Leasehold Mortgage. Tenant shall not be permitted to encumber the fee simple title in the Land, Building or Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage Tenant's interest under this Lease, which such mortgage shall in no manner alter the terms and conditions of this Lease, nor impact Landlord's rights as the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have the right to review and approve of any leasehold mortgage and any other documents to be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 2 contracts
Samples: Lease Agreement (Decorator Industries Inc), Lease Agreement (Decorator Industries Inc)
Leasehold Mortgage. (a) Tenant shall have the unrestricted right at any time and from time to time without Landlord’s consent to mortgage the Property and the Leased Premises, including the Improvements, and its leasehold interest under this Lease (but not Landlord’s fee interest), subject however to the limitations hereinafter set forth (including Landlord’s prior security interest described in Paragraph 26 (b) below). Any such mortgage shall be permitted subject and subordinate to encumber the fee simple title in rights of Landlord hereunder. A mortgage of the LandProperty and/or Tenant’s leasehold interest under this Lease is herein referred to as a “Leasehold Mortgage,” and the party holding the Leasehold Mortgage (including any affiliate of such party) the “Leasehold Mortgagee.”
(b) No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein, Building nor shall the provisions of this Lease pertaining to Leasehold Mortgages be binding upon Landlord, unless Landlord shall have been given written notice of the name and address of the Leasehold Mortgagee together with a true and correct copy of the Leasehold Mortgage, the note secured thereby, the security agreement related to any personal property located on or Premises associated with the Property, financing statements related to any personal property located on or associated with the Property, all as related to any obligations to the Leasehold Mortgage, plus such portions of any loan agreement and/or other written agreements between the Leasehold Mortgagee and Tenant which pertain to the direct use, maintenance, and/or operations of the Property; and, during the Term of the Lease, any modifications or amendments to any of the structuresabove referenced specific documents.
(c) So long as such Leasehold Mortgage shall remain in effect, improvementsthe following provisions shall apply:
(1) Landlord shall serve a copy of any notice, fixtures including a notice of default, required to be served on Tenant under this Lease upon such Leasehold Mortgagee at the address provided in the notice referred to in subsection (b) hereof, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been served on the Leasehold Mortgagee.
(4) Upon the occurrence of an event of default, Landlord shall take no action to terminate this Lease without first giving to the Leasehold Mortgagee written notice thereof and, in the event of a monetary default, a period of fifteen (15) days after written notice to cure such default, or any other portion in the case of a non-monetary default, a period of ninety (90) days within which either (i) to obtain possession of the PremisesLeased Premises (including possession by a receiver) or (ii) to institute, including without limitation any Addition. Tenant shall only be permitted to mortgage prosecute and complete foreclosure proceedings or otherwise acquire Tenant's ’s interest under this Lease, or (iii) to cure such default Such Leasehold Mortgagee, within ninety (90) days after obtaining possession or acquiring Tenant’s interest under this Lease, (the “Leasehold Mortgage Cure Period”), shall be required to cure all non-monetary defaults reasonably susceptible of being cured by such Leasehold Mortgagee; provided, however, that: (A) such Leasehold Mortgagee shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (B) nothing herein contained shall preclude Landlord, subject to the provisions of this Section, from exercising any rights or remedies under this Lease with respect to any other default by Tenant; (C) such Leasehold Mortgagee shall agree with Landlord in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such Leasehold Mortgagee; and (D) if a non-monetary default which the Leasehold Mortgagee is otherwise required to cure pursuant to the provisions of this subparagraph (c)(4) is not reasonably susceptible to cure within the Leasehold Mortgagee Cure Period, the Leasehold Mortgagee shall be deemed to be in compliance with the requirements hereof as long as it has commenced action to cure such mortgage default within the Leasehold Mortgagee Cure Period, and diligently pursues such cure to completion, provided that it completes the cure of such default within 120 days of after receiving written notice of default. For purposes of this Section 22(c)(4), the phrase “non-monetary defaults” shall not apply to any failure of the Tenant to have undertaken or completed contemplated constructions related to the Property; or any failure of the Tenant to rebuild any damaged or destroyed Improvements located on the Property. Also, for purposes of this Section 22(c)(4), in the event that the Tenant shall have obtained judicial delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, or the Tenant shall have sought or been subjected to any bankruptcy proceedings which include or result in the delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, then during any period of such delay or restriction the periods of time referred to in the first two sentences of this Section 22(c)(4) shall be suspended and shall resume running upon the expiration of any applicable appeal period in relation to the court orders and/or expiration periods which are applicable, if such court orders or expiration dates would permit the Leasehold Mortgagee to proceed with curing any defaults or foreclosing on the Leasehold Mortgage. Such Leasehold Mortgagee may become the legal owner and holder of Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure; but no manner alter third party other than Leasehold Mortgagee shall be entitled to acquire Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure unless and until such proposed acquirer or assignee shall have satisfied the requirements set forth in Section 16(a)(l)(b)-(c).
