PARTIES IN
CONNECTION WITH THE SECURITIZATION AND TO THE EXTENT REQUESTED BY THE OTHER
PARTIES; PROVIDED THAT (A) THE DISCLOSURE PARTIES AND THE OTHER PARTIES ARE
ADVISED THAT THE CONFIDENTIAL INFORMATION IS CONFIDENTIAL, (B) THE CONFIDENTIAL
INFORMATION MAY NOT BE PLACED IN ANY PROSPECTUS, OR OTHER SECURITIES OFFERING
MATERIAL OR OTHER WRITTEN MATERIALS BY LANDLORD, OR ANY MORTGAGEE, TRUSTEE OR
RATING AGENCY OR ANY AFFILIATED PARTY, AND (C) THE DISCLOSURE PARTIES AND THE
OTHER PARTIES (OTHER THAN THE RATING AGENCIES WHICH ARE NOT REQUIRED TO EXECUTE
A CONFIDENTIALITY AGREEMENT BUT MAY ONLY DISCLOSE INFORMATION TO PARTIES THAT
HAVE EXECUTED A CONFIDENTIALITY AGREEMENT), EXECUTE A CONFIDENTIALITY AGREEMENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS SCHEDULE 31.17(G), OR SUCH OTHER
FORM AS REASONABLY AGREED UPON BY TENANT, LANDLORD, THE DISCLOSURE PARTIES,
AND/OR THE OTHER PARTIES (THE "CONFIDENTIALITY AGREEMENT").
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, (A) IN NO EVENT SHALL ANY
CONFIDENTIAL INFORMATION BE DISCLOSED TO ANY RETAILERS, AND (B)
58
LANDLORD AND TENANT UNDERSTAND AND AGREE THAT THE DISCLOSURE PARTIES MAY
DISCLOSE AGGREGATE, PORTFOLIO LEVEL FINANCIAL INFORMATION REGARDING TENANT AND
THE PROPERTIES AS A WHOLE.
(H)
ALL FINANCIAL STATEMENTS TO BE PROVIDED HEREUNDER SHALL BE
CERTIFIED BY THE CHIEF FINANCIAL OFFICER OR ADMINISTRATIVE MEMBER OF TENANT,
WHICH CERTIFICATION SHALL BE IN THE FORM OF SCHEDULE 31.17(H) ATTACHED HERETO
AND SHALL STATE THAT SUCH FINANCIAL STATEMENTS (I) ARE TRUE, COMPLETE AND
CORRECT IN ALL MATERIAL RESPECTS, (II) FAIRLY PRESENT, IN ALL MATERIAL RESPECTS,
THE FINANCIAL CONDITION OF TENANT AS OF THE DATE OF SUCH REPORTS, AND
(III) SATISFY THE REQUIREMENTS SET FORTH IN SECTION 31.17.
IF TENANT DISCOVERS
THAT ITS FINANCIAL STATEMENTS CONTAIN A MISSTATEMENT OR AN OMISSION IN ANY
MATERIAL RESPECT, IT SHALL PROMPTLY NOTIFY LANDLORD OF SAME AND TAKE SUCH
ACTIONS AS ARE REASONABLY NECESSARY TO CORRECT SUCH FINANCIAL STATEMENTS;
PROVIDED, HOWEVER, IN NO EVENT SHALL TENANT WILLFULLY AND INTENTIONALLY MISSTATE
ITS FINANCIAL STATEMENTS.
IN NO EVENT SHALL TENANT HAVE ANY LIABILITY TO
LANDLORD OR ITS AFFILIATES IN RESPECT OF ANY BREACH OF THE FOREGOING
CERTIFICATION CAUSED BY TENANT'S NEGLIGENCE OR GROSS NEGLIGENCE OR, EXCEPT AS
SET FORTH IN SECTION 16.01 AND SECTION 16.02, FOR FAILURE TO PERFORM ITS
OBLIGATIONS UNDER THIS SECTION 31.17.
LANDLORD'S SOLE RIGHTS AND REMEDIES FOR A
BREACH OF THIS SECTION 31.17 SHALL BE LIMITED TO THOSE REMEDIES THAT ARE
AVAILABLE TO LANDLORD AS SET FORTH IN SECTION 16.02 OF THIS LEASE.
(I)
TENANT AGREES THAT THE HOLDING AUDITED REPORTING FINANCIALS AND
THE TENANT AUDITED REPORTING FINANCIALS SHALL BE AUDITED BY, AND THE HOLDING
UNAUDITED REPORTING FINANCIALS AND THE TENANT UNAUDITED REPORTING FINANCIALS
SHALL BE REVIEWED BY, A NATIONALLY RECOGNIZED ACCOUNTING FIRM.
FURTHERMORE,
TENANT SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE ITS ACCOUNTANTS TO
DELIVER THEIR CONSENT IN A TIMELY MANNER TO THE INCLUSION OF THEIR AUDIT OPINION
IN ANY REGULATORY REPORTS FILED AS PART OF SPIRIT'S SEC REPORTING OBLIGATION;
PROVIDED, HOWEVER, THAT SUCH ACCOUNTANTS' FAILURE OR REFUSAL TO CONSENT SHALL
NOT BE A DEFAULT UNDER THIS LEASE.
(J)
TENANT AGREES, AS AN