Exhibit 10.74


 


AMENDED
AND RESTATED MASTER LEASE AGREEMENT


 


BETWEEN


 


FIRST STATES INVESTORS
5000A LLC,


a Delaware limited
liability company (“LANDLORD”)


 


AND


 


BANK OF AMERICA, N.A. (“TENANT”)


 


 


Dated: As of January 1,
2005


 

















 


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

  	
  15

  
	
  1.3

  	
  Term

  	
  16

  
	
  1.4

  	
  Options to Renew; Special Notice of Non-Renewal

  	
  16

  
	
  1.5

  	
  Use

  	
  19

  
	
  1.6

  	
  Survival

  	
  19

  
	
  ARTICLE
  II

  	
  RENTAL AND OPERATING EXPENSES

  	
  19

  
	
  2.1

  	
  Rental Payments

  	
  19

  
	
  2.2

  	
  Operating Expenses

  	
  21

  
	
  2.3

  	
  Real Estate Taxes

  	
  27

  
	
  2.4

  	
  Budget; Audit Rights

  	
  28

  
	
  ARTICLE
  III

  	
  BUILDING SERVICES, IDENTITY,
  SIGNAGE, AND MANAGEMENT

  	
  31

  
	
  3.1

  	
  Building Standard and Above Standard Services

  	
  31

  
	
  3.2

  	
  Keys and Locks

  	
  35

  
	
  3.3

  	
  Graphics and Building Directory

  	
  35

  
	
  3.4

  	
  Building Identity; Signage; Exclusivity

  	
  36

  
	
  3.5

  	
  Communications Equipment

  	
  38

  
	
  3.6

  	
  Building Management

  	
  40

  
	
  ARTICLE
  IV

  	
  CARE OF PREMISES; LAWS, RULES
  AND REGULATIONS

  	
  40

  
	
  4.1

  	
  Care of Leased Premises

  	
  40

  
	
  4.2

  	
  Access of Landlord to Leased Premises

  	
  40

  
	
  4.3

  	
  Nuisance

  	
  41

  
	
  4.4

  	
  Laws and Regulations; Rules of Building

  	
  42

  
	
  4.5

  	
  Legal Use and Violations of Insurance Coverage

  	
  42

  
	
  4.6

  	
  Environmental Laws

  	
  43

  
	
  4.7

  	
  Prohibited Uses

  	
  44

  
	
  ARTICLE
  V

  	
  LEASEHOLD IMPROVEMENTS AND
  REPAIRS

  	
  45

  
	
  5.1

  	
  Leasehold Improvements

  	
  45

  
				



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Alterations

  	
  45

  
	
  5.3

  	
  Non-Removable Improvements

  	
  45

  
	
  5.4

  	
  Mechanics Liens

  	
  46

  
	
  5.5

  	
  Repairs by Landlord

  	
  47

  
	
  5.6

  	
  Repairs by Tenant

  	
  47

  
	
  5.7

  	
  Demising Work

  	
  47

  
	
  5.8

  	
  Art

  	
  49

  
	
  ARTICLE
  VI

  	
  CONDEMNATION, CASUALTY AND
  INSURANCE

  	
  50

  
	
  6.1

  	
  Condemnation

  	
  50

  
	
  6.2

  	
  Damages from Certain Causes

  	
  51

  
	
  6.3

  	
  Casualty Clause

  	
  51

  
	
  6.4

  	
  Property Insurance

  	
  53

  
	
  6.5

  	
  Liability Insurance

  	
  53

  
	
  6.6

  	
  Hold Harmless

  	
  53

  
	
  6.7

  	
  WAIVER OF RECOVERY

  	
  54

  
	
  ARTICLE
  VII

  	
  DEFAULTS, REMEDIES, BANKRUPTCY,
  SUBORDINATION

  	
  54

  
	
  7.1

  	
  Default and Remedies

  	
  54

  
	
  7.2

  	
  Insolvency or Bankruptcy

  	
  58

  
	
  7.3

  	
  Negation of Lien for Rent

  	
  58

  
	
  7.4

  	
  Attorney’s Fees

  	
  59

  
	
  7.5

  	
  No Waiver of Rights

  	
  59

  
	
  7.6

  	
  Holding Over

  	
  59

  
	
  7.7

  	
  Subordination

  	
  60

  
	
  7.8

  	
  Estoppel Certificate

  	
  60

  
	
  7.9

  	
  Subsequent Documents

  	
  61

  
	
  7.10

  	
  Interest Holder Privileges

  	
  61

  
	
  ARTICLE
  VIII

  	
  SUBLEASING, ASSIGNMENT,
  LIABILITY, AND CONSENTS

  	
  61

  
	
