Certain Deposits. (a) Tenant acknowledges that Landlord has required the establishment of a Capital Reserve Account (related to capital expenditures) and a Rollover Reserve Account, which initially are to be left unfunded. Anything contained herein to the contrary notwithstanding, if required by Landlord by notice in writing to Tenant, Tenant agrees that it shall deposit with Landlord, or, if directed by Landlord, to Lender (or its designee) (in the event such deposits are required, Landlord hereby irrevocably directs Tenant to make such deposits with Lender as long as the Indenture shall remain outstanding, and Tenant hereby grants a security interest in such account to Landlord and consents to the pledge of and the granting of a security interest in such account by Landlord to Lender) such amount as reasonably determined by Landlord in each such account on each Payment Date, as Additional Rent, one twelfth (1/12) of all amounts required by Landlord to be deposited to any such account for the Premises for the next twelve (12) months as reasonably estimated by Landlord. To the extent permitted by applicable law, neither Landlord nor Lender or its designee, as the case may be, shall be required to maintain such amounts in an account separate from other funds of such party or to deposit any such amounts in an interest-bearing account, provided, however, in the event such amounts are maintained in an interest bearing account and no Event of Default shall have occurred and be continuing hereunder, Tenant shall be entitled to receive any interest earned thereon on a quarterly basis. Tenant shall deposit with Depository, prior to the date which is thirty (30) days prior to the delinquent date of any such charge, such additional amount as may be necessary to provide Depository with sufficient funds in such deposit account to pay each such charge at least thirty (30) days in advance of the delinquent date thereof. Depository shall apply the aforesaid deposits and interest, if any thereon for such purpose not later than the last day on which any such charges may be paid without penalty or interest. If, at any time, the amount of any such requirement is increased or Landlord or Lender receives information that the cost of the related replacement or repair will be increased, and if the monthly deposits then being made by Tenant for this purpose (if continued) would not make up a fund sufficient to pay such amounts thirty (30) days prior to the delinquent date, or if Landlord shall determine in its reasonable judgement that the amounts of such deposit will be insufficient for the payments due, said monthly deposits thereupon shall be increased and Tenant immediately shall deposit with the Depository, on demand, sufficient moneys so that the moneys then on hand for the payment of said amounts, plus the increased payments and such additional sums demanded, shall be sufficient so that the Depository shall have received from Tenant adequate amounts to pay such amounts at least thirty (30) days before such Imposition becomes due and payable. In the event the amount of the funds deposited by Tenant exceeds the amount necessary to fully fund the required deposits, then the Landlord shall decrease the amount required for subsequent deposits under this Section 2.7(a). For purposes of determining whether the Depository has on hand sufficient moneys to pay the costs of any particular replacement or repair at least thirty (30) days prior to the due date therefor, deposits for each category of replacement or repair shall be treated separately, it being the intention that the Depository shall not be obligated to use moneys deposited for the payment of an item not yet due and payable to the payment of an item that is due and payable. Notwithstanding the foregoing, it is understood and agreed that (i) to the extent permitted by applicable law, deposits provided for hereunder may be held by the Depository in a single bank account and commingled with other funds of the Depository, and (ii) the Depository may, if Tenant fails to make any deposit required hereunder, apply deposits made for any one replacement or repair for the payment of the same, any other replacement or repair or any outstanding Basic Rent or Additional Rent. If an Event of Default shall have occurred and be continuing under this Lease, all deposits then held by the Depository shall be applied on account of any and all sums due under this Lease and Tenant shall forthwith pay the resulting deficiency in accordance with the terms hereof. If Landlord ceases to have any interest in any Project, Landlord shall direct the Depository to transfer to the person or entity who owns or acquires such interest in such Project and is the transferee of the Landlord's interest in this Lease, the deposits made pursuant to the provisions hereof. In addition, in the event that Lender (or a servicing agent on Lender's behalf) is the Depository, Lender shall have the right to transfer the deposits (or to cause its servicing agent to transfer such deposits) to any transferee of the Indenture or to the holder of any substitute Indenture. Upon any such transfer of the deposits, after acknowledgement of such transfer by the transferee and notice thereof to Tenant, the transferor shall be deemed to be released from all liability with respect thereto and Tenant agrees to look to the transferee solely with respect thereto, and the provisions hereof shall apply to each successive transfer of the said deposits. Tenant shall be deemed the owner of any such deposit and shall pay all taxes associated therewith. Tenant's obligations under this Section 2.7 shall survive expiration or early termination of the Lease. (b) Tenant shall not be required to make the deposits with respect to the Capital Reserve Account required by Section 2.7(a) so long as (i) no Event of Default has occurred and is continuing hereunder, (ii) Tenant shall have permitted Landlord or Lender, subject to Section 10.14, to make periodic inspections of each Project and such inspections taken as a whole shall not demonstrate the need for deferred maintenance (i.e., repairs and/or maintenance which in the reasonable opinion of the Landlord or Lender based on a property condition report prepared by an engineer selected by Landlord or Lender in its sole discretion should have been previously performed in accordance with the requirements of this Lease) in excess of the Capital Reserve Trigger Amount in the aggregate. Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) shall immediately resume and shall continue in the event of the failure of the conditions set forth in clauses (i) or (ii) above until the expiration or earlier termination of this Lease; provided that, Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) by reason of the failure of the condition set forth in clause (ii) above shall not resume unless such failure continues for 30 days after Tenant receives notice thereof from Landlord (provided, however, that if such condition cannot reasonably be satisfied within such 30-day period, and Tenant shall have commenced to satisfy such condition within such 30-day period and thereafter diligently and expeditiously proceeds to satisfy the same, such 30-day period shall be extended for an additional period of time as is reasonably necessary for Tenant in the exercise of due diligence to satisfy such condition). If Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) is triggered by the failure of the condition set forth in clause (ii), then in addition to the obligation to make the payments required under Section 2.7(a), Tenant shall also deposit into the Capital Reserve Account 125% of the estimated cost of the deferred maintenance (as estimated by Landlord) and shall promptly perform such repairs. For purposes of this Lease, "Capital Reserve Trigger Amount" shall mean $250,000, adjusted annually by a percentage equal to the increase in the Consumer Price Index in years subsequent to the date of this Lease, but in no event by an amount in excess of 2.5% annually. For purposes of this Section 2.7(b), "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor, New York Metropolitan Statistical Area, All Items (1982-84 = 100), or any successor index thereto, approximately adjusted. In the event that the Consumer Price Index is converted to a different standard reference base or otherwise revised, the determination of adjustments provided for herein shall be made with the use of such conversion factor, formula or table for converting the Consumer Price Index as may be published by the Bureau of Labor Statistics or, if said Bureau shall not publish the same, then with the use of such conversion factor, formula or table as may be published by ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., or any other nationally recognized publisher of similar statistical information. If the Consumer Price Index ceases to be published, and there is no successor thereto, (x) such other index as Landlord and Tenant shall agree upon in writing or (y) Landlord and Tenant cannot agree, such other index as reasonably selected by Landlord, shall be substituted for the Consumer Price Index. The amount of any deposit required by Section 2.7(a) with respect to the Capital Reserve Account shall be limited to an amount per year equal to the product obtained by multiplying $0.16 by the aggregate number of rentable square feet of space in all Projects.
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Certain Deposits. (a) Tenant acknowledges that Landlord has required the establishment of a Capital Reserve Account (related to capital expenditures) and a Rollover Reserve Account, which initially are to be left unfunded. Anything contained herein to the contrary notwithstanding, if required by Landlord by notice in writing to Tenant, Tenant agrees that it shall deposit with Landlord, or, if directed by Landlord, to Lender (or its designee) (in the event such deposits are required, Landlord hereby irrevocably directs Tenant to make such deposits with Lender as long as the Indenture shall remain outstanding, and Tenant hereby grants a security interest in such account to Landlord and consents to the pledge of and the granting of a security interest in such account by Landlord to Lender) such amount as reasonably determined by Landlord in each such account on each Payment Date, as Additional Rent, one twelfth (1/12) of all amounts required by Landlord to be deposited to any such account for the Premises for the next twelve (12) months as reasonably estimated by Landlord. To the extent permitted by applicable law, neither Landlord nor Lender or its designee, as the case may be, shall be required to maintain such amounts in an account separate from other funds of such party or to deposit any such amounts in an interest-bearing account, provided, however, in the event such amounts are maintained in an interest bearing account and no Event of Default shall have occurred and be continuing hereunder, Tenant shall be entitled to receive any interest earned thereon on a quarterly basis. Tenant shall deposit with Depository, prior to the date which is thirty (30) days prior to the delinquent date of any such charge, such additional amount as may be necessary to provide Depository with sufficient funds in such deposit account to pay each such charge at least thirty (30) days in advance of the delinquent date thereof. Depository shall apply the aforesaid deposits and interest, if any thereon for such purpose not later than the last day on which any such charges may be paid without penalty or interest. If, at any time, the amount of any such requirement is increased or Landlord or Lender receives information that the cost of the related replacement or repair will be increased, and if the monthly deposits then being made by Tenant for this purpose (if continued) would not make up a fund sufficient to pay such amounts thirty (30) days prior to the delinquent date, or if Landlord shall determine in its reasonable judgement that the amounts of such deposit will be insufficient for the payments due, said monthly deposits thereupon shall be increased and Tenant immediately shall deposit with the Depository, on demand, sufficient moneys so that the moneys then on hand for the payment of said amounts, plus the increased payments and such additional sums demanded, shall be sufficient so that the Depository shall have received from Tenant adequate amounts to pay such amounts at least thirty (30) days before such Imposition becomes due and payable. In the event the amount of the funds deposited by Tenant exceeds the amount necessary to fully fund the required deposits, then the Landlord shall decrease the amount