Additional Rights; Mortgage. (a) No right or remedy hereunder shall be exclusive of any other right or remedy, but shall be cumulative and in addition to any other right or remedy hereunder or now or hereafter existing by Law or in equity and the exercise by the Lessor of any one or more of such rights, powers or remedies shall not preclude the simultaneous exercise of any or all of such other rights, powers or remedies. Failure to insist upon the strict performance of any provision hereof or to exercise any option, right, power or remedy contained herein shall not constitute a waiver or relinquishment thereof for the future. Receipt by the Lessor (or by the Trustee on behalf of the Lessor) of any Fixed Rent, Additional Rent or other sum payable hereunder with knowledge of the breach by Lessee of any provision hereof shall not constitute waiver of such breach, and no waiver by the Lessor or the Trustee of any provision hereof shall be deemed to have been made unless made in writing. The Lessor and the Trustee shall be entitled to injunctive relief in case of the violation or attempted or threatened violation of any of the provisions hereof, a decree compelling performance of any of the provisions hereof or any other remedy allowed to the Lessor by Law or in equity. (b) The Lessee hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which they may have to redeem the Property or any part thereof or to have a continuance of this Lease after termination of the Lessee's right of occupancy by Law or by any legal process or writ, or under the terms of this Lease, or after the termination of the term of this Lease as herein provided and (ii) the benefits of any Law which exempts property from liability for debt or for distress for rent. (c) If an Event of Default exists hereunder, the Lessee shall pay to the Trustee, on behalf of the Lessor, all fees and out-of-pocket expenses incurred by the Lessor or the Trustee in enforcing its rights under this Lease, including attorneys' fees and expenses. (d) Lessor and Lessee intend that the Lessee shall treat this Lease, for accounting purposes, as an operating lease. If a court of competent jurisdiction determines that the transaction represented by this Lease and the other Operative Documents will be treated as a financing transaction, then in such event it is the intention of the parties hereto (i) that this Lease be treated as a deed of trust and security agreement, mortgage and security agreement, or other similar instrument with a power of sale (the "MORTGAGE") from Lessee, as mortgagor, to the Trustee for the benefit of Lessor, as mortgagees, encumbering the Property, and that the Lessee, as mortgagor, hereby (A) grants, bargains, conveys, mortgages, sells and sets over in trust, with power of sale to the Trustee for the benefit of the Lessor and the Trustee, as mortgagee, or any successor thereto, for the use and benefit of the Holders of the Applicable Percentage of the Interim Notes, the Holders of the B-Notes and the Holders of the Certificates, as beneficiaries, a first and paramount Lien on the Property (subject to Permitted Encumbrances), and (B) grants a security interest to the Lessor and the Trustee in the Property, (ii) that Lessor and the Trustee shall have, as a result of such determination, all of the rights, powers and remedies of a mortgagee and/or secured party available under applicable Law to take possession of and sell (whether by foreclosure, power of sale or otherwise) the Property, (iii) that the effective date of the Mortgage shall be the effective date of this Lease, (iv) that the recording of an instrument referencing this provision shall be deemed to be the recording of the Mortgage and (v) that the Mortgage shall secure the Secured Obligations. (e) If this Lease shall hereafter be treated as the Mortgage as provided in subparagraph 20(d) above, then the following provisions shall apply in respect of the Lessor's and Trustee's enforcement of their rights under such Mortgage: (i) upon request by the Lessor or the Trustee, the Trustee shall proceed (under Chapter 9 of the Texas Business and Commerce Code with respect to the Property located in Texas) to sell the Property and any and every part thereof, at public venue, to the highest bidder, at the customary time and place in the county where the Property is located, and at the time, place, and under the terms designated in said notice of sale for cash, first giving the public notice and notice to the Lessee required by law of the time, terms and place of sale, and of the property to be sold; and upon such sale shall execute and deliver a deed of conveyance of the Property sold to the purchaser or purchasers thereof, and any statement or recital of fact in such deed in relation to the nonpayment of money hereby secured to be paid, existence of the indebtedness so secured, notice of advertisement, sale, receipt of money, and the happening of any of the events whereby any successor Trustee became successor as herein provided, shall be prima facie evidence of the truth of such statement or recital; and the Trustee shall receive the proceeds of such sale, out of which the Trustee shall pay, first the cost and expenses of executing this trust, including attorneys' fees and compensation to the Trustee for its services, and next to the Lessor or its endorsees or assignees, upon the usual vouchers therefor, all monies paid pursuant to or under any provisions set forth herein or in the Operative Documents; and next all monies due and owing as to the Secured Obligations then due and unpaid (with interest and Distributions at the Default Rate on any overdue amounts) up to the time of such payment, and if not enough therefor, then apply what remains; and next to all other unpaid sums secured hereby in such order as the Lessor may elect; and the balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and the Trustee covenants faithfully to perform the trust herein created; (ii) until a sale shall be held hereunder, the Trustee hereby lets the Property to the Lessee, upon the following terms and conditions, to-wit: the Lessee, and every and all persons claiming or possessing the Property, and any part thereof, by, through, or under it, shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly upon demand, and shall and will surrender peaceable possession of the Property, and any and every part thereof, to the Trustee, its successors, assignees, or purchasers thereof, without notice or demand therefor, upon the occurrence of said sale; (iii) upon any sale or sales made hereunder, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Lessor or the Trustee may bid for and acquire the Property or any part thereof and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting upon the Secured Obligations the net sales price after deducting therefrom the expenses of sale and the cost of the action and any other sums which the Lessor is authorized to deduct under this Lease, and, in such event, this Lease and the Operative Documents evidencing the Secured Obligations may be presented to the persons or person conducting the sale in order that the amount so used or applied may be credited upon the Secured Obligations as having been paid; (iv) the Lessor and the Trustee shall have the option to proceed with foreclosure in satisfaction of any part of the Secured Obligations without declaring the whole of the Secured Obligations as immediately due and payable, and such foreclosure may be made subject to the part of the Secured Obligations not due and payable, and it is agreed that such foreclosure, if so made, shall not in any manner affect the part of the Secured Obligations, but as to such part this Lease, as treated as the Mortgage, as well as the other Operative Documents, shall remain in full force and effect just as though no foreclosure had been made. Several foreclosures may be made without exhausting the right of foreclosure for any part of the Secured Obligations not due and payable, it being the purpose to provide for a foreclosure and sale of the security for any due and payable portion of the Secured Obligations without exhausting the power of foreclosure and power to sell the Property for any other part of the Secured Obligations; and (v) the Lessor and the Trustee may, from time to time, substitute another trustee in place of the Trustee herein named. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all the titles, estates, rights, powers and trusts conferred upon the Trustee herein named. Such appointment shall be made by written instrument executed by the Lessor and the Trustee which shall be recorded among the public records in the county where the Property is located, and shall be conclusive proof of the proper appointment of the successor trustee. (f) In the exercise of any of the Lessor's and the Trustee's rights under this paragraph 20, the Lessor and the Trustee shall comply with all applicable requirements of Section 51.002 of the Texas Property Code, as the same may be amended from time to time.
Appears in 2 contracts
Samples: Participation Agreement (Ferro Corp), Lease Agreement (Ferro Corp)
Additional Rights; Mortgage. (a) No right or remedy hereunder shall be exclusive of any other right or remedy, but shall be cumulative and in addition to any other right or remedy hereunder or now or hereafter existing by Law or in equity and the exercise by the Lessor of any one or more of such rights, powers or remedies shall not preclude the simultaneous exercise of any or all of such other rights, powers or remedies. Failure to insist upon the strict performance of any provision hereof or to exercise any option, right, power or remedy contained herein shall not constitute a waiver or relinquishment thereof for the future. Receipt by the Lessor (or by the Trustee on behalf of the Lessor) of any Fixed Rent, Additional Rent or other sum payable hereunder with knowledge of the breach by Lessee of any provision hereof shall not constitute waiver of such breach, and no waiver by the Lessor or the Trustee of any provision hereof shall be deemed to have been made unless made in writing. The Lessor and the Trustee shall be entitled to injunctive relief in case of the violation or attempted or threatened violation of any of the provisions hereof, a decree compelling performance of any of the provisions hereof or any other remedy allowed to the Lessor by Law or in equity.
(b) The Lessee hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which they may have to redeem the Property or any part thereof or to have a continuance of this Lease after termination of the Lessee's right of occupancy by Law or by any legal process or writ, or under the terms of this Lease, or after the termination of the term of this Lease as herein provided and (ii) the benefits of any Law which exempts property from liability for debt or for distress for rent.
(c) If an Event of Default exists hereunder, the Lessee shall pay to the Trustee, on behalf of the Lessor, all fees and out-of-pocket expenses incurred by the Lessor or the Trustee in enforcing its rights under this Lease, including attorneys' fees and expenses.