  8.1

  	
  Sublease or Assignment by Tenant

  	
  61

  
	
  8.2

  	
  Assignment by Landlord

  	
  64

  
	
  ARTICLE
  IX

  	
  PURCHASE AND SALE

  	
  64

  
					



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Tenant’s Right of First Refusal to Purchase

  	
  64

  
	
  9.2

  	
  Right of First Offer on Sale

  	
  65

  
	
  9.3

  	
  Separate Lease

  	
  65

  
	
  ARTICLE
  X

  	
  EXPANSION RIGHTS

  	
  66

  
	
  10.1

  	
  Quarterly Availability Reports

  	
  66

  
	
  10.2

  	
  Tenant’s Expansion Notice

  	
  67

  
	
  10.3

  	
  Landlord Expansion Response

  	
  67

  
	
  10.4

  	
  Expansion Space Leases

  	
  67

  
	
  10.5

  	
  Excess Basic Rent; Recalculation of Termination
  Rights

  	
  69

  
	
  10.6

  	
  Subordination of Expansion Space Rights

  	
  70

  
	
  10.7

  	
  Duration

  	
  70

  
	
  10.8

  	
  Disputes

  	
  70

  
	
  ARTICLE
  XI

  	
  CONTRACTION RIGHTS

  	
  71

  
	
  11.1

  	
  Contraction Rights

  	
  71

  
	
  11.2

  	
  Contraction Rights Exercise Notice

  	
  71

  
	
  11.3

  	
  Relocation Rights

  	
  72

  
	
  11.4

  	
  Intentionally Omitted

  	
  72

  
	
  11.5

  	
  Termination Rights

  	
  72

  
	
  11.6

  	
  Contraction Premises Rent

  	
  72

  
	
  11.7

  	
  Surrender; Contraction Premises Demising Work

  	
  72

  
	
  11.8

  	
  Duration

  	
  73

  
	
  11.9

  	
  Disputes

  	
  73

  
	
  ARTICLE
  XII

  	
  DISPUTE RESOLUTION

  	
  73

  
	
  12.1

  	
  Approval Procedure; Dispute Resolution

  	
  73

  
	
  12.2

  	
  Dispute Resolution

  	
  74

  
	
  12.3

  	
  Conduct of the Arbitration

  	
  75

  
	
  12.4

  	
  Alternative Means of Arbitration with AAA

  	
  76

  
	
  12.5

  	
  Mediation; Litigation

  	
  76

  
	
  ARTICLE
  XIII

  	
  TENANT REMEDIES

  	
  77

  
	
  13.1

  	
  Limited Offset

  	
  77

  
					



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Landlord Letter of Credit

  	
  77

  
	
  ARTICLE
  XIV

  	
  MISCELLANEOUS

  	
  77

  
	
  14.1

  	
  Notices

  	
  77

  
	
  14.2

  	
  Brokers

  	
  78

  
	
  14.3

  	
  Binding on Successors

  	
  78

  
	
  14.4

  	
  Rights and Remedies Cumulative

  	
  78

  
	
  14.5

  	
  Governing Law

  	
  78

  
	
  14.6

  	
  Rules of Construction

  	
  78

  
	
  14.7

  	
  Authority and Qualification

  	
  78

  
	
  14.8

  	
  Severability

  	
  79

  
	
  14.9

  	
  Quiet Enjoyment

  	
  79

  
	
  14.10

  	
  Limitation of Personal Liability

  	
  79

  
	
  14.11

  	
  Memorandum of Lease

  	
  79

  
	
  14.12

  	
  Consents

  	
  79

  
	
  14.13

  	
  Time of the Essence

  	
  79

  
	
  14.14

  	
  Amendments

  	
  79

  
	
  14.15

  	
  Entirety

  	
  79

  
	
  14.16

  	
  References

  	
  80

  
	
  14.17

  	
  Counterpart Execution

  	
  80

  
	
  14.18

  	
  No Partnership

  	
  80

  
	
  14.19

  	
  Captions

  	
  80

  
	
  14.20

  	
  Required Radon Notice

  	
  80

  
	
  14.21

  	
  Changes to Properties by Landlord

  	
  80

  
	
  14.22

  	
  Storage Space

  	
  80

  
	
  14.23

  	
  WAIVER OF JURY TRIAL

  	
  81

  
	
  14.24

  	
  Confidential Information

  	
  81

  
					



 


iv

















 


EXHIBITS AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  Leased Premises,
  Building NRA, Leased Premises NRA, Tenant Occupancy Percentages, Parking
  Area, and Drive through Banking Facility

  
	
  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, Non-Disturbance and Attornment 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

















 


AMENDED
AND RESTATED MASTER LEASE AGREEMENT


 


THIS AMENDED AND RESTATED MASTER LEASE AGREEMENT (this
“Lease”) is made and entered into this
                                          ,
2005, effective as of January 1, 2005, by and between FIRST STATES
INVESTORS 5000A, 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”).  Terms with
initial capital letters used in this Lease shall have the meanings assigned for
such terms in Section 1.1(b).


