Exhibit
10.68


 


 


AMENDED
AND RESTATED


LEASE
AGREEMENT


 


DATED MAY 23,
2003


 


Between


 


U.S. BANK NATIONAL
ASSOCIATION, not in its individual capacity, but solely as successor Owner
Trustee to State Street Bank and Trust Company of Connecticut, National Association,
under the Amended and Restated Trust Agreement (1997-D) dated as of May 23,
2003 and PATRICK
E. THEBADO, not in his individual capacity, but solely as successor Co-Trustee
to Dori Anne Seakas, as successor Co-Trustee to Traci Hopkins, under
the Amended and Restated Trust Agreement (1997-D) dated as of May 23,
2003,


as Lessor,


 


and


 


BANK OF AMERICA,
N.A.


as Lessee


 


Office Buildings
Located in the


Southeastern United
States


 


TO THE EXTENT THAT THIS
AMENDED AND RESTATED LEASE AGREEMENT CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS
DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE
JURISDICTION), NO SECURITY INTEREST IN THIS AMENDED AND RESTATED LEASE
AGREEMENT MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER
THAN ORIGINAL COUNTERPART NO. 1 THAT CONTAINS THE RECEIPT THEREFOR
EXECUTED BY WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, AS INDENTURE
TRUSTEE, ON OR FOLLOWING THE SIGNATURE PAGE THEREOF.


 

















 


CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
  2.

  	
  LEASE OF THE PROPERTIES;
  RESTATEMENT

  	
  1

  
	
   

  	
  2.1

  	
  Ownership
  and Lease

  	
  1

  
	
   

  	
  2.2

  	
  Demise
  and Lease

  	
  2

  
	
   

  	
  2.3

  	
  Restatement

  	
  2

  
	
  3.

  	
  RENT; FMV LEASE

  	
  2

  
	
   

  	
  3.1

  	
  Basic
  Rent; FMV Lease

  	
  2

  
	
   

  	
  3.2

  	
  Supplemental
  Rent

  	
  4

  
	
   

  	
  3.3

  	
  Method
  of Payment

  	
  4

  
	
   

  	
  3.4

  	
  Late
  Payment

  	
  5

  
	
   

  	
  3.5

  	
  Net
  Lease; No Setoff; Etc.

  	
  5

  
	
   

  	
  3.6

  	
  Limitations
  on Rent

  	
  6

  
	
  4.

  	
  RECOMPUTATIONS

  	
  7

  
	
   

  	
  4.1

  	
  Adjustments

  	
  7

  
	
   

  	
  4.2

  	
  Methodology
  for Adjustments

  	
  7

  
	
   

  	
  4.3

  	
  Supplements

  	
  7

  
	
  5.

  	
  RENEWAL OPTIONS

  	
  7

  
	
   

  	
  5.1

  	
  Renewal
  Options

  	
  7

  
	
   

  	
  5.2

  	
  Lease
  Provisions Applicable

  	
  9

  
	
  6.

  	
  EARLY TERMINATION;

  	
  9

  
	
   

  	
  6.1

  	
  Early
  Termination Options

  	
  9

  
	
   

  	
  6.2

  	
  Obsolescence
  Termination

  	
  13

  
	
   

  	
  6.3

  	
  Effect
  of Termination

  	
  14

  
	
   

  	
  6.4

  	
  Adjustment
  of Termination Percentages

  	
  14

  
	
   

  	
  6.5

  	
  Demising
  Work

  	
  15

  
	
   

  	
  6.6

  	
  Sublessee
  Options

  	
  16

  
	
  7.

  	
  CONDITION AND USE OF PROPERTIES

  	
  17

  
	
   

  	
  7.1

  	
  Waivers

  	
  17

  
	
  8.

  	
  LIENS; TAXES

  	
  18

  
	
   

  	
  8.1

  	
  Liens

  	
  18

  
	
   

  	
  8.2

  	
  Taxes

  	
  19

  
	
  9.

  	
  MAINTENANCE AND REPAIR;
  ALTERATIONS, MODIFICATIONS AND ADDITIONS

  	
  20

  
	
   

  	
  9.1

  	
  Maintenance
  and Repair

  	
  20

  
	
   

  	
  9.2

  	
  Alterations

  	
  21

  
	
   

  	
  9.3

  	
  Title
  to Alterations

  	
  24

  
	
   

  	
  9.4

  	
  Permitted
  Contests

  	
  24

  
	
   

  	
  9.5

  	
  Environmental
  Compliance

  	
  25

  
	
  10.

  	
  USE AND LOCATION

  	
  25

  
	
   

  	
  10.1

  	
  Location

  	
  25

  
	
   

  	
  10.2

  	
  Use

  	
  26

  
	
  11.

  	
  INSURANCE

  	
  26

  
	
   

  	
  11.1

  	
  Coverage

  	
  26

  
	
   

  	
  11.2

  	
  Policy
  Provisions

  	
  27

  
	
   

  	
  11.3

  	
  Evidence
  of Insurance

  	
  29

  



 


i

















 


	
  12.

  	
  RETURN OF LEASED PROPERTY

  	
  29

  
	
  13.

  	
  ASSIGNMENT

  	
  30

  
	
  14.

  	
  LOSS, DESTRUCTION, CONDEMNATION OR
  DAMAGE

  	
  30

  
	
   

  	
  14.1

  	
  Payment
  of Stipulated Loss Value on an Event of Loss

  	
  30

  
	
   

  	
  14.2

  	
  Application
  of Payments When Lease Continues

  	
  32

  
	
   

  	
  14.3

  	
  Payment
  of Stipulated Loss Value on an Event of Taking

  	
  32

  
	
   

  	
  14.4

  	
  Application
  of Certain Payments Not Relating to an Event of Taking

  	
  33

  
	
   

  	
  14.5

  	
  Other
  Dispositions

  	
  34

  
	
   

  	
  14.6

  	
  Negotiations

  	
  34

  
	
   

  	
  14.7

  	
  No
  Rent Abatement

  	
  34

  
	
   

  	
  14.8

  	
  Investment

  	
  34

  
	
  15.

  	
  INTEREST CONVEYED TO LESSEE

  	
  34

  
	
  16.

  	
  SUBLEASE

  	
  35

  
	
   

  	
  16.1

  	
  Sublease
  Requirements

  	
  35

  
	
   

  	
  16.2

  	
  Assignment
  of Subleases

  	
  38

  
	
   

  	
  16.3

  	
  Sublessor
  Improvements

  	
  38

  
	
  17.

  	
  INSPECTION, REPORTS AND NOTICES

  	
  39

  
	
   

  	
  17.1

  	
  Inspection

  	
  39

  
	
   

  	
  17.2

  	
  Reports

  	
  39

  
	
   

  	
  17.3

  	
  Notices
  from Governmental Authorities

  	
  39

  
	
  18.

  	
  LEASE EVENTS OF DEFAULT

  	
  39

  
	
  19.

  	
  ENFORCEMENT

  	
  41

  
	
   

  	
  19.1

  	
  Remedies

  	
  41

  
	
   

  	
  19.2

  	
  Survival
  of the Lessee’s Obligations

  	
  43

  
	
   

  	
  19.3

  	
  Remedies
  Cumulative; No Waiver; Consents

  	
  44

  
	
  20.

  	
  RIGHT TO PERFORM FOR THE
  LESSEE

  	
  44

  
	
  21.

  	
  MISCELLANEOUS

  	
  44

  
	
   

  	
  21.1

  	
  Binding
  Effect; Successors and Assigns; Survival

  	
  44

  
	
   

  	
  21.2

  	
  Quiet
  Enjoyment

  	
  45

  
	
   

  	
  21.3

  	
  Notices

  	
  45

  
	
   

  	
  21.4

  	
  Severability

  	
  45

  
	
   

  	
  21.5

  	
  Amendment;
  Complete Agreements

  	
  45

  
	
   

  	
  21.6

  	
  Headings

  	
  46

  
	
   

  	
  21.7

  	
  Counterparts

  	
  46

  
	
   

  	
  21.8

  	
  Governing
  Law

  	
  46

  
	
   

  	
  21.9

  	
  Apportionments

  	
  46

  
	
   

  	
  21.10

  	
  Discharge
  of the Lessee’s Obligations by its Sublessees

  	
  46

  
	
   

  	
  21.11

  	
  Nature
  of Lessor’s Obligations

  	
  46

  
	
   

  	
  21.12

  	
  Estoppel
  Certificates

  	
  47

  
	
   

  	
  21.13

  	
  Granting
  of Easements

  	
  47

  
	
   

  	
  21.14

  	
  No
  Joint Venture

  	
  48

  
	
   

  	
  21.15

  	
  No
  Accord and Satisfaction

  	
  48

  
	
   

  	
  21.16

  	
  No
  Merger

  	
  48

  
	
   

  	
  21.17

  	
  Investment
  of Funds

  	
  48

  
	
   

  	
  21.18

  	
  True
  Lease

  	
  49

  



 


ii

















 


	
  Appendix A

  	
  Definitions

  
	
   

  	
   

  
	
  Exhibit A

  	
  Form of FMV Lease

  
	
  Exhibit B

  	
  Form of Sublease

  
	
  Exhibit C

  	
  Form of Bank
  Branch Lease

  
	
  Exhibit D

  	
  Form of
  Subordination, Non-Disturbance And Attornment Agreement

  
	
  Exhibit E

  	
  Form of AFR
  Sublease

  
	
  Exhibit F

  	
  Form of Partial Occupancy Lease

  
	
  Schedule 1

  	
  Stipulated Loss Value

  
	
  Schedule 2

  	
  Section 9.2(d) Dates

  
	
  Schedule 3

  	
  Land and Improvement
  Description and Lessor’s Cost

  
	
  Schedule 4

  	
  Basic Rent

  



 


iii

















 


AMENDED AND RESTATED LEASE AGREEMENT (this Lease)  dated as of May 23, 2003


 


BETWEEN:


 


(1)                                  U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity, but solely as successor Owner Trustee (the  Owner Trustee) to State Street Bank and
Trust Company of Connecticut, National Association, under the Amended and
Restated Trust Agreement (1997-D) dated as of May 23, 2003  (the Trust Agreement (1997-D))
and
PATRICK
E. THEBADO, not
in his individual capacity, but solely as successor Co-Trustee (the Co-Trustee) to Dori Anne Seakas, as successor Co-Trustee to
Traci Hopkins, under the Trust Agreement (1997-D) (the Owner Trustee as the lessor of the
Lessor Properties in states other than the Co-Trustee States and the Co-Trustee
as the lessor of the Lessor Properties in the Co-Trustee States separately or together,
as applicable, the Lessor); and


 


(2)                                  BANK OF AMERICA, N.A., a national banking association, as the
lessee (the Lessee).


 


WHEREAS


 


(A)                              the Lessee (as successor to Nationsbank,
N.A.) was a party to each of (i) that certain Lease Agreement (1997-C) dated
as of June 4, 1997 (Lease C) with
State Street Bank and Trust Company of Connecticut, National Association, as
owner trustee under the Trust Agreement (1997-C) dated as of June 4,
1997 (the Trust Agreement (1997-C)), and Traci Hopkins, as co-trustee under
Trust Agreement (1997-C) (together the C Lessor) and (ii) that
certain Lease Agreement (1997-D) dated as of June 4, 1997 (Lease D) with Lessor;


 


(B)                                the Owner Trustee in its capacity as
owner trustee under Trust Agreement (1997-D) has acquired (i) all interest
of the C Lessor in the Properties and in Lease C; and (ii) all interest of
each of REMAN 1997-C, Inc. and REMAN 1997-D, Inc. in the Properties;
and


 


(C)                                the Lessor and the Lessee wish to amend
and restate both of Lease C and Lease D in this Lease.


 


In consideration of the mutual agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


1.                                      DEFINITIONS


 


The capitalized terms used herein and not otherwise
defined shall have the meanings assigned thereto in Appendix A hereto for all
purposes hereof.


 


2.                                      LEASE OF THE
PROPERTIES; RESTATEMENT


 


2.1                               Ownership and Lease


 


The parties acknowledge that this Lease constitutes a
lease of, and creates in the Lessee as described in Section 2.2 a
leasehold estate in and to the Properties.


 

















 


2.2                               Demise and Lease


 


Since the Original Closing Date the Lessor and its
predecessors in interest have demised and leased, and on the Closing Date, the
Lessor shall continue to demise and lease, all of its right, title and interest
in and to the Properties listed in Schedule 3 hereto to the Lessee, and since
the Original Closing Date the Lessee has rented and leased, and on the Closing
Date the Lessee shall continue to rent and lease, the respective Properties
from the Lessor, for the Basic Term and, subject to the exercise by the Lessee
of its renewal options as provided in and in accordance with Article 5
hereof, for the Renewal Terms, unless earlier terminated in accordance with the
provisions of this Lease.  The Lessee may
from time to time own or hold under lease from Persons other than the Lessor,
furniture, trade fixtures, equipment and other personalty located on or about
the Properties that are not subject to this Lease.  The Lessor shall from time to time, upon the
reasonable request of the Lessee, at the Lessee’s expense, promptly acknowledge
in writing to the Lessee or other Persons that the Lessor does not own or have
any other right or interest in or to such furniture, trade fixtures, personalty
and equipment. The demise and lease of the Properties pursuant to this Article 2
shall include any additional right, title or interest in the Properties which
may at any time be acquired by the Lessor.


 


2.3                               Restatement


 


The Original Leases are hereby amended and restated by
this Lease without any interruption and with all rights and obligations
accruing prior to the date hereof continuing after the date hereof under this
Lease.


 


3.                                      RENT; FMV LEASE


 


3.1                               Basic Rent; FMV Lease


 


(a)                                                 Lessee
shall pay to Lessor Basic Rent for the Properties subject to this Lease equal
to the sum of the Scheduled Basic Rent and the Additional Basic Rent.  Scheduled Basic Rent
shall equal on each Rent Payment Date during the Basic Term the amounts for the
periods shown in Schedule 4 hereto (which amounts shall be subject to
adjustment pursuant to Article 4 hereof). 
If for any reason a Property is terminated from this Lease pursuant to a
Terminating Event, Scheduled Basic Rent on and after the date of such
termination shall be (x) the Scheduled Basic Rent as in effect just prior
to such termination less an amount calculated by multiplying (y) such
Scheduled Basic Rent by a fraction (z) the numerator of which is the
Lessor’s Cost of such Property and the denominator of which is Assumed Lessor’s
Cost.


 


(b)                                                The
Scheduled Basic Rent amounts set forth on Schedule 4 hereto have been computed
based on the assumption, inter alia, that the Lessee will elect to terminate
this Lease (or exercise its option to sublease pursuant to Section 6.1(f))
with respect to certain Properties at the earliest dates and in the highest
percentages permitted in accordance with Section 6.1(a) hereof.  Should the Lessee not so elect, or elect to
terminate this Lease (or exercise its option to sublease pursuant to Section 6.1(f))
with respect to some Properties but less than the maximum percentages set forth
in such Section 6.1(a) on an Anniversary, then Basic Rent payable on
each Rent Payment Date (which for this purpose means every date shown on
Schedule 4 hereto after such Anniversary and for such period of time as there
remain more Properties subject to this Lease (and not subject to a sublease
pursuant to Section 6.1(f)) than the Lessee is permitted to terminate
pursuant to Section 6.1(a)), including the Basic Rent due on the Rent
Payment Date on which such Property is terminated, shall be increased by one
twelfth of the Average Annual Rent Factor multiplied by 


 


2

















 


the cumulative amount of
Lessor’s Cost of the Properties (or portion thereof) permitted by Section 6.1(a) of
this Lease to be terminated (or so subleased) under this Lease as of such Rent
Payment Date, but not then so terminated (or so subleased) (such increase being
referred to as Additional Basic Rent).


 


(c)                                                 In
the event Lessee is permitted under Section 6.1(a) of this Lease to
terminate this Lease as to one or more Properties, but Lessee has not elected
to do so, Lessee may, subject to the terms of Section 3.1(d), by notice to
Lessor at least 180 days prior to any Anniversary, terminate such Property or
Properties from this Lease (any Properties so terminated, the FMV Properties), in which event, effective as of such
Anniversary, (i) the FMV Properties will be terminated from this Lease, (ii) a
Termination Transferee, and Lessee shall enter into a FMV Lease with respect to
such FMV Properties or, subject to Section 3.1(f), portions thereof, and (iii) the
Basic Rent for each such FMV Property (or portion thereof) shall (from and
after such Anniversary during the remainder of the Basic Term and any Renewal
Term under the applicable FMV Lease) be equal to the Fair Market Rental Value
of such FMV Property (or portion thereof). 
Such notice may be revoked by the Lessee for any reason up to 60 days
prior to such Anniversary.  Each FMV
Lease shall be for a term selected by the Lessee which is not less than five,
nor more than ten years, and at the end of such term may be terminated or
renewed with rent calculations as described above in this paragraph.  FMV Properties shall be considered to have
been terminated from this Lease for purposes of determining whether or not the Total
Joint Maximum Cumulative Percentages set forth in Section 6.1(a) have
been exceeded and for purposes of Section 3.1(a) and (b), it being
understood that Properties with respect to which a termination notice has been
so revoked shall not be considered to have been so terminated from this Lease
for such purposes.   For the avoidance of
doubt, the Basic Rent amounts payable on any Rent Payment Date shall not be
reduced in connection with or as a result of any termination of one or more FMV
Properties from this Lease.  At any time
between 360 days and 180 days before an Anniversary the Lessee may initiate the
Appraisal Procedure to determine the Fair Market Rental Value for one or more
Properties (or any portion thereof) to assist the Lessee in determining whether
to enter into a FMV Lease with respect thereto and the Lessor and the Owner
Participant shall cooperate with such request.


 


(d)                                                If
this Lease is terminated as to a Property pursuant to Section 3.1(c) at
a time when the Security Documents are in effect and at a time when such
Property shall be released from the Lien of the Security Documents in
accordance with Section 11.01 of the Indenture or with the written consent
of the Indenture Trustee, upon such termination, such Property shall be
transferred by the Lessor to a Termination Transferee, in all cases at the cost
and expense of the Owner Participant (but with Transfer and similar taxes being
apportioned between Owner Participant and Lessee if the transfer is to the
Recourse Guarantor or an Affiliate of the Recourse Guarantor with Lessee paying
such portion of the Transfer and similar taxes as are determined by multiplying
such taxes by a fraction, the numberator of which is the Lessor’s Cost of the
portion of the FMV Property subject to the FMV Lease and the denominator of
which is the total Lessor’s Cost of the FMV Property).  When an FMV Property is terminated from this
Lease, so long as no Special Default or Lease Event of Default is continuing at
the time of such termination, it shall become subject to a FMV Lease between a
Termination Transferee and the Lessee. 
The Lessee and, as a condition to such transfer, such Termination
Transferee shall execute and deliver, subject to satisfaction of the conditions
set forth in paragraph (e) below, an FMV Lease for each such FMV Property
(or, subject to Section 3.1(f), a portion thereof selected by the Lessee)
prior to the commencement of the FMV Lease Term.


 


3

















 


(e)                                                 As
a condition to a Termination Transferee entering into an FMV Lease, the Lessee
shall deliver to such Termination Transferee (i) an opinion of an in-house
counsel to Lessee regarding such FMV Lease of the same scope as that delivered
on the Original Closing Date and (ii) an Officer’s Certificate that no Lease
Event of Default or Special Default is continuing.


 


(f)                                                   A
portion of any Property (as opposed to such Property in its entirety) can only
be included as a FMV Property if (i) such portion consists of one or more
entire floors of the relevant Property and does not include any partial floors
and (ii) the Security Documents are no longer in effect or the relevant
Property shall from and after the date of the proposed FMV Lease be released
from the Lien of the Security Documents in accordance with Section 11.01
of the Indenture or with the written consent of the Indenture Trustee.


 


(g)                                                In
the event that a FMV Lease with respect to a portion of a Property can not be
entered into as a result of the failure of the conditions set forth in Section 3.1(f)(ii) 
to be satisfied, this Lease will not be terminated with respect to such
Property pursuant to Section 3.1(c) and the Lessee shall have the
option to sublease the portion of such Property which the Lessee did not wish
to lease pursuant to the proposed FMV Lease, to a Termination Transferee
selected by the Lessor (which must either be the Recourse Guarantor or an
entity guaranteed by the Recourse Guarantor) and the Lessor shall permit such
sublease pursuant to an AFR Sublease. 
Any portion of a Property subleased to a Termination Transferee pursuant
to an AFR Sublease shall be considered to have been terminated from this Lease
for purposes of determining whether or not the Total Joint Maximum Cumulative
Percentages in Section 6.1(a) have been exceeded and for purposes of Section 3.1(a) and
(b).