(d) Lessor and Lessee intend that the Lessee shall treat this Lease, for accounting purposes, as an operating lease. If a court of competent jurisdiction determines that the transaction represented by this Lease and the other Operative Documents will be treated as a financing transaction, then in such event it is the intention of the parties hereto (i) that this Lease be treated as a deed of trust and security agreement, mortgage and security agreement, or other similar instrument with a power of sale (the "MORTGAGE") from Lessee, as mortgagor, to the Trustee for the benefit of Lessor, as mortgagees, encumbering the Property, and that the Lessee, as mortgagor, hereby (A) grants, bargains, conveys, mortgages, sells and sets over in trust, with power of sale to the Trustee for the benefit of the Lessor and the Trustee, as mortgagee, or any successor thereto, for the use and benefit of the Holders of the Applicable Percentage of the Interim Notes, the Holders of the B-Notes and the Holders of the Certificates, as beneficiaries, a first and paramount Lien on the Property (subject to Permitted Encumbrances), and (B) grants a security interest to the Lessor and the Trustee in the Property, (ii) that Lessor and the Trustee shall have, as a result of such determination, all of the rights, powers and remedies of a mortgagee and/or secured party available under applicable Law to take possession of and sell (whether by foreclosure, power of sale or otherwise) the Property, (iii) that the effective date of the Mortgage shall be the effective date of this Lease, (iv) that the recording of an instrument referencing this provision shall be deemed to be the recording of the Mortgage and (v) that the Mortgage shall secure the Secured Obligations.
(e) If this Lease shall hereafter be treated as the Mortgage as provided in subparagraph 20(d) above, then the following provisions shall apply in respect of the Lessor's and Trustee's enforcement of their rights under such Mortgage: (i) upon request by the Lessor or the Trustee, the Trustee shall proceed (under Chapter 9 of the Texas Business and Commerce Code with respect to the Property located in Texas) to sell the Property and any and every part thereof, at public venue, to the highest bidder, at the customary time and place in the county where the Property is located, and at the time, place, and under the terms designated in said notice of sale for cash, first giving the public notice and notice to the Lessee required by law of the time, terms and place of sale, and of the property to be sold; and upon such sale shall execute and deliver a deed of conveyance of the Property sold to the purchaser or purchasers thereof, and any statement or recital of fact in such deed in relation to the nonpayment of money hereby secured to be paid, existence of the indebtedness so secured, notice of advertisement, sale, receipt of money, and the happening of any of the events whereby any successor Trustee became successor as herein provided, shall be prima facie evidence of the truth of such statement or recital; and the Trustee shall receive the proceeds of such sale, out of which the Trustee shall pay, first the cost and expenses of executing this trust, including attorneys' fees and compensation to the Trustee for its services, and next to the Lessor or its endorsees or assignees, upon the usual vouchers therefor, all monies paid pursuant to or under any provisions set forth herein or in the Operative Documents; and next all monies due and owing as to the Secured Obligations then due and unpaid (with interest and Distributions at the Default Rate on any overdue amounts) up to the time of such payment, and if not enough therefor, then apply what remains; and next to all other unpaid sums secured hereby in such order as the Lessor may elect; and the balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and the Trustee covenants faithfully to perform the trust herein created; (ii) until a sale shall be held hereunder, the Trustee hereby lets the Property to the Lessee, upon the following terms and conditions, to-wit: the Lessee, and every and all persons claiming or possessing the Property, and any part thereof, by, through, or under it, shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly upon demand, and shall and will surrender peaceable possession of the Property, and any and every part thereof, to the Trustee, its successors, assignees, or purchasers thereof, without notice or demand therefor, upon the occurrence of said sale; (iii) upon any sale or sales made hereunder, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Lessor or the Trustee may bid for and acquire the Property or any part thereof and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting upon the Secured Obligations the net sales price after deducting therefrom the expenses of sale and the cost of the action and any other sums which the Lessor is authorized to deduct under this Lease, and, in such event, this Lease and the Operative Documents evidencing the Secured Obligations may be presented to the persons or person conducting the sale in order that the amount so used or applied may be credited upon the Secured Obligations as having been paid; (iv) the Lessor and the Trustee shall have the option to proceed with foreclosure in satisfaction of any part of the Secured Obligations without declaring the whole of the Secured Obligations as immediately due and payable, and such foreclosure may be made subject to the part of the Secured Obligations not due and payable, and it is agreed that such foreclosure, if so made, shall not in any manner affect the part of the Secured Obligations, but as to such part this Lease, as treated as the Mortgage, as well as the other Operative Documents, shall remain in full force and effect just as though no foreclosure had been made. Several foreclosures may be made without exhausting the right of foreclosure for any part of the Secured Obligations not due and payable, it being the purpose to provide for a foreclosure and sale of the security for any due and payable portion of the Secured Obligations without exhausting the power of foreclosure and power to sell the Property for any other part of the Secured Obligations; and (v) the Lessor and the Trustee may, from time to time, substitute another trustee in place of the Trustee herein named. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all the titles, estates, rights, powers and trusts conferred upon the Trustee herein named. Such appointment shall be made by written instrument executed by the Lessor and the Trustee which shall be recorded among the public records in the county where the Property is located, and shall be conclusive proof of the proper appointment of the successor trustee.
