TABLE OF CONTENTS

 

		Page
1.	DEFINITIONS:	1
2.	DEMISE; TITLE; CONDITION:	7
3.	TERM; RENEWAL OPTION:	8
4.	RENT:	9
5.	USE:	12
6.	NET LEASE; NONTERMINABILITY:	12
7.	TAXES AND OTHER CHARGES; LAW AND AGREEMENTS:	14
8.	LIENS:	15
9.	INDEMNIFICATION; FEES AND EXPENSES:	16
10.	ENVIRONMENTAL MATTERS:	16
11.	MAINTENANCE AND REPAIR:	20
12.	ALTERATIONS AND ADDITIONS:	20
13.	CONDEMNATION AND CASUALTY:	23
14.	INSURANCE:	27
15.	FlNANCIAL STATEMENTS:	30
16.	RIGHT OF FIRST REFUSAL:	31
17.	PURCHASE PROCEDURE:	32
18.	INTENTIONALLY OMITTED.	32
19.	QUIET ENJOYMENT:	32
20.	TERMINATION:	33
21.	SUBLETTING; ASSIGNMENT:	33
22.	ADVANCES BY LANDLORD:	34
23.	CONDITIONAL LIMITATIONS - EVENTS OF DEFAULT AND REMEDIES:	34

 

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24.	NOTICES:	38
25.	ESTOPPEL CERTIFICATES:	40
26.	NO MERGER:	40
27.	SURRENDER:	40
28.	SEPARABILITY:	41
29.	BINDING EFFECT; MERGER, CONSOLIDATION AND DISPOSAL OF ASSETS:	41
30.	SHOWING:	41
31.	NATURE OF LANDLORD’S OBLIGATIONS:	42
32.	SUBORDINATION:	42
33.	ARBITRATION:	42
34.	GRANTING OF EASEMENTS, ETC.:	46
35.	WAIVER OF TRIAL BY JURY	47
36.	RECORDING OF LEASE	47
37.	MISCELLANEOUS:	48
38.	TERMINATION OF ORIGINAL LEASE:	48

 

SCHEDULE A	DESCRIPTION OF LEASED PROPERTY; BASIC RENT SCHEDULE
SCHEDULE B	INTENTIONALLY OMITTED
SCHEDULE C	TERMINATION VALUES
SCHEDULE D	FORM OF ESTOPPEL CERTIFICATE
SCHEDULE E	PERMITTED ENCUMBRANCES
SCHEDULE F	FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

 

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LEASE AGREEMENT

 

THIS LEASE AGREEMENT (this “ Lease ”) is dated as of September     , 2003, between FIRST STATES INVESTORS 4100A, LLC (“ Landlord ”), a Delaware limited liability company, having an office c/o First States Group, L.P., 1725 The Fairway, Jenkintown, Pennsylvania 19046, and BANK OF AMERICA, N.A. (“ Tenant ”), a national banking association organized under the laws of the United States, having an office at 100 North Tryon Street, 52 nd  Floor, Charlotte, North Carolina 28255.

 

BACKGROUND OF AGREEMENT

 

WHEREAS , NCNB National Bank of North Carolina (the predecessor in interest to Tenant) and PREFCO III Limited Partnership (the predecessor in interest to PREFCO III Realty LLC) (“ Prefco ”) were parties to a certain Lease dated as of December 1, 1988 (as heretofore amended or modified, the “ Original Lease ”); and

 

WHEREAS , First States Group, L.P. has acquired the interest of Prefco, as landlord, in and to the Original Lease, and, with respect to the Leased Property hereinafter described in Article 2, has assigned such interest to Landlord; and

 

WHEREAS , Landlord has also acquired from Liberty North Carolina Inc. (the “ Remainderman ”) the interest of the Remainderman in the Leased Property, so that Landlord owns the entire fee interest in the land and improvements that constitute the Leased Property; and

 

WHEREAS , Landlord and Tenant desire to terminate the Original Lease as it pertains to the Leased Property and enter into this Lease for the purpose of setting forth their agreement respecting the Leased Property, all as more fully hereinafter set forth.

 

NOW, THEREFORE , in consideration of the mutual covenants and agreements herein contained and intending to be legally bound, Landlord and Tenant covenant and agree as follows:

 

1.             DEFINITIONS:

 

As used in this Lease the following terms have the meanings set forth below.  Defined terms used in the Background of Agreement above, but not defined below, shall have the meanings set forth in the Original Lease:

 

“ AAA ” shall have the meaning given to that term in Paragraph (d) of Article 33 hereof.

 

“ Additional Improvements ” shall have the meaning given to that term in Paragraph (a) of Article 12 hereof.

 

“ Additional Rent ” shall have the meaning given to that term in Paragraph (c) of Article 4 hereof.

 

 

“ Affiliate ” or “ Affiliates ” means any person or entity controlling, controlled by, or under common control with another such person or entity.  “ Control ” as used herein shall mean the possession, direct or indirect, or the power to direct or cause the direction, of the management and policies of such controlled person or entity.  The ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities of, or possession of the right to vote in, the ordinary direction of its affairs, more than fifty percent (50%) of the voting interest in, any person or entity shall be presumed to constitute such control.  In the case of Landlord (if Landlord is a partnership), the term Affiliate shall also include any person or entity controlling or controlled by or under common control with any general partner of Landlord or any general partner of Landlord’s general partner.

 

“ Aggregate FMRV Rent ” shall have the meaning given to that term in Paragraph (e)(i) of Article 4 hereof.

 

“ Alteration Threshold ” shall have the meaning given to that term in Paragraph (a) of Article 12 hereof.

 

“ Applicable Rate ” shall mean an annual rate of interest equal to the lesser of (i) the Prime Rate plus two percent (2%) and (ii) the maximum contract interest rate per annum allowed by North Carolina law.

 

“ Appraiser ” shall mean an independent professional real estate appraiser, MAI or equivalent, with at least ten (10) years’ experience appraising commercial real estate comparable to the Leased Property, who shall be associated with a nationally-recognized real estate services firm offering appraisal services, with local offices in the region where the Leased Property is located, and which firm is not under contract with or otherwise so associated with either Landlord or Tenant as to reasonably impair its or their ability to render impartial judgments (it being agreed that an Appraiser that performs residential or commercial property appraisals for Tenant in Tenant’s capacity as a mortgage lender shall not be disqualified from serving as an Appraiser solely as a result of such other relationship with Tenant).