(d) In the event of termination of this Lease prior to the expiration of the term, by reason of any default or for any other reason including, without limitation any rejection or disaffirmance pursuant to the Bankruptcy Code or pursuant to any insolvency or other law affecting creditors’ rights but excluding any termination by reason of condemnation or casualty as provided in Sections 15 and 16 herein or the default of Tenant and the failure to cure such default by the Leasehold Mortgagee after having notice thereof as provided in subparagraph (c)(4) above as a result of such bankruptcy proceeding, Landlord shall serve upon the Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Such Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions:
(1) Upon written request of the Leasehold Mortgagee within sixty (60) days after service of such notice that the Lease has been terminated, Landlord shall enter into a new lease of the Leased Premises with such Leasehold Mortgagee, or its designee, as set forth in clause (2) below. If the new lease is to be with an individual or entity other than the Leasehold Mortgagee, as a direct party, then such individual or entity, as designee of the Leasehold Mortgagee, shall have satisfied the requirements set forth in Section 16(a)(l)(b)-(d).
(2) Such new lease shall be effective on the date of termination of this Lease and shall be for the remainder of the term of this Lease, at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Such new lease shall require the tenant thereunder to perform all unfulfilled obligations of Tenant under this Lease which are reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the tenant named therein shall pay all sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay the reasonable expenses (including but not limited to attorneys’ fees and costs) incurred by Landlord in connection with such defaults and termination, the recovery of possession of said Leased Premises and the preparation, execution and delivery of such new lease. Upon execution and delivery of such new lease, such tenant shall be entitled to an adjustment in the amount otherwise owed pursuant to the terms of this paragraph, such adjustment to be equal to the net income, if any, derived by Landlord from the Leased Premises during the period from the date of termination of this Lease to the date of execution of the new Lease.
(3) Any such new lease shall maintain the same priority as this Lease with regard to any Leasehold Mortgage affecting the Property or any part thereof or any other rights, liens or encumbrances thereon. The provisions of the immediately preceding sentence shall be self-executing; provided, however, Landlord shall execute such reasonable documents as are necessary to effectuate the foregoing.
(e) Except as otherwise provided in this Lease, this Lease may not be modified, amended, or canceled by the mutual agreement of Landlord and Tenant or surrendered without the express written consent of the Leasehold Mortgagee. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
(f) If Landlord and Tenant shall acquire the interest of the other hereunder, this Lease shall remain outstanding and no merger of the leasehold into the fee interest shall be deemed to have occurred.
(g) If any Leasehold Mortgagee shall acquire title to Tenant’s interest under this Lease by foreclosure, assignment in lieu of foreclosure or otherwise, or under a new lease pursuant to subsection (d) above, the same shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate thereby created, and such Leasehold Mortgagee may assign such interest under this Lease or in such new lease (subject to the terms of Paragraph 16 (a)(i) regarding assignment) and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease or in such new lease contained on Tenant’s or Tenant’s part to be performed and observed from and after the date of such assignment; provided, however, that the assignee of such Leasehold Mortgagee shall have expressly assumed this Lease or such new lease and written evidence of such assumption shall have been submitted to Landlord.