 


3.2                               Supplemental Rent


 


The Lessee shall pay to the Lessor, or to whomever
shall be entitled thereto as expressly provided herein or in any other
Operative Document to which the Lessee is a party, any and all Supplemental
Rent promptly as the same shall become due and payable and in the event of any
failure on the part of the Lessee timely to pay any Supplemental Rent (taking
into account any applicable notice and cure period requirements), the Lessor
shall have all of the same rights, powers and remedies as are provided for
herein or by law or in equity or otherwise in the case of nonpayment of Basic
Rent.  All Supplemental Rent to be paid
pursuant to this Section 3.2 shall be payable in the type of funds and in
the manner set forth in Section 3.3. 
As further Supplemental Rent, Lessee shall pay the Redemption Premium
arising as the result of the prepayment of any Secured Note pursuant to clauses
(b), (c), (d) or (f) of Section 2.04 of the Indenture, if any,
when due and payable under the Security Documents.


 


3.3                               Method of Payment


 


Basic Rent and Supplemental Rent (to the extent
payable to the Lessor) shall be paid to the Lessor at the place in the United
States specified by the Lessor.  Payments
to the Lessor shall be made to Lessor’s Account at US Bank, NA; ABA #:
091-000-022; A/C #: 173103321092; f/c: US Bank A/C # MAN4462; Ref: Nationsbank
1997 Series, which location may be changed from time to time by at least ten (10) Business
Days’ prior written notice from the Lessor; provided, that (x) until
the Lien of the Security Documents has been discharged in accordance with Section 11.01
of the Indenture or the terms of the Maryland Security Documents, as
applicable, except as provided in the following clause (y), all Rent shall be
payable directly to the Indenture Trustee at such account in the United States
as specified in writing by the Indenture Trustee pursuant to the terms of the
Indenture and (y) Excepted Payments shall be payable directly to the
Person entitled 


 


4

















 


thereto.  Each
payment of Rent shall be made by the Lessee in funds consisting of lawful
currency of the United States of America which shall be immediately available
prior to 11:00 a.m. New York City time on the scheduled date when such
payment shall be due, unless such scheduled date shall not be a Business Day,
in which case such payment shall be made on the next succeeding Business Day,
with the same force and effect as though made on such scheduled date and
(provided such payment is made on such next succeeding Business Day) no
interest shall accrue on the amount of such payment from and after such
scheduled date to the time of such payment on such next succeeding Business
Day.


 


3.4                               Late Payment


 


If any Rent shall not be paid when due, the Lessee
shall pay to the Lessor (or, in the case of Supplemental Rent, to whomever
shall be entitled thereto) as Supplemental Rent, interest (to the maximum
extent permitted by law) on such overdue amount from and including the due date
thereof to but excluding the Business Day of payment thereof (unless such
payment shall be made after 11:00 a.m. New York City time, on such date of
payment, in which case such date of payment shall be included) at the Overdue
Rate.  If any Rent shall be paid on the
date when due, but after 11:00 a.m. New York City time, interest shall be
payable as aforesaid for one day.


 


3.5                               Net Lease; No Setoff; Etc.


 


This Lease is a net lease and, notwithstanding any
other provision of this Lease or any other Operative Document, it is intended
that Basic Rent and Supplemental Rent and any other amounts payable hereunder
shall be paid without, and the rights of the Lessor in and to all such amounts
shall not be subject to, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the Lessee’s
obligation to pay all such amounts, throughout the Basic Term and all
applicable Renewal Terms, is absolute and unconditional.  Except to the extent otherwise expressly
specified in Article IX of the Participation Agreement or in Sections 4.1,
19.1(c), 19.1(d), 19.1(e) or 19.1(f) or Article 6 or 14 of this
Lease, the obligations and liabilities of the Lessee hereunder shall in no way
be released, discharged or otherwise affected for any reason, including without
limitation: (a) any defect in the condition, merchantability, design,
quality or fitness for use of the Properties or any part thereof or any failure
of the Properties to comply with plans and specifications, or the failure of
the Properties or any part thereof or the plans and specifications to comply
with all Applicable Laws and Regulations, including any inability to occupy or
use the Properties or any part thereof by reason of such noncompliance; (b) any
damage to, removal, abandonment, salvage, loss, scrapping or destruction of or
any requisition or taking of the Properties or any part thereof or any
environmental conditions on the Properties including the presence of Hazardous
Materials at, on or under the Properties or any part thereof or any property in
the vicinity of the Properties; (c) any restriction, prevention or
curtailment of or interference with any use of the Properties or any part
thereof including eviction; (d) any defect in title to or rights to the
Properties or any part thereof or any Lien on such title or rights or on the
Properties or any part thereof; (e) any change, waiver, extension,
indulgence or other action or omission or breach in respect of any obligation
or liability of or by the Lessor, the Owner Participant, the Indenture Trustee
or any other Person; (f) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceedings
relating to the Lessee, the Lessor, the Owner Participant, the Indenture
Trustee or any other Person, or any action taken with respect to this Lease by
any trustee or receiver of the Lessee, the Lessor, the Owner Participant, the
Indenture Trustee or any other Person, or by any court, in any such proceeding;
(g) any claim that the Lessee has or might have against any Person,
including without limitation the Lessor, the Owner Participant, any vendor, 


 


5

















 


manufacturer, contractor of or for any Improvement or
the Indenture Trustee; (h) any failure on the part of the Lessor to
perform or comply with any of the terms of this Lease, any other Operative
Document or of any other agreement whether or not related to the Overall
Transaction; (i) any invalidity or unenforceability or disaffirmance of
this Lease against or by the Lessee or any provision hereof or any of the other
Operative Documents or any provision of any thereof; (j) the impossibility
of performance by any one or more of the Lessee, the Lessor, the Owner
Participant, or any other Person; (k) any action by any court,
administrative agency or other Governmental Authority; (l) any claim by
any Person based upon a failure to record this Lease (or any memorandum or
short form agreement with respect to this Lease) or the Indenture or to file
precautionary financing statements with respect to the Lease in the State of
Maryland, including any termination or attempted termination of the Lessee’s
rights to possession of any or all of the Properties located in such state in
connection with the assertion of such claim; or (m) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing, whether or not the
Lessee shall have notice or knowledge of any of the foregoing.  Except as specifically set forth in Article 6
or 14 of this Lease or Article IX of the Participation Agreement, this
Lease shall be noncancelable by the Lessee for any reason whatsoever and,
except as expressly provided in Section 4.1 or Article 6 or 14 of
this Lease or Article IX of the Participation Agreement, the Lessee, to
the extent permitted by Applicable Laws and Regulations, waives all rights now
or hereinafter conferred by Applicable Laws and Regulations or otherwise to
quit, terminate or surrender this Lease, or to any diminution, abatement or
reduction of Rent payable by the Lessee hereunder.  If for any reason whatsoever this Lease shall
be terminated in whole or in part by operation of law or otherwise except as
expressly provided in Section 19.1(a), 19.1(c), 19.1(d), 19.1(e), 19.1(f) or
Article 6 or 14 of this Lease or Article IX of the Participation
Agreement, the Lessee shall, unless prohibited by Applicable Laws and
Regulations, nonetheless pay to the Indenture Trustee (if the Security
Documents are still in effect or, if not, to the Lessor) (or, in the case of
Supplemental Rent, to whomever shall be entitled thereto) an amount equal to
each Rent payment at the time and in the manner that such payment would have
become due and payable under the terms of this Lease if it had not been
terminated in whole or in part, and in such case, so long as such payments are
made and no Lease Event of Default shall have occurred and be continuing, the
Lessor will deem this Lease to have remained in effect.


 


3.6                               Limitations on Rent


 


Notwithstanding anything in this Lease to the
contrary, (a) at each time when Stipulated Loss Value is payable by the
Lessee pursuant to this Lease, the sum of the following amounts shall be at
least sufficient to pay in full the aggregate unpaid principal amount then due
on the Outstanding Notes plus accrued interest and Redemption Premium (arising
as the result of the prepayment of any Secured Note pursuant to clauses (b),
(c), (d) or (f) of Section 2.04 of the Indenture), if any, due
thereon at such time:  (i) Stipulated
Loss Value payable under this Lease at such time, (ii) all Basic Rent
accrued and payable under this Lease at such time, and (iii) all other
amounts unconditionally payable by the Lessee under this Lease in connection
with such payment of Stipulated Loss Value on or prior to the date for payment
thereof; and (b) at each time when Basic Rent shall be payable by the
Lessee pursuant to this Lease, the amount of Basic Rent payable on each Rent
Payment Date shall be equal to or greater than the aggregate amount of
principal and accrued interest which becomes due and payable on the Notes on
such Rent Payment Date; provided that payments due from the Lessee shall
not be increased by reason of this Section 3.6 as a result of a Lessor Lien,
or as a result of any amendment or supplement to the Operative Documents to
which the Lessee did not consent.


 


6














 


3.7                               Florida Sales Tax on Rent.


 


Simultaneously with each payment of Rent due hereunder
with respect to any Property located in the State of Florida, Lessee shall pay
to Lessor all applicable Florida sales tax and any local surtaxes due on such
Rent payment, provided that so long as there shall be in effect with respect to
any such Property a certificate of direct payment authority issued to Lessee by
the Florida Department of Revenue, Lessee shall instead self-accrue and remit
all such sales tax and local surtaxes due on Rent payments with respect to such
Property directly to the Florida Department of Revenue and shall simultaneously
deliver to Lessor copies of all documentation delivered to the Florida
Department of Revenue with respect to each such payment.  In the event of any non-payment of the taxes
required to be paid under this Section 3.7, Lessor shall have all the
rights and remedies provided for herein or at law in the case of non-payment of
Rent.


 


4.                                      RECOMPUTATIONS


 


4.1                               Adjustments


 


The Basic Rent amounts and Stipulated Loss Values are
subject to adjustment in accordance with Section 4.2 in the event of any
issuance of Additional Notes pursuant to Section 11.1(b) of the
Participation Agreement.


 


4.2                               Methodology for Adjustments


 


In the event Additional Notes are issued pursuant to Section 11.1
of the Participation Agreement, (a) the Basic Rent scheduled to be due
after such issuance shall increase by the amount of the scheduled debt service
due under such Additional Notes and (b) Stipulated Loss Values shall
increase on each Stipulated Loss Value Date after such issuance by the amount
of principal scheduled to be outstanding and the amount of interest scheduled
to be accrued on such Additional Notes on such Stipulated Loss Value Date after
taking into account any Basic Rent due on such Stipulated Loss Value Date.


 


4.3                               Supplements


 


The Lessor and the Lessee shall execute and deliver a
supplement to this Lease and, if necessary, the Lessor shall execute and
deliver a supplement to the Indenture and the Maryland Security Documents, if
applicable, to reflect each such adjustment, provided that each such
adjustment shall be effective for all purposes of this Lease regardless of
whether either such supplement is actually executed and delivered.


 


5.                                      RENEWAL OPTIONS


 


5.1                               Renewal Options


 


So long as no Special Default or Lease Event of
Default shall have occurred and be continuing at the time(s) the Lessee
elects in writing to exercise its renewal option(s) hereunder and at the
commencement of the applicable Renewal Term, the Lessor hereby grants to the
Lessee an option to renew this Lease for one or more Properties which remain
subject to this Lease at the time of notice and at the time of renewal (a) subject
to the succeeding paragraph of this Section 5.1, for up to three
successive terms of five years each during which Basic Rent shall be equal to
the Fixed Rate Renewal Rent (each such renewal term being referred to
hereinafter as a Fixed Rate 


 


7

















 


Renewal Term) or (b) at the expiration of the Fixed Rate
Renewal Terms and any Fair Market Value Renewal Term for a term selected by the
Lessee during which Basic Rent shall be equal to the Fair Market Rental Value
of the Property or Properties which the Lessee elects to be renewed (each such
renewal term being referred to hereinafter as a Fair Market
Value Renewal Term; each of the Fixed Rate Renewal Terms and each of
the Fair Market Value Renewal Terms are referred to hereinafter as Renewal Terms); provided that the Fair Market Value Renewal
Terms shall be not less than five, nor more than ten years and shall not exceed
the useful life of the Improvements constituting part of the Properties being
renewed as determined by the Appraisal Procedure at the time of the renewal.


 


Notwithstanding the foregoing, Lessee may renew the
Properties located at (i) 225 North Calvert Street, Baltimore, (ii) 340
Columbia Pike, Arlington, (iii) 1111 East Main Street, Richmond, (iv) 830
Central Avenue, St. Petersburg, (v) 12125 Veirs Mill Road, Silver Springs,
(vi) 2059 Northlake Parkway, Tucker, (vii) One Commercial Place,
Norfolk and (viii) Two Commercial Place, Norfolk (Properties described in
clauses (i)-(iv), the One Year Properties;
Properties described in clause (v) the Four Year
Properties; and all such Properties, the Wintergreen
Properties) for only two Fixed Rate Renewal Terms of five years
each.  If the Lessee desires to renew any
One Year Property or any Wintergreen Property described in clauses (vi)-(viii) at
the end of the second Fixed Rate Renewal Term, it may either (a) exercise
its renewal option (as described in the prior paragraph) for a Fair Market
Renewal Term (except that, in the case of a One Year Property, the Basic Rent
during the first year of such Renewal Term shall be the Fixed Rate Renewal Rent
with respect to such Property and during the remaining years of such Renewal
Term shall be the Fair Market Rental Value as determined prior to the
commencement of such Renewal Term) or (b) elect (in its renewal notice) to
have such One Year Property or such Wintergreen Property, as applicable,
appraised by an Appraiser to make the determinations referred to below as to
its then expected remaining useful life and expected residual value.  Following such appraisal the Lessee may renew
this Lease for a five year Renewal Term for such One Year Property or such
Wintergreen Property, as applicable.  The
Basic Rent during such Renewal Term shall be the Fixed Rate Renewal Rent for
the Maximum Term, and for the balance of such Renewal Term shall be the Fair
Market Rental Value of such One Year Property or such Wintergreen Property, as
applicable, as determined prior to the commencement of such Renewal Term.  Maximum Term
for each of the One Year Properties and for each of the Wintergreen Properties
described in clauses (vi)-(viii) means the lesser of five years and the
period ending on the date as of which such Appraiser determines that (A) the
sum of the Basic Term, the Fixed Rate Renewal Terms and such Maximum Term does
not exceed eighty percent of such Property’s remaining economic useful life as
of the Original Closing Date, and (B) the expected residual value of such
One Year Property or such Wintergreen Property at the end of the Maximum Term
is not less than 20 percent of the Lessor’s Cost for such One Year Property or
such Wintergreen Property, determined without regard to the effects of
inflation or deflation from the Original Closing Date.  If the Lessee desires to renew any Four Year
Property at the end of the second Fixed Rate Renewal Term, it may exercise its
renewal option (as described in the prior paragraph) for a Renewal Term of five
years during which the Basic Rent for the first four years of the Renewal Term
shall be the Fixed Rate Renewal Rent and for the last year of the Renewal Term
shall be the Fair Market Rental Value for such period, determined at the time
of the renewal.  At the end of any such
third Renewal Term with respect to any Wintergreen Property the Lessee may
exercise Fair Market Renewal Terms as described in the prior paragraph.


 


If the Lessor and the Lessee cannot agree on the
amount of the Fair Market Rental Value, such Fair Market Rental Value shall be
determined by the Appraisal Procedure. 
The first Renewal Term for a Property shall commence at the expiration
of the Basic Term and each other Renewal 


 


8

















 


Term for such Property to commence at the expiration
of the preceding Renewal Term; provided, however, that in order
to exercise such option to renew this Lease for any Renewal Term, the Lessee
shall give the Lessor written notice of its election to renew at least 360 days
prior to the expiration of the Basic Term or the Renewal Term then in effect,
as the case may be, provided that such notice may be revoked by the Lessee for
any reason so long as the Lessor has no less than 270 days’ irrevocable notice
of such revocation prior to the commencement of the new Renewal Term.  The Lessee shall have no right to extend the
Lease Term except as provided in this Article 5.  During the Renewal Terms, Basic Rent for the
Properties shall be payable to the Lessor by the Lessee semiannually, in
advance, on the Rent Payment Dates.


 


5.2                               Lease Provisions Applicable


 


All the provisions of this Lease shall be applicable
during each Renewal Term, except (a) the amount of each installment of
Basic Rent which shall be determined as provided in Section 5.1 hereof and
(b) the Stipulated Loss Values for the Properties shall for all Renewal
Terms be equal to the Stipulated Loss Value for such Properties on the last day
of the Basic Term.


 


6.                                      EARLY TERMINATION;


 


6.1                               Early Termination Options


 


(a)                                                 The
Lessee, for any reason, in its sole discretion, on an Anniversary, or annually
thereafter on any anniversary of an Anniversary, provided that at least 360
days’ prior written notice is provided to the Lessor (provided that such notice
may be revoked by the Lessee for any reason prior to the date which is 270 days
before the relevant Anniversary or anniversary or as permitted pursuant to Section 6.1(d))
may terminate this Lease in accordance with this Section 6.1 as to any
entire Property or Properties, in each case, only if such Property or
Properties are not subject to an Event of Loss or Event of Taking or any event
which with the giving of notice or the lapse of time or both would constitute
an Event of Loss or Event of Taking. 
Except as otherwise provided herein, if the Lessee so elects to
terminate this Lease, the Lessee shall vacate such Property (unless it becomes
subject to a Partial Occupancy Lease or a FMV Lease) on or before the
Anniversary or anniversary on which this Lease shall terminate with respect
thereto and return such Property to Lessor in accordance with Article 12
of this Lease.  In the case of a termination
relating to one or more of the Bank Branch Properties, if the Lessee so elects
in the termination notice, the bank lobby space located in some or all of the
Bank Branch Property or Bank Branch Properties to be terminated will then
become subject to a Bank Branch Lease. 
The sum of (i) the Lessor’s Cost for such Property or Properties to
be terminated pursuant to this Section 6.1(a) (and for the portion of
any Property or Properties to be subleased pursuant to an AFR Sublease), plus
(ii) the Lessor’s Cost for any other Property or Properties previously so
terminated pursuant to this Section 6.1(a) (and any portion of any
Property or Properties previously subleased pursuant to an AFR Sublease and for
any FMV Property or FMV Properties terminated pursuant to Section 3.1(c)),
plus (iii) $12,996,720 (which amount represents four percent (4%)
of Total Original Lessor’s Cost which will not be terminated pursuant to this Section 6.1(a) but
was terminated pursuant to the Original Leases prior to the date hereof, less
(iv) the Lessor’s Cost for any portion of any Property or Properties
leased to the Lessee pursuant to a Partial Occupancy Lease (but only for so
long as such portion remains subject to a Partial Occupancy Lease), expressed
as a percentage of Total Original Lessor’s Cost, may not exceed the percentages
of Total Original Lessor’s Cost set forth in the table below, except as set
forth in the next paragraph and except to the extent attributable to less than
a single floor of a Property which is to be leased pursuant to a Partial
Occupancy Lease or subleased pursuant to an AFR Sublease.  


