PHIL1 712780-2 Copyright © 2007, Gregory G. Gosfield. All Rights Reserved.

THE BATTLE BETWEEN

TENANTS

AND

THEIR LANDLORDS’ MORTGAGES Gregory G. Gosfield, Esq. Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 S. Broad Street • Philadelphia, PA 19102-5003 • Tel: 215.569.4164 • Fax: 215.568.6603 GGosfield@klehr.com

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B. CAPITAL VALUATION:

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1.1. DOCUMENT REVIEW: LEASE, ESTOPPEL, SNDA, RENT ROLL, GUARANTY, LANDLORD LIEN WAIVER

1.1.1. Mortgagee – Lease Issue Analysis

(a) Rent

(i) Adequacy: base rent as gross, semi-net, fully net; bumps and step up formulas

(ii) Pass-through: escalator, stops, caps, pro-rata share

(iii) Percentage rent: break-point, inclusions, subrent

(iv) Suspension: services, co-tenancy, revenue shortfall, parking

(v) Reduction (purposes and amounts): free rent, set-off, deduction, advance rent, “take-over rent,” condemnation, casualty, revenue production, parking;

(vi) Independent covenant or dependent for withholding rent.

1.1.2. Termination (consistency among leases) – substantial casualty, condemnation, buyout, kickout, failed completion, co-tenancy, failed SNDA, after mortgage term

1.1.3. Uses – conforming, permitted, exclusive, prohibited, radius, right to go dark; no violation of other leases exclusive uses or “most favored nation”

1.1.4. Value – preservation/repair (whose duty) , replacement (reserves), tenant improvements (who owns), options/right of first refusal, significant alterations, tenant negligence, lease, leaseback, concurrent (sandwich) lease

1.1.5. Security Deposit – cash, guaranty, letter of credit (transferability)

1.1.6. Landlord Assignment – by Landlord, acknowledgement of successor, no continuing liability

1.1.7. Tenant Assignment Subletting, Transfer – consent, criteria, cost of review, sharing premium rent

1.1.8. No liens – mechanics liens, priming liens

1.1.9. Landlord Liabilities – repair beyond proceeds, core building compliance (ADA), slow consent, changes for Capital Markets/Rating Agencies pre-existing liabilities from prior landlords, other property competes, other property serves, tenant allowance, pre-existing conditions and hazardous materials; reimbursement Tenant Improvements

LOAN PROCEEDS

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1.1.10. Tenant-Mortgage Issue Analysis

(a) Possession – interesse termini

(b) Covenants

(c) Recovery of Tenant Improvement Values

(d) Recovery of Curative Costs

(e) Landlord (Successor Landlord) Lien Waiver or Subordination

1.1.11. Documentation

(f) Stated loan amount can create implicit limit

(g) No blanks

(h) Fully executed

(i) Changes shown by initialed language or redline

(j) Acknowledged for recording

(k) Comply with state recording requirements: witnesses, tax identification number, address, seals and attestation, format, margins, recording fees, legal description

1.1.12. Estoppel Completion

(l) Runs to Mortgagee’s benefit

(m) Matches Lease requirements

1.1.13. Guaranty

(n) Liable after modification

(o) Liable for SNDA

1.1.14. Rent Roll - Trues up with estoppel and SNDA

1.1.15. Landlord Lien

(p) Common law distress or distraint; statutory codification; UCC

(q) Waiver as to Tenant and its current and future Lenders

(r) Subordination as to Tenant’s current and future Lenders

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(i) During Tenant’s secured loan term

(ii) Notice and right to cure Tenant defaults

(iii) Right to entry, collect collateral, sell, and withdraw

(iv) Duty to pay rent, insurance, liability for damage

(v) No holdover liability or extension of term

1.2. CAPITAL MARKETS ISSUES

1.2.1. Before Foreclosure:

(s) Rating Agency

(i) Estoppels from all anchors, 5% or more of gross rents; and together 75% of gross leased area

(ii) Comply with REMIC requirements (1.860G.2(b)(ii))

(t) Real Estate Mortgage Investment Conduit (REMIC) Requirements

(i) “Significant modification” for performing loans

(ii) “Significant modification” occurs by adding, subtracting or altering collateral (Treas. Reg. §1.1001-3(e)(4)(iv));

(iii) Expansion by additional buildings on same parcel are not “significant modification” (Treas. Reg. §1.1001-3(g)(Ex 9));

(u) Servicer Standards: Service and administer in the best interests of and for the benefit of the Certificateholders … with the same care, skills and diligence as is normal and usual in its general mortgage servicing and REO property management activities on behalf of third parties or on behalf of itself, whichever is higher, with respect to mortgage loans and REO properties that are comparable to those for which it is responsible …

1.2.2. Upon default: “no substantial modification” merely by default or imminent default (Treas. Reg. §1.860G-2(b)(3))

1.2.3. After Foreclosure:

(v) Special Servicer ─ same Servicer standard

(i) REMIC Requirements: IRC §860G(a)(8) points to REIT rules for “foreclosure property” under §856(e)

(ii) Real Estate Investment Trust (REIT) Standards: [ ] §856(e)(4)(B): foreclosure property (and the REMIC holding foreclosure

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property) ceases to be qualified when “any construction takes place on such property (other than completion of a building, or completion of any other improvement, where more than 10 percent of the construction of such building or other improvement was completed before default became imminent)”

1.3. TITLE, LIEN, AND INTERMEDIATE THEORIES

1.3.1. TITLE STATE:

(w) Mortgage is conveyance, mortgagor has right of possession and redemption

(x) In a title state, the mortgagee is entitled to rents from a pre-existing lease upon possession of the real property or the rents. The mortgagee is generally not entitled to possession until a default occurs. The mortgagee is not entitled to rents from subsequent leases.

1.3.2. LIEN STATE:

(y) Mortgage is security interest

(z) In a lien state, the mortgagee is generally not entitled to rents from a pre-existing lease until possession by foreclosure. The mortgagee is not entitled to rents from subsequent leases.

1.3.3. INTERMEDIATE STATE

(aa) Mortgage is conveyance treated like security interest

(bb) In an intermediate state, the mortgagee is generally entitled to rents from a pre-existing lease upon possession of the real property or the rents. Sometimes that is after default, sometimes that is after an affirmative act of possession is performed. The mortgagee is not entitled to rents from subsequent leases.

1.4. ASSIGNMENT OF LEASES AND RENTS ISSUES

(cc) Rent is a real estate interest like land, not an intangible like a receivable

(dd) Assignment of Leases and Rents is a separate security interest from Mortgage lien on land

(ee) Mere lienholder status: no right to rent or possession prior to foreclosure; only from prior tenants after foreclosure

(ff) Confirms direct relationship between Mortgagee and Tenant, at Mortgagee’s election

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(gg) Authorizes direct payment of rent to Mortgagee upon notice or obligation

(hh) Permits receipt of rent by Mortgagee, without possession

(ii) Precedes Mortgagee’s dispossession remedies

(jj) Absolute transfer to Mortgagee, license back to Mortgagor: mimics Title Theory fiction for Bankruptcy

(i) Mortgagee rights to “proceeds, … rents, or profits” (Bankruptcy Code Section 552(b)) prior to possession or foreclosure

(ii) Preserves Mortgagee’s right to cash collateral (First Fidelity Bank v. Jason Realty L.P., 59 F.3d 423 (3rd Cir. 1995))

(iii) Perfection, effectiveness and enforcement of lien against rent by possession, receiver, notice to tenant, or by recording (analogous to recording mortgage or filing UCC) to overcome Debtor’s §544(a) avoidance power

1.5. ESTOPPEL ISSUES

1.5.1. Estoppel: commonly misnamed

(kk) A bar to stop a change in position: “stoppeth or closeth up his mouth”

(ll) Stipulation – agreed upon facts even if wrong

(mm) Representation – facts asserted to be right; defense of no reasonable reliance

(nn) Warranty – facts guaranteed to be right, no defense of no reasonable reliance

1.5.2. Mortgage Rights – Rights to an Estoppel

(oo) In Lease

(pp) By Mortgagor if Tenant refuses - very weak

(qq) Representations, warranties, covenants, indemnities

1.5.3. Conditions to enforce Estoppel

(rr) Lack of separate knowledge

(ss) Lack of separate means to obtain knowledge

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(tt) Reliance on words or acts of estopped party

(uu) Reliance was reasonable and in good faith

(vv) Action by Mortgagee, based on reliance, was to Mortgagee’s detriment

1.5.4. Remedies for a bad estoppel

(ww) Limited case law

(xx) Based on equity or contract

(yy) May act as a lease modification

(zz) Injunction against contrary position to avoid inequity

(aaa) Damages for breach of contract

(bbb) Sometimes construed against “drafter,” sometimes against certifying party

1.5.5. Tenant Estoppel (Representations) for Mortgagee

(ccc) Unique and comprehensive description of premises (square feet and location)

(ddd) Initial and renewal terms commencement and expiration

(eee) Rents: base, pass through, percentage formula, pro rata share

(fff) Acceptance and possession of premises

(ggg) Rent has commenced without prepayment by more than one month

(hhh) Lease and all documents affecting relationship between the landlord and tenant have been attached: amendments, modifications, extensions, guaranties, deposits, options, assignments, settlements, waivers, plans, construction contracts, landlord waivers, SNDAs

(iii) Facts omitted or inconsistent with Lease are disclosed: construction, options, deposits

(jjj) No default by Tenant or Landlord

(kkk) No claims or defenses against Landlord

(lll) No assignment or subletting by Tenant

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(mmm)No hazardous materials at Premises

(nnn) No circumstances permitting termination of lease, abatement of rent, or variation in Tenant’s obligations

(ooo) Tenant’s condition: financial, litigation, compliance, organization and authorizations

1.5.6. Landlord Estoppel Covenants for Mortgagee

(ppp) Casualty and condemnation go to Mortgagee

(qqq) Notice of Tenant assignment and defaults

1.5.7. Tenant Estoppel Covenants for Mortgagee

(rrr) Notice and cure rights for Lease

(sss) No lease modification, termination, assignment without consent

(ttt) Pay rent to Mortgagee upon notice

(uuu) Execute further assurances for Mortgagee

1.5.8. Tenant Estoppel Release and Indemnity for Mortgagee: Hazardous Materials

1.6. SNDA ISSUES

1.6.1. Subordination

(vvv) To place in a lower order

(www) To make subject to

(xxx) All real property but no personal property based on estates: estates are based on subordinate rights devolving from Sovereign

1.6.2. Non-Disturbance: Not disturb tenant’s conveyed “quiet enjoyment” of possession and covenanted lease rights

1.6.3. Attornment: To “turn to” successor to landlord’s estate as successor landlord of leasehold estate and covenants

1.7. PRIORITY AND SUBORDINATION

1.7.1. Senior Lease: before Mortgage becomes effective

1.7.2. Mortgagee actual knowledge of Lease

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(yyy) Mortgagee constructive knowledge of Lease

(i) Lease recording

(ii) Tenant occupancy

1.7.3. Leasehold not divested by foreclosure

1.7.4. Senior Mortgage: before Lease becomes effective

(zzz) Tenant actual knowledge of Mortgage

(aaaa) Tenant constructive knowledge of Mortgage - Mortgage recording

(bbbb) Leasehold divested by foreclosure

(cccc) Affirmation

(i) Mortgagee: by non-disturber

(ii) Tenant: by attornment

(iii) Actions: payment/acceptance of rent

1.8. SUBORDINATION CHART

Senior Lease and Subordinate Mortgage

Senior Mortgage

Subordinated and Attorned Lease

1. Mortgage terms subject to Lease terms, (casualty, assignment, set-off)

1. Lease terms subject to Mortgage terms

1. Lease terms subject to Mortgage terms

2. Mortgage foreclosure does not affect lease: automatically preserved

2. Mortgage foreclosure divests leasehold (may or may not terminate lease agreement)

2. Mortgage foreclosure does not divest (disturb) lessee, but may affect covenants

3. Successor fee holder subject to and beneficiary of lease which is preserved after foreclosure; right to rent by automatic attornment (by statute 4 Anne Ch. 16) and right to reversion

3. Successor fee holder unbenefited. Either ratifies and assumes and becomes successor landlord, or divests Lease. No automatic attornment, Tenant may be automatically divested to its benefit

3. Mortgagee, for successor landlord, in advance ratify and assume lease and preserve it after foreclosure

1.9. SUBORDINATION ISSUES BETWEEN MORTGAGEE (SUCCESSOR LANDLORD) AND TENANT

1.9.1. Before Foreclosure: Tenant Rights

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(dddd) Property Rights (estate): “quiet enjoyment”, leasehold use, possession, occupancy, waste

(eeee) Real Covenant Rights (contract) running with the land “touch and concern”: lease agreement, casualty proceeds, repair performance

(ffff) Personal Covenant Rights: services, “takeover” rent, off-site radius

(gggg) Payment Rights (blockage): concessions, free rent, subsidies, reimbursements, set-off

(hhhh) Remedies (standstill): lease agreement termination (in rem, in personam actions), self-help, set-offs

(iiii) “Lien” Rights: pecuniary interest in fee property title; Right to sell landlord property to recover debt, set-offs

1.9.2. Before Foreclosure: Mortgagee’s Rights

(jjjj) Take physical possession under mortgage remedies

(kkkk) Rent collection under assignment of rents

1.9.3. After Foreclosure

(llll) Divestiture of liens and estates of named parties in interest

(mmmm) Automatic in lien states: California, Utah and Texas

(nnnn) Pick-and-choose in title or intermediate states: Pennsylvania

(oooo) May still need subsequent court action for ejectment

(pppp) Mortgage covenants (casualty, condemnation, assignment) disappear and the Lease agreement is not only senior, it is the sole set of terms

(qqqq) Divesture of subordinate leasehold extinguishes its property rights (use and occupancy) not necessarily lease agreement contract rights (indemnification, deposit, reimbursement)

(rrrr) Tenant loses value of Tenant Improvement investment and benefit of location

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1.9.4. Quasi Circuity

(ssss) When a lien or estate (purchase money mortgage) is subordinated to, or subordinate to, the Mortgage and a Lease is later in time, if the senior Mortgagee subordinates to the Lease to preserve the Lease, the later junior lien as senior to the Lease, may be senior in lien to the senior Mortgage.

