-person
arbitration.  The decision of the
arbitrator in a Binding Dispute 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.


 


(iii)                               If
the dispute or controversy not involving an Approval Matter involves more than
a total cost to either party of more than One Million Dollars ($1,000,000.00)
under this Lease (“Major Dispute”), and if the parties elect to
arbitrate, then JAMS shall provide a list of six (6) available arbitrators
from which each party shall select one (1) arbitrator, and a third
arbitrator shall be selected by the two (2) arbitrators so selected.  The third arbitrator shall be a neutral
arbitrator who has not acted for either party (or its Affiliate) within the
five (5) years preceding initiation of the arbitration.  The arbitrators, so selected, shall schedule
the arbitration within sixty (60) days following the selection of the third
arbitrator, and shall render their decision within sixty (60) days after the
arbitration is concluded.  If the parties
agree to arbitrate any Major Dispute, they shall do so pursuant to JAMS’
Comprehensive 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
stated above in this Article 33(b)(iii). 
In the instance of a Major Dispute, (A) the decision of the
arbitrators shall not be final or binding, (B) either party shall have the
right to file suit de  novo in a court of competent jurisdiction,
and (C) any and all statements, admissions, or other representations made
during the arbitration by either party shall be deemed privileged, confidential
and inadmissible for any and all purposes in any such subsequent litigation.


 


(iv)                              Notwithstanding
the foregoing, this Article 33 shall not apply to any disputes,
controversies or breaches relating solely to the non-payment of Rent or, unless
agreed to by the parties, a Major Dispute.


 


(c)                                  Conduct
of the Arbitration.  Arbitration
proceedings hereunder shall be subject to the following additional provisions:


 


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


 


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


 


(iii)                               Each
party shall be entitled to all rights and privileges granted by the arbitrators
to the other party;


 


44

















 


(iv)                              In
the arbitration of any Major Dispute, each party shall be entitled to compel
the attendance of witnesses or production of documents, and for this purpose,
the arbitrators shall have the power to issue subpoenas in accordance with the
law of the State of North Carolina;


 


(v)                                 In
the arbitration of any Major Dispute, each party shall have the right (upon
leave of the arbitrators) to take depositions and obtain other discovery of the
scope and in the manner which the arbitrators deem reasonably necessary to the
preparation and presentation of the party’s case;


 


(vi)                              The
arbitrators shall have the power to impose on any party such terms, conditions,
consequences, liabilities, sanctions and penalties as the 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;


 


(vii)                           Arbitrators
may not award indirect, consequential or punitive damages or issue injunctive
relief, and shall have no power to deviate from the provisions of this Lease;
and


 


(viii)                        Neither
party shall be in default under this Lease with respect to any provision hereof
during the time period commencing as of the initial notice of desire to
arbitrate and ending on the date of resolution by the arbitrators in the case
of binding arbitration and ending on the date of a final, unappealable decision
of the court in all other circumstances; provided that during said period of
arbitration and/or litigation each party shall continue to perform all duties
and obligations required to be performed by such party under this Lease and,
with respect to the issue under dispute resolution, shall maintain the status
quo.


 


(d)                                 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 American Arbitration Association (“AAA”) under
the AAA’s commercial arbitration rules then in effect.


 


(e)                                  Mediation;
Litigation.  Unless the parties
mutually agree to arbitrate a Major Dispute, prior to either party commencing
litigation, the parties shall attempt to mediate such dispute.  Accordingly, except as provided in Article 33(a)(iv),
no civil action with respect to any dispute or disagreement arising out of or
relating to this Lease shall be commenced until the matter has been submitted
to JAMS, or its successor, for mediation. 
Either party may commence mediation by providing to JAMS and the other
party a written request for mediation, setting forth the subject of the dispute
and the relief requested.  The parties
shall cooperate with JAMS and with one another in selecting a mediator from
JAMS’ panel of mediators, and in scheduling the mediation proceedings.  The parties agree that they will participate
in the mediation in good faith, and that they will share equally in its
costs.  All offers, promises, conduct and
statements, whether oral or written, made in the course of the mediation by any
of the parties, their agents, employees, experts and attorneys, and by the
mediator and any JAMS employees, are confidential, privileged and inadmissible
for any purpose, including impeachment, in any 


 


45

















 


litigation or other
proceeding involving the parties; provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation.  Either party may seek equitable relief prior
to the mediation to preserve the status quo pending the completion of that
process.  Except for such an action to
obtain equitable relief, neither party may commence a civil action with respect
to the matters submitted to mediation until after the completion of the initial
mediation session, or forty-five (45) days after the date of filing the written
request for mediation, whichever occurs first. 
Mediation may continue after the commencement of a civil action, if the
parties so desire.  The provisions of
this clause may be enforced by any court of competent jurisdiction, and the
prevailing party shall be entitled to an award of all costs, fees and expenses,
including attorneys’ fees, to be paid by the party against whom enforcement is
ordered.


