Facility Leases. (a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor shall do or cause to be done all things necessary to preserve and keep unimpaired the rights of Mortgagor, as lessee under all Facility Leases, and to prevent any termination, surrender, cancellation, forfeiture or impairment of any thereof. Mortgagor shall at all times fully perform and comply with all agreements, covenants, terms and conditions imposed upon or assumed by it as lessee under each of the Facility Leases (including, without limitation, the covenant to pay rent and all taxes, assessments and other charges mentioned therein) prior to the expiration of any notice and/or cure period provided in each such Facility Lease. Upon receipt by Mortgagee from a Lessor of any written notice of default by the lessee thereunder, Mortgagee may rely thereon and take any action Mortgagee deems necessary in its sole discretion to prevent or to cure any default by Mortgagor in the per- formance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor as lessee under such Facility Lease, even though the existence of such default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the generality of Section 3.08, Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable for the purpose permitted by the immediately preceding sentence, subject only to applicable Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's rights set forth above or limiting Mortgagee's other remedies under this Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in its sole discretion deems necessary for any such purpose, and (ii) without limiting the provisions of (i) above, in the event of a Disqualification (as defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to exercise the option contained in Section 52.3 of the appropriate Ground Lease within the period of time described in Section 5.20(b)(vii), exercise said option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole discretion, deems necessary in connection therewith, and Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums referred to in (i) and (ii) above, so paid and expended by Mortgagee, together with interest thereon from the date of each such payment at the highest rate of interest set forth in the Mortgage Notes. All sums so paid and expended by Mortgagee, and the interest thereon, shall be added to and be secured by the Lien of this Mortgage. (b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor further covenants and agrees as follows: (i) Mortgagor shall not surrender, terminate or cancel any Ground Lease, and shall not without the consent of Mortgagee, surrender, terminate or cancel modify, change, supplement, alter or amend any Facility Lease, either orally or in writing, if (x) an impairment of the security granted under this Mortgage would result therefrom or (y) with respect to any Ground Lease, the term of such Ground Lease would be reduced thereby or the leasehold mortgagee protections contained therein would be reduced or impaired thereby. As further security for the repayment of the indebted- ness secured hereby and for the performance of the covenants herein and in each Facility Lease contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee under each Facility Lease to terminate, cancel, modify, change, supplement, alter or amend such Facility Lease (including, without limitation, under Section 20.2 of any Ground Lease), and any such termination, cancellation, modification, change, supplement, alteration or amendment of a Facility Lease in violation of the terms hereof, without the prior consent thereto by Mortgagee, shall be void and of no force and effect. Unless (1) an Event of Default has occurred and is continuing and (2) either (A) there has been an acceleration of maturity of any Indebtedness secured hereby or (B) Mortgagee exercises its rights under Section 3.09, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend any Facility Lease. Mortgagee shall, from time to time, after receipt of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating that said conditions have been satisfied) execute instruments in form and substance reasonably satisfactory to Mortgagee confirming the permissibilty of the modification of any Facility Lease described in this clause (i). (ii) Solely for the benefit of Mortgagee, the Holders and no other person, no release or forbearance of any of Mortgagor's obligations under any Facility Lease, pursuant to such Facility Lease or otherwise, shall release Mortgagor from any of Mortgagor's other obligations under this Mortgage. (iii) Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the Leased Facilities and Mortgagor's leasehold estates therein shall not merge and shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor or in the lessee, or in a third party by purchase or otherwise. (iv) Mortgagor shall not appoint or consent to the appointment of an arbitrator pursuant to Article Twenty-First of the Ground Leases without the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee in writing of any request made by Mortgagor, as lessee under any Facility Lease, or any of the Lessors, for arbitration proceedings under any Facility Lease and of the institution of any arbitration proceedings, as well as all proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a copy of the determination of the arbitrators in each such arbitration proceeding. Mortgagee shall have the right to participate in such arbitration proceedings in association with Mortgagor or on its own behalf as an interested party. (v) Mortgagor shall not consent to the subordination of any Facility Lease to any mortgage, deed of trust or other Lien on the fee interest of the Lessor. (vi) If (A) Mortgagor exercises its option(s) under Article Forty-Fourth or Fifty-Second of any Ground Lease to purchase any portion of the Ground Lease Land, Mortgagor shall deliver a copy of its election to exercise such option within 5 days after Mortgagor has delivered notice of such election to the Lessor or (B) Mortgagor acquires fee simple title or any other estate, title or interest in any Leased Facility (pursuant to the options described in clause (A) or otherwise), Mortgagor shall promptly notify Mortgagee of such acquisition and, on request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the opinion of Mortgagee be required or desirable to carry out the intent and meaning of clause (x) of Granting Clause Second. (vii) In the event of any Disqualification, Mortgagor shall exercise the option granted by Section 52.3 of the appropriate Ground Lease within 60 days after the first day on which Mortgagor may exercise said op- tion. (viii) Within 5 days after Mortgagor's receipt of any notice of any motion, application or effort to reject any Facility Lease by any Lessor or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any Lessor under the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights as lessee under Section 365(h) of the Code or any Comparable Provision and (B) covenants that it shall not elect to treat any Facility Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior consent of Mortgagee and (C) agrees that any such election by Mortgagor without such consent shall be null and void. (ix) Without limiting the generality of the foregoing, to the extent permitted by applicable law, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection by Lessor of any Facility Lease under the Code or any Comparable Provision. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Facility Lease, including, without limitation, the right to file and prosecute, in cooperation with Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of Lessor under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee in damages arising out of the rejection of any Facility Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees, disbursements and court costs) incurred in connection with the exercise of any of its rights or remedies under this Section 5.20, and thereafter as provided in Section 3.03. (x) If there shall be filed by or against Mortgagor a petition under the Code or any Comparable Provision and Mortgagor, as lessee under any Facility Lease, shall determine to reject such Facility Lease, Mortgagor shall give Mortgagee not less than 10 days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject such Facility Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such 10-day period a notice stating that (a) Mortgagee demands that Mortgagor assume and assign such Facility Lease to Mortgagee pursuant to Section 365 of the Code or any Comparable Provision and (b) Mortgagee covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such Facility Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Facility Lease and shall comply with the demand provided for in clause (a) of the preceding sentence within 30 days after the notice shall have been given subject to the performance by Mortgagee of the covenant provided for in clause (b) of the preceding sentence. The foregoing provisions of this Section 5.20(b)(x) shall not apply to the extent not permitted by applicable law. Effective upon the entry of an order for relief in respect of Mortgagor under Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which such Facility Lease may be rejected or assumed. (xi) Mortgagor shall promptly give to Mortgagee copies of (A) all notices of default and (B) any other communications or notices with respect to events that relate to the possible impairment of the security of this Mortgage, which Mortgagor shall give or receive under any Facility Lease and shall promptly notify Mortgagee of any default under any Facility Lease on the part of the Lessor or Mortgagor. (xii) Mortgagor shall enforce with due diligence all of the obligations of the Lessor under each Facility Lease, to the end that Mortgagor may enjoy all of the rights and privileges granted to it under the Facility Leases. (xiii) Mortgagor shall notify Mortgagee within 5 days after the transfer of a fee interest in any Leased Facility or any portion thereof to or from an Affiliate. (xiv) The Company or any of its Subsidiaries shall not at any time hereafter acquire fee title to the Leased Land or any portion thereof unless simultaneously with such acquisition the Company or such Subsidiary and Mortgagor execute and exchange (and deliver to Mortgagee an executed counterpart of) an instrument in form and substance satisfactory to Mortgagee providing that so long as the Company or such Subsidiary owns such fee title (A) the Company or such Subsidiary shall not terminate the applicable Facility Lease for any reason whatsoever (including, without limitation, due to the default of Mortgagor under such Facility Lease) and (B) the Company or such Subsidiary shall not accept, and, if tendered by Mortgagor shall promptly return to Mortgagor, any payment of rent or other charges payable under such Facility Lease in excess of the amount required to pay the debt service and other sums payable under any mortgage affecting the Company's or such Subsidiary's fee interest in the applicable Leased Facility (and the Company or such Subsidiary shall use such funds only to pay its debt service obligations and other sums payable under such xxxx- xxxx) at any time that an Event of Default shall have occurred and be continuing under this Mortgage or the Trust Indenture. (c) Mortgagor hereby represents and warrants that all Fixed Net Rent (as defined in the Ground Leases), taxes and assessments, payable under the Ground Leases have been paid to the extent they were due and payable to the date hereof and that Mortgagor has not received notice of its failure to pay any other amounts payable under the Ground Leases which has not been cured. (d) Subject to the provisions of Section 5.20(b)(iii), if both the lessor's and lessee's estates under any Facility Lease or any portion thereof shall at any time become vested in one owner, this Mortgage and the Lien created hereby shall nevertheless not be destroyed or terminated by application of the doctrine of merger and, in such event, Mortgagee shall continue to have all of the rights and privileges of a first leasehold mortgagee. (e) Mortgagor hereby acknowledges that if any Facility Lease shall be terminated prior to the natural expiration of its term due to default by the lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its designee shall acquire from the Lessor a new lease of the Leased Facility or any portion thereof, Mortgagor shall have no right, title or interest in or to such lease or the leasehold estate created thereby, or the options therein contained. (f) Each Facility Lease hereafter entered into or assumed by Mortgagor as lessee or sublessee shall contain provisions (i) permitting the assignment of the same to Mortgagee and permitting assignment without the lessor's consent if this Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as leasehold mortgagee, not less favorable than the provisions contained in Article Twenty-Ninth of the Ground Leases.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Trump Communications LLC)
Facility Leases. (a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor shall do or cause to be done all things necessary to preserve and keep unimpaired the rights of Mortgagor, as lessee under all Facility Leases, and to prevent any termination, surrender, cancellation, forfeiture or impairment of any thereof, except to the extent that the underlying fee estate thereof has been mortgaged to Mortgagee as of the date hereof. Mortgagor shall at all times fully perform and comply with all agreements, covenants, terms and conditions imposed upon or assumed by it as lessee under each of the Facility Leases (including, without limitation, the covenant to pay rent and all taxes, assessments and other charges mentioned therein) prior to the expiration of any notice and/or cure period provided in each such Facility Lease. Upon receipt by Mortgagee from a Lessor of any written notice of default by the lessee thereunder, Mortgagee may rely thereon and take any action Mortgagee deems necessary in its sole discretion to prevent or to cure any default by Mortgagor in the per- formance performance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor as lessee under such Facility Lease, even though the existence of such default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the generality of Section 3.083.8, Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable for the purpose permitted by the immediately preceding sentence, subject only to applicable Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's rights set forth above or limiting Mortgagee's other remedies under this Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in its sole discretion deems necessary for any such purpose, and (ii) without limiting the provisions of (i) above, in the event of a Disqualification (as defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to exercise the option contained in Section 52.3 of the appropriate Ground Lease within the period of time described in Section 5.20(b)(vii), exercise said option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole discretion, deems necessary in connection therewith, and Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums referred to in (i) and (ii) above, so paid and expended by Mortgagee, together with interest thereon from the date of each such payment at the highest rate of interest set forth in the Mortgage Notes. All sums so paid and expended by Mortgagee, and the interest thereon, shall be added to and be secured by the Lien of this Mortgage.
(b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any Ground Lease, and shall not without the consent of Mortgagee, surrender, terminate or cancel modify, change, supplement, alter or amend any Facility Lease, either orally or in writing, if (x) an impairment of the security granted under this Mortgage would result therefrom or (y) with respect to any Ground Lease, the term of such Ground Lease would be reduced thereby or the leasehold mortgagee protections contained therein would be reduced or impaired therebytherefrom. As further security for the repayment of the indebted- ness indebtedness secured hereby and for the performance of the covenants herein and in each Facility Lease contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee under each Facility Lease to terminate, cancel, modify, change, supplement, alter or amend such Facility Lease (including, without limitation, under Section 20.2 of any Ground Lease), and any such termination, cancellation, modification, change, supplement, alteration or amendment of a Facility Lease in violation of the terms hereof, without the prior consent thereto by Mortgagee, shall be void and of no force and effect. Unless
(1) an Event of Default has occurred and is continuing and (2) either (A) there has been an acceleration of maturity of any Indebtedness secured hereby or (B) Mortgagee exercises its rights under Section 3.093.9, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend any Facility Lease. Mortgagee shall, from time to time, after receipt of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating that said conditions have been satisfied) execute instruments in form and substance reasonably satisfactory to Mortgagee confirming the permissibilty permissibility of the modification of any Facility Lease described in this clause (i).