(b) When a Lease is senior to a Mortgage, and the Mortgage is senior to a lien or estate by subordination agreement (purchase money mortgage or condominium assessments), if the Lease subordinates to that subsequent lien (by the subordinate lien holder’s SNDA), the Mortgage may be subordinate to the subsequent lien. Doctrine of impairment is contrary.

FFIRST MORTGAGE

IINTERVENING LIEN

LEASE

FFIRST MORTGAGE

IINTERVENING LIEN

LEASE

FFIRST MORTGAGE

LLEASE

FFIRST MORTGAGE

LLIEN

LLEASE

FFIRST MORTGAGE

LLIEN

LLEASE

LLEASE

LLIEN

FFIRST MORTGAGE

LLIEN

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1.10. NON-DISTURBANCE ISSUES BETWEEN MORTGAGEE (SUCCESSOR LANDLORD) AND TENANT

1.10.1. Before Foreclosure

(tttt) Primacy of Lease provisions

1.10.2. Primacy of Leasehold estate

1.10.3. After Foreclosure

(uuuu) Conditioned on:

(i) no default

(ii) no default permitting lease termination

(iii) no termination or acceleration for continuing Event of Default

(vvvv) Issues of direct relationship (privity) by contract with unidentified Successor Landlord;

(wwww) Restrictions on subsequent owners

(xxxx) Defacto recognition of tenant by acceptance of rent (not in California)

(yyyy) Formal ratification of lease

1.11. ATTORNMENT ISSUES BETWEEN SUCCESSOR LANDLORD AND TENANT: AFTER FORECLOSURE

1.11.1. Creates direct relationship (privity) for property rights (estate)

1.11.2. Prevents claims by Subordinate Tenant of automatic or constructive termination

1.11.3. Tenant wants reciprocal ratification and assumption by Successor Landlord

1.12. STATUTES OF PRIVITY

1.12.1. Statutes made at Westminster, Anno 32 HEN. VIII. and Anno Dom. 1540. Grantees of Reversions Act, 1540

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(zzzz) “… Persons [other] than the King’s Highness, and the Heirs, Executors, Successors and Assigns of every of them, (5) shall and may have and enjoy like Advantages against the Lessees, their Executors, Administrators and Assigns, by Entry for Non-payment of the Rent, or for doing of Waste or other Forfeiture; (6) and also shall and may have and enjoy all and every such like, and the same Advantage, Benefit and Remedies by Action only, for not performing of other Conditions, Covenants or Agreements contained and expressed in the Indentures of their said Leases, Demises or Grants, against all and every the said Lessee and Farmers and Grantees, their Executors, Administrators and Assigns, as the said Lessors or Grantors themselves, or their Heirs or Successors, ought, should, or might have had and enjoyed at any Time or Times.”

(aaaaa) Moreover be it enacted by Authority aforesaid, That all Farmers, Lessees and Grantees of Lordships, Manors, Lands, Tenements, Rents, Parsonages, Tithes, Portions, or any other Hereditaments for Term of Years, Life or Lives, their Executors, Administrators and Assigns, shall and may have like Action, Advantage and Remedy against all and every Person and Persons and Bodies Politick, their Heirs, Successors and Assigns, which have or shall have any Gift or Grant of the King our Sovereign Lord, or of any other Person or Persons, or the Reversion of the same Manors, Lands, Tenements, and other Hereditaments so letten, or any Parcel thereof, for any Condition, Covenant or Agreement contained or expressed in the Indentures of their Lease and Leases, as the same Lessees, or any of them might and should have had against the said Lessors and Grantors, their Heirs and Successors;

1.12.2. 4 Anne, Cap. XVI. A.D. 1705

(bbbbb) And be it further enacted by the authority of the aforesaid, That from and after the said first day of trinity term, all grants or conveyances thereafter to be made, by fine or otherwise, of any manors or rents, or of the revision or remainder of any messuages or lands, shall be good and effectual, to all intents and purposes, without any attornment of the tenants of any such manors, or of the land out of which such rent shall be issuing, or of the particular tenants upon whose particular estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made.

(ccccc) Provided nevertheless, That no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee.

1.13. SNDA “EXTRAS” FOR MORTGAGEES FROM (WEAK) TENANTS

1.13.1. Before Foreclosure: Provisions for Mortgagee

(ddddd) Mortgage clauses for casualty and condemnation prevail

(eeeee) No modification of lease without Mortgagee consent

(fffff) No Tenant assignment without Mortgagee consent

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(ggggg) No voluntary cancellation or termination without Mortgagee consent

(hhhhh) Notice and longer cure rights for Mortgagee

(iiiii) Estoppel provisions

(jjjjj) Assignment of rent and acknowledgment of assignment

(kkkkk) Tenant financial statements

(lllll) Payment of fees and costs for approvals requested of Mortgagee

(mmmmm) Indemnification and release for current conditions, Mortgagee negligence

1.13.2. After Foreclosure: Provisions for Successor Landlord

(nnnnn) Not bound by prior Landlord representations of the use, zoning, subdivision, taxes, title, landlord’s authority, tenant ability, compliance with laws, fitness for tenant’s use

(ooooo) Not subject to Tenant right of offset or abatement

(ppppp) Environmental indemnification, release of claims, waiver of rights by Tenant.

(qqqqq) Rights against Successor Landlord available to Tenant as if Lease had commenced on date Successor Landlord succeeds to Landlord position under the Lease and all pre-existing landlord covenants and conditions are deemed satisfied or waived (leaky roof or incomplete roof expansion)

(rrrrr) Tenant Remedy: termination

(sssss) No Successor Landlord liability for prior landlord liabilities:

(i) Rent adjustment

(ii) Rent reduction

(iii) Casualty/condemnation, beyond proceeds

(iv) Use conflicts

(v) Co-tenancy

(vi) Security deposits

(vii) Construction: alteration, phases

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(viii) Tenant allowance

(ix) Arbitration awards

(x) Hazardous materials

1.14. SNDA “EXTRAS” FOR (STRONG) TENANTS FROM MORTGAGEES

1.14.1. Before Foreclosure: Provisions for Tenant

(ttttt) Lease covenants control (casualty/condemnation, assignment)

(uuuuu) Waiver of mortgagee’s rights to tenant improvements upon casualty or condemnation and lease termination, or application of insurance first to tenant improvements

(vvvvv) Modification approval right of mortgagee limited only for change in rent, reduction of term, release of guarantor or credit enhancement or defaults, change in remedies for default (Material Adverse Effect); otherwise not binding on Mortgagee and Successor Landlord

(wwwww) Right to set off Tenant costs to perform Landlord acts that preserve value of real estate, after notice to Mortgagee (perhaps set off only against a portion of base rent)

(xxxxx) Set off to the extent Tenant provides notice to Mortgagee of Landlord’s failure, at least if Tenant’s acts preserve or increase value of lien (e.g., payment of taxes), value of collateral (e.g., capital improvements), or rent (e.g., expansion)

(yyyyy) Tenant exculpation and Landlord indemnity for Tenant payment of rent to Mortgagee without inquiry

(zzzzz) Non-disturbance continues until Lease is accelerated or terminated for non-payment default or acceleration for Event of Default – retain equivalent of priority

(aaaaaa) Mortgagee not to unreasonably withhold, delay, or condition its approval or consent, and deemed automatic if silence for ten days

(bbbbbb) Abatement or termination (least favored alternative) for landlord non-performance or interference with quiet enjoyment

(cccccc) No cross-collateralization, cross default, or increase in obligations (other than curative advances)

1.14.2. After Foreclosure

(dddddd) Successor Landlord agrees to ratify, not just take subject to, Lease

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(eeeeee) Successor Landlord accepts rent concessions in Lease

(ffffff) Set off for lost security deposit; perhaps, only if held by Mortgagee

1.15. SUBTLE STRATEGIES

1.15.1. Extinguish (“disturb”) defaulted lease by divestiture rather than Landlord/Tenant lawsuit; not declaration of default, acceleration, termination

1.15.2. Do not automatically agree to “non-disturb” bad subordinate leases

(gggggg) Below market

(hhhhhh) Affiliates

(iiiiii) Inappropriate (bad mix)

1.15.3. Sometimes Lease extensions and amendments are deemed to cause the lease to post date and be subordinated to the Mortgage without the benefit of non-disturber

1.15.4. Guaranty Lease and Tenant’s SNDA covenants

1.15.5. Security deposits held by Mortgagee or subject to Mortgagee’s control agreement

1.15.6. Tenant rights of recovery for prior Landlord defaults limited to Landlord’s interest in the realty. After foreclosure prior landlord has no interest in realty

1.15.7. Seniority can be by recording, notice (tenant occupancy), or contract

1.15.8. Recording the SNDA helps the otherwise subordinate party-in-interest

1.15.9. Lease guaranty may terminate after foreclosure if lease is ratified or reinstated instead of preserved by non-disturber/attornment

1.15.10. Priority and non-disturbance diverge on divestiture upon default, circuity, mortgagee bankruptcy and rejection of executory covenants

1.16. SNDA PROVISIONS EXAMPLES: Tenant Changes - Bold; Mortgagee Changes - Underlined

1.16.1. RECITALS

The following language is representative of a typical Recital clause: “WHEREAS, Tenant has agreed that its rights in and pursuant to the Lease are and shall be subordinate to the Mortgage, provided Lender executes and delivers to Tenant a Non-Disturbance Agreement, which Lender is willing to provide on condition that Tenant agrees to attorn to Lender;”

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Sometimes the Mortgagee will include in a recital special information such as: “The Mortgage is a first lien.” Sometimes the pre-existing mortgage is identified by recording information. The mortgagee should either fill it in or strike it to avoid ambiguity. Sometimes the Mortgagee will provide “ Capitalized words used herein shall have the meaning provided in the Mortgage unless expressly defined otherwise in this Agreement” The Tenant should strike that sentence because the Tenant almost never reads the Mortgage.

1.16.2. SUBORDINATION

“The Lease, which for purpose of this Agreement shall include all of Tenant’s rights, privileges, interests, benefits, indemnities, and covenants contained in the Lease during the initial term and any extensions, renewals, or subsequent terms shall be, and shall at all times remain, subject and subordinate to the Mortgage, the lien imposed by the Mortgage, and all indebtedness and other advances made under the Mortgage as amended, increased, renewed, extended spread, consolidated, severed, restated, or otherwise changed from time to time.”

A strong Tenant may take the position: “provided that any such extension, amendment, increase, renewal, extension, spreader, consolidation, severance, restatement or other change in the Mortgage does not have a material adverse effect on the Lease, the Premises, the Property, or the Tenant’s interest under the Lease.