 

“ Approval Matter ” shall have the meaning given to that term in Paragraph (b)(ii) of Article 33 hereof.

 

“ Arbitration Notice ” shall have the meaning given to that term in Paragraph (b)(i) of Article 33 hereof.

 

“ Bankruptcy Act ” shall mean Title 11 of the United States Code and any other Federal insolvency or similar law, now or hereafter in effect.

 

“ Base Price Index ” shall mean the CPI for September 2003.

 

“ Basic Rent ” shall have the meaning given to that term in Paragraph (a) of Article 4 hereof.

 

“ Binding ADR Dispute ” shall have the meaning given to that term in Paragraph (b)(ii) of Article 33 hereof.

 

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“ Business Day ” shall mean any day except Saturdays, Sundays, the days observed by the Federal, Commonwealth of Pennsylvania or State of North Carolina governments as public holidays, and days which Tenant observes as regularly scheduled bank holidays.

 

“ Casualty ” shall have the meaning given to that term in Paragraph (a) of Article 13 hereof.

 

“ CPI ” shall mean the Consumer Price Index published by the Bureau of Labor Statistics of the United States Department of Labor for “All Urban Consumers” in the table entitled “Consumer Price Index: United States City Average,” or any successor index thereto, all Items (1982-84=100) for the calendar year in question.  In the event that the CPI is converted to a different standard reference base or otherwise revised, the determination of amounts hereunder to be determined by reference to the CPI shall be made with the use of such conversion factor, formula or table for converting the CPI as may be published by the Bureau of Labor Statistics or, if not so published, then with the use of such conversion factor, formula or table as may be published by Prentice-Hall, Inc. or any other nationally recognized publisher of similar statistical information, or if a conversion factor, formula or table is unavailable, Landlord and Tenant shall agree on another method to adjust the CPI, or any successor thereto, to the figure that would have been arrived at had the manner of computing the CPI in effect on the date of this Lease not been altered. If Landlord and Tenant fail to agree upon a conversion factor, formula, table or other method, the matter will be submitted for resolution by a nationally recognized firm of certified public accountants selected by Landlord and approved by Tenant, which approval shall not be unreasonably withheld, at Tenant’s expense.

 

“ Commencement Date ” shall mean September     , 2003, or such later date as Landlord shall acquire title to the Leased Property from Prefco.

 

“ Condemnation ” shall have the meaning given to that term in Paragraph (a) of Article 13 hereof.

 

“ Contaminated Property ” shall have the meaning given to that term in Paragraph (e) of Article 10 hereof.

 

“ Depository ” shall have the meaning given to that term in Paragraph (d) of Article 13 hereof.

 

“ Environmental Laws ” shall mean and include the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, Clean Air Act, the Federal Insecticide, Fungicide and Rodenticide Act and all applicable federal, state and local environmental laws, ordinances, rules, regulations and publications, as any of the foregoing may have been or may be from time to time amended, supplemented or supplanted, and any other federal, state or local laws, ordinances, rules, regulations and publications, now or hereafter existing relating to regulation or control of toxic or hazardous substances or materials.

 

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“ Equipment ” shall have the meaning given to that term in Article 2 hereof, but shall not include any Tenant’s Equipment.

 

“ Event of Default ” shall have the meaning given that term in Paragraph (a) of Article 23 hereof.

 

“ Fair Market Purchase Value ” shall mean the fair market purchase sale value, as of the date the determination is made, that would be obtained in an arm’s-length purchase and sale agreement between an informed and willing seller and an informed and willing buyer, neither of whom is under any compulsion to enter into such transaction.

 

“ Fair Market Rental Value ” shall mean the fair market rental value, as of the date the determination is made, that would be obtained in an arm’s-length bond net lease between an informed and willing tenant (other than a tenant in possession) and an informed and willing landlord, neither of whom is under any compulsion to enter into such transaction, for properties comparable in size, location and quality to the Leased Property, for an equivalent term.  Such Fair Market Rental Value shall be calculated assuming that (i) the Leased Property is in the condition and state of repair required under the Lease, (ii) Tenant is in compliance with the requirements of the Lease and (iii) Tenant will accept the Leased Property in “AS-IS” condition.

 

“ FDIC ” shall have the meaning given to that term in Paragraph (a) of Article 15 hereof.

 

“ Force Majeure Events ” means events beyond Landlord’s or Tenant’s (as the case may be) control, which shall include, without limitation, all labor disputes, governmental regulations or controls, war, fire or other casualty, inability to obtain any material or services, acts of God, or any other cause not within the reasonable control of Landlord or Tenant (as the case may be).

 

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

 

“ Hazardous Substance ” shall mean and include any, each and all substances or materials regulated pursuant to any Environmental Laws, including, but not limited to, any such substance, emission or material now or hereafter defined as or deemed to be a regulated substance, hazardous substance, toxic substance, pesticide, hazardous waste or any similar or like classification or categorization, thereunder.

 

“ Improvements ” shall have the meaning given to that term in Article 2 hereof.

 

“ Indemnitee ” shall have the meaning given to that term in Paragraph (g) of Article 10 hereof.

 

“ Initial Term ” shall have the meaning given to that term in Paragraph (a) of Article 3 hereof.

 

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

 

“ Land ” shall have the meaning given to that term in Article 2 hereof.

 

“ Landlord’s mortgagee ” shall mean any institutional lender that holds a mortgage or deed of trust given by Landlord which encumbers Landlord’s interest in the Leased Property.

 

“ Leased Property ” shall have the meaning given to that term in Article 2 hereof.  Each time there is an addition to, substitution, subtraction from or other change in the configuration of the Leased Property as herein provided, including, without limitation, pursuant to Article 13(c) (Casualty or Condemnation) and Article 16 (Purchase and Sale), Landlord and Tenant shall execute an amendment to Schedule A of this Lease.

 

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

 

“ Litigating Party ” shall have the meaning given to that term in Paragraph (f) of Section 23 hereof.

 

“ Major Dispute ” shall have the meaning given to that term in Paragraph (b)(iii) of Article 33 hereof.

 

“ Maximum Renewal Term Basic Rent ” shall have the meaning given to that term in Paragraph (e)(i) of Article 4 hereof.

 

“ Net Award ” shall mean the entire award, compensation, insurance proceeds or other payment, if any, on account of any Condemnation or Casualty, less any expenses (including, but not limited to, reasonable attorneys’ fees and expenses) incurred by Landlord in collecting such award, compensation, insurance proceeds or other payment and not paid (or reimbursed to Landlord) by Tenant pursuant to Article 13 hereof.

