A AND ANY OTHER REASONABLE COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY LANDLORD AS A RESULT OF
TENANT'S TERMINATION AND SUBSEQUENT NON-PAYMENT OF THE BALANCE OF THE
TERMINATION PAYMENT.
TENANT AGREES THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IF AT ANY TIME ALL OR ANY PART OF THE TERMINATION PAYMENT PAID TO
LANDLORD IS OR MUST BE RESCINDED OR RETURNED BY THE LANDLORD FOR ANY REASON
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE INSOLVENCY, BANKRUPTCY OR
REORGANIZATION OF TENANT), THEN THIS LEASE AND THE OTHER LEASE FOR CRITTENDEN A,
AND TENANT'S OBLIGATIONS HEREUNDER AND THEREUNDER, SHALL BE DEEMED TO HAVE BEEN
REINSTATED AND CONTINUED IN EXISTENCE AND EFFECTIVENESS, AS THOUGH SUCH PREVIOUS
PAYMENT HAD NEVER BEEN MADE.
IN THE EVENT OF ANY REINSTATEMENT OF THIS LEASE
(WHETHER PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE OR OTHERWISE), TENANT
SHALL THEREUPON DELIVER TO LANDLORD A LETTER OF CREDIT THAT SATISFIES ALL OF THE
TERMS AND PROVISIONS OF SECTION 4.7.
33.21
SEPARATE LEASES.
TENANT AGREES TO DIVIDE THIS LEASE INTO TWO LEASES,
ONE FOR C PREMISES AND ONE FOR D PREMISES AT ANYTIME LANDLORD SO REQUESTS.
LANDLORD AGREES TO PAY THE REASONABLE OUT-OF-POCKET COSTS AND EXPENSES OF
TENANT, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, IN EXCESS OF $15,000
INCURRED SOLELY IN CONNECTION WITH DIVIDING THE LEASE, AND TENANT SHALL PAY THE
BALANCE OF SUCH COSTS AND EXPENSES.
33.22
EFFECTIVENESS. (A) THIS AGREEMENT SHALL COME INTO FULL FORCE AND
EFFECT UPON (I) THE DELIVERY OF A WRITTEN APPROVAL OF THE OTHER LEASE FOR
CRITTENDEN A BY THE CURRENT HOLDER OF THE LOAN MADE PURSUANT TO THAT CERTAIN
LEASEHOLD DEED OF TRUST AND SECURITY AGREEMENT, DATED AS OF AUGUST 7, 2001 (THE
"SECURITY AGREEMENT"), BY WXIII/CRITTENDEN REALTY A/B, L.L.C. TO FIDELITY
NATIONAL TITLE INSURANCE COMPANY FOR THE BENEFIT OF GMAC COMMERCIAL MORTGAGE
CORPORATION PURSUANT TO SECTION 3.8 OF THE SECURITY AGREEMENT, (II) THE DELIVERY
OF A WRITTEN APPROVAL OF THAT CERTAIN SECOND AMENDMENT TO COMMERCIAL LEASE
(AMPHITHEATRE), DATED AS OF JULY 9, 2003, BETWEEN WXIII/AMPHITHEATRE REALTY,
L.L.C. (THE "AMPHITHEATRE LANDLORD"), TENANT AND AMPHITHEATRE SUBTENANT BY THE
CURRENT HOLDER OF THE LOAN (THE "AMPHITHEATRE LENDER") MADE PURSUANT TO THAT
CERTAIN LOAN AGREEMENT, DATED AS OF JULY 2, 2002 (THE "LOAN AGREEMENT"), BY AND
BETWEEN LANDLORD AND GERMAN AMERICAN CAPITAL CORPORATION PURSUANT TO SECTIONS
8.7 AND 20.2.2 OF THE LOAN AGREEMENT, AND (III) THE DELIVERY BY AMPHITHEATRE
LENDER TO AMPHITHEATRE SUBTENANT OF A NONDISTURBANCE AND ATTORNMENT AGREEMENT IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO AMPHITHEATRE SUBTENANT (THE LATTER
OF SUCH THREE DELIVERIES, THE "EFFECTIVE DATE").
(B)
IF THE EFFECTIVE DATE, AS DEFINED IN SECTION 33.22(A)(III) ABOVE,
SHALL HAVE NOT OCCURRED ON OR BEFORE JULY 31, 2003, THEN THIS LEASE (EXCEPT FOR
SECTION 33.23 BELOW) AS WELL AS THE OTHER LEASE FOR CRITTENDEN A SHALL
TERMINATE, IN WHICH CASE THE ORIGINAL LEASE (AS DEFINED IN THE OTHER LEASE FOR
CRITTENDEN A) SHALL BE REINSTATED.
70
33.23
CERTAIN COSTS.
ALL COSTS INCURRED IN CONNECTION WITH OBTAINING A
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT FROM GROUND LESSOR SHALL
BE SPLIT EQUALLY BETWEEN