(ii) Solely for the benefit of Mortgagee, the Holders and no other person, no release or forbearance of any of Mortgagor's obligations under any Facility Lease, pursuant to such Facility Lease or otherwise, shall release Mortgagor from any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the Leased Facilities and Mortgagor's leasehold estates therein shall not merge and shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor or in the lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall not appoint or consent to the appointment of an arbitrator pursuant to Article Twenty-First the terms of the Ground Leases without the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee in writing of any request made by Mortgagor, as lessee under any Facility Lease, or any of the Lessors, for arbitration proceedings under any Facility Lease and of the institution of any arbitration proceedings, as well as all proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a copy of the determination of the arbitrators in each such arbitration proceeding. Mortgagee shall have the right to participate in such arbitration proceedings in association with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination of any Facility Lease to any mortgage, deed of trust or other Lien on the fee interest of the Lessor.
(vi) If (A) Mortgagor exercises its option(s) under Article Forty-Fourth or Fifty-Second the terms of any Ground Lease to purchase any portion of the Ground Lease Land, Mortgagor shall deliver a copy of its election to exercise such option within 5 days after Mortgagor has delivered notice of such election to the Lessor or (B) Mortgagor acquires fee simple title or any other estate, title or interest in any Leased Facility (pursuant to the options described in clause (A) or otherwise), Mortgagor shall promptly notify Mortgagee of such acquisition and, on request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the opinion of Mortgagee be required or desirable to carry out the intent and meaning of clause (x) of Granting Clause Second.
(vii) In the event of any Disqualification, Mortgagor shall exercise the option granted by Section 52.3 of the appropriate Ground Lease within 60 days after the first day on which Mortgagor may exercise said op- tion.
(viii) Within 5 days after Mortgagor's receipt of any notice of any motion, application or effort to reject any Facility Lease by any Lessor or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any Lessor under the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights as lessee under Section 365(h) of the Code or any Comparable Provision and (B) covenants that it shall not elect to treat any Facility Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior consent of Mortgagee and (C) agrees that any such election by Mortgagor without such consent shall be null and void.
(ixviii) Without limiting the generality of the foregoing, to the extent permitted by applicable law, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection by Lessor of any Facility Lease under the Code or any Comparable Provision. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Facility Lease, including, without limitation, the right to file and prosecute, in cooperation with Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of Lessor under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee in damages arising out of the rejection of any Facility Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees, disbursements and court costs) incurred in connection with the exercise of any of its rights or remedies under this Section 5.20, and thereafter as provided in Section 3.033.3.
(xix) If there shall be filed by or against Mortgagor a petition under the Code or any Comparable Provision and Mortgagor, as lessee under any Facility Lease, shall determine to reject such Facility Lease, Mortgagor shall give Mortgagee not less than 10 days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject such Facility Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such 10-day period a notice stating that (a) Mortgagee demands that Mortgagor assume and assign such Facility Lease to Mortgagee pursuant to Section 365 of the Code or any Comparable Provision and (b) Mortgagee covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such Facility Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Facility Lease and shall comply with the demand provided for in clause (a) of the preceding sentence within 30 days after the notice shall have been given subject to the performance by Mortgagee of the covenant provided for in clause (b) of the preceding sentence. The foregoing provisions of this Section 5.20(b)(x5.20(x) shall not apply to the extent not permitted by applicable law. Effective upon the entry of an order for relief in respect of Mortgagor under Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which such Facility Lease may be rejected or assumed.
(xix) Mortgagor shall promptly give to Mortgagee copies of (A) all notices of default and (B) any other communications or notices with respect to events that relate to the possible impairment of the security of this Mortgage, which Mortgagor shall give or receive under any Facility Lease and shall promptly notify Mortgagee of any default under any Facility Lease on the part of the Lessor or Mortgagor.
(xiixi) Mortgagor shall enforce with due diligence all of the obligations of the Lessor under each Facility Lease, to the end that Mortgagor may enjoy all of the rights and privileges granted to it under the Facility Leases.
(xiiixii) Mortgagor shall notify Mortgagee within 5 days after the transfer of a fee interest in any Leased Facility or any portion thereof to or from an Affiliate.
(xivxiii) The Company or any of its Subsidiaries shall not at any time hereafter acquire fee title to the Leased Land or any portion thereof unless simultaneously with such acquisition the Company or such Subsidiary and Mortgagor execute and exchange (and deliver to Mortgagee an executed counterpart of) an instrument in form and substance satisfactory to Mortgagee providing that so long as the Company or such Subsidiary owns such fee title (A) the Company or such Subsidiary shall not terminate the applicable Facility Lease for any reason 57 whatsoever (including, without limitation, due to the default of Mortgagor under such Facility Lease) and (B) the Company or such Subsidiary shall not accept, and, if tendered by Mortgagor shall promptly return to Mortgagor, any payment of rent or other charges payable under such Facility Lease in excess of the amount required to pay the debt service and other sums payable under any mortgage affecting the Company's or such Subsidiary's fee interest in the applicable Leased Facility (and the Company or such Subsidiary shall use such funds only to pay its debt service obligations and other sums payable under such xxxx- xxxxmortgage) at any time that an Event of Default shall have occurred and be continuing under this Mortgage or the Trust Indenture.
(c) Mortgagor hereby represents and warrants that all Fixed Net Rent fixed rent (as defined in the Ground Leases), taxes and assessments, payable under the Ground Leases have been paid to the extent they were due and payable to the date hereof and that Mortgagor has not received notice of its failure to pay any other amounts payable under the Ground Leases which has not been cured.
(d) Subject to the provisions of Section 5.20(b)(iii), if both the lessor's and lessee's estates under any Facility Lease or any portion thereof shall at any time become vested in one owner, this Mortgage and the Lien created hereby shall nevertheless not be destroyed or terminated by application of the doctrine of merger and, in such event, Mortgagee shall continue to have all of the rights and privileges of a first leasehold mortgagee.
(e) Mortgagor hereby acknowledges that if any Facility Lease shall be terminated prior to the natural expiration of its term due to default by the lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its designee shall acquire from the Lessor a new lease of the Leased Facility or any portion thereof, Mortgagor shall have no right, title or interest in or to such lease or the leasehold estate created thereby, or the options therein contained.