 

“ OCC ” shall have the meaning given to that term in Paragraph (a) of Article 15 hereof.

 

“ OTS ” shall have the meaning given to that term in Paragraph (a) of Article 15 hereof.

 

“ Permitted Encumbrances ” shall mean, with respect to the Leased Property: (a) rights reserved to or vested in any public authority by the terms of any right, power, franchise, grant, license, permit or provision of law affecting the Leased Property, to (i) terminate such right, power, franchise, license or permit, provided that the exercise of such right would not materially impair the use of the Leased Property or materially and adversely affect the value thereof, or (ii) purchase, condemn, appropriate or recapture, or designate a purchaser of, the Leased Property or any portion thereof; (b) any liens thereon for taxes, assessments, fees and other governmental and similar charges referred to in Article 7 of this Lease, and any liens of mechanics, materialmen and laborers for work or services performed or material furnished in connection with the Leased Property, which are not due and payable, or which are not delinquent to the extent that penalties for nonpayment may be assessed, or the

 

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amount or validity of which are being contested as permitted by Paragraph (d) of Article 7 hereof; (c) easements, rights-of-way, servitudes, restrictions and other minor defects, encumbrances and irregularities in the title to the Leased Property which do not materially impair the use of the Leased Property or materially and adversely affect the value thereof; (d) rights reserved to or vested in any public authority to control or regulate or use the Leased Property, which rights do not materially impair the.  use of the Leased Property or materially and adversely affect the value thereof; (e) any mortgage affecting Landlord’s interest in the Leased Property and any assignment of this Lease as further security for the note or notes secured thereby; and (f) the matters affecting title set forth in Schedule E hereto.

 

“ Prime Rate ” shall mean the “prime rate” announced by Bank of America, N.A., or its successor, from time to time (or if the Prime Rate is discontinued, the rate announced as that being charged to said bank’s most credit-worthy commercial borrowers).

 

“ Renewal Option(s) ” shall have the meaning given to that term in Paragraph (b) of Article 3 hereof.

 

“ Renewal Option Notice Date ” shall mean, with respect to a Renewal Option, the date on which Tenant sends written notice of exercise of such Renewal Option to Landlord as provided in Paragraph (c) of Article 4 hereof.

 

“ Renewal Property ” shall have the meaning given to that term in Paragraph (b) of Article 3 hereof.

 

“ Renewal Term(s) ” shall have the meaning given to that term in Paragraph (b) of Article 3 hereof.

 

“ Rent ” means annual Basic Rent and Additional Rent.

 

“ Rent Payment Date ” shall have the meaning given to that term in Paragraph (a) of Article 4 hereof.

 

“ Requesting Party ” shall have the meaning given to that term in Paragraph (a)(i) of Article 33 hereof.

 

“ Responding Party ” shall have the meaning given to that term in Paragraph (a)(i) of Article 33 hereof.

 

“ SEC ” shall mean the Securities and Exchange Commission.

 

“ Tenant’s Equipment ” shall mean computer systems, automated teller machines, bank security systems including closed circuit television systems, safe deposit boxes, modular vaults, teller equipment, counters (excluding undercounter steel and equipment), shelving, signs, surrounds, modular furniture, furniture, drive-up motor bank equipment, satellite communications equipment including antennas, trade fixtures, machinery, equipment and other property of Tenant now or hereafter used or useful in connection with Tenant’s business.

 

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“ Tenant’s Minimum Credit Rating ” shall have the meaning given to that term in Paragraph (e)(i) of Article 10 hereof.

 

“ Tenant’s Loss ” shall have the meaning given to that term in Paragraph (a) of Article 13 hereof.

 

“ Term ” shall mean the Initial Term, plus any Renewal Term which may be effected pursuant to Article 3 hereof.

 

“ Termination Date ” shall have the meaning given to that term in Paragraph (c) of Article 13 hereof.

 

“ Termination Value ” shall have the meaning given to that term in Paragraph (c) of Article 13 hereof.

 

“ Third Party Offer ” shall have the meaning given to that term in Article 16 hereof.

 

2.             DEMISE; TITLE; CONDITION:

 

In consideration of the agreements and provisions of this Lease hereinafter stipulated to be observed and performed by Tenant, Landlord hereby demises and lets to Tenant, and Tenant hereby leases from Landlord, subject to the terms and conditions hereinafter set forth, for the term described in Article 3 hereof, those certain parcels of land (the “ Land ”) described in Schedule A annexed hereto, together with all buildings, structures and improvements (the “ Improvements ”) thereon, and all easements and appurtenances thereto, and all other facilities, fixtures, machinery, apparatus, installations, equipment and other property used in connection with the maintenance and operation of the Improvements, including, but not limited to, all heating, ventilating, air conditioning, plumbing, and electrical equipment, lighting and lighting equipment, elevators and escalators, non-bank security systems, vault doors, teller counters, cages and undercounter steel, drive-up motor bank facilities, night depository boxes, security system wiring, utility lines, refuse facilities, waste removal systems, generators, transformers, cooling towers, maintenance depots, power plants, storage tanks, fire pumps, fire control, sprinkler and stand pipe systems, emergency power and automatic transfer switches, air conditioning units, building and site controls, sewerage facilities, automated mail distribution systems and all associated piping, wiring, conduits, feeders, tracks, plumbing, drainage facilities and all other property owned by Landlord and now or hereafter located on the Land and used or procured for use in connection with the Improvements (collectively the “ Equipment ”; the Land, the Improvements and the Equipment being hereinafter referred to individually or collectively from time to time as the context requires as the “ Leased Property ”).  The Leased Property shall exclude Tenant’s Equipment, which is, and shall remain, the property of Tenant.

 

The Leased Property is demised and let in its present condition without representation or warranty by Landlord, subject to (a) the rights of any parties in possession thereof, (b) the Permitted Encumbrances, (c) any state of facts which an accurate survey or physical inspection might show, (d) all applicable laws, rules, regulations, ordinances and restrictions now in effect, and (e) any violations of such laws, rules, regulations, ordinances and restrictions which may

 

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exist at the commencement of the Term of this Lease.  Tenant has examined the Leased Property and has found the same to be satisfactory.