1.16.3. NON-DISTURBANCE

1.16.3.1. ACTS OF MORTGAGEE: Some Tenant attorneys elaborate a long list of various acts of Mortgagee, which should have the effect of making the Mortgage a successor landlord in fact or in effect: “the date on which (“Succession Date”) (a) Mortgagee takes possession of the Premises as mortgagee-in-possession, (b) Mortgagee commences to foreclose on the Mortgage, (c) any suit, action or proceeding upon any bond or note or other obligation or any other documents held by the Mortgagee is undertaken which deprives Landlord of the rights of management of the Premises, including without limitation, the appointment of a receiver, (d) any judicial sale or execution or other sale of the Mortgaged Property for other judgments or liens obtained by Mortgage, such as from tort or other actions not related to the mortgage (e) any judicial sale or execution or other sale of the Mortgaged Property for which Mortgagee becomes the assignee of the bid or otherwise subrogated to the moving party;”

1.16.3.2. CONDITIONS TO NON-DISTURBANCE

From the Mortgagee’s point of view, if it were senior to the Lease, the Mortgagee would consider it kindness to allow that the “Tenant shall be entitled to retain its leasehold estate, undisturbed by Mortgagee prior to a default under the Lease.” The Tenant would look to expand the events as including “beyond any applicable grace period in the payment of rent, additional rent or other charges resulting in termination in accordance with the terms of the Lease.” Mortgagee would add the further proviso: provided, however, and Lender agrees, that so long as (A) no event has occurred and no condition exists, which would entitle Landlord to terminate the Lease or would cause, without further action of Landlord, the termination of the Lease or would entitle Landlord to dispossess Tenant from the Premises, (B) the term of the

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Lease has commenced and Tenant is in possession of the Premises, (C) the Lease shall be in full force and effect and shall not have been otherwise modified or supplemented in any way without Lender’s prior written consent, (D) Tenant attorns to Lender, which attornment is hereby acknowledged by Tenant as effective and self-operative, without the execution of any other instruments, and (E) neither Lender nor its successors or assigns shall be liable under any warranty of construction contained in the Lease or any implied warranty of construction; then, and in such event Tenant’s leasehold estate under the Lease shall not be terminated, Tenant’s possession of the Premises shall not be disturbed by Lender and Lender will accept the attornment of Tenant.

1.16.3.3. MORTGAGEE UNILATERAL ELECTION OF STRUCTURAL OR PROCEDURAL NONDISTURBANCE

(A) TENANT NOT NAMED IN FORECLOSURE ACTION: “Notwithstanding the foregoing, if no “Event of Default” exists on the part of Tenant pursuant to the Lease and the Lease has not been terminated, then: (a) Lender shall not join Tenant as a party in any mortgage foreclosure action; and (b) neither Lender, nor any successor in title to the Property pursuant to a mortgage foreclosure action or deed-in-lieu of foreclosure, shall disturb the peaceful use, possession and enjoyment of the Premises by Tenant, except to the extent authorized specifically in the Lease; provided, however, Mortgagee may join Tenant as a defendant in such actions only for such purpose and without the effect of terminating or otherwise adversely effecting Tenant’s rights under the Lease or this Agreement in such action provided that at the time of the commencement of any such action or proceeding or at the time of any such sale or exercise of any such other rights (i) the term of the Lease shall have commenced pursuant to the provisions thereof, (ii) Tenant shall be in possession of the premises demised under the Lease, (iii) the Lease shall be in full force and effect and (iv) Tenant shall not be in default under any of the terms, covenants or conditions of the Lease or of this Agreement on Tenant’s part to be observed or performed. Tenant shall not be obligated to defend such action, and the absence of defense shall have no effect on the continuation of the Lease as remaining in full force and effect and Successor Landlord shall promptly upon the request of Tenant enter into a replacement lease “Replacement Lease’ on the same terms and conditions as are under the lease except for the substitution of the Successor Landlord for the Landlord, and such other changes as are provided in this Agreement, in order to preserve Tenant’s rights as initially established under the terms of the Lease, and the “Lease” shall mean the Replacement Lease for all purposes of this Agreement ”

24 PHIL1 712780-2

1.16.3.4. MORTGAGEE ELECTION TO SUBORDINATE TO LEASE: “Notwithstanding anything to the contrary contained herein, Mortgagee may at any time subordinate the Mortgage to the Lease, without Tenant's consent, by notice in writing to Tenant and thereupon the Lease shall be deemed prior to the Mortgage without regard to their respective dates of execution and delivery, and in that event Mortgagee shall have the same rights and liabilities with respect to the Lease as though the Lease has been executed and a memorandum thereof recorded prior to the execution, delivery and receipt of the Mortgage.”

1.16.3.5. NON-DISTURBANCE OF POSSESSORY RIGHTS UNDER LEASE AGREEMENT: “The leased premises includes all ancillary rights to common areas and to other areas of Landlord’s property that provide parking, access, signage and similar rights outside of the Building.” The rights of possession may be described as “the peaceful and quiet enjoyment, possession, and use” of the Premises.

1.16.3.6. NON-DISTURBANCE OF PROPERTY RIGHTS AND REAL COVENANTS UNDER THE LEASE AGREEMENT: The Tenant may also elaborate that it has a fundamental right to real covenants: “Tenant’s right of quiet enjoyment shall include all covenants and obligations of Landlord which are real covenants, including, without limitation, preservation from waste, covenants to repair, Tenant renewal options, and Tenant purchase options.”

1.16.3.7. NON-DISTURBANCE OF PERSONAL COVENANTS UNDER LEASE AGREEMENT: The Mortgagee would seek an acknowledgement with language equivalent to the following: “Tenant acknowledges that Mortgagee has a claim superior to Tenant’s claim for insurance proceeds, if any, received with respect to the Improvements or the Property.” Contrarily, the Tenant would seek an acknowledgement along the lines of the following: “All condemnation awards and insurance proceeds paid or payable with respect to the Mortgaged Property shall be applied and paid in the manner required under the Lease in order to repair such casualty loss and replace and restore such takings, notwithstanding that Mortgagee may be the recipient of such awards and proceeds by mortgagee endorsement or assignment, as the case may be.” A weak Tenant may try to contain the Mortgagee’s control by requiring that “as long as the Mortgagee’s collateral is not impaired by distribution of proceeds and awards in accordance with the Lease, then the use of such proceeds and awards in accordance with the Lease shall apply.” A Mortgagee would seek to set further conditions under which it would be entitled to control the insurance proceeds, similar to non-disturber conditions, for example, “(a) Tenant is not in default (beyond any period given Tenant to cure such default) in the payment of rent or additional rent or in the performance of any of the material terms, covenants or conditions of the Lease on Tenant’s part to be performed, (b) Tenant is at that time occupying the Premises, and (c) the provisions in the Mortgage be applied which direct the protocol of disbursing construction funds, including the posting of sufficient additional funds to confirm that the Property can be rebuilt in full.”

1.16.4. ATTORNMENT

“Tenant agrees that if Mortgagee or Successor Landlord shall become the owner of the Premises by reason of the foreclosure of the Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or otherwise, the Lease shall not be terminated or affected thereby but shall

25 PHIL1 712780-2

continue in full force and effect as a direct lease between Mortgagee, or Successor Landlord, as the case may be, and Tenant upon all of the terms, covenants and conditions set forth in the Lease and in that event Tenant agrees to attorn to Mortgagee, or Successor Landlord, as the case may be, and Mortgagee agrees for itself and the Successor Landlord to accept such attornment, provided, however, that if the Mortgagee becomes the Successor Landlord, then the provisions of the Mortgage shall govern with respect to the disposition of any casualty insurance proceeds or condemnation awards and Mortgagee shall not be (i) obligated to complete any construction work required to be done by Landlord (as hereinafter defined) pursuant to the provisions of the Lease or to reimburse Tenant for any construction work done by Tenant, (ii) liable for any accrued obligation of Landlord, or for any act or omission of Landlord, whether prior to or after such foreclosure or sale, (iii) required to make any repairs to the Premises or to the premises demised under the Lease required as a result of fire, or other casualty or by reason of condemnation unless Mortgagee shall be obligated under the Lease to make such repairs and shall have received sufficient casualty insurance proceeds or condemnation awards to finance the completion of such repairs, (iv) required to make any capital improvements to the Premises or to the premises demised under the Lease which Landlord may have agreed to make, but had not completed, or to perform or provide any services not related to possession or quiet enjoyment of the premises demised under the Lease, or (v) subject to any offsets or counterclaims which shall have accrued to Tenant against Landlord prior to the date upon which Mortgagee shall become the owner of the Premises.

1.16.5. RECIPROCAL RECOGNITION

The Tenant will also frequently insist on the absent successor landlord agreeing to “attorn” to the Tenant, by including language to the following effect: “and so long as the Lease in force and effect, Mortgagee or Successor Landlord shall be deemed to have automatically recognized and accepted Tenant as its tenant thereunder, and the Lease shall continue, without further agreement, in full force and effect as a direct lease between Successor Landlord and Tenant for the full term thereof, together with all extensions and renewals now provided thereunder , upon the same terms, covenants and conditions as therein provided, and Successor Landlord shall thereafter assume and perform all of Landlord’s subsequent obligations, as Landlord under the Lease, with the same force and effect as if Successor Landlord originally named therein as Landlord and Tenant shall thereafter make all rent payments directly to Successor Landlord.” The SNDA commonly makes the self-serving statement that the reciprocal attornment is self-operative.

1.16.6. NO SUCCESSOR LIABILITY

“Notwithstanding the foregoing, the Successor Landlord shall not be deemed to: (a) assume any Lease obligations of Landlord arising before it acquired title to the Property; (b) be precluded from collecting any rent or other sums paid by Tenant more than 30 days in advance; (c) be responsible for any security deposit paid by Tenant, unless it is transferred to and accepted in writing by the new owner; (d) be subject to any defenses or rights of setoff held by Tenant pursuant to the Lease and arising before it acquired title to the Property; or (e) be bound by any amendment or waiver of any Lease provision, unless approved in writing by Mortgagee. . . . provided however, if Tenant provided Lender with written notice of the default on the part of Landlord pursuant to the Lease and opportunity to cure as provided in the Lease for the

26 PHIL1 712780-2

Landlord, then the Successor Landlord shall be deemed automatically to: (a) assume any Lease obligations of Landlord relating to said default and (b) be subject to any defenses or rights of setoff held by Tenant relating to said default.”

1.16.7. REPRESENTATIONS AND WARRANTIES

Tenant agrees that the Mortgagee and any Successor Landlord shall not be bound by, or liable for the breach of, any representation or warranty of the Landlord, notwithstanding anything set forth in the Lease to the contrary except for those representations and warranties made applicable to times or events occurring after the Succession Date. Notwithstanding anything set forth above to the contrary, if Mortgagee, at the time it approved or consented to the Lease, had actual knowledge of the falsehood of any material representation or warranty made by Landlord therein, then any Successor Landlord shall be bound by and liable for the breach of said representation or warranty to the same extent as the Landlord.

1.16.8. SET OFF FOR PREDECESSOR LANDLORD LIABILITIES

The Tenant’s argument is that if the Landlord were to file bankruptcy, the worst case scenario for everyone, then the Landlord either has to perform its obligations or reject the lease, and if rejected, the Tenant can set off up to the amount of rent otherwise payable, for the expenses it incurs to perform the : Landlord’s obligations. If that is the worst case, so says the Tenant, then if the Mortgagee or Successor Landlord takes over the Lease, then they too should either perform or remain subject to setoff rights. Basically, the Bankruptcy Code stands for the principle that the Lease is made up of dependent covenants. The approach to set off is not standard. Some people adopt language similar to the following: “Tenant shall not be entitled to hold Mortgagee or Successor Landlord liable for any offset right that Tenant may have against any prior Landlord relating to any event or occurrence before the date of attornment, including any claim for damages of any kind whatsoever as the result of any breach by prior Landlord that occurred before the date of attornment, except those of which Tenant provided notice to Mortgagee or Successor Landlord, regardless of whether they elected to respond to such notice unless the response was the denial or objection to the assertion of default . The foregoing shall not limit either (a) Tenant’s right to exercise against Successor Landlord any offset right otherwise available to Tenant which are expressly permitted under the Lease because of events occurring after the date of attornment or (b) Successor Landlord’s obligations as landlord under the Lease.” A compromise would be that damages be limited to “direct damages” (such as those damages which were a direct consequence or reasonably foreseeable from the Landlord’s acts and would include loss due to physical damage, third party claims, damage to Tenant Improvements and damage to Tenant’s personal property, but expressly excluding indirect, consequential or punitive damages) set-off, capped in a way that prevents the lease from dropping below the value needed to support the required underwriting. The Mortgagee may seek a protection by requiring a provision to the effect that, “Notice by Tenant to Landlord of any breach or default by Landlord under the Lease will be effective to permit any set off of rent or termination of the lease by Tenant only after (a) a copy of the notice is received by Mortgagee, and (b) either (i) such time as is provided in the Lease for cure by Landlord has elapsed without the cure having occurred, or (ii) a reasonable period of time, if no time period is specified in the Lease, has elapsed following Mortgagee’s receipt of such notice, but in the case of a cure by the payment of money no more than five (5) days and in the case of a cure by performance no more

27 PHIL1 712780-2

than 30 days,, during which period Mortgagee will have the right, but shall not be obligated, to cure the breach or default, or (iii) if the nature of the act or omission or the requirements of local law require the Mortgagee to appoint a receiver or to foreclose on or commence legal proceedings to recover possession of the Property in order to effect such remedy and such legal proceedings and consequent remedy cannot be reasonably achieved within the period permitted Landlord under the Lease or if no time is provided in the Lease, then said thirty (30) days, then such additional time as may be reasonably required within the circumstances provided that Mortgagee shall commit to Tenant by written notice within five(5) days after notice of such default to perform such cure, shall immediately commence such cure, and Mortgagee shall diligently pursue the remedies necessary to cure such default including, but not limited to, commencement of foreclosure proceedings or otherwise acquiring title to the Property, if necessary, to effect such cure…”

