Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 and 8.3 Tenant may at any time during the term of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 2 contracts
Samples: Ground Lease, Ground Lease (Palace Entertainment Holdings, Inc.)
Leasehold Financing. Subject Lessee shall obtain Lessor’s written consent, which may be given or withheld in Lessor’s sole and absolute discretion, before procuring any loan and/or entering into any other arrangement (singly or collectively, a “Lessee Loan”) which would have the effect of creating a Leasehold Mortgage, except for a Lessee Loan which meets each of the following requirements (in which case Lessor’s consent shall not be required):
(a) The proceeds of the Lessee Loan shall be used by Lessee to Landlordpay the cost of any Alterations to be made by Lessee, or to provide permanent or mini-permanent financing for Lessee’s leasehold estate created by this Lease;
(b) The Lessee Loan shall be with a commercial bank or other institutional or private lender (“Lender”) which has assets of over Five Hundred Million Dollars ($500,000,000.00) (which amount shall escalate on each Adjustment Date in an amount equal to the percentage increase in the CPI occurring since the last Adjustment Date, or in the case of the first such adjustment the Term Commencement Date);
(c) The Lessee Loan shall be for a maximum aggregate principal amount (including any optional or mandatory advances, and including any prior Lessee Loan that will not be fully repaid concurrently with the closing of such Lessee Loan) that does not exceed seventy-five percent (75%) of the value of Lessee’s leasehold estate created by this Lease at the time of loan closing (inclusive of Lessee’s leasehold interest in the Improvements), and the DSCR (following the closing of such Lessee Loan) shall not be less than 1.4;
(d) The Leasehold Mortgage securing the Lessee Loan shall encumber Lessee’s entire leasehold interest in the Premises, including Lessee’s leasehold interest in the Improvements, and the Lender shall expressly agree for the benefit of Lessor that the Premises is a single integrated project and there shall be no partial foreclosure, partial deed in lieu, or other Transfer of anything less than Lessee’s entire leasehold interest in the Premises, including Lessee’s entire leasehold interest in the Improvements; and
(e) The Lessee Loan shall not be cross-defaulted or cross-collateralized with any other obligations of Lessee to Lender or any Affiliate of Lender not arising with respect to the Lessee Loan, or with the obligations of any Affiliate of Lessee or any other Person, except for any guaranty or other credit enhancement that may be provided by an Affiliate of Lessee to the Lender in consideration of the Lessee Loan. Lessee may encumber its leasehold interest in this Lease, including its leasehold interest in the Improvements, only in accordance with this Section 15.5. Lessee shall provide to Lessor, within not more than thirty (30) days following the recordation of any Leasehold Mortgage, a true and correct copy thereof, together with a summary in reasonable detail of the payment terms and other material monetary obligations of the Lessee under the loan documents secured by such Leasehold Mortgage to the extent not expressly set forth in the copy of the Leasehold Mortgage provided by Lessee to Lessor. No Lessee Loan shall contain any provisions that would be inconsistent with or impair in any manner the rights and interests of Lessor under this Lease, provided that the exercise of the Lessor’s rights and remedies under Sections 8.2 and 8.3 Tenant may at this Lease on account of an Event of Default shall be subject to the provisions of Section 15.7 hereof. There shall be no modification of a Lessee Loan or Leasehold Mortgage that would be inconsistent with any time during of the term requirements of this Lease subject Tenantwithout Lessor’s leasehold estate prior written consent, which may be granted or withheld in Lessor’s sole and attendant rights created under absolute discretion. Lessor shall execute and deliver to Lessee, within ten (10) Business Days following Lessee’s request, for the benefit of any Lender, and provided that the pertinent particulars of the applicable Lessee Loan are described in such request from Lessee, a certificate stating whether a Lessee Loan which is proposed to be, or has been, funded by such Lender will satisfy the requirements of this Section 15.5 and entitle the Lender to the benefits contained in Section 15.7 of this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way other provision hereof which expressly runs in favor of a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold MortgageesLender.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 2 contracts
Samples: Ground Lease (Morgans Hotel Group Co.), Ground Lease (Morgans Hotel Group Co.)
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 (a) Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Tenant’s Lease, lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder, and attendant property and rights created in and to the Leased Premises granted to it under this Lease to one or more mortgages Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a loan or loans or other obligations of "Leasehold Mortgage" and the holder thereof is herein referred to as "Leasehold Mortgagee"). Any such Leasehold Mortgage shall be a lien only upon Tenant; provided that Tenant 's leasehold estate hereunder and Tenant's interests in this Lease and shall not have power encumber Landlord's fee simple title to create the Center or the Leased Premises. Pursuant to any encumbrance that shallsuch Leasehold Mortgage, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns another person or entity (a "Successor-Tenant") may enforce its lien and acquire title to Tenant's interest in the leasehold estate in the Leased Premises in any lawful way andway, pending foreclosure of the lienincluding but not limited to, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial through foreclosure, or on acquisition of the leasehold estate by deed assignment in lieu of foreclosure, or otherwise. In such event, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject Successor-Tenant shall succeed to the same limitations or conditions, if any, applicable to the rights of Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring , including the leasehold estate shall be liable right to perform Tenant’s obligations under this Lease only during possession of the period, if anyLeased Premises, in which event Landlord shall recognize the Successor-Tenant as the tenant under this Lease, the same as if such person has ownership Successor-Tenant were the original tenant hereunder.
(b) Tenant shall notify Landlord (and any Fee Mortgagee, as hereinafter defined in Section 56(d) below), in the manner hereinafter provided for the giving of notice, of the leasehold estate execution of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee a "Landlord's Agreement" whereby Landlord agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on commercially reasonable terms and conditions acceptable to Leasehold Mortgagee.
(c) Landlord does hereby waive any statutory or possession other lien of the LandLandlord in Tenant's present and after-acquired assets, including among other things, Tenant's inventory and equipment. For To evidence such waiver for the benefit of Tenant's existing lender, Landlord shall, simultaneously with the execution and delivery of this Lease, execute and deliver to Tenant the "Landlord's Waiver" attached hereto and made a part hereof as long as there is Exhibit "H".
(d) In the event that, at any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify time prior to the execution of this Lease and the recordation of a memorandum of lease in any way nor cancel this Lease by mutual agreement without accordance with Section 47 hereof, Landlord has mortgaged or otherwise encumbered the written consent fee simple title to the Premises, Landlord shall deliver to Tenant a commercially reasonable SNDA (as defined in Section 11) containing terms substantially similar to the terms of the Leasehold document so entitled attached hereto and made a part hereof as Exhibit "I", duly executed by the holder of any such mortgage or encumbrance (the "Fee Mortgagee"). Landlord agrees that Tenant's obligations hereunder shall be contingent upon delivery by Landlord to Tenant of an SNDA executed by the Fee Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities on or before the Commencement Date, as hereinafter more fully set forth in Paragraph 16.5 of this LeaseSection 11.
Appears in 2 contracts
Samples: Lease (Retail Ventures Inc), Lease (DSW Inc.)
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 and 8.3 Tenant may the contrary contained in this Lease, at any time during the term and from time to time Lessee may mortgage, pledge and encumber its interests in this Lease and in any subleases, and assign this Lease and any subleases, licenses and other occupancy and use agreements as collateral security for such mortgage(s). The making of a leasehold mortgage (or any other such assignment, pledge or encumbrance) shall not be deemed to constitute a prohibited assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosureLease, or on acquisition of the leasehold estate hereby created, nor cause the holder of the leasehold mortgage (a “Mortgagee”) to be deemed an assignee of this Lease. Such Mortgagee (or its nominee) shall be deemed an assignee of this Lease only at such time it succeeds to the Lessee’s interest in this Lease by deed foreclosure of any leasehold mortgage, or assignment in lieu of the foreclosure, or if it exercises or attempts to exercise any rights or privileges of Lessee under the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages Upon such succession such Mortgagee (or any person or entity acquiring the leasehold estate nominee) shall be liable bound by the terms of this Lease only with respect to perform Tenant’s obligations first arising after such succession and shall be released and relieved of all further liabilities and obligations under this Lease only during once it assigns its interest in this Lease. Notwithstanding the periodforegoing, if anyMortgagee or such successors shall be liable for all rent due under the Lease, and for curing any breaches or defaults which continue after the Mortgagee or such successor acquire Lessee’s interest in which this Lease. Notwithstanding anything to the contrary continued in this Lease, any Mortgagee (or other person or entity) that succeeds to Lessee’s interest in this Lease by way of foreclosure, assignment in lieu of foreclosure or the exercise of any other remedies relating to the enforcement of any leasehold mortgage may assign this Lease to any telecommunications company with assets in excess of One Hundred Million Dollars ($100,000,000) and upon such person has ownership assignment, such assignee shall be released from all further liability under this Lease; provided, however, that the provisions hereof shall become null and void upon such assignment. When used in this Lease, “mortgage” shall include whatever security instruments are used in the locality of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to the Uniform Commercial Code or successor or similar legislation. If a Mortgagee shall send to Lessor and its counsel a true copy of the leasehold estate or possession mortgage, together with written notice specifying the name and address of the Land. For as Mortgagee and the pertinent recording data with respect to such leasehold mortgage, Lessor agrees that the following provisions shall apply to such mortgage so long as there is any the leasehold mortgage in effecthas not been released by the Mortgagee: There shall be no cancellation, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel surrender or modification of this Lease by mutual agreement Lessor and Lessee without the written prior consent in writing of each Mortgagee. If the Leasehold leasehold interest under this Lease shall ever be held by the same person or party who then holds the reversionary interest under this Lease, no merger shall result therefrom and both the leasehold and reversionary interests shall continue. Notice/Cure. Lessor shall, upon serving Lessee with any notice of default or other notice provided for in this Lease, simultaneously serve a copy of such notice upon the Mortgagee having that leasehold mortgageand no such notice to Lessee shall be effective unless a copy of such notice is so served on the Mortgagee. A Leasehold Mortgagee Upon receipt of such notice the mortgagee shall have the same period, after and commencing upon receipt of such further rights notice, to elect (in its sole discretion) to remedy or cause to be remedied the defaults complained of, and responsibilities Lessor shall accept such performance as hereinafter set forth in Paragraph 16.5 of this Leaseif the same had been done by Lessee.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Leasehold Financing. Subject Lessee shall have the unrestricted right to Landlord’s rights under Sections 8.2 execute and 8.3 Tenant may at any time during deliver a mortgage, deed of trust (including the term Deed of Trust), pledge and/or collateral assignment of this Facilities Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for any indebtedness or obligations in any form whatsoever. If Xxxxxx shall execute and deliver such mortgage or deed of trust, and if the holder of the indebtedness secured thereby (the “Mortgagee”) notifies Lessor of the execution of such mortgage or deed of trust, and the name and place for service of notices upon such mortgage or deed of trust, then and in such event, Lessor hereby agrees for the benefit of Xxxxxx and such Mortgagee from time to time:
(a) That Lessor will give to any Mortgagee simultaneously with service on Lessee a loan duplicate of any and all notices or loans demands given by Lessor to Lessee.