 

Tenant acknowledges that Tenant is fully familiar with the physical condition of the Leased Property and that Landlord makes no representation or warranty, express or implied, with respect to same or the location, use, description, design, merchantability, fitness for use for a particular purpose, condition or durability thereof, or as to quality of the material or workmanship therein, or otherwise; and all risks incidental to the Leased Property shall be borne by Tenant to the extent of matters which arise during the Term of this Lease.  Landlord leases and Tenant accepts the Leased Property as is with all faults and in the event of any defect or deficiency of any nature in the Leased Property or any fixture or other item constituting a portion thereof, whether patent or latent, neither Landlord nor Landlord’s mortgagee shall have any responsibility or liability with respect thereto.  THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION BY LANDLORD OF, AND LANDLORD DOES HEREBY DISCLAIM ANY AND ALL WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED PROPERTY OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.

 

3.             TERM; RENEWAL OPTION:

 

(a)           Subject to the provisions hereof, Tenant shall have and hold the Leased Property for an initial term (“ Initial Term ”) which shall begin on the Commencement Date and shall end on the last day of the month in which the twentieth (20th) anniversary of the Commencement Date occurs.  Except as otherwise expressly noted, the Term of this Lease shall also include any Renewal Term(s) properly exercised by Tenant as hereinafter provided.

 

(b)           Provided that no Event of Default shall have occurred and be continuing and subject to the conditions hereinafter set forth, Tenant is hereby granted options (individually, a “ Renewal Option ” and, collectively, the “ Renewal Options ”) to renew the Term of this Lease for one or more Leased Properties which remain subject to this Lease at the time of notice and at the time of renewal (each Leased Property for which a Renewal Option is exercised by Tenant, a “ Renewal Property ”; and if more than one, the “ Renewal Properties ”) for up to thirty (30) years in consecutive periods of not less than five (5) years (nor more than ten (10) years) each, as determined by Tenant in its sole discretion (individually, a “ Renewal Term ” and collectively the “ Renewal Terms ”); provided that the Term of this Lease shall not extend for more than fifty (50) years, beginning on the Commencement Date of this Lease.  Tenant shall not have the right to exercise its option to renew this Lease for any one or more Renewal Properties for more than one (1) Renewal Term at a time.  All of the terms, conditions, covenants and agreements contained herein shall continue with equal force and effect with respect to any Renewal Terms created by the proper exercise by Tenant of its option to renew as contained herein; provided that the Basic Rent for each Renewal Property shall be determined as provided in Paragraph (e) of Article 4 below.

 

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on or before the fifth (5th) day following the Rent Payment Date, and such amount shall remain unpaid for more than five (5) days after Tenant’s receipt of written notice that such amount is past due, then Tenant shall pay to Landlord a late charge equal to two and one half (2½%) percent of the past due installment of Basic Rent, and (ii) in the event any payment of Additional Rent is not received by Landlord within five (5) days after Tenant’s receipt of written notice that such amount is past due, then Tenant shall pay to Landlord an additional charge in an amount equal to the lesser of Two Thousand Five Hundred Dollars ($2,500.00) or one percent (1%) of the overdue amount.  Any notice of overdue payment for which Tenant shall be subject to a late charge shall state, in all capital letters (or other prominent display), that Tenant’s failure to remit payment by the appointed date shall result in the imposition of a late charge.  Landlord may not send any such notice of overdue payment to Tenant prior to the fifth (5th) day following the date such payment is due, and if any such premature notice is sent, it shall be deemed to have been sent on the fifth (5th) day following the date such payment was due.  Notwithstanding the foregoing, Tenant shall not be obligated to pay a late charge on installments of Rent to the extent that Tenant’s payment is deficient by an amount that is less than or equal to one percent (1%) of the total amount due; provided that Tenant shall remit the amount of the deficiency promptly upon and, in any extent, within five (5) Business Days following Tenant’s receipt of written notice from Landlord that the same is past due.  All additional charges described herein are not intended as a penalty, but are intended to liquidate the damages so occasioned to Landlord and to reimburse Landlord for Landlord’s additional costs in processing such late payment, which amounts shall be added to the Rent then due.

 

(e)            Rent During Renewal Term .

 

(i)              The annual Basic Rent to be paid by Tenant for each Renewal Property during a Renewal Term shall equal the Fair Market Rental Value of such Renewal Property during such Renewal Term as determined by the parties or, in the absence of their agreement, determined by appraisal as expressed below; provided that (i) during the first Renewal Term immediately following the expiration of the Initial Term, the annual Basic Rent payable for all Renewal Properties, computed on an aggregate basis, shall not exceed one hundred ten percent (110%) of the annual Basic Rent payable by Tenant for all Renewal Properties immediately prior to the commencement of such first Renewal Term, computed on an aggregate basis, and (ii) during the second and all subsequent Renewal Terms, the annual Basic Rent payable for all Renewal Properties shall not exceed one hundred five percent (105%) of the annual Basic Rent payable by Tenant for all Renewal Properties immediately prior to the commencement of such Renewal Term, computed on an aggregate basis (the maximum aggregate annual Basic Rent as so determined, the “ Maximum Renewal Term Basic Rent ”).  If the aggregate Fair Market Rental Values of the Renewal Properties (collectively, the “ Aggregate FMRV Rent ”) exceeds the Maximum Renewal Term Basic Rent, the Fair Market Rental Values of the Renewal Properties shall be proportionately reduced by multiplying each such Fair Market Rental Values by a fraction, expressed as a decimal, the numerator of which is the Maximum Renewal Term Basic Rent and the denominator of which is the Aggregate FMRV Rent, so that the annual Basic Rent for the Renewal Properties shall, in the aggregate, equal the Maximum Renewal Term Basic Rent.

 

(ii)             Within thirty (30) days following the Renewal Option Notice Date, Landlord shall deliver to Tenant a proposal setting forth Landlord’s determination of the Fair

 

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Market Rental Value for the Renewal Properties during the applicable Renewal Term.  For thirty (30) days thereafter, Landlord and Tenant shall negotiate in good faith to reach agreement as to the Fair Market Rental Value for the Renewal Properties.  Tenant’s leasing of the Renewal Properties shall be upon the same terms and conditions as set forth in this Lease, except (A) the annual Basic Rent during the Renewal Term shall be determined as specified in Paragraphs (e)(i) and (e)(iii) of this Article 4 and (B) the leasehold improvements for the space in question will be provided in their existing condition, on an “AS-IS” basis at the time the Renewal Term commences.  Once established, the annual Basic Rent for the applicable Renewal Term will remain fixed for each Renewal Term, and be paid annually in advance on the Rent Payment Date.

