"MARKET" SUBLEASE OF THE TYPE IN
QUESTION AND (II) ARE MATERIALLY ADVERSE TO A LANDLORD, AND (F) TENANT PROVIDES
LANDLORD WITH AN OFFICER'S CERTIFICATE OF TENANT CERTIFYING COMPLIANCE WITH THE
CRITERIA IN SUBSECTIONS (A) THROUGH (E), AND ATTACHING A SCHEDULE OF RENT
CALCULATIONS AND OTHER DETAILS SUPPORTING THE CERTIFICATIONS, IN THE FORM
ATTACHED HERETO AS SCHEDULE 12.03, THEN LANDLORD SHALL EXECUTE AND DELIVER TO
SUCH SUBTENANT A WRITTEN AGREEMENT SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS
EXHIBIT D (AN "NDA"), TO THE EFFECT THAT, NOTWITHSTANDING THE TERMINATION OF
THIS LEASE OR TENANT'S POSSESSORY AND OTHER RIGHTS AND OBLIGATIONS UNDER THIS
LEASE BY LANDLORD, SO LONG AS SUCH SUBTENANT SHALL CONTINUE TO OBSERVE AND
PERFORM ALL OF ITS OBLIGATIONS UNDER A SUBLEASE, SUCH SUBTENANT AND THE RIGHTS
OF SUBTENANT UNDER ANY SUBLEASE SHALL NOT BE DISTURBED BY LANDLORD BUT SHALL
CONTINUE IN FULL FORCE AND EFFECT, LANDLORD SHALL ASSUME THE OBLIGATIONS OF THE
LANDLORD UNDER THE SUBLEASE AND THE PROVISIONS OF SECTION 16.01(J) OR ANY OTHER
DEFAULT UNDER THIS LEASE SHALL NOT APPLY TO ANY SUCH SUBLEASE. FOR AVOIDANCE OF
DOUBT, THE PAYMENT BY TENANT TO A SUBTENANT OF A TENANT ALLOWANCE AT THE
EXECUTION OF THE SUBLEASE SHALL NOT BE CONSIDERED UNUSUAL. IN THE EVENT OF A
TERMINATION OF THIS LEASE, ANY SUBLEASE FOR WHICH A NDA HAS BEEN EXECUTED AND
21
DELIVERED BY LANDLORD SHALL CONTINUE IN FULL FORCE AND EFFECT AS A DIRECT LEASE
BETWEEN LANDLORD AND SUBTENANT. LANDLORD AGREES TO EXECUTE, AND TO USE
COMMERCIALLY REASONABLE EFFORTS TO CAUSE ITS MORTGAGEE TO EXECUTE, SUCH
DOCUMENTATION AS MAY BE REASONABLY REQUIRED TO EFFECTUATE THE NON-DISTURBANCE
CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, ESTOPPEL LETTERS,
RECOGNITION AGREEMENTS AND A NON-DISTURBANCE AGREEMENT, SUBSTANTIALLY IN THE
FORM ATTACHED HERETO AS EXHIBIT D.
12.04
ASSIGNMENT BY LANDLORD. AS A MATERIAL INDUCEMENT TO LANDLORD'S
WILLINGNESS TO COMPLETE THE TRANSACTIONS CONTEMPLATED BY THIS LEASE (THE
"TRANSACTION"), TENANT HEREBY AGREES THAT LANDLORD MAY, FROM TIME TO TIME AND AT
ANY TIME AND WITHOUT THE CONSENT OF TENANT, ENGAGE IN ALL OR ANY COMBINATION OF
THE FOLLOWING, OR ENTER INTO AGREEMENTS IN CONNECTION WITH ANY OF THE FOLLOWING
OR IN ACCORDANCE WITH REQUIREMENTS THAT MAY BE IMPOSED BY APPLICABLE SECURITIES,
TAX OR OTHER LAWS: (A) THE SALE, ASSIGNMENT, GRANT, CONVEYANCE, TRANSFER,
FINANCING, RE-FINANCING, PURCHASE OR RE-ACQUISITION IN WHOLE, BUT NOT PART, OF
THE PREMISES OR THIS LEASE, LANDLORD'S RIGHT, TITLE AND INTEREST IN THIS LEASE,
THE SERVICING RIGHTS WITH RESPECT TO ANY OF THE FOREGOING, OR PARTICIPATIONS IN
ANY OF THE FOREGOING, PROVIDED, HOWEVER, IN NO EVENT MAY LANDLORD DISCLOSE OR
PERMIT THE DISCLOSURE OF THE FINANCIAL INFORMATION DESCRIBED IN SECTION 31.17(G)
(EXCEPT AS OTHERWISE PROVIDED THEREIN) TO ANY POTENTIAL PURCHASER, ASSIGNEE,
TRANSFEREE OR LENDER THAT OWNS OR CAN DIRECT THE MANAGEMENT, DIRECTLY OR
INDIRECTLY, OF FIVE (5) OR MORE COMMONLY MANAGED RETAIL LOCATIONS; OR (B) A
SECURITIZATION (DEFINED IN SECTION 31.22 BELOW) AND RELATED TRANSACTIONS.
WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE
THAT LANDLORD, IN ITS SOLE DISCRETION, MAY ASSIGN THIS