Common use of Operating Lease Provisions Clause in Contracts

Operating Lease Provisions. With respect to each Operating Lease: (a) Borrower shall and shall cause Mortgage Borrower to (i) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, (ii) promptly notify Lender of the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. Borrower shall and shall cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. (b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Operating Lease shall be kept unimpaired and free from default. If the tenant or landlord under the Operating Lease shall deliver to Lender a copy of any written notice of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. (c) Notwithstanding anything contained herein to the contrary, with respect to each Individual Property, an Operating Lease shall at all times be in full force and effect. Upon the expiration of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall have the right to cause Mortgage Borrower to (without the prior written approval of Lender) extend the term of the Operating Lease for a period of five (5) years provided that such extension contains the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to Lender. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.

Operating Lease Provisions. With respect to each Operating Lease: (a) Borrower shall and shall cause Mortgage Borrower to (i) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, (ii) promptly notify Lender of the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. Borrower shall and shall cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. (b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Operating Lease shall be kept unimpaired and free from default. If the tenant or landlord under the Operating Lease shall deliver to Lender a copy of any written notice of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. (c) Notwithstanding anything contained herein to the contrary, with respect to each Individual Property, an Operating Lease shall at all times be in full force and effect. Upon the expiration of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall have the right to cause Mortgage Borrower to (without the prior written approval of Lender) to extend the term of the Operating Lease for a period of five (5) years provided that such extension contains the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to Lender. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.

Operating Lease Provisions. With respect to each Operating Lease: (a) Borrower shall and shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to (i) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, (ii) promptly notify Lender of the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Senior Mezzanine Borrower to cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. Borrower shall and shall cause Senior Mezzanine Borrower to cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Senior Mezzanine Borrower to permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. (b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Operating Lease shall be kept unimpaired and free from default. If the tenant or landlord under the Operating Lease shall deliver to Lender a copy of any written notice of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. (c) Notwithstanding anything contained herein to the contrary, with respect to each Individual Property, an Operating Lease shall at all times be in full force and effect. Upon the expiration of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall have the right to cause Senior Mezzanine Borrower to cause Mortgage Borrower to (without the prior written approval of Lender) extend the term of the Operating Lease for a period of five (5) years provided that such extension contains the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to Lender. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.

Operating Lease Provisions. With Borrower hereby covenants, represents and warrants to Lender with respect to each the Operating LeaseLease as follows: (a) Borrower shall There is and shall cause Mortgage Borrower to (i) diligently perform and observe all of has been no default in the terms, covenants and conditions performance of the Operating Lease on by Borrower nor, to the part best of Mortgage Borrower’s knowledge, as landlord thereunderby Operating Tenant with respect to the Property, (ii) promptly notify Lender nor has any event occurred or condition arisen to the best knowledge of Borrower which, with the passage of time, or the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writingnotice, or (y) consent toboth, acquiesce in, would constitute a default under or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear breach of the Operating Lease under Section 363(f) of by the Bankruptcy Code Borrower and or otherwise. Borrower shall and shall cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwiseTenant. (b) If Mortgage Borrower shall default in the performance or observance of any termAll rents, covenant or condition of additional rents, percentage rents and all other charges due and payable under the Operating Lease on have been fully paid to the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the extent same were payable prior to the expiration of any applicable cure period provided thereunderdate hereof. (c) Except as otherwise previously disclosed in writing by Borrower to Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on