 


9

















 


Consequently, and in all
events (except to the extent attributable to less than a single floor of a
Property), Properties representing a combined 46% of Total Original Lessor’s
Cost may not be terminated pursuant to the Original Leases or pursuant to this Section 6.1(a) (excluding
any portion of any Property leased to the Lessee pursuant to a Partial
Occupancy Lease, so long as such portion remains subject to a Partial Occupancy
Lease).  Any termination of Properties
pursuant to this Section 6.1(a) shall not result in a reduction of
Basic Rent.  The percentages referenced
above are as follows:


 


	
  Anniversary

  	
   

  	
  Total Joint

  Maximum Cumulative

  Percentages

  	
   

  
	
  June 10,
  2004

  	
   

  	
  21

  	
  %

  
	
  June 10,
  2009

  	
   

  	
  38

  	
  %

  
	
  June 10,
  2015

  	
   

  	
  54

  	
  %

  



 


(b)                                                In
addition to the termination option in paragraph (a) above (and subject to
the terms thereof with respect to notice and that no Event of Loss or Event of
Taking or event which with the passage of time or giving of notice would
constitute an Event of Loss or Event of Taking, is then continuing), the Lessee
(if the Lessee has not terminated the maximum Lessor’s Cost pursuant to Section 6.1(a))
may, for any reason, in its sole discretion, in the same notice as referenced
in Section 6.1(a), on each Anniversary, or annually thereafter on any
anniversary of an Anniversary, terminate one entire Property (the Carryover Property) from this Lease if the sum of the Lessor’s
Cost of the Carryover Property plus the Lessor’s Cost of Properties (excluding
any portion of a Property leased to Lessee pursuant to a Partial Occupancy
Lease, so long as such portion remains subject to a Partial Occupancy Lease)
previously terminated pursuant to Section 6.1(a), plus the Lessor’s Cost
of any portion of a Property subleased pursuant to an AFR Sublease, plus the
Lessor’s Cost of any FMV Properties previously terminated pursuant to Section 3.1(c),
exceeds (such excess being referred to as the Cost Excess)
the Total Joint Maximum Cumulative Percentage of Lessor’s Cost which can
otherwise be terminated pursuant to Section 6.1(a), but will not exceed
such Total Joint Maximum Cumulative Percentage on the next Anniversary (it
being agreed that the maximum terminations pursuant to Sections 6.1(a) and
(b) hereof is 54% of Total Original Lessor’s Cost).  No termination of Properties pursuant to this
Section 6.1(b) shall result in a reduction of Basic Rent.  No more than one Carryover Property may be
terminated pursuant to this paragraph (b) on an Anniversary or during the
period until the next Anniversary.  In
the termination notice the Lessee may elect to enter into a Bank Branch Lease
in the Carryover Property if it is also a Bank Branch Property.


 


On the date a Carryover Property is terminated from
this Lease, Lessee shall vacate such Property on or before such date and the
related Property shall be returned to the Lessor pursuant to Article 12 of
this Lease.  There shall be no reduction
in Basic Rent as a result of such termination and the Lessee shall continue to
pay Basic Rent to the Lessor until the next Anniversary as if the maximum (but
no more than the maximum) terminations had occurred pursuant to Section 6.1(a);
provided that if such Carryover Property will be subject to a Bank
Branch Lease during such period, the rent which would otherwise be due under
such Bank Branch Lease during such period will be reduced by an amount equal to
the Bank Branch Lease rent multiplied by a fraction, the numerator of which is
the Cost Excess and the denominator of which is the Lessor’s Cost of such
Carryover Property.  The Lessor’s Cost of
a Carryover Property so terminated shall reduce the percentage of Lessor’s Cost
of Properties which the Lessee can terminate pursuant to Section 6.1(a)


 


10

















 


on or after the next Anniversary to the extent of the
Cost Excess.  After a Carryover Property
is so terminated, the Lessee shall continue to pay Basic Rent (as provided in
the second sentence of this paragraph) but otherwise have no other obligations
under this Lease (except for accrued obligations), any indemnities (except to
the extent indemnities would otherwise survive a Lease termination) or
otherwise with respect to the Carryover Property.


 


(c)                                                 Upon
a Bank Branch Property being terminated from this Lease pursuant to Section 6.1(a) or
(b) and the Lessee having elected to enter into a Bank Branch Lease for
the first floor space within such Bank Branch Property or, in the case of the
Bank Branch Property located at 1111 East Main Street, Richmond, for the “A”
level or plaza level space or, in the case of the Bank Branch Property located
at 100 S. Charles Street, Baltimore, for the first or second level retail
space, then being used by the Lessee as a retail bank or to support the
operation of a retail bank, the Lessee and Termination Transferee (if any)
shall, so long as no Special Default or Lease Event of Default has occurred and
is continuing, enter into a Bank Branch Lease prior to such termination.  Notwithstanding the foregoing, in the case of
a termination of a Bank Branch Property pursuant to Section 6.2 where the
Lessor does not retain such Bank Branch Property, Lessor shall execute the Bank
Branch Lease prior to such termination and assign to the purchaser under Section 6.2
the Lessor’s rights and obligations under such Bank Branch Lease, which Bank
Branch Lease shall specify (i) that after such assignment Lessor shall
have no liability or obligations as a result of such Bank Branch Lease and (ii) that
if such purchaser does not purchase as contemplated by Section 6.2, such
Bank Branch Lease shall be deemed terminated in all respects. The rent under
each Bank Branch Lease shall be the lower of (x) the Average Annual Rent
Factor multiplied by the Lessor’s Cost of such bank space (which Lessor’s Cost
of such bank space shall be determined by allocating the Lessor’s Cost of the
related Property pro rata based on Square Feet) and (y) the Fair Market
Value Rent (taking into account the other terms of the Bank Branch Lease) of
such bank space.  The initial term of
each Bank Branch Lease shall be as selected by the Lessee, but shall not be
less than three or more than ten years.


 


(d)                                                The
Lessee shall have the right, subject to Section 6.1(e), to make the
termination of any Property pursuant to Section 6.1(a) subject to the
condition that the following events must occur prior to or simultaneously with
such termination: (i) the Security Documents shall cease to be in effect
or the relevant Property shall from and after the next Anniversary be released
from the Lien of the Security Documents and (ii) a Termination Transferee
shall have entered into a Partial Occupancy Lease with the Lessee with respect
to any portion of such Property identified by the Lessee in the notice referred
to in Section 6.1(e)(i) as being subject to the proposed Partial
Occupancy Lease.


 


(e)                                                 The
Lessee shall only be entitled to exercise its right to make its termination
option with respect to any Property under Section 6.1(a) conditional
pursuant to Section 6.1(d) if: (i) the Lessee shall notify the
Lessor in writing between 540 and 270 days prior to an Anniversary that it
intends to keep possession of a portion of such Property, which notice shall
identify the portion of any Property which is to be subject to a Partial
Occupancy Lease either by reference to the portion of such Property which the
Lessee intends to retain possession of or by reference to the portion of such
Property which the Lessee intends to vacate, (ii) the portion of such
Property which is to be subject to a Partial Occupancy Lease shall consist of
one or more entire floors of each relevant Property and does not include any
partial floors, (iii) the Lessee shall pay for all reasonable costs of
completing necessary Demising Work in such Property in accordance with Section 6.5,
(iv) if the Termination Transferee to whom the Property subject to a
Partial Occupancy Lease is transferred is the Owner Participant or an Affiliate
of the Owner Participant, the Lessee shall pay such portion of the Transfer and
similar taxes as are determined by 


 


11

















 


multiplying such taxes by
a fraction, the numerator of which is the Lessor’s Cost of the portion of the
Property subject to the Partial Occupancy Lease and the denominator of which is
the total Lessor’s Cost for the Property, and (v) after giving effect to
all terminations then requested by the Lessee on such Anniversary, the Lessee
would have terminated this Lease with respect to at least the Total Joint
Maximum Cumulative Percentage of Total Original Lessor’s Cost permitted for
such Anniversary in Section 6.1(a), and provided that any portion of a Property
leased to the Lessee pursuant to a Partial Occupancy Lease shall (so long as
such portion remains subject to a Partial Occupancy Lease) be deemed to still
be subject to this Lease for purposes of determining whether or not the Total
Joint Maximum Cumulative Percentages in Section 6.1(a) have been
exceeded and for purposes of Section 3.1(a) and (b).  The Lessor and the Owner Participant shall be
obligated to notify the Lessee and the Indenture Trustee within 60 days after
receipt of the notice described in Section 6.1(e)(i) whether or not
the Lessor and the Owner Participant expect to be able to satisfy the
conditions set forth in Section 6.1(d). 
The Lessor or the Owner Participant will promptly notify the Lessee and
the Indenture Trustee if, at any time after the Lessor or the Owner Participant
notified the Lessee and the Indenture Trustee pursuant to the preceding
sentence that the Lessor and the Owner Participant expect to be able to satisfy
the conditions set forth in Section 6.1(d), it becomes likely that the
Lessor or the Owner Participant will not be able to satisfy such conditions.


 


(f)                                                   In
the event that the termination of any Property can not be completed as a result
of the failure of the conditions set forth in Section 6.1(d) to be
satisfied, the Lessee shall have the option to sublease the portion of such
Property which was not identified by the Lessee as being subject to the
proposed Partial Occupancy Lease in the notice referred to in Section 6.1(e)(i),
to a Termination Transferee selected by the Lessor (which must either be the
Recourse Guarantor or an entity guaranteed by the Recourse Guarantor pursuant
to a guaranty in form and substance reasonably acceptable to the Lessee) and
the Lessor shall permit such sublease pursuant to an AFR Sublease.  Any portion of a Property subleased to a
Termination Transferee pursuant to an AFR Sublease shall be considered
terminated from this Lease for purposes of determining whether or not the Total
Joint Maximum Cumulative Percentages in Section 6.1(a) have been
exceeded and for purposes of Section 3.1(a) and (b).  If at any time any Property subject to an AFR
Sublease is released from the Lien of the Security Documents, the relevant
Termination Transferee and the Lessee shall promptly enter into a Partial
Occupancy Lease relating to the portion of such Property that was not subject
to an AFR Sublease and, upon execution of such Partial Occupancy Lease, (i) such
AFR Sublease shall automatically terminate and (ii) this Lease shall
automatically terminate with respect to such Property.  If the Termination Transferee to whom the
Property subject to a Partial Occupancy Lease is transferred is the Recourse
Guarantor or an Affiliate of the Recourse Guarantor, the Lessee shall pay such
portion of the Transer and similar taxes as are determined by multiplying such
taxes by a fraction, the numerator of which is the Lessor’s Cost of the portion
of the Property subject to the Partial Occupancy Lease and the denominator of
which is the total Lessor’s Cost for the Property.


 


(g)                                                For
purposes of Section 6.1(a), the Lessor’s Cost for any portion of any
Property shall be determined by multiplying the Lessor’s Cost for such Property
in its entirety by a fraction, the numerator of which is the number of Square
Feet included in such portion and the denominator of which is the total Square
Feet of such Property.


 


(h)                                                If at
any time after the Lessee notifies the Lessor of its desire to terminate the
Lease with respect to a Property pursuant to Section 3.1(c) or 6.1(a) and
to enter into a FMV Lease or a Partial Occupancy Lease, as applicable, with
respect to a portion of such Property, the Lessor and Owner Participant will
use all reasonable efforts to cause such Property to be released from the 


 


12

















 


Lien of the Security Documents (it being understood that a Property can
not be released from the Lien of the Security Document unless either the
conditions of Section 11.01 of the Indenture are satisfied or the
Indenture Trustee has consented in writing to such release).   If the Lessee has requested that this Lease
be so terminated with respect to more than one Property pursuant to Section 3.1(c) or
6.1(a) and the Lessor and Owner Participant determine that they will be
unable to cause all such Properties to be released from the Lien of the
Security Documents, so that it will be necessary for one or more of such
Properties to remain subject to the Lease and become subject to an AFR
Sublease, the Lessor and Owner Participant shall use all reasonable efforts to
cause the Property to be terminated from the Lease which minimizes the amount
of Square Feet which will be subject to an AFR Sublease.


 


6.2                               Obsolescence Termination


 


In addition to the termination rights granted in Section 6.1
above, so long as no Special Default or Lease Event of Default has occurred and
is continuing, the Lessee may, if it determines (as evidenced by a certificate
of a Responsible Officer of the Lessee) one or more Properties is obsolete,
surplus or uneconomic for its needs, on not less than 180 days’ prior written
notice to the Lessor (a Notice of Termination),
terminate this Lease as to any such Property or Properties on a Rent Payment
Date after December 10, 2004 (the Termination Date).  The Notice of Termination may be revoked by
the Lessee for any reason up to 30 days prior to the Termination Date (unless
Lessor has previously given the notice contemplated in the next paragraph).  Upon such termination election, the Lessee shall
use all reasonable efforts to sell the Properties (subject to any Bank Branch
Leases for such Properties, if any, which the Lessee elects in such Notice of
Termination for any Bank Branch Properties being so terminated, and subject to
any Senior Subleases) for cash to the highest bidder unrelated to the Lessee on
such Termination Date.  Lessor and Owner
Participant may, but shall have no obligation to, attempt to locate a purchaser
for such Property or Properties, provided that such attempts do not interfere
with the Lessee’s attempts to locate such a purchaser.  In the event such a buyer is found, the
Lessee shall vacate such Properties (except for any bank lobby space subject to
such a Bank Branch Lease) and the sale shall occur on the Termination Date and,
subject to the last sentence in this paragraph, net sales proceeds shall be
paid to the Lessor.  If the net sales
proceeds received by the Lessor are less than the Stipulated Loss Value of such
Properties on the Termination Date the Lessee shall pay to the Lessor on such
Termination Date such shortfall and all other amounts then due, including any
Supplemental Rent and Redemption Premium, if any, then due.  If no such buyer is found by such Termination
Date, the Lessee may elect to either continue this Lease without any such
termination (provided, however, the Lessee may not withdraw (pursuant to this
sentence or the first sentence of this paragraph) more than 5 termination
notices in the aggregate and not more than one in any 18-month period, in each
case for this Lease and any FMV Lease) or vacate such Property or Properties
(it being understood that sublessees under Senior Subleases, and the Lessee as
lessee under any such Bank Branch Lease, need not vacate) and pay to the Lessor
the Stipulated Loss Value, the Redemption Premium and any other amounts then
due for such Properties on such Termination Date and continue to attempt to
find such a buyer.  When such a buyer is
ultimately found, the net proceeds of such sale shall be remitted to the Lessee
up to an amount equal to and in reimbursement of the Lessee’s payment of
Stipulated Loss Value, the Redemption Premium and any other amounts then due
and any excess shall be paid as provided in the next sentence.  If the Lessee arranges for such a sale and has
paid all Supplemental Rent and Redemption Premium, if any, then due and the net
proceeds are in excess of Stipulated Loss Value, such excess proceeds shall be
applied to reimburse the Lessee for the reasonable costs incurred in connection
with such sale and the balance shall be paid to the Lessor.


 


13

















 


Upon Lessee’s payment of all amounts due under this Section 6.2,
and the assumption by the purchaser of any Bank Branch Leases in the terminated
Property(ies), Lessor shall, at Lessee’s expense, execute such deeds and other
instruments of transfer as Lessee may reasonably request to effectuate the
transfer to such purchaser, which transfer shall be without recourse or
warranty, except as to the absence of Lessor’s Liens.


 


In the event the Lessee elects to terminate this Lease
with respect to a Property or Properties as provided in this Section 6.2,
the Lessor may elect to retain such Properties (by notice given to Lessee no
later than 60 days after Lessor receives the Notice of Termination) and thereby
relieve the Lessee from any obligation to pay Stipulated Loss Value (but the
Lessee shall nonetheless pay any Redemption Premium, if any, and Supplemental
Rent then due), provided that no such election shall be made unless the Lessor
shall have deposited funds with the Indenture Trustee sufficient to pay the
Allocable Portion of the Notes in full on the Termination Date.  This Lease will so terminate with respect to
such Property or Properties whether or not such Allocable Portion is so
paid.  Upon such termination the Lessor
will transfer such Property or Properties to such other Person as it shall
determine, but at the sole cost and expense of the Owner Participant, including
as to transfer taxes.


 


6.3                               Effect of Termination


 


Upon compliance by the Lessee with the provisions of Section 6.2
with respect to termination of one or more Properties, the obligation of the
Lessee to pay Basic Rent for the terminated Properties for any period after the
Termination Date shall cease.  Upon
compliance by Lessee with the provisions of Section 6.1 or 6.2 with
respect to termination of one or more Properties, the Lease Term shall end for
such Properties and the obligations of the Lessee hereunder with respect to
such Properties (other than any such obligations expressly surviving
termination of this Lease) shall terminate as of the date of termination.  In the event, for any reason, the purchaser
fails to purchase a Property on the Termination Date, this Lease shall continue
as to such Property, and the Lessee shall pay any costs incurred by Lessor,
Owner Participant, the Pass Through Trustee or Indenture Trustee in connection
therewith unless such failure resulted from a breach by a party of its
obligations under the Operative Documents, in which case the Lessee shall not
pay such party’s costs.


 


6.4                               Adjustment of Termination Percentages


 


The Total Joint Maximum Cumulative Percentages set
forth in Section 6.1(a) shall not be reduced upon the termination of
this Lease as to a Property unless such termination is pursuant to Section 6.2,
14.1 or 14.3 hereof or Section 9.1 of the Participation Agreement only in
the case where the Lessee elects to purchase the Property or Section 9.3
of the Participation Agreement (a Terminating Event),
in which case each Total Joint Maximum Cumulative Percentage in Section 6.1(a) for
an Anniversary that has not yet occurred shall equal:


 


EP+((PA-EP) X
(1-(TP/((1-CT)-EP))))


 


EP =        the
Total Joint Maximum Cumulative Percentage for the Anniversary that has most
recently occurred or, if no Anniversary has previously occurred, 0.04;


 


PA =       the
Total Joint Maximum Cumulative Percentage being adjusted;


 


14

















 


TP =        the
percentage of Total Original Lessor’s Cost represented by the Property being
terminated;


 


CT =       the
percentage of Total Original Lessor’s Cost represented by the cumulative
Properties previously terminated from the Lease pursuant to a Terminating
Event, without regard of the Terminating Event giving rise to the current Section 6.4
adjustment.


 


Each variable should be expressed as a decimal when
calculating the Total Joint Maximum Cumulative Percentage and converted to a
percentage after the calculation.


 


For example, if during the fourth and eighth years of
the Original Leases, Properties representing 40% and 10%, respectively, of
total Lessor’s Cost for all Properties originally subject to the Original
Leases were terminated from the Original Leases (or this Lease, as the case may
be) pursuant to a Terminating Event, the Total Joint Maximum Cumulative
Percentage table of Section 6.1(a) would become as follows:


 


	
  Anniversary

  	
   

  	
  4th Year

  Total Joint Maximum

  Cumulative Percentages(1)

  	
   

  	
  8th Year

  Total Joint Maximum

  Cumulative Percentages(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 10,
  2004

  	
   

  	
  13.9167

  	
  %

  	
  13.9167

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 10,
  2009

  	
   

  	
  23.8333

  	
  %

  	
  21.6814

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  June 10,
  2015

  	
   

  	
  33.1667

  	
  %

  	
  28.9895

  	
  %

  



 


6.5                               Demising Work


 


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


 


(a)                                                 Lessee
shall prepare and submit to Owner Participant for Owner Participant’s approval
a preliminary space plan (the Preliminary Space Plan)
in connection with the proposed separation of the Leased Premises from the
Surrendered Premises. Owner Participant’s approval shall not be unreasonably
withheld or delayed and shall be given or withheld, or Owner Participant shall
advise Lessee whether Owner Participant requires additional information in
order to evaluate Lessee’s request, within ten (10) days following Lessee’s
delivery to Owner Participant of the Preliminary Space Plan.  If Owner Participant objects to the
Preliminary Space Plan (or any revision thereof), Lessee shall deliver a
revised Preliminary Space Plan to Owner Participant and the procedure will be
repeated, if necessary, until a final space plan is approved.  The final approved space plan is hereinafter
referred to as the Final Space Plan.
Owner Participant and Lessee 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 6.5(b)).


 


(b)                                                From
the Final Space Plan, Lessee shall prepare and submit to Owner Participant for
Owner Participant’s approval (which approval shall not be unreasonably withheld
or delayed, and which shall be given or withheld, or Owner Participant shall
advise Lessee whether Owner Participant requires additional information in
order to evaluate Lessee’s request, within ten (10) 


 






(1)           Total Joint Maximum Cumulative
Percentages are percentages of Lessor’s Cost for all Properties originally
subject to the Lease.


 


15

















 


days) following Lessee’s
delivery to Owner Participant of, one-eighth inch (1/8”) architectural,
mechanical, electrical, lighting, plumbing and (if reasonably requested by
Owner Participant) 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 Owner Participant objects to the Preliminary Drawings (or any revision
thereof), Lessee shall deliver revised Preliminary Drawings to Owner
Participant and the procedure will be repeated, if necessary, until final
drawings are approved.  The final
approved drawings are hereinafter referred to as the Final
Drawings.


 


(c)                                                 Lessee
will cause the Demising Work to be constructed in substantial accordance with
the Final Drawings. Owner Participant and the Lessor shall be deemed to have
waived Lessee’s performance of any Demising Work not shown on the Final
Drawings except to the extent required to satisfy Applicable Laws. Owner
Participant ‘s review of Space Plans and Drawings under Sections 6.5(a) and
(b) is for Owner Participant’s purposes only, and not a representation or
warranty that the work to be performed pursuant thereto meets all Applicable
Laws.


