Exhibit 10.73


 


MASTER LEASE AGREEMENT


 


BETWEEN


 


FIRST STATES INVESTORS
5200, LLC,


a Delaware limited
liability company (“LANDLORD”)


 


AND


 


BANK OF AMERICA, N.A. (“TENANT”)


 


Dated: October 1,
2004


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE
  I

  	
  BASIC
  LEASE INFORMATION, LEASED PREMISES, TERM, AND USE

  	
  1

  
	
   

  
	
  1.1

  	
  Basic Lease
  Information; Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Leased Premises

  	
  17

  
	
   

  	
   

  	
   

  
	
  1.3

  	
  Term

  	
  18

  
	
   

  	
   

  	
   

  
	
  1.4

  	
  Options to Renew;
  Special Notice of Non-Renewal

  	
  18

  
	
   

  	
   

  	
   

  
	
  1.5

  	
  Use

  	
  21

  
	
   

  	
   

  	
   

  
	
  1.6

  	
  Survival

  	
  21

  
	
   

  	
   

  
	
  ARTICLE
  II

  	
  RENTAL
  AND OPERATING EXPENSES

  	
  21

  
	
   

  	
   

  
	
  2.1

  	
  Rental Payments

  	
  21

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Operating Expenses

  	
  23

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Real Estate Taxes

  	
  29

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Budget; Audit Rights

  	
  30

  
	
   

  	
   

  
	
  ARTICLE
  III

  	
  BUILDING
  SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT

  	
  33

  
	
   

  	
   

  
	
  3.1

  	
  Building Standard and
  Above Standard Services

  	
  33

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Keys and Locks

  	
  37

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Graphics and Building
  Directory

  	
  37

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Building Identity;
  Signage; Exclusivity

  	
  38

  
	
   

  	
   

  	
   

  
	
  3.5

  	
  Communications
  Equipment

  	
  40

  
	
   

  	
   

  	
   

  
	
  3.6

  	
  Building Management

  	
  41

  
	
   

  	
   

  
	
  ARTICLE
  IV

  	
  CARE
  OF PREMISES; LAWS, RULES AND REGULATIONS

  	
  42

  
	
   

  	
   

  
	
  4.1

  	
  Care of Leased Premises

  	
  42

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Access of Landlord to
  Leased Premises

  	
  42

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Nuisance

  	
  43

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Laws and Regulations;
  Rules of Building

  	
  43

  
	
   

  	
   

  	
   

  
	
  4.5

  	
  Legal Use and
  Violations of Insurance Coverage

  	
  44

  
	
   

  	
   

  	
   

  
	
  4.6

  	
  Environmental Laws

  	
  45

  
	
   

  	
   

  	
   

  
	
  4.7

  	
  Prohibited Uses

  	
  46

  
	
   

  	
   

  
	
  ARTICLE
  V

  	
  LEASEHOLD
  IMPROVEMENTS AND REPAIRS

  	
  47

  
	
   

  	
   

  
	
  5.1

  	
  Leasehold Improvements

  	
  47

  
					



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  5.2

  	
  Alterations

  	
  47

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Non-Removable
  Improvements

  	
  47

  
	
   

  	
   

  	
   

  
	
  5.4

  	
  Mechanics Liens

  	
  48

  
	
   

  	
   

  	
   

  
	
  5.5

  	
  Repairs by Landlord

  	
  48

  
	
   

  	
   

  	
   

  
	
  5.6

  	
  Repairs by Tenant

  	
  49

  
	
   

  	
   

  	
   

  
	
  5.7

  	
  Demising Work

  	
  49

  
	
   

  	
   

  	
   

  
	
  5.8

  	
  Art

  	
  51

  
	
   

  	
   

  
	
  ARTICLE
  VI

  	
  CONDEMNATION,
  CASUALTY AND INSURANCE

  	
  52

  
	
   

  	
   

  
	
  6.1

  	
  Condemnation

  	
  52

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Damages from Certain
  Causes

  	
  53

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Casualty Clause

  	
  53

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Property Insurance

  	
  55

  
	
   

  	
   

  	
   

  
	
  6.5

  	
  Liability Insurance

  	
  55

  
	
   

  	
   

  	
   

  
	
  6.6

  	
  Hold Harmless

  	
  55

  
	
   

  	
   

  	
   

  
	
  6.7

  	
  WAIVER OF RECOVERY

  	
  56

  
	
   

  	
   

  
	
  ARTICLE
  VII

  	
  DEFAULTS,
  REMEDIES, BANKRUPTCY, SUBORDINATION

  	
  56

  
	
   

  	
   

  
	
  7.1

  	
  Default and Remedies

  	
  56

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Insolvency or
  Bankruptcy

  	
  60

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Negation of Lien for
  Rent

  	
  60

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Attorney’s Fees

  	
  61

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  No Waiver of Rights

  	
  61

  
	
   

  	
   

  	
   

  
	
  7.6

  	
  Holding Over

  	
  61

  
	
   

  	
   

  	
   

  
	
  7.7

  	
  Subordination

  	
  62

  
	
   

  	
   

  	
   

  
	
  7.8

  	
  Estoppel Certificate

  	
  62

  
	
   

  	
   

  	
   

  
	
  7.9

  	
  Subsequent Documents

  	
  63

  
	
   

  	
   

  	
   

  
	
  7.10

  	
  Interest Holder
  Privileges

  	
  63

  
	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  SUBLEASING,
  ASSIGNMENT, LIABILITY, AND CONSENTS

  	
  63

  
	
   

  	
   

  
	
  8.1

  	
  Sublease or Assignment
  by Tenant

  	
  63

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Assignment by Landlord

  	
  66

  
					



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  PURCHASE
  AND SALE

  	
  66

  
	
   

  	
   

  
	
  9.1

  	
  Tenant’s Right of First
  Refusal to Purchase

  	
  66

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Right of First Offer on
  Sale

  	
  67

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Separate Lease

  	
  67

  
	
   

  	
   

  
	
  ARTICLE
  X

  	
  EXPANSION
  RIGHTS

  	
  68

  
	
   

  	
   

  
	
  10.1

  	
  Quarterly Availability
  Reports

  	
  68

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Tenant’s Expansion
  Notice

  	
  69

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Landlord Expansion
  Response

  	
  69

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Expansion Space Leases

  	
  69

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Excess Basic Rent;
  Recalculation of Termination Rights

  	
  72

  
	
   

  	
   

  	
   

  
	
  10.6

  	
  Subordination of
  Expansion Space Rights

  	
  72

  
	
   

  	
   

  	
   

  
	
  10.7

  	
  Duration

  	
  73

  
	
   

  	
   

  	
   

  
	
  10.8

  	
  Disputes

  	
  73

  
	
   

  	
   

  
	
  ARTICLE
  XI

  	
  CONTRACTION
  RIGHTS

  	
  73

  
	
   

  	
   

  
	
  11.1

  	
  Contraction Rights

  	
  73

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Contraction Rights
  Exercise Notice

  	
  73

  
	
   

  	
   

  	
   

  
	
  11.3

  	
  Relocation Rights

  	
  74

  
	
   

  	
   

  	
   

  
	
  11.4

  	
  Early Termination
  Rights

  	
  74

  
	
   

  	
   

  	
   

  
	
  11.5

  	
  Termination Rights

  	
  75

  
	
   

  	
   

  	
   

  
	
  11.6

  	
  Contraction Premises
  Rent

  	
  75

  
	
   

  	
   

  	
   

  
	
  11.7

  	
  Surrender; Contraction
  Premises Demising Work

  	
  76

  
	
   

  	
   

  	
   

  
	
  11.8

  	
  Duration

  	
  76

  
	
   

  	
   

  	
   

  
	
  11.9

  	
  Disputes

  	
  76

  
	
   

  	
   

  
	
  ARTICLE
  XII

  	
  DISPUTE
  RESOLUTION

  	
  76

  
	
   

  	
   

  
	
  12.1

  	
  Approval Procedure;
  Dispute Resolution

  	
  76

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Dispute Resolution

  	
  77

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Conduct of the
  Arbitration

  	
  78

  
	
   

  	
   

  	
   

  
	
  12.4

  	
  Alternative Means of
  Arbitration with AAA

  	
  79

  
	
   

  	
   

  	
   

  
	
  12.5

  	
  Mediation; Litigation

  	
  79

  
	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  TENANT
  REMEDIES

  	
  80

  
	
   

  	
   

  
	
  13.1

  	
  Limited Offset

  	
  80

  
				



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Landlord Letter of
  Credit

  	
  80

  
	
   

  	
   

  
	
  ARTICLE
  XIV

  	
  MISCELLANEOUS

  	
  80

  
	
   

  	
   

  
	
  14.1

  	
  Notices

  	
  80

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Brokers

  	
  81

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Binding on Successors

  	
  81

  
	
   

  	
   

  	
   

  
	
  14.4

  	
  Rights and Remedies
  Cumulative

  	
  81

  
	
   

  	
   

  	
   

  
	
  14.5

  	
  Governing Law

  	
  81

  
	
   

  	
   

  	
   

  
	
  14.6

  	
  Rules of
  Construction

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.7

  	
  Authority and
  Qualification

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.8

  	
  Severability

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.9

  	
  Quiet Enjoyment

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.10

  	
  Limitation of Personal
  Liability

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.11

  	
  Memorandum of Lease

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.12

  	
  Consents

  	
  82

  
	
   

  	
   

  	
   

  
	
  14.13

  	
  Time of the Essence

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.14

  	
  Amendments

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.15

  	
  Entirety

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.16

  	
  References

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.17

  	
  Counterpart Execution

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.18

  	
  No Partnership

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.19

  	
  Captions

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.20

  	
  Required Radon Notice

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.21

  	
  Changes to Properties
  by Landlord

  	
  83

  
	
   

  	
   

  	
   

  
	
  14.22

  	
  Storage Space

  	
  84

  
	
   

  	
   

  	
   

  
	
  14.23

  	
  WAIVER OF JURY TRIAL

  	
  84

  
	
   

  	
   

  	
   

  
	
  14.24

  	
  Confidential
  Information

  	
  84

  
				



 


iv

















 


EXHIBITS AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  Leased Premises,
  Building NRA, Leased Premises NRA and Tenant Occupancy Percentages

  
	
  Exhibit B-1

  	
   

  	
  Form of Lease
  Supplement

  
	
  Exhibit B-2

  	
   

  	
  Form of Amendment
  to Lease Supplement and Exhibit A

  
	
  Exhibit C

  	
   

  	
  Form of
  Confidentiality Agreement

  
	
  Exhibit D

  	
   

  	
  Form of
  Subordination, Attornment and Non-Disturbance Agreement

  
	
  Exhibit E

  	
   

  	
  Form of Estoppel
  Certificate

  
	
  Exhibit F

  	
   

  	
  Form of Subtenant
  Non-Disturbance Agreement

  
	
  Exhibit G

  	
   

  	
  Form of Separate
  Lease

  
	
  Exhibit H

  	
   

  	
  Form of
  Contraction Assignment

  
	
  Exhibit I

  	
   

  	
  Form of
  Contraction Sublease

  
	
  Exhibit J

  	
   

  	
  Form of Landlord
  Letter of Credit

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Annual Basic Rent
  Factor Table

  
	
  Schedule 2

  	
   

  	
  [Intentionally Omitted]

  
	
  Schedule 3

  	
   

  	
  Description of
  Environmental Information

  
	
  Schedule 4

  	
   

  	
  Description of Tenant’s
  Art

  
	
  Schedule 5

  	
   

  	
  Renewal Term Annual Basic Rent Illustration

  



 


v

















 


MASTER
LEASE AGREEMENT


 


THIS MASTER LEASE AGREEMENT (this “Lease”) is
made and entered into on October 1, 2004, by and between FIRST STATES
INVESTORS 5200, LLC, a Delaware limited liability company (hereinafter called “Landlord”),
and BANK OF AMERICA, N.A., a national banking association (hereinafter called “Tenant”),
with the limited joinder of
FIRST STATES GROUP, L.P., a Delaware limited partnership (“FSG”).  Any other provision of this Lease to the
contrary notwithstanding, this Lease shall automatically and without further
action of Landlord or Tenant commence and become effective upon and immediately
following the Closing.  Terms with
initial capital letters used in this Lease shall have the meanings assigned for
such terms in Section 1.1(b).


 


BACKGROUND


 


A.            Tenant and FSG are parties to the Purchase Agreement,
pursuant to which Tenant agreed to sell and convey to Landlord, and Landlord
agreed to purchase from Tenant, the Properties and certain other properties not
covered by this Lease.


 


B.            FSG has assigned to Landlord FSG’s entire right, title
and interest in and to the Properties.


 


C.            Closing under the Purchase Agreement has occurred
immediately prior to Landlord’s and Tenant’s execution of this Lease.


 


ARTICLE I


BASIC LEASE INFORMATION,
LEASED PREMISES, TERM, AND USE


 


1.1   Basic Lease Information; Definitions.


 


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


 


 


	
  Commencement Date:

  	
   

  	
  October 1, 2004.

  
	
   

  	
   

  	
   

  
	
  Expiration Date:

  	
   

  	
  September 30,
  2019.

  
	
   

  	
   

  	
   

  
	
  Initial Term:

  	
   

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

  
	
   

  	
   

  	
   

  
	
  Leased Premises:

  	
   

  	
  All those portions of
  the Properties identified in the Lease Supplements, as the same are amended
  from time to time, as being demised and leased to Tenant hereunder, including
  the identified Net Rentable Areas within the Buildings and, where applicable,
  the Drive-Through Banking Facilities.  Each
  time

  



 

















 


	
   

  	
   

  	
  there is an addition
  to, subtraction from or other change in the configuration of the Leased
  Premises as herein provided, including pursuant to Section 6.1
  (Condemnation), Section 6.3 (Casualty), Article IX
  (Purchase and Sale), Article X (Expansion Rights) and Article XI
  (Contraction Rights), Landlord and Tenant, within thirty (30) days following
  the effective date of the change, shall execute amendments to the applicable
  Lease Supplements (based upon the form attached as Exhibit B-1
  hereto) and to Exhibit A hereto to confirm the configuration and
  Net Rentable Area of the Leased Premises, Tenant’s Occupancy Percentage in
  each Building and the Annual Basic Rent for each Leased Premises and, to the
  extent applicable, any adjustment in Parking Areas and be accompanied by a
  revised Exhibit A hereto.

  
	
   

  	
   

  	
   

  
	
  Landlord’s Address for
  Notices:

  	
   

  	
  First States Investors
  5200, LLC

  c/o First States Group, L.P.

  1725 The Fairway

  Jenkintown, PA 19046

  Attention:  Nicholas S.
  Schorsch, President and CEO

  Fax Number:  (215) 887-2585

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  First States Group,
  L.P.

  1725 The Fairway

  Jenkintown, PA 19046

  Attention:  Edward J. Matey Jr.,
  General Counsel

  Fax:  (215) 887-9856

  
	
   

  	
   

  	
   

  
	
  Tenant’s Address for Notices:

  	
   

  	
  Bank of America, N.A.

  525 North Tryon

  3rd Floor — Corporate Real Estate Department

  NC1-023-03-03

  Charlotte, NC 28255

  Attention:  Property Services

  Fax:  (704) 386-7339

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Bank of America, N.A.

  901 Main Street, 68th Floor

  Dallas, TX 75202-3714

  Attention:  Michael F. Hord,
  Associate General Counsel

  Fax:  (214) 209-0871

  
	
   

  	
   

  	
   

  
	
  and to:

  	
   

  	
  Trammell Crow Corporate
  Services, Inc.

  2850 North Federal Highway

  Lighthouse Point, Florida 33064

  Attention:  Chuck Dunn, Senior
  Vice President

  Fax:  (954) 786-4405

  



 


2

















 


	
  and to:

  	
   

  	
  Jones Lang LaSalle
  Americas, Inc.

  355 South Grand Avenue

  Suite 4280

  Los Angeles, CA 90071

  Attention:  John L. Vinnicombe,
  Executive Vice President

  Fax:  (213) 680-4933

  
	
   

  	
   

  	
   

  
	
  Interest Holder’s
  Address for Notices:

  	
   

  	
  Deutsche
  Bank AG, Cayman Islands Branch

  60 Wall Street, 10th Floor

  New York, New York

  Attention: Chris Tognola/Tom Traynor

  Fax:   N/A

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  LaSalle
  Bank National Association

  135 South LaSalle Street, Suite 1625

  Chicago, Illinois 60603

  Attention: Tom Quinlan

  Fax:   N/A

  



 


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


 


“AAA” shall mean
the American Arbitration Association.


 


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


 


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


 


“Additional Equipment”
shall have the meaning assigned to such term in Section 3.5.


 


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


 


“Affiliate” or “Affiliates”
shall mean 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 


 


3

















 


controlling or controlled by or under common control
with any general partner of Landlord or any general partner of Landlord’s
general partner.


 


“Affiliate
Owned Property” shall have the meaning assigned to such term in Section 10.1.


 


“Aggregate
FMRV Rent” shall have the meaning assigned to such term in Section 1.4(c).


 


“Aggregate
Occupancy Percentage” shall mean a fraction, expressed as a percentage, the
numerator of which is the aggregate Net Rentable Area of the Leased Premises in
all of the Properties at the time the determination is made and the denominator
of which is the Net Rentable Area of all of the Closing Properties acquired by
Landlord (or its Affiliates) from Tenant (or its Affiliates) under the Purchase
Agreement, whether or not such Closing Properties are occupied, in whole or in
part, by Tenant.


 


“Agreed
Upon Percentage” shall have the meaning assigned to such term in the
Purchase Agreement.


 


“Agreed
Upon Purchase Price” shall mean, for a Property, the amount calculated as
the product of (i) the Purchase Price for all of the Closing Properties
under the Purchase Agreement multiplied by (ii) the Agreed Upon Percentage
for the Property for which the Agreed Upon Purchase Price is being calculated.


 


“Alteration
Threshold Amount” shall mean, as to each Property, Five Hundred Thousand
Dollars ($500,000.00) in aggregate alteration costs ongoing at any time,
provided that (a) so long as Tenant’s Occupancy Percentage at a Major
Property is at least fifty percent (50%), the Alteration Threshold Amount for
such Major Property shall equal One Million Dollars ($1,000,000.00) in
aggregate alterations costs and (ii) the aggregate Alterations Threshold
Amount for alteration costs ongoing at all Properties at any time shall not
exceed Ten Million Dollars ($10,000,000.00).


 


“Annual
Basic Rent” shall mean the annual basic rent payable by Tenant for the
Leased Premises that are subject, from time to time, to this Lease.  During the Initial Term of this Lease, the
Annual Basic Rent for each Property shall equal the Net Rentable Area of the
Leased Premises for such Property multiplied by the applicable Annual Basic
Rent Factor, except that the Annual Basic Rent for any Short Term Expansion
Space shall equal the Fair Market Rental Value of such Short Term Expansion
Space as provided in Article X. 
During the Renewal Terms of this Lease, the Annual Basic Rent for each
Property shall equal the Fair Market Rental Value of the Leased Premises within
such Property, subject, if applicable, to the limitations set forth in Section 1.4(c).  The Annual Basic Rent due under this Lease
shall equal the sum of all Annual Basic Rents due with respect to each
Property.  Annual Basic Rent shall be
re-calculated each time there is a change in the Annual Basic Rent Factor or in
Tenant’s Occupancy Percentage for a Property or a required conversion to, or
adjustment in, the Fair Market Rental Value of a Property.


 


“Annual
Basic Rent Factor” shall mean the annual rate per square foot of Net
Rentable Area used to calculate the Annual Basic Rent.  A table of Annual Basic Rent Factors,
together with scheduled increases and decreases thereto, are set forth on Schedule
1 hereto.


 


4

















 


“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 subject Property
or Leased Premises, who shall be associated with a nationally-recognized real
estate services firm offering appraisal services, with local offices in the
region where the subject 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 Matters”
shall have the meaning assigned to such term in Section 12.2(b).


 


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


 


“Art” shall have
the meaning assigned to such term in Section 5.8.


 


“ATM”
shall mean automated teller machine.


 


“Average
Operating Expenses” shall mean the amount determined by dividing the
aggregate Operating Expenses for all of the Properties by the aggregate Net
Rentable Area of all of the Buildings. 
The Average Operating Expenses between the Commencement Date and December 31,
2004, shall equal $8.56 per square foot of Net Rentable Area, inclusive of
management fees.  Beginning on January 1,
2005, the Average Operating Expenses shall be increased by three percent (3%),
subject to adjustment in the final Budget for such calendar year.


 


“Average
Real Estate Taxes” shall mean the amount determined by dividing the
aggregate Real Estate Taxes for all of the Properties by the aggregate Net
Rentable Area of all of the Buildings. 
The Average Real Estate Taxes between the Commencement Date and December 31,
2004, shall equal $2.12 per square foot of Net Rentable Area.  Beginning on January 1, 2005, the
Average Real Estate Taxes shall be increased by three percent (3%), subject to
adjustment in the final Budget for such calendar year.


 


“Award”
shall have the meaning assigned to such term in Section 13.2(c).


 


“Banking
Center Properties” shall mean those Properties identified as such on Exhibit A
hereto as “Banking Centers,” whether or not such Properties also include a “Motor
Bank.”


 


“Banking”
shall have the meaning assigned to such term in Section 1.5.


 


“Binding ADR Dispute”
shall have the meaning assigned to such term in Section 12.2(b).


 


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


 


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


 


5














 


“Building” shall
mean any and each of the buildings identified on Exhibit A in which
the Leased Premises are located.


 


“Building Common Areas”
shall have the meaning assigned to such term in the Measurement Standard.


 


“Building Operating
Hours” shall mean, for each Building, from 7:00 a.m. to 7:00 p.m.
on Mondays through Fridays and from 8:00 a.m. to 2:00 p.m. on
Saturdays, excepting Holidays; provided that Building Operating Hours for
Banking Center Properties where Tenant’s Occupancy Percentage equals one
hundred percent (100%) shall mean the standard hours of operations for such
Property as established, from time to time, by Tenant.


 


“Building
Rules” shall have the meaning assigned to such term in Section 4.4.


 


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


 


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


 


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


 


“Buildings”
shall mean all of the buildings identified on Exhibit A in which
the Leased Premises are located.


 


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


 


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


 


“Closing
Date” shall mean the date of Closing under the Purchase Agreement.


 


“Closing
Properties” shall mean all properties that Landlord (or its Affiliates)
acquires from Tenant (or its Affiliates) under the Purchase Agreement.


 


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


 


“Common Areas”
shall mean all portions of the Project that are not intended to be rented to a
tenant, including interior corridors, elevators, mechanical rooms, stairs,
lobbies, lavatories, washrooms, exterior roadways, Parking Areas, sidewalks,
plazas, traffic lights, storm drainage facilities, rooftops, landscaped areas,
exterior walks and ramps, sanitary sewer, domestic and fire water systems, fire
protection installations, electric power and telephone cables and lines and
other utility connections, facilities and other improvements (above and below
ground) that are owned by Landlord and are now or hereafter constructed on the
Project for use in common by Landlord, Tenant and other tenants located in the
Building or for the common benefit of the foregoing, including all such areas,
facilities and systems denominated as “Building Common Areas” and “Floor Common
Areas” in the Measurement Standard.


 


6

















 


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


 


“Comparable Buildings”
shall mean, for each Building, a quality, age, location and construction that
is comparable to that of other buildings within the metropolitan area within
which such Building is located.


 


“Continuing
Term Separate Lease” shall have the meaning assigned to such term in Section 9.3.


 


“Contraction
Assignment” shall mean a lease assignment and assumption agreement
substantially in the form attached as Exhibit H hereto entered into
by Tenant, as assignor, and FSG or, at FSG’s election, an Affiliate of FSG, as
assignee, for all of Tenant’s right, title and interest in and to a Continuing
Term Separate Lease at a Property for which Tenant has properly exercised
Contraction Rights for the entire Leased Premises within such Property pursuant
to Article XI.  If FSG elects
to cause an Affiliate of FSG to enter into a Contraction Assignment, FSG shall
join in the execution of the Contraction Assignment for the purpose of
unconditionally guarantying to Tenant the payment and performance by such
Affiliate of all of such Affiliate’s obligations to Tenant under the
Contraction Assignment.  Tenant shall be
released from all obligations under the Separate Lease to which the Contraction
Assignment relates arising on and after the date of execution of the Contraction
Assignment.


 


“Contraction
Premises” shall have the meaning assigned to such term in Section 11.2.


 


“Contraction
Premises Surrender Date” shall have the meaning assigned to such term in Section 11.6.


 


“Contraction
Rights” shall have the meaning assigned to such term in Section 11.1.


 


“Contraction
Rights Exercise Notice” shall have the meaning assigned to such term in Section 11.2.


 


“Contraction
Sublease” shall mean a separate, stand alone sublease substantially in the
form attached as Exhibit I hereto entered into by Tenant, as
sublandlord, and FSG or, at FSG’s election, an Affiliate of FSG, as subtenant,
for such portion of the Leased Premises at a Property that is leased by Tenant
under a Continuing Term Separate Lease as Tenant has properly exercised
Contraction Rights pursuant to Article XI.  If FSG elects to cause an Affiliate of FSG to
enter into a Contraction Sublease, FSG shall join in the execution of the
Contraction Sublease for the purpose of unconditionally guarantying to Tenant
the payment and performance by such Affiliate of all of such Affiliate’s
obligations to Tenant under the Contraction Sublease.


 


“Cost Approved
Sublease” shall have the meaning assigned to such term in Section 8.1(h).


 


“Coterminous
Expansion Space” shall have the meaning assigned to such term in Section 10.4(b).


 


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


 


7

















 


“Demising Work”
shall mean the construction by Tenant, if and to the extent required as a
result of Tenant’s vacation and surrender of Surrendered Premises to Landlord,
of (i) all walls and other work required to demise, separate and secure
the Leased Premises from any portion of the Building that is not included
within the Leased Premises, (ii) all work, if and to the extent required
as a result of such demise, for (a) the creation of multi-tenant access to
Building Common Areas, facilities and systems necessary for the general office
use of the Surrendered Premises, including multi-tenant access to the
mechanical, electrical, plumbing and other utility facilities and systems
serving the Surrendered Premises or (b) at Tenant’s sole option, in lieu
of creating multi-tenant access to existing Building Common Areas, facilities
or systems, Tenant may construct replacements for Building Common Areas,
facilities or systems necessary for the general office use of the Surrendered
Premises and (iii) to provide proper and lawful means of ingress and
egress to the Surrendered Premises. 
Notwithstanding the foregoing, Tenant will not be obligated to (i) make
any alterations or improvements to demise the Leased Premises on floors of any
Buildings that are and shall continue to be leased by Tenant as full floors, (ii) make
any alterations or improvements to floors that do not contain any Leased
Premises or (iii) bring the Properties into compliance with building codes
or other Legal Requirements, except to the extent required by any Governmental
Authority as being necessary to perform the Demising Work.  All Demising Work shall be performed in
conformity with the requirements of Section 5.7.


 


“Drive-Through Banking
Facility” shall mean, for each Property, the portion of the Leased
Premises, if any, identified as a Drive-Through Banking Facility in Lease
Supplement for such Property.


 


“Early
Termination Fee” shall mean the amount required to be paid by Tenant to
Landlord upon Tenant’s exercise of Early Termination Rights under Section 11.4
calculated as the product of (w) the Agreed Upon Purchase Price for the
Property at which the Early Termination Rights are being exercised multiplied
by (x) 16.6667 basis points (0.00166667) multiplied by (y) the number
of whole or partial months that elapse between the Commencement Date and the
Contraction Premises Surrender Date for the Contraction Premises for which the
Early Termination Fee is being calculated multiplied by (z) a fraction,
the numerator of which is the Net Rentable Area of the Contraction Premises
created by Tenant’s exercise of the Early Termination Rights for which the
Early Termination Fee is being calculated and the denominator of which is the
Net Rentable Area of the Building at which the Early Termination Rights are
being exercised.  For purposes of
determining the Early Termination Fee required to be paid by Tenant with the
Contraction Rights Exercise Notice for any Contraction Premises, Tenant shall
assume that the Contraction Premises Surrender Date for such Contraction
Premises shall be the date on which Tenant identifies in the Contraction Rights
Exercise Notice that Tenant desires to vacate and surrender possession of such
Contraction Premises to Landlord.  After
the actual Contraction Premises Surrender Date for the Contraction Premises
becomes known, the Early Termination Fee shall be recalculated as provided in Section 11.4.  No Early Termination Fee shall ever become
due or payable by Tenant as a result of, or with respect to the Contraction
Premises created by, Tenant’s exercise of Relocation Rights under Section 11.3
or Termination Rights under Section 11.5.


