Common use of Leasehold Deeds of Trust Clause in Contracts

Leasehold Deeds of Trust. Tenant shall be responsible for funding the entire cost of, and securing all financing required, in order to complete construction of the Improvements in accordance with the Approved Plans, and Landlord hereby consents to the encumbrance of Tenant’s leasehold estate created under this Lease; provided, however, that the fee simple ownership interest of Landlord to the Premises shall be prior, superior and paramount to the lien of any mortgage or deed of trust which may now or hereafter affect the leasehold interest of Tenant in and to the Premises, or any part thereof. Tenant acknowledges and understands that under no circumstances will any party providing financing for the Improvements be permitted to encumber in any manner by lien of a deed of trust, mortgage, security agreement or other encumbrance, Landlord’s fee simple title to the Premises. All rights acquired under any encumbrance of Tenant’s leasehold estate shall be subject and subordinate to the terms of this Lease and to all rights and interests of Landlord hereunder, and shall incorporate all relevant terms and requirements contained herein, including, without limitation, a statement that Lender disclaims any interest or lien against Landlord’s fee simple interest in the Premises and Improvements thereon, a statement that insurance proceeds from casualty or proceeds from condemnation or payments in lieu thereof shall be used for the repair or rebuilding of the Improvements if so required by this Lease and not to the repayment of Lender (except as expressly set forth in this Lease), and a statement that Landlord shall have no liability whatsoever in connection with the financing under the agreement, notes, and security instruments executed, delivered and/or recorded in connection with such financing. If Tenant, or Tenant’s permitted successors or assigns, shall mortgage said leasehold interest, and Tenant provides Landlord with written notice that it has so encumbered the leasehold estate, such notice to include a copy of the underlying deed of trust or other security instrument recorded in the office of the Orange County Register of Deeds and the name and address of the holder of such instrument, then so long as such leasehold deed of trust shall remain unsatisfied of record, the following provisions shall apply, notwithstanding anything to the contrary set forth in this Lease, and any pertinent provisions of this Lease shall be deemed to be amended and modified to the extent necessary so as to provide as follows: (a) Landlord, upon serving upon Tenant any notice of default pursuant to the provisions of Section 20.11 hereof, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice on the holder of such deed of trust, at the address provided for in subparagraph (d) of this Section 16.1, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served; provided, however, that Landlord’s obligation to give or provide the holder of any such deed of trust with any notice shall be contingent upon such holder providing written notice to Landlord of its existence and setting forth the address to which all such notices are to be delivered. (b) Such holder of a leasehold deed of trust, in the event Tenant shall be in default hereunder, shall have the right, within the period and otherwise as herein provided, to remedy or cause to be remedied such default, and Landlord shall accept such performance by or at the instigation of such leasehold deed of trust holder as if the same had been performed by Tenant. No default by Tenant in performing work required to be performed, acts to be done, or conditions to be remedied, shall be deemed to exist, if steps, in good faith, have been properly commenced by Tenant or by said leasehold deed of trust holder, or by any other party, person, or entity to rectify the same no more than sixty (60) days from Landlord’s initial notice thereof to the leasehold deed of trust holder and prosecuted to completion with reasonable diligence and continuity. Tenant constitutes and appoints said leasehold deed of trust holder as Tenant’s agent and attorney-in-fact with full power, and in Tenant’s name, place and stead, and at Tenant’s cost and expense, to enter upon the Premises and make repairs thereto, maintain the same, remove any violations of law, or of the rules and regulations of governing authorities and to otherwise perform any of Tenant’s obligations according to the provisions of this Lease as to the care, maintenance, or preservation of the land, buildings and improvements on the Premises. (c) 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 an Event of Default by Tenant, or any other default of Tenant, Landlord shall serve upon the holder of such deed of trust written notice that the Lease has been terminated together with a statement of any and all sums that 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. Such holder shall thereupon have the option to obtain a new or direct lease in accordance with and upon the following terms and conditions: (i) On the written notice of the holder of said leasehold deed of trust, within sixty (60) days after service of the aforementioned notice of termination, Landlord shall enter into a new or direct lease of the Premises with the holder of such leasehold deed of trust, or its designee, as provided in the following clause (ii), provided, however, Tenant shall not be released of any liability arising under this Lease prior to its termination. (ii) Such new or direct lease shall be entered into at the reasonable cost of the tenant thereunder, 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 agreements, terms, covenants and conditions hereof. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease that is reasonably capable of being performed by such tenant if such tenant has been given notice of such unfulfilled obligation. Upon the execution of such new lease, the tenant named therein shall pay any and all sums that would at the time of the execution thereof be due under this Lease but for such termination, and shall pay all expenses, including reasonable counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of said premises, and the preparation, execution and delivery of such new lease. (d) Any notice or other communication that Landlord shall desire or is required to give to or serve upon the holder of a deed of trust on this Lease shall be in writing and shall be served by certified or overnight mail, addressed to such holder at its address as set forth in such deed of trust, or in the last assignment thereof delivered to Landlord pursuant to Section 13.2(b) hereof, or at such other address as shall be designated by such holder by notice in writing given to Landlord by certified or overnight mail. Any notice or other communication that the holder of a deed of trust on this Lease shall desire or is required to give to or serve upon Landlord shall be deemed to have been duly given or served if sent in duplicate by certified or overnight mail addressed to Landlord at Landlord’s addresses as set forth in Section 20.11 of this Lease or at such other addresses as shall be designated by Landlord by notice in writing given to such holder by certified or overnight mail. Each such notice and communication shall be governed by Section 20.11 hereof. (e) Notwithstanding anything to the contrary set forth in this Lease, the provisions of this Article shall inure only to the benefit of the holders of leasehold deeds of trust which shall be, respectively, a first, second and third lien. If the holders of more than one such leasehold deed of trust shall make written requests upon Landlord for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold deed of trust shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold deed of trust junior in lien shall be and be deemed to be void and of no force or effect. (f) So long as the following covenants of this Lease are being complied with: (i) rent and other payments to be made by Tenant under the Lease are paid current, (ii) construction of the Improvements has been completed or Tenant is diligently pursuing construction of the Improvements, (iii) the Improvements are maintained in good repair, (iv) the Improvements are in compliance with all applicable laws, codes and regulations applicable to the Premises, (v) no financing or mechanics’ liens, other than that of the leasehold deed of trust, against the Premises remain uncancelled, (vi) all insurance policies to be carried by Tenant are in full force and effect, and (vii) the other covenants and conditions of the Lease that are susceptible of being complied with by the holder of the leasehold deed of trust are being complied with, Landlord shall not exercise any default remedies due to a Tenant default which is not susceptible to being cured by the holder of the leasehold deed of trust.

Leasehold Deeds of Trust. Tenant shall be responsible for funding the entire cost of, and securing all financing required, in order to complete construction of the Improvements in accordance with the Approved Plans, and Landlord hereby consents to the encumbrance of Tenant’s leasehold estate created under this Lease; provided, however, that the fee simple ownership interest of Landlord to the Premises shall be prior, superior and paramount to the lien of any mortgage or deed of trust which may now or hereafter affect the leasehold interest of Tenant in and to the Premises, or any part thereof. Tenant acknowledges and understands that under no circumstances will any party providing financing for the Improvements be permitted to encumber in any manner by lien of a deed of trust, mortgage, security agreement or other encumbrance, Landlord’s fee simple title to the Premises. All rights acquired under any encumbrance of Tenant’s leasehold estate shall be subject and subordinate to the terms of this Lease and to all rights and interests of Landlord hereunder, and shall incorporate all relevant terms and requirements contained herein, including, without limitation, a statement that Lender lender disclaims any interest or lien against Landlord’s fee simple interest in the Premises and Improvements thereon, a statement that insurance proceeds from casualty or proceeds from condemnation or payments in lieu thereof shall be used for the repair or rebuilding of the Improvements if so required by this Lease and not to the repayment of Lender lender (except as expressly set forth in this Lease), and a statement that Landlord shall have no liability whatsoever in connection with the financing under the agreement, notes, and security instruments