This excerpt taken from the C 10-K filed Feb 22, 2008.
4.01. Upon not less than fifteen (15) months prior written notice to Landlord (each herein called a Surrender Notice) which may be given one or more times during the period commencing on September 20, 2009 up to and including September 30, 2011 (herein called the Surrender Notice Period), Tenant may elect to surrender portions of the Premises (each such portion of the Premises so surrendered is herein called Surrender Space) consisting of two (2) or more full Office Floors on or above the 6th floor of the Building and containing not more than 280,326 rentable square feet in the aggregate, all of which shall consist of full Office Floors. For example and without limitation, Tenant may initially elect to surrender three full Office Floors containing 90,510 rentable square feet of the Premises, and thereafter send one or more Tranche 1 Surrender Notices during the Surrender Notice Period surrendering additional full Office Floors (but not less than two (2) full Office Floors in any Surrender Notice) comprising up to an additional 189,816 rentable square feet (i.e., the Surrender Space shall not exceed 280,326 rentable square feet in the aggregate, inclusive of any space surrendered under the Original Lease). Any Surrender Notice shall identify the Surrender Space and indicate the date on which such Surrender Space will be surrendered, which date(s) may be no earlier than December 20, 2010, no later than December 31, 2012 and must correspond with the last day of a month (any such date is herein called a Surrender Date). Any Surrender Space that is identified in a particular Surrender Notice must be contiguous but such space need not be contiguous with any Surrender Space identified in a subsequent Surrender Space Notice; provided, that, Tenant shall give consideration to keeping Surrender Space contiguous within all or any of the four elevator banks but shall have absolutely no obligation whatsoever to do so. Notwithstanding any of the foregoing, or anything to the contrary contained in the Amended and Restated Lease, if all or any portion of the Surrender Space or Building Systems which service the Surrender Space shall be partially or totally damaged or
destroyed by fire or other casualty prior to the Surrender Date, then the Surrender Date with respect to any full floor portion of the Surrender Space so affected shall be postponed until such time as Tenant fully satisfies its restoration obligations with respect thereto in accordance with Section 19.02 and such affected portion of the Surrender Space is no longer untenantable (as such term is defined in Section 19.04.)
4.02. In the event of the giving of any Surrender Notice and provided the Surrender Fee has been paid to Landlord in accordance with Section 4.04, then, effective as of the Surrender Date:
(a) this lease shall automatically, without further action or execution by the parties, be deemed to be restated and amended as of the Surrender Date, to reflect all of the terms and conditions set forth in the form of Restated and Amended Lease annexed hereto as Exhibit J (the Amended and Restated Lease) modified only to complete, in accordance with the terms hereof, those items left blank by necessity on the Amended and Restated Lease, such as the description of the Premises, Tenants Share and the amount of Fixed Rent. Upon the request of either party, Landlord and Tenant shall sign and deliver the Amended and Restated Lease annexed hereto, with the completion of items as aforesaid; provided, however, that without limiting the remedies available to either party for the other partys failure or refusal to so sign and deliver said Amended and Restated Lease, such failure by either party shall not in any way affect the aforesaid automatic restatement and amendment of this lease;
(b) Tenant shall surrender the Surrender Space in the condition required under Section 21.01 together with all equipment, tools and supplies then currently used in the operation of the Real Property (as opposed to those used in the operation of Tenants business at the Premises) as well as all lobby fixtures (but excluding any art work). Upon reasonable request by Landlord, Tenant shall execute and deliver to Landlord any instrument reasonably requested by Landlord to evidence the transfer of Tenants right, title and interest in any such equipment, tools, supplies and fixtures (collectively, ETS&F) to Landlord; it being understood and agreed that Tenant is not making any guarantees, representations or warranties with respect to the ETS&F and Landlord shall accept the ETS&F as is and with all faults and defects and without any liability to Tenant whatsoever with respect thereto. However, to the extent assignable and in Tenants possession, on or prior to the Surrender Date, Tenant shall deliver to Landlord all third party guaranties, warranties and manuals relating to the ETS&F. Tenant shall be entitled to retain the use of any horizontal and vertical cabling, conduit and/or any mechanical and electrical equipment located in the common and/or non-rentable areas of the Building (or such other areas outside of the common and/or non-rentable areas of the Building so long as same do not adversely affect the use of the Surrender Space) which is used in operating the portion of the Premises not so surrendered; and
(c) Tenant shall, at its sole cost and expense (but subject to its right to off-set the cost thereof against the Surrender Fee in accordance with Section 4.04), install separate submeters (i) on each Office Floor of the Building and any equipment that exclusively services any such Office Floor, and (ii) for each separately demised retail and licensed space in or on the Building and any equipment that exclusively services any such areas, so that consumption of electricity in the Building can be measured (i) on a floor by floor basis with respect to each Office Floor and (ii) separately for each separately demised retail and licensed space in or on the Building, all in substantial conformance with the methodology set forth in that certain Comprehensive Sub-Metering System Installation Proposal dated April 6, 2005 from MCE Metering Services, Inc. or such other reasonable system recommended by Landlord provided the cost to install and implement such system does not exceed $500,000 unless Landlord agrees to incur such excess cost and such system provides equal or better functionality at similar on-going operating costs (such work herein called the Submetering Work, and the cost thereof is herein called the Submetering Cost).