(b) The Mortgagee shall have the privilege of performing any of Xxxxxx’s covenants or other obligations of Tenant; curing any defaults by Xxxxxx or of exercising any election, option or privilege conferred upon Lessee by the terms of the Facilities Lease.
(c) Lessor shall not terminate this Facilities Lease or Lessee’s right of possession for any default of Lessee if, if after notice to the Mortgagee as provided in subsection (a) above, (i) with respect to any monetary default, within a period of sixty (60) days after the expiration of the period of time in which Lessee could have cured the default, such default is cured, or (ii) with respect to any nonmonetary default, if within a period of one hundred twenty (120) days after the expiration of the period of time in which Lessee could have cured the default, or if such default is of a nature that it cannot with reasonable effort be completely remedied within said period of 120 days, then such additional time as is reasonably necessary to complete such cure, not to exceed one hundred eighty (180) days, provided that Tenant Mortgagee has commenced such cure within the initial one-hundred and twenty (120) day period and diligently continues to pursue the same to completion, and such default is cured within such period of one hundred eighty (180) days.
(d) Lessor shall not have power to create recognize any encumbrance that shall, constitute in Mortgagee or any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders assignee of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee if such Mortgagee or its assigns may enforce its lien and acquire title assignee becomes successor to the leasehold estate in Lessee following any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, (or on acquisition of the leasehold estate by deed in lieu of foreclosure) of Lessee’s leasehold interest in the 2024 Tax-Exempt Facilities, subject to Section 18.1 above. Lessor shall execute reasonable subordination, non-disturbance or attornment agreements as may be requested by a Mortgagee, provided any such agreement is consistent with the foregoing, and in form and substance reasonably acceptable to Lessor. Notwithstanding the foregoing, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person assignee of any Mortgagee who becomes successor to Xxxxxx must strictly abide under the terms of this Facilities Lease.
(e) Lessor hereby waives and releases any statutory, constitutional, and/or contractual liens against the assets or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the periodproperty of Xxxxxx, if any, in which such person has ownership including without limitation Chapter 54 of the leasehold estate or possession of Texas Property Code - LANDLORD’S LIENS. Although such waiver and release is hereby deemed to be automatic and self-executing, Xxxxxx agrees to execute and deliver to Xxxxxx within thirty (30) days following request therefor such waivers and confirmations as Lessee may request to evidence the Land. For foregoing waiver and release, as long well as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree consents to assignment that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Leasemay be reasonably requested.
Appears in 1 contract
Samples: Facilities Lease and Development Agreement (FTAI Infrastructure Inc.)
Leasehold Financing. Subject 25.1. Tenant or any assignee of Tenant may place a mortgage or deed of trust on Tenant’s interest in the Leased Premises. Such mortgage or deed of trust shall not encumber Landlord’s fee title to the Leased Premises.
25.2. In the event Tenant is in default under this Lease as defined in Section 16, Landlord agrees to give a copy of any default Notice to the lienholder under any such mortgage or deed of trust, whose name and address shall be furnished to Landlord by Tenant. Landlord shall not terminate this Lease, re-enter the Leased Premises, or exercise any other remedy available at law which would affect Tenant’s rights under this Lease, provided said lienholder has cured said default within the time allowed Tenant for same hereunder or within ten (10) days after receipt of said default Notice by said lienholder, whichever is greater, or if said default is not reasonably capable of being cured within such time period, so long as said lienholder has commenced curing said default within such time period and is proceeding with reasonable diligence to cure said default.
25.3. In the event Tenant fails to cure any such default and Landlord proposes to declare the Term of this Lease ended by reason of such default, Landlord, simultaneously with the sending of the notice of termination, shall send to said lienholder an offer to enter into a new lease with said lienholder on the same terms and conditions as this Lease, except that the tenant shall be said lienholder or its designee, the commencement date shall be the date such new lease is executed by both lienholder and Landlord, and the termination date shall be the scheduled termination date of this Lease (including any Extension Terms); provided, however, any new lease with a lienholder’s designated assignee shall be subject to Landlord’s rights under Sections 8.2 consent, which consent shall not be unreasonably withheld, conditioned or delayed. The offer may be accepted by mailing within thirty (30) days of the sending of said offer two (2) duly executed originals of each new lease to Landlord together with the payment of or evidence of the payment of all sums due and 8.3 Tenant may at any time during the term of this Lease subject Tenant’s leasehold estate and attendant rights created unpaid under this Lease as of the date of the notice referred to in Section 1.3 up to the commencement date of said new lease. Upon receipt of said new lease and said payment or evidence of said payment, Landlord shall immediately execute both originals of said new lease and return one (1) fully executed copy thereof to the new tenant. Upon the commencement date of said new lease, this Lease shall terminate and be of no further force and effect.
25.4. Landlord further agrees that, should said lienholder or more mortgages as security for a loan or loans or other obligations of its designee acquire Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder Leased Premises through a foreclosure of such mortgage or holders deed of trust or any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee transfer in lieu thereof, said lienholder or its assigns may enforce its lien and acquire title designee shall have the right to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice attorn to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations provided said lienholder or conditions, if any, applicable to the its designee cures all defaults of Tenant under this Lease. The Leasehold Mortgages Lease existing at the time of such attornment which are within the power of said lienholder or its designee to cure, and Landlord will accept such attornment, and said lienholder or its designee and Landlord shall have the same rights and obligations toward one another which they would have had had this Lease been entered into with Landlord, as Landlord, and said lienholder or its designee, as Tenant; provided, however, any person or entity acquiring attornment by a lienholder’s designated assignee and any operator of the leasehold estate Leased Premises by a third party during a lienholder’s tenancy shall be liable subject to perform TenantLandlord’s consent, not to be unreasonably withheld, conditioned or delayed. Landlord agrees to execute any documents required by said lienholder in connection with Landlord’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this LeaseSection 25.
Appears in 1 contract
Samples: Merger Agreement (Safeway Inc)
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 and 8.3 Tenant may the contrary contained in this Lease, at any time during the term and from time to time Lessee may mortgage, pledge and encumber its interests in this Lease and in any subleases, and assign this Lease and any subleases, licenses and other occupancy and use agreements as collateral security for such mortgage(s). The making of a leasehold mortgage (or any other such assignment, pledge or encumbrance) shall not be deemed to constitute a prohibited assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosureLease, or on acquisition of the leasehold estate hereby created, nor cause the holder of the leasehold mortgage (a “Mortgagee”) to be deemed an assignee of this Lease. Such Mortgagee (or its nominee) shall be deemed an assignee of this Lease only at such time it succeeds to the Lessee’s interest in this Lease by deed foreclosure of any leasehold mortgage, or assignment in lieu of the foreclosure, or if it exercises or attempts to exercise any rights or privileges of Lessee under the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages Upon such succession such Mortgagee (or any person or entity acquiring the leasehold estate nominee) shall be liable bound by the terms of this Lease only with respect to perform Tenant’s obligations first arising after such succession and shall be released and relieved of all further liabilities and obligations under this Lease only during once it assigns its interest in this Lease. Notwithstanding the periodforegoing, if anyMortgagee or such successors shall be liable for all rent due under the Lease, and for curing any breaches or defaults which continue after the Mortgagee or such successor acquire Lessee’s interest in which this Lease. Notwithstanding anything to the contrary continued in this Lease, any Mortgagee (or other person or entity) that succeeds to Lessee’s interest in this Lease by way of foreclosure, assignment in lieu of foreclosure or the exercise of any other remedies relating to the enforcement of any leasehold mortgage may assign this Lease to any telecommunications company with assets in excess of One Hundred Million Dollars ($100,000,000) and upon such person has ownership assignment, such assignee shall be released from all further liability under this Lease; provided, however, that the provisions hereof shall become null and void upon such assignment. When used in this Lease, “mortgage” shall include whatever security instruments are used in the locality of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to the Uniform Commercial Code or successor or similar legislation. If a Mortgagee shall send to Lessor and its counsel a true copy of the leasehold estate or possession mortgage, together with written notice specifying the name and address of the Land. For as Mortgagee and the pertinent recording data with respect to such leasehold mortgage, Lessor agrees that the following provisions shall apply to such mortgage so long as there is any the leasehold mortgage in effecthas not been released by the Mortgagee: No Modification/No Merger. There shall be no cancellation, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel surrender or modification of this Lease by mutual agreement Lessor and Lessee without the written prior consent in writing of each Mortgagee. If the Leasehold leasehold interest under this Lease shall ever be held by the same person or party who then holds the reversionary interest under this Lease, no merger shall result therefrom and both the leasehold and reversionary interests shall continue. Notice/Cure. Lessor shall, upon serving Lessee with any notice of default or other notice provided for in this Lease, simultaneously serve a copy of such notice upon the Mortgagee having that leasehold mortgageand no such notice to Lessee shall be effective unless a copy of such notice is so served on the Mortgagee. A Leasehold Mortgagee Upon receipt of such notice the mortgagee shall have the same period, after and commencing upon receipt of such further rights notice, to elect (in its sole discretion) to remedy or cause to be remedied the defaults complained of, and responsibilities Lessor shall accept such performance as hereinafter set forth in Paragraph 16.5 of this Leaseif the same had been done by Lessee.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Financing. Subject (a) Notwithstanding anything contained in Section 10.1 above to Landlordthe contrary, the Lessee may, without the Lessor’s rights prior written consent, mortgage, pledge or collaterally assign all of the Lessee’s right, title or interest in, to or under Sections 8.2 this Lease (each, an “Approved Leasehold Financing”) to or for the benefit of the holders of the Subordinated Notes and 8.3 Tenant the holders of the Senior Notes (each, an “Approved Leasehold Mortgagee”). The Lessee shall notify the Lessor promptly, and in any event within ten (10) days, of its entering into an Approved Leasehold Financing, and shall provide the Lessor with copies of any and all documents related to each such Approved Leasehold Financing.
