Mortgage Provisions from Ground Lease

20.07 Fee Mortgage Provisions from a Ground Lease

SECTION 18.2. Fee Mortgages.

(a) Except as expressly set forth herein, Lessor may not encumber by way of Mortgage or other financing instrument the fee title of Lessor to the Demised Premises during the Term hereof.

(b) Lessor represents to Lessee that, as of the date hereof, the Existing Fee Mortgage is the only mortgage encumbering the Land and the Demised Premises. Lessor agrees to cause the holder of the Existing Fee Mortgage to agree to (i) grant to the Lessee and any Qualified Leasehold Mortgage a nondisturbance and attornment agreement in a form and substance reasonably satisfactory to the Lessee, (ii) provide to Lessee a copy of notice, simultaneously with the giving of any such notice to Lessor, of any material or monetary Lessor default, (iii) permit the Lessee or any Qualified Leasehold Mortgagee to cure any default by Lessor under the Existing Fee Mortgage, and (iv) in the event of acceleration of the Existing Fee Mortgage, permit the Lessee or any Qualified Leasehold Mortgage to purchase the Existing Fee Mortgage at par together with payment of any unpaid interest, prepayment penalties, premiums, unwinding costs or similar charges (provided that if Lessee and any Qualified Leasehold Mortgagee fails to purchase the Existing Fee Mortgage within 90 days after being notified of such acceleration, the holder of the Existing Fee Mortgage may proceed with foreclosure of its interest or otherwise without being subject to this provision thereafter). In the event Lessor is unable to effectuate all of the requirements of the Existing Fee Mortgagee in this paragraph (b)(i) through (iii) hereof, within 45 days after the date Lessee has delivered a fully executed duplicate original of this Lease to Lessor, Lessor shall discharge and satisfy the Existing Fee Mortgage within a further 90 day period after the expiration of said initial 45 day period (i.e., 135 days after the date Lessee has delivered a fully executed duplicate original of this Lease to Lessor), failing which Lessee may satisfy same and cause it to be discharged and offset the amount expended with interest thereon at 8.5% against all rentals accruing hereunder.

(c) Any Fee Mortgage hereinafter entered into covering the fee interest of Lessor in the Land and Lessor's interest in the Demised Premises and any extensions and/or modifications of any such Fee Mortgage (including any increases and extensions of the Existing Fee Mortgage) must be made to a Qualified Fee Mortgagee and such Fee Mortgage shall be subject and subordinate to this Lease and the leasehold estate created hereby and any modification, extension or other amendment of this Lease and any succeeding lease made pursuant to the provisions hereof and any Qualified Leasehold Mortgage. In confirmation of the foregoing, any Fee Mortgage entered into after the date hereof must provide that, upon ten (10) days written notice from Lessee, the holder of such Fee Mortgage will execute an instrument in recordable form further evidencing such subordination for the benefit of the Lessee and any Qualified Leasehold Mortgagee.

(d) The phrase "Qualified Fee Mortgagee" shall mean the holder of a fully subordinated (except for the Existing Fee Mortgage, which is currently held by for which the Existing Fee Mortgagee (currently ) shall furnish a nondisturbance agreement pursuant to Section 18.2 hereof) Fee Mortgage or Leasehold Improvement Financing subordinated to this Lease and conforming to the "Cap" (as hereinafter defined) who shall give Lessee written notice of the making of the Fee Mortgage or Leasehold Improvement Financing and conformed copies thereof and which is a savings bank, bank or trust company, whether acting individually or in a fiduciary capacity, an insurance company organized and existing under the laws of the United States or any state thereof, a real estate investment trust, a religious, educational, eleemosynary institution, a union, federal, state, municipal or corporate, employee's welfare pension, profit sharing or retirement fund or system, a commercial finance company, investment bank, merchant bank, an indenture or bond trustee or any entity similar to any of the foregoing meeting the following criteria for such entity:

(i) An insurance company, savings bank, bank or trust company (acting individually) must have gross assets of at least One Hundred Million ($100,000,000) Dollars.

(ii) Any of the foregoing acting in a fiduciary capacity must be acting in each case for trusts having assets in the aggregate of at least Twenty-Five Million ($25,000,000) Dollars.

(iii) A real estate investment trust must have a net worth of not less than Ten Million ($10,000,000) Dollars (including net worth represented by certificates of beneficial interest).

(iv) Religious, educational or eleeosynary institutions must have an endowment of not less than Twenty-Five Million ($25,000,000) Dollars.

(v) A union, federal, state, municipal or corporate employee's welfare pension or profit sharing trust or retirement fund or system must have assets of not less Twenty-Five Million ($25,000,000) Dollars.

(vi) A commercial finance company must have either (A) a net worth of Ten Million ($10,000,000) Dollars, or (B) assets of Fifty Million ($50,000,000) Dollars.

(vii) A trustee with respect to the issuance of commercial paper, bonds, commercial mortgage securities, collateralized mortgage obligations, certificates of participation or similar financial instruments.

(viii) Any entity now or in the future whose function or purpose is substantially similar to any of the foregoing and having a corresponding net worth to the entity described above that it is most similar to.

(e) Lessor warrants and covenants that all holders of Fee Mortgages shall be Qualified Fee Mortgagees and agrees to (i) permit the Lessee or any Qualified Leasehold Mortgagee to cure any default by Lessor under all Fee Mortgages, and (ii) in the event of acceleration of a Fee Mortgage, permit the Lessee or any Qualified Leasehold Mortgage to purchase the Existing Fee Mortgage at par together with payment of any unpaid interest, prepayment penalties, premiums, rate unwinding costs or similar charges (provided that if Lessee and any Qualified Leasehold Mortgagee fails to purchase the Fee Mortgage within 90 days after being notified of such acceleration, the holder of the Fee Mortgage may proceed with foreclosure of its interest or otherwise without being subject to this provision thereafter, provided however, that these rights shall not affect the condition that such Fee Mortgage (except for the Existing Fee Mortgage, for which the Existing Fee Mortgagee shall furnish a nondisturbance agreement pursuant to Section 18.2 hereof) shall be subject and subordinate to Lessee's interest in this Lease.

(f) The total aggregate indebtedness under all Qualified Fee Mortgages and the Existing Fee Mortgage at any time shall not exceed a sum that could be financed as a self liquidating mortgage by the end of the Term hereof (including any extensions thereof as may be exercised by Lessee) with debt service constituting no more than 90% of the cash flow payable to Lessor under this Lease (whenever appearing herein, the "Cap"), including, without limitation, a reasonable projection of scheduled Net Rental and Additional Rent increases over the Term of this Lease.