(h) Landlord acknowledges that as between Landlord and Leasehold Mortgagee, its nominee or a purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated notwithstanding the rejection of the Lease by Tenant or its representative in any proceeding under the Bankruptcy Reform Act of 1978 (the “Bankruptcy Code”), as amended, or any other insolvency law, provided that Leasehold Mortgagee, its nominee or a purchaser at a foreclosure sale confirms in writing that it is bound by the terms and conditions of the Lease to the same extent as Tenant named therein.
(i) Each Leasehold Mortgagee shall be given notice of any litigation, arbitration or other proceeding relating to this Lease, nor impact Landlord's rights as Lease and any dispute between the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present parties thereto and Landlord shall have the right to review intervene in any such litigation, arbitration or other proceeding, but only to the extent of its interest as mortgagee, as its interest may appear, and approve of any leasehold mortgage and any other documents to be recorded in relation not as a direct party to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Landlitigation, Building arbitration or the Premisesother proceeding. Landlord agreesIn any event, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee each Leasehold Mortgagee shall receive a copy of all notices any award or decision made in such litigation, arbitration or other proceeding.
(j) In the event of default made by Landlord upon Tenant under in any Leasehold Mortgage, and regardless of the enforcement of Leasehold Mortgagee’s rights thereunder, Leasehold Mortgagee shall not have the right to remove any property, including any buildings, equipment or other improvements that constitute its collateral, from the Leased Premises. At the termination of this Lease, to permit all such leasehold mortgagee an opportunity to cure any such defaults, which in no event improvements shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser be the property of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 1 contract
Samples: Lease (Peak Resorts Inc)
Leasehold Mortgage. (a) Tenant shall have the unrestricted right at any time and from time to time without Landlord’s consent to mortgage the Property and the Leased Premises, including the Improvements, and its leasehold interest under this Lease (but not Landlord’s fee interest), subject however to the limitations hereinafter set forth (including Landlord’s prior security interest described in Paragraph 26 (b) below). Any such mortgage shall be permitted subject and subordinate to encumber the fee simple title in rights of Landlord hereunder. A mortgage of the LandProperty and/or Tenant’s leasehold interest under this Lease is herein referred to as a “Leasehold Mortgage,” and the party holding the Leasehold Mortgage (including any affiliate of such party) the “Leasehold Mortgagee.”
(b) No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein, Building nor shall the provisions of this Lease pertaining to Leasehold Mortgages be binding upon Landlord, unless Landlord shall have been given written notice of the name and address of the Leasehold Mortgagee together with a true and correct copy of the Leasehold Mortgage, the note secured thereby, the security agreement related to any personal property located on or Premises associated with the Property, financing statements related to any personal property located on or associated with the Property, all as related to any obligations to the Leasehold Mortgage, plus such portions of any loan agreement and/or other written agreements between the Leasehold Mortgagee and Tenant which pertain to the direct use, maintenance, and/or operations of the Property; and, during the Term of the Lease, any modifications or amendments to any of the structuresabove referenced specific documents.
(c) So long as such Leasehold Mortgage shall remain in effect, improvementsthe following provisions shall apply:
(1) Landlord shall serve a copy of any notice, fixtures including a notice of default, required to be served on Tenant under this Lease upon such Leasehold Mortgagee at the address provided in the notice referred to in subsection (b) hereof, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been served on the Leasehold Mortgagee.