(f) In the exercise of any of the Lessor's and the Trustee's rights under this paragraph 20, the Lessor and the Trustee shall comply with all applicable requirements of Section 51.002 of the Texas Property Code, as the same may be amended from time to time.the
Appears in 1 contract
Samples: Lease Agreement (Geon Co)
Additional Rights; Mortgage. (a) No right or remedy hereunder --------------------------- shall be exclusive of any other right or remedy, but shall be cumulative and in addition to any other right or remedy hereunder or under the other Operative Documents or now or hereafter existing by at Law or in equity and the exercise by the Lessor or the Collateral Agent of any one or more of such rights, powers or remedies shall not preclude the simultaneous exercise of any or all of such other rights, powers or remedies. Failure to insist upon the strict performance of any provision hereof or to exercise any option, right, power or remedy contained herein shall not constitute a waiver or relinquishment thereof for the future. Receipt by the Lessor (or by the Trustee Agent on behalf of the Lessor) of any Fixed Rent, Additional Rent Rent, Residual Guaranty, Termination Value or other sum payable hereunder or under any other Operative Document with knowledge of the breach by the Lessee of any provision hereof shall not constitute a waiver of such breach, and no waiver by the Lessor or the Trustee of any provision hereof shall be deemed to have been made unless made in writing. The Lessor and the Trustee shall be entitled to injunctive relief in case of the violation or attempted or threatened violation of any of the provisions hereof, a decree compelling performance of any of the provisions hereof or any other remedy allowed to the Lessor by Law at law or in equity.
(b) The Except as otherwise provided in Section 19(h), the Lessee hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which they may have under any applicable law or otherwise to redeem the Mill II Property or any part thereof or to have a continuance of this Lease after termination of the Lessee's right of occupancy by Law or by any legal process or writ, or under the terms of this Lease, or after the termination of the term Term (or Extended Term, as the case may be) of this Lease as herein provided and (ii) the benefits of any Law which exempts property from liability for debt or for distress for rent.
(c) If an Event of Default exists hereunder, the Lessee shall pay to the Trustee, Agent (on behalf of the Lessor, ) on demand all fees and out-of-pocket expenses incurred by the Lessor or the Trustee in enforcing its rights under this Lease, including attorneys' fees and expenses.
(d) The Lessor and the Lessee intend that the Lessee shall treat this Lease, for accounting purposes, as an operating lease. If Notwithstanding the intent of the parties, if a court of competent jurisdiction determines that the transaction represented by this Lease and the other Operative Documents will be treated as a financing transaction, then in such event it is the intention of the parties hereto intend that (i) that this Lease be treated as the repayment and security provisions of a loan by Lessor to Lessee in a principal amount equal to the sum of (x) the Acquisition Costs of the Mill II Property plus (y) the aggregate of all Advances made with respect to the Mill II Property plus any other amounts owing to the Lessor or the Collateral Agent, Note Holders or Equity Investors (collectively, the "Secured ------- Party") under the Operative Documents, including, without limitation, Fixed ----- Rent, Additional Rent, the Offer Purchase Price and the Termination Value (collectively, the "Mill II Loan Amount"), but not to exceed the principal ------------------- amount of Eight Hundred Eighty Seven Million Five Hundred Thousand Dollars ($887,500,000), (ii) all payments of Fixed Rent, Additional Rent, the Offer Purchase Price and the Termination Value be treated as payments of principal, interest and other amounts owing with respect to such Mill II Loan Amount, respectively, (iii) the Lessee should be treated as entitled to all benefits of ownership of the Mill II Property or any part thereof, (iv) this Lease be treated (A) with respect to the portion of the Mill II Property situate in the State of Georgia (a) as a deed to secure debt and security agreement from Lessee, as Grantor, to the Lessor, as Grantee, passing title to that portion of trust the Mill II Property (situate in the State of Georgia) constituting real property, and is made under those provisions of the existing laws of the State of Georgia relating to deeds to secure debt, and not as a mortgage and that the Lessee, as Grantor, hereby grants, bargains, sells, conveys, assigns, transfers and sets over unto the Lessor, as Grantee, for the use and benefit of the Secured Party, Lessee's right, title and interest in and to any real property of any kind or character comprising the Mill II Property, whether now owned or hereafter acquired, and all proceeds therefrom, to have and to hold said real property and all parts, rights, members and appurtenances thereof to the use, benefit and behoof of the Lessor, for the use and benefit of the Secured Party; and (b) as a security agreement from the Lessee, as debtor, to the Lessor, as secured party, encumbering all personal property (situate in the State of Georgia) comprising the Mill II Property whether now owned or hereafter acquired, and all proceeds therefrom (this Lease, in its capacity as such deed to secure debt and security agreement, mortgage the "Mill II Georgia Tenneco ----------------------- Mortgage"), and that the Lessee, hereby grants to the Lessor for the use