(b) In connection with an Approved Leasehold Financing, the Lessor covenants and agrees with and for the benefit of the Approved Leasehold Mortgagee, subject to the terms of the Approved Leasehold Financing, as follows:
(i) Upon the occurrence of an Event of Default, the Lessor shall give written notice thereof to the Approved Leasehold Mortgagee, and before the Lessor may at exercise any time during remedies hereunder as a result of such Event of Default, the term Lessor shall provide the Approved Leasehold Mortgagee with the right to cure such Event of Default for a period of thirty (30) days after the Approved Leasehold Mortgagee’s receipt of such notice;
(ii) Following the occurrence of an event of default and foreclosure under the Approved Leasehold Financing, the Approved Leasehold Mortgagee may elect to exercise the Purchase Option in accordance with the terms of Article XV;
(iii) For so long as such Approved Leasehold Financing remains in effect, the economic terms of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one may not be modified or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement amended without the prior written consent of the Approved Leasehold Mortgagee;
(iv) This Lease may be assigned by the Lessee to the Approved Leasehold Mortgagee having that leasehold mortgage. A without the Lessor’s prior written consent; provided, however, in the event of such assignment, the Lessor may, at its option, require the Approved Leasehold Mortgagee shall have to exercise the Purchase Option in accordance with the terms of Article XV; and
(v) If this Lease terminates as a result of the Lessor exercising its remedies hereunder following the occurrence of an Event of Default, upon the request of the Approved Leasehold Mortgagee, the Lessor shall, within thirty (30) days of such further rights termination, enter into a new lease with the Approved Leasehold Mortgagee, upon substantially the same terms and responsibilities conditions as hereinafter set forth herein, provided the Approved Leasehold Mortgagee has paid the Lease Balance to the Lessor.
(c) The Lessee acknowledges and agrees that an Approved Leasehold Financing shall encumber only the Lessee’s right, title and interest in Paragraph 16.5 of and to the Leased Property created by this Lease and shall not in any way encumber the Lessor’s fee simple title to the Leased Property or affect the Lessor’s right to receive any payments provided for under this Lease.
Appears in 1 contract
Leasehold Financing. Subject Whenever Tenant shall not be in default under the terms and conditions of this Lease and if permitted by the terms of any mortgage now or hereafter secured by the premises and given by Landlord, Tenant shall have the right to mortgage its leasehold interest in this Lease. If Tenant does so, Landlord agrees as follows:
(a) Landlord shall not agree to any modification, amendment or termination of this Lease without first obtaining the prior written approval of Tenant's leasehold mortgagee (the "Mortgagee"), which approval shall not be unreasonably withheld, provided, however, that this provision shall not impair Landlord’s rights 's right to terminate this Lease pursuant to its terms due to a default hereunder by Tenant, subject to the provisions of this Article 11.05, (b) Landlord shall notify Mortgagee in writing of any default by Tenant under Sections 8.2 this Lease at the time notice is sent to Tenant and 8.3 Mortgagee shall then have the right, but not the obligation, to correct any such default within the time allotted to Tenant may at under this Lease, (c) If for any time reason whatsoever, including the disaffirmance or rejection of this Lease in a bankruptcy proceeding, this Lease shall terminate or come to an end during the term of Mortgagee's mortgage, Landlord shall enter into a new lease with Mortgagee on the same terms and conditions as this Lease, (d) Mortgagee shall not be liable for the performance of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease except during such time as Mortgagee shall be in possession due to one or more mortgages as security for a loan or loans foreclosure or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate estate, and upon subsequent assignment of this Lease by deed Mortgagee, Mortgagee shall remain liable for the performance of the obligations of Tenant under any substitute lease entered into between Mortgagee and Landlord. Landlord shall enter into an agreement in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditionsrecordable form with Mortgagee, if anyso requested by Mortgagee, applicable to containing the foregoing terms and conditions. Except as expressly stated in this Section, no Mortgagee, nor anyone who claims by, through or under such mortgagee shall acquire any greater or more extended rights then Tenant has under this LeaseLease and any such mortgage shall in every respect be subject and subordinate to all conditions and terms of this Lease and the rights of Landlord herein as well as in respect to all improvements located on the premises. The Leasehold Mortgages or any person or entity acquiring the leasehold estate In no event shall Landlord be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which pay any such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 1 contract
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 and 8.3 This Section 15.5 will apply when Tenant may at any time during the term provides Landlord with notice of an assignment of this Lease subject to a lender ("Tenant’s 's Lender") as security for an indebtedness with the identity of and address for notices to Tenant's Lender and a request by Tenant's Lender for all notices to Tenant pursuant to this Lease be also given to Tenant's Lender. Thereafter, no notice to Tenant will be effective, unless the notice is also given concurrently to Tenant's Lender. In addition to any other rights granted to Tenant under this Lease, including without limitation this Article 15 and Section 8.4, Tenant shall have the right to mortgage and otherwise encumber its leasehold estate and attendant its Improvements, and other property located on the Premises (as well as all other rights created and easements granted to Tenant under this Lease), and such mortgage or encumbrance, and any sale, conveyance, or assignment pursuant thereto (whether by foreclosure or conveyance in lieu thereof) shall be deemed permitted assignments of this Lease. Provided Tenant is not in breach under this Lease beyond the applicable cure period, Landlord will agree not to one change or more mortgages as security for accept the surrender of this Lease by Tenant, without the consent of Tenant's Lender. If Tenant fails to cure a loan or loans or other default after due notice, Tenant's Lender shall, within five (5) days after end of the applicable grace period, have the right to give Landlord notice of the election of Tenant's Lender to undertake to cure all defaults of Tenant. If Tenant's Lender makes an election to cure, lender shall: (a) promptly begin performance of all the obligations of Tenant that Tenant's Lender is reasonably able to perform; provided that Tenant shall not have power and (b) begin and diligently pursue all steps necessary to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take obtain possession of the Land Premises by foreclosure or otherwise. Landlord will suspend the exercise of the remedies of Landlord during the time lender is performing the foregoing. In the event the interest of Tenant in this Lease is terminated by Tenant's Lender or as a result of rejection of this Lease by a bankruptcy trustee, Landlord shall, on the request of Tenant's Lender, recognize Tenant's Lender as the tenant of the Premises and operate any business andenter into a new Lease with Tenant's Lender on the same provisions contained in this Lease. Upon foreclosure, Tenant's Lender may, without consent of Landlord, assign this Lease to a third party that assumes and agrees to perform all of the obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant which case Tenant's Lender shall be automatically released from further responsibility under this Lease. The Leasehold Mortgages or assignee may use the Premises for any person or entity acquiring the leasehold estate shall be liable lawful purpose, subject to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 all other provisions of this Lease.
Appears in 1 contract
Leasehold Financing. Subject Tenant shall not encumber its leasehold estate in the Cemeteries, by means of a leasehold mortgage, deed of trust pledge or similar security device, except pursuant to a Permitted Leasehold Mortgage (as defined below). Tenant hereby represents and warrants to Landlord’s rights under Sections 8.2 , and 8.3 Landlord hereby acknowledges to Tenant, that: (a) Tenant is a party to a Third Amended and Restated Credit Agreement among StoneMor Operating LLC, as a Borrower, various subsidiaries thereof, including Tenant, as additional Borrowers, Bank of America, N.A., as Administrative Agent and Collateral Agent (together with its successors, assigns, agents and designees, the “Agent”), and the other lenders party thereto dated as of January 19, 2012, as the same may at any be amended, restated, amended and restated, extended, modified, renewed, supplemented, replaced, or refunded from time during to time (the term “Credit Agreement”); and (b) pursuant to the terms of this Lease subject the Credit Agreement, Tenant is obligated to execute and deliver a leasehold mortgage to Agent with respect to Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the LandCemeteries. The holder or holders Any leasehold mortgage required to be granted by Tenant to the Agent pursuant to the Credit Agreement shall be deemed to be a “Permitted Leasehold Mortgage”. Tenant shall deliver to Landlord: (i) a draft of any lien created by a mortgage secured by such Permitted Leasehold Mortgage as soon as reasonably practicable following Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate receipt thereof (and, in any lawful way andevent, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any not less than five (5) business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice days prior to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the periodexecution thereof); and (ii) a fully-executed copy of any Permitted Leasehold Mortgage within fifteen (15) days after Tenant’s execution thereof. Landlord hereby agrees that, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as so long as there is any leasehold mortgage Permitted Leasehold Mortgage shall remain in effect and unsatisfied of record and the underlying indebtedness which it secures remains outstanding or the commitments under the Credit Agreement remain in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee following provisions shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.apply:
Appears in 1 contract
Leasehold Financing. Subject Lessee shall obtain Lessor's written consent before procuring any loan and/or entering into any other arrangement (singly or collectively, a "Loan") which would have the effect of creating a Leasehold Mortgage, except for a Loan which meets each of the following requirements:
(a) The proceeds of the Loan shall be used by Lessee to Landlord’s rights under Sections 8.2 provide construction or permanent financing for the Improvements;
(b) The Loan shall be with a commercial bank or other institutional or private lender ("Lender") with assets of over Five Hundred Million Dollars ($500,000,000.00);
(c) The Loan shall be for a maximum aggregate principal amount (including any optional or mandatory advances) that does not exceed the lesser of seventy- five percent (75%) of the Full Insurable Replacement Value or seventy-five percent (75%) of the value of Lessee's leasehold interest in this Lease at the time of Loan closing (inclusive of Lessee's ownership interest in the Improvements);
(d) The Leasehold Mortgage securing the Loan shall encumber Lessee's entire leasehold interest in the Premises and 8.3 Tenant ownership interest in the Improvements, and the Lender shall expressly agree for the benefit of Lessor that the Premises and the Project are a single integrated project and there shall be no partial foreclosure, deed in lieu or other Transfer of anything less than Lessee's entire leasehold interest in the Premises and ownership interest in the Improvements; and EXHIBIT 10.27 *CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(e) The Loan shall not be cross-defaulted with the obligations of any Affiliate of Lessee or any other Person, except for any guaranty or other credit enhancement that may at be provided by an Affiliate of Lessee to the Lender in consideration of the Loan. If requested by Lessee, Lessor agrees to execute its written consent to a Leasehold Mortgage which meets the foregoing requirements, provided that such consent shall be in form and content reasonably satisfactory to Lessor. Lessee may encumber its leasehold interest in this Lease and its ownership interest in the Improvements only in accordance with this Section 15.5. There shall be no modification of a Loan or Leasehold Mortgage that would be inconsistent with any time during of the term requirements of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one without Lessor's prior written consent, which may be granted or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute withheld in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold MortgageesLessor's sole discretion.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 1 contract