(2) Upon the occurrence of an event of default, Landlord shall take no action to terminate this Lease without first giving to the Leasehold Mortgagee written notice thereof and, in the event of a monetary default, a period of fifteen (15) days after written notice to cure such default, or any other portion in the case of a non-monetary default, a period of ninety (90) days within which either (i) to obtain possession of the PremisesLeased Premises (including possession by a receiver) or (ii) to institute, including without limitation any Addition. Tenant shall only be permitted to mortgage prosecute and complete foreclosure proceedings or otherwise acquire Tenant's ’s interest under this Lease, or (iii) to cure such default. Such Leasehold Mortgagee, within ninety (90) days after obtaining possession or acquiring Tenant’s interest under this Lease, (the “Leasehold Mortgage Cure Period”), shall be required to cure all non-monetary defaults reasonably susceptible of being cured by such Leasehold Mortgagee; provided, however, that: (A) such Leasehold Mortgagee shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (B) nothing herein contained shall preclude Landlord, subject to the provisions of this Section, from exercising any rights or remedies under this Lease with respect to any other default by Tenant; (C) such Leasehold Mortgagee shall agree with Landlord in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such Leasehold Mortgagee; and (D) if a non-monetary default which the Leasehold Mortgagee is otherwise required to cure pursuant to the provisions of this subparagraph (c)(4) is not reasonably susceptible to cure within the Leasehold Mortgagee Cure Period, the Leasehold Mortgagee shall be deemed to be in compliance with the requirements hereof as long as it has commenced action to cure such mortgage default within the Leasehold Mortgagee Cure Period, and diligently pursues such cure to completion, provided that it completes the cure of such default within 120 days after receiving written notice of default. For purposes of this Section 22(c)(4), the phrase “non-monetary defaults” shall not apply to any failure of the Tenant to have undertaken or completed contemplated constructions related to the Property; or any failure of the Tenant to rebuild any damaged or destroyed Improvements located on the Property. Also, for purposes of this Section 22(c)(4), in the event that the Tenant shall have obtained judicial delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, or the Tenant shall have sought or been subjected to any bankruptcy proceedings which include or result in the delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, then during any period of such delay or restriction the periods of time referred to in the first two sentences of this Section 22(c)(4) shall be suspended and shall resume running upon the expiration of any applicable appeal period in relation to the court orders and/or expiration periods which are applicable, if such court orders or expiration dates would permit the Leasehold Mortgagee to proceed with curing any defaults or foreclosing on the Leasehold Mortgage. Such Leasehold Mortgagee may become the legal owner and holder of Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure; but no manner alter third party other than Leasehold Mortgagee shall be entitled to acquire Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure unless and until such proposed acquirer or assignee shall have satisfied the requirements set forth in Section 16(a)(l)(b)-(c).
(d) In the event of termination of this Lease prior to the expiration of the term, by reason of any default or for any other reason including, without limitation any rejection or disaffirmance pursuant to the Bankruptcy Code or pursuant to any insolvency or other law affecting creditors’ rights but excluding any termination by reason of condemnation or casualty as provided in Sections 15 and 16 herein or the default of Tenant and the failure to cure such default by the Leasehold Mortgagee after having notice thereof as provided in subparagraph (c)(4) above as a result of such bankruptcy proceeding, Landlord shall serve upon the Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Such Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions:
(1) Upon written request of the Leasehold Mortgagee within sixty (60) days after service of such notice that the Lease has been terminated, Landlord shall enter into a new lease of the Leased Premises with such Leasehold Mortgagee; or its designee, as set forth in clause (2) below. If the new lease is to be with an individual or entity other than the Leasehold Mortgagee, as a direct party, then such individual or entity, as designee of the Leasehold Mortgagee, shall have satisfied the requirements set forth in Section 16(a)(l)(b)-(d).
(2) Such new lease shall be effective on the date of termination of this Lease and shall be for the remainder of the term of this Lease, at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Such new lease shall require the tenant thereunder to perform all unfulfilled obligations of Tenant under this Lease which are reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the tenant named therein shall pay all sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay the reasonable expenses (including but not limited to attorneys’ fees and costs) incurred by Landlord in connection with such defaults and termination, the recovery of possession of said Leased Premises and the preparation, execution and delivery of such new lease. Upon execution and delivery of such new lease, such tenant shall be entitled to an adjustment in the amount otherwise owed pursuant to the terms of this paragraph, such adjustment to be equal to the net income, if any, derived by Landlord from the Leased Premises during the period from the date of termination of this Lease to the date of execution of the new Lease.