and -------- benefit of the Secured Party, a Lien on and security agreementinterest in the equipment, fixtures, and any and all other personal property of any kind or other similar instrument character comprising the Mill II Property (situate in the State of Georgia) whether now owned or hereafter acquired, and all proceeds therefrom, in each case being effective as of the date of this Lease, and (B) with respect to the portion of the Mill II Property situate in the State of Florida, (a) as a power of sale (the "MORTGAGE") mortgage from Lessee, as mortgagor, to the Trustee for the benefit of Lessor, as mortgageesmortgagee, encumbering that portion of the PropertyMill II Property (situate in the State of Florida) constituting real property, and is made under those provisions of the existing laws of the State of Florida relating to mortgages and that the Lessee, as mortgagormortgagor hereby does, hereby (A) grantseffective as of the date of this Lease, bargainsmortgage, conveysgive, mortgagesgrant, sells bargain, sell, alien, enfeoff, convey, confirm and sets over in trustassign unto Lessor, with power of sale to the Trustee as mortgagee, for the benefit of the Lessor Secured Party, Lessee's right, title and interest in and to any real property of any kind or character comprising the TrusteeMill II Property, as mortgageewhether now owned or hereafter acquired, or any successor theretoand all proceeds therefrom, to have and to hold said real property and all parts, rights, members and appurtenances thereof to the use, benefit and behoof of the Lessor, for the use and benefit of the Holders Secured Party, and (b) as a security agreement from the Lessee, as debtor, to the Lessor, as secured party, encumbering all personal property (situate in the State of Florida) comprising the Applicable Percentage of the Interim NotesMill II Property whether now owned or hereafter acquired, and all proceeds therefrom (this Lease, in its capacity as such mortgage and security agreement, the Holders of the B-Notes and the Holders of the Certificates, as beneficiaries, a first and paramount Lien on the Property (subject to Permitted Encumbrances"Mill II Florida --------------- Tenneco Mortgage"), and (B) that the Lessee, as debtor, hereby grants to the Lessor, ---------------- for the use and benefit of the Secured Party a Lien on and security interest to in the equipment, fixtures and all other personal property of any kind or character comprising the Mill II Property (situate in the State of Florida) whether now owned or hereafter acquired, and all proceeds therefrom, in each case being effective as of the date of this Lease. In such event, the Lessor and the Trustee in the Property, (ii) that Lessor and the Trustee shall have, as a result of such determination, have all of the rights, powers and remedies of (I) (with respect to the portion of the Mill II Property situate in the State of Georgia) a mortgagee and/or grantee and a secured party available under applicable Law to take possession of and sell (whether by foreclosurelaw, including, without limitation, judicial or nonjudicial foreclosure or power of sale or otherwisesale, as and to the extent available under applicable law, and (II) (with respect to the Property, (iii) that the effective date portion of the Mortgage Mill II Property situate in the State of Florida) a mortgagee and a secured party available under applicable law, including, without limitation, judicial foreclosure as and to the extent available under applicable law, and the amounts secured by the liens and security interests described above shall be the Mill II Loan Amount, plus any other amounts owing to the Lessor or the Secured Party under the Operative Documents. The filing of this Lease (or a memorandum hereof) shall be deemed to constitute the filing (x) with respect to the portion of the Mill II Property situate in the State of Georgia, of a deed to secure debt and the filing of any financing statement in connection with this Lease shall be deemed to constitute the filing of a financing statement to perfect the deed to secure debt security title and security interests in the Mill II Property as aforesaid to secure the payment of all amounts due from time to time from the Lessee to the Lessor under this Lease and the other Operative Documents, and (y) with respect to the portion of the Mill II Property situate in the State of Florida, a mortgage and the filing of any financing statement in connection with this Lease shall be deemed to constitute the filing of a financing statement to perfect the security interest in the Mill II Property aforesaid to secure the payment of all amounts due from time to time from the Lessee to the Lessor under this Lease and the other Operative Documents. (the "Mill II Georgia Tenneco Mortgage" and the "Mill II Florida -------------------------------- --------------- Tenneco Mortgage" shall, collectively, be referred to as the "Mill II Tenneco --------------- --------------- Mortgage"). --------
(e) In addition, if a court of competent jurisdication determines that the transaction represented by this Lease and the other Operative Documents will be treated as a financing transaction, then as additional security for the payment of the Mill II Loan Amount and the observance and performance by Lessee of this Lease and the Mill II Tenneco Mortgage, Lessee does hereby, effective as of the date of this Lease, (iv) that sell, assign, transfer and set over unto Lessor all of Lessee's right, title and interest in and to the recording of an instrument referencing this provision shall be deemed to be the recording of the Mortgage and (v) that the Mortgage shall secure the Secured Obligations.