 


(d)                                                In
connection with the Demising Work, Lessee 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 Lessee shall promptly
obtain, if required, a permanent certificate of occupancy and all other
approvals required of Lessee to use and occupy the Leased Premises.


 


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


 


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


 


(g)                                                All
of the Demising Work shall be done in conformity with Applicable Laws and at
Lessee’s expense, including, without limitation, building permit fees, other
fees, architectural and engineering expenses and other expenses relating
thereto.  Lessee may request Owner
Participant’s review of Preliminary Space Plans or Preliminary Drawings before
Lessee’s notification to Owner Participant or Lessor of Lessee’s election to
remove Surrendered Premises from the Leased Premises to facilitate Lessee’s
understanding of the potential approximate costs associated therewith.


 


6.6                               Sublessee Options


 


If at the time this Lease is to be terminated with
respect to any Property pursuant to Section 3.1 or Section 6.1 or at
the time any portion of any Property is to be subleased pursuant to an AFR
Sublease, a sublessee of any portion of such Property has the option to
sublease from the Lessee additional space in such Property at a fair market
value rent (including by way of any right of first refusal or similar right),
the Lessor and Owner Participant agree, and will cause any relevant Termination
Transferee to agree, to honor the terms of such option as if it was an option
granted 


 


16

















 


to such permitted sublessee by the Lessor, Owner
Participant or relevant Termination Transferee, as the case may be.


 


7.                                      CONDITION AND USE OF PROPERTIES


 


7.1                               Waivers


 


The Properties are demised and let by the Lessor “AS
IS” in their present condition, subject to (a) the rights of any parties
in possession thereof, (b) the state of the title thereto existing at the
time the Lessor acquired title to such Properties, (c) any state of facts
which an accurate survey or physical inspection might show (including the
surveys delivered on the Closing Date), (d) all Applicable Laws and
Regulations, (e) any violations of Applicable Laws and Regulations which
may exist at the commencement of the Lease Term and (f) the presence or
potential presence of any Hazardous Material at, on or under any Properties or
any property in the vicinity of the Properties. 
The Lessee has examined the Properties and has found the same to be
satisfactory for all purposes of this Lease (without waiving any rights Lessee
may have against any contractor, subcontractor or supplier).  NONE OF THE LESSOR (EITHER IN ITS INDIVIDUAL
OR TRUST CAPACITIES), THE OWNER PARTICIPANT, THE INDENTURE TRUSTEE OR THE PASS
THROUGH TRUSTEE (EITHER IN ITS INDIVIDUAL OR TRUST CAPACITIES) HAS MADE OR
SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WHATSOEVER OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO
THE VALUE, HABITABILITY, MERCHANTABILITY, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE
PROPERTIES (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTIES (OR ANY PART THEREOF)
AND NONE OF THE LESSOR (EITHER IN ITS INDIVIDUAL OR TRUST CAPACITIES), THE
OWNER PARTICIPANT, THE INDENTURE TRUSTEE OR THE PASS THROUGH TRUSTEE (EITHER IN
ITS INDIVIDUAL OR TRUST CAPACITIES) SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR
PATENT DEFECT THEREIN OR FOR THE FAILURE OF THE PROPERTIES TO BE CONSTRUCTED IN
ACCORDANCE WITH THE PLANS AND SPECIFICATIONS, THE COMPLIANCE OF ITS PLANS AND
SPECIFICATIONS WITH APPLICABLE LAWS AND REGULATIONS OR THE FAILURE OF THE
PROPERTIES, OR ANY PART THEREOF, OTHERWISE TO COMPLY WITH ANY APPLICABLE
LAWS AND REGULATIONS except that the Lessor hereby represents, warrants and
covenants that the Properties are and shall be free of Lessor Liens.  It is agreed that the Lessee is fully
familiar with the Properties, has been afforded full opportunity to inspect the
Properties, is satisfied with the results of its inspections of the Properties
for all purposes of this Lease (without waiving any rights Lessee may have
against any contractor, subcontractor or supplier) and is entering into this
Lease solely on the basis of the results of its own inspections and all risks
incident to the matters discussed in the preceding sentence, as between the Lessor,
the Owner Participant, the Indenture Trustee or the Pass Through Trustee, on
the one hand, and the Lessee, on the other, are to be borne by the Lessee.  The provisions of this Article 7 have
been negotiated, and, except to the extent otherwise expressly stated, the
foregoing provisions are intended to be a complete exclusion and negation of
any representations or warranties by the Lessor, the Owner Participant, the
Indenture Trustee or the Pass Through Trustee, express or implied, with respect
to the Properties, that may arise pursuant to any law now or hereafter in
effect, or otherwise.


 


17

















 


8.                                      LIENS; TAXES


 


8.1                               Liens


 


The Lessee shall not directly or indirectly create, incur, assume or
suffer to exist any Lien on or with respect to the Properties, this Lease or
the leasehold estate created hereby, any Basic Rent or Supplemental Rent, title
thereto or any interest therein, or the rentals payable with respect to any
subletting of the Properties, including all Liens which arise out of the
possession, use, occupancy, construction, repair or rebuilding of the
Properties or by reason of labor or materials furnished or claimed to have been
furnished to the Lessee, or any of its contractors or agents or by reason of
the financing of any personalty or equipment purchased or leased by the Lessee
(from other than the Lessor, the Owner Participant or any Termination
Transferee) or Alterations constructed by the Lessee and not financed by the
Lessor, except in all cases Permitted Liens. 
The Lessee shall promptly, but not later than thirty (30) days after
notice thereof, at its own expense, take such action as may be necessary duly
to discharge or eliminate or bond in a manner reasonably satisfactory to the
Lessor any such Lien (other than Permitted Liens) if the same shall arise at
any time; provided, however, that the Lessee shall not be
required to so discharge or bond any such Lien while the same is being
contested in good faith by appropriate proceedings diligently prosecuted so
long as such proceedings shall not involve any material danger of the sale,
forfeiture or loss of, and shall not interfere with the use or disposition of,
any part of the Properties or title thereto or any interest therein or the
payment of Rent.


 


Nothing contained in this Lease shall be construed as
constituting the consent or request of the Lessor, express or implied, to or
for the performance by any contractor, laborer, materialman, or vendor of any
labor or services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Properties or any part
thereof, which would result in any liability of the Lessor for payment
therefor.  Notice is hereby given that
the Lessor will not be liable for any labor, services or materials furnished or
to be furnished to the Lessee, or to anyone holding an interest in the
Properties or any part thereof through or under the Lessee, and that no
mechanic’s or other Liens for any such labor, services or materials shall
attach to or affect the interest of the Lessor in and to the Properties.


 


With respect to any Property located in the State of
Florida, Lessor hereby NOTIFIES ALL MECHANICS, 
MATERIALMEN AND OTHER LIENORS THAT PURSUANT TO FLORIDA STATUTES §713.10,
ANY LIENS UNDER FLORIDA STATUTES CH. 713 SHALL EXTEND TO, AND ONLY TO, THE
RIGHT, TITLE AND INTEREST OF THE PERSON WHO CONTRACTS FOR THE IMPROVEMENT IN
QUESTION AND THAT NEITHER THE INTEREST OF LESSOR NOR ANY SUPERIOR INTEREST IN
SUCH PROPERTY OR IN ANY OTHER PORTIONS OF THE BUILDING AND LAND OF WHICH THE
PROPERTY IS A PART SHALL BE SUBJECT TO LIENS FOR ANY IMPROVEMENTS,
SERVICES OR MATERIALS MADE BY, CONTRACTED FOR OR OTHERWISE AUTHORIZED BY LESSEE
OR BY ANY EMPLOYEE, CONTRACTOR OR AGENT OF LESSEE.  Lessee agrees that prior to contracting for
any improvements, services or materials to be made in or delivered to any
Property located in the State of Florida, Lessee shall notify the contractor of
the foregoing provisions.  Lessee further
agrees that upon request of Lessor, Lessee shall execute a notice which sets
forth the foregoing provisions, which notice may be recorded by Lessor in the
public records of the county where the applicable Property is located.


 


18














 


8.2                               Taxes


 


(a)                                                 Subject
to the provisions hereof relating to contests, Lessee shall pay and discharge,
before any interest or penalties are due thereon, all of the following taxes,
charges, assessments, levies and other items (collectively, “tax” or “taxes”),
even if unforeseen or extraordinary, which are imposed or assessed during the
Lease Term, regardless of whether payment thereof is due prior to, during or
after the Lease Term: all taxes of every kind and nature (including, without
limitation, real, ad valorem, personal property, and sales and use tax), on or
with respect to the Properties (including, without limitation, any taxes
assessed against Lessor’s fee estate in the Land or Improvements or against any
real property other than the Properties which is included within the tax parcel
which includes the Properties), the Basic Rent and Additional Basic Rent
(including, without limitation, ad valorem taxes) payable hereunder, this Lease
or the leasehold estate created hereby; all charges and/or assessments for any
easement or agreement maintained for the benefit of the Properties; and all
general and special assessments, levies, water and sewer assessments and other
utility charges, use charges, impact fees and rents and all other public charges
and/or taxes whether of a like or different nature.  Lessor and Owner Participant shall promptly
deliver to Lessee any bill or invoice Lessor or Owner Participant receives with
respect to any tax; provided, that the Lessor’s and Owner Participant’s failure
to deliver any such bill or invoice shall not limit Lessee’s obligation to pay
such tax.  Lessor and Owner Participant
agree to cooperate with Lessee to enable Lessee to receive tax bills directly
from the respective taxing authorities. 
Nothing herein shall obligate Lessee to pay, and the term “taxes” shall
exclude, federal, state or local (i) franchise, capital stock or similar
taxes, if any, of Lessor or Owner Participant, (ii) income, excess profits
or other taxes, if any, of Lessor or Owner Participant, determined on the basis
of or measured by Lessor’s or Owner Participant’s net income, (iii) any
estate, inheritance, succession, gift, capital levy or similar taxes of Lessor
or Owner Participant, (iv) taxes imposed upon Lessor or Owner Participant
under Section 59A of the Internal Revenue Code of 1986, as amended, or any
similar state, local, foreign or successor provision, (v) any amounts paid
by Lessor or Owner Participant pursuant to the Federal Insurance Contribution
Act (commonly referred to as FICA), the Federal Unemployment Tax Act (commonly
referred to as FUTA), or any analogous state unemployment tax act, or any other
payroll related taxes, including, but not limited to, any required withholdings
relating to wages, (vi) except as provided in Section 6 and Section 14
herein, any taxes in connection with the transfer or other disposition of any
interest, other than Lessee’s (or any person claiming under Lessee), in the
Properties or this Lease, to any person or entity, including, but not limited
to, any transfer, capital gains, sales, gross receipts, value added, income,
stamp, real property gains or withholding tax, and (vii) any interest,
penalties, professional fees or other charges relating to any item listed in
clauses (i) through (vi) above; provided, further, that
Lessee is not responsible for making any additional payments in excess of
amounts which would have otherwise been due, as tax or otherwise, but for a
withholding requirement which relates to the particular payment and such withholding
is in respect to or in lieu of a tax which Lessee is not obligated to pay; and provided,
further, that if at any time during the Lease Term, the method of
taxation shall be such that there shall be assessed, levied, charged or imposed
on Lessor a tax upon the value of the Properties or any present or future
Improvement or Improvements on the Properties, including any tax which uses
rents received from Lessee as a means to derive value of the property subject
to such tax, then all such levies and taxes or the part thereof so measured or
based shall be payable by Lessee, but only to the extent that such levies or
taxes would be payable if the Properties were the only property of Lessor
and/or Owner Participant, and Lessee shall pay and discharge the same as herein
provided.  In the event that any
assessment against the Properties is payable in installments, Lessee may pay
such assessment in installments; and in such event, Lessee shall be liable only
for those 


 


19

















 


installments which become
due and payable prior to or during the Lease Term, or which are appropriately
allocated to the Lease Term even if due and payable after the Lease Term.  Lessee shall deliver, or cause to be delivered,
to Lessor, Owner Participant and Indenture Trustee, promptly upon Lessor’s,
Owner Participant’s or Indenture Trustee’s written request, evidence
satisfactory to Lessor, Owner Participant and Indenture Trustee that the taxes
required to be paid pursuant to this Section 8.2 have been so paid and are
not then delinquent.


 


(b)                                                Lessee,
at its own cost and expense, may contest (including seeking an abatement or
reduction of)  any taxes agreed to be
paid hereunder; provided, that (i) Lessee first shall satisfy any
Applicable Laws, including, if required, that the taxes be paid in full before
being contested or, if not required to be paid in full, such contest shall
suspend the collection of such taxes, (ii) no Lease Event of Default has
occurred and is continuing and no Lease Event of Default shall occur as a
result of such contest and (iii) failing to pay such taxes will not
subject Lessor, Owner Participant or Indenture Trustee to criminal or civil
penalties or fines or to prosecution for a crime, or result in the sale,
forfeiture, termination, cancellation or loss of any portion of the Properties
or any interest therein, any Basic Rent or any Additional Basic Rent.  Lessee agrees that each such contest shall be
promptly and diligently prosecuted to a final conclusion.  Lessee shall pay and shall indemnify, defend
and hold Lessor, Owner Participant and Indenture Trustee and all other
Indemnitees harmless against any and all losses, judgments, decrees and costs
(including, without limitation, all reasonable attorneys’ fees and expenses) in
connection with any such contest and shall promptly, after the final
determination of such contest, fully pay and discharge the amounts which shall
be levied, assessed, charged or imposed or be determined to be payable therein
or in connection therewith, together with all penalties, fines, interest, costs
and expenses thereof or in connection therewith, and perform all acts the
performance of which shall be ordered or decreed as a result thereof.  At Lessee’s sole cost,  Lessor and Owner Participant shall assist
Lessee as reasonably necessary with respect to any such contest, including
joining in and signing applications or pleadings.  Any rebate applicable to any portion of the
Lease Term shall belong to Lessee.  If at
the time of any such contest a Lease Event of Default has occurred and is
continuing, then Lessee shall post a bond or other security with and acceptable
to Lessor and Indenture Trustee in their discretion in an amount equal to one
hundred twenty-five percent (125%) of the amount being contested.


 


(c)                                                 In
the event that Lessee shall be required pursuant to this Section 8.2 to
pay, discharge or provide indemnity for, or make any other payment with respect
to, any tax for which Lessee would not be obligated pursuant to Section 8.2(b) of
the Participation Agreement, Owner Participant shall, on demand, reimburse and
indemnify Lessee for any amount so paid or incurred by Lessee.


 


9.                                      MAINTENANCE AND REPAIR;
ALTERATIONS, MODIFICATIONS AND ADDITIONS


 


9.1                               Maintenance and Repair


 


The Lessee, at its own expense, shall at all times
(unless subject to an Event of Loss or an Event of Taking) (a) maintain
the Properties in good order, repair and condition, ordinary wear and tear
excepted, and to no less a standard than Lessee utilizes for other comparable
properties owned or leased by it, (b) except to the extent Section 9.4
shall apply, maintain the Properties, and make all necessary repairs and
Alterations to maintain the Properties, in accordance with all Applicable Laws
and Regulations, and (c) comply with the standards imposed by any
insurance policies required to be maintained hereunder which are in effect at
any time with respect to the Properties or any part thereof, and shall take the
preceding actions whether interior or exterior, structural or 


 


20

















 


nonstructural, ordinary or extraordinary and foreseen
or unforeseen whether or not such expenditures would constitute capital
expenditures under GAAP if made by the owner of such property.  The Lessee waives any right that it may now
have or hereafter acquire to require the Lessor to (i) maintain, repair,
replace, alter, remove or rebuild all or any part of the Properties or (ii) make
repairs and Alterations (whether or not at the expense of the Lessor) pursuant
to any Applicable Laws and Regulations or otherwise.  The Lessee, at its own cost and expense,
shall promptly replace or cause to be replaced all parts of the Improvements
which may from time to time fail to function properly or become worn out, lost,
stolen, destroyed, seized or confiscated, subject to a Condemnation, damaged
beyond repair or permanently rendered unfit for use for any reason whatsoever; provided,
however, that the Lessee shall not be obligated to replace any part if (a) such
part has become unnecessary or obsolete and its replacement is not necessary or
customary for the proper functioning of the Improvements and (b) the
failure to replace such part will not reduce (other than to a de  minimis
extent) the remaining useful life, fair market value or residual value of the
Improvements, in each case assuming that the Improvements are then being
operated and maintained in accordance with this Article 9.  In addition, the Lessee may, at its own cost
and expense, remove in the ordinary course of maintenance, service, repair,
overhaul or testing, any such parts, whether or not functioning properly, worn
out, destroyed, seized, confiscated, damaged beyond repair or permanently
rendered unfit for use, provided that the Lessee will, at its own cost
and expense, replace such parts as promptly as practicable and in accordance
with the standards set forth in this Section 9.1.  All replacement parts (hereinafter referred
to as Replacement Parts) shall be free and
clear of all Liens (except for Permitted Liens and except in the case of
replacement parts temporarily installed on an emergency basis) and shall be in
as good operating condition as, and shall have a value, useful life and utility
at least equal to, the parts replaced, assuming such replaced parts were in the
condition and repair required to be maintained by the terms hereof.  Immediately upon any Replacement Part becoming
incorporated or installed in or attached to any part of the Improvements as
above provided, without further act (subject only to Permitted Liens and except
in the case of replacement property temporarily installed on an emergency
basis), (i) legal title to such Replacement Part shall there upon
vest in the Lessor and shall become subject to this Lease, (ii) such
Replacement Part shall be deemed part of the Improvements for all purposes
hereof to the same extent as the parts originally incorporated or installed in
or attached to the Improvements, and (iii) title to the replaced part
shall thereupon vest in the Lessee free and clear of all rights of the Lessor,
and shall no longer be deemed part of the Improvements.


 


9.2                               Alterations


 


(a)                                                                                  (i)            The
Lessee may, without the consent of the Lessor, and without complying with the
requirements of paragraph (b) of this Section 9.2, at the Lessee’s
own cost and expense, make Alterations to any Properties, so long as such
Alterations (i) do not reduce the value, residual value and remaining
useful life of such Property except to a de  minimis extent (which
for this purpose only shall mean a decrease in current market value or future
residual value as of the applicable date for such Property shown on Schedule 3
of less than the lesser of $500,000 or 1% (in the aggregate for purposes of
this Lease) of the then Fair Market Sales Value of such Property or a decrease
of less than 2% in remaining useful life), (ii) do not cause such Property
to become “limited use” property as defined in Rev. Proc. 2001-28, as amended,
and (iii) do not change the use of such Property to a use other than a
Permitted Use.


 


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(ii)                                                 The
Lessee will give the Lessor advance written notice of any structural changes to
a Property if the cost thereof is expected to exceed the lesser of $1,000,000
and 10% (in the aggregate for purposes of this Lease) of the Lessor’s Cost of
such Property.


 


(iii)                                              So
long as no Special Default or Lease Event of Default has occurred and is
continuing, the Lessee may remove any Severable Alteration not required by this
Lease or Applicable Laws and Regulations at any time during or upon expiration
of the Lease Term; provided, that the Lessee, at its cost and expense, shall
restore the affected Properties to substantially the same condition as existed
prior to any such Alteration.


 


(iv)                                             If
the Lessee shall make or cause to be made any Alterations, it shall do so in a
good, substantial and workmanlike manner and in compliance with all Applicable
Laws and Regulations and free of all Liens other than Permitted Liens.  Whenever the Lessee is required to perform
any Alterations upon the Properties, the Lessee shall promptly commence the
Alterations and, once commenced, diligently and continually pursue the
completion of such Alterations within a reasonable time.  If any Alterations are made following a
Casualty, a Condemnation or an Event of Loss where this Lease continues, any
Net Proceeds shall be disbursed pursuant to Section 14.2.


