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20.03[4]a Example 2: Nondisturbance Provision Structured Within the Context of a Subordination Clause (Tenant Friendly) Section 6.01. This Lease, and all rights of Tenant hereunder, are and shall be subject and subordinate in all respects to all present and future ground leases, overriding leases or underlying leases and/or grants of term of the Land and/or the Building or the portion thereof in which the Demised Premises are located in whole or in part now or hereafter existing and to all mortgages and building loan agreements, including leasehold mortgages and building loan agreements, which may now or hereafter affect the Land and/or the Building and/or any of such leases, whether or not such mortgages shall also cover other lands and/or buildings, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such leases and such mortgages and spreaders, consolidations and correlations of such mortgages. This Section shall be self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute and deliver at its own cost and expense any instrument, in recordable form if required, that Landlord, the lessor of any such lease or the holder of any such mortgage or any of their respective successors in interest may reasonably request to evidence such subordination, and Tenant hereby constitutes and appoints Landlord attorney-in-fact for Tenant to execute any such instrument for and on behalf of Tenant. The leases to which this Lease is, and at time referred to, subject and subordinate pursuant to this Article are hereinafter sometimes called "superior leases" and the mortgages to which this lease is, at the time referred to, subject and subordinate are hereinafter sometimes called "superior mortgages" (such superior leases and superior mortgages in effect as of the date hereof are more particularly described on Exhibit F of this Lease) and the lessor of a superior lease or its successor in interest at the time referred to is hereinafter sometimes called a "lessor." Section 6.02. It is agreed that the subjection of this Lease to the subordination referred to in Section 6.01 is and shall remain subject to the express condition that Landlord shall (i) request that each superior mortgagee and each superior lessor (hereinafter defined) as of the date hereof and (ii) have all subsequent superior lessors and superior mortgagees (including any refinancing or other increase in the principal amount under the existing superior mortgage), execute and deliver to Tenant an agreement in recordable form to the effect that, so long as this Lease shall be in full force and effect, Tenant shall not be joined as a party defendant in any foreclosure action or proceeding which may be instituted or taken by the mortgagee under any superior mortgage (herein referred to as "superior mortgagee") or in any action or proceeding which may be instituted or taken by the lessor or grantor (that is, any party whose right or title to the Land or Building is or shall be paramount to that of Landlord, such party herein referred to as "superior lessor") of any superior lease or grant of term, to which this Lease is or shall be subject and subordinate, for the purpose of terminating such superior lease or grant of term, by reason of any default under any such superior mortgage or superior lease or grant of term, nor, so long as this Lease is in full force and effect, shall Tenant be evicted from the Demised Premises, nor shall its leasehold estate hereunder be terminated or disturbed, nor shall any of Tenant's rights under Lease be affected in any way, by reason of any default under any superior mortgage or superior lease or grant of term (any such agreement, or agreement of similar import, from a superior mortgagee or a superior lessor, as the cause may be, being hereinafter called a "Nondisturbance Agreement"). Landlord and Tenant agree to share equally all costs incurred in connection with obtaining any Nondisturbance Agreement from the existing superior lessors or superior mortgagees. Any superior mortgagee may elect that this Lease shall have priority over the superior mortgage that it holds and, upon notification to Tenant by such superior mortgagee, this Lease shall be deemed to have priority over such superior mortgage, whether this Lease is dated prior to or subsequent to the date of such superior mortgage. Any Nondisturbance Agreement may be made on the condition that, as long as such superior mortgagee or superior lessor shall not be owned by the then defaulting landlord or the then defaulting landlord shall not have a majority interest in such superior mortgagee or superior lessor, neither the superior mortgagee nor the superior lessor, as the case may be, nor anyone claiming by, through or under such superior mortgagee or superior lessor, as the case may be, including a purchaser at a foreclosure sale, shall be:(i) liable for any act or omission of any prior landlord (including, without limitation, the then defaulting landlord), or (ii) subject to any defense, counterclaim, set-off or offsets which Tenant may have against any prior landlord (including, without limitation, the then defaulting landlord), or (iii) bound by any payment of more than one periodic installment of Rents which Tenant might have paid to any prior landlord (including, without limitation, the then defaulting landlord), or (iv) bound by any obligation to