(e) If this Lease shall hereafter be treated as the Mortgage as provided in subparagraph 20(d) aboveMill II Ground Lease, then the following provisions shall apply in respect of the Lessor's and Trustee's enforcement of their rights under such Mortgage: (i) upon request by the Lessor or the Trusteeall other leases, the Trustee shall proceed (under Chapter 9 of Mill II Property, the Texas Business and Commerce Code with respect to the Property located in Texas) to sell the Property and any and every part thereof, at public venue, to the highest bidder, at the customary time and place in the county where the Property is located, and at the time, place, and under the terms designated in said notice of sale for cash, first giving the public notice and notice to the Lessee required by law of the time, terms and place of sale, and of the property to be sold; and upon such sale shall execute and deliver a deed of conveyance of the Property sold to the purchaser or purchasers possession thereof, and any statement or recital of fact in such deed in relation to all the nonpayment of money hereby secured to be paid, existence of the indebtedness so secured, notice of advertisement, sale, receipt of money, and the happening of any of the events whereby any successor Trustee became successor as herein provided, shall be prima facie evidence of the truth of such statement or recital; and the Trustee shall receive the proceeds of such sale, out of which the Trustee shall pay, first the cost and expenses of executing this trust, including attorneys' fees and compensation to the Trustee for its services, and next to the Lessor or its endorsees or assignees, upon the usual vouchers therefor, all monies paid pursuant to or under any provisions set forth herein or in the Operative Documents; and next all monies rents now due and owing as to the Secured Obligations then which may hereafter become due and unpaid (with interest and Distributions at the Default Rate on any overdue amounts) up to the time of such payment, and if not enough therefor, then apply what remains; and next to all other unpaid sums secured hereby in such order as the Lessor may elect; and the balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and the Trustee covenants faithfully to perform the trust herein created; (ii) until a sale shall be held hereunder, the Trustee hereby lets the Property to the Lessee, upon the following terms and conditions, to-wit: the Lessee, and every and all persons claiming or possessing the Property, and any part thereof, by, through, or under it, shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly upon demand, and shall and will surrender peaceable possession of the Property, and any and every part thereof, to the Trustee, its successors, assignees, or purchasers thereof, without notice or demand therefor, upon the occurrence of said sale; (iii) upon any sale or sales made hereunder, whether made under the power of sale herein granted or under or by virtue of judicial proceedings any other leases, whether written or of a judgment or decree of foreclosure and saleverbal, the Lessor or the Trustee may bid for and acquire the Property or any part thereof andletting of, in lieu of paying cash therefor, may make settlement or any agreement for the purchase price by crediting upon the Secured Obligations the net sales price after deducting therefrom the expenses of sale and the cost of the action and any other sums which the Lessor is authorized to deduct under this Lease, and, in such event, this Lease and the Operative Documents evidencing the Secured Obligations may be presented to the persons use or person conducting the sale in order that the amount so used or applied may be credited upon the Secured Obligations as having been paid; (iv) the Lessor and the Trustee shall have the option to proceed with foreclosure in satisfaction occupancy of any part of the Secured Obligations without declaring Mill II Property, it being the whole intention to hereby establish a present and absolute transfer and assignment of all such leases and agreements and all the avails thereunder unto Lessor. This assignment shall run with the land and be good and valid as against Lessee and those claiming by, under or through Lessee from the date of the Secured Obligations as immediately due and payable, and such foreclosure may be made subject to the part execution of the Secured Obligations not due and payable, and it is agreed that such foreclosure, if so made, this Lease. This assignment shall not in any manner affect the part be exercised unless and until an Event of the Secured Obligations, but as to such part this Lease, as treated as the Mortgage, as well as the other Operative Documents, Default shall occur and be continuing and shall continue and remain in full force and effect just as though no during any foreclosure had been made. Several foreclosures may be made without exhausting the right of foreclosure for any part of the Secured Obligations not due and payable, it being the purpose proceedings relating to provide for a foreclosure and sale of the security for any due and payable portion of the Secured Obligations without exhausting the power of foreclosure and power to sell the Property for any other part of the Secured Obligations; and (v) the Lessor this Mill II Tenneco Mortgage and the Trustee mayperiod of redemption, from time to time, substitute another trustee in place of the Trustee herein named. Upon such appointmentif any, and without conveyance to until the successor trustee, the latter Mill II Loan Amount shall be vested with all the titles, estates, rights, powers and trusts conferred upon the Trustee herein named. Such appointment shall be made by written instrument executed by the Lessor and the Trustee which shall be recorded among the public records have been paid in the county where the Property is located, and shall be conclusive proof of the proper appointment of the successor trusteefull.