(f) Each Facility Lease hereafter entered into or assumed by Mortgagor as lessee or sublessee shall contain provisions (i) permitting the assignment of the same to Mortgagee and permitting assignment without the lessor's consent if this Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as leasehold mortgagee, not less favorable than the provisions contained in Article Twenty-Ninth of the Ground Leases.. 58
Appears in 1 contract
Samples: Mortgage and Security Agreement (Trump Communications LLC)
Facility Leases. (a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor shall do or cause to be done all things necessary to preserve and keep unimpaired the rights of Mortgagor, as lessee under all Facility Leases, and and, to prevent any termination, surrender, cancellation, forfeiture or impairment of any thereof. Mortgagor shall at all times fully perform and comply with all agreements, covenants, terms and conditions imposed upon or assumed by it as lessee under each of the Facility Leases (including, without limitation, the covenant to pay rent and all taxes, assessments and other charges mentioned therein) prior to the expiration of any notice and/or cure period provided in each such Facility Lease. Upon receipt by Mortgagee from a Lessor of any written notice of default by the lessee thereunder, Mortgagee may rely thereon and take any action Mortgagee deems necessary in its sole discretion to prevent or to cure any default by Mortgagor in the per- formance performance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor as lessee under such Facility Lease, even though the existence of such default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the generality of Section 3.083.9, Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable for the purpose permitted by the immediately preceding sentence, subject only to applicable Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's rights set forth above or limiting Mortgagee's other remedies under this Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in its sole discretion deems necessary for any such purpose, and (ii) without limiting the provisions of (i) above, in the event of a Disqualification (as defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to exercise the option contained in Section 52.3 of the appropriate Ground Lease within the period of time described in Section 5.20(b)(vii), exercise said option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole discretion, deems necessary in connection therewith, and Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums referred to in (i) and (ii) above, so paid and expended by Mortgagee, together with interest thereon from the date of each such payment at the highest rate of interest set forth in the Mortgage NotesSenior Partnership Upstream Note. All sums so paid and expended by Mortgagee, and the interest thereon, shall be added to and be secured by the Lien lien of this Mortgage.
(b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any Ground Facility Lease, and shall not without the consent of Mortgagee, surrender, terminate or cancel Mortgagee modify, change, supplement, alter or amend any Facility Lease, Lease either orally or in writing, writing if (x) an impairment of the security granted under this Mortgage would result therefrom or (y) with respect to any Ground Lease, the term of such Ground Lease would be reduced thereby or the leasehold mortgagee protections contained therein would be reduced or impaired therebytherefrom. As further security for the repayment of the indebted- ness indebtedness secured hereby and for the performance of the covenants herein and in each Facility Lease contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee under each Facility Lease to terminate, cancel, modify, change, supplement, alter or amend such Facility Lease (including, without limitation, under Section 20.2 of any Ground Lease), and any such termination, cancellation, modification, change, supplement, alteration or amendment of a Facility Lease in violation of the terms hereof, without the prior consent thereto by Mortgagee, Mortgagee shall be void and of no force and effect. Unless
(1) an Event of Default has occurred and is continuing and (2) either (A) there has been an acceleration of maturity of any Indebtedness secured hereby the Senior Partnership Upstream Note pursuant to Section 3.2 or (B) Mortgagee exercises its rights under Section 3.093.9, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend any Facility Lease. Mortgagee shall, from time to time, after receipt of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating that said conditions have been satisfied) execute instruments in form and substance reasonably satisfactory to Mortgagee confirming the permissibilty of the modification of any Facility Lease described in this clause (i).
(ii) Solely for the benefit of Mortgagee, Trustee, the Holders and no other person, no release or forbearance of any of Mortgagor's obligations under any Facility Lease, pursuant to such Facility Lease or otherwise, shall release Mortgagor from any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the Leased Facilities and Mortgagor's leasehold estates therein shall not merge and shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor or in the lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall not appoint or consent to the appointment of an arbitrator pursuant to Article Twenty-First of the Ground Leases without the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee in writing of any request made by Mortgagor, as lessee under any Facility Lease, or any of the Lessors, for arbitration proceedings under any Facility Lease and of the institution of any arbitration proceedings, as well as all proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a copy of the determination of the arbitrators in each such arbitration proceeding. Mortgagee shall have the right to participate in such arbitration proceedings in association with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination of any Facility Lease to any mortgage, deed of trust or other Lien lien on the fee interest of the Lessor.
(vi) If (A) Mortgagor exercises its option(s) under Article Forty-Fourth or Fifty-Second of any Ground Lease to purchase any portion of the Ground Lease Land, Mortgagor shall deliver a copy of its election to exercise such option within 5 days after Mortgagor has delivered notice of such election to the Lessor or (B) Mortgagor acquires fee simple title or any other estate, title or interest in any Leased Facility (pursuant to the options described in clause (A) or otherwise)Facility, Mortgagor shall promptly notify Mortgagee of such acquisition and, on request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the opinion of Mortgagee be required or desirable to carry out the intent and meaning of clause (x) of Granting Clause SecondThird.
(vii) In the event of any Disqualification, Mortgagor shall exercise the option granted by Section 52.3 of the appropriate Ground Lease within 60 days after the first day on which Mortgagor may exercise said op- tion.
(viii) Within 5 days after Mortgagor's receipt of any notice of any motion, application or effort to reject any Facility Lease by any Lessor or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any Lessor under the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights as lessee under Section 365(h) of the Code or any Comparable Provision and (B) covenants that it shall not elect to treat any Facility Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior consent of Mortgagee and (C) agrees that any such election by Mortgagor without such consent shall be null and void.
(ixviii) Without limiting the generality of the foregoing, to the extent permitted by applicable law, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection by Lessor of any Facility Lease under the Code or any Comparable Provision. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Facility Lease, including, without limitation, the right to file and prosecute, in cooperation with Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of Lessor under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee in damages arising out of the rejection of any Facility Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees, disbursements and court costs) incurred in connection with the exercise of any of its rights or remedies under this Section 5.205.18, and thereafter as provided in Section 3.033.3.