 


“Early
Termination Right” shall have the meaning assigned to such term in Section 11.4.


 


8

















 


“Enforcement”
shall have the meaning assigned to such term in Section 7.7.


 


“Environmental
Information” shall have the meaning assigned to such term in Section 4.6(a).


 


“Environmental
Matters” shall have the meaning assigned to such term in Section 4.6(b).


 


“Excess
Basic Rent” shall have the meaning assigned to such term in Section 10.5.


 


“Exchange
Space” shall mean the number of square feet, if any, by which the Net
Rentable Area of the Minimum Leased Premises exceeds the Net Rentable Area of
the Lease Premises.  On the Commencement
Date, the Exchange Space shall equal Thirty-Four Thousand Eight Hundred
Ninety-One (34,891) square feet.  The
Exchange Space shall be recalculated, as of the Commencement Date, following
the re-measurement of the Buildings in conformity with the Measurement
Standard.  The Exchange Space shall be
reduced, from time to time, by the Net Rentable Area of all Expansion Space
added to Leased Premises pursuant to Article X (effective, in each
such case, as of the date the Expansion Space becomes Leased Premises) and
increased, from time to time, by the Net Rentable Area of any Contraction
Premises removed from the Leased Premises by Tenant’s exercise of Relocation
Rights, but not Early Termination Rights or Termination Rights (effective, in
each such case, as of the date the Contraction Premises is no longer Leased
Premises).


 


“Exchange Space Rent”
shall mean the annual Rent payable by Tenant with respect to the Exchange Space
calculated as Net Rentable Area of the Exchange Space multiplied by the sum of (i) Annual
Basic Rent Factor plus (ii) the Average Operating Expenses plus (iii) the
Average Real Estate Taxes.  If the
Exchange Space is less than or equal to zero, no Exchange Space Rent shall be
due or payable.


 


“Expansion
Rights” shall have the meaning assigned to such term in Section 10.4.


 


“Expansion
Space” shall have the meaning assigned to such term in Section 10.4.


 


“Expansion
Space Acceptance” shall have the meaning assigned to such term in Section 10.4.


 


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


 


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


 


“Fair
Market Purchase Value” shall mean the fair market purchase 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 purchaser, 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 net lease
(i.e., net of all operating expenses, real estate taxes, utilities and other
pass-throughs) between an informed and willing tenant (other than a tenant in
possession) and an informed and willing landlord, neither of 


 


9

















 


whom is under any compulsion to enter into such
transaction, for space in Comparable Buildings that is comparable in size,
location and quality to the Leased Premises, for a comparable term.  Such Fair Market Rental Value shall be
calculated assuming that (i) the Leased Premises are 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
Premises in “AS-IS” condition.  In
determining the Fair Market Rental Value for Property, the Appraiser shall give
due consideration, to and make any necessary adjustments to the rentals paid at
Comparable Buildings in light of, the following factors: (i) Tenant will
not receive, and Landlord will not pay, any tenant improvement, relocation,
moving or other allowance, rent abatement or other reduced or free rent period
or any other allowance or concession in connection with Tenant’s leasing of the
Leased Premises, (ii) except as expressly provided herein with respect to
Expansion Space, Tenant’s obligation to pay Rent commences on the date
possession of the Leased Premises are delivered to Tenant, (iii) Landlord
will not pay any brokers’ fee or commission in connection with Tenant’s leasing
of the Leased Premises, (iv) the Landlord’s inclusion, and Tenant’s
payment, of amortized capital expenditures in Operating Expenses to the extent
provided in this Lease and (v) the creditworthiness of Tenant and the
tenants at Comparable Buildings.  For
Short Term Expansion Space only, the Fair Market Rental Value shall be
determined without regard to the value added by any alterations or improvements
made to such space by Tenant after it was added to the Lease Premises as
provided in Article X.


 


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


 


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


 


“Five
Year Term Separate Lease” shall have the meaning assigned to such term in Section 9.3.


 


“Floor Common Area”
shall have the meaning assigned to such term in the Measurement Standard.


 


“FMRV
Increment” shall have the meaning assigned to such term in Section 10.5.


 


“FMRV
Space” shall mean space added to the Leased Premises as Expansion Space,
but shall not include any Coterminous Expansion Space added to the Leased
Premises during the Initial Term.


 


“Force
Majeure Events” shall mean events beyond Landlord’s or Tenant’s (as the
case may be) control, which shall include 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).  The times for performance set forth in this
Lease (other than for monetary obligations of a party) shall be extended to the
extent performance is delayed by Force Majeure Events.


 


“FSG” shall have
the meaning assigned to such term in the parties paragraph.


 


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


 


10

















 


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


 


“Gross Revenue”
shall mean, for each Property, all gross income generated in connection with
such Property, including basic rents, additional rents and other charges
collected from Tenant and other tenants or occupants of the Property and income
from services, coin operated vending machines and telephones, parking facilities,
but excluding (i) security deposits, unless and not until such deposits
are applied as rental income, (ii) interest on bank accounts for the
operation of the Property, (iii) proceeds from the sale or refinancing of
the Property, (iv) insurance proceeds or dividends received from any
insurance policies pertaining to physical loss or damage to the Property, (v) condemnation
awards or payments received in lieu of condemnation of the Property and (vi) any
trade discounts and rebates received in connection with the purchase of
personal property or services in connection with the operation of the Property.


 


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


 


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


 


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


 


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


 


“Interest Holder”
shall have the meaning assigned to such term in Section 7.7.


 


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


 


“JLL” shall mean
Jones Lang LaSalle Americas, Inc.


 


11

















 


“Land” shall mean
all of the parcels of land identified on Exhibit A on which the
Buildings, Common Areas, Drive-Through Banking Facilities, Parking Areas and
other elements of the Properties are located.


 


“Landlord” shall
have the meaning assigned to such term in the parties paragraph.


 


“Landlord Default”
shall have the meaning assigned to such term in Section 7.1(f).


 


“Landlord
Designated Submanager” shall have the meaning assigned to such term in Section 3.6.


 


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


 


“Landlord
Letter of Credit” shall have the meaning assigned to such term in Section 13.2.


 


“Lease” shall have
the meaning assigned to such term in the parties paragraph.


 


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


 


“Lease Supplement”
shall mean, for each Property, a supplement to this Lease based upon the form
attached as Exhibit B hereto that describes and depicts, in detail,
the Leased Premises for such Property and any Landlord or Tenant right or
obligations that are specific to that Property, including any emergency
generators, uninterrupted power systems, supplemental HVAC systems and other
specialty items of whose capacities are dedicated for Tenant’s sole use and
that Tenant desires Landlord to maintain, repair and replace, at Tenant’s election,
as an Above Standard Service.


 


“Lease Year” shall
mean a period of one (1) year; provided that the first Lease Year shall
commence on the Commencement Date and shall end on September 30,  2005; the second Lease Year commences upon the expiration
of first Lease Year and ends one (1) year later, and all subsequent Lease
Years commence upon the expiration of the prior Lease Year, except that the
last Lease Year during the Term ends on the last day of the Term.  The Lease Year for all Properties covered by this
Lease shall be the same.


 


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


 


“MAI” shall mean
Member of the Appraisal Institute.


 


“Major Dispute”
shall have the meaning assigned to such term in Section 12.2(c).


 


“Major Property”
shall mean any Property in which the Building shall contain 50,000 or more
square feet of Net Rentable Area.


 


“Maximum Renewal Term
Basic Rent” shall have the meaning assigned to such term in Section 1.4(c).


 


12

















 


“Measurement
Standard” shall mean the Standard Method for
Measuring Floor Area in Office Buildings, ANSI/BOMA Z65.1-1996, as
promulgated by BOMA.


 


“Minimum
Leased Premises” shall mean the number of square feet determined by
multiplying the Net Rentable Area of all of the Closing Properties acquired by
Landlord (or its Affiliates) from Tenant (or its Affiliates) under the Purchase
Agreement, whether or not such Closing Properties are occupied, in whole or in
part, by Tenant, by 0.618.  The Minimum
Leased Premises shall be calculated by Landlord and Tenant on the Commencement
Date and recalculated, as of the Commencement Date, following the
re-measurement of the Buildings in conformity with the Measurement Standard.


 


“Net
Rentable Area” shall mean, as applicable, the net rentable areas of the
Leased Premises and the Buildings, determined in conformity with the
Measurement Standard.  The approximate
Net Rentable Areas of the Leased Premises and the Buildings are as specified in
Exhibit A; provided that the final and stipulated Net Rentable
Areas of the Leased Premises and each of the Buildings shall be re-measured by
Landlord on or before December 31, 2004, in conformity with the
Measurement Standard.  Once such
re-measurement is completed, Landlord and Tenant shall (i) amend the Lease
Supplements and Exhibit A to confirm, effective as of the
Commencement Date, the correct Net Rentable Areas, Occupancy Percentages and
Annual Basic Rents, (ii) recalculate and confirm in writing the Net
Rentable Area subject to Termination Rights under Section 11.5
below, (iii) recalculate the Minimum Leased Premises and (iv) recalculate
the Annual Basic Rent Factor.


 


“Non-FMRV
Renewal Space” shall mean, as to each Property during each Renewal Term,
the portion of the Renewal Premises at such Property, if any, that is not FMRV
Space.


 


“Non-Removable
Improvements” shall have the meaning assigned to such term in Section 5.3.


 


“Notice Parties”
shall mean the parties identified in Section 1.1(a), and any
successor or additional party as a Notice Party may from time to time
designate, as parties entitled to receive written notices under this Lease.


 


“Occupancy
Percentage” shall mean, as to each Building, a fraction, expressed as a
percentage, the numerator of which is the Net Rentable Area of the Leased
Premises in the Building at the time the determination is made, and the
denominator of which is Net Rentable Area of the Building, all as set forth on Exhibit A
hereto, as amended from time to time. 
The Occupancy Percentage for a Property shall be re re-calculated each
time there is a change in the Net Rentable Area of the Leased Premises or the
Building at such Property.


 


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


 


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


 


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


 


13

















 


“Owner” shall have
the meaning assigned to such term in Section 7.7.


 


“Parking Areas”
shall mean, as to each Property, the exclusive and non-exclusive parking areas
and facilities for the Property as indicated on the Lease Supplement for the
Property, together with any connecting walkways, covered walkways, tunnels, or
other means of access to the Building, and any additional minor improvements
now or hereafter located on the Land related to the foregoing facilities.


 


“PAVS
Contraction Premises” shall have the meaning assigned to such term in Section 5.7(h).


 


“PAVS
Expansion Premises” shall have the meaning assigned to such term in Section 5.7(h).


 


“Pre-Committed
Space” shall have the meaning assigned to such term in Section 10.2(a).


 


“Preliminary Drawings”
shall have the meaning assigned to such term in Section 5.7(b).


 


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


 


“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).


 


“Prior
Lease” shall mean that certain Master Lease Agreement dated June 30,
2003, by and between First States Investors 5000A LLC, as landlord, and Tenant,
as tenant, as amended,


 


“Prohibited
Uses” shall have the meaning assigned to such term in Section 4.7.


 


“Property” shall
mean the Land, the Buildings, the Common Areas, including the Parking Areas,
any Drive-Through Banking Facilities, and any and all additional improvements
now or hereafter located on the Land that serve the Buildings, the Common
Areas, including the Parking Areas, any Drive-Through Banking Facilities or the
tenants of the Building generally.


 


“Purchase Agreement”
shall mean that certain Agreement of Sale and Purchase dated September 27,
2004, by and between Tenant, as seller, and FSG, as purchaser, as amended.  Immediately prior to the Closing, FSG shall
assign to Landlord, and Landlord shall assume, all of FSG’s rights, titles and
interests under the Purchase Agreement, it being understood that FSG shall not
be released from its obligations under the Purchase Agreement as a result of
such assignment.


 


“Purchase
Agreement Vacate Space” shall mean the “Vacate Space” as such term is
defined in the Purchase Agreement.


 


“Purchase
Price” shall have the meaning assigned to such term in the Purchase
Agreement.


 


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


 


14

















 


“Quarterly Availability Report” shall have the
meaning assigned to such term in Section 10.1.


 


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


 


“Relocation Rights”
shall have the meaning assigned to such term in Section 11.3.


 


“Relocation
Rights Exercise Period” shall have the meaning assigned to such term in Section 10.4(a).


 


“Remedial
Work” shall mean the removal, relocation, elimination, remediation or
encapsulation of Hazardous Materials from all or any portion of the Leased
Premises or the Common Areas and, to the extent thereby required, the
reconstruction and rehabilitation of the Leased Premises or the Common Areas
pursuant to, and in compliance with this Lease.


 


“Renewal
Option(s)” shall have the meaning assigned to such term in Section 1.4(a).


 


“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 Section 1.4(d).


 


“Renewal Premises”
shall have the meaning assigned to such term in Section 1.4(c).


 


“Renewal Terms”
shall have the meaning assigned to such term in Section 1.4(a).


 


“Rent” shall mean
Annual Basic Rent, Excess Basic Rent, if any, Exchange Space Rent, if any, and
Additional Rent.


 


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


 


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


 


“ROFO Eligible
Conditions” shall have the meaning assigned to such term in Section 9.2(a).


 


“ROFO Eligible
Property” shall have the meaning assigned to such term in Section 9.2(a).


 


“SAR”
shall mean Strategic Alliance Realty.


 


“SEC”
shall have the meaning assigned to such term in Section 14.24.


 


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


 


“Self-Insurance Net
Worth Test” shall mean, as of any date, that (i) Tenant has a net
worth of at least One Billion Dollars ($1,000,000,000.00) and (ii) Tenant’s
long-term senior unsecured debt obligations are rated at least BBB (or its
equivalent) by S&P and Baa2 (or its equivalent) by Moody’s at of that date;
provided that if Tenant is rated by only one of S&P or 


 


15

















 


Moody’s, such obligations shall have such rating from
S&P or Moody’s, as the case may be, and a comparable rating from another
nationally-recognized rating agency.


 


“Separate Lease”
shall mean a separate, stand alone lease for a Property substantially in the
form attached as Exhibit G hereto entered into by the purchaser of
such Property, as landlord, and Tenant, as tenant, as provided in Section 9.3,
which may be either Continuing Term Separate Leases or Five Year Term Separate
Leases.


 


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


 


“Short
Term Expansion Space” shall have the meaning assigned to such term in Section 10.4.


 


“Sublet
Space” shall have the meaning assigned to such term is Section 8.1(b).


 


“Subtenant
Non-Disturbance Agreement” shall mean a written agreement substantially in
the form attached as Exhibit F hereto among Landlord, Tenant, the
subtenant under a Cost Approved Sublease and any Interest Holders pursuant to
which Landlord and such Interest Holders agree not to disturb such subtenant’s
possessory and other rights under the Cost Approved Sublease, and such
subtenant agrees to attorn to and recognize Landlord, notwithstanding any
expiration or earlier termination of the Term of this Lease prior to the
expiration or earlier termination of the term of the Cost Approved Sublease,
except to the extent that such possessory or other rights can be disturbed or
terminated as provided in the Cost Approved Sublease.


 


“Surrendered
Premises” shall mean, as applicable, any Purchase Agreement Vacate Space or
Contraction Premises for which Tenant is required to perform Demising Work.


 


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


 


“TCCS” shall mean
Trammell Crow Corporate Services, Inc.


 


“Tenant” shall
have the meaning assigned to such term in the parties paragraph.


 


“Tenant’s Business
Equipment” shall have the meaning assigned to such term in Section 5.3.


 


“Tenant
Designated Submanager” shall have the meaning assigned to such term in Section 3.6.


 


“Tenant Expansion
Notice” shall have the meaning assigned to such term in Section 10.2.


 


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


 


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


 


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


 


16

















 


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


 


“Termination
Rights” shall have the meaning assigned to such term in Section 11.5.


 


“Third Party Offer”
shall have the meaning assigned to such term in Section 9.1.


 


“Transfer
Notice” shall have the meaning assigned to such term in Section 8.1(b).


 


“Unused
Relocation Rights Area” shall have the meaning assigned to such term in Section 10.5.


 


“URR
Agreement” shall mean that certain Master Agreement Regarding Leases dated
as of October 1, 2004, between FSG and Tenant pursuant to which FSG
granted to Tenant certain “Universal Relocation Rights” as more fully therein
provided.


 


“VARA” shall mean
the Visual Artists Rights Act of 1990, as amended.


 


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


 


1.2   Leased Premises.  Subject to and upon the terms hereinafter set
forth, Landlord does hereby lease and demise to Tenant, and Tenant does hereby
lease and take from Landlord, the Leased Premises.  The initial Leased Premises are described in Exhibit A
hereto and in the Lease Supplements. 
Tenant shall be entitled to the following as appurtenances to the Leased
Premises, all at no cost to Tenant, other than as provided in Section 2.2
or Section 3.1 below: (a) the right to use, and to permit
Tenant’s employees and invitees to use (i) on an exclusive basis, the
dedicated Parking Areas, if any, identified on the Lease Supplements and the
elevator lobbies, corridors, restrooms, telephone, electric and other utility
closets on floors leased entirely by Tenant and (ii) on a non-exclusive
basis (in common with Landlord and other tenants or occupants of the Property,
and their respective employees and invitees), the balance of the Parking Areas
and all the other Common Areas (excluding Floor Common Areas, systems and
facilities on and/or serving floors that do not include Leased Premises, but
including risers wherever located throughout the Buildings); (b) all
rights and benefits appurtenant to, or necessary or incidental to, the use and
enjoyment of the Leased Premises by Tenant for the purposes permitted by Section 1.5,
including the right of Tenant, its employees and invitees, in common with
Landlord and other persons, to use any non-exclusive easements and/or licenses
in, about or appurtenant to the Project, including the non-exclusive right to
use any walkways, tunnels, and skywalks connected to the Project; and (c) all
other rights and benefits provided to Tenant with respect to the Project
pursuant to this Lease (including the rights granted to Tenant


 


17














 


to use the roof of the
Building, and other portions of the Project located outside of the Leased
Premises, pursuant to Section 3.5 hereof).


 


1.3   Term. 
The Initial term of this Lease shall be as described in Section 1.1(a),
which Initial Term may be renewed and extended as provided in Section 1.4
(the Initial Term and, to the extent renewed and extended, any such Renewal
Terms are hereinafter collectively called the “Term”).  Tenant is in possession of the Leased
Premises as of the date of this Lease and shall accept the Leased Premises in
its “AS-IS” condition on the Commencement Date, subject to all applicable Legal
Requirements, covenants and restrictions. 
Landlord has made no representation or warranty regarding the
suitability of the Leased Premises or the Buildings for the conduct of Tenant’s
business, and Tenant waives (a) any implied warranty that the Leased
Premises or the Buildings are suitable for Tenant’s intended purposes, (b) any
right of Tenant to claim that the Leased Premises are not now or in the future
in compliance with Legal Requirements (except to the extent that any such
future non-compliance with Legal Requirements within the Leased Premises was
caused by any act or omission of Landlord, or its agents, servants or
employees) and (c) any right of Tenant to claim that the Buildings are not
in compliance with Legal Requirements in effect on the Commencement Date.  Except as otherwise expressly set forth in
this Lease to the contrary, in no event shall Landlord have any obligation for
any defects in effect on the Commencement Date in the Leased Premises or the
Buildings or any limitation on their respective uses.


 


1.4   Options to Renew; Special Notice of
Non-Renewal.


 


(a)           Subject to the conditions hereinafter
set forth, Tenant is hereby granted options (individually, a “Renewal Option”
and, collectively, the “Renewal Options”) to renew the Term with respect
to any or all of the Leased Premises then demised to Tenant (including any
Expansion Space) for up to seventeen (17) successive periods of five (5) years
each with respect to the Banking Center Properties and for up to seven (7) successive
periods of five (5) years each with respect to all other Properties
(individually, a “Renewal Term” and collectively the “Renewal Terms”);
provided that the Term of this Lease shall not extend for any portion of the
Leased Premises within the Banking Center Properties, wherever added to this
Lease, beyond September 30, 2104, or for any portion of the Leased
Premises within any other Property, whenever added to this Lease, beyond September 30,
2054.


 


(b)           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.


 


18

















 


(c)           The Annual Basic Rent to be paid by
Tenant for the Leased Premises at a Property during a Renewal Term (any such
premises, the “Renewal Premises”) shall equal the Fair Market Rental
Value of such Renewal Premises during such Renewal Term as determined by the
parties or, in the absence of their agreement, determined by appraisal as
expressed below; provided that the Annual Basic Rent payable during a Renewal
Term for Non-FMRV Renewal Space at all Properties that contain Renewal
Premises, computed on an aggregate basis, shall not be greater than the amount
determined by multiplying (i) the aggregate Net Rentable Area of the
Non-FMRV Renewal Space by (ii) the Annual Basic Rent Factor for the
applicable Renewal Term as set forth on Schedule 1 hereto (the amount so
determined, the “Maximum Renewal Term Basic Rent”).  If the aggregate Fair Market Rental Values of
the Non-FMRV Renewal Space at all Properties (collectively, the “Aggregate
FMRV Rent”) exceeds the Maximum Renewal Term Basic Rent, the Fair Market
Rental Values of the Non-FMRV Renewal Space at each Property 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 Non-FMRV Renewal Space shall, in the aggregate, equal the Maximum
Renewal Term Basic Rent.  With respect to
FMRV Space that is part of Renewal Premises, the Annual Basic Rent shall always
be the Fair Market Rental Value of such FMRV Space.  An illustration of how Annual Basic Rent is
determined during a Renewal Term is attached as Schedule 5 hereto.


 


(d)           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 Market Rental Value for the
Renewal Premises 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 Premises. 
Tenant’s leasing of the Renewal Premises shall be upon the same terms
and conditions as set forth in this Lease, except (i) the Annual Basic
Rent during the Renewal Term shall be determined as specified in Sections
1.4(c) and (e) 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. 
Once established, the Annual Basic Rent for the applicable Renewal Term
will remain fixed for each five (5) year Renewal Term, and be paid monthly
in advance.


 


(e)           If Landlord and Tenant are unable to
reach a definitive agreement as to the Fair Market Rental Value applicable to
Renewal Premises 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 Section 1.4(e).  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
Premises.  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 Arbitrator as required under the Lease and
will be deemed to have waived certain rights granted to it under the Lease
unless it selects an Arbitrator within five (5) business days, the Fair
Market Rental Value will be determined by the Appraiser engaged by the other 


 


19

















 


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 Premises.  If the higher of the
two appraisals of Fair Market Rental Value exceeds 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 Section 1.4(c), shall be the Fair
Market Rental Value for the Renewal Premises 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 Premises to which the notice of 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 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 Section 1.4(e) 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
Premises) 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 five (5) year Renewal Term, and be paid monthly in advance.


 


(f)            Notwithstanding anything to the
contrary contained in this Section 1.4, subject to the provisions
of Section 1.4(a) above, Tenant’s failure to give the required
renewal notice with respect to the Leased Premises within a Property in
conformity with the requirements of Section 1.4(b) shall
render the upcoming and all subsequent Renewal Options for such Leased
Premises, if there be any, null and void.


 


20

















 


1.5   Use. 
Each of the Leased Premises may be used and occupied by Tenant (and its
permitted assignees and subtenants) only for banking and related uses and
general business office purposes and such other lawful purposes as are
consistent with banking and general office uses being made from time to time by
tenants of the Building.  In addition and
without limitation of the foregoing, Tenant may maintain (for use by Tenant and
its employees, customers, and invitees): 
(a) conference and/or meeting facilities, (b) libraries, (c) non-retail
coffee bars, (d) support staff facilities (including word processing and
copy facilities), (e) lunchrooms and kitchen facilities for use by Tenant
and its employees and invitees, including vending machines and microwave ovens
for use by Tenant and its employees and invitees, subject, however, to Legal
Requirements, (f) storage space incidental to banking and general business
office purposes only, (g) bank and storage vaults, (h) cash vault, (i) telephone
call centers, (j) retail banking facilities and (k) as to each
Property, any lawful purpose for which such Property was used on the
Commencement Date.  Notwithstanding the
foregoing, throughout the Term, Tenant shall not use, or permit the use of, the
Leased Premises (or any part thereof) for any Prohibited Uses.  Tenant is not obligated to maintain occupancy
in all or any portion of the Leased Premises. 
For purposes of this Section 1.5, the term “banking” shall
be deemed to include all traditional banking activities as well as the sale of
insurance and annuities of all types, trust services, investment and financial
advice, and the sale of securities.  If
Tenant receives notice of any material directive, order, citation or of any
violation of any Legal Requirement or any insurance requirement, Tenant shall
endeavor to promptly notify Landlord in writing of such alleged violation and
furnish Landlord with a copy of such notice.


 


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


 


ARTICLE II


RENTAL AND OPERATING
EXPENSES


 


2.1   Rental Payments.


 


(a)           Beginning on the Commencement Date,
Tenant shall pay Annual Basic Rent, Excess Basic Rent, if any, Exchange Space
Rent, if any, and Additional Rent with respect to the Leased Premises, all as
applicable and as required by and in conformity with the provisions of this
Lease.  Annual Basic Rent and Exchange
Space Rent, if any, shall be due and payable in equal monthly installments on
the first day of each calendar month during the Term, in advance.  Tenant’s Operating Expense Share and Tenant’s
Tax Share shall be due and payable in accordance with Sections 2.2 and 2.3.  Unless otherwise specified herein, Excess
Basic Rent and Above Standard Services Rent shall be payable twenty (20) days
following Landlord’s submission to Tenant of an invoice therefor.


 


(b)           Beginning on the Commencement Date,
and continuing throughout the Term of this Lease, Tenant shall pay Annual Basic
Rent and Exchange Space Rent, if any, to Landlord.  The Annual Basic Rent payment made by Tenant
on the Commencement Date shall equal Five Hundred Fifty-Eight Thousand &
00/100 Dollars ($558,000) plus the amount set forth on Schedule 1
hereto.  Thereafter, Annual Basic Rent
shall be as set forth on Schedule 1 hereto.  


 


21

















 


Annual Basic Rent shall
be adjusted from time to time each time there is a change in the Annual Basic
Rent Factor or in Tenant’s Occupancy Percentage for a Property.  From and after the expiration of the Initial
Term through the expiration of the Renewal Term(s) (to the extent Tenant
renews and extends this Lease pursuant to Section 1.4 hereof),
Tenant shall pay Annual Basic Rent at the rate determined in accordance with
the provisions of Section 1.4.


 


(c)           Intentionally Omitted.


 


(d)           Throughout the Initial Term of this
Lease, but not thereafter, Tenant shall pay Excess Basic Rent, if any, to
Landlord to the extent that the same is due and payable pursuant to Section 10.5.  Excess Basic Rent, if any, shall be paid
annually, in arrears, for each Lease Year during the Initial Term.  Within ninety (90) days following the
expiration of each Lease Year during the Initial Term, Landlord shall advise
Tenant in writing of the Excess Basic Rent, if any, payable by Tenant for the
prior Lease Year and provide Tenant with a detailed calculation of the same.