required for subsequent deposits under this Section 2.7(a). For purposes of determining whether the Depository has on hand sufficient moneys to pay the costs of any particular replacement or repair at least thirty (30) days prior to the due date therefor, deposits for each category of replacement or repair shall be treated separately, it being the intention that the Depository shall not be obligated to use moneys deposited for the payment of an item not yet due and payable to the payment of an item that is due and payable. Notwithstanding the foregoing, it is understood and agreed that (i) to the extent permitted by applicable law, deposits provided for hereunder may be held by the Depository in a single bank account and commingled with other funds of the Depository, and (ii) the Depository may, if Tenant fails to make any deposit required hereunder, apply deposits made for any one replacement or repair for the payment of the same, any other replacement or repair or any outstanding Basic Rent or Additional Rent. If an Event of Default shall have occurred and be continuing under this Lease, all deposits then held by the Depository shall be applied on account of any and all sums due under this Lease and Tenant shall forthwith pay the resulting deficiency in accordance with the terms hereof. If Landlord ceases to have any interest in any Project, Landlord shall direct the Depository to transfer to the person or entity who owns or acquires such interest in such Project and is the transferee of the Landlord's interest in this Lease, the deposits made pursuant to the provisions hereof. In addition, in the event that Lender (or a servicing agent on Lender's behalf) is the Depository, Lender shall have the right to transfer the deposits (or to cause its servicing agent to transfer such deposits) to any transferee of the Indenture or to the holder of any substitute Indenture. Upon any such transfer of the deposits, after acknowledgement of such transfer by the transferee and notice thereof to Tenant, the transferor shall be deemed to be released from all liability with respect thereto and Tenant agrees to look to the transferee solely with respect thereto, and the provisions hereof shall apply to each successive transfer of the said deposits. Tenant shall be deemed the owner of any such deposit and shall pay all taxes associated therewith. Tenant's obligations under this Section 2.7 shall survive expiration or early termination of the Lease.
(b) Tenant shall not be required to make the deposits with respect to the Capital Reserve Account required by Section 2.7(a) so long as (i) no Event of Default has occurred and is continuing hereunder, (ii) Tenant shall have permitted Landlord or Lender, subject to Section 10.14, to make periodic inspections of each Project and such inspections taken as a whole shall not demonstrate the need for deferred maintenance (i.e., repairs and/or maintenance which in the reasonable opinion of the Landlord or Lender based on a property condition report prepared by an engineer selected by Landlord or Lender in its sole discretion should have been previously performed in accordance with the requirements of this Lease) in excess of the Capital Reserve Trigger Amount in the aggregate. Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) shall immediately resume and shall continue in the event of the failure of the conditions set forth in clauses (i) or (ii) above until the expiration or earlier termination of this Lease; provided that, Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) by reason of the failure of the condition set forth in clause (ii) above shall not resume unless such failure continues for 30 days after Tenant receives notice thereof from Landlord (provided, however, that if such condition cannot reasonably be satisfied within such 30-day period, and Tenant shall have commenced to satisfy such condition within such 30-day period and thereafter diligently and expeditiously proceeds to satisfy the same, such 30-day period shall be extended for an additional period of time as is reasonably necessary for Tenant in the exercise of due diligence to satisfy such condition). If Tenant's obligation to make the deposits required with respect to the Capital Reserve Account under Section 2.7(a) is triggered by the failure of the condition set forth in clause (ii), then in addition to the obligation to make the payments required under Section 2.7(a), Tenant shall also deposit into the Capital Reserve Account 125% of the estimated cost of the deferred maintenance (as estimated by Landlord) and shall promptly perform such repairs. For purposes of this Lease, "Capital Reserve Trigger Amount" shall mean $250,000, adjusted annually by a percentage equal to the increase in the Consumer Price Index in years subsequent to the date of this Lease, but in no event by an amount in excess of 2.5% annually. For purposes of this Section 2.7(b), "Consumer Price Index" shall mean the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the United States Department of Labor, New York Metropolitan Statistical Area, All Items (1982-84 = 100), or any successor index thereto, approximately adjusted. In the event that the Consumer Price Index is converted to a different standard reference base or otherwise revised, the determination of adjustments provided for herein shall be made with the use of such conversion factor, formula or table for converting the Consumer Price Index as may be published by the Bureau of Labor Statistics or, if said Bureau shall not publish the same, then with the use of such conversion factor, formula or table as may be published by ▇▇▇▇▇▇▇▇-▇▇▇▇, Inc., or any other nationally recognized publisher of similar statistical information. If the Consumer Price Index ceases to be published, and there is no successor thereto, (x) such other index as Landlord and Tenant shall agree upon in writing or (y) Landlord and Tenant cannot agree, such other index as reasonably selected by Landlord, shall be substituted for the Consumer Price Index. The amount of any deposit required by Section 2.7(a) with respect to the Capital Reserve Account shall be limited to an amount per year equal to the product obtained by multiplying $0.16 by the aggregate number of rentable square feet of space in all Projects.to
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