 

(iii)            If Landlord and Tenant are unable to reach a definitive agreement as to the Fair Market Rental Value applicable to the Renewal Properties within sixty (60) days following the Renewal Option Notice Date, the Fair Market Rental Value will be submitted for resolution in accordance with the provisions of this Article 4(e)(iii).  Within seventy-five (75) days following the Renewal Option Notice Date (or, if later, within fifteen (15) days following the date on which either Landlord or Tenant notifies the other party in writing that such notifying party desires to have the annual Basic Rent for a Renewal Term determined by appraisal), Landlord and Tenant shall each select and engage an Appraiser to determine the Fair Market Rental Value of the Renewal Properties.  If either party fails to select and engage an Appraiser within such time, if such failure continues for more than five (5) Business Days following such party’s receipt of written notice that states in all capital letters (or other prominent display) that such party has failed to select an Appraiser as required under the Lease and will be deemed to have waived certain rights granted to it under the Lease unless it selects an Appraiser within five (5) Business Days, the Fair Market Rental Value will be determined by the Appraiser engaged by the other party.  Each Appraiser shall prepare an appraisal report and submit it to both Landlord and Tenant within thirty (30) days following the date on which the last Appraiser was selected.  If the higher of the two appraisals of Fair Market Rental Value does not exceed one hundred five percent (105%) of the lower of the two appraisals of Fair Market Rental Value, then the average of the two (2) appraisals shall be the Fair Market Rental Value for the Renewal Property.  If the higher of the two appraisals of Fair Market Rental Value exceeds one hundred five percent (105%) of the lower of the two appraisals of Fair Market Rental Value, then within seven (7) days after receipt by Landlord and Tenant of both appraisal reports, the Appraisers selected by Landlord and Tenant shall agree on a third Appraiser to determine Fair Market Rental Value.  The third Appraiser shall not perform a third appraisal, but shall, within ten (10) days after his or her designation, select one (1) of the two (2) appraisals already performed, whichever of the two appraisals the third Appraiser determines to be closest to Fair Market Rental Value, as the controlling determination of the Fair Market Rental Value.  The decision of the third Appraiser shall be conclusive, and, subject to the limitations expressed in Paragraph (e)(i) of this Article 4, shall be the Fair Market Rental Value for the Renewal Properties for the Renewal Term.  Each party shall pay the costs of its Appraiser and one-half of the cost of the third Appraiser.  The instructions to the Appraisers with respect to the determination of the Fair Market Rental Value applicable to such space will be to determine the Fair Market Rental Value for such space as of the relevant Renewal Term, assuming that such space will be leased on an “AS-IS” basis.  Within thirty (30) days following the determination of the Fair Market Rental Value, Tenant shall elect one (1) of the following options:  (A) to revoke the exercise of the subject Renewal Option, in which event, the Term of this Lease for the Leased Properties to which the notice of

 

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revocation applies shall automatically, and without further action of Landlord or Tenant, expire on the later of (1) the expiration of the then existing Term of this Lease or (2) the last day of the calendar month that is six (6) months following the month in which Tenant’s notice of revocation was given to Landlord or (B) to renew the Lease at the rate to be determined in accordance with this Article 4(e)(iii) after the Fair Market Rental Value has been determined by appraisal.  If Tenant fails to exercise any of the foregoing options within the thirty (30) day period, Tenant shall be deemed to have elected option (A).  If Tenant has elected option (B), Tenant thereby shall have irrevocably exercised its right to renew the Term and Tenant may not thereafter withdraw the exercise of the Renewal Option; in such event the renewal of this Lease (as to the Renewal Properties) shall be upon the same terms and conditions of this Lease, except (i) the annual Basic Rent during the Renewal Term shall be determined in accordance with the foregoing provisions and (ii) the leasehold improvements for the space in question will be provided in their existing condition, on an “AS-IS” basis at the time the Renewal Term commences.  If the annual Basic Rent for a Renewal Term has not been determined prior to the commencement of such Renewal Term, Tenant shall pay to Landlord as of the commencement of the Renewal Term the same annual Basic Rent as Tenant was paying immediately prior to the commencement of the Renewal Term, subject to adjustment upon final determination.  Once established, the annual Basic Rent for the Renewal Term will remain fixed for each Renewal Term, and be paid annually in advance on the Rent Payment Date.

 

(iv)           Notwithstanding anything to the contrary contained in this Article 4(e), subject to the provisions of Paragraph (b) of Article 3 above, Tenant’s failure to give the required renewal notice with respect to the Leased Properties in conformity with the requirements of Paragraph (c) of Article 3 above shall render the upcoming and all subsequent Renewal Options for such Leased Properties, if there by any, null and void.

 

5.              USE:

 

Tenant may use each Leased Property as a branch bank or for administrative office purposes or for other activities permitted under applicable banking laws; or for any purpose not prohibited by law and by any certificate of occupancy provided that any such use or uses shall not materially reduce the fair market value of such Leased Property nor increase by more than a de minimis amount the risk of contamination by any toxic or hazardous substances or in violation of Environmental Laws, or result in any increased risk of liability to Landlord, in Landlord’s reasonable judgment, and provided, further, that any and all alterations and improvements to each Leased Property shall be subject to the terms, conditions and limitations contained in Article 12, below.  It is expressly agreed by Landlord that Tenant’s ceasing to do business in a Leased Property and vacating a Leased Property shall not constitute an Event of Default hereunder so long as such Leased Property continues to be maintained by Tenant as otherwise required by the terms hereof.

 

6.              NET LEASE; NONTERMINABILITY:

 

(a)             Tenant to Pay All Costs .  This Lease is a “net lease” and Tenant’s obligations arising or accruing during the Term of this Lease to pay all Basic Rent, Additional Rent, and all other payments hereunder required to be made by Tenant shall be absolute and unconditional, and Tenant shall pay all Basic Rent, Additional Rent and all other payments

 

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hereunder required to be made by Tenant without notice, demand, counterclaim, set-off, deduction, or defense, and without abatement, suspension, deferment, diminution or reduction, free from any charges, assessments, impositions, expenses or deductions of any and every kind or nature whatsoever.  All costs, expenses and obligations of every kind and nature whatsoever relating to the Leased Property and the appurtenances thereto and the use and occupancy thereof which may arise or become due and payable with respect to the Term of this Lease (whether or not the same shall become payable during such Term or thereafter) shall be paid by Tenant, and Landlord shall be indemnified, defended and saved harmless by Tenant from and against the same other than by reason of Landlord’s willful misconduct or negligence.  Tenant assumes the sole responsibility for the condition, use, operation, maintenance, underletting and management of the Leased Property, and Tenant shall indemnify, defend and hold Landlord harmless from and against any and all liability, costs, damages, losses and claims (including reasonable attorneys’ fees and expenses) in respect thereof, except as caused by the negligence or willful misconduct of Landlord, and Landlord shall have no responsibility in respect thereof and shall have no liability for damage to the property of Tenant or any subtenant of Tenant on any account or for any reason whatsoever, except as caused by the negligence or willful misconduct of Landlord.  Without limiting the generality of the foregoing, during the Term of this Lease Tenant shall perform all of the obligations of the sublessor under any sublease affecting all or any part of the Leased Property which Tenant may hereafter enter into as sublessor.