make any payment to Tenant which was required to be made prior to the time such superior mortgagee or superior lessor succeeded to any prior landlord's interest, or (v) bound by any obligation to perform any work or to make improvements to the Demised Premises, except for (w) Landlord's Work, (x) repairs and maintenance pursuant to the provisions of Article 14, (y) repairs to the Demised Premises or any part thereof as a result of damage by fire or other casualty pursuant to Article 21, but only to the extent that such repairs can be reasonably made from the net proceeds of any insurance actually made available to such superior lessor or superior mortgagee, and (z) repairs to the Demised Premises as a result of a partial condemnation pursuant to Article 22, but only to the extent that such repairs can be reasonably made from the net proceeds of any award made available to such superior lessor or superior mortgagee. Notwithstanding anything contained herein to the contrary, Tenant shall have the right to set-off against the payment of Fixed Rent the cost and expenses actually incurred by Tenant to perform Landlord's Work in either the Demised Premises or, when and if available, the Additional Demised Premises, in the event any superior lessor, superior mortgagee or purchaser at a foreclosure sale (collectively, "Subsequent Owner") is unwilling or otherwise fails to perform Landlord's Work in either the Demised Premises or when and if available, the Additional Demised Premises. If required by any superior mortgagee or superior lessor, Tenant promptly shall join in any Nondisturbance Agreement to indicate its concurrence with the provisions thereof and its agreement set forth in Section 6.04 to attorn to such superior mortgagee or superior lessor, as the case may be, as Tenant's landlord hereunder. Any such Nondisturbance Agreement may also contain other terms and conditions as may otherwise be required by such superior mortgagee or superior lessor, as the case may be, which do not increase the obligations of Tenant hereunder or adversely affect to a material degree Tenant's leasehold interest hereby created. Section 6.03. Landlord hereby notifies Tenant that this Lease may not be modified or amended so as to reduce the Rents, shorten the Term, or adversely affect in any other respect to any material extent the rights of the Landlord hereunder, or be canceled or surrendered without the prior written consent of each superior lessor in each instance, except that said consent shall not be required for the institution or prosecution of any action or proceedings against Tenant by reason of a default on the part of tenant under the terms of this Lease. Section 6.04. This Lease shall not terminate or be terminable by Tenant by reason of any termination of any superior lease, by summary proceedings, or otherwise, unless the superior lessor under the terminated superior lease shall elect in connection therewith to terminate this Lease and the right of Tenant to possession of the Demised Premises or such superior lessor has refused to enter into a Nondisturbance Agreement with Tenant. Tenant agrees, without further instruments of attornment in such case, to attorn to such lessor that shall have delivered a Nondisturbance Agreement to Tenant, to waive the provisions of any statute or rule of law now or hereafter in effect which may give or purport to give Tenant any right of election to terminate this Lease or to surrender possession of the Demised Premises in the event such superior lease is terminated, this Lease shall not be affected in any way whatsoever by any such proceeding or termination, and Tenant shall take no steps to terminate this Lease without giving written notice to such lessor, and a reasonable opportunity to cure (without such lessor being obligated to cure), any default on the part of the Landlord under this Lease. Section 6.05. Landlord warrants and represents that the granting of this Lease is not in contravention of the ground lease and superior mortgages and superior leases existing at the date of this Lease, as of the date of the execution and delivery of this Lease, no notices of default under the ground lease, superior mortgages or superior leases have issued as would subject this Lease to any adverse proceedings on the part of lessor under the ground lease or the said mortgagee or mortgagees under the superior mortgages or the said lessor or lessors under the superior leases and further warrants and represents that Landlord is the owner of the lessee's interest under the ground lease covering the Land or the fee interest in the Land and has the power and proper corporate authority to enter into this Lease and grant to Tenant all the rights and powers granted hereunder. Section 6.06. Subject to the terms of Section 6.02 hereof, if the holder of any superior mortgage, or anyone claiming by, through or under such holder, shall become the ground lessee under the ground lease as a result of foreclosure of the superior mortgage, or by reason of an assignment of the present ground lessee's interest under the ground lease and the giving of a deed to the Building in lieu of foreclosure, there shall be no obligation on the part of such person succeeding to the interest of the present ground lessee under the ground lease to comply with, observe or perform any obligations as sublessee, tenant or landlord under any superior lease.