executed, delivered and/or recorded in connection with such financing. If Tenant, or Tenant’s permitted successors or assigns, shall mortgage said leasehold interest, and Tenant provides Landlord with written notice that it has so encumbered the leasehold estate, such notice to include a copy of the underlying deed of trust or other security instrument recorded in the office of the Orange County Register of Deeds and the name and address of the holder of such instrument, then so long as such leasehold deed of trust shall remain unsatisfied of record, the following provisions shall apply, notwithstanding anything to the contrary set forth in this Lease, and any pertinent provisions of this Lease shall be deemed to be amended and modified to the extent necessary so as to provide as follows: (a) Landlord, upon serving upon Tenant any notice of default pursuant to the provisions of Section 20.11 hereof, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice on the holder of such deed of trust, at the address provided for in subparagraph (d) of this Section 16.1, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served; provided, however, that Landlord’s obligation to give or provide the holder of any such deed of trust with any notice shall be contingent upon such holder providing written notice to Landlord of its existence and setting forth the address to which all such notices are to be delivered. (b) Such holder of a leasehold deed of trust, in the event Tenant shall be in default hereunder, shall have the right, within the period and otherwise as herein provided, to remedy or cause to be remedied such default, and Landlord shall accept such performance by or at the instigation of such leasehold deed of trust holder as if the same had been performed by Tenant. No default by Tenant in performing work required to be performed, acts to be done, or conditions to be remedied, shall be deemed to exist, if steps, in good faith, have been properly commenced by Tenant or by said leasehold deed of trust holder, or by any other party, person, or entity to rectify the same no more than sixty (60) days from Landlord’s initial notice thereof to the leasehold deed of trust holder and prosecuted to completion with reasonable diligence and continuity. Tenant constitutes and appoints said leasehold deed of trust holder as Tenant’s agent and attorney-in-fact with full power, and in Tenant’s name, place and stead, and at Tenant’s cost and expense, to enter upon the Premises and make repairs thereto, maintain the same, remove any violations of law, or of the rules and regulations of governing authorities and to otherwise perform any of Tenant’s obligations according to the provisions of this Lease as to the care, maintenance, or preservation of the land, buildings and improvements on the Premises. (c) 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 an Event of Default by Tenant, or any other default of Tenant, Landlord shall serve upon the holder of such deed of trust written notice that the Lease has been terminated together with a statement of any and all sums that 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. Such holder shall thereupon have the option to obtain a new or direct lease in accordance with and upon the following terms and conditions: (i) On the written notice of the holder of said leasehold deed of trust, within sixty (60) days after service of the aforementioned notice of termination, Landlord shall enter into a new or direct lease of the Premises with the holder of such leasehold deed of trust, or its designee, as provided in the following clause (ii), provided, however, Tenant shall not be released of any liability arising under this Lease prior to its termination. (ii) Such new or direct lease shall be entered into at the reasonable cost of the tenant thereunder, 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 agreements, terms, covenants and conditions hereof. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease that is reasonably capable of being performed by such tenant if such tenant has been given notice of such unfulfilled obligation. Upon the execution of such new lease, the tenant named therein shall pay any and all sums that would at the time of the execution thereof be due under this Lease but for such termination, and shall pay all expenses, including reasonable counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of said premises, and the preparation, execution and delivery of such new lease. (d) Any notice or other communication that Landlord shall desire or is required to give to or serve upon the holder of a deed of trust on this Lease shall be in writing and shall be served by certified or overnight mail, addressed to such holder at its address as set forth in such deed of trust, or in the last assignment thereof delivered to Landlord pursuant to Section 13.2(b) hereof, or at such other address as shall be designated by such holder by notice in writing given to Landlord by certified or overnight mail. Any notice or other communication that the holder of a deed of trust on this Lease shall desire or is required to give to or serve upon Landlord shall be deemed to have been duly given or served if sent in duplicate by certified or overnight mail addressed to Landlord at Landlord’s addresses as set forth in Section 