SUPERIOR LESSOR WHOSE
NAME AND ADDRESS SHALL PREVIOUSLY HAVE BEEN FURNISHED TO TENANT, AND (B) UNTIL A
REASONABLE PERIOD FOR REMEDYING SUCH ACT OR OMISSION SHALL HAVE ELAPSED
FOLLOWING THE GIVING OF SUCH NOTICE AND FOLLOWING THE TIME WHEN SUCH SUPERIOR
MORTGAGEE OR SUPERIOR LESSOR SHALL HAVE BECOME ENTITLED UNDER SUCH SUPERIOR
MORTGAGE OR SUPERIOR LEASE, AS THE CASE MAY BE, TO REMEDY THE SAME (WHICH
REASONABLE PERIOD SHALL IN NO EVENT BE LESS THAN THE PERIOD TO WHICH LANDLORD
WOULD BE ENTITLED UNDER THIS LEASE OR OTHERWISE, AFTER SIMILAR NOTICE, TO EFFECT
SUCH REMEDY), PROVIDED SUCH SUPERIOR MORTGAGEE OR SUPERIOR LESSOR SHALL WITH DUE
DILIGENCE GIVE TENANT NOTICE OF INTENTION TO, AND COMMENCE AND CONTINUE TO,
REMEDY SUCH ACT OR OMISSION.
5.03
IF ANY SUPERIOR LESSOR OR SUPERIOR MORTGAGEE, OR
ANY DESIGNEE OF ANY SUPERIOR LESSOR OR SUPERIOR MORTGAGEE, SHALL SUCCEED TO THE
RIGHTS OF LANDLORD UNDER THIS LEASE, WHETHER THROUGH POSSESSION OR FORECLOSURE
ACTION OR DELIVERY OF A NEW LEASE OR DEED, THEN AT THE REQUEST OF SUCH PARTY SO
SUCCEEDING TO LANDLORD'S RIGHTS ("SUCCESSOR LANDLORD") AND UPON SUCH SUCCESSOR
LANDLORD'S WRITTEN AGREEMENT TO ACCEPT TENANT'S ATTORNMENT, TENANT SHALL ATTORN
TO AND RECOGNIZE SUCH SUCCESSOR LANDLORD AS TENANT'S LANDLORD UNDER THIS LEASE
AND SHALL PROMPTLY EXECUTE AND DELIVER ANY INSTRUMENT THAT SUCH SUCCESSOR
LANDLORD MAY REASONABLY REQUEST TO EVIDENCE SUCH ATTORNMENT.
18
5.04
(A)
(I)
AS OF THE DATE OF THIS LEASE, THE SOLE
EXISTING SUPERIOR MORTGAGE IS HELD BY BANK OF AMERICA, NATIONAL ASSOCIATION, AS
SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE IN TRUST
FOR J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP., COMMERCIAL MORTGAGE
PASS-TROUGH CERTIFICATES, SERIES 2004-CIBC9 ("LENDER").
ANNEXED AS EXHIBIT J IS
LENDER'S CUSTOMARY FORM OF NON-DISTURBANCE AGREEMENT (THE "NON-DISTURBANCE
AGREEMENT").
IF TENANT WISHES TO MAKE REVISIONS TO SUCH NON-DISTURBANCE
AGREEMENT, TENANT SHALL PROMPTLY NEGOTIATE IN GOOD FAITH COMMERCIALLY REASONABLE
REVISIONS THERETO (THE "MORTGAGE NON-DISTURBANCE AGREEMENT").
PROMPTLY
FOLLOWING SUCH NEGOTIATION, IF ANY, TENANT SHALL EXECUTE, HAVE ACKNOWLEDGED AND
DELIVER THE MORTGAGE NON-DISTURBANCE AGREEMENT TO LANDLORD, AND UPON RECEIPT
THEREOF, LANDLORD SHALL PROMPTLY (X) EXECUTE AND ACKNOWLEDGE THE SAME,
(Y) FORWARD SUCH AGREEMENT TO LENDER FOR ITS FURTHER EXECUTION AND
ACKNOWLEDGEMENT, AND (Z) DELIVER ONE FULLY EXECUTED AND ACKNOWLEDGED ORIGINAL
MORTGAGE NON-DISTURBANCE AGREEMENT TO TENANT.
(II)
IF LANDLORD SHALL FAIL TO DELIVER TO TENANT, WITHIN FORTY-FIVE
(45) DAYS AFTER THE DATE OF TENANT'S EXECUTION AND DELIVERY OF THIS LEASE TO
LANDLORD (TIME BEING OF THE ESSENCE WITH RESPECT TO SUCH DELIVERY DATE), THE
FULLY EXECUTED AND ACKNOWLEDGED MORTGAGE NON-DISTURBANCE AGREEMENT (I.E., WITH
THE COMMERCIALLY REASONABLE REVISIONS REQUIRED BY TENANT), THEN, WITHIN THE FIVE
(5) BUSINESS DAY PERIOD IMMEDIATELY AFTER THE EXPIRATION OF SUCH FORTY-FIVE (45)
DAY PERIOD, TENANT MAY EITHER (I) TERMINATE THIS LEASE UPON WRITTEN NOTICE GIVEN
TO LANDLORD OR (II) EXECUTE, ACKNOWLEDGE AND DELIVER TO LANDLORD LENDER'S
CUSTOMARY FORM OF NON-DISTURBANCE AGREEMENT ANNEXED AS EXHIBIT J HERETO (TIME
BEING OF THE ESSENCE WITH RESPECT TO TENANT'S EXERCISE OF TENANT'S RIGHTS SET
FORTH IN SUBSECTIONS (I) AND (II) HEREOF).
IN THE