 


34.                               GRANTING OF EASEMENTS, ETC.:


 


If no Event of Default
hereunder has occurred and is continuing, Landlord will join with Tenant, from
time to time at the request of Tenant (and at Tenant’s sole cost and expense),
and upon not less than forty-five (45) days prior written notice, with
respect to their interests in the Leased Property to (i) sell, assign,
convey or otherwise transfer an interest in any Leased Property to any person
legally empowered to take such interest under the power of eminent domain, (ii) grant,
in the ordinary course of business, easements, licenses, rights of way and
other rights and privileges in the nature of easements, (iii) release, in
the ordinary course of business, existing easements and appurtenances which
benefit any Leased Property, (iv) dedicate or transfer unimproved portions
of any Leased Property for road, highway or other public purposes, (v) execute
petitions to have any Leased Property annexed to any municipal corporation or
utility district, (vi) execute amendments to any covenants and
restrictions affecting any Leased Property and (vii) execute and deliver
any instrument, in form and substance reasonably acceptable to Landlord and
Landlord’s mortgagee, necessary or appropriate to make or confirm such grants
or releases to any person, with or without consideration, but only if Landlord
shall have received (x) a certificate of an authorized officer of Tenant
stating that such grant or release was granted in the ordinary course of Tenant’s
business, does not interfere with and is not detrimental to the conduct of
business on the Leased Property and does not materially impair the usefulness
of the Leased Property or materially impair the fair market value of the Leased
Property or materially impair Landlord’s interest in the Leased Property, (y) a
certificate stating the consideration, if any, being paid for said sale grant,
easement, license, release, dedication, transfer, right of way, petition,
amendment or other such instruments described in this Article 34, is in
the opinion of Tenant fair and adequate; and (z) a duly authorized and
binding undertaking of Tenant, in form and substance satisfactory to Landlord
and Landlord’s mortgagee, to remain obligated under this Lease and under any
instrument executed by Tenant consenting to the assignment of Landlord’s
interest in this Lease as security for indebtedness, as though such easement,
license, right-of-way or other right or privilege has not been granted or
released, and to perform all obligations of the grantor or party effecting the
release under such instrument of grant or release during the Term of this
Lease. Notwithstanding anything herein to the contrary, Tenant’s obligation to
pay the reasonable attorneys’ fees for each of Landlord and Landlord’s
mortgagee in connection with the execution and delivery of any easement or
other instrument pursuant to this Article 34 shall not exceed $5,000 for
each of Landlord’s and Landlord’s mortgagee’s counsel in any single request by
Tenant for one (1) or more related easements or other instruments.
Notwithstanding anything herein to the contrary, 


 


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Landlord and
Landlord’s mortgagee shall have a period of thirty (30) days to review the
instruments and the materials requested under this Article 34.  If Landlord or Landlord’s mortgagee shall
fail to execute any such deeds, easements, releases or such other instruments
as may be specifically requested by Tenant in such thirty (30) day period, then
Tenant may deliver to Landlord and Landlord’s mortgagee further notice
requesting the delivery of said documents. 
Tenant’s notice shall specify in capital letters and bold face type that
if Landlord or Landlord’s mortgagee shall fail to return the requested documents
within ten (10) days, or shall fail to specify what corrections need be
made to such documents or why, specifically, Landlord or Landlord’s mortgagee
objects to the delivery of such documents, then Tenant intends to deliver such
instruments to Landlord’s or Landlord’s mortgagee attorney-in-fact.  Subject to the foregoing provision, in the
event Landlord or Landlord’s mortgagee fail to deliver any such deeds,
easements, releases or other instruments within the thirty (30) day period
required above, subject to the additional ten (10) day notice required
above, then in such event, Tenant is hereby authorized to act as the
attorney-in-fact for Landlord and Landlord’s mortgagee to execute and deliver
on behalf of Landlord and Landlord’s mortgagee any all deeds, easements,
releases and other instruments required; provided that no instrument executed
by Tenant as attorney-in-fact shall contain any covenants other than quitclaim
covenants.  For purposes of this Article 34,
commencing on August 31, 2004, and on and as of each August 31
thereafter during the Term of this Lease, the limitations on attorneys’ fees
for Landlord and Landlord’s mortgagee set forth in this Article 34 shall
be calculated as the amount equal to the product derived by multiplying $5,000
by one plus the percentage by which the CPI for such calendar year exceeds the
Base Price Index.  In the event the
information necessary to calculate this amount shall not have been published in
sufficient time to permit such calculation to be made on or before August 31
during any year, the limitation shall be calculated by using the CPI for the
latest month for which it has been published. 
After publication of the relevant information, Landlord and Tenant shall
make appropriate adjustment of the limitation. 
In no event shall the limitation on attorneys’ fees of $5,000 be reduced
as a result of any decrease in the CPI.


