LEASE AND TENANT'S INTEREST HEREUNDER
SHALL BE SUBORDINATE TO ANY MORTGAGE (OTHER THAN THE LANDLORD MORTGAGE)
HEREAFTER PLACED UPON THE LEASED PREMISES, AND TO ANY AND ALL ADVANCES MADE OR
TO BE MADE THEREUNDER, TO THE INTEREST THEREON, AND ALL RENEWALS, REPLACEMENTS
AND EXTENSIONS THEREOF, PROVIDED THAT, WITH RESPECT TO ANY SUCH MORTGAGE, A
SEPARATE SNDA IN RECORDABLE FORM SHALL BE DULY EXECUTED BY THE HOLDER OF ANY
SUCH MORTGAGE AND DELIVERED TO TENANT, WHICH SNDA SHALL (I) PROVIDE FOR THE
RECOGNITION OF ALL OF THE PROVISIONS THIS LEASE AND ALL TENANT'S RIGHTS AND
BENEFITS HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE PURCHASE OPTION AND THE
RIGHT OF FIRST REFUSAL IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
LEASE) UNLESS AND UNTIL AN EVENT OF DEFAULT EXISTS OR LANDLORD SHALL HAVE THE
RIGHT TO TERMINATE THIS LEASE PURSUANT TO ANY APPLICABLE PROVISION HEREOF OR
APPLICABLE LAWS AND (II) SHALL PROVIDE TENANT WITH THE RIGHTS SET FORTH IN
CLAUSES (B), (C), AND (D)OF PARAGRAPH 31(D)(II)ABOVE.
SUBJECT TO THE FOREGOING,
SUCH SNDA SHALL BE IN THE APPLICABLE LENDER'S THEN CUSTOMARY FORM SUBJECT TO
REASONABLE CHANGES CONSISTENT WITH THEN CURRENT MARKET TERMS AND PRACTICES THEN
GENERALLY FOLLOWED BY INSTITUTIONAL LENDERS AND OTHERWISE REASONABLY
SATISFACTORY TO LENDER AND TENANT.
(B)
LANDLORD AGREES THAT, UPON THE REQUEST OF ANY
PERSON THAT SHALL BE TENANT'S SENIOR SECURED LENDER, SUBORDINATE SENIOR LENDER,
PURCHASE MONEY EQUIPMENT LENDER OR AN EQUIPMENT LESSOR OF TENANT, LANDLORD SHALL
EXECUTE AND DELIVER A COMMERCIALLY REASONABLE WAIVER OF LANDLORD'S STATUTORY
LIEN RIGHTS, IF ANY, AND A CONSENT AND AGREEMENT WITH RESPECT TO THE RESPECTIVE
RIGHTS OF LANDLORD AND SUCH PERSON REGARDING THE SECURITY INTERESTS IN, AND THE
TIMING AND REMOVAL OF, ANY INVENTORY, EQUIPMENT OR OTHER COLLATERAL IN WHICH
SUCH PERSON HAS A SECURED INTEREST (THE "COLLATERAL"), IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO LANDLORD, SO LONG AS SUCH WAIVER AND AGREEMENT
(I) PROVIDES FOR THE INDEMNIFICATION OF LANDLORD AGAINST ANY CLAIMS BY TENANT OR
ANY PERSON CLAIMING THROUGH TENANT AND AGAINST ANY PHYSICAL DAMAGE CAUSED TO THE
LEASED PREMISES, IN CONNECTION WITH THE REMOVAL OF ANY OF THE COLLATERAL BY SUCH
PERSON, (II) EXPRESSLY EXCLUDES ANY CLAIM BY SUCH PERSON TO ANY RIGHT, TITLE OR
INTEREST IN OR TO ANY OF THE EQUIPMENT AS DEFINED IN THIS LEASE, (III) PROVIDES
FOR A REASONABLE, BUT LIMITED, TIMEFRAME FOR THE REMOVAL OF SUCH COLLATERAL BY
SUCH PERSON AFTER THE EXPIRATION OF WHICH SAME SHALL BE DEEMED ABANDONED, AND
(IV) PROVIDES FOR THE PER DIEM PAYMENT OF BASIC RENT DUE HEREUNDER BY SUCH
PERSON FOR EACH DAY FOLLOWING THE DATE OF THE EXPIRATION OR TERMINATION OF THIS
LEASE THEREAFTER THAT LANDLORD PERMITS SUCH PERSON'S COLLATERAL TO REMAIN IN THE
LEASED PREMISES.
57
33.
Tax Treatment; Reporting.
(a)
Notwithstanding any other provision of this Lease, the parties hereto hereby
agree that it is the intent of the parties to create, and this Lease shall be
treated as, a financing Lease in accordance with the terms of this Paragraph 33
from the Commencement Date up to the