 


(b)                                                Notwithstanding
the foregoing, the Lessee may decide in its sole discretion to construct
additions which may be substantial (the Additions) to a
Property which Additions will remain owned by the Lessee or its designees so
long as (i) such Additions do not reduce the current market value of such
Property, future residual value for such Property or remaining useful life of
such Property; provided that in the case of a Property located in (A) College
Park, Georgia, (B) Triad Center, Greensboro, North Carolina, and (C) 8011
Villa Park, Richmond, Virginia (the Improved Properties),
such Additions may reduce, but by no more than a de  minimis
amount (which for these purposes shall not exceed the lesser of $1,000,000 and
10% (in the aggregate for purposes of this Lease) of the Lessor’s Cost of such
Improved Property), the value or residual value of such Improved Property, (ii) the
cross-easements referenced in the penultimate sentence of this paragraph are
permitted by Applicable Laws and Regulations, (iii) such Property has
available to it the number of parking spaces equal to the greater of (x) those
required by Applicable Laws and Regulations and (y) those that maintain
the same ratio of Square Feet in such Property to parking spaces available to
such Property after such Additions as existed before such Addition, (iv) there
are no unindemnified tax consequences to the Owner Participant, (v) no
Special Default or Lease Event of Default is continuing when construction of
such Addition is commenced and (vi) the Lessee shall comply with Section 9.2(a)(iv).  Notwithstanding the foregoing, no such
Additions shall be constructed if such construction or any related events may
result in material adverse tax consequences to the Owner Participant
(regardless of whether the Owner Participant is indemnified for such adverse
consequences) unless (A) the Lessee satisfies the Rating Test and (B) Owner
Participant receives an opinion from counsel selected by the Lessee and
reasonably acceptable to the Owner Participant, that there is at least “more
likely than not” authority for the federal income tax position which the Lessee
requests the Owner Participant to assume. 
Subject to the foregoing, Lessor agrees, at the Lessee’s expense, to
enter into appropriate cross-easements with respect to any such Addition and
its related Improvements so that both properties can be effectively and
efficiently utilized; provided, however, that any Addition
constructed by Lessee pursuant to this paragraph (b) shall contain
heating, ventilating, cooling and life safety facilities and equipment separate
and distinct from the Improvements, and shall not interfere with or overburden
any sewer, water, natural gas, electric, telephone and other utilities serving
the Improvements.  The use and operation
of such Addition shall not unreasonably interfere with the use and operation of
the Property (except to the extent the 


 


22

















 


Improvements and the
Addition share equipment, facilities and parking areas pursuant to appropriate
cross-easements) and shall not materially increase the cost of the use and
operation of the Improvements.


 


(c)                                                 If
the Lessee is prevented from constructing an Addition or Alteration to a
Property as a result of the operation of Section 9.2(d)(z) or the
proviso which follows Section 9.2(d)(z), the Lessee may exercise its
rights set forth in clause (iii) of the first sentence of Section 9.3
of the Participation Agreement if within 90 days after the Lessee has Actual
Knowledge that it has been so prevented it sends written notice to the Lessor,
the Owner Participant and the Indenture Trustee exercising such right and
specifying the date of purchase pursuant to such clause (iii); provided
however, that the Lessee may not purchase such Property under such clause (iii) if
(1) within 15 days of the date of Lessee’s written notice of such exercise
the Indenture Trustee and the Lessor each waive the requirements set forth in Section 9.2(d)(z) and
the proviso that follows Section 9.2(d)(z) and, as a result, permit
the Alteration or Addition to be constructed on such Property or (2) within
15 days of the date of Lessee’s written notice of such exercise, the Lessor or
Owner Participant elects to prepay the Allocable Portion of the Notes relating
to such Property (and pay any related Redemption Premium pursuant to the
Indenture it being agreed that such Redemption Premium shall be paid by the
Lessee on the date specified in such election by the Lessee for the purchase of
such Property), whereupon the Lessee may proceed to construct such Alteration
or Addition, and such Property shall remain subject to this Lease and the
Security Documents; provided that the Owner Participant or the Lessor may not
so elect unless the Lessor or the Owner Participant shall have deposited with
the Indenture Trustee funds sufficient to pay such Allocable Portion of the
Notes and Redemption Premium in full on such date.  There shall be no reduction of Basic Rent as
a result of the prepayment contemplated in clause (2) of the immediately
preceding proviso.


 


(d)                                                In
the event an Addition or an Alteration would result in a decrease in value
and/or residual value of a Property such that they would not be permitted
pursuant to Section 9.2(a) or (b), the Lessee may nonetheless make
such Addition or Alteration if (x) the other requirements of such Section 9.2(a) or
(b) are satisfied, (y) the Lessee pays to the Lessor the present
value of the amount of such diminution in residual value, discounted at 10.769%
per annum, but grossed up so that the Owner Participant is whole on an
After-Tax Basis and (z) the loan to value ratio for such Property does not
increase above 90% when such Alteration or Addition is completed as determined
before construction of such Addition or Alteration has commenced by comparing
the Allocable Portion of the Notes for such Property to the expected Fair
Market Sales Value of such Property after such Addition or Alteration, as
determined by the Appraisal Procedure; provided that if at the time of the
commencement of such Appraisal Procedure the Lessee making such Addition or
Alteration does not satisfy the Rating Test then, if Notes are outstanding, no
Addition or Alteration which decreases the value and/or residual value of a
Property may be made; provided further that the preceding clause (z) and
the preceding proviso shall only apply so long as the Notes originally issued
under the Indenture remain outstanding and shall not apply during any period
during which the maturity of such Notes has been extended for any reason.  For the purpose of calculating the residual
value pursuant to clause (x) above, each Property will be assumed to be
terminated from this Lease on the date set forth in Schedule 2 or, if such
calculation is being made following such date, on the next Anniversary on which
such Property could be so terminated. 
The Lessee may not make such Additions or Alterations with respect to a
Property if the aggregate payments made and to be made pursuant to this
paragraph (before gross-up) will exceed 25% of the Lessor’s Cost of such
Property (as inflated in the same proportion that by CPI has increased from the
month of June, 1997 to the most recent date prior to such payment as of which
CPI has been published).


 


23

















 


(e)                                                 The
Lessee shall make such Alterations to the Properties as may be required from
time to time (i) to comply with all Applicable Laws and Regulations
(subject to the contest rights set forth in Section 9.4) and with Section 9.1
and (ii) following a Casualty, Condemnation or Event of Loss (in any
instance where the provisions of Section 14.1(ii) shall apply), to
restore the Improvements to their respective condition prior to a Casualty or
Condemnation, and will maintain such Alterations as provided in Section 9.1
hereof; provided that in the case of a Condemnation, the Lessee’s obligation
will be to restore the Improvements to such condition as close as possible
under the circumstances to the condition prior to such Condemnation.


 


9.3                               Title to Alterations


 


Title to all Alterations shall without further act
vest in the Lessor and shall be deemed to constitute a part of the related
Property and be subject to this Lease in the following cases:


 


(a)                                  such Alteration shall be in replacement
of or in substitution for a portion of the Improvements;


 


(b)                                 such Alteration shall be required to be
made pursuant to the terms of Sections 9.1 or 9.2(e) hereof;


 


(c)                                  such Alteration shall be Nonseverable;


 


(d)                                 such Alteration shall be financed by or
through the Lessor in accordance with Article XI of the Participation
Agreement or otherwise; or


 


(e)                                  such Alteration shall be Severable and is
not removed by the Lessee upon the end of the Lease Term for the related
Property.


 


The Lessee shall, at the Lessor’s request, execute and
deliver any deeds or assignments reasonably necessary to evidence the vesting
of such title in and to such Alterations in the Lessor.  If such Alteration is not within any of the
categories set forth in clauses (a) through (e) of this Section 9.3,
then title to such Alteration shall vest in the Lessee or its designee.


 


9.4                               Permitted Contests


 


If, to the extent and for so long as (a) a test,
challenge, appeal or proceeding for review of any Applicable Laws and
Regulations relating to the use, operation or maintenance of the Properties or
any Alterations to the Properties shall be prosecuted diligently and in good
faith by the Lessee or (b) compliance with any Applicable Laws and
Regulations shall have been excused or exempted by a valid nonconforming use
permit, waiver, extension or forbearance, the Lessee shall not be required to
comply with such Applicable Laws and Regulations as provided in this Article 9
or elsewhere in this Lease but only if and so long as no Special Default or
Lease Event of Default shall have occurred and be continuing and such test,
challenge, appeal, proceeding or noncompliance shall not involve (i) a
material risk of foreclosure, sale, forfeiture or loss of any part of the
Properties, (ii) a material risk of extending the ultimate imposition of
such Applicable Laws and Regulations beyond the expiration of the related
Property’s Basic Term or then current Renewal Term, as the case may be, (iii) any
risk of any criminal liability being imposed on the Lessor, the Owner
Participant, the Indenture Trustee or the Pass Through Trustee, (iv) a
material risk of any governmental or judicial action which might adversely
affect the Lien of the Security Documents, or Lessor’s ownership interests in
the Properties or the value or utility of the 


 


24

















 


Properties unless stayed during the pendency of any
such test, challenge, appeal, proceeding or noncompliance, or (v) any
material risk of material loss of enjoyment of, or material interference with,
the use, possession or disposition of the Properties.  Notwithstanding the foregoing, the Properties
must be in compliance with Applicable Laws and Regulations at the time of any
return of such Property to Lessor pursuant to Article 12 hereof.


 


The Lessor will not be required to join in any
proceedings pursuant to this Section 9.4 unless a provision of any
Applicable Laws and Regulations requires, or in the good faith opinion of the
Lessee, it is helpful to the Lessee that such proceedings be brought by or in
the name of Lessor.  In any such event,
the Lessor will join in the proceedings or permit them to be brought in its
name if the Lessee pays all related reasonable expenses.  Lessor, at the cost and expense of Lessee,
shall use reasonable good faith efforts to cooperate with Lessee in any such
contest.


 


9.5                               Environmental Compliance


 


Lessee shall:


 


(a)                                  maintain the Properties in compliance
with all applicable Environmental Laws;


 


(b)                                 not cause or permit the manufacture, use,
generation, transportation, treatment, storage, Release, or handling of any
Hazardous Material at the Properties in violation of Environmental Law;


 


(c)                                  cause its sublessees and/or its or their
respective agents, employees, contractors and invitees to comply with all
applicable Environmental Laws with respect to the Properties;


 


(d)                                 within ten (10) Business Days of
learning of any Environmental Claim in connection with the Properties, notify
the Lessor in writing thereof and provide the Lessor any reasonably requested
documents related thereto; and


 


(e)                                  upon the Lessor’s request, promptly
provide or otherwise make available to the Lessor any records concerning the
Properties which are required to be maintained under any Environmental Law and
which the Lessee then possesses or can reasonably obtain.


 


10.                               USE AND LOCATION


 


10.1                        Location


 


The Lessee shall not remove, or permit to be removed,
the Improvements or any part thereof from the Properties without the prior
written consent of the Lessor, except that, subject to Article 12 hereof,
the Lessee or any other Person may remove (a) in accordance with the
provisions of Section 9.3, any Alteration with respect to which title has
passed to or remained with the Lessee pursuant to such Section 9.3, (b) any
Improvements if title to such Improvements shall have passed to the Lessee, (c) any
part of the Improvements on a temporary basis for the purpose of repair or
maintenance thereof, (d) any part of the Improvement which has been
replaced by another part which has become subject to this Lease and the Lien of
the Security Documents or (e) any part of the Improvement which has become
obsolete to the Lessee, whereupon such obsolete part shall cease to be subject
to this Lease and the Lien of the Security Documents; provided that in
the case of this clause (e) (i) the aggregate value of all such
removed parts not given to Lessor shall not exceed $5,000,000 (in the aggregate
for purposes of this Lease, (ii)  the 


 


25

















 


Lessee will cause such removal to be performed
diligently, in good faith and in a good and workmanlike manner and in
compliance with all Applicable Laws and Regulations, and will promptly and
fully repair all damage to the Properties caused by such removal and (iii) the
Lessee shall have made such Alterations or adjustments to the Properties as are
necessary to assure that the functions served by any such removed parts shall
continue to be provided by other parts of the Properties.


 


10.2                        Use


 


The Lessee may use and occupy the Properties for any
Permitted Uses. Permitted Uses shall mean any
lawful purposes except that no use may be made (whether by the Lessee or any
assignee or sublessee of the Lessee or otherwise) which: (a) is a public
or private nuisance or which violates any Applicable Laws and Regulations upon
or in any Property or any portion thereof, (b) would void any certificate
of occupancy required for a Property, (c) involves the mining or removal
of any oil, gas or minerals, (d) results in any violation of any
Environmental Law that results in any Environmental Claims from which any
material Environmental Damages become due and owing, or otherwise in any manner
involves any Release of Hazardous Materials into the environment except in
compliance with all applicable Environmental Laws and Governmental Actions
issued pursuant to Environmental Laws or that makes it impossible to obtain, or
results in the cancellation of or breach of any representation or restriction
under the policies of insurance required by Articles 11 hereof; (e) is
selling, renting or exhibiting pornographic material or other sexually explicit
material (except as part of a magazine store customary for office buildings);
or (f) is a massage parlor.  Without
limiting the foregoing, Lessee shall not permit the handling, processing,
storage or disposal of Hazardous Materials on or at the Properties except to
the extent incidental to or required for the conduct of a Permitted Use or a
permitted Alteration, and then only in compliance with all applicable
Environmental Laws.


 


11.                               INSURANCE


 


11.1                        Coverage


 


Subject to the Lessee’s rights of self-insurance set
forth in this Section 11.1, the Lessee shall maintain:


 


(a)                                  standard all-risk property insurance
covering the Improvements in an amount at least equal to the replacement cost
of the Improvements, but not less than the outstanding principal balance of the
Notes;


 


(b)                                 “boiler and machinery” insurance with
respect to damage (not insured against pursuant to Section 11.1(a) hereof)
to the boilers, pressure vessels or similar apparatus located on the Properties
for risks normally insured against under boiler and machinery policies;


 


(c)                                  commercial general liability insurance
including broad form contractual liability coverage with minimum combined
single limits of $2,000,000 (except when the Security Documents shall no longer
be in effect said limit shall be $1,000,000) for injury to or death of one or
more Persons or damage to or destruction of property in any one occurrence;


 


26

















 


(d)                                 umbrella/excess liability insurance over
the insurance required by subsection (c) with combined minimum coverage of
$5,000,000 written on an occurrence form coverage basis;


 


(e)                                  statutory workers’ compensation insurance
or qualified self-insurance;


 


(f)                                    flood insurance with respect to those
portions of the Properties that are located in areas identified by the Federal
Emergency Management Agency as having special hazards; and


 


(g)                                 builder’s risk coverage during
construction.


 


The insurance required to be maintained pursuant to
this Lease shall be no less favorable than that maintained on the Lessee’s
other properties and shall be written by companies of reputable standing.


 


Any of the foregoing insurance coverages may be
carried as a part of blanket policies, provided that (i) upon the
Lessor’s request, the insurer under such blanket policy(ies) shall certify to
the Lessor and the Indenture Trustee any sublimits applicable to the
Properties, which amounts shall not be less than those required by this Section 11.1;
(ii) any such policy(ies) shall otherwise comply with the requirements of
this Article 11; and (iii) the protection afforded, except for the
exhaustion of aggregate limits, under any such policy(ies) shall be no less
than that which would have been afforded under a separate policy or policies
relating only to the Properties.


 


Notwithstanding the preceding provisions of this Section 11.1,
the Lessee shall be entitled to self-insure and/or have deductibles against all
risks described in Section 11.1(a)-(g) so long as the Lessee
satisfies the Rating Test.  In the event
the Lessee fails in part or whole to carry insurance which complies with the
requirements of this Article 11, if the Lessee is then entitled to
self-insure the Lessee will not be deemed to be in breach of this Lease, but
will be deemed to self-insure to the extent of such noncompliance.  If the Lessee does not satisfy the Rating
Test, then the amount of permitted self insurance and/or deductibles with respect
to the Lessee shall not exceed $5,000,000 in the aggregate for the lines of
insurance specified in Sections 11.1(a), (b), (f) and (g) and
$5,000,000 in the aggregate for the lines of insurance specified in Sections
11.1(c), (d) and (e).  To the extent
the Lessee is not permitted to self-insure under the terms hereof, each insurer
must have a claims paying ability rating of “A” or better from Duff &
Phelps and “A” or better from Moody’s, or if an insurer is not rated by Duff &
Phelps or Moody’s, it has an equivalent rating from at least one other
nationally recognized statistical agency. 
In the event the Lessee does not satisfy the Rating Test (with the
definition thereof modified to change the “BBB” referenced therein to “BBB-”
and the “Baa2” referenced therein to “Baa3”), then the Lessee’s maximum
deductibles shall be the lesser of that described in the second preceding
sentence or the standard deductible for comparable buildings in the same region
as certified in writing by a national insurance broker or agency.  The two preceding sentences shall be void and
of no effect after the Security Documents are no longer in effect.  The Lessor and the Owner Participant shall be
entitled to maintain insurance coverage with respect to the Properties,
provided that such insurance shall not increase the cost to the Lessee of
carrying, or interfere with the ability of the Lessee to carry, insurance with
respect to the Properties.


 


11.2                        Policy Provisions


 


Any insurance policy required to be maintained by the
Lessee pursuant to Section 11.1 shall:


 


27

















 


(a)                                  specify the Lessee as the insured and the
Lessor (in both its individual and trust capacities), the Owner Participant,
the Co-Trustee, the Pass Through Trustee (in both its individual and trust
capacities) and the Indenture Trustee (in both its individual and trust
capacities) as additional insureds as to all such insurances (except the
insurance described in Section 11.1(e));


 


(b)                                 provide, in the case of insurance carried
pursuant to Section 11.1(a) and (b), that all insurance proceeds in
respect of any loss or occurrence (i) shall be adjusted with the Lessee,
unless and only for so long as a Special Default or a Lease Event of Default
shall be continuing, in which case such proceeds shall be adjusted solely with
the Lessor and (ii) shall be payable (x) if no Special Default or
Lease Event of Default is continuing, to the Lessee in accordance with Section 14.2,
and (y) in all other circumstances unless and until the Indenture shall
have been satisfied and discharged in accordance with Section 11.01
thereof, to the Indenture Trustee and thereafter, to the Lessor;


 


(c)                                  provide that in respect of the interests
of the Lessor, the Co-Trustee, the Owner Participant, the Pass Through Trustee
and the Indenture Trustee, such policies shall not be invalidated by any action
or inaction of the Lessee or any other Person (other than the Person making the
claim thereunder) and shall insure the Lessor, the Co-Trustee, the Owner
Participant, the Pass Through Trustee and the Indenture Trustee regardless of,
and any claims for losses shall be payable notwithstanding:


 


(i)            any act of negligence, including any
breach of any condition or warranty in any policy of insurance, of the Lessee
or any other Person (other than the Person making the claim thereunder);


 


(ii)           the occupation or use of the Properties
for purposes more hazardous than permitted by the terms of the policies;


 


(iii)          any foreclosure or other proceeding or
notice of sale relating to any of the Properties; and


 


(iv)          any change in the title to or ownership
of any of the Properties after the Lessee and its insurance underwriter has
notice of such change in title or ownership;


 


(d)                                 provide that such insurance shall be
primary insurance and that the insurers under such insurance policies shall be
liable under such policies without right of contribution from any other
insurance coverage effected by or on behalf of the Lessor, the Owner
Participant, the Pass Through Trustee or the Indenture Trustee under any other
insurance policies covering a loss that is also covered under the insurance
policies maintained by the Lessee pursuant to this Article 11 and shall
expressly provide that all provisions thereof, except the limits of liability
(which shall be applicable to all insureds as a group) and liability for
premiums (which shall be solely a liability of the Lessee), shall operate in
the same manner as if there were a separate policy covering each insured;


 


(e)                                  provide that any cancellation (except at
the request of the Lessee) thereof shall not be effective as to the Lessee, the
Lessor, the Owner Participant, the Pass Through Trustee and the Indenture
Trustee until at least 30 days after receipt by the Lessee, the Lessor, the
Pass Through Trustee and the Indenture Trustee of written notice thereof;


 


28

















 


(f)                                    waive any right of subrogation of the
insurers against the Lessor, the Owner Participant, the Pass Through Trustee
and the Indenture Trustee, and waive any right of the insurers to any setoff or
counterclaim or any other deduction, whether by attachment or otherwise, in
respect of any liability of the Lessor, the Owner Participant, the Pass Through
Trustee and the Indenture Trustee; and


 


(g)                                 provide that the whole or any part of the
right, title and interest of the Lessor therein may be assigned to the
Indenture Trustee.