 


35.                               WAIVER OF TRIAL BY JURY


 


To
the extent permitted by law Landlord and Tenant hereby waive trial by jury in
any litigation brought by either of the parties hereto against the other on any
matter arising out of or in any way connected with this Lease or the Leased
Property or the Improvements thereto.


 


36.                               RECORDING OF LEASE


 


Landlord
and Tenant will execute, acknowledge, deliver and cause to be recorded or filed
in the manner and place required by any present or future law a memorandum of
this Lease, or, if required by law, this Lease, and all other instruments,
including, without limitation, financing statements, continuation statements,
releases and instruments of similar character, which shall be reasonably
requested by Landlord or Tenant as being necessary or appropriate in order to
protect their respective interests in the Leased Property or to publish notice
of or to create, maintain and protect or terminate or release the lien and
security interest intended to be created by any assignment of Landlord’s
interest in this Lease (and the interest of Landlord’s mortgagee in this Lease
) or any mortgage upon, and the interest of Landlord’s mortgagee in, the Leased
Property.  If either Landlord or Tenant
shall fail to comply with this paragraph, Tenant or Landlord, as the case may
be, shall be and is hereby irrevocably appointed the agent and attorney-in-fact
of 


 


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Landlord
or Tenant, as the case may be, to comply therewith, but this sentence shall not
prevent any default in the observance of this Article 36 by the Tenant
from constituting an Event of Default hereunder.


 


37.                               MISCELLANEOUS:


 


(a)                                  General.  No term or provision hereof may be amended,
changed, waived, discharged or terminated orally, but only by an instrument
signed by the party against whom enforcement thereof is sought. Landlord may
not enter into any amendment, modification or supplement to any
trust-indenture, mortgage or other document with any Landlord’s mortgagee which
has a material and adverse effect on the right or obligations of Tenant
hereunder without the prior written consent of Tenant, and any such amendment,
modification or supplement executed without Tenant’s prior written consent
shall have no binding effect on Tenant hereunder. No failure, delay,
forbearance or indulgence on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, or as an
acquiescence in any breach, nor shall any single or partial exercise of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. Any provision of this
Lease which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.  This Lease and the rights and obligations in
respect hereof shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Pennsylvania, except where the
laws of the State where the Leased Property is located require such State’s own
law to apply.  All headings are for
reference only and shall not be considered as part of this Lease.


 


(b)                                 Attorneys’
Fees.  Notwithstanding anything
herein to the contrary, the obligation of the non-prevailing party to reimburse
the prevailing party for or to pay reasonable attorneys’ fees shall mean
reasonable attorneys’ fees actually incurred without reference to or giving
effect to N.C.G.S. Section 6-21.2(2) or any similar provision of the
law of the state in which the Leased Property is located.


 


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


 


38.                               TERMINATION OF ORIGINAL LEASE:


 


The Original Lease as it pertains to the Leased
Property is hereby terminated effective as of the day immediately preceding the
Commencement Date of this Lease.


 


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IN WITNESS WHEREOF, Landlord and Tenant hereto have each caused this
Lease to be duly executed, under seal, and delivered in their respective names
and behalfs, as of the day and year first above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  FIRST STATES INVESTORS
  4100A, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  Sonya A. Huffman

  
	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  Michael A. Hord

  
	
   

  	
  Title:
  Associate General Counsel