 


(e)           If the Term commences for any portion
of the Leased Premises on a day other than the first day of a calendar month,
or if the Term for any portion of the Leased Premises expires on other than the
last day of a calendar month, then all installments of Rent that are payable on
a monthly basis with respect to such portion of the Leased Premises shall be
prorated for the month in which such Term commences or terminates, as the case
may be, and the installment or installments so prorated for the month in which
such Term commences or terminates, as the case may be, shall be paid in
advance.  Said installments for such
prorated month or months shall be calculated by multiplying the monthly installment
for the affected portion of the Leased Premises by a fraction, the numerator of
which shall be the number of days such Rent accrues during said commencement or
expiration month, as the case may be, and the denominator of which shall be the
actual number of days in the month.  If
the Term commences for any portion of the Leased Premises, or if the Term
expires on other than the first day of a calendar year, then all Rent payable
on an annual basis shall be prorated for such commencement or expiration year,
as the case may be, by multiplying such Rent by a fraction, the numerator of
which shall be the number of days of the Term during the commencement or
expiration year, as the case may be, and the denominator of which shall be the
actual number of days in such commencement or expiration year.  In such event, the foregoing calculation
shall be made as soon as is reasonably possible.  Landlord and Tenant hereby agree that the provisions
of this Section 2.1(e) shall survive the expiration or
termination of this Lease.


 


(f)            Tenant agrees to pay all Rent as
shall become due from and payable by Tenant to Landlord under this Lease at the
times and in the manner provided in this Lease, without abatement (except as
specifically provided in this Lease), demand, offset (except as specifically
provided in this Lease) or counterclaim, at Landlord’s address as provided
herein (or such other address in the continental United States as may be
designated in writing by Landlord from time to time).  Tenant shall have the right, at its option,
to pay Rent by means of electronic funds transfer to such account and
depository institution as Landlord shall specify from time to time upon Tenant’s
request.  All Rent owed by Tenant to
Landlord under this Lease shall bear interest from the date due thereof until
payment is received by Landlord at the Applicable Rate; provided that Landlord
shall not be entitled to receive interest during the first thirty (30) days
following the payment due date on any overdue amount for which Landlord
receives a late charge as 


 


22

















 


provided in Section 2.1(g).  All sums owed by Landlord to Tenant pursuant
to this Lease shall bear interest from the date due thereof until payment is
received by Tenant at the Applicable Rate. 
Any payments made by Landlord or Tenant to the other hereunder shall not
be deemed a waiver by such party of any rights against the other party.


 


(g)           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 Annual Basic
Rent is not received by Landlord on or before the fifth (5th) day of the month
for which it is due, and such amount shall remain unpaid for more than five (5) 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 Annual Basic Rent, and (ii) in the
event any payment of Excess Basic Rent, if any, or 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 properly abated or set-off by
Tenant pursuant to an express right to do so as set forth in this Lease or to
the extent that Tenant’s payment is deficient by an amount that is less than or
equal to one (1%) percent of the total amount due; 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.


 


(h)           Rent received by Landlord shall be
applied by Landlord in the following order: 
(i) Annual Basic Rent, (ii) Tenant’s Operating Expense Share, (iii) Tenant’s
Tax Share, (iv) Excess Basic Rent, if any, (v) Above Standard
Services Rent and (vi) to any remaining items of Rent that are due and
unpaid.  Subject to the foregoing
limitations, Tenant may, by written notice to Landlord with any Rent payment,
direct how Rent is to be allocated among one or more Properties.


 


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


 


2.2   Operating Expenses.


 


(a)           During each month of the Term of this
Lease, on the same date that Annual Basic Rent is due, Tenant shall pay to
Landlord, as Additional Rent, an amount equal to one-twelfth 


 


23

















 


(1/12) of the annual cost
of Tenant’s Occupancy Percentage of the Operating Expenses for the Properties
as hereinafter provided (the amount so payable by Tenant, “Tenant’s
Operating Expense Share”).  Tenant
agrees the amount of Operating Expenses may be estimated by Landlord for the
upcoming calendar year.  Landlord
reserves the right to reasonably re-estimate Operating Expenses (and Tenant’s
monthly installments of Tenant’s Operating Expense Share on account thereof) up
to one (1) time each calendar year; provided that any re-estimation made
during the course of any calendar year for purposes of adjusting Tenant’s
monthly installments falling due during the same calendar year shall be made on
not less than ninety (90) days’ prior notice to Tenant, which notice shall
include documentation that evidences and supports, in reasonable detail, the
basis and need for Landlord’s re-estimation of Operating Expenses.  Any overpayment or underpayment of Tenant’s
Operating Expense Share shall be reconciled after the period for which
estimated payments have been made by Tenant as expressed in Section 2.2(f).


 


(b)                               “Operating
Expenses,” for each calendar year, shall mean all expenses and costs of
every kind and nature (other than as set forth in Section 2.2(c))
that have accrued for a particular calendar year, as reasonably allocated by
Landlord and, except as otherwise expressly provided herein, computed in
accordance with GAAP, on an accrual basis and incurred in connection with the
servicing, repairing, maintenance and operation of the Properties during each
calendar year, including the expenses and costs set forth in items (i) through
(xiii) below:


 


(i)            wages and salaries, including taxes,
insurance and benefits, of all persons engaged in operations, on-site property
management, maintenance or access control, as reasonably allocated by Landlord
(excluding, however, executive personnel of Landlord, senior to the property
manager, and personnel to the extent engaged in the development and/or leasing
of the Properties);


 


(ii)           replacement costs, whether acquired
or leased, of tools and equipment and all costs of materials and supplies, to
the extent used in operations, maintenance and access control, as reasonably
allocated by Landlord;


 


(iii)                               cost
of all utilities, including electricity, water, gas, steam and sewer charges,
except to the extent, if any, that the cost thereof is separately metered and
billed to Tenant or any other occupants of the Properties or recovered by
Landlord (or for which Landlord is entitled to reimbursement, even if not
actually collected by Landlord) from Tenant or any other occupants of the
Properties as Above Standard Services Rent or otherwise;


 


(iv)          cost of repairing, maintaining and
cleaning the Common Areas of the Properties and the furniture and furnishings
therein;


 


(v)           cost of all maintenance and service
agreements and the equipment therein, including access control service, window
cleaning, mechanical, electrical and plumbing service contracts, including
elevator maintenance, janitorial service, security, landscaping maintenance,
garbage and waste disposal;


 


(vi)          cost of repairs and general
maintenance (excluding repairs, alterations and general maintenance to the
extent covered by proceeds of condemnation or insurance);


 


24

















 


(vii)         the cost, amortized over the useful
life of the asset in accordance with GAAP, with interest at Landlord’s then
prevailing borrowing rate, of all repairs and replacements of a capital nature,
structural and non-structural, ordinary and extraordinary, foreseen and
unforeseen, made by Landlord to any Building or the Common Areas (excluding
Floor Common Area on floors not leased in whole or in part by Tenant), all to
the extent necessary to operate, repair and maintain the Properties in
conformity with the requirements of this Lease and in accordance with the
accepted principles of sound management practices (and in conformance with
GAAP) as applied to the operation, repair and maintenance of Comparable
Buildings, but excluding (aa) costs to expand the Net Rentable Area of any
Property, (bb) except as otherwise expressly required by this Lease, costs to
upgrade or improve the general character or quality of any Property or (cc) for
any Property when Tenant’s Occupancy Percentage is greater than thirty-five
percent (35%), costs to replace (and not repair or maintain) any major
equipment or system unless approved by Tenant in a final Budget;


 


(viii)                       the
cost of all insurance premiums (a) required to be obtained by Landlord
pursuant to this Lease or (b) customarily obtained by the owners of
Comparable Buildings, including the cost of casualty and liability insurance,
rental loss insurance for the Property, insurance on Landlord’s personal
property located in and used in connection with the operation of the Property and
insurance covering losses resulting from perils and acts of terrorism on terms
specified in Article VI or as otherwise specified from time to time
by Landlord;


 


(ix)                               fair
market management fees to the property manager for the Property and fair market
rentals for a reasonably sized management office (if located in the Property);
provided that in no event shall Operating Expenses include any costs
attributable to a Building leasing office, and any space used for leasing and
management functions shall be reasonably allocated between leasing and
management functions for purposes of the pass-through of rental of the on-site
management office;


 


(x)                                  costs
of Remedial Work to the Common Areas (excluding Floor Common Areas on floors
not leased in whole or in part by Tenant); provided that Landlord shall not be
permitted to include any such costs as Operating Expenses unless (A) Landlord’s
failure to perform the Remedial Work constitutes a violation of Legal
Requirements, (B) Landlord is required to perform the Remedial Work by any
notice of violation, order, decree, permit, rule or regulation issued by
any Governmental Authority or (C) Landlord’s failure to perform the
Remedial Work would, in Landlord’s reasonable opinion, endanger the health,
safety or welfare of any person on or about the Properties;


 


(xi)                               HVAC
service for the Common Areas (excluding Floor Common Areas on floors not leased
in whole or in part by Tenant) as reasonably determined by Landlord using a
consistently applied method of allocation;


 


(xii)                            the
cost of operating, repairing, maintaining and cleaning the Parking Areas; and


 


25

















 


(xiii)         the cost of rental (a) under any
ground or underlying lease or leases existing on the Commencement Date for all
or any portion of any Property and (b) under any ground or other
underlying lease or leases hereafter entered into by Landlord for Parking Areas
and other Common Area facilities that are made available for Tenant’s use and
are, in fact, used by Tenant, but only for so long as Tenant continues such
use.


 


For purposes of this Section 2.2(b),
the phrase “as reasonably allocated by Landlord” shall mean as allocated by
Landlord on a reasonable and consistent basis based upon time, square footage
or other comparative measure that fairly reflects the Property’s appropriate
share of such costs and in a manner that does not result in a profit to
Landlord or result in a disproportionate burden to Tenant.


 


(c)                                 Anything
in the foregoing provisions hereof to the contrary notwithstanding, Operating
Expenses shall not include the following:


 


(i)            repairs or other work occasioned by
fire, windstorm or other casualty, the costs of which are reimbursed to
Landlord by insurers (or would have been so reimbursed to Landlord if Landlord
had been in full compliance with the insurance provisions of this Lease) or by
Governmental Authorities in eminent domain or by others; provided that in the
event of a loss, the amount of the loss not reimbursed (including the amount of
applicable deductibles) shall be includable in Operating Expenses;


 


(ii)           marketing costs, leasing commissions,
broker fees, legal fees, costs and disbursements and other expenses incurred in
connection with negotiations or disputes with tenants and prospective tenants,
or other occupants of the Properties and all other legal fees, whether or not
in connection with the foregoing;


 


(iii)          costs incurred in renovating or
otherwise improving or decorating or redecorating space for tenants or other
occupants of the Properties or vacant space in the Buildings (including any
allowances or inducements made to the tenants and prospective tenants or other
occupants or any costs for Remedial Work or compliance with Legal Requirements
for such tenants or such space);


 


(iv)          except to the extent that the same are
expressly provided in Section 2.2(b), costs incurred by Landlord
for alterations and replacements and other costs incurred of a capital nature,
including capital improvements, capital repairs, capital equipment and capital
tools that are considered capital expenditures under GAAP;


 


(v)           amortization (except as set forth in Section 2.2(b)(vii))
and depreciation;


 


(vi)          expenses in connection with providing
Above Standard Services or similar services or benefits that are not Building Standard
Services to Tenant or to any other occupants of the Properties;


 


(vii)         costs incurred due to the violation by
Landlord or any tenant or other person (other than Tenant, its agents,
employees or contractors) of the terms and conditions of any lease or other
agreement pertaining to the Properties or of any Legal Requirement;


 


26

















 


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


 


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


 


(x)                                  overhead
and profit increment and other fees (including management fees or rental for a
management office) paid to Landlord or subsidiaries or affiliates of Landlord
or its partners for services on or to the Property, to the extent that the
costs of such services exceed competitive costs for such services rendered by
persons or entities of similar skill, competence and experience, other than
Affiliates of Landlord;


 


(xi)                               property
management fees at any Property in excess of two and one-half percent (2.5%) of
Gross Revenues for such Property; except that for all Tenant Managed
Properties, all property management fees shall be excluded from Operating
Expenses, and, in lieu thereof, (A) Tenant shall be solely responsible for
paying the property management fees due the Tenant Designated Submanager and (B) Tenant
shall pay Landlord a property management fee equal to one percent (1%) of Gross
Revenue for such Tenant Managed Property that is paid by Tenant minus one and
one-half percent (1.5%) of Gross Revenue, if any, for such Tenant Managed
Property that is paid by non-Tenant sources;


 


(xii)                            principal,
points, fees and interest on any debt;


 


(xiii)                         rental
under any ground or underlying lease or leases hereafter entered into by
Landlord, except for rentals under leases for Parking Areas or other Common
Area facilities that are made available for Tenant’s use and are, in fact, used
by Tenant;


 


(xiv)                         Landlord’s
general overhead and administration expenses;


 


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


 


(xvi)                         any
cost or expense to the extent Landlord is entitled to payment or reimbursement
from any tenant (including Tenant), insurer or other person (other than through
payment of its proportionate share of Operating Expenses) or for which any
tenant (including Tenant) pays third persons;


 


(xvii)                      costs
incurred in installing, operating and maintaining any specialty facility such
as an observatory, broadcasting facilities (other than the Building’s music
system, life support and security system), and to the extent not available to
Tenant (or, if available to Tenant, Tenant nevertheless elects not to (and does
not) utilize the same), the costs of any luncheon club, athletic or
recreational club or facility, net of revenues generated thereby;


 


(xviii)                   Intentionally
Omitted;


 


27














 


(xix)         any fines, penalties, legal judgments
or settlements or causes of action by or against Landlord; and


 


(xx)          Real Estate Taxes and any fines,
penalties or interest payable in connection therewith.


 


(d)                                 Landlord
shall use its reasonable efforts to make payments on account of Operating
Expenses in a time and manner to obtain the appropriate discounts or rebates
available.  Landlord shall operate the
Properties in an efficient manner and exercise reasonable efforts to minimize
Operating Expenses consistent with maintaining services at a level consistent
with Comparable Buildings.  In addition,
with respect to janitorial services for the Leased Premises only, Tenant shall
have the right, upon sixty (60) days written notice to Landlord, to separately
contract for such services.  If Tenant
makes such election, Operating Expenses shall exclude the cost of providing
janitorial services to other tenants and occupants of the Building and all
other portions of the Property (except for Common Areas) during the period of
time that Tenant separately contracts for its own janitorial services, and the
calculation of Tenant’s Operating Expense Share shall be adjusted so that
Tenant receives the benefit of an appropriate credit for its payment of
janitorial expenses allocable to its Leased Premises.


 


(e)                                  In
the event any Property is not one hundred percent (100%) occupied during any
year, appropriate adjustments shall be made (on a consistent basis from Lease
Year to Lease Year) to those components of Operating Expenses which vary with
Building occupancy, so as to calculate Operating Expenses as though the
Building had been one hundred percent (100%) occupied in such year.  The average percentage of Building occupancy
during any Lease Year shall be determined (on a Property by Property basis) as
a fraction, the numerator of which is the sum of the Net Rentable Area of total
leased space in the Building at the Property on the first day of each month
during such year divided by twelve (12) and the denominator of which is the Net
Rentable Area of the Building at the Property. 
The foregoing notwithstanding, Landlord shall not (i) recover from
Tenant more than Tenant’s Occupancy Percentage of the grossed-up Operating
Expenses for a Property or (ii) recover from Tenant and other tenants of
any Property an amount in excess of one hundred percent (100%) of the total
Operating Expenses paid or incurred by Landlord with respect to such Property.


 


(f)                                    Within
one hundred twenty (120) days after the end of each calendar year during the
Term or as soon thereafter as possible in the exercise of reasonable diligence,
Landlord shall provide Tenant a statement (the “Operating Expense Statement”)
prepared by Landlord showing Operating Expenses for such calendar year broken
down by component expenses, in reasonable detail, and calculating Tenant’s
Operating Expense Share for the applicable year and the prior year.  The Operating Expense Statement shall be
certified by Landlord’s group controller or other officer knowledgeable of the
facts certified to therein that, to the best of his or her knowledge, the
Operating Expense Statement has been prepared in accordance with the
definitions and provisions pertaining to Operating Expenses contained in this
Lease.  In the event that an Operating
Expense Statement indicates that Tenant owes Landlord additional amounts on
account of Tenant’s Operating Expense Share for said calendar year, Tenant
shall pay the amount due within thirty (30) days after delivery of the
Operating Expense Statement. 
Notwithstanding any other provision of this Lease, Landlord shall be
estopped from amending, and hereby waives the right to amend, any Operating
Expense Statement not amended by 


 


28

















 


Landlord within three (3) years
after the end of the calendar year to which said Operating Expense Statement
applies, nor shall Landlord have the right through any other procedures or
mechanism to collect any Operating Expense not included on the pertinent
Operating Expense Statement after the third anniversary of the last day of the
calendar year to which said Operating Expense Statement applies, unless before
said third anniversary Landlord has delivered to Tenant a revised Operating
Expense Statement reflecting such revised Operating Expense (with a reasonably
detailed explanation of the reasons for any such revision) and made a written
demand for payment of said Operating Expense.


 


(g)           Any Operating Expense Statement or
other notice from Landlord pursuant to this Section 2.2 shall be
subject to Tenant’s rights of review and audit set forth in Section 2.4.  Pending the resolution of any dispute,
however, Tenant shall make payments in accordance with said Operating Expense
Statement or other notice.


 


2.3   Real Estate Taxes.


 


(a)           Tenant shall pay to Landlord, as
Additional Rent, an amount equal to Tenant’s Occupancy Percentage of Real
Estate Taxes for each Property that become due and payable during the Term of
this Lease as hereinafter provided. 
Landlord shall deliver to Tenant a copy of each Real Estate Tax invoice
received by Landlord, together with a written statement (“Tax Statement”)
setting forth (i) the amount of the Real Estate Taxes set forth on the
invoice, (ii) the Property for which such Real Estate Taxes relate and (iii) Tenant’s
Occupancy Percentage of such Real Estate Taxes, prorated on a per diem basis if
only a part of the period for which such Real Estate Taxes relate falls within
the Term of this Lease and, with respect to Real Estate Taxes for which a
discount is available for early payment, discounted to reflect the greatest
possible discount available to Landlord for such early payment, regardless of
when such taxes are actually paid and regardless of whether Landlord actually
obtains a discount for early payment (the amount so payable by Tenant with
respect to each such invoice and in the aggregate, as applicable, “Tenant’s
Tax Share”).  Tenant shall pay Tenant’s
Tax Share to Landlord within thirty (30) days following Tenant’s receipt of the
Tax Statement evidencing same.


 


(b)           “Real Estate Taxes” shall mean
all real estate taxes, assessments and other governmental levies and charges,
general and special, ordinary or extraordinary, of any kind and nature
(including any interest on such assessments whenever the same are permitted to
be paid in installments) which may presently or hereafter be imposed, levied,
assessed or confirmed by any lawful taxing authorities which may become due and
payable out of or for, or which may become a lien or charge upon or against the
whole, or any part, of the Properties, including taxes imposed on (i) the
gross rents or gross receipts (but not the net income) of the Properties and (ii) personal
property in the Properties owned by Landlord and used in connection with the
Properties, but only to the extent that the same would be payable if the
Properties were the only property of Landlord. 
If at any time during the Term the present system of ad valorem taxation
of real property is changed or supplemented so that in lieu of or in addition
to the ad valorem tax on real property there shall be assessed on Landlord or
the Properties any tax of any nature that is imposed in whole or in part, in
substitution for, addition to, or in lieu of any tax that would otherwise
constitute a Real Estate Tax, such tax shall be included within the term “Real
Estate Taxes,” but only to the extent that the same would be payable if the
Properties were the only 


 


29

















 


property of
Landlord.  Such taxes may include a
capital levy or other tax on the gross rents or gross receipts (but not the net
income) of the Properties or similar tax, assessment, levy or charge measured
by or based, in whole or in part, upon any such gross rents or gross receipts.  There shall be excluded from Real Estate
Taxes (i) any realty transfer or similar taxes imposed on Landlord, (ii) taxes
and assessments attributable to the personal property of other tenants, (iii) federal,
state and local taxes on income, (iv) death taxes, (v) franchise
taxes and (vi) any taxes (but not including ad valorem property taxes)
imposed or measured on or by the net income of Landlord from the operation of
the Property or imposed in connection with any change of ownership of the
Property.  In no event shall Real Estate
Taxes be included on the amount, if any, by which the value of leasehold
improvements of any other tenant of the Building hereafter made (or leasehold
improvements already existing and separately charged as an expense to be paid
by such tenant) exceed the value of leasehold improvements generally found in
the Building.  In the case of Real Estate
Taxes that may be paid in installments, only the amount of each installment
accruing during a calendar year shall be included in Real Estate Taxes during
each calendar year.


 


(c)           At Tenant’s request so long as Tenant’s
Occupancy Percentage at a Property is at least thirty-five percent (35%),
Landlord shall contest or appeal the validity or amount of Real Estate Taxes
for such Property by appropriate proceedings. 
Landlord may also contest or appeal the validity or amount of Real
Estate Taxes for any Property on Landlord’s own initiative.  Tenant shall pay as Additional Rent Tenant’s
Occupancy Percentage of Landlord’s reasonable, out of pocket expenses incurred
in any such appeal.  Real Estate Taxes
with respect to a Property that is the subject of an appeal filed by or on
behalf of Landlord shall be paid on the basis of the amount reflected in the
tax bill and shall not be adjusted until the final determination of the appeal.  Within thirty (30) days following such final
determination, Landlord will refund to Tenant, or Tenant shall pay to Landlord,
as applicable, the difference, if any, between Tenant’s Tax Share payments
previously made by Tenant and the finally determined amount of Tenant’s Tax
Share.


 


(d)           Any Tax Statement or other notice
from Landlord pursuant to this Section 2.3 shall be subject to
Tenant’s rights of review and audit set forth in Section 2.4.  Pending the resolution of any dispute,
however, Tenant shall make payments in accordance with said Tax Statement or
other notice.


 


2.4   Budget; Audit Rights.


 


(a)           On or before June 1 of each
calendar year during the Term of this Lease, Landlord shall deliver to Tenant
for Tenant’s review and comment, a written estimate in reasonable detail of the
projected budget for Operating Expenses and Real Estate Taxes for each Property
for the next succeeding calendar year (the “Budget”).  The Budget shall show (i) the estimated
amount of Operating Expenses, Tenant’s Operating Expense Share, Real Estate
Taxes and Tenant’s Tax Share for each Property, for the next succeeding
calendar year, (ii) the estimated amount for each major category of
expense that is expected to be included in Operating Expenses for each Property
during the next succeeding calendar year, including on a Property by Property
basis, any items that constitute capital expenditures in accordance with this
Lease and the amount thereof to be amortized during such calendar year, (iii) the
estimated rates to be charged by Landlord for Above Standard Services for each
Property for which Tenant has requested the 


 


30

















 


same during the next
succeeding calendar year and (iv) the actual amounts for all such items
for the prior calendar year.  It is
understood and agreed by Landlord and Tenant that the Operating Expenses and
Real Estate Taxes in the Budget shall be estimated on a reasonable good faith
basis taking into consideration, among other things, the actual Operating Expenses
and Real Estate Taxes for the then current calendar year, a good faith estimate
of the rate of cost increases during the then current calendar year, the actual
known prospective increases to each item in the Budget and a good faith
estimate for contingencies for the next succeeding calendar year.  Tenant may disapprove a portion of a proposed
Budget only if such portion of the Budget fails to reflect the reasonable and
necessary Operating Expenses and Real Estate Taxes to operate, repair and
maintain the Properties in conformity with the requirements of this Lease and
in accordance with the accepted principles of sound management practices as
applied to the operation, repair and maintenance of Comparable Buildings;
provided that for any Property when Tenant’s Occupancy Percentage is greater
than thirty-five percent (35%), (i) Tenant may disapprove Landlord’s
decision to replace (and not repair or maintain) any major equipment or system
unless Landlord establishes, by certification of a qualified engineer for whom
Tenant has no reasonable objection, that the equipment or system in question is
beyond its useful life and that continued repair or maintenance (and not
replacement) is not commercially practicable and (ii) Tenant may require
Landlord to replace (and not repair or maintain) any major equipment or system
if Tenant establishes, by certification of a qualified engineer for whom
Landlord has no reasonable objection, that the equipment or system in question
is beyond its useful life and that continued repair or maintenance (and not
replacement) is not commercially practicable. 
If Tenant disapproves a portion of a proposed Budget, Tenant shall so
notify Landlord in writing, which notification shall state, in reasonable
detail, the item or items of the proposed Budget disapproved by Tenant and the
basis for such disapproval.  Landlord and
Tenant shall negotiate in good faith to resolve any differences concerning any
proposed Budget.  Landlord shall deliver
to Tenant the proposed final Budget for the next succeeding calendar year and
the calculation of Tenant’s Occupancy Percentage thereof on or before July 15
of each calendar year; provided that if Tenant fails to approve a proposed
Budget on or before July 1 of a preceding calendar year, and if the parties
have been unsuccessful in their efforts to resolve any disagreements, either
Landlord or Tenant may at any time thereafter submit the Budget for the next
calendar year (or any portion thereof) to dispute resolution in accordance with
the provisions of Article XII of this Lease, and, in such event,
Landlord shall deliver the final Budget to Tenant within thirty (30) days
following the completion of the dispute resolution process.  Notwithstanding the foregoing, (i) if
the dispute resolution process regarding the Budget is not completed by January 1
of the calendar year to which such proposed Budget relates, then (A) the
costs set forth on the proposed Budget shall be used for all items not the
subject of a dispute, and (B) to the extent applicable, the prior year’s
budgeted costs shall be used for all items of a proposed Budget that are the
subject of a dispute and (ii) in the event that the actual Operating
Expenses or Real Estate Taxes incurred by Landlord during a calendar year
exceed Landlord’s estimated Operating Expenses and Real Estate Taxes (including
contingencies) for such year as set forth on an approved Budget, Landlord may
prepare and submit a revised Budget to Tenant for Tenant’s review and approval
(but not more frequently than once during any calendar year).  Upon completion of the dispute resolution
process, the new year’s Budget shall be correspondingly adjusted and Tenant’s
monthly payment of Tenant’s Operating Expense Share shall likewise be
adjusted.  If Landlord determines during
the course of a calendar year that a Building is in need of capital repairs,
replacements or improvements that are not included in the approved Budget for
such Building 


 


31

















 


for such calendar year,
Landlord shall so advise Tenant, and Tenant shall review and approve or
disapprove the proposed capital repair, replacement or improvement in
conformity with the procedures outlined in this Section 2.4(a) as
if such repair, replacement or improvement were originally included by Landlord
as part of the budget process described above.


 


(b)           Tenant, at Tenant’s sole cost and
expense, shall have the right, to be exercised by notice given to Landlord
within three (3) years after receipt of an Operating Expense Statement,
Tax Statement or other invoice, to audit and/or inspect that portion of
Landlord’s books and records pertaining to such Operating Expenses, Real Estate
Taxes or other components of Additional Rent, as applicable, for such calendar
year; provided such audit and/or inspection commences within ninety (90) days
after Tenant’s notice to Landlord and thereafter proceeds reasonably to
conclusion, and further provided that Tenant may audit any single year only
once unless Landlord has subsequently made revisions to any Operating Expense
Statement, Tax Statement or other components of Additional Rent that impact
Tenant’s Operating Expense Share, Tenant’s Tax Share or other Additional Rent
payment.  Tenant may conduct such audit
and/or inspection of Landlord’s books with Tenant’s own employees, or through
an accountant or other agent selected by Tenant, or both in combination.  Tenant shall require any accountant or agent
selected by Tenant to conduct or assist in such audit and/or inspection to
execute and deliver to Landlord a confidentiality agreement substantially in
the form attached hereto as Exhibit C.  Landlord agrees to cooperate in good faith
with Tenant in the conduct of any such audit and/or inspection, and to make
Landlord’s books and records of and relating to Operating Expenses, Real Estate
Taxes or other components of Additional Rent, as applicable, available to
Tenant or Tenant’s agents at one (1) single location.  If Tenant’s audit and/or inspection shows
that Landlord’s calculation of Tenant’s Operating Expense Share, Tenant’s Tax
Share or other components of Additional Rent for the audited/inspected calendar
year or years (which shall in no event be prior to the two (2) calendar
years immediately preceding the most recently completed calendar year) was
overstated by more than four percent (4%) with respect to any Property, then
Landlord shall pay, within thirty (30) days after Tenant’s request, Tenant’s
actual reasonable audit/inspection out-of-pocket fees applicable to the
audit/inspection of said calendar year statements for such Property.  Upon completion of the audit and/or
inspection, if the calculation of Tenant’s Operating Expense Share, Tenant’s
Tax Share or other components of Additional Rent indicates that Tenant overpaid
Rent for any audited calendar year, Landlord shall pay Tenant (in the form of a
credit against Rent next due or, upon expiration of this Lease, in the form of
Landlord’s check within thirty (30) days after the completion of such audit
and/or inspection) an amount equal to such overpayment.  In the event of any such audit or inspection,
Landlord shall cause the books and records to be made available during such
normal business hours as are prescribed by Landlord at Landlord’s headquarters
or main office, which shall be located in the continental United States.  In any case, should Landlord disagree with
the results of Tenant’s audit, Landlord and Tenant shall refer the matter to a
mutually acceptable independent certified public accountant, who shall work in
good faith with Landlord and Tenant to resolve the discrepancy.  The fees and costs of such independent
accountant to which such dispute is referred shall be borne by the unsuccessful
party and shall be shared pro rata to the extent each party is unsuccessful as
determined by such independent certified public accountant, whose decision
shall be final and binding.


