TERMS OF THE DEPOSITARY AGREEMENT, WHICH
(A) (1) IS A RECOGNIZED MORTGAGEE OR A CONTROL AFFILIATE OF A RECOGNIZED
MORTGAGEE UNDER ANY SEVERANCE SUBLEASE (PROVIDED THAT SUCH RECOGNIZED MORTGAGEE
OR SUCH CONTROL AFFILIATE IS DESIGNATED AS THE DEPOSITARY BY THE CONDOMINIUM
ASSOCIATION AND SUCH RECOGNIZED MORTGAGE AND WOULD QUALIFY AS A LENDING
INSTITUTION, BUT IS OTHER THAN A SAVINGS BANK OR SAVINGS AND LOAN ASSOCIATION),
(2) IF NOT A RECOGNIZED MORTGAGEE OR SUCH CONTROL AFFILIATE, IS A COMMERCIAL
BANK OR TRUST COMPANY QUALIFYING AS A LENDING INSTITUTION DESIGNATED BY THE
RECOGNIZED MORTGAGEE MOST SENIOR IN LIEN, OR (3) IF NOT THE RECOGNIZED MORTGAGEE
OR SUCH CONTROL AFFILIATE OR DESIGNATED BY THE RECOGNIZED MORTGAGEE PURSUANT TO
CLAUSE (2) ABOVE, IS A COMMERCIAL BANK OR TRUST COMPANY QUALIFYING AS A LENDING
INSTITUTION, AS DESIGNATED BY THE CONDOMINIUM ASSOCIATION WITH THE REASONABLE
CONCURRENCE OF LANDLORD, (B) HAS AN OFFICE IN THE CITY OF NEW YORK, AND (C) HAS
A NET WORTH OF NOT LESS THAN ONE HUNDRED MILLION DOLLARS ($100,000,000) AND NET
ASSETS OF NOT LESS THAN TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (AS
SUCH SUMS SHALL BE ADJUSTED FOR INFLATION ON AN ANNUAL BASIS FROM DECEMBER 12,
2001) THROUGHOUT THE PERIOD DURING WHICH IT ACTS AS THE DEPOSITARY.
IF, AT ANY
TIME, NO LENDING INSTITUTION HAS BEEN DESIGNATED TO SO ACT, THEN LANDLORD SHALL
DESIGNATE AS THE DEPOSITARY AN UNAFFILIATED THIRD PARTY REASONABLY ACCEPTABLE TO
THE
9
CONDOMINIUM ASSOCIATION THAT IS ORDINARILY ENGAGED IN THE BUSINESS OF ACTING AS
A DEPOSITARY.
THE CONDOMINIUM ASSOCIATION'S DISAPPROVAL OF AN UNAFFILIATED
THIRD PARTY SO DESIGNATED BY LANDLORD SHALL NOT BE REASONABLE UNLESS IT IS BASED
SOLELY ON THE PRIOR DIRECT EXPERIENCE OF A TENANT UNDER A SEVERANCE SUBLEASE OR
ANY RELATED ENTITY OF A TENANT UNDER A SEVERANCE SUBLEASE WITH SUCH PARTY.
(LXIV)
"DEPOSITARY AGREEMENT" MEANS THE AGREEMENT, IN FORM REASONABLY
ACCEPTABLE TO LANDLORD AND THE CONDOMINIUM ASSOCIATION (AND REASONABLY APPROVED
BY EACH RECOGNIZED MORTGAGEE, IF ANY, AT THE TIME OF THE EXECUTION AND DELIVERY
THEREOF), PURSUANT TO WHICH THE DEPOSITARY AGREES TO PERFORM ITS OBLIGATIONS
HEREUNDER.
(LXV)
"DESIGN ARCHITECT" MEANS RENZO PIANO BUILDING WORKSHOP OR, IN THE EVENT
THAT RENZO PIANO BUILDING WORKSHOP IS NO LONGER THE DESIGN ARCHITECT, ANY OTHER
REPLACEMENT DESIGN ARCHITECT APPROVED IN ACCORDANCE WITH THIS LEASE, IN EITHER
CASE ALONE OR IN AFFILIATION WITH ANOTHER ARCHITECT ACTING AS THE PRODUCTION
ARCHITECT.
(LXVI)
"DESIGN DEVELOPMENT PLANS" MEANS THOSE CERTAIN DESIGN DEVELOPMENT PLANS
APPROVED IN ACCORDANCE WITH THE INITIAL GROUND LEASE.
(LXVII)
"DETERMINATION" HAS THE MEANING SET FORTH IN
SECTION 16.2(B)(III) HEREOF.
(LXVIII)
"DISCOUNT RATE" MEANS A DISCOUNT RATE EQUAL TO THE THEN CURRENT RATE
OF UNITED STATES TREASURY BILLS OR NOTES, AS APPLICABLE, MATURING TEN (10) YEARS
AFTER THE DELIVERY DATE OR THE NEXT MATURITY DATE FOR SUCH BILLS OR NOTES
OCCURRING AFTER SUCH DATE.
(LXIX)
"DISCRETIONARY INSIDE MECHANICAL SPACE" HAS THE MEANING SET FORTH IN
THE INITIAL GROUND LEASE.
(LXX)
"DUO" MEANS THE DESIGN, USE AND OPERATING REQUIREMENTS WHICH ARE
ATTACHED TO THIS LEASE AS FOLLOWS:
(A)
DESIGN, CONSTRUCTION