(xix) If there shall be filed by or against Mortgagor a petition under the Code or any Comparable Provision and Mortgagor, as lessee under any Facility Lease, shall determine to reject such Facility Lease, Mortgagor shall give Mortgagee not less than 10 days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject such Facility Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such 10-day period a notice stating that (a) Mortgagee demands that Mortgagor assume and assign such Facility Lease to Mortgagee pursuant to Section 365 of the Code or any Comparable Provision and (b) Mortgagee covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such Facility Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Facility Lease and shall comply with the demand provided for in clause (a) of the preceding sentence within 30 days after the notice shall have been given subject to the performance by Mortgagee of the covenant provided for in clause (b) of the preceding sentence. The foregoing provisions of this Section 5.20(b)(x5.18(ix) shall not apply to the extent not permitted by applicable law. Effective upon the entry of an order for relief in respect of Mortgagor under Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which such Facility Lease may be rejected or assumed.
(xix) Mortgagor shall promptly give to Mortgagee copies of (A) all notices of default and (B) any other communications or notices with respect to events that relate to the possible impairment of the security of this Mortgage, which Mortgagor shall give or receive under any Facility Lease and shall promptly notify Mortgagee of any default under any Facility Lease on the part of the Lessor or Mortgagor.
(xiixi) Mortgagor shall enforce with due diligence all of the obligations of the Lessor under each Facility Lease, to the end that Mortgagor may enjoy all of the rights and privileges granted to it under the Facility Leases.
(xiiixii) Mortgagor shall notify Mortgagee within 5 days after the transfer of a fee interest in any Leased Facility or any portion thereof to or from an Affiliate.
(xivxiii) The Company or any No Affiliate of its Subsidiaries Mortgagor shall not at any time hereafter acquire fee title to the Leased Land or any portion thereof unless simultaneously with such acquisition the Company or such Subsidiary Affiliate and Mortgagor execute and exchange (and deliver to Mortgagee the Trustee an executed counterpart of) an instrument in form and substance satisfactory to Mortgagee providing that so long as the Company or such Subsidiary Affiliate owns such fee title (A) the Company or such Subsidiary Affiliate shall not terminate the applicable Facility Lease for any reason whatsoever (including, without limitation, due to the default of Mortgagor under such Facility Lease) and (B) the Company or such Subsidiary Affiliate shall not accept, and, if tendered by Mortgagor shall promptly return to Mortgagor, any payment of rent or other charges payable under such Facility Lease in excess of the amount required to pay the debt service and other sums payable under any mortgage affecting the Company's or such SubsidiaryAffiliate's fee interest in the applicable Leased Facility (and the Company or such Subsidiary Affiliate shall use such funds only to pay its debt service obligations and other sums payable under such xxxx- xxxxmortgage) at any time that an Event of Default, or a Default of the types described in Section 3.1(a), (b) and (f) of this Mortgage or Section 5.1(a), (b), (f) or (g) of the TCHI Note Indenture, shall have occurred and be continuing under this Mortgage or the Trust TCHI Note Indenture.
(c) Mortgagor hereby represents and warrants that all Fixed Net Rent (as defined in the Ground Leases), taxes and assessments, payable under the Ground Leases have been paid to the extent they were due and payable to the date hereof and that Mortgagor has not received notice of its failure to pay any other amounts payable under the Ground Leases which has not been cured.
(d) Subject to the provisions of Section 5.20(b)(iiiSubsection 5.18(b)(iii), if both the lessor's and lessee's estates under any Facility Lease or any portion thereof shall at any time become vested in one owner, this Mortgage and the Lien lien created hereby shall nevertheless not be destroyed or terminated by application of the doctrine of merger and, in such event, Mortgagee shall continue to have all of the rights and privileges of a first leasehold mortgagee.
(ed) Mortgagor hereby acknowledges that if any Facility Lease shall be terminated prior to the natural expiration of its term due to default by the lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its designee shall acquire from the Lessor a new lease of the Leased Facility or any portion thereof, Mortgagor shall have no right, title or interest in or to such lease or the leasehold estate created thereby, or the options therein contained.
(fe) Each Facility Lease hereafter entered into or assumed by Mortgagor as lessee or sublessee shall contain provisions (i) permitting the assignment of the same to Mortgagee and the Trustee and permitting assignment without the lessor's consent if this Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as leasehold mortgagee, not less favorable than the provisions contained in Article Twenty-Ninth of the Ground Leasesform reasonably satisfactory to Mortgagee.
Appears in 1 contract
Samples: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
Facility Leases. (a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor shall do or cause to be done all things necessary to preserve and keep unimpaired the rights of Mortgagor, as lessee under all Facility Leases, and and, to prevent any termination, surrender, cancellation, forfeiture or impairment of any thereof. Mortgagor shall at all times fully perform and comply with all agreements, covenants, terms and conditions imposed upon or assumed by it as lessee under each of the Facility Leases (including, without limitation, the covenant to pay rent and all taxes, assessments and other charges mentioned therein) prior to the expiration of any notice and/or cure period provided in each such Facility Lease. Upon receipt by Mortgagee from a Lessor of any written notice of default by the lessee thereunder, Mortgagee may rely thereon and take any action Mortgagee deems necessary in its sole discretion to prevent or to cure any default by Mortgagor in the per- formance performance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor as lessee under such Facility Lease, even though the existence of such default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the generality of Section 3.083.9, Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable for the purpose permitted by the immediately preceding sentence, subject only to applicable Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's rights set forth above or limiting Mortgagee's other remedies under this Senior Guarantee Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in its sole discretion deems necessary for any such purpose, and (ii) without limiting the provisions of (i) above, in the event of a Disqualification (as defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to exercise the option contained in Section 52.3 of the appropriate Ground Lease within the period of time described in Section 5.20(b)(vii), exercise said option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole discretion, deems necessary in connection therewith, and Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums referred to in (i) and (ii) above, so paid and expended by Mortgagee, together with interest thereon from the date of each such payment at the highest rate of interest set forth in the Mortgage Senior Notes. All sums so paid and expended by Mortgagee, and the interest thereon, shall be added to and be secured by the Lien lien of this Senior Guarantee Mortgage.