 


11.3                        Evidence of Insurance


 


If the Lessee fails to satisfy the Rating Test at any
time during the Lease Term, then the Lessee shall promptly (and in any event
within 30 days) deliver to the Lessor, the Pass Through Trustee and the
Indenture Trustee evidence of all insurance coverages as required by this Article 11
and annually thereafter until such time as the Lessee satisfies the Rating
Test, the Lessee shall deliver to the Lessor, the Owner Participant, the Pass
Through Trustee and the Indenture Trustee certificates of insurance evidencing
the provisions described in Section 11.2(a) through (g) executed
by the insurer or its duly authorized agent and stating that in the opinion of
such issuer or its agent that such insurance complies with the provisions of
this Article 11, and if the signer of such certificate is unwilling to
make such statement on a full recourse basis, such certificate shall be
accompanied by an Officer’s Certificate of the Lessee which also certifies as
to such matters.


 


12.                               RETURN OF LEASED PROPERTY


 


With the exception of any Properties which have been
transferred, or leased under a FMV Lease or a Partial Occupancy Lease, to the
Lessee pursuant to Article 3, 6, 14 or 19 of this Lease or Article IX
of the Participation Agreement, the Lessee shall, on the expiration or earlier
termination of this Lease with respect to a Property, and at its own expense,
return such Property to the Lessor by surrendering the same into the possession
of the Lessor free and clear of all Liens other than (i) Lessor Liens,
Remainderman Liens, and Indenture Trustee Liens, (ii) Liens described in
clauses (a), (f) or (g) (to the extent expressly permitted to survive
termination of this Lease), of the definition of Permitted Liens except that
solely for purposes of this sentence, clause (f)(z) of the definition of
Permitted Liens shall be deemed to read: 
“(z) singly or in the aggregate do not (i) reduce, other than
to a de minimis extent, the Fair Market Sales Value of the applicable Property,
(ii) materially interfere with or result in a detriment to the conduct of
the Lessee’s business on the Properties pursuant to the Lease, (iii) impair,
other than to a de minimis extent, the usefulness of the applicable Property or
(iv) impair the Lessor’s interest or the Owner Participant’s interest or
the Indenture Trustee’s Lien on any portion of the Estate” and (iii) inchoate
Liens for taxes which are not yet due, and in the condition required by this
Lease (as modified by Alterations permitted by this Lease), ordinary wear and
tear excepted; provided that any Improvements removed from the
Properties pursuant to Section 10.1(c) shall have been returned to
and reinstalled on such Properties.  When
the proposed parking facility (Parcel 2) located in St. Petersburg, Florida is
returned to Lessor, it shall be free of asbestos and the office building,
drive-through facilities, freestanding automated teller machines, and cash
vault portion of such parking facility shall have been razed and all debris
removed.


 


Each Property when returned shall either be in “core
and shell” condition or shall be in a condition such that such Property can be
put to the same general use as such Property was used on the Closing Date (it
being understood that a Property which is an office building may have retail
space customary for the location of such Property) or, at the Lessee’s
election, if a Property 


 


29

















 


is not then in either of such conditions, the Lessee
may instead pay the Lessor in cash the reasonable cost of converting such
Property to be in either such conditions, as the Lessee may elect (which
payment shall include any expected loss of revenue to the Lessor during the
time of conversion).  If such cost cannot
be agreed by the Lessor and the Lessee it shall be determined by the Appraisal
Procedure.


 


If the Lessee desires to remove any Severable
Alteration from a Property during the 360 days prior to the return of such
Property to Lessor (unless such return is a result of a Lease Event of Default,
Event of Taking or Event of Loss), title to which is vested in Lessee pursuant
to Section 9.3 hereof, the Lessee shall give Lessor at least 90 days prior
written notice and Lessor shall have the right to purchase any such Severable
Alteration for its Fair Market Sales Value. 
Any such Alteration or other property of the Lessee which is not removed
prior to the time of return shall, at Lessor’s option, be removed by the Lessee
at the Lessee’s expense or become the property of Lessor and title thereto
shall vest in Lessor.


 


13.                               ASSIGNMENT


 


The Lessee may (at the Lessee’s expense) assign all of
its right, title or interest in, to or under this Lease as to one or more
Properties provided no Lease Event of Default or Special Default is then
continuing.  An assignment of the Lessee’s
rights under this Lease as to less than all of the Properties shall be
effectuated by the execution by Lessor and the Lessee of an amendment of this Lease
removing such Properties from the terms hereof and the execution and delivery
of a separate lease of the Properties which are the subject of Lessee’s
assignment, which lease shall be on the same terms and conditions as this Lease
except that Basic Rent and Stipulated Loss Values shall relate only to the
Properties which are the subject of such assignment.  In connection with any such assignment, the
parties will negotiate such amendments to the Operative Documents as are
necessary to effectuate the foregoing and the Lessee shall pay all parties’
costs and expenses (including reasonable attorneys fees and expenses) in
connection therewith.  In the event of an
assignment of all of the Lessee’s rights under this Lease, the new lessee shall
assume all of the Lessee’s obligations hereunder.  Notwithstanding any assignment by the Lessee,
all obligations of the Lessee shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no assignment had been
made.  The Lessee will notify the Lessor
and the Indenture Trustee of any such assignment and will provide the Lessor
and the Indenture Trustee with a copy of such assignment at the Lessor’s
request.


 


14.                               LOSS, DESTRUCTION, CONDEMNATION OR
DAMAGE


 


14.1                        Payment of Stipulated Loss Value on an
Event of Loss


 


If an Event of Loss shall occur with respect to a
Property, the Lessee shall give the Lessor and the Indenture Trustee prompt
written notice of such occurrence and the date thereof and the Lessee may elect
one of the following options (it being agreed that (x) if the Lessee shall
not have made the offer referred to in the following clause (i) within 60
days of the occurrence of the Event of Loss, the Lessee shall be deemed to have
elected the option set forth in the following clause (ii) and (y) if
it is impossible to restore, repair, replace or rebuild such Property, the
Lessee must elect the following clause (i)):


 


(i)            offer to purchase such Property from the
Lessor on a Stipulated Loss Value Date not less than 90 or more than 270 days
after the date such offer is made at a purchase price equal to the sum of (A) Stipulated
Loss Value of such Property 


 


30

















 


determined as of such Stipulated Loss Value Date, plus
(B) all Supplemental Rent due and owing on such Stipulated Loss Value Date
(including, without limitation, any transfer taxes and other expenses
associated with such transfer which are indemnifiable under Article VIII
of the Participation Agreement) plus (C) all Basic Rent due and owing on
Rent Payment Dates on or prior to such Stipulated Loss Value Date (but not
Basic Rent payable in advance on such Stipulated Loss Value Date), in which
case the Lessor shall have 60 days from the date of receipt of the Lessee’s
offer to decide whether or not to accept such offer; or


 


(ii)           promptly, and in any event within 90 days
of the occurrence of such Event of Loss, begin the process of restoring,
repairing, replacing or rebuilding the Improvements which were damaged as a
result of such Event of Loss and diligently pursue such rebuilding and repair
so as to restore the affected Property or Properties to at least the value,
residual value and useful life thereof immediately prior to the occurrence of
such Event of Loss assuming such Property was in the condition required by this
Lease.  If the Lessee and the Lessor
cannot agree as to such value, such value will be determined by the Appraisal
Procedure.  The Casualty Restoration
Costs shall be paid first out of the Lessee’s own funds to the extent the
Casualty Restoration Costs exceed the Net Casualty Proceeds actually received
and then out of the Net Casualty Proceeds.


 


If the Lessee makes an offer to purchase a Property
pursuant to Section 14.1(i) and the Lessor accepts such offer or fails
to respond to such offer within the 90-day period referenced in Section 14.1(i),
the Lessee shall pay the purchase price specified in Section 14.1(i) to
the Lessor on such Stipulated Loss Value Date; provided that any Net
Casualty Proceeds then held by the Lessor or the Indenture Trustee shall be
credited against such purchase price and any Net Casualty Proceeds remaining or
collected after payment in full of all such amounts payable pursuant to Section 14.1(i) shall
be paid to or retained by the Lessee.  Upon payment in full of all amounts payable
pursuant to Section 14.1(i), (w) subject to Section 11.01 of the
Indenture, such Property shall be released from the Lien of the Security
Documents, (x) the Lease Term shall end with respect to such Property, (y) the
obligations of the Lessee hereunder with respect to such Property (other than
any obligations expressed herein as surviving termination of this Lease) shall
terminate as of the date of such payment and (z) the Lessor shall transfer
to the Lessee, or if the Lessee shall so designate, to the property damage
insurer, without recourse or warranty but free and clear of Lessor Liens, all
right, title and interest of the Lessor in, to and under such Property
including all related Net Proceeds not otherwise retained by the Lessee or
credited against the purchase price as provided above.


 


In the event that the Lessor rejects the offer of the
Lessee (which the Lessor may do only if it has deposited funds sufficient to
pay all amounts due and owing on the Notes as of such Stipulated Loss Value
Date), to purchase such Property as provided in clause (i) of this Section 14.1
at the purchase price stated therein, the following amount shall be paid to or
retained (in the case of the proceeds of insurance) by the Lessor: the sum of (A) all
insurance proceeds payable under the policy or policies of insurance required
by this Lease, plus (B) an amount equal to the deductible under such
policy or policies, plus (C) any amounts the Lessee has chosen to
self-insure up to Stipulated Loss Value of such Property (the amounts described
in clauses (A), (B) and (C) being collectively referred to as the Insurance Proceeds) plus (D) all Supplemental Rent then
due, plus (E) accrued but unpaid Basic Rent due as of such date (but not
Basic Rent payable in advance on 


 


31

















 


the Stipulated Loss Value Date).  Upon payment in full of such amount (1) the
Lease Term shall end, and (2) the obligations of the Lessee hereunder
(other than any obligations expressed herein as surviving termination of this
Lease) with respect to the Property or Properties suffering such Event of Loss
shall terminate as of the date of such payment. 
If the Lessor elects to reject the offer of the Lessee hereunder to
purchase such Property pursuant to this Section 14.1, such notice of
rejection shall be deemed effective only if it is countersigned by the
Indenture Trustee if the Lien of the Security Documents is then in effect.


 


If the Lessee elects Section 14.1(ii) with
respect to a Property, the Lessee may request that the Owner Participant obtain
(at the Lessee’s expense) an opinion from counsel reasonably selected by Owner
Participant to determine whether such election shall result in any amounts
becoming due under the Tax Indemnification Agreement.  The Owner Participant shall obtain such
opinion within 30 days of such request. 
If (x) such opinion concludes that it is more likely than not that
an amount in excess of $200,000 shall be so due or (y) Owner Participant
does not obtain any such opinion within such 30 day period, the Lessee may,
within 20 days of receipt of such opinion or of the end of such 30 days period,
whichever is earlier, elect to offer to purchase such Property by payment of
the amounts described in Section 14.1(i), whereupon the Lessor and the
Lessee shall proceed as if the offer contemplated by Section 14.1(i) had
been made.


 


14.2                        Application of Payments When Lease
Continues


 


Payments (except for payments under insurance policies
maintained other than pursuant to Article 11 of this Lease) received at
any time by the Lessor, the Indenture Trustee or the Lessee from any
Governmental Authority or other Person with respect to any Condemnation or
Casualty to a Property or any part thereof or with respect to an Event of Loss
not resulting in a termination of this Lease, shall (except to the extent Section 14.5
applies) be paid to the Indenture Trustee and then immediately to the Lessee,
to be applied, as necessary, for the repair or restoration of such Property and
Improvements and any excess remaining thereafter shall, in the case of a
Casualty or Event of Loss not resulting in a termination of this Lease, be
retained by the Lessee, and, in the case of a Condemnation, to the extent the
Lessee cannot rebuild and restore the affected Property to its value, residual
value and useful life as existed immediately prior to such Condemnation, excess
amounts shall be for the account of the Lessee and the Lessor, as their
interests may appear.  All such repair
and restoration shall be effected by the Lessee in compliance with the
requirements of Section 9.1 and Section 9.2.


 


The Lessee shall maintain records for three years
setting forth information relating to the receipt and application of payments
in accordance with this Section 14.2. 
Such records shall be kept on file by the Lessee at its offices and
shall be made available to the Lessor and the Indenture Trustee upon request.


 


From and after a Condemnation, Casualty or Event of
Loss and during or prior to any period of repair or rebuilding pursuant to this
Article 14, this Lease will remain in full force and effect and Rent shall
continue to accrue and be payable without abatement or reduction.


 


14.3                        Payment of Stipulated Loss Value on an
Event of Taking


 


If an Event of Taking shall occur with respect to a
Property, the Lessee shall give the Lessor, the Owner Participant, the Pass
Through Trustee and the Indenture Trustee prompt written notice of such
occurrence and the date thereof, and the Lessee shall offer to purchase the
affected Property from the Lessor on a Stipulated Loss Value Date not less than
90 or more than 270 days after the


 


32














 


Event of
Taking at a purchase price equal to the sum of (A) Stipulated Loss Value
with respect to such Property determined as of such Stipulated Loss Value Date,
plus (B) all Supplemental Rent due and owing on such Stipulated Loss Value
Date (including, without limitation, any transfer taxes and other expenses
associated with such transfer which are indemnifiable under Article VIII
of the Participation Agreement), plus (C) all Basic Rent due and owing
with respect to Rent Payment Dates on or prior to such Stipulated Loss Value
Date (but not Basic Rent payable in advance on the Stipulated Loss Value
Date).  If the Lessor accepts such offer,
or fails to respond to such offer within 90 days of its receipt of such notice,
the Lessee shall pay the purchase price set forth in the preceding sentence on
such Stipulated Loss Value Date, provided that the Net Condemnation
Proceeds then held by the Lessor or the Indenture Trustee will first be
allocated among the Lessee and Lessor as their interests appear and, second,
the amounts allocated to the Lessee and the Lessor shall be applied in
reduction of the Lessee’s obligation to pay the purchase price for such
Property, if not already paid by the Lessee, and the balance, if any, of the
Net Condemnation Proceeds received or remaining thereafter shall be divided
between the Lessor and the Lessee as their interests appear, or if the purchase
price for such Property has already been paid by the Lessee, the Net
Condemnation Proceeds shall be divided between the Lessor and the Lessee as
their interests appear.  If the Lessor
rejects such offer within such 90-day period, the Net Condemnation Proceeds
will first be allocated among the Lessee and the Lessor as their interests
appear and, second, the amounts allocated to the Lessee and the Lessor shall be
paid over to, and retained by, the Lessor up to said Stipulated Loss Value and
any excess Net Condemnation Proceeds shall be divided between the Lessor and
the Lessee as their interests may appear; provided that if the parties
cannot agree upon such allocation of the excess Net Condemnation Proceeds, the
Lessor and the Lessee agree to submit the matter to a mutually agreed upon
method of arbitration.  The Lessee may
file a separate claim for its own losses (such as loss of fixtures, equipment
and alterations owned by it) and moving and relocation expenses so long as such
claim does not reduce the amount payable to the Lessor on account of its
interest in the Properties.  Upon
distribution of the Net Condemnation Proceeds as provided in this
Section 14.3, in respect of amounts due under this Section 14.3, and
payment of the sum of (A) all Supplemental Rent then due, plus
(B) all Basic Rent-due on such date (but not Basic Rent payable in advance
on the relevant Stipulated Loss Value Date), (1) the Lease Term shall end
for such Property, (2) the obligations of the Lessee hereunder (other than
any obligations expressed herein as surviving termination of this Lease) shall
terminate with respect to the affected Property as of the date of such payment
and (3) in the case of the purchase of the affected Property by the Lessee
as provided in this Section 14.3, the Lessor shall transfer to the Lessee,
or if the Lessee shall so designate, the condemning authority, without recourse
or warranty but free and clear of Lessor Liens all right, title and interest of
the Lessor in, to and under the affected Property shall be released from the
Lien of the Security Documents, subject to Section 11.01 of the
Indenture.  If the Lessor elects to
reject the offer of the Lessee hereunder to purchase such Property pursuant to
this Section 14.3, it must prepay the Allocable Portion of the Notes with
respect to such Property and the notice of rejection shall be deemed effective
only if it is countersigned by the Indenture Trustee.  Upon all payments due under this
Section 14.3, with respect to a Property, (1) the Lease Term will end
for such Property, and (2) the obligations of the Lessee hereunder (other
than any obligations expressed herein as surviving termination of this Lease)
with respect to such Property shall terminate.


 


14.4                        Application
of Certain Payments Not Relating to an Event of Taking


 


In case of a
Condemnation, this Lease shall remain in full force and effect, without any
abatement or reduction of Basic Rent, and the Net Condemnation Proceeds shall,
unless a Special Default or a Lease Event of Default has occurred and is
continuing, be paid as set forth in Section 14.2, 


 


33

















 


except that
any portion of the Net Condemnation Proceeds that was awarded with respect to
the time period after the expiration or termination of the Lease Term shall be
paid to the Lessor.


 


14.5                        Other
Dispositions


 


Notwithstanding
the foregoing provisions of this Article 14, so long as a Special Default
or a Lease Event of Default shall have occurred and be continuing, any amount
that would otherwise be payable to or for the account of, or that would
otherwise be retained by, the Lessee pursuant to this Article 14 shall be
paid to the Indenture Trustee (or to the Lessor after the Security Documents
shall have been satisfied and discharged) as security for the obligations of
the Lessee under this Lease and, at such time thereafter as no Special Default
or Lease Event of Default shall be continuing, such amount shall be paid
promptly to the Lessee.


 


14.6                        Negotiations


 


In the event
any part of the Properties becomes subject to Condemnation or Event of Taking
proceedings, the Lessee shall give notice thereof to the Lessor, the Pass
Through Trustee and the Indenture Trustee promptly after the Lessee has
knowledge thereof and shall control the negotiations with the relevant
Governmental Authority unless a Lease Event of Default shall be continuing, in
which case the Lessor shall control such negotiations; provided that in
any event the Lessor and the Owner Participant may participate at the Lessee’s
expense in such negotiations, and no settlement will be made without Lessor’s
and Owner Participant’s prior consent, not to be unreasonably withheld.  The Lessee shall give to the Lessor, the
Owner Participant, the Pass Through Trustee and the Indenture Trustee such
information, and copies of such documents, which relate to such proceedings, or
which relate to the settlement of amounts due under insurance policies required
by Article 11, and are in the possession of the Lessee, as are reasonably
requested by the Lessor, the Owner Participant, the Pass Through Trustee or the
Indenture Trustee.


 


14.7                        No Rent
Abatement


 


Rent shall not
abate hereunder by reason of any Casualty, Event of Loss or Condemnation when
this Lease does not terminate pursuant to the terms hereof, and the Lessee
shall continue to perform and fulfill all of the Lessee’s obligations,
covenants and agreements hereunder notwithstanding such Casualty, Event of Loss
or Condemnation.


 


14.8                        Investment


 


The Lessor
agrees that, in accordance with Section 10.09 of the Indenture, to the
extent the Lessor can control how any funds held by the Indenture Trustee
pursuant to this Article 14 are invested, the Lessor shall follow the
instructions of the Lessee with respect to the nature and timing of such
investments unless a Special Default or a Lease Event of Default has occurred
and is continuing.


 


15.                               INTEREST
CONVEYED TO LESSEE


 


This Lease is
an agreement of lease and the Lessor does not convey to the Lessee any right,
title or interest in or to the Properties except as a lessee.


 


34

















 


16.                               SUBLEASE


 


16.1                        Sublease
Requirements


 


The Lessee may
sublease the Properties or any part thereof to any Person, on such terms and
conditions as the Lessee may desire in its sole discretion, without the consent
of the Lessor; provided, however, that (i) any such sublease shall not
release the Lessee from any of its obligations or liabilities under this Lease
of any nature whatsoever; (ii) any such sublease shall be expressly
subject and subordinate to this Lease and the Lien of the Security Documents;
(iii) no such sublease may be entered into if a Lease Event of Default or
a Special Default has occurred and is continuing; (iv) any sublessee shall
not be bankrupt at the inception of the sublease and shall be permitted to use
the Properties only for the purposes permitted under this Lease; (v) any
such sublease shall not increase the Lessor’s, the Owner Participant’s, the
Indenture Trustee’s or the Pass Through Trustee’s exposure to the risk of
Environmental Claims being made against it; and (vi) any such sublease of
a Property or any portion thereof shall be for a term that does not extend
beyond the Lease Term with respect to such Property (including any then
exercised Renewal Terms). 
Notwithstanding the foregoing, any Existing Subleases shall not be
subject and subordinate to this Lease or the Lien of the Security Documents and
may, to the extent permitted under such Existing Sublease on the date of this
Lease, extend beyond the Lease Term with respect to the related Property.