(f) In The Mill II Tenneco Mortgage secures and shall be security for the exercise entire Mill II Loan Amount if a court of any of competent jurisdiction determines that the Lessor's and the Trustee's rights under this paragraph 20, the Lessor and the Trustee shall comply with all applicable requirements of Section 51.002 of the Texas Property Code, as the same may be amended from time to time.transaction
Appears in 1 contract
Samples: Lease Agreement (Tenneco Inc /De)
Additional Rights; Mortgage. (a) No right or remedy hereunder --------------------------- shall be exclusive of any other right or remedy, but shall be cumulative and in addition to any other right or remedy hereunder or under the other Operative Documents or now or hereafter existing by at Law or in equity and the exercise by the Lessor or the Collateral Agent of any one or more of such rights, powers or remedies shall not preclude the simultaneous exercise of any or all of such other rights, powers or remedies. Failure to insist upon the strict performance of any provision hereof or to exercise any option, right, power or remedy contained herein shall not constitute a waiver or relinquishment thereof for the future. Receipt by the Lessor (or by the Trustee Agent on behalf of the Lessor) of any Fixed Rent, Additional Rent Rent, Residual Guaranty, Termination Value or other sum payable hereunder or under any other Operative Document with knowledge of the breach by the Lessee of any provision hereof shall not constitute a waiver of such breach, and no waiver by the Lessor or the Trustee of any provision hereof shall be deemed to have been made unless made in writing. The Lessor and the Trustee shall be entitled to injunctive relief in case of the violation or attempted or threatened violation of any of the provisions hereof, a decree compelling performance of any of the provisions hereof or any other remedy allowed to the Lessor by Law at law or in equity.
(b) The Except as otherwise provided in Section 19(h), the Lessee hereby waives and surrenders for itself and all those claiming under it, including creditors of all kinds, (i) any right and privilege which they may have under any applicable law or otherwise to redeem the Mill I Property or any part thereof or to have a continuance of this Lease after termination of the Lessee's right of occupancy by Law or by any legal process or writ, or under the terms of this Lease, or after the termination of the term Term (or Extended Term, as the case may be) of this Lease as herein provided and (ii) the benefits of any Law which exempts property from liability for debt or for distress for rent.
(c) If an Event of Default exists hereunder, the Lessee shall pay to the Trustee, Agent (on behalf of the Lessor, ) on demand all fees and out-of-pocket expenses incurred by the Lessor or the Trustee in enforcing its rights under this Lease, including attorneys' fees and expenses.
(d) The Lessor and the Lessee intend that the Lessee shall treat this Lease, for accounting purposes, as an operating lease. If Notwithstanding the intent of the parties, if a court of competent jurisdiction determines that the transaction represented by this Lease and the other Operative Documents will be treated as a financing transaction, then in such event it is the intention of the parties hereto intend that (i) that this Lease be treated as a deed of trust the repayment and security agreement, mortgage and security agreement, or other similar instrument with provisions of a power of sale (the "MORTGAGE") from Lessee, as mortgagor, loan by Lessor to Lessee in a principal amount equal to the Trustee for sum of (x) the benefit Acquisition Costs of Lessor, as mortgagees, encumbering the Mill I Property plus (y) the aggregate of all Advances made with respect to the Mill I Property, and that the Lessee, as mortgagor, hereby (A) grants, bargains, conveys, mortgages, sells and sets over in trust, with power of sale to the Trustee for the benefit of the Lessor and the Trustee, as mortgagee, or plus any successor thereto, for the use and benefit of the Holders of the Applicable Percentage of the Interim Notes, the Holders of the B-Notes and the Holders of the Certificates, as beneficiaries, a first and paramount Lien on the Property (subject to Permitted Encumbrances), and (B) grants a security interest other amounts owing to the Lessor or the Collateral Agent, Note Holders or Equity Investors (collectively, the "Secured ------- Party") under the Operative Documents including, without limitation, Fixed Rent, ----- Additional Rent, the Offer Purchase Price and the Trustee in Termination Value (collectively, the Property"Mill I Loan Amount"), but not to exceed the principal sum of ------------------ Eight Hundred Eighty Seven Million Five Hundred Thousand Dollars ($887,500,000), (ii) that Lessor all payments of Fixed Rent, Additional Rent, the Offer Purchase Price and the Trustee shall haveTermination Value be treated as payments of principal, as a result of interest and other amounts owing with respect to such determinationMill I Loan Amount, all of the rights, powers and remedies of a mortgagee and/or secured party available under applicable Law to take possession of and sell (whether by foreclosure, power of sale or otherwise) the Propertyrespectively, (iii) that the effective date of the Mortgage shall be the effective date of this Lease, (iv) that the recording of an instrument referencing this provision shall be deemed to be the recording of the Mortgage and (v) that the Mortgage shall secure the Secured Obligations.