covers one hundred percent (100%) of the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, leasehold interest in and to the end that Property demised thereby, and Borrower is the rights owner of Mortgage Borrower the entire tenant's interest in, to and under the Operating Lease shall and has the right and authority under such Operating Lease to execute this Instrument and to encumber Borrower's interest therein. (d) Borrower shall, at its sole cost and expense, promptly and timely perform and observe all the terms, covenants and conditions required to be kept unimpaired performed and free from default. If the tenant or observed by Borrower as landlord under the Operating Lease, and shall use its best efforts to cause the Operating Tenant thereunder to promptly and timely perform and observe all the terms, covenants and conditions required to be performed and observed by such Operating Tenant as tenant under the Operating Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Operating Lease). Any default by Borrower and/or the Operating Tenant under the Operating Lease shall constitute a default by Borrower under this Investment. (e) If Borrower and/or the Operating Tenant shall violate any of the covenants specified in (d) above, Borrower grants to Lender the right (but not the obligation), without notice to Borrower, to take any action as may be necessary to prevent or cure any default of Borrower and/or Operating Tenant under the Operating Lease, if necessary to protect Lender's interest hereunder, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems necessary, in order to prevent or to cure any such default. (f) The curing by Lender of any default by Borrower and/or Operating Tenant under the Operating Lease shall not remove or waive, as between Borrower and Lender, the default which occurred hereunder by virtue of the default by Borrower and/or Operating Tenant under such Operating Lease. All sums expended by Lender in order to cure any such default shall be paid by Borrower to Lender, upon demand, with interest thereon at the Default Rate unless prohibited by Laws. All such indebtedness shall be deemed to be secured by this Instrument. No action or payment taken or made by Lender to prevent or cure a default by Borrower and/or Operating Tenant under the Operating Lease shall waive or cure the corresponding default by Borrower under this Instrument. (g) Borrower shall notify Lender promptly in writing of (i) the occurrence of any material default by the Operating Tenant under the Operating Lease or the occurrence of any event which, with the passage of time or service of notice, or both, would constitute a material default by the Operating Tenant under the Operating Lease, and (ii) the receipt by Borrower of any notice (written or otherwise) from the tenant under the Operating Lease noting or claiming the occurrence of any default by Borrower under the Operating Lease or the occurrence of any event which, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Operating Lease. Borrower shall deliver to Lender a copy of any such written notice of default. (h) Promptly upon demand by Lender from time to time, Borrower shall use reasonable efforts (other than payment to the landlord) to obtain from the tenant under the Operating Lease and furnish to Lender the estoppel certificate of such tenant stating the date through which rent has been paid and whether or not there are any defaults under the Operating Lease and specifying the nature of such claimed defaults, if any. (i) Borrower shall promptly notify Lender, in writing, of any request made by either party to the Operating Lease for arbitration or appraisal proceedings pursuant to the Operating Lease, and of the institution of any arbitration or appraisal proceedings, as well as of all proceedings thereunder, and shall promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in each such arbitration or appraisal proceeding. Lender shall have the right (but not the obligation), following the delivery of written notice of Borrower, to participate in the appointment of any arbitrator or appraiser to be appointed by Borrower and to participate in such arbitration or appraisal proceedings in association with Borrower or on its own behalf as an interested party. Borrower shall promptly notify Lender, in writing, of the institution of any legal proceedings involving obligations under the Operating Lease. Lender may intervene in any such legal proceedings and be made a party to them. Borrower shall promptly provide Lender with a copy of any decisions rendered in connection with such proceedings. (j) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Operating Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under this Instrument with respect to the Operating Lease. Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents which are necessary to preserve any rights of Borrower under or with respect to the Operating Lease, such notice shall constitute full protection including, without limitation, the right to effectuate any extension or renewal of the Operating Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Operating Lease (and the above powers granted to Lender for any action taken or omitted to are coupled with an interest and shall be taken by Lender, in good faith, in reliance thereonirrevocable). (ck) Borrower shall not, without Lender's prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend, the Operating Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. (l) Any acquisition of the tenant's interest in the Operating Lease by Borrower or any affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of the landlord and tenant in the Operating Lease. In the event both the landlord's and tenant's estate under the Operating Lease or any portion thereof which constitutes a part of the Property, shall at any time become vested in one owner, this Instrument and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger unless Lender so elects as evidenced by recording a written declaration so stating and, unless and until Lender so elects, Lender shall continue to have and enjoy all of the rights and privileges of Lender and mortgagee as to the separate estates. In addition, upon the foreclosure of the lien created by this Instrument on the Property pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Property shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Lender or any purchaser at such foreclosure shall so elect. No act by or on behalf of Lender or any such purchaser shall constitute a termination of any lease or sublease unless Lender or such purchaser shall give written notice thereof to such tenant or subtenant. (m) Notwithstanding anything contained herein to the contrary, contrary herein contained with respect to each Individual Propertythe Operating Lease: (i) As security for the Obligations, an Borrower hereby unconditionally assigns, transfers and sets over to Lender all of Borrower’s claims and rights to the payment of damages arising from any rejection by Operating Tenant of the Operating Lease under the Bankruptcy Code. Lender and Borrower shall at proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Operating Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of such tenant under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all times of the Obligations secured by this Instrument shall have been satisfied and discharged in full. Any amounts received by Lender or Borrower as damages arising out of the rejection of the Operating Lease as aforesaid shall be applied first to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in full force connection with the exercise of any of its rights or remedies under this Article XI and effectthen in accordance with the other applicable provisions of this Instrument. (ii) If any action, proceeding, motion or notice shall be commenced or filed in respect of any Operating Tenant under the Operating Lease in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection therewith. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys' fees and costs) paid or incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of this Instrument. Lender shall be deemed a party to the Operating Lease (but shall not have any obligations thereunder) for purposes of Section 363 and 365 of the Bankruptcy Code, and shall have standing to appear and act as a party in interest in relation to any matter arising out of or related to the Operating Lease or the Property. (iii) Borrower shall promptly, after obtaining knowledge thereof, notify Lender orally of any filing by or against any Operating Tenant of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender, following its receipt thereof, any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto. (n) Borrower hereby grants and assigns to Lender a security interest in all prepaid rent and security deposits and all other security under the Operating Lease which Borrower may hold now or later for the performance of Operating Tenant’s obligations as the tenant under the Operating Lease. (o) Borrower shall ensure that all subleases entered into by any Operating Tenant (and all existing subleases modified or amended by Operating Tenant) shall provide that such subleases are subordinate to the lien of this Instrument and any extensions, replacements and modifications of this Instrument and the Obligations. (p) The Operating Lease has not been amended, modified, extended, renewed, substituted or assigned, and Borrower has delivered to Lender true, accurate and complete copy of the Operating Lease. Upon the expiration request of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall have deposit with Lender an original fully executed counterpart of the right Operating Lease, as further security to cause Mortgage the Lender, until all of the Obligations are fully paid and performed. Borrower to hereby represents that the Operating Lease or a legally valid memorandum thereof has been properly filed or recorded in the city, town, county or parish records (as appropriate) in which the Land covered thereby is located and that the filing and recording data for the same is accurately set forth in Exhibit A attached hereto. (q) Borrower shall not waive, excuse, condone or in any way release or discharge the Operating Tenant under the Operating Lease or such Operating Tenant’s obligations, covenants and/or conditions under the Operating Lease without the prior written approval consent of Lender) extend . The generality of the term provisions of this Article XI relating to the Operating Lease for a period shall not be limited by other provisions of five (5) years provided that such extension contains this Instrument setting forth particular obligations of Borrower which are also required of Borrower with respect to the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to LenderLand. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.

