MAY AS TENANT'S SOLE AND EXCLUSIVE RECOURSE SEEK A JUDICIAL ORDER OF
SPECIFIC PERFORMANCE COMPELLING LANDLORD TO GRANT ITS APPROVAL AS TO THE
PROSPECTIVE PROVIDER IN QUESTION.
THE PROVISIONS OF THIS PARAGRAPH MAY BE
ENFORCED SOLELY BY TENANT AND LANDLORD, ARE NOT FOR THE BENEFIT OF ANY OTHER
PARTY (INCLUDING ANY SUBTENANT), AND SPECIFICALLY BUT WITHOUT LIMITATION, NO
TELEPHONE OR TELECOMMUNICATIONS PROVIDER SHALL BE DEEMED A THIRD PARTY
BENEFICIARY OF THIS LEASE.
(F)
INSTALLATION AND USE OF WIRELESS TECHNOLOGIES.
TENANT SHALL NOT
UTILIZE ANY WIRELESS COMMUNICATIONS EQUIPMENT (OTHER THAN USUAL AND CUSTOMARY
CELLULAR TELEPHONES), INCLUDING ANTENNAE AND SATELLITE RECEIVER DISHES, WITHIN
THE PREMISES OR THE BUILDING, WITHOUT LANDLORD'S PRIOR WRITTEN CONSENT.
SUCH
CONSENT MAY BE CONDITIONED IN SUCH A MANNER SO AS TO PROTECT LANDLORD'S
FINANCIAL INTERESTS AND THE INTERESTS OF THE BUILDING, AND THE OTHER TENANTS
27
THEREIN, IN A MANNER SIMILAR TO THE ARRANGEMENTS DESCRIBED IN THE IMMEDIATELY
PRECEDING PARAGRAPHS.
(G)
LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE.
IN THE EVENT
THAT TELECOMMUNICATIONS EQUIPMENT, WIRING AND FACILITIES OR SATELLITE AND
ANTENNAE EQUIPMENT OF ANY TYPE INSTALLED BY OR AT THE REQUEST OF TENANT WITHIN
THE TENANT'S PREMISES, ON THE ROOF, OR ELSEWHERE WITHIN OR ON THE BUILDING
CAUSES INTERFERENCE TO EQUIPMENT USED BY ANOTHER PARTY, TENANT SHALL ASSUME ALL
LIABILITY RELATED TO SUCH INTERFERENCE.
TENANT SHALL USE REASONABLE EFFORTS,
AND SHALL COOPERATE WITH LANDLORD AND OTHER PARTIES, TO PROMPTLY ELIMINATE SUCH
INTERFERENCE.
IN THE EVENT THAT TENANT IS UNABLE TO DO SO, TENANT WILL
SUBSTITUTE ALTERNATIVE EQUIPMENT WHICH REMEDIES THE SITUATION.
IF SUCH
INTERFERENCE PERSISTS, TENANT SHALL DISCONTINUE THE USE OF SUCH EQUIPMENT, AND,
AT LANDLORD'S DISCRETION, REMOVE SUCH EQUIPMENT ACCORDING TO FOREGOING
SPECIFICATIONS.
38.
ERISA REPRESENTATION.
(A)
TENANT ACKNOWLEDGES THAT IT HAS BEEN ADVISED THAT AN AFFILIATE OF
LANDLORD IS A COLLECTIVE INVESTMENT FUND (THE "FUND") WHICH HOLDS THE ASSETS OF
ONE OR MORE EMPLOYEE BENEFIT PLANS OR RETIREMENT ARRANGEMENTS WHICH ARE SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") (EACH A "PLAN"), AND WITH RESPECT TO WHICH MORGAN GUARANTY TRUST
COMPANY OF NEW YORK ("MGT") IS THE TRUSTEE AND THAT, AS A RESULT, LANDLORD MAY
BE PROHIBITED BY LAW FROM ENGAGING IN CERTAIN TRANSACTIONS.
(B)
LANDLORD HEREBY REPRESENTS AND WARRANTS TO TENANT THAT, AS OF THE
DATE HEREOF, THAT LANDLORD HAS NO PLANS WHOSE ASSETS ARE INVESTED IN THE FUND
WHICH, TOGETHER WITH THE INTERESTS OF ANY OTHER PLANS MAINTAINED BY THE SAME
EMPLOYER OR EMPLOYEE ORGANIZATION, REPRESENT A COLLECTIVE INTEREST IN THE FUND
IN EXCESS OF TEN PERCENT (10%) OF THE TOTAL INTERESTS IN THE FUND (EACH, A "10%
PLAN").
IN THE EVENT LANDLORD PARTICIPATES IN ONE OR MORE 10% PLANS
(COLLECTIVELY, THE "EXISTING 10% PLAN"), TENANT SHALL COMPLY WITH THE PROVISIONS
IN SUBPARAGRAPH (D) BELOW.
(C)
TENANT REPRESENTS AND WARRANTS THAT AS OF THE DATE HEREOF, AND AT
ALL TIMES WHILE IT IS A TENANT UNDER THIS LEASE, ONE OF THE FOLLOWING