 

(b)            Nonterminability .  Except as otherwise expressly provided herein, this Lease shall not terminate, nor shall Tenant have any right to terminate this Lease or to be released or discharged from any obligations or liabilities hereunder for any reason, including, without limitation: (i) any damage to or destruction of any Leased Property; (ii) any restriction, deprivation or prevention of, or any interference with, any use or the occupancy of any Leased Property; (iii) any Condemnation, requisition or other taking or sale of the use, occupancy or title to any Leased Property; (iv) any action, omission or breach on the part of Landlord under this Lease or under any other agreement between Landlord and Tenant; (v) the inadequacy or failure of the description of any Leased Property to demise and let to Tenant the property intended to be leased hereby; (vi) Tenant’s acquisition of ownership of any Leased Property, or any sale or other disposition of a Leased Property; (vii) the impossibility or illegality of performance by Landlord or Tenant or both; or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future law notwithstanding.

 

(c)             Bankruptcy; Tenant to Remain Liable .  Tenant will remain obligated under this Lease in accordance with its terms, and will not take any action to terminate (except in accordance with the express provisions of Article 13 hereof), rescind or avoid this Lease for any reason, notwithstanding any bankruptcy, insolvency, reorganization, liquidation, dissolution or other proceeding affecting Landlord or any assignee of Landlord, or any action with respect to this Lease which may be taken by any receiver, trustee or liquidator or by any court.  Tenant waives all rights at any time conferred by statute or otherwise to quit, terminate or surrender this Lease or the Leased Property, or to any abatement or deferment of any amount payable by Tenant hereunder, or for damage, loss or expense suffered by Tenant on account of any cause referred to in this Article 6 or otherwise, or for damage, loss or expense suffered by Tenant on account of any cause referred to in this Article 6 or otherwise.

 

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7.              TAXES AND OTHER CHARGES; LAW AND AGREEMENTS:

 

(a)            Taxes, Assessments .  Tenant shall pay and discharge, not later than the last day upon which the same may be paid without interest or penalty, all taxes, assessments, levies, fees, water and sewer rents and other governmental and similar charges, general and special, ordinary or extraordinary, and any interest and penalties thereon, which are levied or assessed and become due and payable with respect to the Term of this Lease, whether or not the same become payable during the Term of this Lease (including all of the taxes, assessments, levies, fees, water and sewer rents and other governmental charges for the year in which this Lease is executed which are now a lien but not yet due and payable) against (i) Landlord and which relate to Landlord’s ownership of the Leased Property, the use and occupancy of the Leased Property or the transactions contemplated by this Lease, (ii) Landlord’s mortgagee and which are imposed in respect of Landlord’s mortgagee’s interest in the Leased Property, the use and occupancy of the Leased Property or the transactions contemplated by this Lease, (iii) the Leased Property or the interest of Tenant or Landlord therein, (iv) Basic Rent, Additional Rent or any other amount payable by Tenant hereunder, (v) this Lease or the interest of Tenant or Landlord hereunder, (vi) the use, occupancy, construction, repair or rebuilding of the Leased Property or any portion thereof, or (vii) gross receipts from the Leased Property.  If any tax or assessment levied or assessed against the Leased Property may legally be paid in installments, Tenant shall have the option to pay such tax or assessment in installments.  Nothing in this Lease shall require payment by Tenant of any franchise, estate, inheritance, succession, transfer, net income or profits taxes of Landlord or Landlord’s mortgagee, unless such tax is in lieu of or a substitute for any other tax or assessment upon or with respect to the Leased Property, which, if such other tax or assessment were in effect, would be payable by Tenant hereunder.  Tenant shall furnish to Landlord, promptly, and in any event within sixty (60) days after payment thereof, at Landlord’s request, proof of the payment of any such tax, assessment, levy, fee, rent or charge which is payable by Tenant, subject to Tenant’s right to contest such charges pursuant to Article 7(d) hereof.  Such taxes, assessments, levies, fees, water and sewer rents and other governmental charges shall be apportioned between Landlord and Tenant as of the date on which this Lease terminates or expires.

 

(b)            Utility Charge .  Tenant shall pay all charges for utility, communication and other services rendered or used on or about the Leased Property during the Term of this Lease, whether or not payment therefor shall become due after the Term of this Lease.

 

(c)            Compliance with Laws .  Tenant shall at all times during the Term of this Lease, at Tenant’s own cost and expense, perform and comply with, and shall use its reasonable efforts to cause its agents, visitors and invitees to comply with, all Legal Requirements relating to the Leased Property, or the Improvements thereon, or the facilities or equipment thereon or therein, or the streets, sidewalks, vaults, vault spaces, curbs and gutters adjoining the Leased Property, or the appurtenances to the Leased Property, or the franchises and privileges connected therewith, whether or not such Legal Requirements so involved shall necessitate structural changes, improvements, interference with use and enjoyment of the Leased Property, replacements or repairs, extraordinary as well as ordinary, and Tenant shall so perform and comply, whether or not such Legal Requirements shall now exist or shall hereafter be enacted or promulgated, and whether or not such Legal Requirements can be said to be within the present contemplation of the parties hereto.