 


32

















 


ARTICLE III


BUILDING SERVICES, IDENTITY, SIGNAGE, AND MANAGEMENT


 


3.1   Building Standard and Above Standard
Services.  During the Term, Landlord
shall furnish the following services to Tenant:


 


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


 


(i)            At all times, hot (i.e., thermostat
set in the range of 105° to 110° Fahrenheit for comfort and energy conservation
purposes but with the capability to produce hot water for specified purposes at
140° Fahrenheit if requested by Tenant) and cold domestic water in all
restrooms, drinking fountains, kitchen and pantry areas within the Leased
Premises and all common use restrooms, kitchen and pantry areas at locations
provided for general use;


 


(ii)           During Building Operating Hours, HVAC
sufficient to maintain temperatures that are reasonably required for
comfortable use and occupancy of all portions of the Leased Premises designed
for occupancy by persons; provided that Landlord shall have the right, but not
the obligation, at Landlord’s sole cost and expense, to install and operate
such utility submeters as Landlord deems necessary to measure utility demand
and usage within and outside the Leased Premises (and, in such event, (A) Tenant
shall pay Tenant’s allocable share of any such submetered costs as Additional
Rent at Landlord’s actual cost of providing the same, without mark-up and
reflecting the largest possible bulk-purchase or other discounts available to
Landlord from the utility provider and (B) all such submetered utility
costs shall be excluded from Operating Expenses as provided in Section 2.2(b)(iii));


 


(iii)          Electric lighting service for all
Common Areas, including the Parking Areas, in conformity with the practices for
each Property on the Commencement Date as set forth in the applicable Lease
Supplement;


 


(iv)          Janitorial service to the Leased
Premises in conformity with the janitorial specifications for each Property as
set forth in the applicable Lease Supplement;


 


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


 


(vi)          At all times, dedicated electrical
capacity, transformed to a panel box located in the core of each floor of the
Leased Premises or to the location of the panel 


 


33

















 


boxes servicing the Leased Premises on the
Commencement Date, in an amount not less than the dedicated capacity available
to the Leased Premises on the Commencement Date; provided that Landlord shall
have the right, but not the obligation, at Landlord’s sole cost and expense, to
install and operate such utility submeters as Landlord deems necessary to
measure utility demand and usage within and outside the Leased Premises (and,
in such event, (A) Tenant shall pay Tenant’s allocable share of any such
submetered costs as Additional Rent at Landlord’s actual cost of providing the
same, without mark-up and reflecting the largest possible bulk-purchase or
other discounts available to Landlord from the utility provider and (B) all
such submetered utility costs shall be excluded from Operating Expenses as
provided in Section 2.2(b)(iii));


 


(vii)         Security for the Projects, Buildings
and Common Areas, including any Parking Areas, substantially similar to the
security services existing immediately prior to the Commencement Date; provided
that Tenant is solely responsible for compliance with all Legal Requirements in
effect from time to time pertaining to banking security systems, devices,
services, equipment and procedures for the Leased Premises and that Landlord
shall have no responsibility or liability therefor; further provided that at
Major Properties, for so long as Tenant’s Occupancy Percentage at such Major
Property is fifty percent (50%) or greater, Tenant shall have the right, at
Tenant’s election, to assume responsibility for and provide security for such
Major Properties and the Buildings and Common Areas thereat, including any
Parking Areas.  The security services
provided by Tenant shall be at a level substantially similar to the level of
security services existing at the Major Property immediately prior to the
Commencement Date or, if greater, at a level then commensurate with Comparable
Buildings.  The cost of providing
security at such Major Properties shall be paid (or reimbursed to Tenant) by
Landlord as an Operating Expense, except that if Tenant desires security
services in excess of those commensurate with the prevailing standard as
provided above, Tenant shall bear the cost for such additional security as
Above Standard Services Rent.


 


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


 


(ix)           At all times, elevator cab passenger
service to the Leased Premises, subject to temporary cessation for ordinary
repair and maintenance (but as to each floor of the Leased Premises, such
temporary cessation for ordinary repair and maintenance shall not occur
simultaneously for all passenger cabs serving such floor), and to security
measures or other means of controlling access imposed by Landlord after
Building Operating Hours, on Holidays and during times when life safety systems
override normal building operating systems;


 


(x)            Maintenance and cleaning of the
Properties, Building and Common Areas, including the Common Areas on each floor
of the Building on which any part of the 


 


34

















 


Leased Premises are situated, the Parking Areas and
all exterior landscaped areas in and around the Property;


 


(xi)           During Building Operating Hours,
shared access to and use of, in common with Landlord and other tenants of the
Building, a loading dock facility for the Building (if and to the extent that
such facility exists on the Commencement Date), subject to such reasonable rules and
regulations as are promulgated by Landlord from time to time pursuant to Section 4.4;


 


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


 


(xiii)         Trash removal from the Property at
designated locations.


 


All costs incurred by Landlord in connection with
providing Building Standard Services shall be included in Operating Expenses.


 


The foregoing provisions of this Section 3.1(a) notwithstanding,
the enumeration of particular building services is not a representation or
agreement by Landlord that each Building Standard Service is available in
specific quantities or amounts, or to particular standards or specifications at
each Property.  Landlord and Tenant
acknowledge that Tenant owned and operated each of the Properties prior to the
Commencement Date and Tenant is fully aware of the capabilities and limitations
of the Building systems.  Nothing herein
shall be deemed to be a covenant or agreement of Landlord, or a representation
or warranty of Landlord, express or implied, that Landlord shall improve the
level of service provided by existing Property systems.  With respect to the Building Standard
Services referenced in Section 3.1(a)(i), (ii), (v) and (ix),
Landlord shall furnish such services in such quantities and at such levels that
are at least equal to the quantities and levels being furnished at each
Property immediately prior to the Commencement Date, with Tenant acknowledging
and agreeing that Landlord shall not be required to provide during the Term
greater quantities or higher levels of service than is capable of being
provided with the machinery, equipment and systems that existed immediately
prior to the Commencement Date and that Landlord has no obligation to replace
or improve such machinery, equipment or systems other than in the ordinary
course as may be consistent with sound building management practices or as
required by Section 5.5.


 


(b)                                 If
Tenant requires electrical energy for use in the Leased Premises in excess of
the capacities described in Section 3.1(a)(vi), and if electric
energy for such additional requirements is available to Landlord, Landlord
shall, upon Tenant’s request and at Tenant’s sole cost and expense, furnish and
install such additional wires, risers, conduits, feeders, switchboards and
circuit panels as reasonably may be required to supply such additional
requirements of Tenant.  If any portions
of the Leased Premises or any of Tenant’s electrical equipment requires HVAC
service in excess of Building Standard HVAC service, the same shall be
installed, or the installation supervised by Landlord, on Tenant’s behalf, and
Tenant shall pay all design, installation, submetering, repair, maintenance,
replacement and operating costs relating thereto, unless such HVAC service is
used in common with other tenants of the Building, in which event such costs
shall be reasonably allocated by Landlord among Tenant and such other
tenants.  The location and specifications
of any such supplemental HVAC units shall be subject to Landlord’s 


 


35

















 


prior written approval,
which approval may not be unreasonably withheld or delayed.  In connection with the operation of any
supplemental HVAC units serving the Leased Premises, to the extent a particular
Property shall have available chilled water capacity, during Building Operating
Hours Tenant may use such available chilled water for said supplemental HVAC
units, and Landlord shall not charge Tenant for such service.  If Tenant shall require chilled water service
in amounts not otherwise available or during other than Building Operating
Hours, Tenant shall pay Landlord for the cost of providing such services as
Above Standard Services Rent.


 


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


 


(d)           Landlord shall furnish Tenant at
least twenty four (24) hours prior written notice of any non-emergency
suspension or interruption in the Building Standard Services scheduled by
Landlord for routine repairs or maintenance; provided that if such suspension
or interruption will render the Building Common Areas or the Leased Premises
inaccessible, without electric power, without cold domestic water or sanitary
sewer service or otherwise untenantable in the ordinary course, Landlord shall
endeavor to provide Tenant with not less than ninety (90) days’ prior notice
thereof.


 


(e)           To the extent the services described
in this Section 3.1 require electricity, water or other utility
services supplied by public utilities, Landlord shall not be deemed to be in
breach of Landlord’s covenants hereunder because of the failure of a public
utility to supply the required services so long as Landlord uses reasonable
efforts to cause the applicable public utilities to furnish the same.  Except as expressly provided in Section 3.1,
failure by Landlord to furnish the services described in this Section 3.1,
or any cessation thereof for reasons beyond Landlord’s control, shall not
render Landlord liable for damages to either person or property, nor be
construed as an eviction of Tenant, nor work an abatement of Rent, nor relieve
Tenant from fulfillment of any covenant or agreement hereof.  In addition to the foregoing and except as
otherwise provided below, should any of the equipment or machinery, for any
cause, fail to operate or function properly, Tenant shall have no claim for a
rebate of Rent or for damages on account of any interruption in services occasioned
thereby or resulting therefrom so long as Landlord uses reasonable efforts to
promptly repair said equipment or machinery and to restore said services.


 


36

















 


(f)            Notwithstanding the foregoing, in
the event Landlord fails to provide any of the services Landlord is obligated
to provide under this Lease, and if such failure adversely impacts Tenant’s use
or enjoyment of the Leased Premises or any portion thereof (and Tenant actually
ceases to use the affected area for business operations), and if such failure
of Landlord to provide services continues for more than three (3) consecutive
business days after written notice from Tenant to Landlord and all Notice
Parties for any reason (except due to Force Majeure Events or gross negligence
or willful misconduct of Tenant or Tenant’s agents, employees or contractors)
(any such failure, a “Service Failure”), then all Rent due under this
Lease for the affected portion of the Leased Premises at the affected Property
or Properties shall be abated for the entire duration of the Service
Failure.  In addition to Tenant’s
foregoing rights, Tenant shall have the right, but not the obligation, to cure
Services Failure in the manner expressed in Section 7.1(f) and
to recover the reasonable cost thereof from Landlord as expressed in Article XIII.


 


3.2   Keys and Locks.  Tenant currently possesses keys and/or access
cards, as applicable, for each lockset on doors entering the Leased Premises
from public areas for use by its current employees maintaining offices in the
Leased Premises.  Additional keys and/or
access cards, including keys and/or access cards for new employees of Tenant
and replacement keys and/or access cards for lost or damaged keys and/or access
cards will be furnished by Landlord upon an order signed by Tenant and at
Tenant’s sole cost and expense.  Tenant
shall be permitted to install additional locks or other access control devices
in the Leased Premises provided Tenant furnishes Landlord with a duplicate set
of keys or a master key and/or access cards to all such locks other than those
locks securing Security Areas.  Upon
termination of this Lease, Tenant shall surrender to Landlord all keys and/or
access cards to any locks on doors entering or within the Leased Premises, and
shall provide Landlord with the combination of all locks for safes, safe
cabinets and vault doors, if any, within the Leased Premises; provided that if
Tenant terminates this Lease with respect to less than all of the Leased
Premises at a Property and, at the time of such termination, the Leased
Premises was served by an access control or other security system installed by
Tenant in lieu of or in addition to the access control or security systems
serving the Building generally, Tenant shall have no obligation to cause the
terminated portion of the Leased Premises to continue to be served by any such
supplemental access control or security systems.


 


3.3   Graphics and Building Directory.


 


(a)           On any full floor of the Leased
Premises, and at each location within any Property where Tenant maintains such
signage as of the Commencement Date, Tenant may, using Tenant’s standard
corporate signage and graphics (as Tenant may change its standard corporate
signage and graphics from time to time) install and maintain on or adjacent to
entrances to the Leased Premises Tenant’s name, numerals and/or logo
designating the appropriate suite numbers and departments occupying such floor.


 


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


 


37














 


3.4   Building Identity; Signage; Exclusivity.


 


(a)           During the Term of this Lease, for so
long as the herein named Tenant, or its Affiliates, shall remain in possession
of at least five percent (5%) of the Net Rentable Area of a Property, or shall
continue to operate a retail bank at such location, neither the Building name
(if such Building is named for the herein named Tenant as of the Commencement
Date), nor Tenant’s exterior building signage (at all Properties) may be
changed by Landlord without Tenant’s consent, which consent may be withheld in
Tenant’s sole and absolute discretion. 
If a Property is named for the herein named Tenant as of the
Commencement Date and during the Term hereof Tenant’s corporate name, identity
or logo is changed; provided that the herein named Tenant, or its Affiliates,
shall remain in possession of not less than five percent (5%) of the net
Rentable Area of a Property, or shall continue to operate a retail bank at such
location, Tenant shall have the right, upon ninety (90) days prior written
notice to Landlord, to change the name of the Building (and/or any Building
signage containing such prior name or logo) to include the herein named Tenant’s
new corporate name, identity, or logo; provided that Tenant shall pay for all
signage costs and all of Landlord’s other out-of-pocket costs associated with
the removal of the old, and installation of the new, signage, and further
provided that such new signage shall satisfy all applicable Legal Requirements
and shall have been approved in advance by Landlord, such approval not to be
unreasonably withheld or delayed.  In
addition, at any time during or after the Term of this Lease Tenant shall have
the right, in its sole and absolute discretion, upon ninety (90) days prior
written notice to Landlord, to require Landlord to change the name of any
Property so as to remove Tenant’s identity therefrom; provided that Tenant
shall pay for the cost of removing Tenant’s name from all Building
signage.  Tenant shall repair any damage
to the interior or exterior of the Buildings caused by Tenant’s installation,
maintenance, use, relocation or removal of signage; provided that Tenant shall
not be obligated to repair any damage to the interior or exterior of the
Building caused by the removal of signage so long as Tenant, at Tenant’s sole
cost and expense, patches any holes or covers over (by sign blanks of similar
size, shape and general appearance) such signage areas on the facades of the
Buildings and on and in the other interior and exterior Common Areas.


 


(b)           During the Term of this Lease, for so
long as the herein named Tenant, or its Affiliates, shall remain in possession
of office space or shall continue to operate a retail bank at such location (i) Landlord
may not remove or alter any Tenant signage or graphics existent on the
Commencement Date (other than interior signage or graphics on floors no longer
leased, in whole or in part, by Tenant), (ii) the Project shall not be
named for any other Building tenant, (iii) no other Building tenant shall
have the right, without Tenant’s consent, which Tenant may grant or withhold in
Tenant’s sole discretion, to erect signage on the roof of the Building or at or
around the top level of the exterior of the Building, (iv) no other
Building tenant, other than retail tenants and tenants occupying one or more
whole floors within the Building, shall be permitted any exterior monument,
pole or building-mounted signage and (v) all “For Sale” and “For Lease”
signage and advertising shall indicate, if such be the case, that Tenant is not
vacating and will remain an occupant at the Building or, if Tenant is vacating
the Building, such signage and advertising shall identify the date on which
Tenant is anticipated to vacate the Building; provided that Landlord shall not post
any signage or make any advertisement indicating that Tenant intends to cease
retail banking operations at a Property unless and until Tenant shall have made
any required public announcements or given any required notices to depositors
regarding such event.


 


38

















 


(c)           During the Term of this Lease, for so
long as the herein named Tenant, or its Affiliates, shall remain in possession
of at least thirty-five percent (35%) of the Net Rentable Area of a Property,
or shall continue to operate a retail bank at such location, Landlord will not
allow any portion of the Property (other than the portion of the Property then
leased to Tenant) to be used for any retail banking or savings and loan,
without Tenant’s prior written consent, which consent may be withheld in Tenant’s
sole and absolute discretion.  For
purposes of this Agreement, banking and savings and loan shall mean any retail
banking use or purpose, which shall include receiving deposits or making loans
to the general public, whether done by a state bank, national bank, savings and
loan association, trust company, credit union, mortgage broker or company, or
other entity, whether by walk-up, drive-in teller facility or otherwise.  If Landlord shall intend to lease space to
any other bank or savings and loan for the operation of a retail banking or
savings and loan at a time when the herein named Tenant, or its Affiliates,
shall occupy less than thirty-five percent (35%) of the Net Rentable Area of a
Property, and shall not operate a retail banking facility at the Building,
Landlord shall advise Tenant of Landlord’s intentions, and Tenant shall have
the right, exercisable by notice in writing to Landlord within twenty (20) days
following Landlord’s notice to Tenant, to re-lease and re-occupy the retail
banking location at the Building at the Rent last payable in respect of such
Leased Premises, failing which Landlord may proceed with Landlord’s lease as
proposed.


 


(d)           During the term of this Lease, Tenant
shall have the right, at Tenant’s expense, to erect and maintain such exterior
building signage displaying the corporate name, identity or logo of the herein
named Tenant, or its Affiliates, as Tenant may from time to time desire,
including monument signage at up to two (2) corners of the Land, and, in
such event, Tenant will have the exclusive right to place signage on any such
monuments so erected by Tenant, subject to Landlord’s approval, which approval
shall not be unreasonably withheld or delayed. 
In connection with its installation, repair, maintenance and removal of
any exterior or monument signage, Tenant, at Tenant’s sole cost and expense,
shall comply with all Legal Requirements.


 


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


 


(f)            Tenant’s exterior and monument
signage existing as of the Commencement Date is hereby deemed to be approved by
Landlord.  Any changes to the existing
exterior and/or monument signage by Tenant (including changes to the location,
size, shape, color, and content of the exterior and/or monument signage) shall
be subject to approval by Landlord, which approval may not be unreasonably
withheld or delayed.  Landlord agrees
that Tenant shall have the right to change such signage in the event of a
change in Tenant’s name, trade name or logo; 


 


39

















 


provided that such new
signage shall satisfy all applicable Legal Requirements and shall have been
approved in advance by Landlord, such approval not to be unreasonably withheld
or delayed.


 


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


 


3.5   Communications Equipment.


 


(a)           Subject to the provisions of this Section 3.5,
Tenant shall have the non-exclusive right, at its sole cost and expense and for
Tenant’s use, to install, maintain and operate upon the roof of the Building
one (1) or a reasonable and necessary additional number of transmitters
and/or receiver antennas or dishes approved by Landlord, which approval shall
not be unreasonably withheld or delayed (collectively, the “Communications
Equipment”) for use by Tenant in the conduct of its business; provided that
such Communications Equipment may not materially compromise the aesthetics or
appearance of the Building nor shall Landlord be required to incur any expense
in accommodating the Communications Equipment. 
The Communications Equipment must be (i) designed, installed and
operated in compliance with all Legal Requirements, and (ii) installed and
operated so as not to adversely affect or impact structural, mechanical,
electrical, elevator, or other systems serving the Building or customary
telephone service for the Building and so as not to cause injury to persons or
property, and without limitation of the foregoing, so as not to void or impair
any applicable roof warranty.  Upon the
expiration or termination of this Lease, Tenant shall remove the Communications
Equipment and repair any damage to the Building caused by the installation,
maintenance, use or removal of the Communications Equipment.


 


(b)           Landlord hereby grants to Tenant the
right to install (at Tenant’s sole cost and expense) any additional equipment
required to operate the Communications Equipment and to connect the
Communications Equipment to Tenant’s other machinery and equipment located in
the Leased Premises (e.g., conduits and cables) in the shafts, ducts, chases
and utility closets located in the core of the building (“Additional
Equipment”), which Additional Equipment shall be deemed a part of the
Communications Equipment for all purposes of this Section 3.5;
provided that (i) the use of such space in the Building core by Tenant
(except customary chases for cabling) may not materially adversely affect the
marketability of the remaining space on any floor of the Building, and (ii) to
the extent any such Additional Equipment occupies space (other than space in
customary chases for the Building) that would have otherwise been Net Rentable
Area on a floor of the Building, such space shall be included within the Net
Rentable Area of the Leased Premises and Tenant shall be obligated to pay
Annual Basic Rent and Additional Rent with respect to such space as if such
space was included in the Leased Premises. 
Tenant’s use of 


 


40

















 


such space in the
Building core shall be subject to the provisions of this Lease relating to
Tenant’s use of Common Areas of the Building.


 


(c)           Subject to the Building Rules and
other reasonable rules relating to Building security and safety that may
be promulgated by Landlord pertaining to access by tenants to the roof of the
Building and provided Tenant does not unreasonably disturb any other tenants of
the Building, Tenant and Tenant’s contractors shall have reasonable access to
the Communications Equipment and the Additional Equipment for purposes of
operating, servicing, repairing or otherwise maintaining said equipment.


 


(d)           Nothing contained in this Section 3.5
shall be deemed to prohibit or restrict any other individual or entity,
including Landlord or any other tenant of the Building, from installing
communications equipment on the roof of the Building or to use the roof for any
other purpose.


 


(e)           In connection with its installation,
repair, maintenance and removal of any Communications Equipment and Additional
Equipment, Tenant, at Tenant’s sole cost and expense, shall comply with all
applicable Building Rules and Legal Requirements and repair any damage to
the Building caused by such installation, repair, maintenance or removal.  In the event that the placement of Tenant’s
Communications Equipment or Additional Equipment interferes with Landlord’s
performance of any repair or maintenance to the Common Areas, including the
roofs of the Buildings, any costs incurred by Landlord to temporarily or
permanently relocate and reinstall Tenant’s Communications Equipment or
Additional Equipment shall be included in the cost of such repair or
maintenance as a Operating Expense.


 


(f)            Tenant’s Communications Equipment
and Additional Equipment existing as of the Commencement Date are hereby deemed
to be approved by Landlord.  Any changes
to the existing Communications Equipment and/or Additional Equipment by Tenant
shall first be approved by Landlord, which approval will not be unreasonably
withheld or delayed.


 


(g)           If Landlord shall place on the roof
of any Building communications equipment of its own, or shall grant to any
third party the right to locate and maintain any such equipment, all such
equipment shall be located, designed and operated so as not to interfere with
signals to and from Tenant’s Communications Equipment and Additional Equipment,
the installation of which, in accordance with this Section 3.5,
predates the installation of such other equipment.  Similarly, any Communications Equipment and
Additional Equipment hereafter installed by Tenant shall be located and
designed so as not to interfere with signals to and from such other equipment
belonging to Landlord or to third parties, that may have previously been installed.  The party responsible for the communications
equipment which interferes with equipment previously installed by others shall
be required, at its or their expense, to take all measures necessary to
eliminate the source of interference caused by such party’s equipment.


 


3.6   Building Management.  The Properties shall be managed by Landlord;
provided that for so long as Tenant’s Occupancy Percentage at a Property shall
be equal to or greater than ninety (90%), after consultation with Landlord to
review Landlord’s property management qualifications and pricing, Tenant may in
its sole discretion elect, on a Property by Property basis, to cause such
Property to be submanaged by a qualified property submanager designated by
Tenant (any such submanager, a “Tenant Designated Submanager”), who
shall provide 


 


41

















 


on-site and supervisory
property management services for Landlord, Tenant and any third party tenants
and other occupants at such Property (any Property with a Tenant Designated
Submanager, a “Tenant Managed Property”).  At all Properties that are not Tenant Managed
Properties, Landlord shall provide on-site and supervisory property management
services either through an Affiliate of Landlord or through a qualified third
party property submanager designated by Landlord (any such Landlord Affiliate
or submanager, a “Landlord Designated Submanager”).  Landlord shall be and remain responsible for
disbursement of Operating Expense and Real Estate Tax payments at all Properties,
including Tenant Managed Properties. 
Notwithstanding the foregoing, (a) Landlord shall not select a
Landlord Designated Submanager for whom Tenant has a reasonable objection, (b) Tenant
shall not select a Tenant Designated Submanager for whom Landlord has a
reasonable objection, (c) if a Landlord Designated Submanager persistently
fails to perform its property management duties in a timely, complete and
professional manner that is consistent with the highest level of property
management services provided at Comparable Buildings, Tenant may cause such
non-performing Landlord Designated Submanager to be replaced by a Tenant
Designated Submanager, in which event, at Tenant’s election, the Property or
Properties at which such replacement occurs shall become Tenant Managed
Property and (d) if a Tenant Designated Submanager persistently fails to
perform its property management duties in a timely, complete and professional
manner that is consistent with the highest level of property management
services provided at Comparable Buildings, Landlord may cause such
non-performing Tenant Designated Submanager to be replaced by a Landlord
Designated Submanager, in which event, at Landlord’s election, the Property or
Properties at which such replacement occurs shall no longer be Tenant Managed
Properties.  Any disputes between
Landlord and Tenant with respect to property management matters arising under
this Section 3.6 shall be subject to resolution as provided in Article XII
and XIII.


 


ARTICLE IV


CARE OF PREMISES; LAWS, RULES AND REGULATIONS


 


4.1   Care of Leased Premises.  Upon the expiration or any earlier
termination of this Lease, Tenant shall surrender the Leased Premises to
Landlord in the same condition in which such Leased Premises existed on the
Commencement Date, except for ordinary wear and tear and any casualty or
condemnation damage not required to be repaired or restored by Tenant pursuant
to the terms of this Lease and subject to the provisions of Section 5.3
hereafter.  Upon such expiration or
termination of this Lease, Landlord shall have the right to re-enter and resume
possession of the Leased Premises immediately.


 


4.2   Access of Landlord to Leased Premises.  Subject to the provisions of this Section 4.2,
Landlord and its contractors, agents or representatives may enter into and upon
any part of the Leased Premises during reasonable hours as may be necessary to
clean the same, make repairs, alterations or additions thereto or otherwise
perform Landlord’s obligations under this Lease, and, upon reasonable prior
notice to Tenant, for the purpose of showing the same to existing or
prospective purchasers or lenders.  At
any time during the last twelve (12) months of the Term (including any Renewal
Terms that Tenant has exercised) and promptly upon Landlord’s receipt of notice
from Tenant of Tenant’s intent to terminate this Lease with respect to or
otherwise vacate a Leased Premises as herein provided, Landlord may, upon
reasonable prior notice to Tenant, enter the Leased Premises to show the same
to prospective tenants.  With respect to
any 


 


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of the aforementioned
entries by Landlord into and upon any part of the Leased Premises other than
for emergencies or routine repairs or routine janitorial service, Tenant shall
be entitled to have a representative accompany Landlord.  Tenant shall not be entitled to any abatement
or reduction of Rent by reason of any such entry by Landlord.  Landlord shall not interfere with the
operation of Tenant’s business during any such entry and Landlord shall use
reasonable efforts to make any routine repairs requiring access to the Leased
Premises after Building Operating Hours. 
Notwithstanding any of the foregoing, unless otherwise instructed by
Tenant in writing, Landlord shall not enter areas designated by Tenant as high
security areas (the “Security Areas”) unless an emergency situation
exists.  All access by Landlord or any
invitee of Landlord shall be subject to applicable federal banking
regulations.  If the telecommunications
demarcation point for the Building is located within the Leased Premises, then
Landlord may, at Landlord’s option, at Landlord’s sole expense, relocate such
telecommunications demarcation point to a location outside of the Leased
Premises, and make all necessary modifications to maintain Tenant’s then
existing telecommunications service to the Leased Premises.  If the telecommunications demarcation point
for the Building is located within the Leased Premises and if such location of
the telecommunications demarcation point for the Building at any time in the
future is deemed by Tenant to interfere with Tenant’s desired reconfiguration
of its use of or improvements in the Leased Premises, then Landlord shall, at
Landlord’s sole expense, relocate such telecommunications demarcation point to
a location outside of the Leased Premises, and make all necessary modifications
to maintain Tenant’s then existing telecommunications service to the Leased
Premises, within a reasonable time after Tenant’s written request.  If the telecommunications demarcation point
for the Building is located within the Leased Premises, then until Landlord
relocates such telecommunications demarcation point to a location outside of
the Leased Premises, Tenant shall allow Landlord and other tenants of the
Building reasonable access to the telecommunications demarcation point as
required to connect telecommunication lines thereto, but each and any such
access shall be subject to reasonable advance notice (not less than one (1) full
business day, except in the case of emergencies), and shall be supervised by
security personnel acceptable to Tenant, Landlord shall be solely responsible
for the cost of such security personnel, and Landlord shall reimburse Tenant,
upon demand, for any and all additional costs incurred by Tenant because of
such access.  In no event shall Landlord
or any tenant of the Building other than Tenant be entitled to connect to, use,
or in any way affect the operation of Tenant’s telecommunications equipment in
the Leased Premises.