Samples: Ground Lease (Equinix Inc)
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 and 8.3 Tenant may the contrary contained in this Lease, at any time during the term and from time to time Lessee may mortgage, pledge and encumber its interests in this Lease and in any subleases, and assign this Lease and any subleases, licenses and other occupancy and use agreements as collateral security for such mortgage(s). The making of a leasehold mortgage (or any other such assignment, pledge or encumbrance) shall not be deemed to constitute a prohibited assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosureLease, or on acquisition of the leasehold estate hereby created, nor cause the holder of the leasehold mortgage (a “Mortgagee”) to be deemed an assignee of this Lease. Such Mortgagee (or its nominee) shall be deemed an assignee of this Lease only at such time it succeeds to Lessee’s interest in this Lease by deed foreclosure of any leasehold mortgage, or assignment in lieu of the foreclosure, or if it exercises or attempts to exercise any rights or privileges of Lessee under the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages Upon such succession such Mortgagee (or any person or entity acquiring the leasehold estate nominee) shall be liable bound by the terms of this Lease only with respect to perform Tenant’s obligations first arising after such succession and shall be released and relieved of all further liabilities and obligations under this Lease only during once it assigns its interest in this Lease. Notwithstanding the periodforegoing, if anyMortgagee or such successors shall be liable for all rent due under the Lease, and for curing any breaches or defaults which continue after the Mortgagee or such successor acquire Lessee’s interest in which this Lease. Notwithstanding anything to the contrary contained in this Lease, any Mortgagee (or other person or entity) that succeeds to Lessee’s interest in this Lease by way of foreclosure, assignment in lieu of foreclosure or the exercise of any other remedies relating to the enforcement of any leasehold mortgage may assign this Lease to any telecommunications company with assets in excess of One Hundred Million Dollars ($100,000,000) and upon such person has ownership assignment, such assignor shall be released from all further liability under this Lease; provided, however, that the provisions hereof shall become null and void upon such assignment. When used in this Lease, “mortgage” shall include whatever security instruments are used in the locality of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to the Uniform Commercial Code or successor or similar legislation. If a Mortgagee shall send to Lessor and its counsel a true copy of the leasehold estate or possession mortgage, together with written notice specifying the name and address of the Land. For as Mortgagee and the pertinent recording data with respect to such leasehold mortgage, Lessor agrees that the following provisions shall apply to such mortgage so long as there is any the leasehold mortgage in effecthas not been released by the Mortgagee: There shall be no cancellation, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel surrender or modification of this Lease by mutual agreement Lessor and Lessee without the written prior consent in writing of each Mortgagee. If the Leasehold leasehold interest under this Lease shall ever be held by the same person or party who then holds the reversionary interest under this Lease, no merger shall result therefrom and both the leasehold and reversionary interests shall continue. Lessor shall, upon serving Lessee with any notice of default or other notice provided for in this Lease, simultaneously serve a copy of such notice upon the Mortgagee having that leasehold mortgageand no such notice to Lessee shall be effective unless a copy of such notice is so served on the Mortgagee. A Leasehold Upon receipt of such notice the Mortgagee shall have the same period, after and commencing upon receipt of such further rights notice, to elect (in its sole discretion) to remedy or cause to be remedied the defaults complained of, and responsibilities Lessor shall accept such performance as hereinafter set forth in Paragraph 16.5 of this Leaseif the same had been done by Lessee.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 (a) Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Lease, lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder, and property and rights in and to the Leased Premises granted to it under this Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a “Leasehold Mortgage” and the holder thereof is herein referred to as “Leasehold Mortgagee”). Any such Leasehold Mortgage shall be a lien only upon Tenant’s leasehold estate hereunder and attendant rights created under Tenant’s interests in this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant and shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the encumber Landlord’s fee interest in simple title to the LandCenter or the Leased Premises. The holder or holders of Pursuant to any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “such Leasehold Mortgagees.” A Mortgage, the Leasehold Mortgagee or its assigns another person or entity (a “Successor-Tenant”) may enforce its lien and acquire title to Tenant’s interest in the leasehold estate in the Leased Premises in any lawful way andway, pending foreclosure of the lienincluding but not limited to, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial through foreclosure, or on acquisition of the leasehold estate by deed assignment in lieu of foreclosure, or otherwise. In such event, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject Successor-Tenant shall succeed to the same limitations or conditions, if any, applicable to the rights of Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring , including the leasehold estate shall be liable right to perform Tenant’s obligations under this Lease only during possession of the period, if anyLeased Premises, in which event Landlord shall recognize the Successor-Tenant as the tenant under this Lease, the same as if such person has ownership Successor-Tenant were the original tenant hereunder.
(b) Tenant shall notify Landlord (and any Fee Mortgagee, as hereinafter defined in Section 56(d) below), in the manner hereinafter provided for the giving of notice, of the leasehold estate execution of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee a “Landlord’s Agreement” whereby Landlord agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on commercially reasonable terms and conditions acceptable to Leasehold Mortgagee.
(c) Landlord does hereby waive any statutory or possession other lien of the LandLandlord in Tenant’s present and after-acquired assets, including among other things, Tenant’s inventory and equipment. For as long as there is any leasehold mortgage in effectTo evidence such waiver for the benefit of Tenant’s existing lender, Tenant Landlord shall, simultaneously with the execution and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 delivery of this Lease, execute and deliver to Tenant the “Landlord’s Waiver” attached hereto and made a part hereof as Exhibit “H”.
(d) In the event that, at any time prior to the execution of this Lease and the recordation of a memorandum of lease in accordance with Section 47 hereof, Landlord has mortgaged or otherwise encumbered the fee simple title to the Premises, Landlord shall deliver to Tenant a commercially reasonable SNDA.
Appears in 1 contract
Samples: Lease (Retail Ventures Inc)
Leasehold Financing. (a) Subject to the provisions of this Section 34 and without Landlord’s rights under Sections 8.2 consent, Tenant, at its option and 8.3 expense, shall have the right on one or more occasions to negotiate and obtain a loan that shall be secured by a Leasehold Mortgage on all or part of Tenant’s interests in this Lease, the Arena Improvements and the other Transaction Agreements. Any such Leasehold Mortgage shall not impose any liability (personal or otherwise) on Landlord and (except as expressly provided in Section 35 below) shall not require Landlord to join in such Leasehold Mortgage or mortgage the fee or reversion of the Premises to the lien of such Leasehold Mortgage.
(i) Upon placing or assignment of a Leasehold Mortgage, Tenant may at any time during shall notify Landlord of such Leasehold Mortgage within ten (10) days thereof and of the term address of the Leasehold Mortgagee to which notices shall be sent. So long as a Leasehold Mortgage is in effect and written notice thereof has been delivered to Landlord, (A) no amendment or modification of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement made without the prior written consent of the Leasehold Mortgagee, and (B) Landlord will not accept a voluntary surrender of the Premises or a voluntary cancellation of this Lease by or from Tenant prior to the expiration of this Lease without the prior written consent of the Leasehold Mortgagee.
(ii) Notwithstanding any provision of this Lease to the contrary, in the event of any casualty to or condemnation of the Premises and/or the Arena Improvements or any portion thereof during such time as the Leasehold Mortgage remains in effect, the Leasehold Mortgagee having shall be entitled to be the escrow agent with respect to any insurance proceeds payable to Tenant as provided under Section 12 of this Lease and shall be entitled to receive any sums payable to Tenant under Section 13 of this Lease. During the period that leasehold mortgagethe Leasehold Mortgage remains in effect, the name of the Leasehold Mortgagee will be added to the “loss payable endorsement” of any and all insurance policies required to be carried by Tenant under this Lease.
(c) Landlord agrees to send the Leasehold Mortgagee a copy of any notice, demand or other communication under this Lease and/or any other Transaction Agreement (collectively “Notice”) simultaneously with sending such Notice to Tenant, provided that the Tenant or Leasehold Mortgagee furnishes to Landlord in writing its address(es) for such Notices. A The Leasehold Mortgagee shall have the right, but no obligation to, remedy the default by Tenant under this Lease or any other Transaction Agreement or causing the same to be remedied and any such further payment or performance by the Leasehold Mortgagee shall have the same effect as if performed by Tenant. In the case of any default by Tenant, then, so long as the Leasehold Mortgagee undertakes in writing to cure any such default that is susceptible of being cured, Landlord shall take no action with respect to the subject defaults without giving the Leasehold Mortgagee reasonable time within which either (i) to obtain possession of the Premises (including possession by receiver) and cure such default in the case of a default that is susceptible of being cured when the Leasehold Mortgagee has obtained possession, or (ii) to institute foreclosure proceedings and complete such foreclosure, or otherwise acquire Tenant’s interest under this Lease, with diligence and continuity in the case of a default that is susceptible of being cured by the Leasehold Mortgagee. However, the Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the subject default shall be cured. Neither the Leasehold Mortgagee nor any of its Affiliates or any other entity which acquires Tenant’s interest in this Lease through foreclosure or assignment in lieu of foreclosure shall have any obligation to cure any default by Tenant under this Lease or any other Transaction Agreement which is not susceptible of being cured by such acquirer. Nothing herein shall preclude Landlord from exercising any rights and responsibilities remedies under this Lease with respect to any other default by Tenant during any period of such forbearance, subject to the provisions hereof. The Leasehold Mortgagee or any of its Affiliates or any other entity may become the legal tenant and holder of Tenant’s interest in this Lease by foreclosure of its Leasehold Mortgage, or as hereinafter a result of an assignment of this Lease in lieu of foreclosure. If more than one Leasehold Mortgagee shall seek to exercise the rights provided for in this Section, the Leasehold Mortgagee with the most senior lien priority shall be entitled, as against the others, to priority in the exercise of such rights.