 

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(d)            Contest Charges and Compliance .  Tenant shall have the right to contest, by appropriate legal proceedings, any tax, charge, levy, assessment, lien or other encumbrance, and/or any Legal Requirement affecting the Leased Property, and to postpone payment of or compliance with the same during the pendency of such contest; provided that in the event of such postponement or payment or noncompliance: (i) Tenant shall not postpone the payment of any such tax, charge, levy, assessment, lien or other encumbrance for such length of time as shall permit the Leased Property, or any lien thereon created by such item being contested, to be sold by federal, state, county or municipal authority for the non-payment thereof; (ii) Tenant shall not postpone compliance with any such Legal Requirement if Landlord will thereby be subject to civil liability or criminal prosecution, or if any Governmental Authority shall commence a process according to applicable law to carry out any work to comply with the same or to foreclose or sell any lien affecting all or part of the Leased Property which shall have arisen by reason of such postponement or failure of compliance; and (iii) Tenant shall pay, in a timely fashion, all Basic Rent and Additional Rent (other than any item of Additional Rent that Tenant is permitted to contest pursuant to this Lease, so long as Tenant satisfies all of the requirements of this Lease relating to such contest) which shall become due and payable under this Lease.  At the request of Tenant, Landlord agrees to cooperate with Tenant in connection with any such contest, provided that Tenant pays all reasonable expenses, including reasonable attorneys’ fees, incurred by Landlord in connection with any such contest.

 

8.              LIENS:

 

Tenant will promptly, but no later than sixty (60) days after receipt of actual notice of the filing thereof, remove and discharge of record, by bond or otherwise, any charge, lien, security interest or encumbrance upon the Leased Property, or any Basic Rent, or Additional Rent which arises for any reason, including all liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Leased Property or by reason of labor or materials furnished or claimed to have been furnished to Tenant for the Leased Property, but not including any Permitted Encumbrances.  Nothing contained in this Lease shall be construed as constituting the consent or request of Landlord, 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 Leased Property or any part thereof.  Notice is hereby given that Landlord will not be liable for any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding an interest in the Leased Property or any part thereof through or under Tenant, and that no mechanics’ or other liens for any such labor, services or materials shall attach to or affect the interest of Landlord in and to the Leased Property.  In the event of the failure of Tenant to discharge any charge, lien, security interest or encumbrance as aforesaid, Landlord may discharge such items by payment or bond or both, and Tenant will repay to Landlord, upon demand, any and all amounts paid by Landlord therefor, or by reason of any liability on such bond, and also any and all incidental expenses, including reasonable attorneys’ fees, incurred by Landlord in connection therewith.

 

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9.              INDEMNIFICATION; FEES AND EXPENSES:

 

(a)            Indemnification by Tenant .  Tenant shall pay, and shall protect, defend, indemnify and hold Landlord and Landlord’s mortgagee harmless from and against all liabilities, losses, damages, costs, expenses (including reasonable attorneys’ fees and expenses), claims, demands or judgments of any nature arising from or in connection with the following events to the extent such events arise during the Term of this Lease: (i) any injury to, or the death of, any person or any damage to or loss of property on the Leased Property or growing out of or directly or indirectly connected with the ownership by Landlord, use, nonuse, occupancy, construction, repair or rebuilding of the Leased Property (or adjoining property, to the extent that any loss or damage to adjoining property arises from or out of the Leased Property), or resulting from the condition thereof, other than any injury, death, damage or loss arising out of Landlord’s or Landlord’s mortgagee’s willful misconduct or negligence; and (ii) violation by Tenant of any provision of this Lease whether or not such violation results in a violation of any provision of any mortgage affecting Landlord’s interest in the Leased Property, or of any law, rule, regulation, ordinance or restriction, now or hereafter in effect and affecting the Leased Property, or of any lease or other agreement relating to the Leased Property now or hereafter in effect to which Tenant is a party or by which Tenant is bound, or of any agreement of which Tenant now has actual or constructive notice and which is now in effect, affecting the Leased Property or the ownership by Landlord, use, nonuse, occupancy, construction, repair or rebuilding thereof.

 

(b)            Notice; Proceedings .  Should any event occur for which any party hereto is entitled to indemnification pursuant to this Article 9 or other provisions of this Lease, such party shall provide prompt written notice to the other parties describing the nature of such claim. The indemnifying party may assume responsibility for any action to be taken to contest the claim provided that the indemnifying party will notify the indemnitees in writing of its intention to contest such claim within thirty (30) days after receipt of notice of the claim from the indemnitees. The indemnifying party, at its sole expense, may control all proceedings relating to such contest. The indemnitees will cooperate with the indemnifying party in contesting such claim, provided that the indemnifying party indemnifies and holds harmless the indemnitees for all reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) relating to contesting such claim.

 

10.            ENVIRONMENTAL MATTERS:

 

(a)             Representations and Covenants .  Tenant represents, covenants and warrants to Landlord that:

 

(i)             at all times during the Term of this Lease Tenant and the Leased Property shall comply in all material respects with all Environmental Laws;

 

(ii)            to the best of Tenant’s knowledge, no notices, complaints or orders of violation or non-compliance of any nature whatsoever have been issued to Tenant or, to the best of Tenant’s knowledge, any current or prior tenant or owner of the Leased Property, and no federal, state or local environmental investigation is pending or overtly

 

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threatened, with regard to the Leased Property or any use thereof or any alleged violation of Environmental Laws with regard to the Leased Property;

 

(iii)           the Leased Property has not been used by Tenant or, to the best of Tenant’s knowledge, by any prior owner, and will not be used by Tenant at any time during the Term of this Lease to generate, manufacture, refine, produce, or process any Hazardous Substance or to store, handle, transfer or transport any Hazardous Substance other than routine uses of products in lawful quantities in compliance with Environmental Laws;

 

(iv)           to the best of Tenant’s knowledge, no underground storage tanks or surface impoundments are constructed, operated or maintained on or under the Leased Property;

 

(v)            to the best of Tenant’s knowledge, the Leased Property is and at all times during the Term of this Lease will be maintained free of Hazardous Substances, the removal of which is required or the maintenance of which is prohibited or penalized by Environmental Law; and

 

(vi) to the best of Tenant’s knowledge, the Leased Property contains no Hazardous Substances or friable asbestos which could materially adversely affect any person, the environment or the Leased Property or in any case or in the aggregate, could impose a material liability on Landlord or Landlord’s mortgagee, and if any Leased Property contains friable asbestos, Tenant shall comply with Paragraph (f) of this Article 10 below.

 

For purposes of this Article 10(a), the phrase “to the best of Tenant’s knowledge” means the actual, current awareness, as of the date of this Lease, of Michael F. Hord, Associate General Counsel of Tenant, Chuck Dunn, Senior Vice President of Trammell Crow Corporate Services, Inc., and Jeffrey W. Dixon, Senior Vice President — Property Management of Tenant, without independent investigation or inquiry.