(e) If this Lease shall hereafter Lessee should be treated as the Mortgage as provided in subparagraph 20(d) above, then the following provisions shall apply in respect entitled to all benefits of ownership of the Lessor's and Trustee's enforcement of their rights under such Mortgage: (i) upon request by the Lessor Mill I Property or the Trustee, the Trustee shall proceed (under Chapter 9 of the Texas Business and Commerce Code with respect to the Property located in Texas) to sell the Property and any and every part thereof, at public venue, to the highest bidder, at the customary time and place in the county where the Property is located, and at the time, place, and under the terms designated in said notice of sale for cash, first giving the public notice and notice to the Lessee required by law of the time, terms and place of sale, and of the property to be sold; and upon such sale shall execute and deliver a deed of conveyance of the Property sold to the purchaser or purchasers thereof, and any statement or recital of fact in such deed in relation to the nonpayment of money hereby secured to be paid, existence of the indebtedness so secured, notice of advertisement, sale, receipt of money, and the happening of any of the events whereby any successor Trustee became successor as herein provided, shall be prima facie evidence of the truth of such statement or recital; and the Trustee shall receive the proceeds of such sale, out of which the Trustee shall pay, first the cost and expenses of executing this trust, including attorneys' fees and compensation to the Trustee for its services, and next to the Lessor or its endorsees or assignees, upon the usual vouchers therefor, all monies paid pursuant to or under any provisions set forth herein or in the Operative Documents; and next all monies due and owing as to the Secured Obligations then due and unpaid (with interest and Distributions at the Default Rate on any overdue amounts) up to the time of such payment, and if not enough therefor, then apply what remains; and next to all other unpaid sums secured hereby in such order as the Lessor may elect; and the balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and the Trustee covenants faithfully to perform the trust herein created; (ii) until a sale shall be held hereunder, the Trustee hereby lets the Property to the Lessee, upon the following terms and conditions, to-wit: the Lessee, and every and all persons claiming or possessing the Property, and any part thereof, by, through, or under it, shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly upon demand, and shall and will surrender peaceable possession of the Property, and any and every part thereof, to the Trustee, its successors, assignees, or purchasers thereof, without notice or demand therefor, upon the occurrence of said sale; (iii) upon any sale or sales made hereunder, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, the Lessor or the Trustee may bid for and acquire the Property or any part thereof and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting upon the Secured Obligations the net sales price after deducting therefrom the expenses of sale and the cost of the action and any other sums which the Lessor is authorized to deduct under this Lease, and, in such event, this Lease and the Operative Documents evidencing the Secured Obligations may be presented to the persons or person conducting the sale in order that the amount so used or applied may be credited upon the Secured Obligations as having been paid; (iv) the Lessor and the Trustee shall have the option to proceed with foreclosure in satisfaction of any part of the Secured Obligations without declaring the whole of the Secured Obligations as immediately due and payable, and such foreclosure may this Lease be made subject to the part of the Secured Obligations not due and payable, and it is agreed that such foreclosure, if so made, shall not in any manner affect the part of the Secured Obligations, but as to such part this Lease, as treated as the Mortgage, as well as the other Operative Documents, shall remain in full force and effect just as though no foreclosure had been made. Several foreclosures may be made without exhausting the right of foreclosure for any part of the Secured Obligations not due and payable, it being the purpose to provide for a foreclosure and sale of the security for any due and payable portion of the Secured Obligations without exhausting the power of foreclosure and power to sell the Property for any other part of the Secured Obligations; and (v) the Lessor and the Trustee may, from time to time, substitute another trustee in place of the Trustee herein named. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all the titles, estates, rights, powers and trusts conferred upon the Trustee herein named. Such appointment shall be made by written instrument executed by the Lessor and the Trustee which shall be recorded among the public records in the county where the Property is located, and shall be conclusive proof of the proper appointment of the successor trustee.
(f) In the exercise of any of the Lessor's and the Trustee's rights under this paragraph 20, the Lessor and the Trustee shall comply with all applicable requirements of Section 51.002 of the Texas Property Code, as the same may be amended from time to time.treated
Appears in 1 contract
Samples: Mill Lease (Tenneco Inc /De)