 


4.3   Nuisance.  Tenant shall conduct its business and use
reasonable efforts to control its agents, employees, invitees, contractors and
visitors in such a manner as not to create any nuisance, or unreasonably
interfere with, or unreasonably annoy or disturb, any other tenant or Landlord
in its operation of the Property. 
Landlord shall operate the Properties and use reasonable efforts to
control its agents, employees, invitees, contractors and visitors in such a
manner as not to create any nuisance, or unreasonably interfere with, or
unreasonably disturb Tenant in its occupancy of the Leased Premises.


 


4.4   Laws and Regulations; Rules of
Building.  Tenant shall comply with,
and shall use its reasonable efforts to cause its employees, agents, visitors
and invitees to comply with, all Legal Requirements relating to the use or
occupancy of the Leased Premises, and with the rules of the Buildings
reasonably adopted and altered by Landlord from time to time for the safety,
protection, care and cleanliness of the Leased Premises, the Buildings and the
Properties, the operation thereof, the preservation of good order therein and
the comfort of the tenants of the 


 


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Building and their
agents, employees and invitees, consistent with Comparable Buildings, which rules and
regulations shall be binding upon Tenant upon Tenant’s receipt of notice of the
adoption or alteration of such rules and regulations (the “Building
Rules”).  In the event of a conflict
between the provisions of this Lease and the Building Rules, the provisions of
this Lease shall control.  Landlord shall
use its reasonable efforts to cause all tenants of the Buildings to comply with
the Building Rules to the extent that failure to so comply will materially
affect Tenant’s use or enjoyment of the Leased Premises.  Landlord shall not enforce the Building Rules with
respect to Tenant in a manner that is more restrictive than Landlord’s
enforcement of the Building Rules as to any other tenants of the
Building.  Landlord shall not enforce
Tenant’s compliance with Legal Requirements unless (a) Landlord’s failure
to do so constitutes a violation of Legal Requirements by Landlord or makes
Landlord liable for Tenant’s continuing violation, (b) Landlord is
required to do so by any notice of violation, order, decree, permit, rule or
regulation issued by any Governmental Authority or (c) Landlord’s failure
to do so would, in Landlord’s reasonable opinion, endanger the health, safety
or welfare of any person on or about the Leased Premises or the Properties.


 


4.5   Legal Use and Violations of Insurance
Coverage.  Tenant shall not occupy or
use the Leased Premises, or permit any portion of the Leased Premises to be
occupied or used, for any business or purpose that (a) is unlawful, (b) creates
noxious or offensive odors emanating from the Leased Premises, or (c) does
anything that would in any way increase the rate of fire insurance coverage on
the Properties or its contents unless Tenant pays for the cost of such
increased insurance premium.  Tenant
shall not cause or permit any Hazardous Materials to be used, generated,
treated, installed, stored or disposed of in, on, under or about the Leased
Premises, except to the extent consistent with the customary and reasonable
business practice of entities conducting businesses similar to the business
being conducted by Tenant in the Leased Premises; provided (i) such
Hazardous Materials do not endanger the health of any person on or about the
Leased Premises or the Properties and (ii) Tenant complies with all Legal
Requirements applicable to such Hazardous Materials.  It is hereby agreed that possession and use
of copy machines and machines used to electronically accept or produce written
data which utilize small amounts of chemicals which may be included in the
definition of Hazardous Materials shall be considered “customary and reasonable
business practices” within the meaning of the previous sentence.  Landlord shall meet all of its obligations
under this Lease so as to keep in force all certificates of occupancy for the
Properties generally and Tenant, if and to the extent required by Legal
Requirements, shall meet all of its obligations under this Lease so as to keep
in force certificates of occupancy for the Leased Premises.  Landlord shall comply with, and not violate,
all applicable Legal Requirements to the extent relating to the Properties
generally and any other Legal Requirements applicable to Landlord to the extent
necessary to perform Landlord’s obligations under this Lease (except to the
extent that such Legal Requirement relates to a tenant’s obligations under its
lease, in which case Landlord shall exercise reasonable efforts to cause
compliance by such tenant), and Tenant, at its sole cost and expense, shall
comply with, and not violate, all applicable all Legal Requirements to the
extent relating to the Leased Premises. 
Landlord shall not enforce Tenant’s compliance with Legal Requirements
unless (a) Landlord’s failure to do so constitutes a violation of Legal
Requirements by Landlord or makes Landlord liable for Tenant’s continuing
violation, (b) Landlord is required to do so by any notice of violation,
order, decree, permit, rule or regulation issued by any Governmental
Authority or (c) Landlord’s failure to do so would, in Landlord’s
reasonable opinion, endanger the health, safety or welfare of any person on or
about the Leased Premises or the Properties.


 


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4.6   Environmental Laws.


 


(a)           Tenant has conveyed the Properties to
Landlord, and Landlord has accepted and acquired ownership of the Properties,
pursuant to the Purchase Agreement.  As
more fully therein expressed, Tenant has previously provided Landlord with various
environmental reports and studies prepared by consultants and Landlord has
acquired such further reports as Landlord determined necessary with respect to
the Leased Premises, including new or updated Phase I and, where applicable,
Phase II environmental reports (collectively, with the reports and studies from
Tenant, “Environmental Information”). 
The Environmental Information is identified in summary fashion on Schedule
3 hereto.


 


(b)           Landlord hereby agrees to and does
indemnify, defend, and hold harmless, Tenant and Tenant’s shareholders, officers,
directors and their respective successors and assigns from and against any and
all claims, demands, causes of action, fines, penalties, costs, expenses
(including attorneys’ fees and court costs), liens, or liabilities caused by,
directly or indirectly relating in any way to, or arising from (i) any
matters reported in the Environmental Information (the “Environmental
Matters”) as they relate to the Properties, (excluding the Leased
Premises), or (ii) Hazardous Materials introduced on, in or under the
Buildings or the Properties solely by Landlord, its agents, employees or
contractors after the Commencement Date; provided that the foregoing indemnity
shall specifically exclude any and all claims, demands, causes of action,
fines, penalties, costs, expenses (including attorneys’ fees and court costs),
liens, or liabilities caused by, directly or indirectly relating exclusively to
or arising from Hazardous Materials introduced on, in or under the Properties
after the Commencement Date solely by the acts of any party other than Landlord
and Landlord’s agents, employees and contractors.


 


(c)           Tenant shall be solely responsible
for and shall undertake all Remedial Work required by any Governmental
Authority or as necessary to comply with, and not violate, Legal Requirements
arising from (i) Hazardous Materials on or in the Leased Premises
(including the Environmental Matters to the extent on or in the Leased
Premises); or (ii) Hazardous Materials introduced on, in or under the
Buildings or the Properties solely by Tenant, its agents, employees, invitees
or contractors after the Commencement Date. 
Landlord shall not enforce Tenant’s performance of Remedial Work unless (i) Landlord’s
failure to do so constitutes a violation of Legal Requirements by Landlord or
makes Landlord liable for Tenant’s continuing violation, (ii) Landlord is
required to do so by any notice of violation, order, decree, permit, rule or
regulation issued by any Governmental Authority or (iii) Landlord’s
failure to do so would, in Landlord’s reasonable opinion, endanger the health,
safety or welfare of any person on or about the Leased Premises or the
Properties.


 


(d)           Tenant hereby agrees to and does
indemnify, defend, and hold harmless, Landlord and Landlord’s shareholders,
officers, trustees and their respective successors and assigns from and against
any and all claims, demands, causes of action, fines, penalties, costs,
expenses (including attorneys fees and court costs), liens, or liabilities
caused by or directly or indirectly relating in any way to, or arising from (i) Hazardous
Materials on or in the Leased Premises (including the Environmental Matters)
and (ii) arising from Hazardous Materials introduced on, in or under the
Buildings, or the Properties solely by Tenant, its agents, employees, invitees
or contractors after the Commencement Date.


 


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4.7   Prohibited Uses.


 


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


 


(b)           Throughout the Term, Landlord shall
not, without Tenant’s prior consent, further develop the Property in a manner
that would result in (i) an increase in the amount of any Additional Rent
payable by Tenant hereunder or (ii) parking or traffic flow to the
Building being materially adversely affected or that will attract a volume,
frequency or type of visitor or employee to the Building that is not consistent
with the standards of Comparable Buildings or that would impose an excessive
demand on or use of the facilities or services of the Building.


 


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ARTICLE V


LEASEHOLD IMPROVEMENTS AND REPAIRS


 


5.1   Leasehold Improvements.  Subject to the provisions of this Lease,
Tenant hereby accepts the Leased Premises, including any and all existing
leasehold improvements, in their “AS-IS” condition, and acknowledges that,
subject to the provisions of Section 5.5, Landlord has no
obligation to construct additional leasehold improvements in the Leased
Premises or to provide any money, work, labor, material, fixture, decoration or
equipment with respect to the Leased Premises.


 


5.2   Alterations.  Except as provided below, Tenant shall not
make or allow to be made any alterations or physical additions in or to the
Leased Premises, without first obtaining the written consent of Landlord to the
plans and specifications and contractors therefor, which consent shall not be
unreasonably withheld or delayed.  Any
such alterations or additions shall be made in compliance with Legal
Requirements.   Notwithstanding the
foregoing, Tenant shall have the right to make alterations and physical
additions to the Leased Premises costing less than the Alterations Threshold
Amount, or which are of such a nature as not to require a building permit,
without Landlord’s consent provided:  (i) Tenant
notifies Landlord in writing and furnishes Landlord with plans and
specifications and the names of the contractors for all such alterations or
additions at least seven (7) days prior to undertaking them, (ii) Tenant
provides Landlord with as-built plans and specifications related to such
alterations or additions upon completion of same, (iii) such alterations
or additions are not visible from the exterior of the Leased Premises or the
Building, (iv) the modifications are in compliance with all Legal
Requirements, (v) such additions and alterations do not adversely affect
the mechanical, electrical, plumbing, life safety, or structural integrity of
the Building and (vi) Tenant coordinates its activities with the Building’s
property manager.  In no event shall
Tenant be obligated to pay any charge to Landlord or any agent of Landlord for (i) supervision
of any alterations or physical additions in or to the Leased Premises made by
Tenant or (ii) review or approval of plans or specifications for or in
connection with any alterations or physical additions in or to the Leased
Premises made or proposed by Tenant (other than reimbursement of any actual,
out-of-pocket costs reasonably incurred by Landlord to verify that Tenant’s
plans do not adversely affect the mechanical, electrical, plumbing, life safety
or structural integrity of the Building as expressed in clause (v) above).


 


5.3   Non-Removable Improvements.  The term “Non-Removable Improvements”
shall mean each and all of the following to the extent owned by Tenant or its Affiliates:
all mechanical equipment above the ceiling, the ceiling system, the ceiling
tile, light fixtures (other than chandeliers; provided Tenant replaces the
ceiling tile and leaves a connection for a replacement chandelier or Building
Standard fixture), permanent walls, wall coverings, doors, door hardware, floor
coverings (other than area rugs), all electrical and plumbing systems located
within the Leased Premises, and blinds, all life safety and other Building
systems, all cafeterias and commissaries, including all fixtures, equipment and
appliances used in connection therewith; all gymnasiums, fitness or exercise
centers, including all equipment, fixtures and furnishings therein, and at all
properties that include retail banking facilities, all vaults, vault doors,
pneumatic tubing then existing at drive-through facilities, teller counters and
under-counter steel.  All Non-Removable
Improvements are and shall remain the property of Landlord.  Tenant shall be permitted (but not obligated)
to remove any other improvements to the Leased Premises (together “Tenant’s 


 


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Business Equipment,”
whether or not installed so as to be fixtures under applicable law), including
trade fixtures, equipment, furniture, furnishings, supplies, records,
documents, cash, coin, and other items of moveable personal property relating
to the operation of Tenant’s business, including all safe deposit boxes (but
not the nests or frames thereof), safes, Tenant identification signage, ATMs connected to or located within the Buildings or situated as
freestanding structures on the Property and ATM equipment,
telecommunication equipment, security systems and equipment, satellite dishes
and antennas, computers, computer terminals and computer
equipment, any office equipment (whether leased or owned) located in the
Buildings, framed artwork not permanently affixed to the Property, and
Tenant’s furniture, trade fixtures, and equipment installed in the Leased
Premises by Tenant at its cost and expense; provided Tenant repairs any damage
to the Leased Premises or other parts of the Building caused by the removal of
the foregoing items.


 


5.4   Mechanics Liens.  Tenant shall have no authority or power,
express or implied, to create or cause to be created any mechanic’s,
materialmen’s or other lien, charge or encumbrance of any kind against any
Leased Premises.  Should any mechanic’s,
materialmen’s or other lien, charge or encumbrance of any kind be filed against
any Leased Premises by reason of Tenant’s acts or omissions or because of a
claim against Tenant, Tenant shall cause the same to be cancelled or discharged
of record by bond or otherwise within sixty (60) days after notice to Tenant by
Landlord, or within thirty (30) days after notice to Tenant by Landlord if at
the time of such notice Landlord anticipates a sale or refinancing of any
Leased Premises will be closed within sixty (60) days after said notice (and if
Landlord includes that fact in Landlord’s notice to Tenant).  If Tenant shall fail to cancel or discharge
said lien or liens within the time provided pursuant to this Section 5.4,
Landlord may, at its sole option, cancel or discharge the same, and upon
Landlord’s demand, Tenant shall promptly reimburse Landlord for all reasonable
costs incurred in canceling or discharging such liens.  Except to the extent that such costs, losses,
or liabilities are caused by Landlord’s actions, Tenant shall indemnify and
hold Landlord harmless from and against all costs (including reasonable
attorneys’ fees and costs of suit), losses, liabilities, or causes of action
arising out of or relating to any alterations, additions or improvements made
by Tenant to the Leased Premises, including any mechanic’s or materialman’s
liens asserted in connection therewith. 
Landlord and Tenant expressly agree and acknowledge that no interest of
Landlord in the Leased Premises or the Property shall be subject to any lien
for improvements made by Tenant in or for the Leased Premises, and that
Landlord shall not be liable for any lien for any improvements made by Tenant,
such liability being expressly prohibited by the terms of this Lease.  Landlord may file in the public records of
the County in which the Building is located, a public notice containing a true
and correct copy of this paragraph, and Tenant hereby agrees to inform all
contractors and materialmen performing work in or for or supplying materials to
the Leased Premises of the existence of the prohibition contained in this
paragraph.


 


5.5   Repairs by Landlord.  Landlord will make, as an Operating Expense
(to the extent allowable), all repairs to, and perform necessary maintenance,
repair, refurbishing and replacement work to the Properties, and all parts
thereof, in such manner as is in keeping with Comparable Buildings, including
the: (a) structural elements of the Buildings, (b) mechanical
(including HVAC), electrical, the plumbing and fire/life safety systems serving
the Buildings in general, (c) Common Areas including the Parking Areas , (d) roofs
of the Buildings, (e) exterior windows of the Buildings and (f) elevators
serving the Buildings.  Landlord shall
promptly make 


 


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repairs (considering the
nature and urgency of the repair) for which Landlord is responsible.  Except in emergency situations as reasonably
determined by Landlord, Landlord shall provide Tenant with prior notice of any
entry into the Leased Premises required to effectuate the repairs for which
Landlord is responsible and shall exercise reasonable efforts to perform any
such entry into the Leased Premises in a manner that is reasonably designed to
minimize interference with the operation of Tenant’s business in the Leased
Premises.  If Landlord should fail or
refuse to make such repairs, refurbishings or replacements or perform said
maintenance with reasonable promptness after written notice from Tenant, then
Tenant may, at its option, but without any obligation to do so, upon written
notice to Landlord, cure such failure as expressed in Section 7.1(f) and
recover the reasonable cost thereof from Landlord as expressed in Article XIII.


 


5.6   Repairs by Tenant.  Tenant shall, at its sole cost and expense,
promptly perform all maintenance, repairs, refurbishing and replacement work to
the Leased Premises that are not Landlord’s express responsibility under this
Lease, and shall keep the Leased Premises in good condition and repair,
reasonable wear and tear excepted. 
Tenant’s repair obligations include repairs to: (a) floor covering,
(b) interior partitions, (c) doors, (d) the interior side of
demising walls, (e) electronic, phone and data cabling and related
equipment that is installed by or for the exclusive benefit of Tenant and
located in the Leased Premises or other portions of the Building, (f) supplemental
air conditioning units, private showers and kitchens, including hot water
heaters, plumbing and similar facilities serving Tenant exclusively, and (g) alterations
performed by contractors retained by Tenant, including related HVAC
balancing.  All Tenant’s work shall be
performed in accordance with the rules and procedures described in Section 5.2
hereof.  Upon termination of this Lease,
Tenant will surrender and deliver the Leased Premises to Landlord in the same
condition in which the Leased Premises existed on the Commencement Date,
subject, however, to (i) the provisions of Article VI hereof, (ii) the
alterations permitted pursuant to this Lease, (iii) the provisions of Section 5.3,
and (iv) except for ordinary wear and tear.  If Tenant should fail or refuse to make such
repairs, refurbishings or replacements or perform said maintenance as and when
reasonably required, Landlord may, at its option, but without any obligation to
do so, cure such failure or refusal and Landlord’s costs shall be reimburseable
by Tenant as additional rent, by Tenant, immediately upon invoicing by
Landlord.  Notwithstanding the foregoing,
Landlord agrees to perform, as Above Standard Services, Tenant’s repair and
maintenance obligations with respect to the Leased Premises.  Tenant shall notify Landlord of the need for
any such repair and maintenance and Landlord shall endeavor to respond timely
to each such request.


 


5.7   Demising Work.  Any Demising Work required to be performed by
Tenant: shall, in each instance, be completed as follows:


 


(a)           Tenant shall prepare and submit to
Landlord for Landlord’s approval a preliminary space plan (the “Preliminary
Space Plan”) in connection with Tenant’s proposed separation of the Leased
Premises from the Surrendered Premises. 
Landlord’s approval shall not be unreasonably withheld or delayed and
shall be given or withheld, or Landlord shall advise Tenant whether Landlord
requires additional information in order to evaluate Tenant’s request, within
ten (10) days following Tenant’s delivery to Landlord of the Preliminary
Space Plan.  If Landlord objects to the
Preliminary Space Plan (or any revision thereof), Tenant shall deliver a
revised Preliminary Space Plan to Landlord and the procedure will be repeated,
if necessary, until a final space plan is approved.  Landlord’s approval of each revised
Preliminary Space Plan


 


49














 


shall be given or
withheld within ten (10) days following Landlord’s receipt thereof from
Tenant.  The final approved space plan is
hereinafter referred to as the “Final Space Plan”.  Landlord and Tenant shall work with one
another reasonably and in good faith to resolve any differences concerning the
Preliminary Space Plan and the Final Space Plan (or the Preliminary Drawings or
Final Drawings hereafter referenced in Section 5.7(b) immediately
below), failing which any disagreements shall be resolved in accordance with Article XII
hereof.


 


(b)           From the Final Space Plan, Tenant
shall prepare and submit to Landlord for Landlord’s approval (which approval
shall not be unreasonably withheld or delayed, and which shall be given or
withheld, or Landlord shall advise Tenant whether Landlord requires additional
information in order to evaluate Tenant’s request, within ten (10) days)
following Tenant’s delivery to Landlord of, one-eighth inch (1/8”)
architectural, mechanical, electrical, lighting, plumbing and (if reasonably
requested by Landlord) floor load working drawings together with specifications
necessary to complete all of the proposed improvements shown on the Final Space
Plan (collectively, the “Preliminary Drawings”). If Landlord objects to
the Preliminary Drawings (or any revision thereof), Tenant shall deliver
revised Preliminary Drawings to Landlord and the procedure will be repeated, if
necessary, until final drawings are approved. 
The final approved drawings are hereinafter referred to as the “Final
Drawings”.


 


(c)           Tenant will cause the Demising Work
to be constructed in substantial accordance with the Final Drawings.  Landlord shall be deemed to have waived
Tenant’s performance of any Demising Work not shown on the Final Drawings
except to the extent required to satisfy Legal Requirements.  Landlord’s review of Space Plans and Drawings
under Sections 5.7(a) and (b) above is for Landlord’s
purposes only, and not a representation or warranty that the work to be
performed pursuant thereto meets all Legal Requirements.


 


(d)           In connection with the Demising Work,
Tenant shall file all drawings, plans and specifications, pay all fees and
obtain all permits and applications from any authorities having jurisdiction
and perform all Demising Work in compliance the requirements of such permits
and applications; and Tenant shall promptly obtain, if required, a permanent
certificate of occupancy and all other approvals required of Tenant to use and
occupy the Leased Premises.


 


(e)           Tenant shall have the right to select
the general contractor and subcontractors for the Demising Work; provided that
Tenant shall not use a contractor or subcontractor as to which Landlord shall
reasonably object within ten (10) days following Tenant’s notice to
Landlord of the identity of such contractor(s) and subcontractor(s) as
Tenant has selected.


 


(f)            The parties shall cooperate with
each other in good faith and coordinate the scheduling of the Demising Work in
an effort to complete the same in a timely manner.  Landlord and Tenant shall be commercially
reasonable in agreeing to non-material reconfigurations of the boundaries of
the Leased Premises to facilitate Tenant’s construction of demising walls for
the Leased Premises.


 


(g)           All of the Demising Work shall be
done, on a Property by Property basis, in compliance with Building Standards at
Tenant’s expense, including building permit and other fees, architectural and
engineering expenses and other expenses relating thereto.  Tenant may request Landlord’s review of
Preliminary Space Plans or Preliminary Drawings before Tenant’s 


 


50

















 


notification to Landlord
of Tenant’s election to remove Surrendered Premises from the Leased Premises to
facilitate Tenant’s understanding of the potential approximate costs associated
therewith.


 


(h)           Any other provision of this Lease to
the contrary notwithstanding, if as a result of performing Demising Work
required as a result of Tenant’s surrender of Purchase Agreement Vacate Space
to Landlord, Tenant adds One Thousand Five Hundred (1,500) square feet or less
of Purchase Agreement Vacate Space to the Net Rentable Area of the Leased
Premises at a Property as herein provided (any space so added, the “PAVS
Expansion Premises”), Tenant shall have the right and option, exercisable
from time to time by written notice to Landlord prior to the expiration of the
Vacate Period (as defined in the Purchase Agreement), to terminate this Lease
with respect to Leased Premises at such Property or at any other Property containing,
in the aggregate, the same or fewer square feet of Net Rentable Area as the Net
Rentable Area of the PAVS Expansion Premises (any space so terminated, the “PAVS
Contraction Premises”); provided that (i) Tenant shall only be
permitted to create PAVS Contraction Premises at a Property to the extent the
same is reasonably necessary for Tenant to perform Demising Work required as a
result of Tenant’s surrender of Purchase Agreement Vacate Space to Landlord at
such Property, (ii) Tenant may not terminate this Lease with respect to
PAVS Contraction Premises containing, in the aggregate, more than One Thousand
Five Hundred (1,500) square feet of Net Rentable Area at any Property and (iii) the
aggregate Net Rentable Area of the PAVS Expansion Premises at all Properties
shall be equal to or greater than aggregate Net Rentable Area of the PAVS
Contraction Premises at all Properties.


 


5.8   Art. 
Landlord acknowledges that Tenant stores and/or displays within the
Buildings, multiple works of art, including paintings, textiles, sculptures,
and other forms of artwork (the “Art”) that are an integral part of the
Bank of America Art Collection.  The Art
may be located within areas leased by and under control of Tenant, or in Common
Areas, including lobbies or other public spaces within the Buildings or outdoor
plaza areas.


 


(a)           The Art that is located within the
Properties as of the date hereof is listed in the attached Schedule 4
hereto.  Tenant may hereafter locate
additional pieces of Art within the Buildings and/or Leased Premises, and any
of such Art shall also be considered part of the Bank of America Art
Collection, unless it cannot be removed from the Building without damaging the
Art Tenant shall have the right at any time during the Term of the lease and
for a period of 60 days following the Term of the lease, as to any such
Building, to remove any of the Art at Tenant’s sole cost and expense.  In the event any Art is removed from either
Leased Premises or Common Areas, Tenant shall repair any damage caused by its
removal.  To the extent Art is removed
from the Common Areas, Tenant shall notify Landlord in writing not less than 30
days prior to the anticipated removal date that the Art shall be removed.  Tenant agrees to indemnify Landlord against
any claims made by the artist or putative right holder pursuant to VARA arising
out of Tenant’s removal or subsequent treatment of the Art, and such indemnity
shall survive the termination or expiration of this Lease.


 


(b)           Landlord agrees that (i) Landlord
shall not remove any Art from any Common Areas or public spaces of the
Buildings during the Term hereof or within a period of sixty (60) days
following the Term hereof, and Landlord acknowledges that any such removal in
violation of this paragraph may cause damage to the Art, for which Landlord
shall bear sole responsibility; 


 


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and (ii) Landlord’s
removal of any Art during the Term or thereafter shall not be within the scope
of Tenant’s VARA indemnification.


 


(c)           Tenant shall have the right at any
time or from time to time, to erect plaques or markers, subject to Landlord’s
approval (not to be unreasonably withheld) identifying the Art as commissioned
by Bank of America or on loan from the Bank of America Art Collection.  To the extent Tenant elects not to remove any
Art at the termination of the Lease, Landlord agrees that any plaques or
markers installed by Tenant identifying the Art as commissioned by Bank of
America or on loan from the Bank of America Art Collection shall remain in
place for so long as the Art is displayed within the Building or Common Areas.


 


ARTICLE VI


CONDEMNATION, CASUALTY AND INSURANCE


 


6.1   Condemnation.


 


(a)           If all or a portion of a Building or
the Leased Premises as would render the continuance of Tenant’s business from
such Leased Premises impracticable (as reasonably determined by Tenant) is
permanently taken or condemned for any public purpose, this Lease, at the
option of Tenant upon the giving of notice to Landlord within twenty (20) days
from the date of such condemnation or taking shall forthwith cease and
terminate as to such Leased Premises as provided in Section 6.1(c) below.


 


(b)           If all or substantially all of the
Property, or so much thereof as to cause the remainder not to be economically
feasible to operate, as reasonably determined by Landlord, should be
permanently taken or condemned for any public purpose and Landlord terminates
all similarly affected leases in the Building that Landlord has the right to
terminate, then Landlord shall have the option of terminating this Lease as to
the affected Leased Premises by notice to Tenant within ten (10) days from
the date of such condemnation or taking.