 


BACKGROUND


 


A.            Landlord
and Tenant are parties to a certain Master Lease Agreement dated as of June 30,
2003, respecting certain Leased Premises located within certain Properties, all
as more fully described therein, as modified by that certain Side Letter
Agreement between said parties dated as of June 30, 2003, and the First
Amendment to Master Lease Agreement dated September 30, 2003 (said Master
Lease Agreement as so modified, the “Master Lease”).


 


B.            Landlord
and Tenant desire to amend and restate the Master Lease in its entirety upon
the terms and conditions more fully set forth herein.


 


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:

  	
   

  	
  June 30, 2003.

  
	
   

  	
   

  	
   

  
	
  Expiration Date:

  	
   

  	
  June 30, 2023.

  
	
   

  	
   

  	
   

  
	
  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
  5000A, 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

  4th 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.

  800 Market Street

  M01-800-11-10

  St. Louis, MO 63101

  Attention: Gary Preston, Assistant General Counsel

  Fax: (314) 466-6027

  
	
   

  	
   

  	
   

  
	
  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:

  	
   

  	
  German American Capital
  Corporation

  60 Wall Street, 10th Floor

  New York, NY 10005

  Attention: Eric M. Schwartz and General Counsel

  Fax: (212) 797-4488

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Skadden, Arps, Slate, Meagher & Flom LLP

  Four Times Square

  New York, NY 10036-6522

  Attention: Harvey R. Uris, Esquire

  Fax: (917) 777-2212

  



 


(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 


 


3

















 


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


 


“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).


 


“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.


 


“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 


 


4

















 


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.


 


“Award”
shall have the meaning assigned to such term in Section 13.2


 


“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).


 


“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 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).


 


5














 


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


 


“Common Areas” shall mean all portions of the
Property 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 Property 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.


 


“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 


 


6

















 


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).


 


“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.


 


“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).


 


7

















 


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


 


“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 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).


 


8

















 


“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.


 


“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. 


 


9

















 


§§ 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.


 


“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-1
hereto that describes and depicts, in detail, the Leased Premises for such
Property and any Landlord or Tenant rights or obligations that are specific to
that Property, including any emergency generators, uninterrupted power 


 


10

















 


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.  The Lease
Supplements for the Properties located at (i) 1825 E. Buckeye Road,
Phoenix, AZ (AZCAM-030, AZCAT-030, AZMAR-030 and ACMCD-030), (ii) 9000
Southside Boulevard, Jacksonville, FL (FLJAC-030, FLJAC-130, FLJAC-230,
FLJAC-330, FLJAC-430, FLJAC-530, FLJAC-630, FLJAC-730 and FLJAC-830) and (iii) 231
S. LaSalle Street, Chicago, IL (ILBANA-076) shall grant Tenant a right of first
refusal to lease additional space that becomes available in such Properties
prior to December 31, 2005, for an Annual Basic Rent equal to the Net
Rentable Area of the space so added multiplied by the Annual Basic Rent
Factor.  The Term of this Lease for any
space so added shall be coterminous with the Term of this Lease for the
remainder of the Leased Premises, but any space so added shall not be included
as Coterminous Expansion Space for any purpose under this Lease.


 


“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 June 30, 2004; the second Lease Year commences upon the
expiration of the 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).


 


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


 


“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 Net Rentable Areas of the
Leased Premises and the Buildings are as specified in Exhibit A.


 


“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.


 


11

















 


“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).


 


“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.


 


“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).


 


“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.


 


12

















 


“Purchase Agreement” shall mean that certain
Amended and Restated Agreement of Sale and Purchase by and between Tenant, as
seller, and Landlord as successor-in-interest by assignment to FSG, as
purchaser, dated April 16, 2003, as amended.


 


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


 


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


 


“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(b).


 


“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.


 


“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, 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.


 


13

















 


“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 as of that date;
provided that if Tenant is rated by only one of S&P or 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 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.


 


14

















 


“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).


