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<br />Page | 41 <br />9138-126780\1512539.3 <br />any time during the Term of this Lease (with consent of Lessor after prior written notice providing <br />evidence that all requirements of this Lease have been complied with, which consent shall not be <br />unreasonably withheld, conditioned or delayed), encumber all or any portion of Tenant’s Leasehold <br />Estate with one (1) or more Leasehold Mortgages; provided, however: <br />17.2.1. Such Leasehold Mortgage(s) (as of the date recorded) shall not exceed (a) if <br />recorded before completion of the Initial Improvements, One Hundred Percent (100%) of the costs of <br />the Initial Improvements, or (b) if recorded after completion of the Initial Improvements, eighty <br />percent (80%) of the Leasehold Estate value (including the value of all improvements) after <br />completion; <br />17.2.2. That Tenant shall not have the power to encumber, and no Leasehold <br />Mortgage shall encumber, Lessor’s Fee Interest; <br />17.2.3. Except as expressly provided in this Lease, the Leasehold Mortgage and all <br />rights acquired under it shall be subject to each and all of the covenants, conditions, and restrictions <br />set forth in this Lease and to all rights and interests of Lessor hereunder; and <br />17.2.4. Nothing in this Lease shall be construed so as to require or result in a <br />subordination in whole or in part in any way of the Lessor’s Fee Interest to any Leasehold Mortgage; <br />17.2.5. Except as otherwise expressly provided herein, in the event of any conflict <br />between the provisions of this Lease and the provisions of any such Leasehold Mortgage, the <br />provisions of this Lease shall control; and <br />17.2.6. Lessor’s prior consent shall not be required with respect to any Leasehold <br />Mortgage that constitutes a “Senior Loan” (as defined in the Agency Loan Agreement ). <br />Tenant’s encumbrance of its Leasehold Estate with a Leasehold Mortgage, as provided in this <br />Section 17.2, shall not constitute an assignment or other Transfer under Article X or otherwise, nor <br />shall any Leasehold Mortgagee, as such, be deemed to be an assi gnee or transferee of this Lease or of <br />the Leasehold Estate so as to require such Leasehold Mortgagee, as such, to assume the Tenant’s <br />obligations and liabilities under this Lease. <br />Notwithstanding the foregoing, if any Leasehold Mortgagee (or its nominee) acquires title to <br />the Premises by foreclosure or deed in lieu thereof, such transfer shall be deemed an Excluded <br />Transfer for purposes of this Lease. <br />17.3 Notification to Lessor of Leasehold Mortgage. Tenant or any Leasehold <br />Mortgagee shall, prior to making any Leasehold Mortgage, provide Lessor with written notice of <br />such Leasehold Mortgage and the name and address of the Leasehold Mortgagee. At the time of <br />notice, Tenant or such Leasehold Mortgagee shall furnish to Lessor a complete copy of any trust <br />deed and note to be secured thereby, together with the name and address of the holder thereof. <br />Thereafter, Tenant or any Leasehold Mortgagee shall notify Lessor of any change in the identity or <br />address of such Leasehold Mortgagee. Lessor shall be entitled to rely upon the addresses provided <br />pursuant to this Section for purposes of giving any notices required by this Article XVII. <br />17.4 Notice and Cure Rights of Leasehold Mortgagees With Respect to Tenant <br />Defaults. Lessor, upon delivery to Tenant of any notice of a default or demand for payment by <br />EXHIBIT 5