1.16.9. CASUALTY PROCEEDS

“Casualty insurance proceeds shall be paid to Mortgagee for disbursement in accordance with the conditions of the Mortgage: (a) first, to Tenant in such amount as Mortgagee deems appropriate to repair any physical damage to any buildings owned by Tenant and located on the leased premises; (b) second, to Landlord in such amount as Mortgagee deems appropriate to repair any physical damage to any buildings owned by Landlord and located on the leased premises; and (c) third, to the Mortgagee to be applied as set forth in the loan documents. Notwithstanding the foregoing, the casualty insurance company shall pay all insurance proceeds to the Mortgagee, which may hold those portions payable to Tenant and Landlord for repair of the leased premises until such time as it has been provided with: (x) contractors affidavit and lien waivers confirming that repair of the premises has been completed; or (y) a payment and performance bond with corporate surety in form and content acceptable to Lender. After the Succession Day, if the Lease requires that all or a portion of the insurance proceeds or eminent domain award be applied toward restoration, Successor Landlord agrees to allow the utilization of such net proceeds or net award (that is, in each instance, the net amount actually received and retained by Successor Landlord after deducting all necessary expenses of determination of the amount and collection thereof, including but not limited to adjustor, legal and expert fees and expenses) toward restoration in accordance with the Lease, except that, notwithstanding the Lease, Successor Landlord shall (i) keep control and possession of such proceeds or awards and apply same toward restoration and periodically pay contractors and vendors directly upon properly received requisitions, paid receipts, waivers of lien and other requisites imposed by Mortgagee in its then applicable standard form of Building Loan Agreement and (ii) never be required to expend toward such restoration any monies in excess of such net proceeds or net award and (c) this paragraph shall modify the Lease.”

1.16.10. CONSTRUCTION

Mortgagee is not responsible for completing construction of the Premises or other portions of the Property or correcting any construction defects. Notwithstanding the foregoing, if: (a) prior to institution of mortgage foreclosure proceedings, or a deed in lieu of foreclosure, Tenant provides Mortgagee with written notice specifying in detail any failure on the part of Landlord to perform any construction obligation, or correct any

28 PHIL1 712780-2

construction defect, required by the Lease to be completed or corrected by Landlord; the (b) any Successor Landlord of the Property shall complete the construction or correct the defect specified in said notice, to the same extent, and subject to the same conditions and qualifications, as required by Landlord pursuant to the Lease.

1.16.11. LEASE AMENDMENTS

The Mortgagee frequently tries to limit the effectiveness of Lease amendments to those that are approved by the Mortgagee, the Tenant seeks to condition the effect of those restrictions on amendments by providing: “no amendment shall be effective with respect to the Mortgagee or Successor Landlord unless the amendment either (a) has been expressly provided in the Lease, and Tenant has notified Mortgagee of such amendment no later than its effective date, or (b) has no material adverse effect on the Lease, or (c)has a material adverse effect on the Lease and has not been approved by Mortgagee, which approval shall not be unreasonably withheld, delayed or conditioned. The failure of Mortgagee to respond within 10 days to a request for approval mailed to the last address provided to Tenant shall be deemed approval. Material Adverse Effect shall occur upon the decrease in the value of the Property by more than 5%, the increase of the difficulty of Mortgagee’s recovery of the Lease by extending the time for recovery by more than 30 days or the cost of recovery by more than $____________, the decrease of the term by more than 20%, lowering the rent, or release of credit enhancement,”

1.16.12. ASSIGNMENT AND SUBLETTING

Other than those compliant with the Lease terms, no Successor Landlord shall be bound by any assignment, subletting or termination of the Lease, nor shall Tenant surrender possession of the Premises to Landlord unless approved in writing by Mortgagee or Successor Landlord.

1.16.13. PRE-EXISTING DAMAGE

“Mortgagee and Successor Landlord shall continue to fund ongoing or pre-existing repairs, restorations or replacements whether from ordinary wear and tear, fire or other casualty or condemnation, provided (a) the need for the repairs first arose after the transfer of ownership to the Successor Landlord, (b) the repair is not attributable to an act or omission of Tenant or its employees, agents or contractors, (c) all funds necessary to effect the repairs have been actually received by Successor Landlord from insurance proceeds or the Tenant, and (d) they have no liability for costs of restoration which exceed any proceeds received or for losses which are otherwise uninsured or underinsured regardless of whether the lack of insurance is permitted or prohibited under the terms of the Lease.”

1.16.14. LIMITED LIABILITY

Mortgagee’s liability under the Lease and this Agreement shall be limited to its interest solely in the real estate and not to any assets of the Mortgagee not attributable to the real estate, and therefore expressly includes all (A) net (i) rents, (ii) issues, (iii) profits, and (iv) insurance proceeds or condemnation awards after all other rights and obligations related to the use of them have been satisfied or fulfilled, provided, however, Tenant may exercise any other right

29 PHIL1 712780-2

or remedy provided by law or equity in the event of any failure of Successor Landlord to perform any material obligation.”

1.16.15. CLAIMS ARISING OUTSIDE OF PERIOD OF SUCCESSOR LANDLORD OWNERSHIP

“Successor Landlord shall be liable to Tenant under the Lease only during Successor Landlord’s period of ownership, and such liability shall not continue or survive as to the transferor after a transfer by Successor Landlord of its interest in the Lease and the Premises.”

1.16.16. EXCLUSIVES OR RESTRICTIONS ON USE

“Mortgagee and Successor Landlord shall have no liability or obligation under any restriction, including without limitation restrictions on competitive uses which were agreed to prior to the Succession Date and for which the Mortgagee had no knowledge or notice; and in the event such provision was violated by the prior Landlord, Tenant shall have no right to terminate the Lease or reduce rent due from the Tenant.” Some Tenant’s require as a tradeoff that the Mortgagee declare the Landlord in default and the Mortgage foreclosed so that the violative lease of the Tenant’s competitor can be divested. They hold the Mortgagee liable if it entered into an SNDA for a prohibited use. The Mortgagee may also seek to include in its Mortgage a covenant by the Landlord not to violate exclusives or use restrictions, and to grant Mortgagee the power to stop violations by tenants. That Mortgagee power to stop exclusive use violations would be included in the SNDA, such as “Tenant acknowledges that the uses permitted under the Lease are subject to restrictions from other leases at the Property as specifically set forth in the Lease, if any, and the Mortgagee and Successor Landlord may prevent Tenant from violating those restrictions, including by way of injunctive relief, during such period that Tenant has not received notice from Mortgagee that Landlord is in default under the Mortgage and provided that Tenant shall be deemed in compliance if its uses are approved by Landlord.” The Mortgagee may also push to add violations of prohibited uses a cause for disqualifying the Tenant from obtaining a non-disturber.

1.16.17. FURTHER ASSURANCES

“The foregoing provisions shall be self-operative and effective without the execution of any further instruments on the part of any party hereto. Tenant agrees, however, to execute and deliver to Mortgagee or to any person to whom Tenant herein agrees to attorn such other instruments as either shall reasonably request in order to effectuate said provisions. Such documents or instruments shall be strictly limited in their wording to the matters of (A) the confirmation by Tenant of the subordination of the Leasehold (B) the Mortgagee’s irrevocable covenant not to disturb Tenant’s possession and (C) the attornment by Tenant and any Successor Land owner to recognize this Lease and be bound by the provisions hereunder in accordance with the provisions of this section. No such document or instrument may contain terms or provisions which increase any of Tenant’s burdens, obligations or liabilities, or decrease any of Tenant’s benefits, rights or privileges in any material respect.”

1.16.18. COMPETING CLAIMS TO RENT

30 PHIL1 712780-2

“Tenant shall not be obligated to pay any rent Mortgagee or Successor Landlord, as the case may be, until Tenant has received written notice from such party of the completion of the transfer and the due exercise of its right to succeeding payments of rent. If Tenant receives conflicting claims to the payment of rent, Tenant shall have the right to institute an interpleader suit for the purpose of determining who is entitled to payment of such rent, and to pay the rent, net of the cost to Tenant of the interpleader, in accordance with the judicial determination rendered in such suit.” Competing claims to rent can largely mirror the ALR language, by providing , for example, “Payments made by Tenant to Mortgagee shall not relieve Landlord of its obligations under the Lease, except for obligations arising after the Succession Date.” A waiver and release by Landlord of Tenant, is also protection frequently requested by the Tenant such as “Landlord authorizes Tenant to rely upon any such notice without duty to investigate or make further inquiry; Landlord releases any claims it may have against Tenant for making such payments; and, Landlord waives any defenses it may have against Mortgagee’s enforcement of the requirement for Tenant to make such payments.”

1.16.19. MORTGAGEE SUBSTITUTE NOTICE

“Tenant agrees that notice from Mortgagee shall have the same effect under the Lease as notice to Tenant from the landlord thereunder and Tenant agrees to be bound by such notice notwithstanding the existence or nonexistence of a default under the Mortgage or any dispute with respect thereto between the mortgagor under the Mortgage and Mortgagee. Landlord has joined in the execution of this Agreement to indicate its consent to the provisions of this paragraph.”

1.16.20. TENANT’S WAIVER OF OPTION RIGHTS

“In the event of any Transfer of the Property, Tenant specifically waives any right, whether arising out of the Lease or otherwise, to exercise any option or right of first refusal or right of first offer which remains unexercised at the time of such transfer, to (a) purchase the Premises or the Property, or any interest or portion in or of either of them; or (b) expand into other space in the Improvements which would require expenditures of funds by Successor Landlord. The foregoing waiver does not apply to any option to extend or renew the Lease term which is set forth in the Lease as of the date of this Agreement; Tenant does not waive any right to exercise any such option following a Transfer of the Property. If, after the date of this Agreement, Tenant acquires any purchase option, option to expand into other space in the Improvements, or option to extend or renew the term of the Lease, Tenant agrees that such option shall be deemed part of the Lease and subject and subordinate to the lien of the Mortgage in the same manner as the Lease under the terms of this Agreement, and shall be null and void upon any Transfer of the Property.”

1.16.21. HAZARDOUS MATERIALS

As of the date of the attornment, the following provision shall be deemed inserted in the Lease, retroactively effective as of the commencement of the term of the Lease, and shall prevail in the event of any conflicts with other provisions of the Lease:

31 PHIL1 712780-2

“Tenant covenants and agrees not to suffer, permit, introduce or maintain in, on or about any portion of the Leased Premises, any asbestos, polychlorinated biphenyls, or any other hazardous or toxic materials, wastes and substances (all of the foregoing, collectively, “Hazardous Materials”) which are defined, determined or identified as such (including petroleum products if they are defined, determined or identified as such) in any federal, state or local laws, rules or regulations (whether now existing or hereafter enacted or promulgated) or any judicial or administrative interpretation of any thereof, including any judicial or administrative orders or judgments (collectively, “Laws”), except for Hazardous Materials of types and in quantities as may be used or stored in the Premises (i) in the normal course of Tenant’s business (in accordance with the permitted use(s) under the Lease) and (ii) in accordance with applicable Laws, or as otherwise expressly permitted under the terms of the Lease.”

1.16.22. GUARANTORS

“Each Guarantor, if any, of Tenant’s obligations under the Lease has signed below, to evidence Guarantor’s consent and approval to, and agreement to be bound by, the provisions hereof and to guaranty Tenant’s performance under this Agreement to the same extent as it guaranties Tenant’s payment and performance under the Lease.”

1.16.23. REMIC FORECLOSURE PROPERTY

“If Mortgagee succeeds to the interest of Landlord or any successor to Landlord (such event, whether a foreclosure, deed-in-lieu of foreclosure or other acquisition, being referred to herein as a “Foreclosure”), in no event shall Mortgagee be obligated to complete or permit the construction of any improvements under the Lease, except for any obligation arising after Foreclosure and only for any construction or expenditure that a real estate mortgage investment conduit is allowed to make under Section 856(e)(4)(B) of the Internal Revenue Code of 1986, as amended and/or supplemented from time to time, and regulations and rulings thereunder.

