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2. So long as (i) Tenant is not in default (beyond any period given in the Lease to Tenant to cure such default) in the payment of rent,
percentage rent or additional rent or in the performance or observance of any of the other terms, covenants, provisions or conditions of the Lease
on Tenant’s part to be performed or observed, and (ii) the Lease is in full force and effect: (a) Tenant’s possession of the Premises and Tenant’
s
rights and privileges under the Lease, or any extensions or renewals thereof which may be effected in accordance with any option therefor which
is contained in the Lease, shall not be diminished or interfered with by Lender, and Tenant’
s occupancy of the Premises shall not be disturbed by
Lender for any reason whatsoever during the term of the Lease or any such extensions or renewals thereof, and (b) Lender will not join Tenant as
a party defendant in any action or proceeding to foreclose the Security Instrument or to enforce any rights or remedies of Lender under the
Security Instrument which would cut off, destroy, terminate or extinguish the Lease or Tenant’
s interest and estate under the Lease.
Notwithstanding the foregoing provisions of this paragraph, if it would be procedurally disadvantageous for Lender not to name or join Tenant,
Lender may so name or join Tenant, so long as no action is brought against Tenant to cut off, destroy, terminate or extinguish the Lease or
Tenant’
s interest and estate under the Lease, or to otherwise diminish or adversely affect the rights and privileges granted to, or inuring to the
benefit of, Tenant under this Agreement.
3. (A) After notice is given by Lender that the Security Instrument is in default and that the rentals under the Lease should be paid to
Lender, Tenant will attorn to Lender and pay to Lender, or pay in accordance with the directions of Lender, all rentals and other monies due and
to become due to Landlord under the Lease or otherwise in respect of the Premises.
(B) In addition, if Lender (or its nominee or designee) shall succeed to the rights of Landlord under the Lease through
possession or foreclosure action, delivery of a deed, or otherwise, or another person purchases the Property or the portion thereof containing the
Premises upon or following foreclosure of the Security Instrument or in connection with any bankruptcy case commenced by or against Landlord
(Lender, its nominees and designees, and such purchaser, and their respective successors and assigns, each being a “ Successor-Landlord ”
),
Tenant shall attorn to and recognize Successor-Landlord as Tenant’
s landlord under the Lease, and shall promptly execute and deliver any
instrument that Successor-
Landlord may reasonably request to evidence such attornment. Upon such attornment, the Lease shall continue in full
force and effect as, or as if it were, a direct lease between Successor-
Landlord and Tenant upon all terms, conditions and covenants as are set
forth in the Lease. If the Lease shall have terminated by operation of law or otherwise as a result of or in connection with a bankruptcy case
commenced by or against Landlord or a foreclosure action or proceeding or delivery of a deed in lieu, upon request of Successor-
Landlord or
Tenant, Tenant and Successor-Landlord shall promptly execute and deliver a direct lease between Tenant and Successor-
Landlord, which direct
lease shall be on the same terms and conditions as the Lease (subject, however, to the provisions of clauses (i)-(
v) of this paragraph 3(B)), and
shall be effective as of the day the Lease shall have terminated as aforesaid. Notwithstanding the continuation of the Lease, the attornment of
Tenant thereunder, the recognition of the Lease by the Successor-Landlord, or the execution of a direct lease between Successor-
Landlord and
Tenant as aforesaid, Successor-Landlord shall not:
(i) be liable for any previous act or omission of Landlord under the Lease;
(ii) be subject to any off-
set, defense or counterclaim which shall have theretofore accrued to Tenant against the prior
Landlord except as expressly permitted in Section 3(B)(v) hereof and except to the extent that (a) such offset or defense arises from a default by
Landlord which continues after the date that the Successor-Landlord succeeds to Landlord’
s interest in the Property and Lender has been
provided with notice of such Landlord default and an opportunity to cure same pursuant to the requirements of Section 5 hereof, and (b) such
Landlord default under the Lease giving rise to the offset or defense is of a nature that the Successor Landlord can cure by performing a service
or making a repair (it being acknowledged that, notwithstanding the foregoing, under no circumstances shall Lender or Successor-
Landlord have
any obligations or liability for monetary damages accruing for defaults by Landlord prior to such succession and Lender and Successor Landlord
shall not have any obligation to perform Landlord’
s obligations with respect to the construction of, or payment for, the leasehold improvements
on or above the Premises, tenant work letters and/or similar items). In addition, the parties acknowledge and agree that Successor Landlord shall
not be subject to offsets of Tenant against Landlord for any unpaid tenant allowance monies due from Landlord under the Lease, except as
expressly provided in Section 3(B)(v) hereof, it being understood that nothing in this Section 3(B)(ii) shall limit or nullify the provisions of
Section 3(B)(v);
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