(b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any Ground Facility Lease, and shall not without the consent of Mortgagee, surrender, terminate or cancel Mortgagee modify, change, supplement, alter or amend any Facility Lease, Lease either orally or in writing, writing if (x) an impairment of the security granted under this Senior Guarantee Mortgage would result therefrom or (y) with respect to any Ground Lease, the term of such Ground Lease would be reduced thereby or the leasehold mortgagee protections contained therein would be reduced or impaired therebytherefrom. As further security for the repayment of the indebted- ness indebtedness secured hereby and for the performance of the covenants herein and in each Facility Lease contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee under each Facility Lease to terminate, cancel, modify, change, supplement, alter or amend such Facility Lease (including, without limitation, under Section 20.2 of any Ground Lease), and any such termination, cancellation, modification, change, supplement, alteration or amendment of a Facility Lease in violation of the terms hereof, without the prior consent thereto by Mortgagee, Mortgagee shall be void and of no force and effect. Unless
(1) an Event of Default has occurred and is continuing and (2) either (A) there has been an acceleration of maturity of any Indebtedness secured hereby the Senior Partnership Note pursuant to Section 3.2 or (B) Mortgagee exercises its rights under Section 3.09, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend any Facility Lease. Mortgagee shall, from time to time, after receipt of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating that said conditions have been satisfied) execute instruments in form and substance reasonably satisfactory to Mortgagee confirming the permissibilty of the modification of any Facility Lease described in this clause (i).
(ii) Solely for the benefit of Mortgagee, the Holders and no other person, no release or forbearance of any of Mortgagor's obligations under any Facility Lease, pursuant to such Facility Lease or otherwise, shall release Mortgagor from any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the Leased Facilities and Mortgagor's leasehold estates therein shall not merge and shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor or in the lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall not appoint or consent to the appointment of an arbitrator pursuant to Article Twenty-First of the Ground Leases without the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee in writing of any request made by Mortgagor, as lessee under any Facility Lease, or any of the Lessors, for arbitration proceedings under any Facility Lease and of the institution of any arbitration proceedings, as well as all proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a copy of the determination of the arbitrators in each such arbitration proceeding. Mortgagee shall have the right to participate in such arbitration proceedings in association with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination of any Facility Lease to any mortgage, deed of trust or other Lien on the fee interest of the Lessor.
(vi) If (A) Mortgagor exercises its option(s) under Article Forty-Fourth or Fifty-Second of any Ground Lease to purchase any portion of the Ground Lease Land, Mortgagor shall deliver a copy of its election to exercise such option within 5 days after Mortgagor has delivered notice of such election to the Lessor or (B) Mortgagor acquires fee simple title or any other estate, title or interest in any Leased Facility (pursuant to the options described in clause (A) or otherwise), Mortgagor shall promptly notify Mortgagee of such acquisition and, on request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the opinion of Mortgagee be required or desirable to carry out the intent and meaning of clause (x) of Granting Clause Second.
(vii) In the event of any Disqualification, Mortgagor shall exercise the option granted by Section 52.3 of the appropriate Ground Lease within 60 days after the first day on which Mortgagor may exercise said op- tion.
(viii) Within 5 days after Mortgagor's receipt of any notice of any motion, application or effort to reject any Facility Lease by any Lessor or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any Lessor under the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights as lessee under Section 365(h) of the Code or any Comparable Provision and (B) covenants that it shall not elect to treat any Facility Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior consent of Mortgagee and (C) agrees that any such election by Mortgagor without such consent shall be null and void.
(ix) Without limiting the generality of the foregoing, to the extent permitted by applicable law, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection by Lessor of any Facility Lease under the Code or any Comparable Provision. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Facility Lease, including, without limitation, the right to file and prosecute, in cooperation with Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of Lessor under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee in damages arising out of the rejection of any Facility Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees, disbursements and court costs) incurred in connection with the exercise of any of its rights or remedies under this Section 5.20, and thereafter as provided in Section 3.03.
(x) If there shall be filed by or against Mortgagor a petition under the Code or any Comparable Provision and Mortgagor, as lessee under any Facility Lease, shall determine to reject such Facility Lease, Mortgagor shall give Mortgagee not less than 10 days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject such Facility Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such 10-day period a notice stating that (a) Mortgagee demands that Mortgagor assume and assign such Facility Lease to Mortgagee pursuant to Section 365 of the Code or any Comparable Provision and (b) Mortgagee covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such Facility Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Facility Lease and shall comply with the demand provided for in clause (a) of the preceding sentence within 30 days after the notice shall have been given subject to the performance by Mortgagee of the covenant provided for in clause (b) of the preceding sentence. The foregoing provisions of this Section 5.20(b)(x) shall not apply to the extent not permitted by applicable law. Effective upon the entry of an order for relief in respect of Mortgagor under Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which such Facility Lease may be rejected or assumed.
(xi) Mortgagor shall promptly give to Mortgagee copies of (A) all notices of default and (B) any other communications or notices with respect to events that relate to the possible impairment of the security of this Mortgage, which Mortgagor shall give or receive under any Facility Lease and shall promptly notify Mortgagee of any default under any Facility Lease on the part of the Lessor or Mortgagor.
(xii) Mortgagor shall enforce with due diligence all of the obligations of the Lessor under each Facility Lease, to the end that Mortgagor may enjoy all of the rights and privileges granted to it under the Facility Leases.
(xiii) Mortgagor shall notify Mortgagee within 5 days after the transfer of a fee interest in any Leased Facility or any portion thereof to or from an Affiliate.
(xiv) The Company or any of its Subsidiaries shall not at any time hereafter acquire fee title to the Leased Land or any portion thereof unless simultaneously with such acquisition the Company or such Subsidiary and Mortgagor execute and exchange (and deliver to Mortgagee an executed counterpart of) an instrument in form and substance satisfactory to Mortgagee providing that so long as the Company or such Subsidiary owns such fee title (A) the Company or such Subsidiary shall not terminate the applicable Facility Lease for any reason whatsoever (including, without limitation, due to the default of Mortgagor under such Facility Lease) and (B) the Company or such Subsidiary shall not accept, and, if tendered by Mortgagor shall promptly return to Mortgagor, any payment of rent or other charges payable under such Facility Lease in excess of the amount required to pay the debt service and other sums payable under any mortgage affecting the Company's or such Subsidiary's fee interest in the applicable Leased Facility (and the Company or such Subsidiary shall use such funds only to pay its debt service obligations and other sums payable under such xxxx- xxxx) at any time that an Event of Default shall have occurred and be continuing under this Mortgage or the Trust Indenture.
(c) Mortgagor hereby represents and warrants that all Fixed Net Rent (as defined in the Ground Leases), taxes and assessments, payable under the Ground Leases have been paid to the extent they were due and payable to the date hereof and that Mortgagor has not received notice of its failure to pay any other amounts payable under the Ground Leases which has not been cured.