 


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


 


(d)           If this Lease is not terminated by
either Landlord or Tenant as aforesaid, Tenant shall pay all Rent up to the
date of transfer of possession of such portion of the Leased Premises so taken
or condemned and this Lease shall thereupon cease and terminate with respect to
such portion of the Leased Premises so taken or condemned as if the date of
transfer of possession of the Leased Premises was the expiration date of the
Term relating to such portion of the Leased Premises.  Thereafter, the Annual Basic Rent, and Tenant’s
Operating Expense Share and Tenant’s Tax Share shall be calculated based on the
Net Rentable Area of the Leased Premises not so taken or condemned.  If any such condemnation or taking occurs and
this Lease is not so terminated, Landlord shall, within sixty (60) days after
the date any portion of the Property is damaged, or the use of any portion of
the Property by Tenant and Tenant’s employees and invitees is impeded, because
of such condemnation, commence to repair the Property (excluding Tenant’s
Business Equipment), so that the remaining portion of the Property, as the case
may be, 


 


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shall constitute a
complete architectural unit, reasonably fit for Tenant’s occupancy and business
as reasonably determined by Tenant and Landlord.  If Landlord fails to cause such restoration
to be substantially completed within one (1) year after the date Landlord
commences such restoration work for any reason other than a delay caused by an
act or omission of Tenant, then Tenant shall have the right to terminate this
Lease by notifying Landlord in writing of such termination within thirty (30)
days after the date that is one (1) year after the date Landlord commences
such restoration work.  The one (1) year
period described in the preceding sentence shall be automatically extended for
each day of delays caused by Force Majeure Events.


 


(e)           In the event of any condemnation or
taking of all or a portion of the Leased Premises, and in the event of any
condemnation or taking of all or a portion of the Parking Areas or the Property
which taking materially adversely affects the value of or Tenant’s use or
enjoyment of the Leased Premises, Tenant, at Tenant’s expense may, jointly with
Landlord, appear, claim, prove and recover, in proceedings relative to such
taking, (i) the value of any fixtures, furniture, furnishings, leasehold
improvements and other personal property that were condemned but which under
the terms of this Lease Tenant is permitted to remove at the end of the Term, (ii) the
unamortized cost of any leasehold improvements that are not so removable by
Tenant at the end of the Term and that were installed at Tenant’s expense, (iii) the
loss of Tenant’s business as the result of such condemnation and (iv) relocation
and moving expenses.


 


(f)            If any taking or condemnation for
any public purpose of the Leased Premises or any portion thereof occurs for one
hundred eighty (180) days or less and the portion of the Leased Premises not so
taken is in Tenant’s reasonable judgment sufficient to allow the conduct of
Tenant’s business in the Leased Premises to substantially the same extent and
quantity as before the taking (and Tenant, in fact, ceases its use of the
Leased Premises for business purposes), then it shall be deemed a temporary
taking and this Lease shall continue in full force and effect except that
Annual Basic Rent, Tenant’s Operating Expense Share and Tenant’s Tax Share
shall be calculated based on the Net Rentable Area of the Leased Premises not so
taken, for the period of time that the Leased Premises are so taken as of the
date of transfer of possession of the Leased Premises and Landlord shall be
under no obligation to make any repairs or alterations.


 


6.2   Damages from Certain Causes.  Except as provided in Section 3.1
and Section 6.6, and subject to Landlord’s obligations to restore,
repair and maintain as specifically provided in this Lease, Landlord shall not
be liable or responsible to Tenant for any loss or damage to any property or
person occasioned by theft, fire, act of God, public enemy, riot, strike,
insurrection, war, requisition or order of governmental body or authority,
court order or injunction, or any other cause beyond Landlord’s control.


 


6.3   Casualty Clause.


 


(a)           If at any time during the Term of
this Lease, the Leased Premises, the Common Areas, including the Parking Areas,
the Buildings or any systems or equipment serving the Leased Premises, the
Common Areas or the Buildings (collectively, the “Damaged Property”) is
damaged by fire, earthquake, flood or by any other casualty of any kind or
nature (a “Casualty”) then, except as hereinafter provided, Landlord
shall proceed to rebuild or restore the Damaged Property at Landlord’s sole
cost and expense; provided that, in no event, shall Damaged Property 


 


53

















 


include, nor shall
Landlord or Tenant have any obligation to rebuild or restore, any of Tenant’s
furniture, furnishings, equipment, trade fixtures or other property owned by
Tenant.  If, in the reasonable opinion of
Landlord’s architect as evidenced by a written letter of certification
delivered to Tenant not more than forty-five (45) days following the Casualty,
the Damaged Property cannot be repaired so as to make the Leased Premises and
the Parking Areas tenantable within two hundred seventy (270) days from the
date of notice of Landlord’s architect’s opinion, then Tenant shall have the
right to terminate this Lease as to such property by notifying Landlord in
writing of such termination within thirty (30) days of receipt of Landlord’s
architect’s opinion.  Any failure by
Tenant to deliver such termination notice to Landlord by such thirtieth (30th)
day shall constitute a waiver of Tenant’s right to terminate this Lease
pursuant to this Section 6.3(a) as a result of such Casualty.


 


(b)                                 Landlord
may elect to terminate this Lease as to an affected property on account of a
Casualty by delivering written notice to Tenant within forty-five (45) days
after a Qualified Damage; provided that Landlord also terminates all other
similarly affected tenant leases that Landlord has a right to terminate as a
result of such Casualty.  As used herein,
a “Qualified Damage” shall mean any one or more of the following:


 


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


 


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


 


(iii)          Necessary repairs to the Damaged
Property cannot be completed, in the reasonable opinion of Landlord’s
architect, within two hundred seventy (270) days after the occurrence of such
damage, which opinion Landlord shall cause its architect to deliver to Tenant
not more than thirty (30) days after the Casualty.


 


(c)                                  Notwithstanding
any language herein to the contrary, if at the time of any substantial damage
to the Leased Premises from a Casualty, less than one (1) year remains in
the Term, then (i) Landlord shall have the right, in its sole option, to
elect not to rebuild or restore the Damaged Property, such right to be
exercised, if at all, by written notice to Tenant within thirty (30) days after
the date of such Casualty, and (ii) Tenant shall have the right, in its
sole option, to terminate this Lease, such right to be exercised, if at all,
within thirty (30) days after the date of such Casualty or within thirty (30)
days after Tenant’s receipt of Landlord’s notice pursuant to Section 6.3(c)(i) .


 


(d)                                 If
Landlord is herein required to repair and restore the Property, and Tenant
shall have had, but shall not have exercised, a right of termination as
provided at Section 6.3(a), Landlord shall use commercially
reasonable efforts to commence such repair and restoration within sixty (60)
days following the Casualty.  Landlord’s
architect shall determine the date that Landlord commences the repair and
restoration of the Property and shall notify Tenant of such 


 


54

















 


determination within
thirty (30) days thereof. 
Notwithstanding any language herein to the contrary, if Landlord
undertakes but fails to repair and restore the Damaged Property within the
later of (i) one (1) year after the date determined by Landlord’s
architect to be the date Landlord commenced the restoration and repair work or (ii) the
date identified in Landlord’s architect’s opinion given pursuant to Section 6.3(a) as
the date by which Landlord’s architect believed the repair and restoration to
the Damaged Property would be completed (the later such date, the “Outside
Completion Date”), for any reason other than a delay caused by an act or
omission of the Tenant, then subject to the final sentence of this paragraph,
Tenant may terminate this Lease by delivering written notice to Landlord within
thirty (30) days after the Outside Completion Date, but before the repairs and
restoration to the Damaged Property have been completed.  If Tenant fails to deliver such notice within
such thirty (30) day period, Tenant shall have waived its right to terminate
this Lease on account of the time required to repair such casualty.  The Outside Completion Date shall be
automatically extended for each day of delays caused by Force Majeure Events
(but in no event shall such Outside Completion Date be extended for more than
sixty (60) days by Force Majeure Events).


 


6.4   Property Insurance.  Landlord shall maintain standard fire and
extended coverage insurance, plus, if elected by Landlord, coverage for acts of
terrorism, for each Property, including for the Buildings, Common Areas,
including Parking Areas, Leased Premises and other tenantable areas and on the
improvements and betterments contained therein (excluding Tenant’s and any
other tenant’s furniture, furnishings, equipment, trade fixtures or other
property), in an amount not less than eighty percent (80%) of the full
replacement cost thereof above the foundation. 
Upon the request of Tenant, a copy of a duly executed certificate of
insurance reflecting Landlord’s maintenance of the insurance required under
this Section 6.4 shall be delivered to Tenant.  Said insurance shall be maintained with a
reputable insurance company selected by Landlord and qualified and licensed to
do business in the State in which the Property is located and having a current
Best’s Rating of A+ or better.  All
payments for losses thereunder shall be made solely to Landlord.


 


6.5   Liability Insurance.  Landlord and Tenant shall each maintain a
policy or policies of comprehensive general liability insurance with the
premiums thereon fully paid on or before the due dates, issued by and binding
upon a reputable insurance company qualified and licensed to do business in the
State in which the Property is located, with a current Best’s Rating of A+ or
better.  Such insurance shall afford
minimum protection (which may be effected by primary and/or excess coverage) of
not less than Three Million Dollars ($3,000,000.00) for bodily injury or death
in any one (1) accident or occurrence and against property damage.  Notwithstanding anything to the contrary, so
long as Tenant satisfies the Self-Insurance Net Worth Test, 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 Section 6.5,
Tenant shall be deemed to self-insure to the extent of such noncompliance.


 


6.6   Hold Harmless.  Landlord shall not be liable to Tenant, or to
Tenant’s agents, servants, employees, contractors, customers or invitees, for
any damage to person or property to the extent caused by any negligent act or
omission of Tenant, or its agents, servants or employees, and Tenant agrees to
and does hereby indemnify, defend and hold harmless, Landlord and Landlord’s
shareholders, officers and trustees, and its and their respective successors
and assigns, from and against any and all claims, demands, causes of action,
fines, penalties, costs, expenses (including 


 


55

















 


reasonable attorneys’
fees and court costs), liens or liabilities to the extent caused by (i) any
negligent act or omission of Tenant, or its agents, servants or employees or (ii) any
claim for which Tenant was obligated to obtain insurance, but elected to
self-insure as permitted by Section 6.5.  Tenant shall not be liable to Landlord, or to
Landlord’s agents, servants, employees, contractors, customers or invitees, for
any damage to person or property to the extent caused by any negligent act or
omission of Landlord, or its agents, servants or employees and Landlord agrees
to and does indemnify, defend and hold harmless Tenant and Tenant’s
shareholders, officers and directors, and its and their respective successors
and assigns, from and against any and all claims, demands, causes or action,
fines, penalties, costs, expenses (including reasonable attorneys fees and
costs), liens or liabilities to the extent caused by any negligent act or
omission of Landlord, or its agents, servants or employees.


 


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


 


ARTICLE VII


DEFAULTS, REMEDIES, BANKRUPTCY, SUBORDINATION


 


7.1   Default and Remedies.


 


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


 


(i)            Failure to pay any payment of Rent
when due (including Annual Basic Rent, Excess Basic Rent, if any, Tenant’s
Operating Expense Share, Tenant’s Tax Share and Above Standard Services Rent)
and such failure to pay continues for a period of ten (10) days after
written notice thereof from Landlord to Tenant; provided that Landlord shall
not be obligated to send written notice of a failure to pay more than two (2) times
in any consecutive twelve (12) month period, or


 


(ii)           At any time that Tenant does not satisfy
the Net Worth Test, failure of Tenant to maintain any policy of insurance that
Tenant is required by the terms of this 


 


56

















 


Lease to maintain and such failure continues for a
period of ten (10) business days after written notice from Landlord to
Tenant of such failure, which notice shall (A) specify the insurance
policy which Tenant has failed to maintain and the provision of this Lease
which requires Tenant to maintain such insurance, and (B) state, in all
capital letters and in a prominent place, that the continuance of such failure
to maintain insurance for ten (10) business days after Tenant’s receipt of
such written notice will constitute an Event of Default under Section 7.1(a) of
the Lease, or


 


(iii)          Tenant breaches or fails to comply
with any term, provision, condition or covenant of this Lease, other than as
described in Section 7.1(a)(i) and (ii), and such breach or
failure continues for thirty (30) days after written notice from Landlord to
Tenant of such breach or failure to comply (or, if such breach or failure is
curable but reasonably cannot be cured within thirty (30) days, Tenant does not
commence to cure such breach or failure promptly within such thirty (30) day
period and continuously and diligently thereafter pursue such cure and remedy
until such breach or failure is remedied; provided that there shall be a
maximum period of one hundred eighty (180) days after Landlord’s written notice
to cure or remedy such default, except that such maximum cure period shall
extended as appropriate for delays caused by Force Majeure Events.


 


(b)                                 Upon
the occurrence of an Event of Default, subject to Section 7.1(e) below,
Landlord shall have the option to do and perform any one or more of the
following in addition to, and not in limitation of, any other remedy or right
permitted it by law or in equity or by this Lease:


 


(i)            Landlord may immediately or at any
time thereafter, collect all overdue Rent and other charges payable to
Landlord, together with Landlord’s legal fees and costs of enforcement, with
interest at the Applicable Rate from the date such sums were originally due
until the date paid in full.


 


(ii)           Landlord may immediately or at any
time thereafter re-enter the Leased Premises and correct or repair any
condition which shall constitute a failure on Tenant’s part to keep, observe,
perform, satisfy, or abide by any term, condition, covenant, agreement, or
obligation of this Lease or of the Building Rules now in effect or
hereafter adopted or of any notice given Tenant by Landlord pursuant to the
terms of this Lease, and Tenant shall fully reimburse and compensate Landlord
on demand.


 


(iii)          Subject to the limitations expressed
in Section 7.1(e), Landlord, with or without terminating this
Lease, may immediately or at any time thereafter demand in writing that Tenant
vacate the Leased Premises and thereupon Tenant shall immediately vacate the
Leased Premises and remove therefrom all property thereon (other than
Non-Removable Improvements) belonging to or placed in the Leased Premises by,
at the direction of, or with consent of Tenant, whereupon Landlord shall have
the right to re-enter and take possession of the Leased Premises.  Any such demand, re-entry and taking
possession of the Leased Premises by Landlord shall not of itself constitute an
acceptance by Landlord of a surrender of this Lease or of the Leased Premises
by Tenant and shall not of itself constitute a termination of this Lease by
Landlord.


 


57

















 


(iv)          Subject to the limitations expressed
in Section 7.1(e), Landlord may immediately or at any time
thereafter, re-enter the Leased Premises, and if persons or any of Tenant’s
property are then in the Leased Premises, then, upon prior written notice to
Tenant, Landlord may remove therefrom Tenant and all property belonging to or
placed on the Leased Premises by, at the direction of, or with consent of
Tenant, all at Tenant’s expense.  Any
such re-entry and removal by Landlord shall not of itself constitute an
acceptance by Landlord of a surrender of this Lease or of the Leased Premises
by Tenant and shall not of itself constitute a termination of this Lease by
Landlord.


 


(v)           Subject to the limitations expressed
in Section 7.1(e), Landlord, without terminating this Lease, may
immediately or at anytime thereafter relet the Leased Premises or any part
thereof, for such time or times, at such rental or rentals and upon such other
terms and conditions as Landlord deems reasonable, and Landlord may make any alterations
or repairs to the Leased Premises that are necessary or proper to facilitate
such reletting as office space; and Tenant shall pay all costs of such
reletting, including the cost of any such alterations and repairs to the Leased
Premises and reasonable attorneys’ fees actually incurred; and Tenant shall
continue to pay all Rent due under this Lease up to and including the date of
beginning of payment of rent by any subsequent tenant of part or all of the
Leased Premises, and thereafter Tenant shall pay monthly during the remainder
of the Term the amount, if any, by which the Rent and other charges reserved in
this Lease exceed the rent and other charges collected from any such subsequent
tenant or tenants (net of the costs Landlord incurred to re-enter and relet the
Leased Premises), but Tenant shall not be entitled to receive any excess of any
such rents collected over the Rent reserved herein.  Landlord hereby agrees to use its
commercially reasonable efforts to relet the Leased Premises to mitigate or
otherwise reduce the damages for which Tenant may be liable hereunder, but only
to the extent required under applicable law in the state in which the Building
is located; provided that in no event shall Landlord’s leasing or attempted
leasing of other space in the Building instead of the Leased Premises, in and
of itself, violate the provisions of the preceding sentence.  Any such reletting may be for such rent, for
such time, and upon such terms as the Landlord, in the Landlord’s good faith
discretion, shall determine to be commercially reasonable.  Landlord shall be deemed to have exercised
commercially reasonable efforts to relet the Leased Premises so long as
Landlord or Landlord’s agents employ marketing methods and procedures
substantially similar to marketing methods and procedures used by Landlord or
Landlord’s agents to market and lease vacant space in other buildings, which
are similar in nature and quality to the Building, owned by Landlord or an
affiliate of Landlord.


 


(vi)          Subject to the limitations expressed
in Section 7.1(e), Landlord may immediately or at any time
thereafter terminate this Lease, and this Lease shall be deemed to have been
terminated upon notice to Tenant of such termination; upon such termination
Landlord shall elect to either recover from Tenant (A) all damages
Landlord may suffer by reason of such termination including all arrearages in
rentals, costs, charges, additional rentals, and reimbursements, the cost
(including court costs and reasonable attorneys’ fees) of recovering possession
of the Leased Premises, the actual or estimated (as reasonably estimated by
Landlord) cost of any alteration of or repair of the Leased Premises that is
necessary or proper to prepare the same for reletting as office 


 


58

















 


space, or (B) all arrearages in rentals, plus an
amount equal to the excess, if any, of the present value discounted at the
Prime Rate of the total amount of all Rent to be paid by Tenant for the
remainder of the Term, over the present value (discounted at the same rate) of
the fair market rental value of the Leased Premises for the remainder of the
Term.


 


(c)                                  If
Landlord re-enters the Leased Premises or terminates this Lease pursuant to any
of the provisions of this Lease, Tenant hereby waives all claims for damages
that may be caused by such re-entry or termination by Landlord pursuant to the
provisions of this Lease.  Tenant shall
and does hereby indemnify and hold Landlord harmless from any loss, cost
(including court costs and attorneys’ fees), or damages suffered by Landlord by
reason of such re-entry or termination unless caused by Landlord’s gross
negligence.


 


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


 


(e)                                  Notwithstanding
the provisions set forth in Sections 7.1(b)(iii) through (vi),
Landlord may not:


 


(i)            terminate this Lease as to any
Property or Properties unless either (A) Tenant shall have failed to pay,
without the contractual right to abate or offset as herein otherwise provided,
Rent for such Property or Properties in an amount equal to or greater than the
amount of three (3) months’ Annual Basic Rent then due and payable with
respect to such Property or Properties, 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 as to such Property
or Properties if Tenant fails to promptly pay all overdue Rent for such
Properties or Properties, or (B) Tenant shall fail to comply with any
final order relating to such Property or Properties rendered pursuant to the
dispute resolution procedures outlined in Article XII within the
time periods set forth in such order, or, if no time periods are set forth
therein, then within such time period as is reasonably necessary to promptly
and diligently comply with such order, but not to exceed sixty (60) days,
subject to appropriate extensions for delays caused by Force Majeure Events,
and such failure to comply continues for a period of thirty (30) 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 as to such Property or Properties if Tenant fails to promptly
comply with the requirements of such order; or


 


(ii)           terminate this Lease in its entirety
unless Tenant shall have failed to pay, without the contractual right to abate
or offset as herein otherwise provided, Rent in an amount equal to or greater
than the amount of three (3) months’ Annual Basic Rent then due and
payable with respect to all Properties 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 


 


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display) that this Lease may be terminated if Tenant
fails to promptly pay all overdue Rent.


 


(f)            If Landlord should fail to perform
or observe any covenant, term, provision or condition of this Lease and such
default should continue beyond a period of ten (10) days as to a monetary
default or thirty (30) days (or such longer period as is reasonably necessary
to remedy such default; provided Landlord shall continuously and diligently
pursue such remedy at all times until such default is cured) as to a
non-monetary default, after in each instance written notice thereof is given by
Tenant to Landlord (and a copy of said notice is sent simultaneously therewith
to the Notice Parties) (“Landlord Default”), then, in any such event
Tenant shall have the right, (i) to cure or attempt to cure the Landlord
Default (upon twenty-four (24) hours’ notice in the event of an emergency,
notwithstanding the foregoing provisions of this Section 7.1(f)),
and Landlord shall reimburse Tenant for all reasonable sums expended in so
curing the Landlord Default or (ii) to commence such actions at law or in
equity to which Tenant may be entitled. 
The exercise by Tenant of any one or more of the rights and remedies
provided in this Lease shall not prevent the subsequent exercise by Tenant of
any one or more of the other rights and remedies herein provided.  Except as otherwise provided in this Lease,
remedies provided for in this Lease are cumulative and may, at the election of
Tenant, be exercised alternatively, successively, or in any other manner and
are in addition to any other rights provided for or allowed by law or in
equity, including the right to claim that Tenant has been constructively
evicted.


 


(g)           Notwithstanding the provisions of Section 7.1(e) hereof,
if Landlord should fail to maintain any policy of insurance which Landlord is
required by the terms of this Lease to maintain and such failure continues for
a period of ten (10) business days after written notice from Tenant to
Landlord and all Notice Parties of such failure, which notice shall (A) specify
the insurance policy which Landlord has failed to maintain and the provision of
this Lease which requires Landlord to maintain such insurance.  Tenant’s sole and exclusive recourse and
remedy for Landlord’s failure to maintain any such policy of insurance shall be
limited to the limited offset right provided in Section 13.1.


 


7.2   Insolvency or Bankruptcy.  The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, or any general
assignment by Tenant for the benefit of creditors, or any action taken by
Tenant under any insolvency, bankruptcy, or reorganization act, or an
involuntary proceeding against Tenant that is not dismissed or bonded against
within one hundred twenty (120) days after the filing thereof, shall at
Landlord’s option, constitute a breach of this Lease by Tenant.  Upon the happening of any such event or at
any time during the duration of such event, this Lease shall terminate five (5) days
after notice of termination from Landlord to Tenant.  In no event shall this Lease be assigned or
assignable by voluntary or involuntary bankruptcy or a proceeding in lieu
thereof and in no event shall this Lease or any rights or privileges hereunder
be an asset of Tenant under any bankruptcy, insolvency, or reorganization
proceedings.


 


7.3   Negation of Lien for Rent.  Landlord hereby expressly waives and negates
any and all contractual liens and security interests, statutory liens and
security interests or constitutional liens and security interests arising by
operation of law to which Landlord might now or hereafter 


 


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be entitled on all
property of Tenant now or hereafter placed in or upon the Leased Premises,
except for judgment liens, if any.


 


7.4   Attorney’s Fees.  If either party is in default beyond any
applicable grace or notice period in the performance of any of the terms of this
Lease and the other party employs an attorney in connection therewith, the
non-prevailing party agrees to pay the prevailing party’s reasonable attorneys’
and paralegals’ fees and costs, at all levels, before, during and after trial,
and on appeal.


 


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


 


7.6   Holding Over.


 


(a)           Except as provided in Section 7.6(b),
in the event of holding over by Tenant after expiration or termination of this
Lease without the written consent of Landlord, Tenant shall pay for the entire
holdover period as liquidated damages, solely for such holding over, one
hundred fifty percent (150%) of the Annual Basic Rent that would have been
payable if the Lease had not so terminated or expired plus one hundred fifty
percent (150%) of all Rent other than Annual Basic Rent (including Tenant’s
Operating Expense Share and Tenant’s Tax Share) that would have been payable if
this Lease had not so terminated or expired. 
Nothing in this Section 7.6(a) shall be construed as
granting Tenant a right to retain possession of the Leased Premises, or as
limiting Landlord’s right to recover possession of the Leased Premises, after
the expiration or termination of this Lease as to such Leased Premises.


 


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


 


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twenty-five percent
(125%) of the Annual Basic Rent applicable to such Leased Premises immediately
prior to such holdover.


 


7.7   Subordination.  Landlord represents and warrants to Tenant
that as of the Commencement Date, there is no ground lease or other superior
lease presently encumbering the Leased Premised, and no mortgage or deed of
trust lien presently encumbering the Leased Premises.  Landlord will provide to Tenant, within
thirty (30) days following the recording of a mortgage or deed of trust encumbering
a Property (the holder thereof, or of a ground lease or other superior lease to
which this Lease may hereafter be subject, being hereafter referred to as an “Interest
Holder”), a non-disturbance agreement in the form attached hereto as Exhibit D
or such other form as shall be reasonably satisfactory to Tenant and such
Interest Holder, and such form in any event shall specifically include
provisions that, in the case of a deed of trust or mortgage, in the event of
any foreclosure or other enforcement under the mortgage or deed of trust,
either by judicial proceeding or by power of sale, or if conveyance or transfer
of the Property shall be made in lieu of foreclosure, or in the case of a
lease, in the event of any termination of the lease for any reason (whether or
not because of exercise by lessor of any right or remedy) or any enforcement of
remedies by the lessor thereof (any such foreclosure or conveyance in lieu of
foreclosure, and any such lease termination or enforcement of lease remedies,
being herein referred to as “Enforcement”), then this Lease shall not be
terminated as a result of such Enforcement, whether by operation of law or
otherwise, but rather, notwithstanding such Enforcement, and the fact that this
Lease is subordinate to the deed of trust mortgage or lease (as the case may
be), this Lease shall continue in full force and effect as a binding lease
agreement between Owner and Tenant in accordance with its provisions, and the
rights of Tenant under this Lease shall not be interfered with nor disturbed by
any party owning the Property or any interest therein as a result of
Enforcement, or such party’s successors and assigns (any such owner, and its
successors and assigns, being herein called “Owner”).  However, nothing herein shall negate the
right of Owner to exercise the rights and remedies of Landlord under this
Lease, including the right to terminate this Lease as provided herein in the
event of a default by Tenant under this Lease, and as to any default by Tenant
under this Lease existing at the time of Enforcement, such Enforcement shall
not operate to waive or abate any action initiated by Landlord under this Lease
to terminate the same on account of such default.  Tenant agrees to subordinate its interest
under this Lease to any ground lease, mortgage or deed of trust lien hereafter
placed on the Property; provided that as a condition to such subordination, the
party to whose interest Tenant subordinates its interest hereunder shall
execute and deliver to Tenant a subordination, non-disturbance and attornment
agreement in the form attached as Exhibit D, or in another form
otherwise meeting the requirements of this Section.  Unless and until a subordination,
non-disturbance and attornment agreement is entered into between Tenant and the
applicable party, the holder of any ground or land lease that may now affect
any of the Land or the holder of any mortgage or deed of trust that may now
encumber the Property may elect at any time to cause their interests in the
Land or the Property to be subordinate and junior to Tenant’s interest under
this Lease by filing an instrument in the real property records of the county
in which the Building is located effecting such election and providing Tenant
with notice of such election.


 


7.8   Estoppel Certificate.  At the request of either Landlord or Tenant,
the other party will execute within ten (10) business days from the date
of receipt of the request, from time to time, an estoppel certificate
substantially in the form attached hereto as Exhibit E or in such
other form as may be reasonably requested by the requesting party; provided
that any request submitted by 


 


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Landlord requesting an
estoppel certificate by Tenant shall be accompanied by an estoppel certificate
executed by Landlord indicating whether or not there are any then existing
defaults by Tenant under this Lease, and if so, describing said defaults.  Tenant and any third party certifying, to the
best of such party’s knowledge and belief, to the facts (if true) described in
such certificate.


 


7.9   Subsequent Documents.  Any provision in this Lease for Tenant or
Landlord to execute estoppel certificates, subordination, non-disturbance or
attornment agreements or other documents pertaining to this Lease, is subject
to the requirements that, except as provided in this Lease or otherwise agreed
to, any such document must involve no diminution of Tenant’s or Landlord’s
rights provided for in this Lease, no additional liability of Tenant or Landlord,
and no cost or expense to Tenant or Landlord; and any estoppel certificate
regarding Lease defaults or breaches shall be limited to the actual knowledge
of the signing representative.


 


7.10 Interest Holder Privileges.  In the event of any Landlord’s Default,
Tenant shall give written notice thereof to Landlord and to any Interest Holder
whose address shall have been furnished to Tenant, such notice to be delivered
to said Interest Holder at the same time notice is delivered to Landlord.  Tenant shall offer such Interest Holder the
same opportunity to cure the default as Landlord is entitled, and Tenant shall
forbear in the exercise of any rights or remedies in the interim.


