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on or encumber the title of Lessor. Lessee has no authority or power to cause or to permit any <br /> lien or encumbrance of any kind whatsoever, whether created by the act of Lessee, operation of <br /> law or otherwise, to attach or to be placed upon the Premises and any and all such liens and <br /> encumbrances created by Lessee shall attach only to Lessee's interest in the Premises. <br /> 16. Subordination. This Lease, and all rights of Lessee hereunder, are and shall be <br /> subject and subordinate to all mortgages or deeds of trust which may now or in the future affect <br /> all or any portion of the Premises and to all renewals, modifications, replacements and <br /> extensions thereof; provided, however, that if the holder of any such mortgage or deed of trust <br /> elects (in its sole discretion and in writing) to subordinate such holder's mortgage or deed of trust <br /> to this Lease (which election may be made at any time), then such election shall be binding on <br /> Lessee. Lessee shall, if requested by the holder or prospective holder of any mortgage or deed of <br /> trust affecting Lessor's interest in the Premises, execute and deliver such commercially <br /> reasonable subordination, non-disturbance and attornment agreement as such holder may request <br /> which agreement shall provide, among other commercially reasonable terms as may be required <br /> by such holder, that this Lease will be subordinate to the lien of such mortgage, that Lessee's <br /> right to possession of the Premises will not be disturbed so long as no Event of Default has <br /> occurred and that Lessee will attom to the purchaser of the Premises at any foreclosure sale <br /> conducted under such mortgage. <br /> 17. Entire Agreement. There are no covenants representations, warranties <br /> agreements, or conditions, expressed, implied, collateral or otherwise, forming part of, or in any <br /> way affecting this lease, except as expressly set forth herein, and this instrument constitutes the <br /> entire agreement between Lessor and Lessee. <br /> 18. Modification. This agreement may not be modified in any way except by a <br /> subsequent agreement in writing executed by both Lessor and Lessee. <br /> 19. Relationship of Parties. Lessor shall not, by nature of the execution of this <br /> Lease or the leasing of the Premises to Lessee, become or be deemed to be a partner of Lessee in <br /> the conduct of Lessee's business on the Premises or otherwise. <br /> 20. DISCLAIMER OF WARRANTY. LESSOR AND LESSEE EXPRESSLY <br /> DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR <br /> LESSEE'S INTENDED COMMERCIAL PURPOSE, AND LESSEE'S OBLIGATIONS <br /> HEREUNDER ARE NOT DEPENDENT UPON THE CONDITION OF THE PREMISES. <br /> 21. No Waiver. One or more waivers of any covenant, term or condition of this <br /> Lease by either party shall not be construed as a waiver of a subsequent breach of the same <br /> covenant, term or condition. The consent or approval by either party to or of any act by the other <br /> party requiring such consent or approval shall not be deemed to waive or render unnecessary <br /> consent to or approval of any subsequent similar act. <br /> 22. Severability. If any provision of this Lease should be held to be invalid or <br /> unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not <br /> be affected thereby. <br /> Excavation Lease Agreement <br /> Page 6 <br />