1.16.24. LANDLORD LIEN WAIVER BY MORTGAGEE

The Mortgagee’s efforts to shovel some additional protections and covenants into the SNDA that have nothing to do with the Lease subordination, is matched to a lesser degree by the Tenant who looks to use the SNDA as a platform from which to better its bargain under the Lease and to address issues relating to the Mortgage which are not directly or efficiently covered in the Lease. One typical issue usually resolved in Tenant’s favor is the Tenant request that the Mortgagee, for itself and for any Successor Landlord, agree that the rights to any landlord lien or any other rights it might otherwise assert against the personal property of the Tenant, whether owned or leased, are waived or at least subordinated to the interest of any secured creditor of Tenant so long as such creditor’s debt is not indefeasibly paid in full: Mortgagee hereby acknowledges and agrees that all inventory, goods, fixtures and equipment whether owned by Tenant or any subtenant or leased by Tenant and installed in or on the Leased Premises, regardless of the manner or mode of attachment, shall be and remain the property of Tenant and may, subject to the provision of the Lease, be removed by Tenant at any time free from any landlord lien under statute, contract, or common law. In no event (including

32 PHIL1 712780-2

a default under the Lease or Mortgage) shall Mortgagee have any liens, rights or claims in Tenant’s fixtures and equipment, whether or not all or any part thereof shall be deemed fixtures; and Mortgagee expressly waives all rights of levy, distraint, or execution with respect to said fixtures and equipment arising out of the Mortgage.

1.17. ESTOPPEL PROVISIONS EXAMPLES

1.17.1. LIMITED CLASS OF RELIANCE PARTIES

The Tenant is motivated to limit reliance to a specified narrow class of beneficiaries: “no party other than those parties named in this certificate may rely upon or be deemed to succeed to the benefits of the provisions of this certificate” thereby excluding beneficiaries unless the Tenant expressly agrees to add them as additional parties. The Mortgagee wants the estoppel to run to the benefit of the “title holder of the Property from whom Tenant’s leasehold interest was granted, including any successor and assign of the Landlord and Successor Landlord.”

1.17.2. LEASE ATTACHMENT

Both the Landlord and Tenant want to confirm the exact components of the Lease: the initial agreement and all amendments. The Tenant would have an interest in attaching the form of Lease for the purpose of avoiding any controversy over the terms of the Lease. Site plans and diagrams are an important element not to be omitted.

1.17.3. KNOWLEDGE QUALIFIER

As a general matter the Tenant would want to limit any certificates to the knowledge of the party who signs the certificate: “To the actual knowledge of the individual signing below as the authorized officer of the Tenant, and who hereby certifies is the officer of the Tenant with direct responsibility for managing the facility and being apprised of the information certified to, without undertaking or directing any investigation, other than a review of the files and materials ordinarily in the possession or reasonably available to the undersigned without taking any measures which are out of the ordinary business efforts of the undersigned.”.

1.17.4. CERTIFICATE LIABILITY

The Tenant would look for broad language limiting liability, such as “the Tenant’s liability for the statements contained herein shall be limited to estoppel and shall not be liable for any actual or purported negligence or inadvertent misstatement, omission or incomplete certification.” ”The certifications shall not be deemed representations, warranties or covenants. Neither Tenant, nor any owner, partner, officer, agent, consultant, employee, director, or other party providing advice or services to Tenant shall be liable for the statements contained in this Estoppel Certificate. This Estoppel shall not act as a waiver, release, acquiescence, consent, acknowledgment, subordination or subjection by Tenant to any right, title, interest, lien, claim, covenant, restriction, duty or indemnification held or owed to any other party, including, without limitation, any rights relating to financing, collateral, sale, purchase or other disposition of the Property or Premises . This Certificate shall not act to waive any current or future requirement for

33 PHIL1 712780-2

consent to any such action or any other action required of the Landlord under the Lease. The sole purpose, intent, and effect of this Estoppel Certificate is to estop the undersigned Tenant from making any statement, claim or assertion that is contrary to the statements contained in this Certificate. It is not an agreement, nor does it contain any representations or warranties. In the event of any conflict between the terms of this Certificate and the terms of the Lease, the terms of the Lease shall prevail.”

1.17.5. CERTIFICATION QUALIFIERS

Notwithstanding Tenant’s estoppel as to current claims. Tenant expressly reserves the right to audit and object to any prior billings of rent based on formulas or other calculations such as common area or operating expense charges, percentage rent, and prorated charges.

Dangerous Liaisons or Elective Affinities:

Subordination, Non-disturbance And AttornmentAgreementsAssignments Of Leases And RentsEstoppels

Gregory G. Gosfield, Esq.

10062892.6 BUS

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CASH FLOW VAUJATION:DEBT SERVICE TO RENT COVFRAGE RATIO

MORTGAGEE

L_2_

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CAPiTAL VALUATiON:lOAN TO PROPERTY VALUE RATiO

MORTGAGEESUCCESSOR

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Mortgagee - Lease Issue Analysis

1. Rent-2. Termination -3. Uses-4. Value-5. Security Deposit-6. Landlord Assignment -7. Tenant Assignment, Subletting, Transfer-8. No liens -9. Landlord Liabilities -

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Document Review:

Il!l Tenant-Mortgage Issue Analysis1. Possession

2. Covenants (Personal or Real)

3. Recovery of Tenant Improvement Values

4. Recovery of Curative Costs

5. Landlord (Successor Landlord) Lien Waiver orSubordination

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Document Review:

~ Documentationo Stated loan amount can create implicit limito No blanks

o Fully executed

o Changes shown by initialed language or redline

o Acknowledged for recording

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Document Review:

1!ii! Estoppel Completiono Runs to Mortgagee's benefit

o Matches Lease requirements

I!i!l Guarantyo Liable after modification

o Liable for SNDA

1!ii! Rent Rollo Trues up with estoppel and SNDA

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'\ !l

Document Review:

~ Landlord Lieno Common law distress or distraint; statutory codification; veeo Waiver as to Tenant and its current and future Lenders

o Subordination as to Tenant's current and future Lenders

10062892_6 BUSMarch 2006

'\ ~

TOI I" d llf . d@T'11 e. It e, .LIen an· . Interme 'late . heones

i!ll Title Theory:o Mortgage is conveyance, mortgagor has right of possession and

redemption.

o Mortgagee is entitled to rents from a pre-existing lease uponentitlement to possession of the real property or the rents; notentitled to possession until a default occurs; not entitled to rentsfrom subsequent leases.

10062892_6 BUSMarch 2006

~

TG 1 L'" ~ ""IT. ~.. +- T1 eIt e, ' len ana Intermediate ' neortes

WI Lien Theoryo Mortgage is security interest.

o Mortgagee is generally not entitled to rents from a pre-existinglease until possession by foreclosure; not entitled to rents fromsubsequent leases.

\ 1210062892_6 BUSMarch 2006

T" 1 L" d T 1" Th o. It e, len an : Intermediate 1 b. eones

~ Intermediate Theory:o Mortgage is conveyance treated like security interest.

o Mortgagee is generally entitled to rents from a pre-existing leaseupon possession of the real property or the rents. Sometimesthat is after default. sometimes that is after an affirmative act ofpossession is performed; not entitled to rents from subsequentleases.

10062892_6 BUSMarch 2006

~

, ,

'"::>al

"''''10NOCON"'.c:N ()'" ~o '";::a;

Assignment of Leases and Rents Issues

~ Assignment of Leases and Rents is a separate securityinterest from Mortgage lien on land: does not merge intosheriffs deed

~ Mere Lienholder status: no right to rent or possessionprior to foreclosure; only senior tenants after foreclosure

~ Confirms direct relationship between Mortgagee andTenant, at Mortgagee's election

~ Authorizes direct payment of rent to Mortgagee uponnotice or obligation

!Ill Permits receipt of rent by Mortgagee, without possession!Ill Precedes Mortgagee's dispossession remedies

10062892_6 BUSMarch 2006

\ 15

Assignment of Leases and Rents Issues

Absolute transfer to Mortgagee, license back toMortgagor: mimics Title Theory fiction forBankruptcy

10062892_6 BUSMarch 2006

\ '16

Estoppel Issues

IIJ.'l Estoppel: misnamedo A bar to stop a change in position: "stoppab or dcsab up his

mouth"o Stipulation - agreed upon facts even if wrong

o Representation - facts asserted to be right (reliance)

o Warranty - facts guaranteed to be right

10062892_6 BUSMarch 2006

'\ 17

Estoppel Issues

~ Mortgage Rights - Rights to an Estoppelo In Lease

o By Mortgagor if Tenant refuses - veryweak• • • 1 • •

o Representations, warranties, covenants, moemmnes

10062892_6 BUSMarch 2006

'\ 18

Estoppel Issues

fi1: Conditions for Estoppel to Work for Mortgageeo Lack of separate knowledge

o Lack of separate means to obtain knowledge

o Reliance on words or acts of estopped party

o Reliance was reasonable and in. good faith

o Action by Mortgagee, based on reliance, was to Mortgagee'sdetriment

10062892_6 BUSMarch 2006

~

Estoppel Issues

Wi! Remedies for a bad estoppelo Limited case lawo Based on equity or contract

o May act as a lease modification

o Injunction against contrary position to avoid inequity

o Damages for breach of contract

o Sometimes construed against «drafter," sometimes againstcertifying party

10062892_6 BUSMarch 2006

~

Estoppel ISSLles

~ Tenant Estoppel (:B&.presentations) for Mortgagee

10062892_6 BUSMarch 2006

'\ 21

Estoppel Issues

~ Landlord Estoppel Covenants for Mortgageeo Casualty and condemnation go to Mortgagee

u Notice of Tenant assignment and defaults

10062892_6 BUSMarch 2006

\ 22

Estoppel Issues

fJ! Tenant Estoppel Covenants for Mortgageeo Notice and cure rights for Lease

o No lease modification, termination, assignment withoutconsent

o Pay rent to Mortgagee upon notice

o Execute further assurances for Mortgagee

10062892_6 BUSMarch 2006

LE

~ -cry~'-I .~ton '\11\!\.' p ~ 11 c ~ l' ~~ P ~.

.l1J-! V ~ ¥.t-" U ~ lL .ss.;» v ~,~ ~A J.\..

~ Tenant Estoppel Release and Indemnity for Mortgageeo Hazardous Materials

o Pre-existing Conditions

10062892_6 BUSMarch 2006

~

SNDAIssues

l1iiJ Subordinationo To place in a lower order

o All real property but no personal property based on estates:estates are based on subordinate rights devolving fromSovereign

l1iiJ Non-Disturbanceo Not disturb tenant's conveyed "quiet enjoyment" of

possession and covenanted lease rights

l1iiJ Attornmento To "tum to" successor to landlord's estate as successor

landlord of leasehold estate and covenants

'\ 2510062892_6 BUSMarch 2006

Priority and Subordination

1. Senior Lease: before Mortgage becomes effectivea. Mortgagee actual knowledge of Lease

b. Mortgagee constructive knowledge of Lease

ill Lease recording

!l.1 Tenant occupancy

10062892_6 BUSMarch 2006

~

Priority and Subordination.

2. Senior Mortgage: before Lease becomes effectivea. Tenant actual knowledge of Mortgage

b. Tenant constructive knowledge of Mortgage

to! Mortgage recording

c. Leasehold divested by foreclosure

d. Affirmation

I!ll Mortgagee: by non-disturber

mil Tenant: by attornment

!ll Actions: payment/acceptance of rent

10062892_6 BUSMarch 2006

LE

Subordination Chart

SEN!OR !LEASE AND

SUBORDINATED SENIOR I ISUBORDINATED AND

MORTGAGE MORTGAGE ATTORNED !LEASE

/1' Mortgage terms @ Lease terms subject to

~'1' Lease terms

V subject to Lease Mortgage terms \j subject to

terms, (casualty, Mortgage terms

assignment, set-off)

@ Mortgage foreclosure ® Mortgage foreclosure

I@ Mortgage foreclosure

does not affect lease: divests leasehold (may does not divest

automatically or may not terminate (disturb) lessee, but

preserved lease agreement) may affect covenants

®@ Successor fee holder ® Mortgagee, for

Successor fee holder unbenefited. Either successor landlord,subject to and ratifies and assumes in advance ratify andbeneficiary of lease and becomes assume lease and

which is preserved after successor landlord, or preserve it afterforeclosure; right to rent divests Lease. No foreclosure

by automatic attornment automatic attornment,

(by statute 4 Anne Ch. Tenant may be16) and to reversion automatically divested

to its benefit

10062892_6 BUSMarch 2006

\ 28

Subordination Issues between Mortgagee(Successor Landlord) and Tenant

I&l Before Foreclosure: Tenant RightsI&l Before Foreclosure: Mortgagee's Rights

o Take physical possession under mortgage remedies

o Rent collection (from Mortgagor) under assignment of rents

10062892_6 BUSMarch 2006

~

Subordination Issues between Mortgagee(Successor Landlord) and Tenant

!Ill After Foreclosure

10062892_6 BUSMarch 2006

~

Subordination Issues between Mortgagee(Successor Landlord) and Tenant-Circuity

o When a lien issubordinate toMortgage and a Leaseis later in time, if thesenior Mortgagee electsto subordinate to theLease to preserve theLease, the later juniorlien may be senior inlien to the seniorMortgage.

10062892_6 BUSMarch 2006

FIRSTMORTGAGE

INTERVENING LIEN

LEASE

1-------,FIRST-

INTERVENING LIEN

LEASE

-li/!I;>FIRST

MORTGAGE

L2!