Operating Lease Provisions. With Borrower hereby covenants, represents and warrants to Lender with respect to each the Operating LeaseLease as follows: (a) Borrower shall There is and shall cause Mortgage Borrower to (i) diligently perform and observe all of has been no default in the terms, covenants and conditions performance of the Operating Lease on by Bxxxxxxx nor, to the part best of Mortgage Borrower’s knowledge, as landlord thereunderby Operating Tenant with respect to the Property, (ii) promptly notify Lender nor has any event occurred or condition arisen to the best knowledge of Borrower which, with the passage of time, or the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writingnotice, or (y) consent toboth, acquiesce in, would constitute a default under or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear breach of the Operating Lease under Section 363(f) of by the Bankruptcy Code Borrower and or otherwise. Borrower shall and shall cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwiseTenant. (b) If Mortgage Borrower shall default in the performance or observance of any termAll rents, covenant or condition of additional rents, percentage rents and all other charges due and payable under the Operating Lease on have been fully paid to the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the extent same were payable prior to the expiration of any applicable cure period provided thereunderdate hereof. (c) Except as otherwise previously disclosed in writing by Bxxxxxxx to Lender, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on covers one hundred percent (100%) of the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, leasehold interest in and to the end that Property demised thereby, and Bxxxxxxx is the rights owner of Mortgage Borrower the entire tenant's interest in, to and under the Operating Lease shall and has the right and authority under such Operating Lease to execute this Instrument and to encumber Borrower's interest therein. (d) Borrower shall, at its sole cost and expense, promptly and timely perform and observe all the terms, covenants and conditions required to be kept unimpaired performed and free from default. If the tenant or observed by Borrower as landlord under the Operating Lease, and shall use its best efforts to cause the Operating Tenant thereunder to promptly and timely perform and observe all the terms, covenants and conditions required to be performed and observed by such Operating Tenant as tenant under the Operating Lease (including, but not limited to, the payment of all rent, additional rent, percentage rent and other charges required to be paid under the Operating Lease). Any default by Bxxxxxxx and/or the Operating Tenant under the Operating Lease shall constitute a default by Borrower under this Investment. (e) If Borrower and/or the Operating Tenant shall violate any of the covenants specified in (d) above, Borrower grants to Lender the right (but not the obligation), without notice to Borrower, to take any action as may be necessary to prevent or cure any default of Borrower and/or Operating Tenant under the Operating Lease, if necessary to protect Lxxxxx's interest hereunder, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems necessary, in order to prevent or to cure any such default. (f) The curing by Lender of any default by Bxxxxxxx and/or Operating Tenant under the Operating Lease shall not remove or waive, as between Borrower and Lender, the default which occurred hereunder by virtue of the default by Bxxxxxxx and/or Operating Tenant under such Operating Lease. All sums expended by Lender in order to cure any such default shall be paid by Borrower to Lender, upon demand, with interest thereon at the Default Rate unless prohibited by Laws. All such indebtedness shall be deemed to be secured by this Instrument. No action or payment taken or made by Lender to prevent or cure a default by Borrower and/or Operating Tenant under the Operating Lease shall waive or cure the corresponding default by Borrower under this Instrument. (g) Borrower shall notify Lender promptly in writing of (i) the occurrence of any material default by the Operating Tenant under the Operating Lease or the occurrence of any event which, with the passage of time or service of notice, or both, would constitute a material default by the Operating Tenant under the Operating Lease, and (ii) the receipt by Borrower of any notice (written or otherwise) from the tenant under the Operating Lease noting or claiming the occurrence of any default by Borrower under the Operating Lease or the occurrence of any event which, with the passage of time or service of notice, or both, would constitute a default by Borrower under the Operating Lease. Borrower shall deliver to Lender a copy of any such written notice of default. (h) Promptly upon demand by Lxxxxx from time to time, Borrower shall use reasonable efforts (other than payment to the landlord) to obtain from the tenant under the Operating Lease and furnish to Lender the estoppel certificate of such tenant stating the date through which rent has been paid and whether or not there are any defaults under the Operating Lease and specifying the nature of such claimed defaults, if any. (i) Borrower shall promptly notify Lender, in writing, of any request made by either party to the Operating Lease for arbitration or appraisal proceedings pursuant to the Operating Lease, and of the institution of any arbitration or appraisal proceedings, as well as of all proceedings thereunder, and shall promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in each