Fill and Sign the Subordination Agreement 497336824 Form

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT dated this ____ day of ________, 1999 among 233 BROADWAY OWNERS LLC, with an address at c/o The Witkoff Group LLC ("Landlord"), ORGANIC, a New York corporation with an address at __________, New York, New York _________ ("Tenant"), and LEHMAN BROTHERS HOLDINGS INC., a Delaware corporation with an address at 3 World Financial Center, New York, New York 10285 ("Lender"). W I T N E S S E T H: WHEREAS, on December 4, 1998 Lender made (i) a loan to Landlord in the principal amount of $105,000,000.00 of which the principal sum of $105,000,000 is now outstanding (the "Senior Loan") secured by a first mortgage lien and security interest (the "Senior Mortgage") encumbering the real property and improvements known as and located at 233 Broadway Owners LLC, New York, New York and more particularly described on Exhibit A hereto (the "Mortgaged Property"), and (ii) a certain subordinate loan to Landlord in the principal amount of $56,135,706.41 (the "Subordinate Loan") secured by a subordinate mortgage lien and security interest (the "Subordinate Mortgage") encumbering the Mortgaged Property; WHEREAS, Landlord and Tenant are parties to that certain Lease affecting a portion of the Mortgaged Property (such portion, the "Premises") dated ________, 1999 (the "Lease"). WHEREAS, as security for its obligations in respect of the Loan Landlord has assigned to Lender all of Landlord's right, title and interest in and to all existing and future leases affecting the Mortgaged Property, including the Lease, and the rents payable thereunder; WHEREAS, the Lease is subject and subordinate to the Senior Mortgage and the Subordinate Mortgage, and Tenant's right, title and interest in, to and under the Lease are subject and subordinate to Lender's right, title and interest in, to and under the Senior Mortgage and the Subordinate Mortgage: WHEREAS, Tenant has requested that Lender give certain assurances that, subject to the terms and conditions of this Agreement, Tenant's possession of the Premises will not be disturbed by reason of foreclosure of the lien of either the Senior Mortgage or the Subordinate Mortgage, or both, as the case may be; WHEREAS, Lender is only willing to provide such assurances to Tenant upon and subject to the express terms and conditions of this Agreement; and WHEREAS, Landlord and Tenant have agreed to execute and deliver this Agreement to Lender. 1 98 NOW, THEREFORE, in consideration of the mutual premises herein contained, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto do mutually covenant and agree as follows: 1. The Lease is and at all times hereafter shall be subject and subordinate in all respects to the Senior Mortgage and the Subordinate Mortgage and to all renewals, modifications, substitutions, consolidations and extensions thereof, and to all other future mortgages affecting the Mortgaged Property held by Lender. 2. Any provision in the Lease to the contrary notwithstanding, a notice by Tenant to Landlord of a default under the Lease by Landlord, which default is of such a nature as to give Tenant a right to terminate the Lease, to reduce the rent payable under the Lease or to credit or offset against future rents, shall be effective only if: (a) such notice is also given to Lender; and (b) Lender shall not have cured or remedied such default by the later to occur of: (i) thirty (30) days after Lenders receipt of such notice; or (ii) thirty (30) days after the expiration of any applicable notice or grace period under the Lease; provided, however, that if: (A) such default is not reasonably capable of being cured within the applicable period; and (B) Lender shall diligently proceed with its efforts to cure, Lender shall have a reasonable additional period to cure such default. Lender shall have the right, but not the obligation, to remedy or cure any such default. 3. So long as Tenant is not in default in the payment of rent, additional rent or other charges, or in the performance of any of the terms, covenants or conditions of the Lease, such default continuing beyond any applicable notice or grace period, Tenant's occupancy of the Premises during the original or any renewal term of the Lease or any extension thereof shall not be disturbed by Lender by reason of foreclosure of the Senior Mortgage or the Subordinate Mortgage, or both, as the case may be, the acceptance by Lender or its designee of a deed in lieu of foreclosure, or the exercise of any remedy available at law, in equity or under the Senior Mortgage or the Subordinate Mortgage. 4. Lenders receipt of the rents payable by Tenant under the Lease, pursuant to the Senior Mortgage and the Subordinate Mortgage or any assignment of the Lease, shall not obligate Lender to perform Landlord's obligations under the Lease. Tenant shall make all payments under the Lease to Lender or its designee upon receipt of written notice that such right has accrued, and Tenant agrees not to prepay any sums payable by Tenant under the Lease. Lender's receipt of such rent shall not relieve Landlord of its obligations under the Lease, and Tenant shall continue to look solely to Landlord for performance of such obligations. 