Subordination Issues between Mortgagee(Successor Landlord) and Tenant-Circuity

o %en a Lease issenior to Mortgage,if it subordinates toa subsequent lien,the Mortgage maybe subordinate tothe lien. Doctrineof impairment iscontrary.

10062892_6 BUSMarch 2006

LEASE

FIRSTMORTGAGE

LIEN

r-----'I

FIRSTMORTGAGE

LIEN

- LEASE

;+ LIEN

LEASE

FIRSTMORTGAGE

io..o t...!I

\ 32

Non~Disturbance Issuesbetween Mortgagee

(Successor Landlord) and Tenant

ill Before Foreclosureo Primacy of Lease provisions

o Primacy of Leasehold estate

10062892_6 BUSMarch 2006

\ 33

Non-Disturbance Issuesbetween Mortgagee

(Successor Landlord) and Tenant

IIl1l After Foreclosureo Conditions:

o Issues of direct relationship (privity) by contract withunidentified Successor Landlord;

o Restrictions on subsequent owners

o Defacto recognition of tenant by acceptance of rent

o Formal ratification of lease

10062892_6 BUSMarch 2006

'\ 34

(/):::>IIICDJ~NO"'NCO""N "CO ~

o '";:::;;

Attornment Issues between SuccessorLandlord and Tenant

II!i After Foreclosureo Creates direct relationship (privity) for property rights (estate)

o Prevents claims by Subordinate Tenant of automatic or. ..

constructive termmanon

o Tenant wants reciprocal ratification and assumption bySuccessor Landlord

10062892_6 BUSMarch 2006

\ 36

SNDA "Extras" for Mortgagees From(Weak) Tenants

!Ill Before Foreclosure: for MortgageellII After Foreclosure: for Successor Landlord

o No Successor Landlord liability for prior landlord liabilities:

10062892_6 BUSMarch 2006

LE

SNDA "Extras" for (Strong) Tenants fromMortgagees

IiiIl Before Foreclosure

10062892_6 BUSMarch 2006

~

Subtle Strategies

iI Extinguish ("disturb") defaulted lease by divestiture!Ill Do not automatically agree to "non-disturb" bad

subordinate leasesiI Lease amendments may subordinate it to the MortgageiI Guaranty Lease and Tenant's SNDA covenantsiI Tenant rights of recovery for prior Landlord defaults limited

to Landlord's interest in the realty. After foreclosure priorlandlord has no interest in realty

iI Recording the SNDA helps the otherwise subordinate party­in-interest

IIlIt Lease guaranty may terminate on new lease or restatementinstead of preserved by non-disturber/attornment