20.11 of this Lease or at such other addresses as shall be designated by Landlord by notice in writing given to such holder by certified or overnight mail. Each such notice and communication shall be governed by Section 20.11 hereof. (e) Notwithstanding anything to the contrary set forth in this Lease, the provisions of this Article shall inure only to the benefit of the holders of leasehold deeds of trust which shall be, respectively, a first, second and third lien. If the holders of more than one such leasehold deed of trust shall make written requests upon Landlord for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold deed of trust shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold deed of trust junior in lien shall be and be deemed to be void and of no force or effect. (f) So long as the following covenants of this Lease are being complied with: (i) rent and other payments to be made by Tenant under the Lease are paid current, (ii) construction of the Improvements has been completed or Tenant is diligently pursuing construction of the Improvements, (iii) the Improvements are maintained in good repair, (iv) the Improvements are in compliance with all applicable laws, codes and regulations applicable to the Premises, (v) no financing or mechanics’ liens, other than that of the leasehold deed of trust, against the Premises remain uncancelled, (vi) all insurance policies to be carried by Tenant are in full force and effect, and (vii) the other covenants and conditions of the Lease that are susceptible of being complied with by the holder of the leasehold deed of trust are being complied with, Landlord shall not exercise any default remedies due to a Tenant default which is not susceptible to being cured by the holder of the leasehold deed of trust.

Leasehold Deeds of Trust. Tenant shall be responsible for funding the entire cost of, and securing all financing required, in order to complete construction of the Improvements in accordance with the Approved Plans, and Landlord hereby consents to the encumbrance of Tenant’s leasehold estate created under this Lease; provided, however, that the fee simple ownership interest of Landlord to the Premises shall be prior, superior and paramount to the lien of any mortgage or deed of trust which may now or hereafter affect the leasehold interest of Tenant in and to the Premises, or any part thereof. Tenant acknowledges and understands that under no circumstances will any party providing financing for the Improvements be permitted to encumber in any manner by lien of a deed of trust, mortgage, security agreement or other encumbrance, Landlord’s fee simple title to the Premises. All rights acquired under any encumbrance of Tenant’s leasehold estate shall be subject and subordinate to the terms of this Lease and to all rights and interests of Landlord hereunder, and shall incorporate all relevant terms and requirements contained herein, including, without limitation, a statement that Lender Lenderlender disclaims any interest or lien against Landlord’s fee simple interest in the Premises and Improvements thereon, a statement that insurance proceeds from casualty or proceeds from condemnation or payments in lieu thereof shall be used for the repair or rebuilding of the Improvements if so required by this Lease and not to the repayment of Lender Lenderlender (except as expressly set forth in this Lease), and a statement that Landlord shall have no liability whatsoever in connection with the financing under the agreement, notes, and security instruments executed, delivered and/or recorded in connection with such financing. If Tenant, or Tenant’s permitted successors or assigns, shall mortgage said leasehold interest, and Tenant provides Landlord with written notice that it has so encumbered the leasehold estate, such notice to include a copy of the underlying deed of trust or other security instrument recorded in the office of the Orange County Register of Deeds and the name and address of the holder of such instrument, then so long as such leasehold deed of trust shall remain unsatisfied of record, the following provisions shall apply, notwithstanding anything to the contrary set forth in this Lease, and any pertinent provisions of this Lease shall be deemed to be amended and modified to the extent necessary so as to provide as follows: (a) Landlord, upon serving upon Tenant any notice of default pursuant to the provisions of Section 20.11 hereof, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice on the holder of such deed of trust, at the address provided for in subparagraph (d) of this Section 16.1, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served; provided, however, that Landlord’s obligation to give or provide the holder of any such deed of trust with any notice shall be contingent upon such holder providing written notice to Landlord of its existence and setting forth the address to which all such notices are to be delivered. (b) Such holder of a leasehold deed of trust, in the event Tenant shall be in default hereunder, shall have the right, within the period and otherwise as herein provided, to remedy or cause to be remedied such default, and Landlord shall accept such performance by or at the instigation of such leasehold deed of trust holder as if the same had been performed by Tenant. No