 


ARTICLE VIII


SUBLEASING, ASSIGNMENT, LIABILITY, AND CONSENTS


 


8.1   Sublease or Assignment by Tenant.


 


(a)           Tenant shall not (i) assign,
convey or otherwise transfer (whether voluntarily, by operation of law, or
otherwise) this Lease or any interest hereunder to any party other than to an
Affiliate or corporate successor of Tenant or (ii) allow any lien to be
placed upon Landlord’s or Tenant’s interest hereunder in and to the Leased
Premises or the Properties or the estates or interests created by this Lease.


 


(b)           Subject to the provisions of this Section 8.1(b),
Tenant may, at any time during the Term, sublease all or a portion of the
Leased Premises; provided that any sublease for a term of longer than five (5) years,
other than a sublease to an Affiliate or corporate successor of Tenant or to
one or more of Tenant’s vendors for the purpose of allowing such vendors to
place their personnel on-site at Tenant’s premises during the duration of the
vendor/vendee relationship, shall be subject to and contingent upon Landlord’s
right of recapture as provided in this Section 8.1(b).  If Tenant desires to sublet all or any
portion of the Leased Premises to a person or entity other than an Affiliate,
corporate successor or Tenant vendor for a term of longer than five (5) years,
Tenant shall notify Landlord in writing at least twenty (20) days prior to the
date on which Tenant desires such sublease to become effective (hereinafter
referred to in this Section 8.1(b) as the “Transfer Notice”)
of the (i) economic terms of the proposed subletting, (ii) the
identity of the proposed sublessee, (iii) the area proposed to be sublet
(hereinafter referred to as the “Sublet Space”), and (iv) the use
to be made by such sublessee of such Sublet Space.  The Transfer Notice shall also state in all
capital letters (or other prominent display), that Landlord shall be deemed to
have declined to recapture the Sublet Space and to have approved the 


 


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sublease if Landlord
fails to respond within twenty (20) days after receipt thereof.  If Landlord fails to respond to such Transfer
Notice within twenty (20) days after receipt thereof, Landlord shall be deemed
to have approved the proposed sublease as set forth in the Transfer
Notice.  Tenant agrees to use its
reasonable efforts to promptly provide any additional information about a
proposed sublease that is reasonably requested by Landlord.  Tenant shall deliver a copy of any such
sublease to Landlord promptly after its execution.  If Tenant shall fail to consummate the
sublease that was the subject of the Transfer Notice on the same terms as those
set forth in the Transfer Notice within ninety (90) days following the date of
the Transfer Notice, then Tenant shall be obligated to deliver to Landlord a
further Transfer Notice in regard to the proposed sublease, and the process
shall be repeated until the sublease shall be signed within the time and on the
terms required, or Landlord shall elect to recapture the Sublet Space.  If Landlord elects to recapture the Sublet
Space, upon such recapture and Tenant’s surrender and Landlord’s acceptance of
the Sublet Space, (i) Tenant shall be released from its obligations under
this Lease for the remainder of the Term of this Lease as they relate to the
recaptured Sublet Space only, including Tenant’s obligation to pay Annual Basic
Rent and Tenant’s Operating Expense Share and Tenant’s Tax Share as they relate
to the recaptured Sublet Space only, and (ii) Landlord shall pay all
leasing commissions, tenant improvement allowances and other costs associated
with releasing the recaptured Sublet Space and all costs associated with
demising the recaptured Sublet Space for separate occupancy.  No release of Tenant from its obligations
under this Lease as they relate to Sublet Space recaptured by Landlord as aforesaid
shall be deemed an exercise by Tenant of any Contraction Rights granted to
Tenant pursuant to Article XI.


 


(c)           Anything in this Lease contained to
the contrary notwithstanding, Tenant shall not have the right to sublease all
of any portion of the Leased Premises to an organization or person enjoying
sovereign or diplomatic immunity.


 


(d)           Each sublessee must fully observe all
covenants of this Lease applicable to the Sublet Space, and no consent by
Landlord to a sublease shall be deemed in any manner to be a consent to a use
not permitted under this Lease.  During
the occurrence of an Event of Default by Tenant hereunder, Landlord may collect
subrentals directly from a sublessee of the Sublet Space.


 


(e)           Notwithstanding the giving by
Landlord of its consent or approval to any subletting, assignment or occupancy
as provided in this Section 8.1 or any language contained in such
lease, sublease or assignment to the contrary, except to the extent this Lease
or any obligation or liability of Tenant hereunder is expressly terminated or
released in writing by Landlord, Tenant shall not be relieved of any of Tenant’s
obligations or covenants under this Lease and Tenant shall remain fully liable
hereunder.


 


(f)            Any attempted assignment, sublease
or other transfer by Tenant in violation of the terms and covenants hereof
shall be void and shall be a breach under Section 7.1(a)(iii), with
respect to which, however, no grace period shall apply.  Any consent or approval by Landlord to a
particular assignment, sublease or other transfer shall not constitute Landlord’s
consent or approval to any other or subsequent assignment, sublease or other
transfer, and any proposed assignment, sublease or other transfer by an
assignee, sublessee or transferee of Tenant or any other assignee, sublessee or
transferee shall be subject to the provisions hereof as if it were a proposed
assignment, sublease or other transfer by Tenant.


 


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(g)           Tenant agrees to reimburse Landlord
for reasonable legal fees and costs incurred by Landlord in connection with
Landlord’s consideration of any request by Tenant for a Subtenant
Non-Disturbance Agreement in connection with a Cost Approved Sublease, it being
understood that, if the sublease does not satisfy the criteria for a Cost
Approved Sublease, Landlord may grant or withhold its approval of the Subtenant
Non-Disturbance Agreement in Landlord’s sole discretion.


 


(h)           If (i) Landlord declines its
right of recapture and Tenant thereafter enters into a sublease that satisfies
mutually acceptable criteria theretofore established by Landlord and Tenant or (ii) Tenant
obtains Landlord’s prior written approval of the particular sublease, including
the term, the subtenant, the subrent, the sublease improvement allowances and
other material economic and non-economic terms of the sublease before Tenant
enters into the sublease with the third party subtenant (a subtenant who is
neither an Affiliate, corporate successor of Tenant nor a Tenant vendor); it
being understood that, if the sublease does not satisfy the mutually approved
criteria, Landlord may grant or withhold its approval of the sublease for
purposes of this cost reimbursement in Landlord’s sole discretion (any such
sublease, a “Cost Approved Sublease”), then Landlord shall reimburse
Tenant for the unamortized balance (computed without interest on a straight
line basis over the basic term of the Cost Approved Sublease, excluding
renewals) of the actual, documented leasing commissions and subtenant
improvement expenditures made by Tenant in connection with delivering the
Sublet Space to the subtenant pursuant to the Cost Approved Sublease,
calculated and payable as of the date Tenant surrenders possession of the
subject Sublet Space to Landlord.  If so
requested by Landlord, Tenant shall deliver to Landlord, a statement in
reasonable detail itemizing Tenant’s sublease improvement expenditures to the
Sublet Space and such other and further information and documentation regarding
the Cost Approved Sublease as Landlord shall reasonably request.


 


(i)            Any provision of the Lease to the
contrary notwithstanding, the rights granted to Tenant pursuant to provisions
of Section 1.4 (Options to Renew), Section 3.4
(Building Identity; Signage; Exclusivity), Article IX (Purchase and
Sale), Article X (Expansion Rights) and Article XI
(Contraction Rights) are personal to the herein named Tenant and any corporate
successor or permitted assignee of this Lease and such rights may not be
assigned or subleased to, or exercised by, any other person or entity, it being
understood that no assignment of this Lease or subletting of all or a portion
of the Leased Premises shall cancel or void any of the aforesaid rights as they
pertain to the herein named Tenant and any corporate successor permitted
assignee of this Lease.  Tenant shall
furnish to Landlord copies of any and all subleases executed by Tenant within
ten (10) business days following the date such sublease is by its terms
effective and whether such sublease is a Cost Approved Sublease and, if so,
Tenant’s sublease improvement expenditures incurred in connection
therewith.  All subleases shall by their
terms be subject and subordinate to this Lease as amended from time to time.


 


(j)            In any instance in which Landlord
shall have the right of recapture but Tenant shall, in violation of Section 8.1(b),
sublease Sublet Space without first offering the same to Landlord, then without
limitation of Landlord’s rights, Landlord shall have the continuing right of
recapture pursuant to Section 8.1(b) upon learning of such
sublease and so advising Tenant; the twenty (20) day response period reserved
to Landlord under Section 8.1(b) being deemed tolled until the
date Tenant delivers a Transfer Notice in respect of the Sublet Space and shall
run 


 


65

















 


for a period of twenty
(20) days thereafter.  If Tenant shall
have subleased the Sublet Space at a profit (after deduction of Tenant’s
reasonable, documented costs of subleasing) and Landlord thereafter elects to
recapture, then Tenant shall be obliged to compensate Landlord, upon Landlord’s
demand, in the full amount of such profit from the inception of such sublease
to the date of recapture.  Except as
provided in this Section 8.1(j), Tenant shall retain any and all
profits on subleasing.


 


8.2   Assignment by Landlord.  At any time after the Commencement Date, but
subject to the provisions of Section 9.3, Landlord shall have the
right to transfer, assign or convey, in whole or in part, the Properties of
which the Leased Premises are a part, or any portion or portions thereof, and
any and all of its rights under this Lease, and in the event Landlord
transfers, assigns, or conveys its rights and obligations under this Lease,
Landlord shall thereby be released from any future obligations hereunder and
Tenant agrees to look solely to such successor in interest of the Landlord for
performance of such future obligations to the extent such successor in interest
has, by written instrument of which a copy has been delivered to Tenant,
assumed all of the liabilities and obligations of its predecessor in interest
under this Lease accruing from and after the date of such transfer, assignment
or conveyance; the foregoing provision shall not release the transferring
Landlord from any obligation or liability which has not been assumed by such
successor in interest of Landlord. 
Except for such release of the prior Landlord, in no event shall any
transfer, assignment or conveyance affect or otherwise impair the rights of Tenant
to accrued self-help, abatement or other rights and remedies of Tenant
hereunder arising out of any breach of an express warranty or representation of
any Landlord contained in this Lease, the failure of any Landlord to perform
any covenant of Landlord under this Lease or otherwise arising out of this
Lease.  Notwithstanding any other
provision of this Lease, except as expressly provided in Sections 9.3,
no transfer, assignment or conveyance of interest of the transferring Landlord
in all or any part of the Property or the Land shall release or reduce, or
prejudice Tenant’s rights against the transferring Landlord with respect to,
any liabilities or obligations of Landlord which accrued, or relate to any
period of time, prior to the date of such transfer, assignment or conveyance.


 


ARTICLE IX


PURCHASE AND SALE


 


9.1   Tenant’s Right of First Refusal to
Purchase.  If at any time during the
Initial 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 at
any sale incidental to the exercise of any remedy provided for in any mortgage
encumbering a Building or a Property, or a proposed transaction with an
Affiliate of Landlord) to purchase a Major Property, which Third Party Offer is
in all respects acceptable to Landlord, and if at the time Landlord receives
such Third Party Offer, no Event of Default has occurred hereunder and shall be
continuing and the herein named Tenant, or its Affiliates, shall remain in
possession of at least thirty-five percent (35%) of the Net Rentable Area of
such Major Property, then Landlord shall notify Tenant of such Third Party
Offer.  If both of the conditions
enumerated in the previous sentence shall be satisfied, Landlord shall notify
Tenant of such Third Party Offer and for a period of twenty (20) days after
such notice is sent by Landlord, Tenant shall have the exclusive right to
accept Landlord’s offer to purchase Landlord’s interest in the Major 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 


 


66

















 


Landlord within said
twenty (20) days after the date of Landlord’s notice. Such purchase shall occur
not later than sixty (60) days following Tenant’s acceptance of Landlord’s
offer.  On the date of such purchase,
Landlord shall convey and assign to Tenant, or its designee, Landlord’s
interest in the Major Property in consideration of payment of the sale price
therefor, in accordance and upon compliance with the terms and conditions of
the Third Party Offer, and this Lease shall terminate with respect to the
Leased Premises located in the Major Property conveyed to Tenant.  If Tenant fails to accept Landlord’s offer
within such twenty (20) day period, then Landlord shall be free to sell the
Major Property for a period of nine (9) months thereafter on the same
economic terms and conditions (or on different terms more favorable to
Landlord, as seller) without offering the Major Property to Tenant.  If Landlord does not convey its interest in
the Major Property within such nine (9) month period, then Tenant’s rights
pursuant to this paragraph shall be reinstated. 
In no event shall the right of first refusal provided in this Section 9.1
apply to any foreclosure of any Property or the delivery of any deed-in-lieu of
foreclosure and such right of first refusal shall terminate and be of no
further force or effect upon and following a foreclosure or the delivery of a
deed-in-lieu of foreclosure.


 


9.2   Right of First Offer on Sale.


 


(a)           During the Initial Term, with respect
to all Properties that are not Major Properties, and during each and any
Renewal Term, with respect to all Properties for which Tenant shall have renewed
the term hereof in accordance with the provisions of Section 1.4 of
this Lease (as applicable, a “ROFO Eligible Property”), so long as no
Event of Default shall have occurred hereunder and be continuing, and for so
long as the herein named Tenant, or its Affiliates, shall remain in possession
of at least thirty-five percent (35%) of the Net Rentable Area of such ROFO
Eligible Property (together, the “ROFO Eligible Conditions”), Tenant
shall have the right of first offer to purchase such Properties should Landlord
determine to sell such ROFO Eligible Property, as more fully provided
below.  In no event shall the right of
first offer provided in this Section 9.2 apply to any foreclosure
of any Property or the delivery of any deed-in-lieu of foreclosure and such
right of first offer shall terminate and be of no further force or effect upon
and following a foreclosure or the delivery of a deed-in-lieu of foreclosure.


 


(b)           For so long as the ROFO Eligible
Conditions persist, Landlord shall notice Tenant as to the offer price as well
as other economic terms upon which Landlord wishes to sell the ROFO Eligible
Property, specifying the last date upon which Landlord will agree to make
settlement on such sale.  Tenant shall
have thirty (30) days following Landlord’s delivery of such notice within which
to respond to such notice. If Tenant does not accept Landlord’s offer within
such thirty (30) day period, Tenant’s rights under this Section shall
lapse and Landlord shall thereafter be free to market and sell the ROFO Eligible
Property upon the same economic terms and for the price stated in the offer for
a period of nine (9) months; provided that if Landlord fails to execute a
definitive agreement to sell the ROFO Eligible Property within nine (9) months
following the date of Landlord’s original notice to Tenant or, within such nine
(9) month period, Landlord desires to sell the ROFO Eligible Property for
a purchase price or on economic conditions that are less than the offer price
and conditions previously identified to Tenant, Landlord shall re-offer the
ROFO Eligible Property to Tenant as set forth above.


 


9.3   Separate Lease.  If Landlord either (a) conveys a
Property to a party that is not an Affiliate of Landlord after complying with
the provisions of Sections 9.1 and 9.2, to the extent that the
same 


 


67

















 


are applicable, or (b) conveys
a Property at which Tenant’s Occupancy Percentage is twenty-five percent (25%)
or less to an Affiliate of FSG, if so requested in writing by Landlord, Tenant,
as tenant, shall execute a Separate Lease with the new owner of the Property,
as landlord, which Separate Lease shall relate solely to the conveyed Property
and shall (i) be for the same Term, including Renewal Terms, as would
otherwise pertain under this Lease (any such Separate Lease, a “Continuing
Term Separate Lease”) or, at Tenant’s election and/or Landlord’s election,
but, if at Landlord’s election, subject to disapproval by Tenant in Tenant’s
sole discretion, an initial term of five (5) years, with renewal terms of
five (5) years each through the Expiration Date (any such Separate Lease,
a “Five Year Term Separate Lease”), (ii) be for the same Annual
Basic Rent, Excess Basic Rent, if any, and Additional Rent as would otherwise be
payable under this Lease (regardless of whether the Separate Lease is a
Continuing Term Separate Lease or a Five Year Term Separate Lease) and (iii) otherwise
be on all of the same terms and conditions as set forth in this Lease, except
that (A) if the Contraction Premises are located in a Property that is
subject to a Continuing Term Separate Lease, Tenant shall exercise the
Contraction Rights granted to Tenant under Article XI by entering
into a Contraction Assignment (if the Contraction Premises constitutes all of
the Leased Premises at the Property) or a Contraction Sublease (if the
Contraction Premises constitutes a portion, but less than all, of the Leased
Premises at the Property) with FSG or, at FSG’s election, an Affiliate of FSG
and (B) Tenant shall have no Contraction Rights under Article XI
for any Properties subject to Five Year Term Separate Leases.  Immediately upon the execution of a Separate
Lease for a Property by the new owner of the Property and Tenant, this Lease
shall terminate with respect to such Property and the Separate Lease shall in
all aspects be controlling, except for FSG’s obligation to enter into a
Contraction Assignment or a Contraction Sublease, as applicable, to effectuate
Tenant’s exercise of Contraction Rights for any Property subject to Continuing
Term Separate Leases, which obligation of FSG shall continue so long as Tenant
continues to have Contraction Rights under this Lease.  Notwithstanding the foregoing, in no event
shall Tenant’s right to elect (without Landlord’s approval) a Five Year Term
Separate Lease as provided in this Section 9.3 apply to any
foreclosure of any Property or the delivery of any deed-in-lieu of foreclosure
and Tenant’s right to elect (without Landlord’s approval) a Five Year Term
Separate Lease shall terminate and be of no further force or effect upon and
following a foreclosure or the delivery of a deed-in-lieu of foreclosure.


 


ARTICLE X


EXPANSION RIGHTS


 


10.1     Quarterly
Availability Reports.  Landlord shall
advise Tenant in writing (each such writing, a “Quarterly Availability
Report”) on or about February 10, May 10, August 10 and November 10
during each year of the Initial Term of this Lease of all space then available
for leasing in the Properties and in all other properties then owned by
Landlord and all other wholly-owned Affiliates of FSG (any such properties not
owned by Landlord being hereinafter referred to as an “Affiliate Owned
Property”).  Each Quarterly
Availability Report shall list (a) the location of the Property or
Affiliate Owned Property at which the space is available, (b) the
approximate Net Rentable Area of the available space at each property, (c) the
anticipated date of availability and (d) the approximate base rent and
estimated additional rent (and other charges) to be paid therefor.  Landlord will use commercially reasonable
efforts to provide accurate information in the Quarterly Availability Reports,
but Tenant acknowledges and agrees that Landlord does not and shall not represent
or warrant the accuracy or completeness of the 


 


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information contained in
such reports or that any space identified as available for leasing in a report
shall be available if, as and when Tenant desires to lease such space.  In no event shall Landlord have any liability
to Tenant for any inaccurate or incomplete information set forth in a Quarterly
Availability Report or shall any failure by Landlord to timely deliver a
Quarterly Availability Report to Tenant constitute a Landlord Default under
this Lease or provide Tenant with any right or remedy against Landlord or any
other person other than an action to specifically enforce Landlord’s
obligations under this Section 10.1.


 


10.2     Tenant’s
Expansion Notice.


 


(a)               If Tenant shall desire to lease
available space at a Property or an Affiliate Owned Property, Tenant shall
notify Landlord of such interest (any such notification, a “Tenant’s
Expansion Notice”) and identify (a) the Property or the Affiliate
Owned Property in which Tenant desires to lease additional space, (b) the
approximate Net Rentable Area of the expansion space desired by Tenant, (c) the
date by which Tenant desires to occupy the expansion space and (d) whether
Tenant is committing, in advance of receiving the Landlord Expansion Response,
to lease the space identified in the Tenant Expansion Notice if and when
available (any such space, “Pre-Committed Space”) subject to Tenant’s
acceptance of Landlord’s determination of the Fair Market Rental Value of such
Pre-Committed Space.  Tenant Expansion
Notices may also include, or be combined with, Contraction Rights Exercise
Notices, as provided in Article XI.


 


(b)              Tenant acknowledges that Landlord’s
Quarterly Availability Reports shall not identify the Purchase Agreement Vacate
Space as available for leasing until after Tenant vacates and surrenders
possession of such space to Landlord as provided in the Purchase
Agreement.  Accordingly, if Tenant
desires to lease Purchase Agreement Vacate Space as Leased Premises hereunder,
Tenant shall notify Landlord in writing within the time period specified in the
Purchase Agreement of the Purchase Agreement Vacate Space that Tenant desires
to lease and whether Tenant desires to add such space to the Leased Premises as
Short Term Expansion Space or Coterminous Expansion Space as herein
provided.  In the event Tenant elects to
add all or any portion of the Purchase Agreement Vacate Space to the Leased
Premises as Coterminous Expansion Space, Landlord and Tenant shall re-calculate
and confirm the Termination Rights available to Tenant under Section 11.5.


 


10.3     Landlord
Expansion Response.  Landlord shall,
within fifteen (15) days following Landlord’s receipt of a Tenant Expansion
Notice notify Tenant (any such notification, a “Landlord Expansion Response”)
if the space identified in Tenant’s Expansion Notice is available for leasing
and, if so, (a) the location, approximate Net Rentable Area and
configuration of the potential expansion space, (b) the date by which
Landlord anticipates that the potential expansion spaces will become available
and (c) Landlord’s opinion of the Fair Market Rental Value of the
available potential expansion space.  If
no potential expansion space that satisfies Tenant’s criteria is available, the
Landlord Expansion Response shall so state.


 


10.4     Expansion
Space Leases.  Subject to the
limitations expressed in Section 10.6, Tenant shall have the right
and option (“Expansion Rights”) to lease all or a portion of the space
available for leasing in the Properties and in Affiliate Owned Properties as
either Coterminous Expansion Space or Short Term Expansion Space, as Tenant may
elect, on the terms and conditions set forth in this Article X;
provided that all Expansion Space leased (a) during any 


 


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Renewal Term and (b) in
any Affiliate Owned Property shall, regardless of Tenant’s election, be
regarded as Short Term Expansion Space. 
Tenant shall exercise an Expansion Right by written reply to a Landlord
Expansion Response (any such timely reply, an “Expansion Space Acceptance”),
which shall specify, with particularity, (a) the location, approximate Net
Rentable Area and configuration of the space described in the Landlord
Expansion Response that Tenant desires to lease, (b) whether Tenant
desires to lease such space for a term that is coterminous with the Term of
this Lease (“Coterminous Expansion Space”) or for a term of five (5) years
(“Short Term Expansion Space”) and (c) whether Tenant agrees with
Landlord’s opinion of the Fair Market Value of the space that Tenant desires to
lease or if Tenant desires to have the same determined by appraisal as provided
in Sections 1.4(d) and (e). 
All space for which Tenant timely exercises an Expansion Right, either
as Coterminous Expansion Space or Short Term Expansion Space, shall be referred
to as “Expansion Space”.


 


(a)           Purchase Agreement Vacate Space that
Tenant elects to add to the Lease Premises under this Lease as Coterminous
Expansion Space shall be added on the same terms and conditions as apply to all
other Leased Premises as then demised hereunder so that (i) the Annual
Basic Rent payable for the Purchase Agreement Vacate Space shall be the same as
the Annual Basic Rent payable for all other Leased Premises (except Short Term
Expansion Space), calculated as the Net Rentable Area of the Purchase Agreement
Vacate Space multiplied by the Annual Basic Rent Factor and (ii) the Term
of this Lease with respect to the Purchase Agreement Vacate Space shall be
coterminous with the Term of this Lease for all other Leased Premises (except
Short Term Expansion Space) in the Property in which the Purchase Agreement
Vacate Space are located, including any Renewal Terms, as Tenant may elect;
provided that such Coterminous Expansion Space shall not (x) generate
Relocation Rights under Section 11.3 if the Purchase Agreement
Vacate Space is added to the Leased Premises hereunder while Tenant is in
possession thereof or within ten (10) business days following the date on
which Tenant surrenders possession of such space to Landlord in conformity with
the requirements of Section 11 of the Purchase Agreement or (y) constitute
Expansion Space for which Tenant shall at any time be obligated to pay Excess
Basic Rent under Section 10.5.


 


(b)           Coterminous Expansion Space (other
than Purchase Agreement Vacate Space) shall be added as Leased Premises under
this Lease on the same terms and conditions as apply to all other Leased
Premises as then demised hereunder so that (i) the Annual Basic Rent
payable for the Coterminous Expansion Space shall be the same as the Annual
Basic Rent payable for all other Leased Premises (except Short Term Expansion
Space), calculated as the Net Rentable Area of the Coterminous Expansion Space
multiplied by the Annual Basic Rent Factor and (ii) the Term of this Lease
with respect to the Coterminous Expansion Space shall be coterminous with the
Term of this Lease for all other Leased Premises (except Short Term Expansion
Space) in the Property in which the Coterminous Expansion Space are located,
including any Renewal Terms, as Tenant may elect.  For each square foot of Net Rentable Area of
Coterminous Expansion Space (other than Purchase Agreement Vacate Space) added
to the Leased Premises by Tenant, Tenant shall receive and be permitted to
exercise Relocation Rights as provided in Article XI on Contraction
Premises containing up to the same Net Rentable Area; provided that Relocation
Rights created by adding any particular Coterminous Expansion Space may only be
exercised, if at all, by Tenant’s delivering a Contraction Rights Exercise
Notice to Landlord during the eighteen (18) month period following the date on
which such Coterminous Expansion 


 


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Space was added to the
Leased Premises and Tenant began paying Rent thereon (such period for each
Coterminous Expansion Space, as applicable, the “Relocation Rights Exercise
Period”).


 


(c)           Short Term Expansion Space (including
any Purchase Agreement Vacate Space) shall be added as Leased Premises under
this Lease on the same terms and conditions as apply to all other Leased
Premises as then demised hereunder, except that (i) the Annual Basic Rent
payable for the Short Term Expansion Space shall be the Fair Market Rental
Value of the Short Term Expansion Space, determined by appraisal as provided in
Sections 1.4(d) and (e), (ii) the Term of this Lease
with respect to the Short Term Expansion Space shall be the lesser of (A) five
(5) years or (B) the then remaining balance of the Term for the remainder
of the Leased Premises in the Property in which the Short Term Expansion Space
are located, (iii) Tenant shall have the right, exercisable by written
notice to Landlord not less than twelve (12) months prior to the expiration of
the then current Term for the Short Term Expansion Space, to renew the Term for
the Short Term Expansion Space for one or more periods, as Tenant may elect,
each equal to the lesser of (A) five (5) years or (B) the then
remaining balance of the Term for the remainder of the Leased Premises in the
Property in which the Short Term Expansion Space are located, (iv) the
Annual Basic Rent payable in respect of the Short Term Expansion Space during
any renewal Term shall be the Fair Market Rental Value of the Short Term
Expansion Space, determined as of the date of Tenant’s renewal notice by
appraisal as provided in Sections 1.4(d) and (e), (v) Tenant
shall not be permitted to exercise Contraction Rights under this Lease with
respect to any Short term Expansion Space and (vi) Short Term Expansion
Premises leased by Tenant under this Lease shall constitute “Qualifying
Expansion Premises” under the URR Agreement.


 


(d)           Tenant shall accept all Expansion
Space in its “AS - IS” condition, and Rent for all Expansion Space shall
commence on the earlier of (i) the date Tenant commences business
operation in such Expansion Space or (ii) ninety (90) days following the
date on which Landlord delivers such Expansion Space to Tenant free from the
rights of other tenants and occupants. 
Tenant shall pay all costs incident to Tenant’s relocation to, moving
into and making the Expansion Premises ready for Tenant’s use and occupancy,
which tenant improvement work shall be performed by Tenant in conformity with
the provisions of Section 5.2.


 


(e)           Promptly following Tenant’s timely
exercise of an Expansion Right, Landlord and Tenant shall amend the Lease
Supplement for the Property in which the Expansion Space are located and Exhibit A
to this Lease to reflect the addition of the Expansion Space to the Leased
Premises and to confirm the terms thereof, including the Net Rentable Area of
the Expansion Space, the Annual Basic Rent payable in connection therewith, the
Term of Expansion Space, the change to Tenant’s Occupancy Percentage resulting
from the addition of the Expansion Space and the Fair Market Rental Value of
any Coterminous Expansion Space for purposes of calculating Excess Basic Rent,
if any, determined by appraisal as provided in Sections 1.4(d) and (e).  If the Expansion Space is located in an Affiliate
Owned Property, FSG shall cause the Affiliate that owns such property to enter
into a separate lease for the Expansion Space with Tenant on the terms and
conditions herein set forth and, to the extent applicable, substantially in the
form of this Lease.