 

(b)             Environmental Covenants . Tenant covenants that during the Term of this Lease it (i) shall comply, and cause the Leased Property to comply, with all Environmental Laws applicable to the Leased Property, (ii) shall prohibit the use of the Leased Property for the generation, manufacture, refinement, production, or processing of any Hazardous Substance or for the storage, handling, transfer or transportation of any Hazardous Substance (other than in connection with the operation and maintenance of the Leased Property and in commercially reasonable quantities as a consumer thereof and in compliance with Environmental Laws), (iii) shall not install or permit the installation on the Leased Property of any underground storage tanks or surface impoundments and shall not permit there to exist any petroleum contamination in violation of applicable Environmental Laws to the Leased Property originating on or off the Leased Property (other than in connection with the use, operation and maintenance of the Leased Property and then only in compliance with applicable Environmental Laws and all other applicable laws, rules, orders, ordinances, regulations and requirements now or hereafter enacted or promulgated of every government and municipality having jurisdiction over the Leased Property and of any agency thereof) or asbestos-containing materials in violation of applicable

 

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Environmental Laws and (iv) shall cause any alterations of the Leased Property to be done in a way so as to not expose the persons working on or visiting the Leased Property to Hazardous Substances and in connection with any such alterations shall remove any Hazardous Substances present upon the Leased Property which are not in compliance with Environmental Laws or which present a danger to persons working on or visiting the Leased Property.  With respect to any violation of applicable Environmental Laws related to the Leased Property caused by Hazardous Substances originating off of the Leased Property and not generated therefrom by Tenant, its agents, employees or contractors, Landlord authorizes Tenant to institute any action against the party responsible for such violation.  So long as Tenant is diligently pursuing all available recourse against the party responsible for such violation, and so long as such violation does not pose a risk to public health, materially threaten the use of the Leased Property or the value thereof, or expose Landlord or Landlord’s mortgagee, in any manner, to any claim or liability, Tenant may defer taking remedial measures to correct the violation caused by Hazardous Substances originating off of the Leased Property; provided that such period of deferral may be terminated by Landlord or Landlord’s mortgagee at any time if either Landlord or Landlord’s mortgagee, each in its sole and absolute discretion, believes that the public health, the use of the Leased Property or the value thereof are threatened by such violation or such Hazardous Substances.  In no event shall the ability to defer remedial measures relieve Tenant of the responsibility therefor, which responsibility shall expressly survive the expiration or sooner termination of this Lease.

 

(c)            Notice; Right to Contest .  As soon as reasonably possible after obtaining knowledge thereof, Tenant shall give to Landlord notice of the occurrence of any of the following events: (i) the failure of the Leased Property to comply with any Environmental Law; (ii) the receipt by Tenant or any sublessee or assignee of Tenant of any notice, complaint or order of violation or non-compliance of any nature whatsoever with regard to the Leased Property or the use thereof with respect to Environmental Laws; or (iii) the receipt by Tenant or any sublessee or assignee of Tenant of any notice of a pending or threatened investigation that Tenant’s (or its sublessees’ or assignees’) operations on the Leased Property are not in compliance with any Environmental Law. Tenant shall have the right to contest, by appropriate proceedings, any notice, complaint, order or finding of violation or non-compliance with any Environmental Laws affecting the Leased Property or any use thereof by Tenant or its sublessees or assignees, provided the same will not thereby subject Landlord or Landlord’s mortgagee to civil liability or criminal prosecution or permit any Governmental Authority to commence a process according to applicable law to carry out any work to comply with the same or to foreclose or sell any lien affecting all or any portion of the Leased Property which may arise in connection therewith. If Tenant determines that the Leased Property is in violation of an Environmental Law, Tenant will promptly give Landlord written notice thereof notwithstanding the fact that the matter giving rise to such violation may have been disclosed in the Environmental Report delivered to Landlord and Landlord’s mortgagee.

 

(d)            Audit .  At any time that Landlord receives notice that an adverse change in the environmental condition of one or more parcels comprising the Leased Property has occurred, Landlord shall give notice thereof to Tenant, and if Tenant shall not diligently commence to cure such condition within thirty (30) days of receipt of such notice (or such shorter period as may be required by law or in the event of an emergency), Landlord may reasonably cause to be performed an environmental audit or risk assessment of the relevant portion of the Leased

 

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Property and the then uses thereof, and may take such other actions as Landlord may deem necessary to cure such condition.  Such an environmental audit or assessment shall be performed by an environmental consultant satisfactory to Landlord and shall include a review of the uses of the Leased Property and compliance of the same with all Environmental Laws.  All reasonable costs and expenses incurred by Landlord in connection with such environmental audit or assessment shall be paid by Tenant upon demand.

 

(e)             Contaminated Property .  If at any time an event or condition shall have occurred and be continuing which results in conditions at any parcel of the Leased Property that exceed any applicable standards under any Environmental Law, or a notice, complaint, or order or finding of violation or non-compliance with any Environmental Law shall have been received by Tenant with respect to any parcel comprising the Leased Property (a “ Contaminated Property ”), Tenant shall diligently perform all remedial work to the Contaminated Property at Tenant’s own cost and expense to bring the Contaminated Property into full compliance with Environmental Laws and the requirements of this Article 10 by not later than the end of the Term of this Lease, provided that (x) at the time the remedial work begins and at all times while the remedial work is continuing, Tenant has a credit rating of Baa1 or higher from Moody’s Investors Service (or BBB+ from Standard & Poor’s) (“ Tenant’s Minimum Credit Rating ”) and a net worth of One and One-Half Billion Dollars ($1,500,000,000) or higher, or (y) (A) the cost of such remedial work is less than One Million Dollars ($1,000,000) with respect to the Contaminated Property at the outset and at all times while the remedial work is continuing, as determined by an environmental consultant selected by Tenant and approved by Landlord and Landlord’s mortgagee, which approval shall not be unreasonably withheld or delayed, and (B) in the opinion of an environmental consultant selected by Tenant and approved by Landlord and Landlord’s mortgagee, which approval shall not be unreasonably withheld or delayed, the remedial work can be completed within one year and in no event later than the end of the Term of this Lease (the consultant’s reports referred to in (A) and (B) above being provided at the beginning of the remediation period and updated every forty-five (45) days thereafter).

 

(f)             Asbestos Program .  As to all Leased Properties which are known or become known by Tenant to c