4.03. Landlord and Tenant agree that, as of expiration of the term of this lease or as of the Surrender Date, as applicable, Landlord may either (x) offer the same employment by Landlord (or by the property manager engaged by Landlord) to any or all employees set forth on Schedule 2 (as such list may be updated from time to time by Tenant so as to appropriately reflect the employees employed as of the end of the term of this lease or as of the Surrender Date, as the case may be) who are union employees under their then current employment contracts or agreements, including any collective bargaining agreements or (y) terminate the employment of any or all such employees at the Real Property; provided, that, Landlord shall give consideration to (but in no event be bound by) the recommendations of Tenant with respect to the retention of any such employees. Landlord acknowledges that, (i) if Landlord terminates any of such union employees or (ii) if Landlord terminates any of the cleaning contractor, building engineer or carpenter of the Building or requires those companies to reduce their employees at the Real Property from those listed on Schedule 2 and, as a result, any of the union employees engaged by such companies are terminated, then certain termination benefits may be payable with respect to such terminated employees. Landlord agrees that it shall be liable for the payment of all such termination benefits and hereby agrees to indemnify and hold harmless Tenant and any other Tenant Party from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys fees, court costs and disbursements) incurred by Tenant or any other Tenant Party arising from or by reason of Landlords failure to pay such termination benefits as and when due and payable; provided, that, Tenant shall be responsible for the payment of termination benefits payable to any of such employees who provided services that solely benefited Tenant (as opposed to the Building or Real Property as a whole), and Tenant shall indemnify and hold Landlord harmless from and against any loss, cost, damage, liability or expense (including, without limitations, reasonable attorneys fees, court costs and disbursements) incurred by Landlord arising from or by reason of Tenants failure to pay such termination benefits as and when due and payable. Notwithstanding anything to the
contrary contained in this Section 4.03, Landlord and Tenant agree that Tenant shall not have any liability hereunder with respect to the termination of employment of any employees who do not spend the predominance of their time providing services to the base building operations at the Real Property.
4.04. As a condition to the effectiveness of the exercise of the Surrender Option and the termination of this lease as it relates to the Surrender Space as of the Surrender Date, Tenant shall pay to Landlord an amount equal to (1) the product of (x) the then annual Fixed Rent per rentable square foot attributable to the Surrender Space, and (y) the rentable square feet of the Surrender Space, less (2) the Submetering Cost (not to exceed $500,000.00) (such amount is herein called the Surrender Fee). One-half of the Surrender Fee (without taking into account the off-set of the Submetering Cost) shall be payable by Tenant to Landlord upon the exercise of the Surrender Option and the other half (after taking into account the off-set of the Submetering Cost) upon the Surrender Date. To the extent the Submetering Cost is not fully applied against the Surrender Fee as of the Surrender Date (i.e., the Submetering Cost, subject to the $500,000.00 cap, exceeds the Surrender Fee, such excess herein called Unapplied Submetering Cost), the Unapplied Submetering Cost may be offset against the Surrender Fees payable under the Amended and Restated Lease with respect to all additional Tranche 1 Surrender Space and Tranche 2 Surrender Space (as such terms are defined in the Amended and Restated Lease). The Surrender Fee shall be accounted for by the parties and considered for all purposes as a fee for the termination of this lease as it relates to the Surrender Space and not as payment or consideration for the use or occupancy of the Premises. Landlord shall have the right to dispute the amount of Submetering Cost as being prudent (but not the scope of the Submetering Work set forth in Section 4.02(c)) and economical by submitting the matter to a binding, expedited arbitration in accordance with the provisions of Article 37. If Tenant shall in good faith competitively bid the Submetering Work to at least three (3) independent non-affiliated bidders (but Tenant shall have no obligation hereunder to bid such work), the next-to-lowest bid obtained shall be deemed to be reasonably prudent and economical (provided however that, subject to Landlords dispute rights set forth herein, it shall not be construed that a bid that is higher than such next-to-lowest bid is automatically deemed not to be reasonably prudent or economical).
4.05. The provisions of this Article 4 shall survive the termination of this lease and of any restatement of this lease into the Amended and Restated Lease.