(d) In the event of a termination of this Lease and/or any other Transaction Agreement(s) prior to its stated expiration date, Landlord will promptly give the Leasehold Mortgagee notice of such termination and will enter into a new lease and/or other agreement(s) for the corresponding Transaction Agreements terminated (each, a “New Agreement”) with the Leasehold Mortgagee, or, at the request of such Leasehold Mortgagee, with an Affiliate of such Leasehold Mortgagee or by and on behalf of the holders of notes or bonds secured by the Leasehold Mortgage, for the remainder of the term of the applicable Transaction Agreement being replaced, effective as of the date of such termination of this Lease or such other Transaction Agreement terminated, upon the same covenants, agreements, terms, conditions and limitations as contained the applicable Transaction Agreement being replaced. To obtain such New Agreement(s), the Leasehold Mortgagee must (i) make a written request upon Landlord for the New Agreement(s) within ninety (90) days from the date of such termination and such written request is accompanied by the Leasehold Mortgagee’s agreement to cure all defaults of Tenant under this Lease and other Transaction Agreements that are susceptible to cure by it; and (ii) diligently proceed to cure all non-monetary defaults of Tenant under this Lease susceptible to cure by it following the execution and delivery of the subject New Agreement(s).
(e) If during any time that a Leasehold Mortgage is outstanding, Tenant becomes insolvent or makes an assignment or other conveyance for the benefit of its creditors, or a voluntary or involuntary petition in bankruptcy is filed by or against Tenant and Tenant is adjudicated bankrupt by a final decree, neither this Lease nor any other Transaction Agreement shall be terminated as a result thereof.
(f) Notwithstanding anything to the contrary set forth in Paragraph 16.5 this Section 34, no Leasehold Mortgagee shall be liable under this Lease or any other Transaction Agreement, unless and until such time as it becomes the owner of the applicable portion of the leasehold estate securing its Leasehold Mortgage, and then only for such obligations of Tenant which accrue during the period while it remains the owner of such leasehold estate.
(g) Landlord hereby consents to the grant to each Leasehold Mortgagee of a mortgage, deed of trust or similar security interest in Tenant’s interest in this Lease and the other Transaction Agreements, the Arena Improvements and other fixtures and personal property owned by Tenant and located on the Premises, including a collateral assignment by Tenant of Arena Occupancy Agreements and other rights derived by or through Tenant’s leasehold estate relating to all or any portion of the Premises or the Arena Improvements and the rents, issues and profits therefrom.
(h) Tenant shall pay all out-of-pocket expenses, including reasonable attorney’s fees, incurred by Landlord in connection with the consummation of any refinancing of the Leasehold Mortgage or the preparation and execution of any New Agreements. Reimbursement of expenses will not apply to initial Leasehold Mortgage.
(i) Any assignment, mortgage, pledge or encumbrance of this Lease or the subletting or granting of any other occupancy rights for all or any part of the Premises by the Leasehold Mortgagee shall be governed by the terms and provisions of Section 15 of this Lease. In the event that the Leasehold Mortgagee or any of its Affiliates assigns all of its interest in this Lease, the Transaction Agreements and the Premises in accordance with the terms of Section 15 of this Lease, the Leasehold Mortgagee and its Affiliate shall be relieved from all obligations under this Lease from and after the effective date of such assignment. The provisions of this paragraph shall also apply to an assignment by the Leasehold Mortgagee of the New Agreements.
(j) Landlord agrees to enter into such additional and further agreements as any Leasehold Mortgagee reasonably shall request to confirm and give effect to the rights of such Leasehold Mortgagee as provided in this Section 34 so long as such agreements do not increase Landlord’s obligations or reduce in any respect the obligations of Tenant under this Lease and subject to Landlord’s approval thereof, which approval shall not be unreasonably withheld, conditioned or delayed.
(k) Landlord shall not unreasonably withhold its consent to such non-material modifications of this Lease or any other Transaction Agreement as are reasonably requested by a proposed Leasehold Mortgagee, provided that the rights of Landlord will not be materially impaired, diminished, limited or delayed, the allocation or application of any insurance or eminent domain proceeds will not be adjusted, nor the obligations of Landlord increased in any material respect as a result of such modifications.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 and 8.3 Tenant may the contrary contained in this Lease, at any time during the term and from time to time Lessee may mortgage, pledge and encumber its interests in this Lease and in any subleases, and assign this Lease and any subleases, licenses and other occupancy and use agreements as collateral security for such mortgage(s). The making of a leasehold mortgage (or any other such assignment, pledge or encumbrance) shall not be deemed to constitute a prohibited assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosureLease, or on acquisition of the leasehold estate hereby created, nor cause the holder of the leasehold mortgage (a “Mortgagee”) to be deemed an assignee of this Lease. Such Mortgagee (or its nominee) shall be deemed an assignee of this Lease only at such time it succeeds to the Lessee’s interest in this Lease by deed foreclosure of any leasehold mortgage, or assignment in lieu of the foreclosure, or if it exercises or attempts to exercise any rights or privileges of Lessee under the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages Upon such succession such Mortgagee (or any person or entity acquiring the leasehold estate nominee) shall be liable bound by the terms of this Lease only with respect to perform Tenant’s obligations first arising after such succession and shall be released and relieved of all further liabilities and obligations under this Lease only during once it assigns its interest in this Lease. Notwithstanding the periodforegoing, if anyMortgagee or such successors shall be liable for all rent due under the Lease, and for curing any breaches or defaults which continue after the Mortgagee or such successor acquire Xxxxxx’s interest in which this Lease. Notwithstanding anything to the contrary continued in this Lease, any Mortgagee (or other person or entity) that succeeds to Lessee’s interest in this Lease by way of foreclosure, assignment in lieu of foreclosure or the exercise of any other remedies relating to the enforcement of any leasehold mortgage may assign this Lease to any telecommunications company with assets in excess of One Hundred Million Dollars ($100,000,000) and upon such person has ownership assignment, such assignee shall be released from all further liability under this Lease; provided, however, that the provisions hereof shall become null and void upon such assignment. When used in this Lease, “mortgage” shall include whatever security instruments are used in the locality of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to the Uniform Commercial Code or successor or similar legislation. If a Mortgagee shall send to Lessor and its counsel a true copy of the leasehold estate or possession mortgage, together with written notice specifying the name and address of the Land. For as Mortgagee and the pertinent recording data with respect to such leasehold mortgage, Lessor agrees that the following provisions shall apply to such mortgage so long as there is any the leasehold mortgage in effecthas not been released by the Mortgagee: There shall be no cancellation, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel surrender or modification of this Lease by mutual agreement Xxxxxx and Xxxxxx without the written prior consent in writing of each Mortgagee. If the Leasehold leasehold interest under this Lease shall ever be held by the same person or party who then holds the reversionary interest under this Lease, no merger shall result therefrom and both the leasehold and reversionary interests shall continue. Lessor shall, upon serving Lessee with any notice of default or other notice provided for in this Lease, simultaneously serve a copy of such notice upon the Mortgagee having that leasehold mortgageand no such notice to Lessee shall be effective unless a copy of such notice is so served on the Mortgagee. A Leasehold Mortgagee Upon receipt of such notice the mortgagee shall have the same period, after and commencing upon receipt of such further rights notice, to elect (in its sole discretion) to remedy or cause to be remedied the defaults complained of, and responsibilities Xxxxxx shall accept such performance as hereinafter set forth in Paragraph 16.5 of this Leaseif the same had been done by Xxxxxx.
Appears in 1 contract
Leasehold Financing. Subject Lessee shall obtain Lessor's written consent before procuring any loan and/or entering into any other arrangement (singly or collectively, a "Loan") which would have the effect of creating a Leasehold Mortgage, except for a Loan which meets each of the following requirements:
(a) The proceeds of the Loan shall be used by Lessee to Landlord’s rights under Sections 8.2 provide construction or permanent financing for the Improvements;
(b) The Loan shall be with a commercial bank or other institutional or private lender ("Lender") with assets of over Five Hundred Million Dollars ($500,000,000.00);
(c) The Loan shall be for a maximum aggregate principal amount (including any optional or mandatory advances) that does not exceed the lesser of seventy- five percent (75%) of the Full Insurable Replacement Value or seventy-five percent (75%) of the value of Lessee's leasehold interest in this Lease at the time of Loan closing (inclusive of Lessee's ownership interest in the Improvements);
(d) The Leasehold Mortgage securing the Loan shall encumber Lessee's entire leasehold interest in the Premises and 8.3 Tenant ownership interest in the Improvements, and the Lender shall expressly agree for the benefit of Lessor that the Premises and the Project are a single integrated project and there shall be no partial foreclosure, deed in lieu or other Transfer of anything less than Lessee's entire leasehold interest in the Premises and ownership interest in the Improvements; and EXHIBIT 10.27
(e) The Loan shall not be cross-defaulted with the obligations of any Affiliate of Lessee or any other Person, except for any guaranty or other credit enhancement that may at be provided by an Affiliate of Lessee to the Lender in consideration of the Loan. If requested by Lessee, Lessor agrees to execute its written consent to a Leasehold Mortgage which meets the foregoing requirements, provided that such consent shall be in form and content reasonably satisfactory to Lessor. Lessee may encumber its leasehold interest in this Lease and its ownership interest in the Improvements only in accordance with this Section 15.5. There shall be no modification of a Loan or Leasehold Mortgage that would be inconsistent with any time during of the term requirements of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one without Lessor's prior written consent, which may be granted or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute withheld in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold MortgageesLessor's sole discretion.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 1 contract
Samples: Ground Lease (Equinix Inc)
Leasehold Financing. Subject Lessee shall have the unrestricted right to Landlord’s rights under Sections 8.2 execute and 8.3 Tenant may at any time during deliver a mortgage, deed of trust (including the term Deed of Trust), pledge and/or collateral assignment of this Facilities Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for any indebtedness or obligations in any form whatsoever. If Lessee shall execute and deliver such mortgage or deed of trust, and if the holder of the indebtedness secured thereby (the “Mortgagee”) notifies Lessor of the execution of such mortgage or deed of trust, and the name and place for service of notices upon such mortgage or deed of trust, then and in such event, Lessor hereby agrees for the benefit of Lessee and such Mortgagee from time to time:
(a) That Lessor will give to any Mortgagee simultaneously with service on Lessee a loan duplicate of any and all notices or loans demands given by Lessor to Lessee.
(b) The Mortgagee shall have the privilege of performing any of Lessee’s covenants or other obligations of Tenant; curing any defaults by Lessee or of exercising any election, option or privilege conferred upon Lessee by the terms of the Facilities Lease.