 


“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


 


15














 


common with Landlord and
other persons, to use any non-exclusive easements and/or licenses in, about or
appurtenant to the Property, including the non-exclusive right to use any
walkways, tunnels, and skywalks connected to the Property; and (c) all
other rights and benefits provided to Tenant with respect to the Property
pursuant to this Lease (including the rights granted to Tenant to use the roof
of the Building, and other portions of the Property located outside of the
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 six (6) successive
periods of five (5) years each (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 whenever added to this
Lease beyond June 30, 2053.


 


(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.


 


16

















 


(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 Appraiser as required under the Lease and
will be deemed to have waived certain rights granted to it under the Lease
unless it selects an Appraiser within five (5) business days, the Fair
Market Rental Value will be determined by the Appraiser engaged by the other 


 


17

















 


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.


 


18

















 


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, and Additional Rent with respect to the Leased Premises, all as applicable
and as required by and in conformity with the provisions of this Lease.  Annual Basic Rent shall be due and payable in
equal monthly installments on the first day of each calendar month during the
Term, in advance.  Tenant’s Operating
Expense Share and Tenant’s Tax Share shall be due and payable in accordance
with Sections 2.2 and 2.3. 
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 to Landlord. 
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 


 


19

















 


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 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 


 


20

















 


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
(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 


 


21

















 


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);


 


(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 


 


22

















 


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


 


(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 


 


23

















 


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;


 


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


 


24

















 


(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;


 


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


 


25

















 


(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 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 


 


26

















 


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 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


 


27














 


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 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 


 


28

















 


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 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 


 


29

















 


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.


 


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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 


 


31

















 


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 Properties,
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 


 


32

















 


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 


 


33

















 


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 except to the
extent that Landlord actually incurs an expense in providing such chilled water
to Tenant.  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 


 


34

















 


Landlord uses reasonable
efforts to promptly repair said equipment or machinery and to restore said
services.


 


(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
the 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 


 


35

















 


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.


 


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
Property 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 


 


36

















 


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.


 


(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.  The restrictions set forth herein shall not
apply to ATMs operated by third parties as of the date of the Master Lease.


 


37














 


(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; 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 


 


38

















 


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 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.


 


39

















 


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 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, 


 


40

















 


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 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.


 


41

















 


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
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 


 


42

















 


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.


 


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 


 


43

















 


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.


 


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 


 


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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.


 


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, 


 


45

















 


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
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.


 


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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 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 


 


47

















 


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 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. 
Landlord’s approval of each revised Preliminary Drawing shall be given
or withheld within ten (10) days following Landlord’s receipt thereof from
Tenant.  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.


 


48

















 


(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 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)           Intentionally Omitted.


 


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; 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


 


49














 


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, 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 


 


50

















 


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 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 


 


51

















 


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 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 


 


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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
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, 


 


53

















 


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
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 


 


54

















 


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.


 


(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 


 


55

















 


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 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 


 


56

















 


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


 


57

















 


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


 


58

















 


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


 


59

















 


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 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 


 


60

















 


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 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.


 


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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.


 


(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 


 


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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 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 


 


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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 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 


 


64

















 


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 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 


 


65

















 


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, (a) 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, and (b) Tenant’s
obligation to pay Rent under a Separate Lease shall not commence until Tenant
has received at least ten (10) days prior written notice of such third
party landlord’s name, address and other payment information.


 


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 


 


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Landlord does not and
shall not represent or warrant the accuracy or completeness of the 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)           Intentionally Omitted.


 


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 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 


 


67

















 


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)           Intentionally Omitted.


 


(b)           Coterminous Expansion
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 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 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 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 


 


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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 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,
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 


 


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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 twenty (20).


 


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 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.


 


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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 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 Relocation 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 (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.  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, 


 


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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         Intentionally
Omitted.


 


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 312,669 square
feet of Net Rentable Area, 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, (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 104,223 square feet, in the aggregate, and (c) prior to the expiration
of the sixth month of the fourteenth 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
208,446 square feet, 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 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 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 


 


72

















 


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 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 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


 


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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.


 


(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 


 


74

















 


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;


 


(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;


 


75

















 


(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, 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 


 


76

















 


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
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 


 


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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 other than
SAR.  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. 
None of TCCS, JLL or SAR 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.


 


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 


 


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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 herefrom 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 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.


 


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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 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 


 


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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, however,
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.


 


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


 


	
   

  	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  
	
  Witness:

  	
   

  	
  FIRST STATES INVESTORS 5000A,
  LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name: Sonya A. Huffman

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A., a
  national banking association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Robert C. Vail

  
	
   

  	
   

  	
  Title: Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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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:

  	
   

  	
   

  	
   

  	
  Sonya A. Huffman

  
	
   

  	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:
                        ,
  2005

  



 


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