default by Tenant in performing work required to be performed, acts to be done, or conditions to be remedied, shall be deemed to exist, if steps, in good faith, have been properly commenced by Tenant or by said leasehold deed of trust holder, or by any other party, person, or entity to rectify the same no more than sixty (60) days from Landlord’s initial notice thereof to the leasehold deed of trust holder and prosecuted to completion with reasonable diligence and continuity. Tenant constitutes and appoints said leasehold deed of trust holder as Tenant’s agent and attorney-in-fact with full power, and in Tenant’s name, place and stead, and at Tenant’s cost and expense, to enter upon the Premises and make repairs thereto, maintain the same, remove any violations of law, or of the rules and regulations of governing authorities and to otherwise perform any of Tenant’s obligations according to the provisions of this Lease as to the care, maintenance, or preservation of the land, buildings and improvements on the Premises. (c) 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 an Event of Default by Tenant, or any other default of Tenant, Landlord shall serve upon the holder of such deed of trust written notice that the Lease has been terminated together with a statement of any and all sums that 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. Such holder shall thereupon have the option to obtain a new or direct lease in accordance with and upon the following terms and conditions: (i) On the written notice of the holder of said leasehold deed of trust, within sixty (60) days after service of the aforementioned notice of termination, Landlord shall enter into a new or direct lease of the Premises with the holder of such leasehold deed of trust, or its designee, as provided in the following clause (ii), provided, however, Tenant shall not be released of any liability arising under this Lease prior to its termination. (ii) Such new or direct lease shall be entered into at the reasonable cost of the tenant thereunder, 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 agreements, terms, covenants and conditions hereof. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease that is reasonably capable of being performed by such tenant if such tenant has been given notice of such unfulfilled obligation. Upon the execution of such new lease, the tenant named therein shall pay any and all sums that would at the time of the execution thereof be due under this Lease but for such termination, and shall pay all expenses, including reasonable counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of said premises, and the preparation, execution and delivery of such new lease. (d) Any notice or other communication that Landlord shall desire or is required to give to or serve upon the holder of a deed of trust on this Lease shall be in writing and shall be served by certified or overnight mail, addressed to such holder at its address as set forth in such deed of trust, or in the last assignment thereof delivered to Landlord pursuant to Section 13.2(b) hereof, or at such other address as shall be designated by such holder by notice in writing given to Landlord by certified or overnight mail. Any notice or other communication that the holder of a deed of trust on this Lease shall desire or is required to give to or serve upon Landlord shall be deemed to have been duly given or served if sent in duplicate by certified or overnight mail addressed to Landlord at Landlord’s addresses as set forth in Section 20.11 of this Lease or at such other addresses as shall be designated by Landlord by notice in writing given to such holder by certified or overnight mail. Each such notice and communication shall be governed by Section 20.11 hereof. (e) Notwithstanding anything to the contrary set forth in this Lease, the provisions of this Article shall inure only to the benefit of the holders of leasehold deeds of trust which shall be, respectively, a first, second and third lien. If the holders of more than one such leasehold deed of trust shall make written requests upon Landlord for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold deed of trust shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold deed of trust junior in lien shall be and be deemed to be void and of no force or effect. (f) So long as the following covenants of this Lease are being complied with: (i) rent and other payments to be made by Tenant under the Lease are paid current, (ii) construction of the Improvements has been completed or Tenant is diligently pursuing construction of the Improvements, (iii) the Improvements are maintained in good repair, (iv) the Improvements are in compliance with all applicable laws, codes and regulations applicable to the Premises, (v) no financing or mechanics’ liens, other than that of the leasehold deed of trust, against the Premises remain uncancelled, (vi) all insurance policies to be carried by Tenant are in full force and effect, and (vii) the other covenants and conditions of the Lease that are susceptible of being complied with by the holder of the leasehold deed of trust are being complied with, Landlord shall not exercise any default remedies due to a Tenant default which is not susceptible to being cured by the holder of the leasehold deed of trust.