 


Notwithstanding
clauses (ii) and (vi) of the immediately preceding paragraph, the
Lessee may enter into subleases which extend beyond the Lease Term (including
any then exercised Renewal Term), provided that the following criteria
are met at the inception of such sublease (the NonDisturbance Criteria):


 


(i)                                     each such sublease
agreement shall be in substantially the form of Exhibit B to this Lease;
provided, however, that Lessor agrees to approve such reasonable variations in
the form of such sublease agreement as are requested by Lessee on a
case-by-case basis in order to facilitate specific subleases which otherwise
satisfy the Non-Disturbance Criteria;


 


(ii)                                  the net effective
rent, taking into account all economic terms, must be at least equal to the
Fair Market Rental Value for comparable space in comparable buildings for a
like term with a tenant of comparable financial creditworthiness;


 


(iii)                               for subleases in excess
of 20,000 Square Feet, the sublessee thereunder must provide evidence
reasonably satisfactory to the Lessor that such sublessee has reasonably
foreseeable financial ability to perform its obligations under the sublease;


 


(iv)                              for subleases with
Affiliates of the Lessee, the Lessor must consent, which consent will not be
unreasonably withheld, or at the option of the Lessee, a third party
independent appraiser acceptable to Lessee and Lessor must opine that the rents
of the sublease comply with (ii) above;


 


(v)                                 [reserved];


 


35

















 


(vi)                              the basic term of the
sublease must not extend beyond 10 years, and any renewal terms must be at Fair
Market Rental Value and must not extend, collectively, beyond an additional
five years;


 


(vii)                           basic and renewal rents
under the sublease must be adjusted for CPI increases, or for a fixed increase
of at least 2% per year, every five years, and basic rents of the sublease must
not decrease;


 


(viii)                        the present value of all rent
concessions (including free rent, rent credits, rental abatements, tenant
improvement allowances, moving allowances, space assumption or similar
concessions or any other related transaction) during the basic term of the
sublease must not exceed 20% of the present value (calculated using a discount
rate equal to the Interest Rate, as adjusted for monthly compounding) of the
scheduled basic rent payable during the basic term of the sublease;


 


(ix)                                the sublease must
include provisions that obligate the sublessee to pay its prorata share of
operating expenses of the Property in accordance with relevant market practice
at the time;


 


(x)                                   sublease tenant
improvements must not require extraordinary removal or modification to render
the space usable by subsequent tenants;


 


(xi)                                the sublessee’s share
of reserved parking spaces related to such Property, if any, must be no more
than the sublessee’s share of Square Feet in such Property; and


 


(xii)                             the sublease must be
subject to common area agreements governing parking and maintenance of parking
areas.


 


In the event
that the Lessor and the Lessee cannot agree on whether any element of the
Non-Disturbance Criteria has been satisfied, an independent third party agreed
upon by the Lessor and the Lessee shall conclusively determine such issue.  If such a third party is not agreed upon by
both parties within 10 days of request therefor by either party, then either
party may apply to the American Arbitration Association to appoint such a third
party.


 


If, in
connection with any sublease, the Lessee requests that the Lessor confirm its
agreement that the Non-Disturbance Criteria have been met, the Lessor shall
respond in writing to any such request within 10 Business Days of receipt of
such request.  Such request, when made,
shall be accompanied by copies of materials relevant to the determination that
the Non-Disturbance Criteria have been met. 
If the Lessor does not respond to the Lessee’s request in writing, either
confirming that the Non-disturbance Criteria have been satisfied, or as
described in the next sentence, by the end of such 10-Business-Day period, the
Lessor shall be deemed to have confirmed that the Non-Disturbance Criteria have
been met for all purposes under this Lease. 
If the Lessor expresses to the Lessee in writing within the relevant
response period that, in the Lessor’s opinion, one or more of the
Non-disturbance Criteria have not been met, the Lessor must specify in such
writing the reasons underlying such a conclusion in reasonable detail.


 


If the
Non-Disturbance Criteria are met, the Lessor and the Indenture Trustee
irrevocably agree that, subject to the terms of the Subordination and
Non-disturbance Agreement relating to such Senior Sublease, if any,
notwithstanding the exercise by the Lessor and the Indenture Trustee of 


 


36

















 


any rights
under Article 19 (including but not limited to proceedings for eviction,
termination or other enforcement action) or any termination of this Lease prior
to the expiration of the Lease Term or any then exercised Renewal Term, the
possession and other rights of the sublessee under such Senior Sublease shall
not be disturbed or affected by the Lessor or the Indenture Trustee so long as
no default by the sublessee exists under the terms of such Senior Sublease
(after notice and an opportunity to cure, if any, as provided in the Senior
Sublease).  In the event of termination
of this Lease as to any Property, all sublessees in such Property under Senior
Subleases shall (unless such a default by such sublessee exists) continue as
direct lessees from the Lessor, upon and subject to the terms and conditions of
the Senior Sublease and such sublessees will attorn to the Lessor.  Lessor shall deliver to the Lessee, for the
benefit of the applicable sublessee under the Senior Sublease, within ten
(10) Business Days after the Lessee’s request, a confirmation of such
attornment in favor of the Lessor, by executing a Subordination and
Non-disturbance Agreement.


 


When an Event
of Default is continuing, the rights of the Lessor to determine whether
Non-Disturbance Criteria have been satisfied, and to waive portions of such
Non-Disturbance Criteria, shall be exercisable by, or subject to the approval
of, the Indenture Trustee (or its agent), but otherwise such rights shall not
be exercisable by or subject to the consent or approval of the Indenture
Trustee (or its agent).  The Indenture
Trustee shall join in executing each Subordination and Nondisturbance Agreement
whenever the Lessor does, upon request of Lessor, unless an Event of Default is
then continuing.


 


No sublease of
a Property shall release the Lessee from any liability or from the performance
of any of the Lessee’s duties and obligations under this Lease and the other
Operative Documents to which the Lessee is a party.  If this Lease is terminated as to a certain
Property, the Lessee shall not be liable to the Lessor for any obligations or
responsibilities of any sublessees remaining in such Property, except to the
extent such obligations arise from or relate solely to the sublessees’
possession of such Property prior to the termination of this Lease with respect
to such Property.


 


The Lessee
shall be entitled to retain any or all rent or other amounts paid under any
sublease of the Properties during the Lease Term; provided that so long as a
Lease Event of Default is continuing, the Lessee shall, if the Lessor so
requests, direct sublessees to pay all rent or other amounts due under their
subleases to the Lessor or as it may direct.


 


In the event
the Lessee exercises its rights under Section 6.1 hereof to terminate the
Lease with respect to a Property, on the date on which Lessee’s election to
terminate becomes irrevocable, Lessor shall have the right, either itself or by
agents engaged by Lessor (which engagement may occur by an assumption by Lessor
of Lessee’s leasing agency agreements, if any) to market any unleased space in
such Property.


 


Lessee shall
not amend any Senior Sublease without the written consent of Lessor, Owner
Participant and Indenture Trustee if such amendment results in a breach of any
of the conditions listed in clauses (i)-(xii) above.  Subject to the immediately preceding
sentence, the Lessor shall, at Lessee’s request, approve any amendment,
modification, assignment, subletting, extension, renewal or prepayment of any
sublease (with respect to which a Subordination and Non-disturbance Agreement
is in effect) if the effect thereof does not result in a breach of any of the
conditions listed in clauses (i)-(xii) above or any other provision of the
Operative Documents to which the Lessee is a party.


 


37

















 


16.2                        Assignment
of Subleases


 


(a)                                                  Existing Subleases are hereby
assigned by Lessor to Lessee for the Lease Term, and the Lessee assumes and
agrees to perform each and every obligation of the landlord with respect to the
Existing Subleases affecting the Properties, whether such obligations accrued
prior to the Basic Term Commencement Date or accrue during the period from and
after the Basic Term Commencement Date to the date such Existing Subleases are
absolutely reassigned to Lessor as provided in
Section 16.2(c) hereof.


 


(b)                                                 The Lessee hereby collaterally
reassigns to Lessor, as security for the performance of the Lessee’s
obligations hereunder, all of the Lessee’s right, title and interest in and to
(1) each Existing Sublease and (2) each and every sublease that the
Lessee has entered into or may enter into with respect to any Property from
time to time after the Original Closing Date and (3) any and all proceeds
of any of the above, whether presently owned or hereinafter acquired and any
future rights, benefits and claims arising therefrom (hereinafter clauses (1)-(3) collectively
called the Assigned Subleases).


 


(c)                                                  Upon the expiration of the Lease
Term as to a Property, the Assigned Subleases in such Property shall
automatically and without further action of the Lessor or the Lessee be
reassigned to Lessor, in all cases free and clear of all Liens except Lessor
Liens and Indenture Trustee Liens.  Upon
Lessor’s request, Lessee shall execute an assignment of leases in form and
substance reasonably satisfactory to Lessor confirming the foregoing.


 


(d)                                                 The Lessee further acknowledges
that the Lessor shall be further assigning the rights granted pursuant to this
Section 16.2 to the Indenture Trustee under the Indenture.


 


(e)                                                  Notwithstanding the assignment
of rights and security interest granted in this Section 16.2, the Lessor
agrees that, so long as no Lease Event of Default or Default under paragraph
(e) of Article 18 is continuing, Lessee shall have the right to all
rent, income and other sums becoming due and payable under the Assigned
Subleases and the Lessor (and anyone claiming through the Lessor) shall not
communicate or otherwise deal with (unless Lessee shall have given irrevocable
notice of its right to terminate this Lease with respect to the applicable
Property), or collect any rent from, any sublessee, or approach any sublessee
for any acknowledgment of the assignment set forth in this Section 16.2 or
receive any such acknowledgment.


 


(f)                                                    Regardless of whether a Lease
Event of Default or a Default under paragraph (e) of Article 18 is
continuing, so long as the assignment made hereunder remains effective, the
Lessor may exercise any inspection rights that the Lessee may have under a
sublease.


 


16.3                        Sublessor
Improvements


 


The Lessor agrees that for each Approved Sublease it shall reimburse
the Lessee for the unamortized balance (computed without interest on a straight
line basis over the basic term of such Approved Sublease, excluding renewals)
of tenant improvement expenditures made by the Lessee in connection with such
Approved Sublease; such balance to be calculated and reimbursed as of the date
on which the Lessee surrenders possession to the Lessor of the Property which
just before such surrender was subject to such Approved Sublease, whether such
surrender occurs at the expiration or earlier termination of this Lease as it
relates to such Property.


 


38

















 


17.                               INSPECTION,
REPORTS AND NOTICES


 


17.1                        Inspection


 


Upon five days’ prior notice (three days’ prior notice if the
Properties subject to the inspection (or any portion thereof) are being
terminated from this Lease) to the Lessee, or in the case of emergency or while
a Lease Event of Default is continuing upon reasonable notice, the Indenture
Trustee, the Pass Through Trustee, the Lessor, the Owner Participant and their
authorized representatives (the Inspecting
Parties) may inspect, at their own expense and risk, the Properties
other than any areas where proprietary information of the Lessee or any
sublessee is retained in the ordinary course of business, but only in a manner
so as to not unreasonably interfere with the Lessee’s or any other occupant’s
business operations on the Properties and, if required by the Lessee, only when
accompanied by a designated representative of the Lessee.  The Inspecting Parties shall have no right to
inspect the books, records or financial information of the Lessee (other than
the books, records or financial information relating directly and primarily to
the Properties, but only after material related to matters other than the
Properties shall have been redacted from such documents).  None of the Inspecting Parties shall have any
duty to make any such inspection or inquiry and none of the Inspecting Parties
shall incur any liability or obligation by reason of not making any such
inspection or inquiry.  None of the
Inspecting Parties shall incur any liability or obligation by reason of making
any such inspection or inquiry except for such Inspecting Party’s gross
negligence or willful misconduct.


 


17.2                        Reports


 


To the extent permissible, the Lessee shall prepare and file in a
timely fashion, or, where the Lessor or the Owner Participant shall be required
to file, the Lessee shall prepare and deliver to the Lessor or the Owner
Participant, as applicable, within a reasonable time prior to the date for
filing, any reports with respect to the condition or operation of the
Properties that shall be required to be filed with any Governmental Authority.


 


17.3                        Notices
from Governmental Authorities


 


The Lessor and
the Owner Participant shall promptly provide the Lessee with copies of any
communications received by the Lessor and the Owner Participant from any
Governmental Authority relating to the Properties.


 


18.                               LEASE
EVENTS OF DEFAULT


 


The following
events shall constitute Lease Events of Default (whether any such event shall
be voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):


 


(a)                                  the Lessee shall fail
to make any payment of Basic Rent, Redemption Premium (arising as the result of
the prepayment of any Secured Note pursuant to clauses (b), (c), (d) or
(f) of Section 2.04 of the Indenture) or Stipulated Loss Value and
such failure shall continue for five days after the date such payment was due;


 


(b)                                 the Lessee shall fail
to make any payment of any other Supplemental Rent not specifically set forth
in paragraph (a) of this Article 18 or any other amount payable 


 


39

















 


hereunder and such failure shall continue for a period of 30 days after
notice of such failure to Lessee from the Lessor or the Indenture Trustee;


 


(c)                                  the Lessee shall fail
to maintain insurance in the amounts required by Section 11.1 or 11.2
hereof; provided, however, that if such failure is the result of the Lessee not
obtaining the insurance required immediately following its downgrading below
the Rating Test, such failure shall not constitute a Lease Event of Default
unless such failure shall continue for 20 days;


 


(d)                                 the Lessee shall fail
to timely perform or observe any covenant, condition or agreement (not included
in paragraph (a), (b) or (c) of this Article 18) to be performed
or observed by it hereunder or under any other Operative Document to which the
Lessee is a party (other than the Tax Indemnification Agreement) and such
failure shall continue for a period of 30 days after Lessee receives written
notice thereof from the Lessor or the Indenture Trustee; provided that the
continuation of such failure shall not constitute a Lease Event of Default if
(i) such failure is not reasonably curable within 30 days; (ii) the
Lessee is diligently pursuing the cure of such default; (iii) such failure
does not impair in any material respect the Lessor’s ownership interest in the
Properties or impair the Lien of the Security Documents; and (iv) such
cure is completed within 270 days of Lessee’s receipt of written notice of the
default or by the end of the Lease Term, if earlier;


 


(e)                                  the filing by the
Lessee of any petition for dissolution or liquidation, conservatorship or
receivership of the Lessee, or the commencement by the Lessee of any case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the Lessee shall have consented to the entry of an order for relief
under any such law, or the failure of the Lessee generally to pay its debts as
such debts become due, or the failure by the Lessee promptly to satisfy or discharge
any execution, garnishment or attachment of such consequence as will impair its
ability to carry out its obligations under this Lease, or the appointment of or
taking possession by a receiver, custodian or trustee (or other similar
official) for the Lessee or any substantial part of its property, or a general
assignment by the Lessee for the benefit of its creditors, or the entry by the
Lessee into an agreement of composition with its creditors, or the Lessee shall
have taken any corporate action in furtherance of any of the foregoing; or the
filing against the Lessee of a petition in bankruptcy, insolvency or other
similar law which results in an order for relief being entered or,
notwithstanding that an order for relief has not been entered, the petition is
not dismissed within 90 days of the date of the filing of the petition, or the
filing under any law relating to bankruptcy, insolvency or relief of debtors of
any petition against the Lessee for reorganization, conservatorship or
receivership, composition, extension or arrangement with creditors which either
(i) results in a finding or adjudication of insolvency of the Lessee or
(ii) is not dismissed within 90 days of the date of the filing of such
petition (the term dissolution or liquidation of the Lessee, as used in this
paragraph (e), shall not be construed to include the cessation of the corporate
existence of the Lessee resulting either from a merger or consolidation of the
Lessee into or with another corporation or a dissolution or liquidation of the
Lessee following a transfer of all or substantially all of its assets as an
entirety, if the conditions permitting such actions contained in
Section 5.1 of the Participation Agreement are satisfied); or


 


(f)                                    any representation
or warranty by the Lessee in any Operative Document to which the Lesee is a
party (other than the Tax Indemnification Agreement) or in any certificate or
document delivered to the Lessor or the Indenture Trustee pursuant to any
Operative 


 


40

















 


Document to which the Lessee is a party (other than the Tax
Indemnification Agreement) shall have been materially incorrect when made and
shall remain incorrect for 30 days after the Lessee’s receipt of written notice
thereof from the Lessor or the Indenture Trustee unless (i) such breach is
curable and the Lessee is diligently attempting to cure such misrepresentation
and (ii) such cure is completed within 270 days of receipt of such notice
or the end of the Lease Term, if earlier;


 


19.                               ENFORCEMENT


 


19.1                        Remedies


 


Upon the
occurrence of any Lease Event of Default and at any time thereafter so long as
the same shall be continuing, the Lessor may, at its option, by notice to the
Lessee and the Indenture Trustee declare this Lease to be in default, and at
any time thereafter so long as a Lease Event of Default is continuing the
Lessor may exercise one or more of the following rights and remedies as the
Lessor in its sole discretion shall determine:


 


(a)                                  the Lessor may, by
notice to the Lessee, terminate this Lease as to some or all of the Properties
as of the date specified in such notice; however, (A) no reletting,
reentry or taking of possession of the Properties by the Lessor will be
construed as an election on the Lessor’s part to terminate this Lease unless a
written notice of such intention is given to the Lessee,
(B) notwithstanding any reletting, reentry or taking of possession, the
Lessor may at any time thereafter elect to terminate this Lease for a
continuing Lease Event of Default, and (C) no act or thing done by the
Lessor or any of its agents, representatives or employees and no agreement
accepting a surrender of the Properties shall be valid unless the same be made
in writing and executed by the Lessor;


 


(b)                                 the Lessor may
(i) demand that the Lessee, and the Lessee shall upon the demand of the
Lessor, return the Properties promptly to the Lessor in the manner and
condition required by, and otherwise in accordance with all of the provisions
of, Articles 9 and 12 hereof as if the Properties were being returned at the
end of the Lease Term, and the Lessor shall not be liable for the reimbursement
of the Lessee for any costs and expenses incurred by the Lessee in connection
therewith and (ii) without prejudice to any other remedy which the Lessor
may have for possession of the Properties, enter upon the Properties and take
immediate possession of the Properties (to the exclusion of the Lessee) and
expel or remove the Lessee and any other Person who may be occupying the
Properties (except any sublessee under Senior Subleases subject to an
applicable Subordination and Non-Disturbance Agreement), by summary proceedings
or otherwise, all without liability to the Lessee for or by reason of such
entry or taking of possession, whether for the restoration of damage to
property caused by such taking or otherwise and, in addition to Lessor’s other
damages, the Lessee shall be responsible for the reasonably necessary costs and
expenses of reletting, including brokers’ fees, marketing costs, legal fees and
the costs of any repairs made by Lessor. 
The provisions of this Section 19.1(b) shall operate as a
notice to quit and shall be deemed to satisfy any other requirement or
provisions of Applicable Laws and Regulations which may require the Lessor to provide
a notice to quit or of the Lessor’s intention to reenter the Properties and any
such requirements or provisions are hereby waived by the Lessee;


 


(c)                                  the Lessor may sell
all or any part of the Properties at public or private sale, as the Lessor may determine,
free and clear of any rights of the Lessee and without any duty to account 


 


41

















 


to the Lessee with respect to such action or inaction or any proceeds
with respect thereto (except to the extent required by paragraph (f) below
if the Lessor shall elect to exercise its rights thereunder) in which event the
Lessee’s obligation to pay Basic Rent hereunder for periods commencing after
the date of such sale shall be terminated or proportionately reduced, as the
case may be (except to the extent that Basic Rent is to be included in
computations under paragraph (e) or (f) below if the Lessor shall
elect to exercise its rights thereunder);


 


(d)                                 to the extent
permitted by Applicable Laws and Regulations, the Lessor may hold, keep idle or
lease to others all or any part of the Properties as the Lessor in its sole
discretion may determine, free and clear of any rights of the Lessee and
without any duty to account to the Lessee with respect to such action or inaction
or for any proceeds with respect to such action or inaction, except that the
Lessee’s obligation to pay Basic Rent from and after the occurrence of a Lease
Event of Default shall be reduced by the net proceeds, if any, received by the
Lessor from leasing the Properties previously leased to the Lessee to any
Person other than the Lessee for the same periods or any portion thereof;


 