(c) Lessor shall not terminate this Facilities Lease or Lessee’s right of possession for any default of Lessee if, if after notice to the Mortgagee as provided in subsection (a) above, (i) with respect to any monetary default, within a period of sixty (60) days after the expiration of the period of time in which Lessee could have cured the default, such default is cured, or (ii) with respect to any nonmonetary default, if within a period of one hundred twenty (120) days after the expiration of the period of time in which Lessee could have cured the default, or if such default is of a nature that it cannot with reasonable effort be completely remedied within said period of 120 days, then such additional time as is reasonably necessary to complete such cure, not to exceed one hundred eighty (180) days, provided that Tenant Mortgagee has commenced such cure within the initial one-hundred and twenty (120) day period and diligently continues to pursue the same to completion, and such default is cured within such period of one hundred eighty (180) days.
(d) Lessor shall not have power to create recognize any encumbrance that shall, constitute in Mortgagee or any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders assignee of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee if such Mortgagee or its assigns may enforce its lien and acquire title assignee becomes successor to the leasehold estate in Lessee following any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, (or on acquisition of the leasehold estate by deed in lieu of foreclosure) of Lessee’s leasehold interest in the Tax-Exempt Facilities, subject to Section 18.1 above. Lessor shall execute reasonable subordination, non-disturbance or attornment agreements as may be requested by a Mortgagee, provided any such agreement is consistent with the foregoing, and in form and substance reasonably acceptable to Lessor. Notwithstanding the foregoing, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person assignee of any Mortgagee who becomes successor to Lessee must strictly abide under the terms of this Facilities Lease.
(e) Lessor hereby waives and releases any statutory, constitutional, and/or contractual liens against the assets or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the periodproperty of Lessee, if any, in which such person has ownership including without limitation Chapter 54 of the leasehold estate or possession of Texas Property Code - LANDLORD’S LIENS. Although such waiver and release is hereby deemed to be automatic and self-executing, Lessor agrees to execute and deliver to Lessee within thirty (30) days following request therefor such waivers and confirmations as Lessee may request to evidence the Land. For foregoing waiver and release, as long well as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree consents to assignment that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Leasemay be reasonably requested.
Appears in 1 contract
Samples: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Leasehold Financing. Subject Lessee shall have the unrestricted right to Landlord’s rights under Sections 8.2 execute and 8.3 Tenant may at any time during the term deliver a mortgage, deed of trust, pledge and/or collateral assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall Facilities Lease, but not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the LandlordLessor’s fee interest in the LandBond Financed Property, as security for any indebtedness or obligations in any form whatsoever. The If Lessee shall execute and deliver a mortgage or deed of trust, and if the holder of the indebtedness secured thereby (the “Mortgagee”) notifies Lessor of the execution of such mortgage or holders deed of trust, and the name and place for service of notices upon such mortgage or deed of trust, then and in such event, Lessor hereby agrees for the benefit of Lessee and such Mortgagee from time to time:
(a) That Lessor will give to any Mortgagee simultaneously with service on Lessee a duplicate of any lien created and all notices or demands given by a mortgage secured by Tenant’s leasehold estate are referred Lessor to herein as “Leasehold MortgageesLessee.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease.
(b) The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 the privilege of this performing any of Lessee’s covenants or of curing any defaults by Lessee or of exercising any election, option or privilege conferred upon Lessee by the terms of the Lease.
(c) Lessor shall not terminate this Facilities Lease or Lessee’s right of possession for any default of Lessee if, if after notice to the Mortgagee as provided in subsection (a) above, (i) with respect to any monetary default, within a period of sixty (60) days after the expiration of the period of time in which Lessee could have cured the default, such default is cured, or (ii) with respect to any non-monetary default, if within a period of one hundred twenty (120) days after the expiration of the period of time in which Lessee could have cured the default, such default is cured subject to Section 17.1 hereof.
Appears in 1 contract
Samples: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 (a) Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Lease, lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder, and property and rights in and to the Leased Premises granted to it under this Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a “Leasehold Mortgage” and the holder thereof is herein referred to as “Leasehold Mortgagee”). Any such Leasehold Mortgage shall be a lien only upon Tenant’s leasehold estate hereunder and attendant rights created under Tenant’s interests in this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant and shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the encumber Landlord’s fee interest in simple title to the LandCenter or the Leased Premises. The holder or holders of Pursuant to any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “such Leasehold Mortgagees.” A Mortgage, the Leasehold Mortgagee or its assigns another person or entity (a “Successor-Tenant”) may enforce its lien and acquire title to Tenant’s interest in the leasehold estate in the Leased Premises in any lawful way andway, pending foreclosure of the lienincluding but not limited to, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial through foreclosure, or on acquisition of the leasehold estate by deed assignment in lieu of foreclosure, or otherwise. In such event, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject Successor-Tenant shall succeed to the same limitations or conditions, if any, applicable to the rights of Tenant under this Lease, including the right to possession of the Leased Premises, in which event Landlord shall recognize the Successor-Tenant as the tenant under this Lease, the same as if such Successor-Tenant were the original tenant hereunder.
(b) Tenant shall notify Landlord (and any Fee Mortgagee, as hereinafter defined in Section 56(d) below), in the manner hereinafter provided for the giving of notice, of the execution of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee. The Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgages Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee a “Landlord’s Agreement” whereby Landlord agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on commercially reasonable terms and conditions acceptable to Leasehold Mortgagee.
(c) Landlord does hereby waive any statutory or other lien of the Landlord in Tenant’s present and after-acquired assets, including among other things, Tenant’s inventory and equipment. To evidence such waiver for the benefit of a lender of Tenant, Landlord agrees execute and deliver to Tenant and any person such lender a commercially reasonable “Landlord’s Waiver” whereby Landlord agrees to waive any lien on Tenant’s assets including its inventory and equipment.
(d) In the event that, at any time prior to the execution of this Lease and the recordation of a memorandum of lease in accordance with Section 47 hereof, Landlord has mortgaged or entity acquiring otherwise encumbered the leasehold estate fee simple title to the Premises, Landlord shall be liable deliver to perform Tenant a commercially reasonable SNDA (as defined in Section 11) containing terms substantially similar to the terms of the document so entitled attached hereto and made a part hereof as Exhibit “I”, duly executed by the holder of any such mortgage or encumbrance (the “Fee Mortgagee”). Landlord agrees that Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee hereunder shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.be contingent upon
Appears in 1 contract
Samples: Lease (DSW Inc.)
Leasehold Financing. Subject Lessee shall have the right, without being required to Landlord’s rights under Sections 8.2 and 8.3 Tenant may at any time during obtain the term of this Lease Lessor's consent (but subject Tenant’s leasehold estate and attendant rights created to the provisions as set forth under this Lease Paragraph 8) to encumber Lessee's leasehold interest in the Demised Premises together with any and all improvements, structures, buildings or other betterments presently or in the future erected thereon (the "Lessee's Estate") pursuant to one or more mortgages and other collateral security instruments (including, without limitation, and by way of illustration, financing statements, security agreements and other documentation required pursuant to the Delaware Uniform Commercial Code, and any absolute or conditional assignments of rents) serving as security for one or more construction loans and/or permanent loans (otherwise permitted to be incurred hereunder) which would encumber Lessee's Estate, together with a loan collateral assignment of this Lease, and any modification, substitution, amendment, extension, increase, refinancing, replacement or loans or other obligations of Tenantrecasting thereof (collectively the "Permitted Financing"); provided that Tenant provided, however, in no event shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s such Permitted Financing encumber Lessor's fee interest in the Land. The holder Any one or more holders of the beneficial interest and secured position under any lien created such Permitted Financing, including, but not limited to any institutional lender or third-party creditor shall be a "Mortgagee". Any and all rights acquired by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in under any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created such Permitted Financing shall be subject to all the same limitations or conditionscovenants, if any, applicable to the Tenant under conditions and restrictions set forth in this Lease. The Leasehold Mortgages Lessee shall not encumber or purport to encumber, by means of any Permitted Financing or otherwise, all or any person portion of Lessor's fee interest in the Land, whether or entity acquiring not the leasehold estate Demised Premises has been improved by Lessee during the term of the Lease, and Lessor shall not be liable for any of Lessee's obligations under any Permitted Financing allowed hereunder, and any interpretation to the contrary shall be liable to perform Tenant’s obligations under this Lease only during the periodvoid. Lessee shall, if any, in which such person has ownership promptly following its receipt of any notice of default or other notice of the leasehold estate or possession acceleration of the Land. For as long as there is maturity of any leasehold mortgage in effectPermitted Financing from a Mortgagee, Tenant deliver a true and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Leasecorrect copy thereof to Lessor.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 (A) Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term Term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Tenant’s Lease, lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder, and attendant property and rights created in and to the Premises granted to it under this Lease to one or more mortgages Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a loan or loans or other obligations of "Leasehold Mortgage" and the holder thereof is herein referred to as "Leasehold Mortgagee"), provided the Leasehold Mortgage contains the provision set forth in paragraph 26.16(B) below. Any such Leasehold Mortgage shall be a lien only upon Tenant; provided that Tenant 's leasehold estate hereunder and Tenant's interests in this Lease and shall not have power encumber Landlord's fee simple title to create the Shopping Center or the Premises. Pursuant to any encumbrance that shallsuch Leasehold Mortgage, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns another person or entity (a "Successor-Tenant") may enforce its lien and acquire title to Tenant's interest in the leasehold estate in the Premises in any lawful way andway, pending foreclosure of the lienincluding, the Leasehold Mortgagee may take possession of the Land and operate any business andbut not limited to, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial through foreclosure, or on acquisition of the leasehold estate by deed assignment in lieu of foreclosure, or otherwise. In such event, the Successor-Tenant shall succeed to the rights of Tenant under this Lease, including the right to possession of the Premises, in which event Landlord shall recognize the Successor-Tenant as Tenant under this Lease, the same as if such Successor-Tenant were the original Tenant hereunder. Tenant shall notify Landlord, in the manner hereinafter provided for the giving of notice, of the execution of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee an agreement whereby Landlord agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on commercially reasonable terms and conditions acceptable to Leasehold Mortgagee. Landlord does hereby waive any statutory or other lien of Landlord in Tenant's present and after-acquired assets, including among other things, Tenant's inventory and equipment.