 


(f)            Tenant’s right to lease less than
all of the space identified in the Landlord Expansion Response shall be
qualified by the requirement that, if Tenant desires to lease less than full
floor in a Building, any available space on such partial floor that is not
leased by Tenant 


 


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must have a size and
configuration, as reasonably agreed by Landlord and Tenant, that makes it
readily leaseable to third party tenants.


 


10.5     Excess
Basic Rent; Recalculation of Termination Rights.  Promptly following the expiration of the
Relocation Rights Exercise Period for each Coterminous Expansion Space (other
than Purchase Agreement Vacate Space), Landlord shall determine whether Tenant
has exercised, in whole or in part, the Relocation Rights created by adding
such Coterminous Expansion Space to the Leased Premises and, if so, the Net
Rentable Area of the Contraction Premises so terminated.  If the aggregate Net Rentable Area of the
Contraction Premises terminated from this Lease as a result of Tenant’s
exercise of the Relocation Rights created by a particular Coterminous Expansion
Space is less than the Net Rentable Area of such Coterminous Expansion Space
(the Net Rentable Area of any such deficiency, the “Unused Relocation Rights
Area”), and if the Fair Market Rental Value of such Coterminous Expansion
Space (determined as provided in Section 10.4 and calculated on a
cost per Net Rentable Area basis) is greater than the Annual Basic Rent Factor
at the time such Coterminous Expansion Space is added to the Leased Premises
(the amount of any such excess, expressed in cost per Net Rentable Area, the “FMRV
Increment”), Tenant shall pay Landlord additional basic rent (“Excess
Basic Rent”) during the Initial Term of this Lease for such Coterminous
Expansion Space, calculated as the Unused Relocation Rights Area for such
Coterminous Expansion Space multiplied by the FMRV Increment for such
Coterminous Expansion Space.  The Excess
Basic Rent payable by Tenant during the Relocation Rights Exercise Period for
each Coterminous Expansion Space shall be payable, lump sum in arrears, at the
time Landlord determines that Excess Basic Rent is payable with respect to such
Coterminous Expansion Space.  Thereafter,
and continuing during the remainder of the Initial Term, Excess Basic Rent
shall be payable monthly, in advance, at the same time that Annual Basic Rent
is payable.  Any Excess Basic Rent
payable by Tenant shall be increased by one and one-half percent (1.5%) at the
beginning of, as applicable, the sixth, eleventh and sixteenth Lease Years;
provided that the increase following any period of less than five (5) years
shall be pro rata.  In the event Tenant
is required to pay Excess Basic Rent with respect to any Coterminous Expansion
Space as herein provided, effective as of the expiration of the Relocation
Rights Exercise Period for such Coterminous Expansion Space, Tenant’s aggregate
Termination Rights as described in Section 11.5 shall be increased
by an amount equal to the Unused Relocation Rights for such Coterminous
Expansion Rights multiplied by six percent (6%), with such product multiplied
by a fraction, the numerator of which is the number of Lease Years remaining
when the Relocation Rights Exercise Period for such Coterminous Expansion Space
commenced and the denominator of which is fifteen (15).


 


10.6     Subordination
of Expansion Space Rights.  Anything
herein contained to the contrary notwithstanding, Tenant’s Expansion Rights as
provided in this Article X are and shall be subordinate to any
rights heretofore or hereafter granted to any other party with respect to space
in any and all Properties and Affiliate Owned Property.  Landlord and the owners of Affiliate Owned
Property may, at their discretions, lease available space in any and all
Properties and Affiliate Owned Property to any other party on such terms and
conditions as they shall determine, at any time, including after Landlord’s
delivery of a Landlord Expansion Response, but before Landlord’s receipt of an Expansion
Space Acceptance with respect to any Expansion Space.  Landlord and the owners of Affiliate Owned
Property may choose to use any space that is or about to become vacant within
any Property or Affiliate Owned Property for marketing or property management
purposes, without notifying or offering such space to Tenant, or giving 


 


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rise to any right of
Tenant hereunder.  Nothing contained in
this Article X is intended, nor may anything herein be relied upon
by Tenant, as a representation by Landlord or any other party as to the
availability of expansion space within any Property or Affiliate Owned Property
at any time, and neither Landlord nor the owner of Affiliate Owned Property
shall be obligated to lease any space identified as available on any Landlord
Expansion Response to Tenant unless, at the time Landlord receives an Expansion
Space Acceptance, Landlord or such owner shall not have entered into a letter
of intent or a lease agreement with respect to the Expansion Space that is
covered by the Expansion Space Acceptance. 
Notwithstanding the foregoing, Landlord shall not enter into a lease or
letter of intent for any space identified in a Tenant Expansion Notice as
Pre-Committed Space for a period of thirty (30) days following Landlord’s
receipt of the Tenant Expansion Notice identifying such Pre-Committed Space.


 


10.7     Duration.  Tenant’s Expansion Rights under this Article X
shall continue throughout the Term until there are fewer than twelve (12)
months then remaining in the Term and Tenant has not exercised any then
available Renewal Option. 
Notwithstanding the foregoing, Landlord shall cause all Separate Leases
to include Expansion Rights upon substantially the same the terms and
conditions as are set forth in this Article X; provided that
Expansion Rights in a Separate Lease shall be limited to leasing available
space in the Property subject to such Separate Lease (and not in any other
Property or Affiliate Owned Property) and Five Year Term Separate Leases shall
only grant Tenant the right and option to lease Short Term Expansion Space.


 


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


 


ARTICLE XI


CONTRACTION RIGHTS


 


11.1     Contraction
Rights.  Subject to the terms and
conditions of this Article XI, during the Initial Term of this
Lease (but not during any Renewal Terms), Tenant shall have the right and
option (“Contraction Rights”) to terminate this Lease from time to time
with respect to portions of the Leased Premises (excluding any Short Term
Expansion Space) and/or to terminate a Continuing Term Separate Lease with
respect to portions of the premises leased under such Continuing Term Separate
Lease (excluding any Short Term Expansion Space), as Tenant may elect, either
by exercise of Relocation Rights, Early Termination Rights or Termination
Rights on the following terms and conditions.


 


11.2     Contraction
Rights Exercise Notice.  Tenant shall
exercise a Contraction Right by written notice to Landlord (any such notice, a “Contraction
Rights Exercise Notice”), which shall specify, with particularity, (a) the
location, approximate Net Rentable Area and configuration of the portions of
the Leased Premises (excluding any Short Term Expansion Space) and/or portions
of the premises leased under Continuing Term Separate Leases (excluding any
Short Term Expansion Space) that Tenant desires to vacate and to terminate this
Lease and/or a Continuing Term Separate Lease with respect to (such space, the “Contraction
Premises”), (b) whether Tenant desires to exercise its Contraction
Rights for the Contraction Premises as a


 


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Relocation Right, an
Early Termination Right or a Termination Right or a combination thereof (and,
if a combination, the Net Rentable Areas covered by each such form of
Contraction Right), (c) the approximate date on which Tenant shall vacate
and surrender possession of the Contraction Premises to Landlord, which date
shall be no earlier than sixty (60) days following the date of Tenant’s
Contraction Rights Exercise Notice for Relocation Rights and Termination Rights
and no earlier than fifty-six (56) weeks following the date of Tenant’s
Contraction Rights Exercise Notice for Early Termination Rights (except that a
Tenant’s Contraction Rights Exercise Notice for Early Termination Rights
effective as of the last day of the second Lease Year may be given up to one
hundred twenty (120) days prior to the desired vacation and surrender date), (d) Tenant’s
determination of the reduction in Rent payable under this Lease and/or
Continuing Term Separate Leases that will result from Tenant’s desired
surrender of the Contraction Premises and (e) for Early Termination Rights
only, the required Early Termination Fee. 
If Tenant’s Contraction Rights Exercise Notice indicates that Tenant
desires to exercise a Relocation Right and, on the date of the Contraction
Rights Exercise Notice, Tenant does not have available Relocation Rights
sufficient to cover the Net Rentable Area of the Contraction Premises to be
terminated by Relocation Rights, Tenant’s Contraction Rights Exercise Notice
shall nevertheless be effective as to the entire Contraction Premises
identified therein and Tenant shall vacate and surrender possession of such
entire Contraction Premises to Landlord, but, on the Contraction Premises
Surrender Date, Tenant’s obligation to pay Rent on the Contraction Premises shall
terminate as provided in Section 11.6 only as to the number of
square feet of Net Rentable Area that Tenant has available Relocation Rights to
cover and Tenant shall continue to pay Rent on (but, after the Contraction
Premises Surrender Date, shall not have any possessory rights in) the excess
portion of the Contraction Premises until the earlier of the date on which (i) Tenant
generates the necessary Relocation Rights by adding sufficient additional
Coterminous Expansion Space to the Leased Premises and beginning to pay Rent
thereon or (ii) Tenant notifies Landlord in writing that Tenant desires to
exercise available Termination Rights on the excess Contraction Premises.  The approximate Net Rentable Area of the
Contraction Premises shall be as identified by Tenant in Tenant’s Contraction
Rights Exercise Notice, subject to final measurement by Landlord in conformity
with the Measurement Standard.  Tenant
may exercise available Contraction Rights on whole or partial floors at any
Property, as Tenant may elect; provided that if Tenant elects to exercise
Contraction Rights on less than full floor in a Building, any such partial
floor Contraction Premises shall have a size and configuration, as reasonably
agreed by Landlord and Tenant, that makes it readily leaseable to third party
tenants.


 


11.3     Relocation
Rights.  Subject to the terms and
conditions of this Article XI, during the Initial Term of this
Lease (but not during any Renewal Terms), Tenant shall have the right from time
to time to exercise Contraction Rights by surrendering to Landlord Contraction
Premises containing the same or less Net Rentable Area as the Net Rentable Area
of Coterminous Expansion Space added to the Leased Premises by Tenant (such
rights, “Relocation Rights”); provided that Tenant shall only be
permitted to exercise Relocation Rights during the Relocation Rights Exercise
Period for the Coterminous Expansion Space that created the applicable
Relocation Rights.


 


11.4     Early
Termination Rights.  Subject to the
terms and conditions of this Article XI, during the Initial Term of
this Lease (but not during any Renewal Terms), Tenant shall have the right from
time to time to exercise Contraction Rights by surrendering to Landlord
Contraction Premises containing up to four hundred thousand (400,000) square
feet of Net Rentable Area, in 


 


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the aggregate (such
rights, “Early Termination Rights”); provided that (a) until the
expiration of the second Lease Year, Tenant may not exercise any Early
Termination Rights and (b) prior to the expiration of the third Lease
Year, Tenant shall only be permitted to exercise Early Termination Rights by
sending Contraction Rights Exercise Notices to Landlord on Contraction Premises
containing Net Rentable Area of up to two hundred thousand (200,000) square
feet of Net Rentable Area, in the aggregate. 
Tenant’s Contraction Rights Exercise Notice for Early Termination Rights
shall only be effective if accompanied by a payment in the amount of the Early
Termination Fee for the Contraction Premises identified in such notice.  In the event that the Contraction Premises
Surrender Date for all or any portion of the Contraction Premises occurs after
the anticipated date of termination as stated in the Contraction Rights
Exercise Notice, promptly following the Contraction Premises Surrender Date for
such Contraction Premises Landlord and Tenant shall re-calculate the Early
Termination Fee for the Contraction Premises using the actual Contraction
Premises Surrender Date, and Tenant shall pay any additional Early Termination
Fee amount to Landlord within twenty (20) days following such determination.


 


11.5     Termination
Rights.  Subject to the terms and
conditions of this Article XI, Tenant shall have the right,
exercisable at any time after the expiration of the sixth month of the fourth
Lease Year and prior to the expiration of the Initial Term, to exercise
Contraction Rights by surrendering to Landlord Contraction Premises containing
up to Two Hundred Eighty-Two Thousand Eight Hundred Sixty (282,860) square feet
of Net Rentable Area (i.e., six percent (6%) of Net Rentable Area of the Leased
Premises plus the Exchange Space on the Commencement Date), in the aggregate
(such rights, “Termination Rights”); provided that (a) until the
expiration of the sixth month of the fourth Lease Year, Tenant may not exercise
any Termination Rights and (b) prior to the expiration of the sixth month
of the ninth Lease Year, Tenant shall only be permitted to exercise Termination
Rights by sending Contraction Rights Exercise Notices to Landlord on
Contraction Premises containing Net Rentable Area of up to One Hundred
Forty-One Thousand Four Hundred Thirty (141,430) square feet of Net Rentable
Area (i.e., three percent (3%) of Net Rentable Area of the Leased Premises plus
the Exchange Space on the Commencement Date), in the aggregate.


 


11.6     Contraction
Premises Rent.  Annual Basic Rent,
Excess Basic Rent, if any, and Additional Rent for the Contraction Premises
shall continue to be due and payable until the later of (a) sixty (60)
days following the date of Tenant’s Contraction Rights Exercise Notice for such
Contraction Premises for Relocation Rights and Termination Rights and fifty-six
(56) months following the date of Tenant’s Contraction Rights Exercise Notice
for Early Termination Rights (except that a Tenant’s Contraction Rights
Exercise Notice for Early Termination Rights effective as of the last day of
the second Lease Year may be given up to one hundred twenty (120) days prior to
the desired vacation and surrender date) or (b) the date on which Tenant
shall vacate and surrender possession of the Contraction Premises to Landlord
as provided in Section 4.1 (the later such date, the “Contraction
Premises Surrender Date”).  Tenant
shall bear all costs and expenses incident to vacating and surrendering the
Contraction Premises in the condition required by this Article XI.  Promptly following the Contraction Premises
Surrender Date, Landlord and Tenant shall amend the Lease Supplement for the
Property in which the Contraction Premises are located and Exhibit A
to this Lease to reflect the termination of the Contraction Premises from the
Leased Premises and to confirm the terms thereof, including the 


 


75

















 


reduction in the Net
Rentable Area of the Leased Premises, the reduction in Annual Basic Rent and
the change to Tenant’s Occupancy Percentage at the Contraction Premises.


 


11.7     Surrender;
Contraction Premises Demising Work. 
Tenant shall remove all of Tenant’s personal property from the
Contraction Premises on or before the Contraction Premises Surrender Date.  In the event Tenant fails to remove its
personal property from the Contraction Premises by such date, Landlord shall
have the right to remove and dispose of the same at Tenant’s expense.  Tenant shall deliver the Contraction Premises
to Landlord in the condition as it was required to be maintained by Tenant
under this Lease, reasonable wear and tear and Demising Work, if any, excepted,
and subject to the provisions of Section 5.3 and Article VI.  Any failure by Tenant to vacate and surrender
possession of the Contraction Premises in conformity with the requirements of
this Article XI prior to expiration of the Contraction Premises
Surrender Date shall entitle Landlord to exercise the rights and remedies
expressed in Section 7.6.  As
expeditiously as possible following the Contraction Premises Surrender Date,
Tenant shall perform, at Tenant’s sole cost and expense, any Demising Work
required at the Property in which the Contraction Premises are located as
provided in Section 5.7.  If Tenant fails to expeditiously
commence and complete any Demising Work or if Landlord needs to accelerate
completion of all or a portion of the Demising Work at a Property to
accommodate Landlord’s leasing of space to third party tenants, Landlord shall
have the right, but not the obligation, to complete, at Tenant’s sole cost and
expense, all or a portion of the unfinished Demising Work.


 


11.8     Duration.  Any Contraction Rights under this Article XI,
including Relocation Rights, Early Termination Rights and Termination Rights,
that remain unexercised on the last day of the Initial Term shall
automatically, and without further action of Landlord or Tenant, become null
and void, and Tenant shall have no Contraction Rights during any Renewal
Term.  Relocation Rights created by
adding any particular Coterminous Expansion Space may only be exercised, if at
all, during the Relocation Rights Exercise Period for such Coterminous
Expansion Space.


 


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


 


ARTICLE XII


DISPUTE RESOLUTION


 


12.1     Approval
Procedure; Dispute Resolution.


 


(a)                                            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 


 


76

















 


supporting documentation as is reasonably required to
evaluate the request to the other party (the “Responding Party”).


 


(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.


 


12.2     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:


 


(a)                                            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, on an
alternating basis, Philadelphia, Pennsylvania or Charlotte, North Carolina (or
in such other cities as Landlord and Tenant shall elect, on an alternating
basis).  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.


 


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(b)              If the dispute or controversy
involves the granting, withholding or conditioning of consent or approval of a
matter described in Sections 2.4 (Budget), 3.1(b) (Supplemental
HVAC), 3.4 (Signage), 3.5 (Communications Equipment), 5.2
(Alterations), 5.7 (Demising Work), 5.8 (Art) and 8.1
(Subletting) hereof (collectively, the “Approval Matters”) 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 binding arbitration, and JAMS shall
provide to the parties a list of three (3) arbitrators, and each party may
strike one.  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 Section 12.2(b).  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.


 


(c)               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 is 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 Section 12.2(c).  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.


 


(d)              Notwithstanding the foregoing,
this Article XII 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.


 


12.3     Conduct
of the Arbitration.  Arbitration
proceedings hereunder shall be subject to the following additional provisions:


 


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


 


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


 


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


 


(d)              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;


 


(e)               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;


 


(f)               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;


 


(g)              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.


 


(h)              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.


 


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


 


12.5     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 Sections
12.2(d) or 13.1, 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, 


 


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employees, experts and
attorneys, and by the mediator and any JAMS employees, are confidential,
privileged and inadmissible for any purpose, including impeachment, in any
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 attorney’s
fees, to be paid by the party against whom enforcement is ordered.


 


ARTICLE XIII


TENANT REMEDIES


 


13.1     Limited
Offset.  If a Landlord Default occurs
and is continuing hereunder and Tenant elects to cure or attempts to cure the
Landlord Default, and if Landlord fails to reimburse Tenant for such reasonable
costs of curing the Landlord Default within thirty (30) days after Tenant’s
submission of an invoice for such costs together with reasonable supporting
documentation, Tenant may from time to time offset such costs against
installments of Annual Basic Rent in an amount not to exceed Five Hundred
Thousand Dollars ($500,000.00) in any twelve (12) calendar month period.


 


13.2     Landlord
Letter of Credit.  At the Closing,
Landlord shall deliver to Tenant an irrevocable standby letter of credit
substantially in the form attached as Exhibit J hereto (“Landlord
Letter of Credit”) in the stated amount of Three Million & 00/100
Dollars ($3,000,000.00), with Tenant as the sole beneficiary and issued by a
domestic United States bank satisfactory to Tenant.  If Tenant receives a final, non-appealable
monetary award in (a) a Binding ADR Dispute, (b) a Major Dispute and
neither Landlord nor Tenant timely file suit de  novo in a court
of competent jurisdiction appealing the decision in the Major Dispute or (c) a
court of competent jurisdiction (in any such case, an “Award”), and
Landlord fails to pay the Award to Tenant within thirty (30) days after the
delivery of a written decision of the Award to Landlord, Tenant may, at any
time thereafter, draw against the Landlord Letter of Credit, in whole or in
part, to satisfy the Award.  Subject to
the provisions of this Section 13.2, Tenant shall have the
unconditional right to draw upon the Landlord Letter of Credit to satisfy an
Award by presenting Tenant’s site draft to the issuing bank as more fully
provided in the Landlord Letter of Credit. 
The final expiry date of the Landlord Letter of Credit shall be one (1) month
following the Expiration Date of this Lease.


 


ARTICLE XIV


MISCELLANEOUS


 


14.1     Notices.  Any notice or other communications required
or permitted to be given under this Lease must be in writing and shall be given
or delivered at the addresses specified in Section 1.1 and sent by
certified United States Mail, return receipt requested, telecopy, or by Federal



 


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Express or other
nationally recognized overnight courier service.  Any notice shall be deemed given upon receipt
or refusal thereof. Either party shall have the right to change its address to
which notices shall thereafter be sent and the party to whose attention such
notice shall be directed by giving the other party notice thereof in accordance
with the provisions of this Section 14.1; provided that such notice
of change of address shall become effective only upon the other party’s actual
receipt thereof.  Additionally, each of
Landlord and Tenant may designate one (1) additional address to which
copies of all notices shall be sent. 
Additionally, Tenant agrees that copies of all notices of a Landlord
Default hereunder shall also be sent to each Interest Holder that notifies
Tenant in writing of its interest and the address to which copies of such
notices are to be sent.  Notwithstanding
anything contained in this Section 14.1 to the contrary, any notice
regarding a party’s change of address or designation of additional addressees
shall become effective only upon the other party’s actual receipt thereof.  Any notice or other communication sent by
either party pursuant to this Section 13.1 shall state, with
particularity, by property number, address or other geographic designation
noted on Exhibit A, the specific Leased Premises involved.


 


14.2     Brokers.  Tenant represents that it has not engaged any
broker, agent or similar party, other than TCCS and JLL, with respect to the
transactions contemplated by this Lease. 
Tenant agrees to indemnify and hold harmless Landlord from and with
respect to any claims for a brokerage fee, finder’s fee or similar payment with
respect to this Lease which is made by any party (other than TCCS and JLL)
claiming by, through or under Tenant. 
Landlord represents that it has not engaged any broker, agent or similar
party with respect to the transactions contemplated by this Lease.  Landlord agrees to indemnify and hold
harmless Tenant from and with respect to any claims for a brokerage fee, finder’s
fee or similar payment with respect to this Lease which is made by a party
claiming by, through or under Landlord. 
TCCS and JLL shall be paid a commission due, if any, pursuant to the
terms of a separate agreement with such brokers, if, as and when closing shall
occur and be completed under such Purchase Agreement.  Neither TCCS or JLL shall be entitled to receive
a separate commission from Landlord in connection with this Lease or any
amendment, renewal or modification hereof.


 


14.3      Binding on
Successors.  This Lease shall be
binding upon and inure to the benefit of the legal representatives, successors
and assigns of Landlord, and shall be binding upon and inure to the benefit of
Tenant, its legal representatives, successors, and, to the extent assignment
may be approved by Landlord hereunder, Tenant’s assigns.  Where appropriate the pronouns of any gender
shall include the other gender, and either the singular or the plural shall
include the other.


 


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


 


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


 


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


 


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


 


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


 


14.9     Quiet
Enjoyment.  Landlord covenants that
Tenant shall and may peacefully and quietly have, hold and enjoy the Leased
Premises, subject to the other terms hereof; provided that Tenant pays the Rent
and other sums herein recited to be paid by Tenant and performs all of Tenant’s
covenants and agreements herein contained. 
It is understood and agreed that subject to the terms of Section 8.2
above, this covenant and any and all other covenants of Landlord contained in
this Lease shall be binding upon Landlord and its successors only with respect
to breaches occurring during the ownership of Landlord’s interest hereunder.


 


14.10     Limitation
of Personal Liability.  Tenant
specifically agrees to look solely to Landlord’s interest in the Properties and
the rent and other income derived therefrom after the date execution is levied
for the recovery of any monetary judgment against Landlord, it being agreed
that neither Landlord nor, in any event, its partners (direct and indirect),
shareholders, directors, employees, representatives and officers shall ever be
personally liable for any such judgment or for any other liability or
obligation of Landlord under this Lease beyond such interest in the
Properties.  The provision contained in
the foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or Landlord’s
successors in interest or for offset or to prosecute any suit or action in
connection with enforcement of rights hereunder or arising here from or
collection of amounts which may become owing or payable under or on account of
insurance maintained by Landlord.


 


14.11     Memorandum
of Lease.  Upon the written request
of Tenant, Landlord and Tenant shall enter into a short form of this Lease for
the purpose of recording the same, and shall, at Tenant’s expense, record the
same.


 


14.12     Consents.  Except where a party is specifically granted
herein the right to approve or consent to a matter in its sole and absolute
discretion, whenever in this Lease it is agreed that a 


 


82

















 


party shall have the
right to approve or consent to any matter, said party shall not unreasonably
withhold, condition or delay its consent or approval.


 


14.13     Time
of the Essence.  Time is of the
essence in this Lease.


 


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


 


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


 


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


 


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


 


14.18     No
Partnership.  Nothing in this Lease
creates any relationship between the parties other than that of lessor and
lessee and nothing in this Lease, whether the computation of rentals or
otherwise, constitutes the Landlord a partner of the Tenant or a joint venturer
or member of a common enterprise with the Tenant.


 


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


 


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


 


14.21     Changes
to Properties by Landlord.  Landlord
shall have the right at any time, without the same constituting an actual or
constructive eviction and without incurring liability to Tenant therefor, to
make reasonable changes to the arrangement or location of entrances or
passageways, doors and doorways, corridors, elevators, stairs, and bathrooms in
the Common Areas of any Property so long as access to the Leased Premises
remains comparable to or better than the access to the Leased Premises
available on the Commencement Date, and so long as visibility of the retail
portion(s) of the Leased Premises and Tenant’s exterior signage (if any)
is not adversely affected.  Landlord
shall have the right to close, from time to time, the Common Areas and other
portions of the Property for such temporary periods as Landlord deems legally
necessary and sufficient to evidence Landlord’s ownership and control thereof
and to prevent 


 


83

















 


any claim of adverse
possession by, or any implied or actual dedication to, the public or any party
other than Landlord.


 


14.22     Storage
Space.  To the extent that any
portion of the Leased Premises consists of storage space in or about the
Property, Tenant shall use the storage space for storage of files, records, and
other personal property only and for no other purpose.  Tenant shall not store any food (other than
canned items) or perishable goods, flammable materials (other than paper,
cardboard, or normal office supplies), explosives, or any other inherently
dangerous material in the storage space. 
Except for elevator service to the floor on which the storage space is
located and lighting for reasonable visibility in the storage space, Tenant
acknowledges and agrees that there shall be no other services whatsoever
provided to the storage space.  Tenant
agrees and understands that no bailment, deposit of goods for safekeeping,
warehouse receipt, bill of lading, or other document of title for the property
stored by Tenant is intended or created hereby and Landlord is not engaged in
the business of storing goods for hire or in the warehouse business.


 


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


 


14.24     Confidential
Information.  The form of this Lease
has been or will be filed by Landlord with the Securities and Exchange
Commission (“SEC”) in compliance with SEC requirements.  Furthermore, Landlord and Tenant acknowledge
that either party may be required to make public disclosure of material facts
concerning this Lease from time to time in order to satisfy the requirements of
applicable securities or banking laws. 
Other than such disclosure that may be required to comply with
applicable laws, the parties agree to treat as confidential and to use
reasonable efforts to prevent the inadvertent disclosure of proprietary
information of either party delivered to the other pursuant to or in
furtherance of the purposes of this Lease; provided that nothing herein shall
be deemed to preclude or impair the ability of either party to deliver any such
information to its attorneys, accountants, lenders, investors and other such
interested parties.


 


84

















 


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


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIRST STATES INVESTORS
  5200, LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Sonya A. Huffman

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  	
  a national banking
  association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Michael F. Hord

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Jeffrey B.
  Harrold

  
	
   

  	
   

  	
  Title: Assistant Vice
  President

  



 


85

















 


LIMITED
JOINDER


 


The undersigned, being the
sole member of Landlord, for value received and intending to be legally bound
hereby, joins in the execution of this Lease for the limited purposes of (i) agreeing
to cause the Affiliate that owns Affiliate Owned Property to enter into a lease
for Expansion Space in such property with Tenant as provided in Article X
and (ii) agreeing to enter into, or to cause an Affiliate to enter into,
Contraction Assignments and Contraction Subleases with Tenant as provided in Article XI.


 


 


	
   

  	
   

  	
  FSG:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIRST STATES GROUP,
  L.P.,

  
	
   

  	
   

  	
  a Delaware limited
  partnership

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
  By: First States Group,
  LLC,

  
	
   

  	
   

  	
  a Delaware limited
  liability company and its

  sole general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Glenn Blumenthal

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  	
  &
  Chief Operating Officer

  
					



 


86