(d) Subject to the provisions of Section 5.20(b)(iii), if both the lessor's and lessee's estates under any Facility Lease or any portion thereof shall at any time become vested in one owner, this Mortgage and the Lien created hereby shall nevertheless not be destroyed or terminated by application of the doctrine of merger and, in such event, Mortgagee shall continue to have all of the rights and privileges of a first leasehold mortgagee.
(e) Mortgagor hereby acknowledges that if any Facility Lease shall be terminated prior to the natural expiration of its term due to default by the lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its designee shall acquire from the Lessor a new lease of the Leased Facility or any portion thereof, Mortgagor shall have no right, title or interest in or to such lease or the leasehold estate created thereby, or the options therein contained.
(f) Each Facility Lease hereafter entered into or assumed by Mortgagor as lessee or sublessee shall contain provisions (i) permitting the assignment of the same to Mortgagee and permitting assignment without the lessor's consent if this Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as leasehold mortgagee, not less favorable than the provisions contained in Article Twenty-Ninth of the Ground Leases.under
Appears in 1 contract
Samples: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
Facility Leases. (a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor shall do or cause to be done all things necessary to preserve and keep unimpaired the rights of Mortgagor, as lessee under all Facility Leases, and and, to prevent any termination, surrender, cancellation, forfeiture or impairment of any thereof. Mortgagor shall at all times fully perform and comply with all agreements, covenants, terms and conditions imposed upon or assumed by it as lessee under each of the Facility Leases (including, without limitation, the covenant to pay rent and all taxes, assessments and other charges mentioned therein) prior to the expiration of any notice and/or cure period provided in each such Facility Lease. Upon receipt by Mortgagee from a Lessor of any written notice of default by the lessee thereunder, Mortgagee may rely thereon and take any action Mortgagee deems necessary in its sole discretion to prevent or to cure any default by Mortgagor in the per- formance performance of or compliance with any of the agreements, covenants, terms or conditions imposed upon or assumed by Mortgagor as lessee under such Facility Lease, even though the existence of such default or the nature thereof be questioned or denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the generality of Section 3.083.9, Mortgagor hereby expressly grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as Mortgagee, in its sole discretion, deems necessary or desirable for the purpose permitted by the immediately preceding sentence, subject only to applicable Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's rights set forth above or limiting Mortgagee's other remedies under this TCHI Note Guarantee Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in its sole discretion deems necessary for any such purpose, and (ii) without limiting the provisions of (i) above, in the event of a Disqualification (as defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to exercise the option contained in Section 52.3 of the appropriate Ground Lease within the period of time described in Section 5.20(b)(vii), exercise said option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole discretion, deems necessary in connection therewith, and Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all such sums referred to in (i) and (ii) above, so paid and expended by Mortgagee, together with interest thereon from the date of each such payment at the highest rate of interest set forth in the Mortgage TCHI Notes. All sums so paid and expended by Mortgagee, and the interest thereon, shall be added to and be secured by the Lien lien of this TCHI Note Guarantee Mortgage.
(b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust Indenture, Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any Ground Facility Lease, and shall not without the consent of Mortgagee, surrender, terminate or cancel Mortgagee modify, change, supplement, alter or amend any Facility Lease, Lease either orally or in writing, writing if (x) an impairment of the security granted under this TCHI Note Guarantee Mortgage would result therefrom or (y) with respect to any Ground Lease, the term of such Ground Lease would be reduced thereby or the leasehold mortgagee protections contained therein would be reduced or impaired therebytherefrom. As further security for the repayment of the indebted- ness indebtedness secured hereby and for the performance of the covenants herein and in each Facility Lease contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee under each Facility Lease to terminate, cancel, modify, change, supplement, alter or amend such Facility Lease (including, without limitation, under Section 20.2 of any Ground Lease), and any such termination, cancellation, modification, change, supplement, alteration or amendment of a Facility Lease in violation of the terms hereof, without the prior consent thereto by Mortgagee, Mortgagee shall be void and of no force and effect. Unless
(1) an Event of Default has occurred and is continuing and (2) either (A) there has been an acceleration of maturity of any Indebtedness secured hereby the Senior Partnership Note pursuant to Section 3.2 or (B) Mortgagee exercises its rights under Section 3.093.9, Mortgagee shall have no right to terminate, cancel, modify, change, supplement, alter or amend any Facility Lease. Mortgagee shall, from time to time, after receipt of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating that said conditions have been satisfied) execute instruments in form and substance reasonably satisfactory to Mortgagee confirming the permissibilty of the modification of any Facility Lease described in this clause (i).
(ii) Solely for the benefit of Mortgagee, Trustee, the Holders and no other person, no release or forbearance of any of Mortgagor's obligations under any Facility Lease, pursuant to such Facility Lease or otherwise, shall release Mortgagor from any of Mortgagor's other obligations under this TCHI Note Guarantee Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in writing, the fee title to the Leased Facilities and Mortgagor's leasehold estates therein shall not merge and shall always remain separate and distinct, notwithstanding the union of said estates either in the Lessor or in the lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall not appoint or consent to the appointment of an arbitrator pursuant to Article Twenty-First of the Ground Leases without the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee in writing of any request made by Mortgagor, as lessee under any Facility Lease, or any of the Lessors, for arbitration proceedings under any Facility Lease and of the institution of any arbitration proceedings, as well as all proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a copy of the determination of the arbitrators in each such arbitration proceeding. Mortgagee shall have the right to participate in such arbitration proceedings in association with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination of any Facility Lease to any mortgage, deed of trust or other Lien lien on the fee interest of the Lessor.
(vi) If (A) Mortgagor exercises its option(s) under Article Forty-Fourth or Fifty-Second of any Ground Lease to purchase any portion of the Ground Lease Land, Mortgagor shall deliver a copy of its election to exercise such option within 5 days after Mortgagor has delivered notice of such election to the Lessor or (B) Mortgagor acquires fee simple title or any other estate, title or interest in any Leased Facility (pursuant to the options described in clause (A) or otherwise)Facility, Mortgagor shall promptly notify Mortgagee of such acquisition and, on request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the opinion of Mortgagee be required or desirable to carry out the intent and meaning of clause (x) of Granting Clause SecondThird.
(vii) In the event of any Disqualification, Mortgagor shall exercise the option granted by Section 52.3 of the appropriate Ground Lease within 60 days after the first day on which Mortgagor may exercise said op- tion.
