HEREBY
AGREES TO DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS WITH RESPECT TO ANY
LIABILITY IN CONNECTION THEREWITH.
THE TERMS OF THIS SECTION 12 SHALL SURVIVE
CLOSING.
13.
LEASEBACK LEASE, ETC.
UPON THE ESCROW CLOSING, AND AS A MATERIAL
CONDITION THERETO AND THE EFFECTUATION OF THE CLOSING, SELLER AND PURCHASER
AGREE TO EXECUTE AND DELIVER THAT CERTAIN AGREEMENT OF LEASE, IN THE FORM
ANNEXED HERETO AS EXHIBIT E (THE "LEASEBACK LEASE"), AND THAT CERTAIN MEMORANDUM
OF LEASE, IN THE FORM ANNEXED HERETO AS EXHIBIT C (THE "MEMORANDUM OF LEASE").
IT IS ACKNOWLEDGED THAT THE LEASEBACK LEASE, AS MEMORIALIZED BY THE MEMORANDUM
OF LEASE, SHALL BE EXPRESSLY SUPERIOR TO THE LIEN OF ANY MORTGAGE OR OTHER
ENCUMBRANCES PLACED ON THE PROPERTY UPON CLOSING, AND PURCHASER SHALL CAUSE TO
BE DELIVERED AT CLOSING A SUBORDINATION AGREEMENT IN FAVOR OF SELLER, REASONABLY
SATISFACTORY TO SELLER AND THE TITLE COMPANY EVIDENCING THIS FACT, SUBJECT TO
THE NEXT SENTENCE.
NOTWITHSTANDING THE FOREGOING, SELLER AGREES TO SUBORDINATE
THE LEASEBACK LEASE TO THE LIEN OF ANY FEE MORTGAGE MADE BY A RECOGNIZED
INSTITUTIONAL MORTGAGE LENDER (THE "FEE MORTGAGEE") ON THE PROPERTY, PROVIDED
THAT THE FEE MORTGAGEE EXECUTES AND DELIVERS TO SELLER A WRITTEN INSTRUMENT (A
"SNDA"), IN FORM FOR RECORDING, AS REASONABLY CUSTOMARY IN THE
15
INDUSTRY, AND AS REASONABLY SATISFACTORY TO SELLER, TO THE EFFECT THAT IN THE
EVENT OF A FORECLOSURE OF THE FEE MORTGAGE, THE POSSESSION AND OCCUPANCY OF THE
LEASED PREMISES BY SELLER AND THOSE CLAIMING BY OR UNDER SELLER WILL NOT BE
DISTURBED AND SHALL CONTINUE SO LONG AS SELLER CONTINUES TO OBSERVE AND PERFORM
ALL OF THE MATERIAL TERMS, COVENANTS AND CONDITIONS CONTAINED IN THE LEASEBACK
LEASE ON SELLER'S PART TO BE OBSERVED, AND PROVIDED THAT SELLER ATTORNS TO SUCH
FEE MORTGAGEE OR ANY PURCHASER AT A FORECLOSURE SALE, ALL AS MORE PARTICULARLY
DESCRIBED BY AND PROVIDED FOR IN ARTICLE 40 OF THE LEASEBACK LEASE.
TO THE
EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SECTION 13 AND THE TERMS OF
ARTICLE 40 OF THE LEASEBACK LEASE, THE TERMS OF ARTICLE 40 OF THE LEASEBACK
LEASE SHALL CONTROL.
PURCHASER AND SELLER AGREE THAT THE FORM OF SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT ATTACHED AS EXHIBIT "C" TO THE LEASEBACK LEASE IS
MUTUALLY ACCEPTABLE, AND THAT PURCHASER AND SELLER WILL, UPON CLOSING, IF
REQUESTED BY THE OTHER PARTY, EACH EXECUTE AND DELIVER A SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT IN SUBSTANTIALLY SAID FORM.
14.
REPRESENTATIONS AND WARRANTIES.
(A)
SELLER REPRESENTS AND WARRANTS TO PURCHASER THAT THE FOLLOWING ARE
TRUE AND CORRECT AS OF THE DATE HEREOF AND (OTHER THAN THE REPRESENTATIONS AND
WARRANTIES IN CLAUSES (V)(B), (VII), (VIII), AND (X)(B) OF THIS SECTION 14(A) TO
THE EXTENT THE FACTS UNDERLYING SUCH REPRESENTATIONS AND WARRANTIES MAY HAVE
CHANGED SUBSEQUENT TO THE DATE OF THIS AGREEMENT FOR ANY REASON OTHER THAN A
BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE:
(I)
THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATION OF SELLER, ENFORCEABLE AGAINST SELLER