such arbitration or appraisal proceeding. Lender shall have the right (but not the obligation), following the delivery of written notice of Bxxxxxxx, to participate in the appointment of any arbitrator or appraiser to be appointed by Bxxxxxxx and to participate in such arbitration or appraisal proceedings in association with Borrower or on its own behalf as an interested party. Borrower shall promptly notify Lxxxxx, in writing, of the institution of any legal proceedings involving obligations under the Operating Lease. Lxxxxx may intervene in any such legal proceedings and be made a party to them. Borrower shall promptly provide Lender with a copy of any decisions rendered in connection with such proceedings. (j) Borrower shall promptly execute, acknowledge and deliver to Lender such instruments as may reasonably be required to permit Lender to cure any default under the Operating Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under this Instrument with respect to the Operating Lease. Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, any and all acts and to execute any and all documents which are necessary to preserve any rights of Borrower under or with respect to the Operating Lease, such notice shall constitute full protection including, without limitation, the right to effectuate any extension or renewal of the Operating Lease, or to preserve any rights of Borrower whatsoever in respect of any part of the Operating Lease (and the above powers granted to Lender for any action taken or omitted to are coupled with an interest and shall be taken by Lender, in good faith, in reliance thereonirrevocable). (ck) Borrower shall not, without Lxxxxx's prior written consent, surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend, the Operating Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. (l) Any acquisition of the tenant's interest in the Operating Lease by Borrower or any affiliate of Borrower shall be accomplished by Borrower in such a manner so as to avoid a merger of the interests of the landlord and tenant in the Operating Lease. In the event both the landlord's and tenant's estate under the Operating Lease or any portion thereof which constitutes a part of the Property, shall at any time become vested in one owner, this Instrument and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger unless Lender so elects as evidenced by recording a written declaration so stating and, unless and until Lender so elects, Lender shall continue to have and enjoy all of the rights and privileges of Lender and mortgagee as to the separate estates. In addition, upon the foreclosure of the lien created by this Instrument on the Property pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Property shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Lender or any purchaser at such foreclosure shall so elect. No act by or on behalf of Lender or any such purchaser shall constitute a termination of any lease or sublease unless Lender or such purchaser shall give written notice thereof to such tenant or subtenant. (m) Notwithstanding anything contained herein to the contrary, contrary herein contained with respect to each Individual Propertythe Operating Lease: (i) As security for the Obligations, an Borrower hereby unconditionally assigns, transfers and sets over to Lender all of Bxxxxxxx’s claims and rights to the payment of damages arising from any rejection by Operating Tenant of the Operating Lease under the Bankruptcy Code. Lender and Bxxxxxxx shall at proceed jointly or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of the Operating Lease, including, without limitation, the right to file and prosecute any proofs of claim, complaints, motions, applications, notices and other documents in any case in respect of such tenant under the Bankruptcy Code. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all times of the Obligations secured by this Instrument shall have been satisfied and discharged in full. Any amounts received by Lxxxxx or Borrower as damages arising out of the rejection of the Operating Lease as aforesaid shall be applied first to all costs and expenses of Lender (including, without limitation, attorneys’ fees and costs) incurred in full force connection with the exercise of any of its rights or remedies under this Article XI and effectthen in accordance with the other applicable provisions of this Instrument. (ii) If any action, proceeding, motion or notice shall be commenced or filed in respect of any Operating Tenant under the Operating Lease in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection therewith. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys' fees and costs) paid or incurred by Lxxxxx in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the lien of this Instrument. Lender shall be deemed a party to the Operating Lease (but shall not have any obligations thereunder) for purposes of Section 363 and 365 of the Bankruptcy Code, and shall have standing to appear and act as a party in interest in relation to any matter arising out of or related to the Operating Lease or the Property. (iii) Borrower shall promptly, after obtaining knowledge thereof, notify Lender orally of any filing by or against any Operating Tenant of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought therein. Borrower shall promptly deliver to Lender, following its receipt thereof, any and all notices, summonses, pleadings, applications and other documents received by Borrower in connection with any such petition and any proceedings relating thereto. (n) Borrower hereby grants and assigns to Lender a security