(B) Any Leasehold Mortgage shall be released of record within thirty (30) days after the satisfaction or termination of the obligations of Tenant to the Leasehold Mortgagee, and in the event of the failure of the Leasehold Mortgagee mayto cause the Leasehold Mortgage to be so released of record within such thirty (30) day period, on notice Landlord may demand that the Leasehold Mortgagee or Tenant cause the Leasehold Mortgage to be released, and if Leasehold Mortgagee fails to do so within thirty (30) days following such request by Landlord, sell the Tenant may execute and assign cause to be recorded in the leasehold real estate hereby created subject records or other records where the Leasehold Mortgage is recorded, an affidavit stating that the Leasehold Mortgage has been satisfied in full and is no longer a lien (a “Leasehold Mortgage Release Affidavit”). A Leasehold Mortgage Release Affidavit executed by Tenant and recorded in the real estate or other records where the Leasehold Mortgage is recorded shall be sufficient to cause the same limitations or conditions, if any, applicable Leasehold Mortgage to be released of record and void in all respects as a lien against the estate of Tenant under this Lease. The failure of Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable Mortgagee to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of cause the Leasehold Mortgagee having that leasehold mortgage. A Mortgage to be released of record or of Tenant to execute and record a Leasehold Mortgagee Mortgage Release Affidavit within thirty (30) days after demand by Landlord shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of constitute a default by Tenant under this Lease.
Appears in 1 contract
Samples: Lease Agreement (DSW Inc.)
Leasehold Financing. Subject X. Xxxxxx shall have the right to grant such mortgages of its interest in the Lease and the Premises (each a “Leasehold Mortgage” and collectively, the “Leasehold Mortgages”) to lenders providing financing for the Project (each a “Leasehold Mortgagee” and collectively, the “Leasehold Mortgagees”), and, in connection therewith, to pledge or assign this Lease to such Leasehold Mortgagees. Tenant shall deliver to Landlord a written notification containing the name and the address(es) to which notices to the Leasehold Mortgagee are to be sent. Landlord acknowledges and agrees that any Leasehold Mortgage to be granted to the holder of the Leasehold Mortgage securing any construction loan is intended to be refinanced, in part, by a permanent lender (the “Permanent First Mortgage Lender”), and that such Permanent First Mortgage Lender, upon the closing of such refinancing, shall be substituted in the place and stead of the construction lender for purposes of this Section 31. Notwithstanding the forgoing, Landlord shall have the right to review and approve, in its reasonable discretion, the Leasehold Mortgages as to the provisions directly affecting the Premises and/or the Landlord’s rights interest.
B. With respect to a Leasehold Mortgage, the following provisions shall apply:
i. When giving notice to Tenant with respect to any default under Sections 8.2 the provisions of this Lease, notice shall also be given to Leasehold Mortgagee at the address provided by Tenant pursuant to Section 31.A.
ii. With respect to any non-monetary default under this Lease, Leasehold Mortgagee shall be permitted ninety (90) calendar days after the later of (i) the expiration of any cure period provided Tenant under this Lease for the default in question and 8.3 (ii) receipt by Leasehold Mortgagee of notice of default from Landlord (which notice may be a copy of that notice which has been served upon Tenant may in regard thereto) to cure any such default by Tenant, where the default consists the failure to perform any other matter or thing which Tenant is required to perform.
iii. With respect to any monetary default under this Lease, Leasehold Mortgagee shall be permitted thirty (30) calendar days after the later of (i) the expiration of any cure period provided Tenant under this Lease for the default in question and (ii) receipt by Leasehold Mortgagee of notice of default from Landlord to cure any such default by Tenant.
iv. Xxxxxxxx agrees to accept payment or performance by Leasehold Mortgagee as though the same had been done by Xxxxxx.
C. If this Lease is terminated for any reason, whether by reason of an agreement between the Tenant and Landlord or by reason of any default by Tenant, or otherwise, in each case to which the Leasehold Mortgagees have consented in writing, or (ii) this Lease is rejected or terminated in any Tenant bankruptcy or insolvency proceeding, then and in any such event, Landlord will enter, as permissible under Florida law, into a new lease for the Premises with the first priority Leasehold Mortgagee, or a nominee or affiliate under the control of or under common control with such first Leasehold Mortgagee (as applicable an “Approved Affiliate”), for the remainder of the Term, effective as of the date of such termination, at the same Base Rent, with the same lien priority, and subject to the same covenants and agreements, terms, provisions and limitations herein contained, provided that:
i. Landlord receives from Leasehold Mortgagee or an Approved Affiliate (the “New Tenant”), a written request for such new lease within thirty (30) days from the later of (1) the date of such termination and (2) the date Leasehold Mortgagee receives notice of termination, and such written request is accompanied by payment to Landlord of all amounts then due and owing to Landlord under this Lease and, within ten (10) days after the delivery of an accounting therefor by Landlord, such New Tenant pays any time during and all costs and expenses, including reasonable attorney’s fees, court costs and disbursements made by Landlord in connection with any such default and termination as well as in connection with the term execution and delivery of the new lease, less the net income collected by Landlord from the Premises subsequent to the date of termination of this Lease subject and prior to the execution and delivery of the new lease, any excess of such net income over the aforesaid sums and expenses to be applied in payment of the Rent thereafter becoming due under the new lease; and
ii. Upon the execution and delivery of the new lease at the time payment is made in (i) above, all leases for Units which previously may have been assigned and transferred to Landlord shall thereupon be assigned and transferred without recourse by Landlord to the New Tenant, as the substitute Tenant; and
iii. Should Leasehold Mortgagee, exercise its option under this Section 31.C, then and in such event, the Leasehold Mortgage held by such Leasehold Mortgagee shall remain in full force and effect as a lien upon the leasehold interest of the New Tenant, and shall not be deemed terminated or extinguished by the termination, cancellation or surrender of this Lease; and
iv. A New Tenant which acquires the interest of Tenant pursuant to this Section 31.C, or a Leasehold Mortgagee (or Approved Affiliate) which acquires the interest of Tenant pursuant to subsection 31.D below, may, in either such event, assign and transfer its leasehold interest in the Premises to another party who otherwise qualifies as a Permitted Substitute.
D. For purposes of this Section 31, the making of a Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Lease or Tenant’s interest created hereby, nor shall any Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of this Lease or of Tenant’s interests under this Lease so as to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed hereunder, but a Leasehold Mortgagee, or a nominee or affiliate controlled by or under common control with such Leasehold Mortgagee, may become the holder of Tenant’s leasehold estate and attendant rights created under succeed to Tenant’s interest in this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the its Leasehold Mortgagee may take possession Mortgage or as a result of the Land and operate any business and, perform all obligations assignment of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed this Lease in lieu of foreclosure, and any purchaser at any sale of Tenant’s interest under this Lease in any proceeding for the foreclosure of any mortgage or the assignee or transferee of Tenant’s interest in this Lease under any instrument of assignment or transfer in lieu of the foreclosure of any mortgage shall be deemed to be an assignee or transferee approved by Landlord and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of Tenant to be performed hereunder, but only for so long as such purchaser or assignee is the owner of Xxxxxx’s interest in this Lease.
E. Notwithstanding any provision hereof to the contrary, any other express or implied agreement between the parties, or any act or course of conduct hereunder, no Leasehold Mortgagee mayshall have any personal liability whatsoever under this Lease until such time as such Leasehold Mortgagee becomes a mortgagee-in-possession or a New Tenant.
F. So long as any Leasehold Mortgage is in existence, on notice unless all Leasehold Mortgagees shall otherwise expressly consent in writing, the fee title to Landlord, sell the Premises and assign the leasehold estate hereby created subject of Tenant therein shall not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee title and said leasehold estate by any single owner.
G. Nothing in this Section 31 shall require any Leasehold Mortgagee or its designee as a condition to the same limitations exercise of rights provided under this Section 31 to cure any default of Tenant not reasonably susceptible of being cured by such Leasehold Mortgagee or conditions, if any, applicable its designee. The foregoing shall not be deemed to excuse a Leasehold Mortgagee from performing covenants relating to the Tenant condition of improvements on the Premises or other similar matters requiring access to and/or control of the Premises from and after such time as such Leasehold Mortgagee acquires Tenant’s interest in this Lease by foreclosure or otherwise.
H. Notwithstanding anything contained in this Lease to the contrary, the parties agree that the provisions of this Section 31 shall govern the rights of a Leasehold Mortgagee under this Lease. The Leasehold Mortgages In the event of any conflict or any person or entity acquiring inconsistency in the leasehold estate shall be liable to perform Tenant’s obligations under other provisions of this Lease only during and the periodprovisions of this Section 31 with respect to a Leasehold Mortgage or Leasehold Mortgagee, if anythe provisions of this Section 31 shall govern. TO INDICATE THEIR AGREEMENT, in which such person has ownership the parties have executed this Lease as of the leasehold estate day and year appearing in their respective notary acknowledgments. ATTEST: LANDLORD: THE CITY OF NORTH MIAMI, a Florida municipal corporation: “City” E-SIGNED by Xxxxxxx Xxxxxx on 2021-05-13 15:25:05 GMT Xxxxxxx Xxxxxx, Esq. City Clerk E-SIGNED by Xxxxxxx Xxxxxxxx on 2021-05-13 14:16:18 GMT Xxxxxxx Xxxxxxxx, Esq. City Manager APPROVED AS TO FORM AND LEGAL SUFFICIENCY: E-SIGNED by Xxxx Xxxxxx on 2021-05-12 18:14:18 GMT Xxxx X. X. Xxxxxx City Attorney TENANT: TR NM HOLDINGS LLC, a Florida limited liability company E-SIGNED by Xxxxx Xxxx on 2021-05-12 16:24:23 GMT By: Printed Name: Xxxxx Xxxx Title: Exhibit A - Project Legal Description and Address Exhibit B - Site Plan Exhibit C - Insurance Requirements 0000 X.X. 000xx Xxxxxx Xxxxx Xxxxx, XX 00000 EXHIBIT B PRELIMINARY SITE PLAN EXHIBIT C INSURANCE REQUIREMENTS Tenant shall at all times provide and maintain or possession cause to be procured, the following insurance coverages with respect to the Project issued by companies qualified to do business in the State of Florida, having an A.M. Best's Rating of not less than A-VII or as otherwise acceptable to Landlord in its sole discretion: (i) Inland Marine- Builder’s Risk on an all-risk basis without exception (including, without limitation, vandalism and malicious mischief, earthquake, collapse, boiler explosion, sprinkler coverage, cost of demolition, increased costs of construction and the value of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent undamaged portion of the Leasehold Mortgagee building and soft costs coverage) covering all the real estate, fixtures and personal property to the extent of the full insurable value except for flood and wind storm coverage on a builder's risk non-reporting form prior to completion, having that leasehold mortgage. replacement cost and agreed amount endorsements (with deductibles not in excess of point 25% (0.25%) of insurable value except for wind storm and flood) plus flood insurance (if the property is in a Special Flood Hazard Area A Leasehold Mortgagee or V); (ii) Tenant shall have such further rights purchase full replacement cost property insurance except for flood and responsibilities as hereinafter set forth wind storm coverage, following issuance of the certificate of occupancy and conclusion of the builder’s risk coverage; (iii) rent loss or business interruption insurance in Paragraph 16.5 an amount equal to one year's projected rentals or gross revenues; (iv) primary commercial general liability insurance (with underlying limit of this Lease.$1,000,000 per occurrence and $2,000,000 aggregate, and “follow form” umbrella liability insurance with limit of $5,000,000 (which will be in excess of primary automobile and general liability limits; (v) automobile liability insurance (including non-owned hired and leased automobiles) with a coverage of $1,000,000 per occurrence/$2,000,000 aggregate during construction; and
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 and 8.3 Tenant may at any time during the term of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosure, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject to the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages Mortgagee or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Lease.