(viii) Within 5 days after Mortgagor's receipt of any notice of any motion, application or effort to reject any Facility Lease by any Lessor or any trustee arising from or in connection with any case, proceeding or other action commenced or pending by or against any Lessor under the Code or any comparable provision contained in any present or future federal, state, local, foreign or other statute, law, rule or regulation ("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights as lessee under Section 365(h) of the Code or any Comparable Provision and (B) covenants that it shall not elect to treat any Facility Lease as terminated pursuant to Section 365(h) of the Code or any Comparable Provision without the prior consent of Mortgagee and (C) agrees that any such election by Mortgagor without such consent shall be null and void.
(ixviii) Without limiting the generality of the foregoing, to the extent permitted by applicable law, Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection by Lessor of any Facility Lease under the Code or any Comparable Provision. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of any Facility Lease, including, without limitation, the right to file and prosecute, in cooperation with Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of Lessor under the Code or any Comparable Provision. This assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until all of the indebtedness and obligations secured by this TCHI Note Guarantee Mortgage shall have been satisfied and discharged in full. Any amounts received by Mortgagee in damages arising out of the rejection of any Facility Lease as aforesaid shall be applied first to all reasonable costs and expenses of Mortgagee (including, without limitation, reasonable attorneys' fees, disbursements and court costs) incurred in connection with the exercise of any of its rights or remedies under this Section 5.205.18, and thereafter as provided in Section 3.033.3.
(xix) If there shall be filed by or against Mortgagor a petition under the Code or any Comparable Provision and Mortgagor, as lessee under any Facility Lease, shall determine to reject such Facility Lease, Mortgagor shall give Mortgagee not less than 10 days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for authority to reject such Facility Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such 10-day period a notice stating that (a) Mortgagee demands that Mortgagor assume and assign such Facility Lease to Mortgagee pursuant to Section 365 of the Code or any Comparable Provision and (b) Mortgagee covenants to cure or provide adequate assurance of prompt cure of all defaults and provide adequate assurance of future performance under such Facility Lease. If Mortgagee serves upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Facility Lease and shall comply with the demand provided for in clause (a) of the preceding sentence within 30 days after the notice shall have been given subject to the performance by Mortgagee of the covenant provided for in clause (b) of the preceding sentence. The foregoing provisions of this Section 5.20(b)(x5.18(ix) shall not apply to the extent not permitted by applicable law. Effective upon the entry of an order for relief in respect of Mortgagor under Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court or other judicial body with appropriate jurisdiction for an order extending the period during which such Facility Lease may be rejected or assumed.
(xix) Mortgagor shall promptly give to Mortgagee copies of (A) all notices of default and (B) any other communications or notices with respect to events that relate to the possible impairment of the security of this TCHI Note Guarantee Mortgage, which Mortgagor shall give or receive under any Facility Lease and shall promptly notify Mortgagee of any default under any Facility Lease on the part of the Lessor or Mortgagor.
(xiixi) Mortgagor shall enforce with due diligence all of the obligations of the Lessor under each Facility Lease, to the end that Mortgagor may enjoy all of the rights and privileges granted to it under the Facility Leases.
(xiiixii) Mortgagor shall notify Mortgagee within 5 days after the transfer of a fee interest in any Leased Facility or any portion thereof to or from an Affiliate.
(xivxiii) The Company or any No Affiliate of its Subsidiaries Mortgagor shall not at any time hereafter acquire fee title to the Leased Land or any portion thereof unless simultaneously with such acquisition the Company or such Subsidiary Affiliate and Mortgagor execute and exchange (and deliver to Mortgagee the Trustee an executed counterpart of) an instrument in form and substance satisfactory to Mortgagee providing that so long as the Company or such Subsidiary Affiliate owns such fee title (A) the Company or such Subsidiary Affiliate shall not terminate the applicable Facility Lease for any reason whatsoever (including, without limitation, due to the default of Mortgagor under such Facility Lease) and (B) the Company or such Subsidiary Affiliate shall not accept, and, if tendered by Mortgagor shall promptly return to Mortgagor, any payment of rent or other charges payable under such Facility Lease in excess of the amount required to pay the debt service and other sums payable under any mortgage affecting the Company's or such SubsidiaryAffiliate's fee interest in the applicable Leased Facility (and the Company or such Subsidiary Affiliate shall use such funds only to pay its debt service obligations and other sums payable under such xxxx- xxxxmortgage) at any time that an Event of Default, or a Default of the types described in Section 3.1(a), (b) and (f) of this TCHI Note Guarantee Mortgage or Section 5.1(a), (b), (f) or (g) of the TCHI Note Indenture, shall have occurred and be continuing under this TCHI Note Guarantee Mortgage or the Trust TCHI Note Indenture.
(c) Mortgagor hereby represents and warrants that all Fixed Net Rent (as defined in the Ground Leases), taxes and assessments, payable under the Ground Leases have been paid to the extent they were due and payable to the date hereof and that Mortgagor has not received notice of its failure to pay any other amounts payable under the Ground Leases which has not been cured.
(d) Subject to the provisions of Section 5.20(b)(iiiSubsection 5.18(b)(iii), if both the lessor's and lessee's estates under any Facility Lease or any portion thereof shall at any time become vested in one owner, this TCHI Note Guarantee Mortgage and the Lien lien created hereby shall nevertheless not be destroyed or terminated by application of the doctrine of merger and, in such event, Mortgagee shall continue to have all of the rights and privileges of a first leasehold mortgagee.
(ed) Mortgagor hereby acknowledges that if any Facility Lease shall be terminated prior to the natural expiration of its term due to default by the lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its designee shall acquire from the Lessor a new lease of the Leased Facility or any portion thereof, Mortgagor shall have no right, title or interest in or to such lease or the leasehold estate created thereby, or the options therein contained.
(fe) Each Facility Lease hereafter entered into or assumed by Mortgagor as lessee or sublessee shall contain provisions (i) permitting the assignment of the same to Mortgagee and the Trustee and permitting assignment without the lessor's consent if this TCHI Note Guarantee Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as leasehold mortgagee, not less favorable than the provisions contained in Article Twenty-Ninth of the Ground Leasesform reasonably satisfactory to Mortgagee.
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Samples: Indenture of Mortgage and Security Agreement (Trumps Castle Associates Lp)