interest in all prepaid rent and security deposits and all other security under the Operating Lease which Borrower may hold now or later for the performance of Operating Tenant’s obligations as the tenant under the Operating Lease. (o) Borrower shall ensure that all subleases entered into by any Operating Tenant (and all existing subleases modified or amended by Operating Tenant) shall provide that such subleases are subordinate to the lien of this Instrument and any extensions, replacements and modifications of this Instrument and the Obligations. (p) The Operating Lease has not been amended, modified, extended, renewed, substituted or assigned, and Bxxxxxxx has delivered to Lender true, accurate and complete copy of the Operating Lease. Upon the expiration request of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to LenderLxxxxx, Borrower shall have deposit with Lender an original fully executed counterpart of the right Operating Lease, as further security to cause Mortgage the Lender, until all of the Obligations are fully paid and performed. Borrower to hereby represents that the Operating Lease or a legally valid memorandum thereof has been properly filed or recorded in the city, town, county or parish records (as appropriate) in which the Land covered thereby is located and that the filing and recording data for the same is accurately set forth in Exhibit A attached hereto. (q) Borrower shall not waive, excuse, condone or in any way release or discharge the Operating Tenant under the Operating Lease or such Operating Tenant’s obligations, covenants and/or conditions under the Operating Lease without the prior written approval consent of Lender) extend . The generality of the term provisions of this Article XI relating to the Operating Lease for a period shall not be limited by other provisions of five (5) years provided that such extension contains this Instrument setting forth particular obligations of Borrower which are also required of Borrower with respect to the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to LenderLand. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDER’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDER’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.

Operating Lease Provisions. With respect to each Operating Lease: (a) Borrower shall and shall cause Mortgage Borrower to (i) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, (ii) promptly notify Lender of the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt. Borrower shall not, and shall not cause or permit Mortgage Borrower to, without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease (to the extent such modification, change, supplement, alteration or amendment would reasonably be expected to have a Material Adverse Effect), either orally or in writing, or (y) consent to, acquiesce in, or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. Borrower shall and shall cause Mortgage Borrower to object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under Section 363(e) of the Bankruptcy Code. Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower and/or Mortgage Borrower, and Borrower shall not, and shall not permit Mortgage Borrower to, contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender Lxxxxx in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the fee estate free and clear of the Operating Lease under Section 363(f) of the Bankruptcy Code or otherwise. (b) If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Operating Lease shall be kept unimpaired and free from default. If the tenant or landlord under the Operating Lease shall deliver to Lender a copy of any written notice of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by LenderLxxxxx, in good faith, in reliance thereon. (c) Notwithstanding anything contained herein to the contrary, with respect to each Individual Property, an Operating Lease shall at all times be in full force and effect. Upon At any time on or before the expiration of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall have the right to cause Mortgage Borrower to (without the prior written approval of Lender) to extend the term of the Operating Lease for a period of five (5) years provided that such extension contains the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements (which “market rent” shall be determined by reference to a transfer pricing report that is prepared by an independent national accounting firm). Borrower shall promptly delivery a copy of any such extension to Lender. (d) Each request by Borrower for approval and consent by Lender pursuant to this Section 5.29 5.28 shall be in writing and contain a legend in capitalized bold letters on the top of the cover page stating: “LENDERLXXXXX’S RESPONSE IS REQUESTED WITHIN TEN (10) BUSINESS DAYS. LENDERLXXXXX’S FAILURE TO RESPOND WITHIN SUCH TIME PERIOD SHALL RESULT IN LENDER’S CONSENT BEING DEEMED TO HAVE BEEN GRANTED” and Borrower shall include the following documentation with such request all materials reasonably necessary in order for Lender to evaluate such matter. In the event that Lender fails to grant or withhold its approval and consent to such matter within such ten (10) Business Day period (and, in the case of a withholding of consent, stating the grounds therefor in reasonable detail), then, so long as no Event of Default is continuing, LenderLxxxxx’s approval and consent shall be deemed to have been granted. There shall be no administrative or approval fee in connection with this Section 5.29(e5.28(d), but Borrower shall pay any out-of-pocket costs and expenses incurred by Lender.