10062892_6 BUSMarch 2006

'\ 39

PHIL! 711719-1

AGREEMENT OF LANDLORD

by and among

_________J

and

December , 2006

AGREEMENT OF LANDLORD

This AGREEMENT OF LANDLORD (this "Agreement") is made as of fDecember

~~~~~~~2~O~0~6,~b~y~an~~d among [ ], having an address att: (herein, together with its successors and assigns, "Landlord"), havingits principal place of business at [ J (herein, together with its successorsand assigns, "Tenant"), and as agent for the Secured Creditors (as defined in the Financing Agreementreferred to below) having its principal place of business at (herein, together with its successors andassigns, the "Agent"),

RECITALS:

A. Reference is made to the Financing Agreement, dated as of [among Tenant, the lenders from time to time party thereto (herein, together withsuccessors and assigns, the "Lenders") and Agent (the "Financing Agreement").

], by andtheir respective

B. l'eHHHlc-hH s-,1gH,,,,,,j·-\<·,-·d,,.!i'VE"-4~_ffi-fGj3eH--ERti Lea"eh01 d MOftga~lil

&47l+lotty--Agi'Be;11BFH] (Ihe ·'Seet+J'i-ty--lfwtFllffieHtPursuant tQ the Fin.an.cing Statement Tenant has pk.diLedi1s.right title and interest in a!1d..tQ Tenant's [ J Itbe "CQ)Jm;.eLal") in favor of Agent, forthe benefit of the Secured Creditors, to secure Tenant's obligations under the Loan Documents, as definedin the Financing Agreement (the "ObligatiQns").

C Te)WJ1LhilS IJgrcC,1, !,?deliyer.a leasehQld mQrtgag,e ilLfavQr of Agent, fQr the benefitQfthe Secllfed Creditors. to fllJiher illCcure the QbligatiQIlS.

D b.-Landlord is either the owner in fee simple of the land situated in [county, state],and more particularly described on Exhibit A attached hereto and made a part hereof (the "Land").

Ii &-LandlQrd and Tenant are the present lessor and lessee, respectively, under thatcertain lease identified on Exhibit B attached hereto and made a part hereof (as the same may have beenheretofore amended by instruments identified Qn Exhibit B, the "Lease") pursuant to which Tenant holdseilflBF-a leasehold eJ,,*,fr1.e-aSBJ1B.k,j.estate Ithe "Leaseh.Qld Estate") in and to the Land and all buildings andimprovements thereon (the "Improvements") (the Land and Improvements, together with allappurtenances thereunto belonging, collectively are referred to as the "Leased Propertv"),-fH'l'l€morandumeHihDrt form o+:-wftich was f1IGd for rec0'f<'!...ffi{ ],-Bf.t1JB [county, sta~'6j,L-at1B-Roe€B1'Ek;.

J.::. E. As an accommodation to Tenant, Landlord has agreed to execute this Agreementin favor of Agent, for the benefit of the Secured Creditors, and its successors and assigns with theunderstanding that Agent and the Secured Creditors are relying on the agreements set forth herein as aninducement to making certain loans and other financial accommodations available to Tenant pursuant to(and/or as described in) the Financing Agreement, which will be secured, in part, by a lien granted byTenant upon Tenant's interest in and under the Lease and in and to the Leased Property.

AGREEMENT:

NOW, THEREFORE, for and in consideration of the premises, and for the sum of TenDollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties hereto hereby agree as follows:

I. EstQppel Statements: Landlord makes the following statements for estoppelpurposes only:

(a) Landlord is the owner of the lessor's interest in the Lease.

PHIL1 711719,·1

(b) The Lease has not been modified or amended except as set forth on Exhibit Band the Leasej,)jnJ:UJ,U\)I;;J:,,~nQsJIQi;J, The Lease, as it may have been modified or amended containsthe entire agreement of Landlord and Tenant with respect to the Leased Property, (except for Ii) l\illC,surviving representations, warranties, covelli!1lts.m:jndemnities ~et forth in that cel1ain Purch!llie and SaleAgreement dated N=mber 15, 2006, by and belweeD-Ie,!l<l!1t. auelleT, and LaDdlord, as purch.as~LJl!1d

ililsuch agreements as may be set forth in routine correspondence and similar documents, none of whichare material in nature),a+14"'';';flc[itl,l-cifH'L',Hl+>EH:'4+c'f}\,

(c) The present term of the Lease commenced on [ December _,2c--2lllliil and the present term of the Lease will expire on [ Decembgr, 2c--2JU.liJ, unlesssooner terminated in accordance with the provisions of the Lease, Tenant has four (42 options to renewthe Lease for consecutive Jerms of five (52 years each, Tenant has no options, rights of first refusal,termination, renewal or extension rights, exclusive business rights, other rights to extend or otherwisemodify the Lease or to purchase the Leased Property, fexcep: that, SLf!3:jBC-l40 the terms of thc Leas~;;

t-e'l'fl'!-B'j'-,h;;'-bc'aS€-ffittB1T1&t+ea+l:rwH1 renew fof-{__] SO€€~"'€-!*!l'iBds of f__] yeae(s) eBC1,,]exceptali s~t forth in the"Lease,

(d) The minimum monthly or base rent currently payable pursuant to the terms of theLease is &[$ ) per month, No other sums are =11I1tly required to be paid by Tenant toLandlord except as set forth in the Lease, o)(ccpl GS follo',',s (ex<;-1tl~molln(s required :0 be pai4diW61,ly '0 :hird par:ies, slich-a&--l'0a1-B,;tatG-t-a>les, lI:ility chw-ge1l-flfld insurance premilln,,*f other than baBerent paid by Ten<lllt for the period furougb [ ].

(e) All rent and, to Landlord's knowledge, any other sums due and payable toLandlord under the Lease have been paid through the date hereof, and, to the best-of-Landlord's actualknowledge, wiJhout inauhy or investigatiml, all amounts required to be paid by Tenant through the datehereof directly to third parties under the Lease have been paid,

(I) As of thuate~ Landlord holds no escrows, deposits and sums fromTenant under the Lease,

(g) -No third party has-Btty-Bt)tioo-&Htght (0 purchase aIJ-er-any part OHM-bc~J2F<Jp;;rty, and Lm,eteFEI-hil5-HB-a€l-Hal-flBt-H3€ of any claims by-#J+l'El'i'aR+etH'€1nting to tho LeaDod Propert)'ef-i.tf;.-llil€,

Ehl--To the best of Landlord's knowledge, Tenant is not in default under the Lease,and no event has occurred and no condition exists that constitutes, or that with the giving of notice or thelapse of time or both, would constitute, a default by Tenant under the Lease, TQJhe be.s!.J2LLan.dIQrd'skl1Qwledgp>-Landlord has no existing defenses or offsets against the enforcement of the Lease by Tenant

Q:Jl Hi- Tenant has performed all of its construction and development obligations underthe Lease and is not required to construct or materially alter any additional buildings, structures orimprovements thereunder except as may be necessary from time to time regarding Tenant's maintenanceobligations under the Lease Qr as Qtherwise owyided.iD-lbtiease [There may be immediate reMirJililiJWllms if so they wifl be set forth in the {&ase as an ~hibit thereto),

ill If)---To the best of Landlord's knowledge, as of the date hereof, Tenant hasnot assigned or sublet,.-(mnC+lBHed,1;,y!)6{1*Bat,,0-<.'lf-et1'l0l~+t' its interest in the Lease, theLeased Property, or any part thereof,

2

PHILl711719-1

(I,)

guaranteed.

2. Consent to Mortgage. Landlord consents to the execution and delivery by Tenantto Agent, for the benefit of the Secured Creditors, of ~'iry-I-Rs+Hjffi_~lllildmortgage Cthe"Le.aJ!e.huid.M9rtgage") mortgaging, pledging, conveying, transferring and assigning as security for theObligations, inter alia, Tenant's interest in the Lease and Tenant's leasehold interest in and to the LeasedProperty, and to the recording of the Seeurity-l-l'ls+fUfl_+Le.<lliehold Mortgage in the land records of[county, state). provided that the Lea.s<:hold Mortgage shall at all times be subordinate tQ LandlQrd's feeinterest in the Lea.sedl'.mpertv and any mQrtgage nO-YLQr hereafter encumbering Landlord's fee interest inth~ Leased Pl;QJ;)ertv. Landlord also consents to the execution and delivery by Tenant, and the filingand/or recording in the appropriate public records, e+-fiuBR-additioRal doc-Yffi€nts aBd instruments as Agent1-Rfl)'-tlC€-RH'€68;;""'Y-HHe""iHffikH(+·e;;ffib IiDb, Pl'Fk~Jt&i.nla.ifl-a-J.ien-tlpon and agffiR5t,-B~€tIffi7'

~!'eDt in, Tcnant+-iffi'erest in tbe Lease aH4-th€-L-BBooB-P-fej3BftJ';-tneWdj+Jg;-bB~lm.cJ1

Uniform Commercial Code financing statements~y necessary extensions th-"!~(the "AdditionalDocuments") aLllLe deemed ncc"sa1yoerfect the se.QJL]tv interest of the Leas~Q

Mortgage. Tenant and Agent acknowledge that the foregoing consent is limited to the encumbrance ofproperty rights owned and inuring to the benefit of Tenant, and Agent agrees that neither the SeeuFi+yJW';+FlIffi€-R+LeaBehQld-MOl1ga$ nor the Additional Documents shall purport to encumber Landlord'sinterest in the Leased Property or the Lease, or any other property and rights owned and inuring to thebenefit of Landlord-

Jc.....,- f(:).D,,§'j::c.\~tE!~f8f;~'-GfJ<,igj±lS:,-·bfm{+IBFdconseRts to thB-eK-et'Biw-by-AgtWH'-Bt'an)' and all--!'i ghto; and remcdice: peffFl.]{j'ec!-lffitler-fh€-SB<."lfl'iiy-I;lstl'tlfl'IBnt and the Ad4itffim,,1-9<:.,8I+11Bl1{*;aoo to the e):-et'€iw-trf-soc-lHldditional-Jeg&HJflcl-<-"<flffiahle rights aoo--l'6J'Fl€4iBs-a~+abJ<He

AgBnl0-R-(+t~'¥ent of a default·-eF-e..¥€~·€I"41HI+-H+,df'F+I'K~-lc,{+aH-G{·)""'H,,ef1{;;, and that the l,,~ldMQrtgage and Additim:t.aLI:2Qcuments shall at ill! times be subQrdipate t!Ll"andIQrd's fee interest in theLeased Property and any mOJ:!lmge nQW Qr hereafter encumbering LandlQrd's fee ivte.reliJ in.Jhl:..Le.a.sedf'r.0J1¥rty, Landlord agrees that neither the execution, delivery and/or recording of the Securit)' Insl1'8+11_OI'-1+teL=hQld_Mm:tgagl: Qr Additional Documents shall be deemed to constitute a default or event ofdefault under the Lease,

.... Cqn~Gilt.to,Ci;"Jcisc,))rE,{g!J() ....S.ubject to the termS...JID..d_LQlli!jJillnLof t.hisAgreement Agent shall ilaY.Ltb.l: right tQ fQreclQsure Qn tillLL=ehold MQrtgage an.d..J.be Ad.diliQnalJ2ili;.,ume.nlLlillon a default by TelliillLunder the LeasehQld MQrtgagl: ] Joon ag,c.!:ll1,,ILU,11,I.ccJh.c),,,!-i<!J)P.c),C.P,1J)C!l,tS, LanJllilliishall 0) not hinder Ag,ent.'B actions in assemblingall QfJhe CQlIaterallocated on theLeased Property, OiLp,tm:l1,jt Agent to rWQve saidScllateral from the Leased P[QJ2,erty withQut charge.subject tQ Section 4 belQw, am:LWil not hinder Agent's actiQM..in e.nforcing itsJiens OlLS.aid CQ.lI..atera,I ..

4. fught :0 !3:lO!'cioe Ri;${H.,f"-TBtlilnt. Landlord agrees l~tH;hiJJl-+HW<HI,,,

figh{~.Iord ag!'eeHo-feeegflia~'felse thc-reof) to exe!,GH;e--tln)' rights aRd options uncl€~Lease In the name--e+-Th+>a~ency of af'l--0¥ffiklf default under the beeCH'it)' IJ,slFtH-RBFl+fr-eH'f-aMl-a./k+t+te-cliJ to Agcn t deIfYBfs-neti+3€-0'f'-sBBfl-e.¥€nt of defauIt ffi-LiJflfJ1Bfcl~Rem.ill'i!J 01 CQ.llat!llillIf (ilJhe Lease is tenninated by l"andlQ.rd and LandlQrd obtains posseBSilln of the Leased Property, or (iUTenant surrender;WQ.SB=ion of the ,CQ.lIateral tQ..AE11t oJJJii) Agent obtains p,QS.seSJiimLQ.fJh.e CQ.!lateralpursuant tQ. CQ.Urt m:dcr or otherwise ((i).(iii) = collectively refeued to h~.Iein a~ceipt ofJ"Qs.sessiQn"), AgenLsblllLhllve the option to remove tbe CQllateral from the Leased f'rQp.o!1Y....Qr leave the.Cilliateral at the LeaseliJ'rQpe11v for up tQ pinety (90L.days....aJter the occurrence of tb~...R=ipt QfP..J2s.s_e.sJiion (the "Pqst,Terminati.QJJ reD,od") in excban~. for paJdng landlord tbe Per Diem Amount foteach daY after Receil~.of Posse.ssiQV through the dat~g",nt vacateLtb~ premisS's or abandon,S tile=ining Coll..ateral. 6Q¥pt shall notiiy,.Lan.dlord. in writigg, Qf sllch.l:lO,ctij)jl within ten (lO},businessdays after Ag,eJ)J rS'c"jyes wxitten..J:\oJi£.e....of the occurrepc:e pI' tbe .ReQl:iP..Lof~essipn. In the eV'11tAgent fa.ilLto maJse such ..an e.Le.CtiQl1.jll a tim!21y mal]11er, the.n Jb~Y....Qst, TerminatiQn P~rio.9 shiill

3

PHIL! 711719·1

autQmatically be deemed tQ be thirty (30) days after the =Urrence Qf the Receil!L9f PQssessiQn, Thetenil "Per Diem AmQunt" meallS-an amQunt eguili<L1/3J)fh Qf the mQnthly rent and Qther charges calledfQr by the Lease (with all.taxes and Qther charg",s-pm-rated based on a 360 daLyear), withou, accelerationand withJluJ regard tQ any pre-e"isting defaults by Imant and excluding any amounts that IellanUsQbligated to pay und-er the Lease to the e"kJ)t-.SJJ£b amQunts are incurred, acc=<i beClime due Qr arehas!':d on acts or Qmissions prioJ t(LAgent's ReceiptofPossessiQn Ihe per Diem Amount shalltKllaLWjJ;je same time such amQunts are due under the L\!,ase, lfAgl)nt elects tQ remili.n in possession, Agent shalIhave the right to PL@are the CQllateral fQr saLe and cQnduct a mtbJic auctiQn Qr a SlLcaJled "going Qut oflillsiness sale" of the Collakral at the Leased P[QJ2tliy, IJ Agent damages the Leased PrQpertv-<!udng itsQ.ccupancy m as a result o~oval Qf the CQllaterillr,mil the LeasedYmperty, Agent will repair aDdrestQre the Leased Property to as--RoQd a conditiQn a5 it was in immediately prior to the da1&Qf AgQ!1t.:EReceipt of Possess,innJgent's election to kaye the Collateral atfue Leased PropertvJJltd~r the terms gfthis Secti.Q1)",ffiall nQt be c.Q1)..s.Irued to be an exercise oLAg,,,,nt's rights under the Leasehold Mortgage an.dAdditional DQCUl1le.nts, If (i) Agent electHo-fur",gQ any rightsor iDJerest that Aill'1J1llall to the Collateralor (ii) Agent elects 1m is d=d to have electedU.o h,ave the Collateral remain at the Leased Pw-p-erty forthe pQst-Terminalion Period but Agen.! fai.lLto remove the Co!latMaJ prior to the exnirati.on of said Post­Tenilination Period, then, in either eyent. Landlon:Lsball thereafter be ",ntitIed, Ollan immediatuasis, toexercise all rights availabLe to Landlord with l})§pe~the CQlla,teraL \!'hetheUlLJaw or in egMy,in>o1lli:Im&_but not limited to, the right to removetbe Collateral from the l.eased.Eroperty,

5, No Liability by ReasQn of Assignment. Neither Agent nor any Secured Creditorshall have any liability or obligation under the Lease by reason of their acceptance of the Sc--€ttfiiyJnDtrum~'B-!LeasehQld MortK~, Landlord agrees that Agent shall be liable for the obligations of theLessee arising under the Lease for only that period of time during which Agent owns the leasehold estatein the Land demised thereunder following its acquisition of title thereto by foreclosure or otherwise;provided that if Agent succeeds tQ the leasehold estate, Agent shall be obligated for any and all rentdelinquencies and/or other outstanding obligations under the Lease, except for those which hoth Ii) are;by their nature, not susceptible of cure by AgenLand (iil do nQt materially reduce the value of tQeL=edP~rtLQr the Lease, as reall,Qnably detennined by Landlord,

6, NQtice of Default Under Lea;;~,

W In the event of any default or event of default by Tenant under the Lease, or inthe event Tenant shall fail to perform or observe any of the terms, conditions or agreements in the Lease,Landlord shall Jll.e"L\<aS_onable but gQod faitluiJ..oJ:!.S.JQ give to Agent at its notice address specified inSection 13(a) (or such other address as Agent may indicate by written notice hereafter to Landlord), acopy of the written notice given by Landlord to Tenant (a "Landlord NQtice of Tenant Default"),-&AGbaflGkwd-a-g;l'60s-tflal no lerminatieH-e4:..me--beaf;e by reaGon of 'f-eHant's defa"1t :hel'e~tHElel' shall beeffective "1116s,.: a LernjJ.ord 1'lotioe of Defatl+t-s1nl-l-l'~'i'Sf-flB-\I€ been giVC1HEl Agent in acoardanoGo-w-i+h-t1iclet'+1iS of :hi" AgreeJ'H$lc"