(e)                                  the Lessor may,
whether or not the Lessor shall have exercised or shall thereafter at any time
exercise any of its rights under paragraph (b), (c) or (d) of this
Article 19 with respect to one or more Properties, demand, by written
notice to the Lessee, and specify a Stipulated Loss Value Date (the Final Payment Date) not earlier than 25
days after the date of such notice, that the Lessee pays to the Lessor, on the
Final Payment Date, as liquidated damages for loss of a bargain and not as a
penalty (the parties agreeing that the Lessor’s actual damages would be
difficult to predict, but the aforementioned liquidated damages represent a
reasonable approximation of such amount) (in lieu of Basic Rent due after the
Final Payment Date), an amount equal to the sum of (A) all Supplemental
Rent then due and owing plus all accrued Basic Rent unpaid as of the Final
Payment Date other than, in the case where the Lessee pays all or any portion
of Stipulated Loss Value to the Lessor pursuant to clauses (i), (ii) or
(iii) below, the Basic Rent installment due and payable in advance on such
Stipulated Loss Value Date, plus (B) whichever of the following amounts
the Lessor, in its sole discretion, shall specify in such notice (together with
interest on such amount at the Overdue Rate from the Final Payment Date
specified in such notice to the date of actual payment):


 


(i)                                     if a Property has
not been sold, an amount equal to the excess, if any, of the Stipulated Loss
Value of such Property, computed as of the Final Payment Date, over the Fair
Market Sales Value of such Property as of the Final Payment Date (such Fair
Market Sales Value to be determined by mutual agreement of the Lessor and the
Lessee or if they cannot agree within 10 days after such notice by the
Appraisal Procedure);


 


(ii)                                  an amount equal to
the excess, if any, of the Stipulated Loss Value of a Property computed as of
the Final Payment Date over the present value of the Fair Market Rental Value
of such Property for the balance of the useful life of such Property discounted
at the Interest Rate (as adjusted for monthly compounding) (such Fair Market
Rental Value to be determined by mutual agreement of the Lessor and the Lessee
or if they cannot agree within 10 days of such notice by the Appraisal
Procedure); or


 


42














 


(iii)                               the Stipulated Loss Value of a Property
computed as of the Final Payment Date and upon payment of such amount, and the
amount of any unpaid Rent referred to in Section 19.2, the Lessor shall convey
to the Lessee all of the Lessor’s right, title and interest in and to such
Property without recourse or warranty, but free and clear of Lessor’s Liens;


 


(f)                                    if the Lessor shall have sold a Property
pursuant to paragraph (c) above, the Lessor, in lieu of exercising its rights
under paragraph (e) above, may, if it shall so elect, demand that the Lessee
pay to the Lessor, and the Lessee shall pay to the Lessor, on the date of such
sale, as liquidated damages for loss of a bargain and not as a penalty (the
parties agreeing that the Lessor’s actual damages would be difficult to
predict, but the aforementioned liquidated damages represent a reasonable
approximation of such amount) (in lieu of Basic Rent due for periods commencing
on or after the Stipulated Loss Value Date coinciding with such date of sale
(or, if the sale date is not a Stipulated Loss Value Date, the Stipulated Loss
Value Date next preceding the date of such sale)), an amount equal to the sum
of (1) all accrued and unpaid Basic Rent as of such Stipulated Loss Value Date
other than, in the case where the Lessee pays all or any portion of Stipulated
Loss Value on such Stipulated Loss Value Date, the Basic Rent installment due
and payable in advance on such Stipulated Loss Value Date, plus (2) the amount
of any excess of the Stipulated Loss Value of such Property, computed as of
such Stipulated Loss Value Date, over the net proceeds of such sale, together
with interest at the Interest Rate on such excess from such Stipulated Loss
Value Date to the date of sale, plus (3) all Supplemental Rent then due and
owing under this Lease, plus (4) interest at the Overdue Rate on all of the
foregoing amounts from the date of such sale until the date of payment;


 


(g)                                 the Lessor may exercise any other right or
remedy that may be available to it under Applicable Laws and Regulations or in
equity, or proceed by appropriate court action (legal or equitable) to enforce
the terms hereof or to recover damages for the breach hereof.  Separate suits may be brought to collect any
such damages for any period of this Lease, and such suits shall not in any
manner prejudice the Lessor’s right to collect any such damages for any
subsequent period of this Lease, or the Lessor may defer any such suit until
after the expiration of the Basic Term or the then current Renewal Term, in which
event such suit shall be deemed not to have accrued until the expiration of the
Basic Term, or the then current Renewal Term; or


 


(h)                                 the Lessor may retain and apply against the
Lessor’s damages, all sums which the Lessor would, absent such Lease Event of
Default, be required to pay to, or turn over to, the Lessee pursuant to the
terms of this Lease, including, without limitation, any sums which the Lessor
may be required to pay to the Lessee under Section 14.5.


 


19.2                        Survival of the Lessee’s
Obligations


 


No termination of this
Lease, in whole or in part, or repossession of any of the Properties or
exercise of any remedy under Section 19.1 shall, except as specifically
provided therein, relieve the Lessee of any of its liabilities and obligations
hereunder.  In addition, except as
specifically provided therein, the Lessee shall be liable, except as otherwise
provided above, for any and all unpaid Rent due hereunder before, after or
during the exercise of any of the foregoing remedies, including all reasonable
legal fees and other costs and expenses incurred by the Lessor, the Pass
Through Trustee and the Indenture Trustee by reason of the occurrence of any
Lease Event of Default or the exercise of the Lessor’s remedies with respect
thereto, and including all costs and 


 


43

















 


expenses incurred in
connection with the return of the Properties in the manner and condition
required by, and otherwise in accordance with the provisions of, Articles 9 and
12 hereof as if such Properties were being returned at the end of the Lease
Term.  At any sale of the Properties or
any part thereof or any other rights pursuant to Section 19.1, the Lessor, the
Owner Participant or the Indenture Trustee may bid for and purchase such Properties.


 


19.3                        Remedies Cumulative; No
Waiver; Consents


 


To the extent permitted by,
and subject to the mandatory requirements of, Applicable Laws and Regulations,
each and every right, power and remedy herein specifically given to the Lessor
or otherwise in this Lease shall be cumulative and shall be in addition to
every other right, power and remedy herein specifically given or now or
hereafter existing at law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Lessor, and the exercise or the beginning of the exercise of
any power or remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any right, power or remedy.  No delay or omission by the Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of the Lessee or to be an acquiescence therein.  The Lessor’s consent to any request made by
the Lessee shall not be deemed to constitute or preclude the necessity for
obtaining the Lessor’s consent, in the future, to all similar requests.  No express or implied waiver by the Lessor of
any Lease Event of Default shall in any way be, or be construed to be, a waiver
of any future or subsequent Lease Event of Default.


 


20.                               RIGHT
TO PERFORM FOR THE LESSEE


 


If the Lessee shall fail to
perform or comply with any of its agreements contained herein or in any other
Operative Document to which the Lessee is a party, the Lessor may, on five
Business Days’ (one Business Day’s in the case of an emergency) prior notice to
the Lessee, but only if the Lessee is not diligently attempting to cure such
failure, perform or comply with such agreement, and the Lessor shall not
thereby be deemed to have waived any default caused by such failure, and the
amount of such payment and the amount of the expenses of the Lessor (including
reasonable attorney’s fees and expenses) incurred in connection with such
payment or the performance of or compliance with such agreement, as the case
may be, together with interest thereon at the Overdue Rate, shall be deemed
Supplemental Rent, payable by the Lessee to the Lessor upon demand.  The provisions set forth in the preceding
sentence shall not be construed as extending or modifying the cure periods
otherwise provided under Article 18 with respect to Lease Events of Default.


 


21.                               MISCELLANEOUS


 


21.1                        Binding Effect; Successors
and Assigns; Survival


 


The terms and provisions of
this Lease, and the respective rights and obligations hereunder of the Lessor
and the Lessee, shall be binding upon their respective successors, legal
representatives and assigns, and inure to the benefit of their respective
permitted successors and assigns, and the express rights hereunder of the
Indenture Trustee and the Pass Through Trustee shall inure (subject to such
conditions as are contained herein) to the benefit of their respective
permitted successors and assigns.  The
obligations of the Lessee (a) under Section 3.2 and (b) with respect to any
Property or Properties terminated from this Lease, where such obligations
referenced in 


 


44

















 


clause (a) or (b) were
accrued prior to the effectiveness of such termination, shall survive the
termination of this Lease.


 


21.2                        Quiet Enjoyment


 


The Lessor covenants that it
will not interfere in the Lessee’s, and any permitted sublessee’s, respective
peaceful and quiet enjoyment of the Properties hereunder during the Lease Term,
so long as no Lease Event of Default has occurred and is continuing, but
subject in all cases to Section 16.1; provided that the Lessor shall have no
responsibility for the actions of the Indenture Trustee, the Pass Through
Trustee or any Person claiming by, through or under either thereof or for any
defects in or exceptions to title to the Properties other than those which are
attributable to Lessor’s Liens.


 


21.3                        Notices


 


Unless otherwise
specifically provided herein, all notices, consents, demands, directions,
approvals, instructions, requests and other communications required or
permitted by the terms hereof to be given to any Person shall be given as
provided in Section 12.3 of the Participation Agreement.


 


21.4                        Severability


 


Any provision of this Lease
that shall be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction, and the Lessee
shall remain liable to perform its obligations hereunder except to the extent
of such unenforceability.  To the extent
permitted by Applicable Laws and Regulations, the Lessee hereby waives any
provision of law that renders any provision hereof prohibited or unenforceable
in any respect.


 


21.5                        Amendment; Complete
Agreements


 


Neither this Lease nor any
of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification shall be sought.  This
Lease, together with the other Operative Documents, is intended by the parties
as a final expression of their lease agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, considerations and
representations between the parties having been incorporated herein and
therein.  No course of prior dealings
between the parties or their officers, employees, agents or Affiliates shall be
relevant or admissible to supplement, explain, or vary any of the terms of this
Lease or any other Operative Document. 
Acceptance of, or acquiescence in, a course of performance rendered
under this or any prior agreement between the parties or their Affiliates shall
not be relevant or admissible to determine the meaning of any of the terms of
this Lease or any other Operative Document. 
No representations, undertakings, or agreements have been made or relied
upon in the making of this Lease other than those specifically set forth in the
Operative Documents.


 


45

















 


21.6                        Headings


 


The Table of Contents and
headings of the various Articles and Sections of this Lease are for convenience
of reference only and shall not modify, define or limit any of the terms or
provisions hereof.


 


21.7                        Counterparts


 


This Lease may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.


 


21.8                        Governing Law


 


This Lease shall in all
respects be governed by, and construed in accordance with, the laws of the
State of New York applicable to agreements made and to be performed entirely
within such State, including all matters of construction, validity and
performance, except laws governing conflicts of law, provided that to the
extent the law of the jurisdiction where 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 so apply to such Property.


 


21.9                        Apportionments


 


Upon any termination of this
Lease as to a Property, (a) there shall be apportioned, as of the date of such
termination all items of income and expense, including but not limited to, all
rents (including water or sewer rents), real estate taxes, assessments,
insurance or other charges payable with respect to such Property; (b) the
Lessee shall transfer to Lessor all security deposits (whether cash or other
form of security) from any sublessee under Assigned Subleases, including Senior
Subleases, (c) all contracts pertaining to the operation of such Property
shall, at Lessor’s option as to each such contract if it is assignable, be
assigned to Lessor and assumed by Lessor or its designee, (d) Lessee shall
undertake such other actions as are necessary or appropriate in connection with
the termination of this Lease and the transfer of possession of the Property to
Lessor, (e) the Lessee shall deliver to Lessor or its designee at least one
complete set of as-built plans for the Improvements in Lessee’s or its managing
agent’s possession and (f) the Lessee shall deliver to Lessor copies or
originals of all books and records in Lessee’s or its managing agent’s
possession pertaining to the operation of the Property.


 


21.10                 Discharge of the Lessee’s
Obligations by its Sublessees


 


The Lessor agrees that
performance by any sublessee of the Lessee’s obligations hereunder shall
constitute performance by the Lessee of such obligations to the same extent and
with the same effect hereunder as if such obligations were performed by the
Lessee.


 


21.11                 Nature of Lessor’s
Obligations


 


Trust Company and the
Co-Trustee are each parties to this Agreement solely in their respective
capacities as trustee under the Trust Agreement (1997-D) and not in their
individual capacities (except as expressly stated therein) and in no case shall
Owner Participant, Trust Company or Co-Trustee (or any entity acting as
successor trustee under the Trust Agreement (1997-D)) be personally liable for
or on account of any of the statements, representations, warranties, covenants 


 


46

















 


or obligations stated to be those
of Lessor hereunder, all such liability, if any, being expressly waived by the
parties hereto and any Person claiming by, through, or under any such party; provided,
however, that Trust Company (or any such successor trustee) shall be
personally liable hereunder for its own gross negligence or willful misconduct
and for its breach of its covenants, representations and warranties contained
herein, to the extent covenanted or made in its individual capacity.


 


21.12                 Estoppel Certificates


 


Each party hereto agrees
that at any time and from time to time during the Lease Term, it will promptly,
but in no event later than thirty (30) days after request by the other party
hereto, execute, acknowledge and deliver to such other party or to any
prospective purchaser (if such prospective purchaser has signed a purchase
agreement, commitment or letter of intent to purchase the Properties or any
part thereof), assignee or mortgagee or third party designated by such other
party, a certificate stating (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications, that this Lease is in
full force and effect as modified, and identifying the modification
agreements); (b) the date to which Basic Rent has been paid; (c) whether or not
there is any existing default by the Lessee in the payment of Basic Rent or any
other sum of money hereunder, and whether or not, to the knowledge of the
signer, there is any other existing default by either party with respect to
which a notice of default has been served, and, if there is any such default,
specifying the nature and extent thereof; (d) whether or not, to the knowledge
of the signer, there are any setoffs, defenses or counterclaims against
enforcement of the obligations to be performed hereunder existing in favor of
the party executing such certificate and (e) other items that may be reasonably
requested; provided that no such certificate may be requested unless the
requesting party has a good faith reason for such request.


 


21.13                 Granting of Easements


 


If no Lease Event of Default
has occurred and is continuing, the Lessor will join with the Lessee from time
to time at the request of the Lessee (at the Lessee’s sole cost and expense) to
(a) subject to the terms of Sections 14.3 and 14.6, sell, assign, convey or
otherwise transfer an interest in the Properties to any Person legally
empowered to take such interest under the power of eminent domain, (b) grant
easements, licenses, rights of way and other rights and privileges in the
nature of easements, (c) release existing easements and appurtenances affecting
the Properties, (d) subject to the terms of Sections 14.3 and 14.6, dedicate or
transfer unimproved portions of the Properties for road, highway or other
public purposes, (e) execute petitions to have the Properties annexed to any
municipal corporation or utility district, (f) execute amendments to any
covenants and restrictions affecting the Properties and (g) execute and deliver
any instrument, in form and substance reasonably acceptable to the Lessor,
necessary or appropriate to make or confirm such grants or releases to any
Person, with or without consideration, but in all cases only if (1) the Lessor
and the Indenture Trustee shall have received, together with the request from
the Lessee to make such grant or release, (x) an Officer’s Certificate of the
Lessee stating that such grant or release does not interfere with the continued
use of the Properties pursuant to this Lease and does not reduce the Fair
Market Sales Value of the Properties except to a de minimis extent, and (y) an
Officer’s Certificate of the Lessee stating the consideration, if any, and that
such consideration being paid for said sale, grant, easement, license, release,
right of way, petition, amendment or other such instruments described in this
paragraph, is in the opinion of the Lessee fair and adequate (such
consideration, to the extent in the form of cash and/or tangible property, to
be shared by the Lessor and the Lessee in proportion to their respective
interests in the affected Properties) and (z) a duly authorized and binding
undertaking of the Lessee, in form and 


 


47

















 


substance reasonably
satisfactory to the Lessor, to remain obligated under this Lease as though such
easement, license, right-of-way or other right or privilege has not been
granted or released, and to perform all obligations of the Lessor, grantor or
party effecting the release or granting such easement or other interest under
such instrument of grant or release during the Lease Term and (2) the
statements in the certificates described in the preceding clauses (x) and (y) are
accurate.  Notwithstanding the foregoing,
the Lessor shall not be required to grant to any Person an easement allowing
access to and/or through any portion of the Properties the term of which
exceeds the Lease Term; provided that this sentence shall not be
construed to limit the rights of the Lessee to remove Severable Improvements
and Alterations within a reasonable time beyond the Lease Term as provided in Article
12.


 


21.14                 No Joint Venture


 


Any intention to create a
joint venture or partnership relation between the Lessor and the Lessee, is
hereby expressly disclaimed.


 


21.15                 No Accord and Satisfaction


 


The acceptance by the Lessor
of any sums from the Lessee (whether as Basic Rent or otherwise) in amounts
which are less than the amounts due and payable by the Lessee hereunder is not
intended, nor shall be construed, to constitute an accord and satisfaction of
any dispute between the Lessor and the Lessee regarding sums due and payable by
the Lessee hereunder, unless the Lessor specifically deems it as such in
writing.


 


21.16                 No Merger


 


In no event shall the
leasehold interest, estate or right of the Lessee hereunder, or of the Holder
of any Notes secured by a security interest in this Lease, merge with any
interests, estates or rights of the Lessor in or to the Properties, it being
understood that such lease hold interest, estate and right of the Lessee
hereunder, and of the Holder of any Notes secured by a security interest in
this Lease, shall each be deemed to be separate and distinct from the Lessor’s
interests, estates and rights in or to the Properties, notwithstanding that any
such interests, estates or rights shall at any time or times be held by or
vested in the same Person; provided, however, that if all of such interests,
estates or rights at any time shall be held by or vested in one Person, such
Person may at its option effect a merger of such interests by written instrument
clearly and specifically evidencing such intention.


 


21.17                 Investment of Funds


 


Any moneys held by the
Lessor or the Indenture Trustee as security hereunder (to the extent not
applied against the Lessee’s obligations under the Operative Documents to which
the Lessee is a party) at a time when a Lease Event of Default or Special
Default exists shall, until paid to the Lessee or so applied, be invested by
the Lessor in Permitted Investments, at the Lessee’s risk and expense.  All such amounts, including any gain
(including interest received) realized as a result of any such investment (net
of any fees, Taxes, commissions and other expenses, if any, incurred in
connection with such investment) shall be reinvested, applied or paid over to
the Lessee, at its direction, upon the Lessee’s cure of its Lease Event of
Default or Special Default.


 


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21.18                 True Lease


 


This Lease is intended as,
and shall constitute, an agreement of lease, and nothing herein shall be construed
as conveying to the Lessee any right, title or interest in or to the
Properties, except as a lessee.


 


21.19                 Radon Disclosure


 


Lessee is hereby advised
that radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks 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 and radon testing may be obtained from your county
public health unit.  The foregoing
disclosure is provided to comply with Florida law, is for informational
purposes only and does not create any contingency or any representation,
warranty or obligation of Lessor.


 


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IN WITNESS
WHEREOF, the
undersigned have each caused this Lease Agreement to be duly executed and
delivered and their corporate seals to be hereunto affixed and attested by
their respective officers thereunto duly authorized as of the day and year
first above written.


 




	
  SIGNED, SEALED AND

  	
   

  	
   

  
	
  DELIVERED IN THE PRESENCE
  OF:

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION, not in its individual capacity, but solely as successor Owner
  Trustee to State Street Bank and Trust Company of Connecticut, National
  Association, under the Amended and Restated Trust Agreement
  (1997-D) dated as of May 23, 2003,
  as Lessor in states other than the Co-Trustee States and with the Co-Trustee,
  as applicable in the Co-Trustee States, as Lessor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PATRICK E. THEBADO, not in
  his individual capacity, but solely as successor Co-Trustee to Dori Anne
  Seakas, as successor Co-Trustee to Traci Hopkins, under the Amended and Restated Trust
  Agreement (1997-D) dated as of May 23, 2003, with the Owner Trustee as
  applicable in the Co-Trustee States, as Lessor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  	
  as Lessee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name: Michael F. Hord

  
	
   

  	
   

  	
  Title: Associate General
  Counsel

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  






 


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*              Receipt of this original Counterpart No. 1 of the
foregoing Lease Agreement is hereby acknowledged on
         day of May, 2003.


 


 




	
   

  	
   

  	
  WELLS FARGO BANK
  NORTHWEST, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
  as Indenture Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  






 


 






*              This language contained in original Counterpart No. 1
only


 


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