Appears in 1 contract
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 and 8.3 Tenant may the contrary contained in this Lease, at any time during the term and from time to time Lessee may mortgage, pledge and encumber its interests in this Lease and in any subleases, and assign this Lease and any subleases, licenses and other occupancy and use agreements as collateral security for such mortgage(s). The making of a leasehold mortgage (or any other such assignment, pledge or encumbrance) shall not be deemed to constitute a prohibited assignment of this Lease subject Tenant’s leasehold estate and attendant rights created under this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the Landlord’s fee interest in the Land. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold Mortgagee or its assigns may enforce its lien and acquire title to the leasehold estate in any lawful way and, pending foreclosure of the lien, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial foreclosureLease, or on acquisition of the leasehold estate hereby created, nor cause the holder of the leasehold mortgage (a “Mortgagee”) to be deemed an assignee of this Lease. Such Mortgagee (or its nominee) shall be deemed an assignee of this Lease only at such time it succeeds to the Lessee’s interest in this Lease by deed foreclosure of any leasehold mortgage, or assignment in lieu of the foreclosure, or if it exercises or attempts to exercise any rights or privileges of Lessee under the Leasehold Lease. Upon such succession such Mortgagee may(or nominee) shall be bound to Lessor by the terms of this Lease and thereafter to the new Lease entered into by Lessor and Mortgagee as set forth in the Termination provision below. . Notwithstanding the foregoing, on notice Mortgagee or such successors shall be liable for all rent due under the Lease, and for curing any breaches or defaults which continue after the Mortgagee or such successor acquire Lessee’s interest in this Lease. Notwithstanding anything to Landlordthe contrary continued in this Lease, sell any Mortgagee (or other person or entity) that succeeds to Lessee’s interest in this Lease by way of foreclosure, assignment in lieu of foreclosure or the exercise of any other remedies relating to the enforcement of any leasehold mortgage may assign this Lease with the prior consent of Lessor (which shall not be unreasonably withheld, conditioned or delayed) to any telecommunications company (including its subsidiaries) with assets in excess of One Hundred Million Dollars ($100,000,000). When used in this Lease, “mortgage” shall include whatever security instruments are used in the locality of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds, and assign conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to the Uniform Commercial Code or successor or similar legislation. If a Mortgagee shall send to Lessor and its counsel a true copy of the leasehold estate hereby created subject mortgage, together with written notice specifying the name and address of the Mortgagee and the pertinent recording data with respect to such leasehold mortgage, Lessor agrees that the following provisions shall apply to such mortgage so long as the leasehold mortgage has not been released by the Mortgagee: There shall be no cancellation, surrender or modification of this Lease by Lessor and Lessee without the prior consent in writing of each Mortgagee. If the leasehold interest under this Lease shall ever be held by the same limitations person or conditions, if any, applicable to party who then holds the Tenant reversionary interest under this Lease. The Leasehold Mortgages or any person or entity acquiring , no merger shall result therefrom and both the leasehold estate and reversionary interests shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this Leasecontinue.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Financing. Subject Notwithstanding anything to Landlord’s rights under Sections 8.2 the contrary contained in this Lease, Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term Term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Tenant’s Lease, lease/sublease-back, assignment/leaseback and/or direct ownership of the Improvements, any and/or all of its leasehold estate hereunder, and attendant property and rights created in and to the Premises granted to it under this Lease to one or more mortgages Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a loan or loans or other obligations of "Leasehold Mortgage" and the holder thereof is herein referred to as "Tenant; provided that Tenant 's Mortgagee"). Any such Leasehold Mortgage shall not have power to create any encumbrance that shall, constitute in any way be a lien or encumbrance on the Landlord’s fee only upon Tenant's leasehold estate hereunder and Tenant's interest in the LandPremises but shall not be a lien upon the fee title to the Premises, upon Landlord's interests in this Lease, or upon Landlord's reversionary interest in the Improvements. The holder or holders of any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “Leasehold Mortgagees.” A Leasehold 's Mortgagee or its assigns may enforce its lien such Leasehold Mortgage and acquire title to the leasehold estate and Tenant's interest in the Premises in any lawful way andway, pending foreclosure of the lien, the Leasehold and in connection therewith Tenant Mortgagee may take possession of and rent the Land and operate any business and, perform all obligations of TenantPremises, and on foreclosure upon the Tenant Mortgagee's exercise of its rights under the lien by power of sale, judicial foreclosure, or on acquisition of the leasehold estate by deed in lieu of foreclosureLeasehold Mortgage, the Leasehold Tenant Mortgagee may, on notice to with the consent of Landlord, which consent shall not be unreasonably withheld or delayed, sell and assign the leasehold estate hereby created subject to and Tenant's interest in the same limitations or conditions, if any, applicable to the Tenant under this Lease. The Leasehold Mortgages or any person or entity acquiring the leasehold estate shall be liable to perform Tenant’s obligations under this Lease only during the period, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter set forth in Paragraph 16.5 of this LeasePremises.
Appears in 1 contract
Leasehold Financing. Subject to Landlord’s rights under Sections 8.2 (a) Landlord acknowledges and 8.3 agrees that Tenant may at any from time to time during the term term, without the consent of Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed of trust or mortgage, collateral assignment of this Lease subject Lease, lease/sublease-back, and/or assignment/leaseback, any and/or all of its leasehold estate hereunder, and property and rights in and to the Leased Premises granted to it under this Lease, as security for the payment of an indebtedness (any and all of which are herein referred to as a “Leasehold Mortgage” and the holder thereof is herein referred to as “Leasehold Mortgagee”). Any such Leasehold Mortgage shall be a lien only upon Tenant’s leasehold estate hereunder and attendant rights created under Tenant’s interests in this Lease to one or more mortgages as security for a loan or loans or other obligations of Tenant; provided that Tenant and shall not have power to create any encumbrance that shall, constitute in any way a lien or encumbrance on the encumber Landlord’s fee interest in simple title to the LandCenter or the Leased Premises. The holder or holders of Pursuant to any lien created by a mortgage secured by Tenant’s leasehold estate are referred to herein as “such Leasehold Mortgagees.” A Mortgage, the Leasehold Mortgagee or its assigns another person or entity (a “Successor-Tenant”) may enforce its lien and acquire title to Tenant’s interest in the leasehold estate in the Leased Premises in any lawful way andway, pending foreclosure of the lienincluding but not limited to, the Leasehold Mortgagee may take possession of the Land and operate any business and, perform all obligations of Tenant, and on foreclosure of the lien by power of sale, judicial through foreclosure, or on acquisition of the leasehold estate by deed assignment in lieu of foreclosure, or otherwise. In such event, the Leasehold Mortgagee may, on notice to Landlord, sell and assign the leasehold estate hereby created subject Successor-Tenant shall succeed to the same limitations or conditions, if any, applicable to the rights of Tenant under this Lease, including the right to possession of the Leased Premises, in which event Landlord shall recognize the Successor-Tenant as the tenant under this Lease, the same as if such Successor-Tenant were the original tenant hereunder.
(b) Tenant shall notify Landlord (and any Fee Mortgagee, as hereinafter defined in Section 56(d) below), in the manner hereinafter provided for the giving of notice, of the execution of such Leasehold Mortgage and the name and place for service of notice upon Leasehold Mortgagee. The Upon such notification of Landlord that Tenant has entered into a Leasehold Mortgages Mortgage, Landlord hereby agrees for the benefit of such Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant and Leasehold Mortgagee a “Landlord’s Agreement” whereby Landlord agrees to recognize the interest of Leasehold Mortgagee and any Successor-Tenant hereunder, on commercially reasonable terms and conditions acceptable to Leasehold Mortgagee.
(c) Landlord does hereby waive any statutory or other lien of the Landlord in Tenant’s present and after-acquired assets, including among other things, Tenant’s inventory and equipment. To evidence such waiver for the benefit of Tenant’s existing lender, Landlord shall, simultaneously with the execution and delivery of this Lease, execute and deliver to Tenant the “Landlord’s Waiver” attached hereto and made a part hereof as Exhibit “H”.
(d) In the event that, at any person time prior to the execution of this Lease and the recordation of a memorandum of lease in accordance with Section 47 hereof, Landlord has mortgaged or entity acquiring otherwise encumbered the leasehold estate fee simple title to the Premises, Landlord shall be liable deliver to perform Tenant a commercially reasonable SNDA (as defined in Section 11) containing terms substantially similar to the terms of the document so entitled attached hereto and made a part hereof as Exhibit “I”, duly executed by the holder of any such mortgage or encumbrance (the “Fee Mortgagee”). Landlord agrees that Tenant’s obligations under this Lease only during hereunder shall be contingent upon delivery by Landlord to Tenant of an SNDA executed by the periodFee Mortgagee on or before the Commencement Date, if any, in which such person has ownership of the leasehold estate or possession of the Land. For as long as there is any leasehold mortgage in effect, Tenant and Landlord hereby expressly stipulate and agree that they will not modify this Lease in any way nor cancel this Lease by mutual agreement without the written consent of the Leasehold Mortgagee having that leasehold mortgage. A Leasehold Mortgagee shall have such further rights and responsibilities as hereinafter more fully set forth in Paragraph 16.5 of this LeaseSection 11.
Appears in 1 contract
Samples: Lease (Retail Ventures Inc)