(b) In the event of aDY-<Icla...\JlLQr event of defa_\!JLby Tenant und~~ the LeasrlmldMortgage or Loan Docu,wnts. or in the event Tenant shllLl faJI to perfonil or ob.serve any Qf the tenn~

i'.illldi'io!l.s OLJJ.greements in the Leo,seh.oJd Mortgage Qr Loan DQcuments. Agent shilll use reasonabJuutgQQd faith effu!1s to give tQ LandlQ1'd at itSJJDlice addresll specifies! in Sed:IDn 13(a) (or such other addressas LandlQ1'd mav.Jll.dicate by written npti,ce hereaitITJ.Q A,g,eQtl a copy of the writtt;<D !lQJjce given,RvA"gent tQ Tenant (a "Agem Nlltice of Tenant Defaul!,,),

7, Agent's Right to Cure Defaults Under Lease,

4

PHILJ 711719,1

(a) Landlord agrees that, in the event of any default by Tenant in the performance ofany of its obligations under the Lease, including, without limitation, any default in the payment of rentand other charges and impositions payable by Tenant thereunder, then, in each and every case, Agent may(but shall not be obligated to) 0*e"*se any and a~-f-igJtls-B-I@l£'--Sliid default by Tenant under theLease by performance of said obligationJi in the name and on behalf of Tenant.

(b) Landlord further agrees, prior to exercising any rights to terminate the Lease, thatAgent shall have the right, but not the obligation, to cure any curable default by Tenant under the Lease,dtber (j) within five ~days following a Landlord Notice of Tellilllt Default with respect to the paymentof rent or other sums due thereunder aooQb(ijl not more than 91l days fo!-lewtng-il-L-BJldlord Notice ofG€4'atB+:tlliu!p.plicable cure periili! under the Lease with respect to other defaults curable by Agent,wi-t+!such 90 B-aT!leriod beil:g e"ternk.~finite!y GO long as AgCR+-RilS comme-f\G€€-BJ~-ooeeding in aGBffifl~TfOilWf\ab+e-+naHf1er to CUI'e-ffilob---t+e-faBll or to gain--rosnessioR of the Pr8j'l€l'ty-W-here-B-Uob!7OS$SSioo-is-Hcecssary in--BF6cT to cure s'lCh defElu-J-t-(aHtl,iH slich ease-;--R7-~BW-i-ng the o\ltaining of SUBIlposncssion,Agent--j3romplly eOH'trn<o+>ees--and proceeds in-a--Tcasonably commBfC-iil! manner to cure 11l+eft

dBfffitJ-tl.

(c) In the event of a default under the Lease which is not capable of or susceptible tocure.so long as Tenant r€;mains a party thereun_der, Agent shall have the option to enter into a new Leasewith Landlord upon termination of the Lease (whether by rejection in bankruptcy proceedings orotherwise), which new Lease shall be directly between Landlord and Agent, shall be for a term equal tothe term of the Lease which would have remained absent such termination or rejection, and shallotherwise be on terms identical to the terms of the Lease;"provideLh=ver. that Landlord's obligationto enter in!.o-Sllch a Lease....sh.all in all cases be subiJ4;lJ.Q (i) said event o..Ldefault being cured there.b_y. oruil said event of default being made Sllsceptible of cure ther~by and Agent's obJigat!J:lO to promptly cures.aid event of defa!!lt if it is of a contin!1ing nature.

8. No Modification or Tennination of Lease Without GeHWn+---e.J.Notice to Agent.Landlord agrees not to accept any surrender of Tenant's leasehold estate and interest in the Land, LeasedProperty, or any interest under the Lease nor agree to any termination or cancellation of the Lease,whether pursuant to the terms thereof (including, but not limited to, any rights to terminate as a result ofdamage to, or destruction of, the Improvements) or otherwise without til~-)C]3f<lIW written consent of~reasonable but good faith effQJ:ts to provide prior wJillim notice thereof tQ Agent, and Landlord agrees thatit will not, without lhB-B-x-j3i'efls-wJoi-tte" consent Musing reaaonahle but good faith effurts to proyide priorwritten notice thereQf to Agent, modify, change, supplement, alter or amend the Lease either orally or inwriting, it being-BgfC--€d by the pOl'ties--h-efC-tH-l+,ot any termination, oonBBilation, modification, ci*l"ge,sB·17l7+e-me-Rt;--a-l-tefa-tiB·I'l-e1'--frJl1Bl1~-t11oo~1'-WfiHe-n--c-Bfl;;Bl1-t-shal-l-Be-¥effi-'H'td

of no forec--<''l'-e-l+eBt.

9. Agent to be Recognized as Successor Lessee.

(a) In the event Agent shall ever become the owner of the rights and interests ofTenant in and to the Leased Property and the Lease by reason ofjudicial foreclosure, exercise of power ofsale, other proceedings brought by Agent to enforce its rights under the £<lcurit)' Jnstrun'k't1-t~el1Qld

MQrtgage, or through any other means or manner in connection with the Loan Documents (including atransfer or assignment in lieu thereof), Landlord agrees that Agent shall be deemed to be Tenant'ssuccessor and assignee under the Lease (notwithstanding anything in the Lease prohibiting or restrictingassignment by Tenant or establishing conditions under which an assignment by Tenant would bepermitted) and shall be entitled to all rights, benefits and privileges of Tenant under the Lease, andLandlord and Agent shall be bound to one another under all of the terms, covenants and conditions of theLease for the balance of the term thereof remaining and any renewal or extension period thereof duly

5

PHILl 711719-1

exercised as required by the Lease, all without the need to execute any further instruments on the part ofLandlord, Tenant or Agent to make such succession and assignment effective.

(b) Notwithstanding any provision of the Lease to the contrary, Agent may assign itsinterest in the S€6l+l'ity-j.nstr'HffJBm~.hQlQM~gaM and the Additional Documents to any commercialbank or other institntional lender, which assignee shall succeed to the rights and obligations of Agenthereunder,

(c) Notwithstanding anYJlrovision of this Agreement to the C12utrary. th~ rigb.t£Jilldinterests of Tenant in and to the Leased PropertY..-and" the L~e shall not be assigned or in anyway~ITed to a.Jhird::P.arty, other thau,Agynt or Agent's successor in interest to the Le,,&,sehSlld.l\101igfl&i'and the Addil;iQnal Documents (which shall be a commercial banlLslLDJber institntional lender. aspJ:illllded abovel. other than pursuant tQ_and in C.Q.mpJ!.ance with the termS,,, restrictions,..wnditiQns andreguiremcrlt:Lof the lease (including. but not limited to. the prohibi.tioJ1S a,nl! restrictions on assigning andsubleasing therein).

10, Condemnation and Insurance Proceeds.

(a) Landlord agrees that (i) any proceeds of insurance pertaining to the LeasedProperty-pavab.!§_trLTenan.Lp,ul:8Uant to the lease. or (ii) any award resulting from a taking of eminentdomain payable to Tenant pursuant to the L=,,-shall be paid in accordance with the tenus of the Leaseand any ffisf-mortgage encumbering the fee interest in the pr-ej,eftyL=d Proj2er!Y. Landlord shall haveno right to any portion of Tenant's payment,i-f-afl)'-; ill any condemnation award payable to Tenantpursuant tQ the LeasJ),.JJ any so long as any portion of the obligations secured by the &~InctrumontLeasehold Mortgage shall remain unpaid.

(b) The parties hereto agree that each of Tenant, Agent, Landlord, and anymortgagee of Landlord's fee simple interest in the Leased Property shall be permitted to appear in, andparticipate as interested parties, in any condemnation proceedings pertaining to the Leased Property,subject to the limitations set forth in the Lease.

11. :WUi-YBJ'Sulli2rdjnatmn of Rights to Tenant's Personal Property. Landlord herebywa-i-¥esslJ1l.Qrdiu~in all respects to any security interest in and to the CollaJ~raJ now or hereafter held byAgent any contractnal (including any which may be contained in the Lease) and/or statntory liens and anyrights of distress or distraint with respect to the PfBp~'f!y-0+-+e+\ffil{-(BT-+enant's suble;;;;ees, successors ora;;signs, iflffilding Agen~)CQ]J_attral from time to time located within or upon the Leased Property~'Hlfl{"-&-l'-r-eJl0f(N, which Landlord now has or hereafter may have during the term of the Lease or anyextension thereof. bandJord agrec-&--!'e-e*OC-0-K."-1H'lB-6B{i¥"""f;tl<7h other ins,rumcnts all may be reasonahlyfef(-U£Gtod by Tenant or Agent fronq..til11e to timo to G.yi4"neB--B""*,,,+WnH~

12. No Merger of Estates. It is hereby agreed that the fee title and leasehold estate inthe property demised by the Lease shall not merge but shall always be kept separate and distinct,notwithstanding the union of said estates in either Landlord, Tenant or any other party, whether bypurchase or otherwise.

6

PHILl 711719-1

13. Notices.

(a) Any and all notices required to be given hereunder shall be personally delivered,delivered by reputable overnight courier or made by registered or certified mail, return receipt requested,addressed to the parties at the following respective addresses or at such other address as the partieshereafter may designate:

Notices to Agent shall be given to it at:

With a copy to:

Notices to Tenant shall be given to it at:

With a copy to:

And

Notices to Landlord shall be given to it at:

With a copy to:

With a col)){ to~

7

PHIL! 711719-1

Unless otherwise provided herein, any such notice or demand shall be deemed given when personallydelivered or, if delivered by ovemight courier, on the next business day, or, if mailed, three business daysafter deposit in the United States Mail. All payments due hereunder shall, unless otherwise so directed bythe receiving party, be paid as such addresses.

14. No Oral Change. This Agreement and any provisions hereof may not bemodified, amended, waived, extended, changed, discharged or terminated orally, or by any act or failureto act on the part of Landlord, Tenant or Agent, but only by an agreement in writing signed by the partyagainst whom the enforcement of any modification, amendment, waiver, extension, change, discharge ortermination is sought.

15. Authoritv. Tenant represents and warrants that it has full power and authority toexecute and deliver this Agreement and the execution and delivery of this Agreement has been dulyauthorized and does not conflict with or constitute a default under any law, judicial order or otheragreement affecting Tenant or the Leased Property.

16. Inapplicable Provisions. If any term, covenant or condition of this Agreement isheld to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without suchprovision.

17. Duplicate Originals: Counterparts. This Agreement may be executed in anynumber of duplicate originals and each such duplicate original shall be deemed to be an original. ThisAgreement may be executed in several counterparts, each of which counterparts shall be deemed anoriginal instrument and all of which together shall constitute a single Agreement.

18. Goveming Law. This Agreement shall be govemed, construed, applied andenforced in accordance with the laws of the state where the Land is located.

19. Joint and Several. If Tenant or Landlord consists of more than one person, theobligations and liabilities of each such person hereunder shall be joint and several.

20. Headings and Captions. The headings and captions of various paragraphs of thisAgreement are for convenience of reference only and are not to be construed as defining or limiting, inany way, the scope or intent of the provisions hereof.

21. Number and Gender. Whenever the context may require, any pronouns usedherein shall include the corresponding masculine, feminine or neuter forms, and the singular form ofnouns and pronouns shall include the plural and vice versa.

[Remainder of page intentionally left blank]

8

paILJ 711719-1

IN WITNESS WHEREOF, Landlord, Agent, and Tenant have executed this Agreementas of the day and year first above written.

AGENT:

[ ---.1

as Agent

By

Print Name:

Print Name:

Print Name:

Print Name:

Print Name:

Print Name:

CLI·1464911v2PHILl 711719·1

Name:Title:

LANDLORD:

ByName:Title:

TENANT:

ByName:Title:

)STATE G-F-==========--J

COUNT¥-O-lF'-=========--)

On thi:;, tho __ day of _ ' 2006, befor0-fflB-a-NDtary Publi~ the Stateafore;;aid, l*'fS6f\il+lY~£H'8€ , to me Imown--(BfSil#sfiletefi.l~ho acknowle4ged himself/horself to be the- ef[ _], aJw-ac-kRowledged :0 1110 that helsl10, as SUBh-ffi;j-y-al±IJ1B1~OO

effk-c.....-ef-[ ] and being anthBrized to do so, exccuted the foregoinginstrument fef----l.J.'B----j3B'170seS therein oontai-noo by signing the name of1:============_J-by-l~rnelfassuch duly au-thBfiud-BffiBBr.

tn--wftfloss whereoL I h"r-Blffite-BB-t my hand and amcial :leah

STA-T-E OF

COUNTY OF

0fl.4hil1, the __ day of , 2006, befor~wNe-ta-ry-Publio ef the Stateaforesaid, persoHatly--i1tJj*arod _, te me Imewn (131'

sa:islactoril-Yi,HweJ.1), whe acknowledged hi~+hBfsB+f'-te-b<.-4hB of[ ], and aeknewleclged-to-+l'le that helshe, a,; such dulyffil-thBmz<d-e-ffi€ef-ef-[ ] and being authorized to do-so,_u-ted-4J'le-fefegoing instrument for-the--j'ltltJ05e.;;--thkwein contained by signing :1'le-+1affie-ef[ ]-by--h-i+l1-S014fh<i'mcl f a:l such duly auth0i'iud-effi0€r.

In 'l.'itness whcreof, I hcreunto uot'-fl,y-ltafJd and omcial ,;oal.

CLl-1464911v2PHIL! 71 1719-1

STATE-0F) SS)GGUNT¥,-<OlH'-I'=========---j

Gfl...+Ris, the day of , 2006,--OOof<-'-I"'~-Bblje of the Stateaforesaid, pGmol1all']'-Bj3~ , to me lmovm (Ofsat+sfac-{<lJ"-!rI71'ffi!~~'l&W~"Ei-l1tm~-f50+f-tB-b<Hj_ of[ j,[H\i.,,'w·_-"t''''';S'J'-*,'HT(H~+li+~l-;-af1tl- aeknowlc-dgcd to me tha:he/she, as ,;ueh duly au-H'K,B-Z€B-HmCer of [ I and beiHg~('l-;-C)[ecuted :~~-FHm'*'{~t€-J*H'PHS0Hh~I'0ifH)e-ntained by signing th-eflflffl€-Bf-[ j-l7y-+1-fmseWhemclf as sueh duly authoriu-B-Hff+ee1'-o

In wi:ncsc; wherBZ,f,]..j1-0r-eHffi-e-se-t--tR-y-#and and official Gcal.

EXHIBIT A

Legal Description

PHILl 71l7l9-1

EXHIBITB

Lease and All Modifications and Amendments

[~~_ffiy-r'\greeJ11ent],

recorded-onReeocds (the-"Mortgage"),

J ("Mortaagee"), is ti,e-owner anB-llo1der ofthat~rv"lftgag.edated as-of , 2006, granted by Lafl€lord to Mortgage%;

, 2006 in [Book __, Page __' of [county, stat"!], Land

---Mortgagee joinl1 in the c>H'l-€t'Boo of the foregoing--Agr€Ol11ont-B-f Landlord fOH-h~~~'{ling w; fol~

2, MortgageB-eOfl;;Bnts-!B-+BJlant'!; encumbering i~1{-lkl-tnt-eres':in the P-fOj3<ll't)'-afl,H,t;;~st ar; les;;ee-i+l-t~lc-bear;e by exeeuting and do1i-vcFing--t1l~t-aOO--AOO.j{oiofHH

:QBe\ffilB1'>ts,-afld M 0rtgage-e--eotwe1l'~~rci r;e-BHts righ:r; and-l'el'l'lBdios-#'BR'HJMCJ'-agaiflstTenant and tho loowhBkl-iflWl'OSt-in-the Property,

3, Mortgagoe-a~-h{ll-the Agrec_-of'-hat141B1~1 sUP,'ivo foreclosure of~Mortgage--of-Sil.H3-{,JC-t-he-J';'(}j3e\'ly-pltfSl±affi-to-power of sale eontaine4-ifl-tlle-MBrtgaga, and Mortgageeagrees that MC}Ftg.agae DhaJl be bound by tlKa-ter-ffiS-afld conditions 01' thc-Agreen'KlHt of Lan4lB1'(j-4HcFiflg~d-th~goo-i~~-e-s-ifl'lfrfe title to the Property.,

IN WITNESS V4+ER-EGI', Mortgagee has issued-this Joinder \,y Pee Mortgage-e-to-ee-B""e'Hledas 0 C --,--2OO(r.

--NBJ'H€7

Title:

I, ' "-N<'tfH')'-~n ana Cor and-Tffiidit>g--i-B-silla COBn!)aBd-Slate, DO HEReB¥ CER'T-I-A" THAT _ ' the ofl__ ===:-:!,t)efS01'1ilHy-k..HBWfl....:f.e--A18 to be the GQ-Fl1€-p<.....>.fSOn vdlOse n61.'fI:&-i-s

StI-Bsei*ee--te-tfl-e-ffwegeing il1strult1t\fl-t:-a'171.76ared befGr&-ffi{.~-s-tli1~"fSfHl D:nd a61E.ft&w..f.e.Ei.geJ-t~at 11 e/she signeE!­frH{..J-ElB1~-¥~«1--tf1.s.t.l"Hffl-eR+-a"'S-j.rHJI·leF-{")Wn he:e an{+--:wtI-ttnti;tFY-l:l{..~~ free c~n(~--vo!'JAt:::-r)' aet of ,,31B­~+ryA_*J-f&-t1;e use" and p"rp~l"fei~

Gj-\4iN-Hfl4c""H,",~I;",,<kt1<l-t'K't,"";,keil'l-ljl·js day-&I'-- , lOG("

--4C~'+ICLI·1464911v2PHILI 711719·1

M.y COl1'1ff1issioH EJ~

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PHIL! 711719,1