Leasehold Mortgages Tenant, and its successors, subtenants and assigns permitted hereunder, shall have the right to mortgage and pledge its interesttheir respective interests in this Lease (“Leasehold Mortgage”) to any bank, trust company or national banking association, acting for its own account or in a fiduciary capacitya lender who is not affiliated with Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this sectionSection 20. Landlord and Tenant expressly intend and agree that the provisions of this Section 2020 and such other provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to the contrary, all Leasehold Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Lease, and at all times shall be inferior and subject to the prior right, title and interest of Landlord herein. Notwithstanding anything to the contrary set forth in this Lease, in no event shall the fee interest in the Property or Facility Premises be subordinate to any Leasehold Mortgage. A notice of each Leasehold Mortgage shall be delivered to the Landlord specifying the name and address of such Leasehold Mortgagee to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (30) days of such mortgage being recorded. So long as anyIf Tenant, or Tenant’s successors or assigns, shall mortgage this Lease, then so long as any such Leasehold Mortgage shall remain unsatisfied of record and Tenant shall have properly delivered notice to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the following provisions shall apply with respect to such Leasehold Mortgagee: Landlord, upon serving upon Tenant any notice of aan Event of Default or any other notice under the provisions of this Lease, shall also serve a copy of such notice upon Leasehold Mortgagee, and no notice shall be deemed to have been duly given as to the Leasehold Mortgagee unless and until a copy thereof has been so served upon the Leasehold Mortgagee. Landlord’s furnishing a copy of such notice to Leasehold Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Tenant, provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease. Any Leasehold Mortgagee, in case there shall be a Tenant Default under this Lease, shall have the right to remedy such Tenant Default (or cause the same to be remedied) within thirty (30) days after notice to Leasehold Mortgagee of such Tenant Default (which will be after expiration of all Tenant notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Tenant Default so long as (x) curative action reasonably satisfactory to Landlord is instituted within such period and diligently and continuously pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Landlord shall accept such performance by or at the instance of Leasehold Mortgagee as if the same had been made by Tenant. Any provision of this Lease to the contrary notwithstanding, no performance by or on behalf of a Leasehold Mortgagee shall cause it to become a "“mortgagee in possession"” or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease. The Landlord agrees that, in the event of a non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the Leasehold Mortgagee reasonable time within which to obtain possession of the Premises, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Tenant’s interest under this Lease with diligence and without unreasonable delay. The Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of all covenants and agreements of Tenant, except those which by their nature cannot be performed or cured by any person other than the then Tenant which has defaulted (“Incurable Lease Defaults”), the Landlord’s right to terminate this Lease shall be waived with respect to the matters which have been cured by the Leasehold Mortgagee and with respect to the Incurable Lease Defaults. Notwithstanding anything to the contrary set forth in this Section 20(b),20(c), Leasehold Mortgagee shall have the right, but shall not be obligated, to remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by foreclosure of any Leasehold Mortgagee, deed-in-lieu thereof or otherwise to any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such foreclosure proceedings (any such transferee of the Lease), that upon becoming the legal owner and holder of this Lease shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure or deed-in-lieu thereof. , judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default. In the event of the termination of this Lease prior to the expiration of the Term, whether by summary proceedings to dispossess, service of notice to terminate, or otherwise, due to a Tenant Default, Landlord shall serve upon Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions: Upon the written request of Leasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminated to Leasehold Mortgagee, Landlord shall enter into a new lease of the Premises with Leasehold Mortgagee or its designee as follows: Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be deemed to impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof. If this Lease is (a) rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Tenant prior to such rejection or termination). The new lease shall be executed by Landlord and the Leasehold Mortgagee or its nominee(s) within ninety (90) days after the receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this "“Lease"” shall be deemed also to refer to such new lease. Any notice or other communication which Landlord shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served by either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Leasehold Mortgagee at its address provided to Landlord. Simultaneously with the giving to Tenant of any process in any action or proceeding brought for foreclosure of a Leasehold Mortgage or any notice of (i) default or acceleration under a Leasehold Mortgage, (ii) a matter on which such a default or acceleration may be predicated or claimed, (iii) a foreclosure of a Leasehold Mortgage, or (iv) a condition which if continued may lead to such foreclosure, the Leasehold Mortgagee will deliver duplicate copies thereof to the Landlord by certified mail or overnight delivery service. The City, acting by and through the City Representative, shall, at the request of the Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to the City and consistent with the terms and provisions contained in this Section 20.20. Within twenty (20) days of the Tenant’s request for a lender’s rights agreement pursuant to the provisions of this Section 20,20, time being of the essence, the City, acting by and through the City Representative, shall execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall be in a form and substance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, and at the option of such Leasehold Mortgagee incorporates, the terms and provisions of this Section 20.20. Tenant agrees to pay for the City’s reasonable attorneys’ fees expended in connection with any lender’s rights agreement. Landlord agrees to negotiate in good faith and execute modifications to this Section 20 and related provisions of this Lease, which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or prospective Leasehold Mortgagee) in the event that such Leasehold Mortgagee desires changes to the provisions as currently stated.