5. Upon Lender's succession to the rights of Landlord under the Lease, whether through possession, termination or cancellation of the Lease, surrender, assignment, judicial action, subletting, foreclosure, delivery of a deed in lieu of foreclosure or otherwise, Tenant will attorn to and recognize Lender as the landlord under the Lease, and Lender will accept such attornment and recognize Tenant's rights of possession and use of the Premises in accordance with the terms of the Lease. Without 2 99 further evidence of such attornment and acceptance, Tenant shall be bound by, and shall comply with, each and every term, provision, covenant and obligation contained in the Lease on Tenants part to be performed. Nothing contained in this Agreement, or in any other instrument including, without limitation, the Lease, shall impose upon Lender an obligation to complete or renovate the Premises for the benefit of Tenant. Tenant's agreement to attorn shall not be construed as amending Landlord's obligations under the Lease. 6. Lender shall not in any way or to any extent be: (a) liable for any act or omission of any prior landlord (including Landlord) in contravention of any provision of the Lease; (b) subject to any offset, claim or defense which Tenant might have against any prior landlord (including Landlord), unless Lender has been given notice and an opportunity to cure the condition giving rise to such offset, claim or defense as provided in Section 2 hereof; (c) bound by any rent or additional rent which Tenant might have paid more than thirty (30) days in advance to any prior landlord (including Landlord); (d) bound by any agreement or modification of the Lease or of any Lease guaranty made without Lenders prior written consent; or (e) in any way responsible for any security or other deposit which was delivered to Landlord, and not forfeited by Tenant, but which was not subsequently delivered to Lender. 7. If Lender or its designee acquires title to the Mortgaged Property as a result of foreclosure of the Senior Mortgage or Subordinate Mortgage, acceptance of a deed in lieu of foreclosure, or by obtaining control of the Premises pursuant to the remedies available to Lender at law, in equity, under the Senior Mortgage or Subordinate Mortgage, or otherwise, Tenant shall have no recourse to any assets of Lender or such designee and, except for any right that might exist as set forth in Section 6(b) hereof, Tenants sole remedy for any act or omission of Lender or such designee in contravention of any provision of the Lease shall be to terminate the Lease without recourse. Lenders acquisition of title to or control of the Mortgaged Property, or the performance by Lender of any of the obligations of Landlord under the Lease, shall in no event be construed as an assumption of the Lease by Lender. Upon Lender's or its designee's acquisition of title to the Mortgaged Property, the Lease shall be deemed automatically modified to include the provisions contained herein notwithstanding any other provisions of the Lease. 8. Tenant shall execute such other documents as Lender, in its sole discretion, may deem necessary or appropriate to evidence the subordination of the Lease to the Senior Mortgage and Subordinate Mortgage; provided, however, that such 3 100 documents shall not materially adversely affect the parties' rights or obligations under the Lease. 9. Any notice, demand, statement, request or consent given or made hereunder shall be in writing and shall be deemed given on the next business day if sent by Federal Express or other reputable overnight courier and designated for next business day delivery, or on the third day following the day such notice is deposited with the United States postal service first class certified mail, return receipt requested, addressed to the address, as set forth above, of the party to whom such notice is to be given, or to such other address or additional party as Landlord, Tenant or Lender, as the case may be, shall in like manner designate in writing. A copy of each notice, demand statement, request or consent given or made hereunder shall be delivered in the manner herein provided for the giving of notice to the following address: Copies of notices to Landlord to: James F. Stomber, Jr., Esq. 233 Broadway Owners LLC c/o The Witkoff Group LLC 220 East 42nd Street New York, New York 10017 Copies of notices to Tenant to: Davis & Gilbert LLP 1740 Broadway New York, New York 10019 Attention: Chairperson, Real Estate Division Copies of notices to Lender to: Jill D. Block, Esq. Shapiro, Shapses, Block LLP 315 Park Avenue South, 19th Fl. New York, New York 10010 10. This Agreement shall be binding upon and shall inure to the parties, their respective heirs, successors and assigns. 11. This Agreement shall be governed by, and construed in accordance with, the laws of the State in which the Mortgaged Property is located, without giving effect to conflict of laws principles or otherwise. 12. This Agreement may be executed in any number of counterparts and each such duplicate original shall be deemed to be an original. 4 101 13. This Agreement may not be changed, amended or modified in any manner other than by an agreement in writing specifically referring to this Agreement and executed by the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. LEHMAN BROTHERS HOLDINGS INC. By: ------------------------------------ Name: Title: 233 BROADWAY OWNERS LLC By: ------------------------------------ Name: Title: ORGANIC By: ------------------------------------ Name: Title: 26, 1999