(3) Any such new lease shall maintain the same priority as this Lease with regard to any Leasehold Mortgage affecting the Property or any part thereof or any other rights, liens or encumbrances thereon. The provisions of the immediately preceding sentence shall be self-executing; provided, however, Landlord shall execute such reasonable documents as are necessary to effectuate the foregoing.
(e) Except as otherwise provided in this Lease, this Lease may not be modified, amended, or canceled by the mutual agreement of Landlord and Tenant or surrendered without the express written consent of the Leasehold Mortgagee. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
(f) If Landlord and Tenant shall acquire the interest of the other hereunder, this Lease shall remain outstanding and no merger of the leasehold into the fee interest shall be deemed to have occurred.
(g) If any Leasehold Mortgagee shall acquire title to Tenant’s interest under this Lease by foreclosure, assignment in lieu of foreclosure or otherwise, or under a new lease pursuant to subsection (d) above, the same shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate thereby created, and such Leasehold Mortgagee may assign such interest under this Lease or in such new lease (subject to the terms of Paragraph 16 (a)(i) regarding assignment) and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease or in such new lease contained on Tenant’s or Tenant’s part to be performed and observed from and after the date of such assignment; provided, however, that the assignee of such Leasehold Mortgagee shall have expressly assumed this Lease or such new lease and written evidence of such assumption shall have been submitted to Landlord.
(h) Landlord acknowledges that as between Landlord and Leasehold Mortgagee, its nominee or a purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated notwithstanding the rejection of the Lease by Tenant or its representative in any proceeding under the Bankruptcy Reform Act of 1978 (the “Bankruptcy Code”), as amended, or any other insolvency law, provided that Leasehold Mortgagee, its nominee or a purchaser at a foreclosure sale confirms in writing that it is bound by the terms and conditions of the Lease to the same extent as Tenant named therein.
(i) Each Leasehold Mortgagee shall be given notice of any litigation, arbitration or other proceeding relating to this Lease, nor impact Landlord's rights as Lease and any dispute between the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present parties thereto and Landlord shall have the right to review intervene in any such litigation, arbitration or other proceeding, but only to the extent of its interest as mortgagee, as its interest may appear, and approve of any leasehold mortgage and any other documents to be recorded in relation not as a direct party to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Landlitigation, Building arbitration or the Premisesother proceeding. Landlord agreesIn any event, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee each Leasehold Mortgagee shall receive a copy of all notices any award or decision made in such litigation, arbitration or other proceeding.
(j) In the event of default made by Landlord upon Tenant under in any Leasehold Mortgage, and regardless of the enforcement of Leasehold Mortgagee’s rights thereunder, Leasehold Mortgagee shall not have the right to remove any property, including any buildings, equipment or other improvements that constitute its collateral, from the Leased Premises. At the termination of this Lease, to permit all such leasehold mortgagee an opportunity to cure any such defaults, which in no event improvements shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser be the property of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 1 contract
Samples: Lease (Peak Resorts Inc)
Leasehold Mortgage. Tenant At CITY’S discretion, the leasehold may be mortgaged and subject to the further conditions as follows: Any mortgage and/or subordination agreement shall be subject to CITY’S review and approval. CITY reserves the right not to agree to any mortgage or subordination agreement in its reasonable discretion. A Memorandum of Lease in recordable form shall be permitted to encumber the fee simple title executed and recorded in the LandOffice of the Recorder of Ogle County. LESSEE shall have no right to amend, Building modify, cancel or Premises terminate this Lease without the MORTGAGEE’S prior written consent thereto. If the MORTGAGEE shall take possession of LESSEE’S leasehold estate, by foreclosure or otherwise, then (i) MORTGAGEE shall be liable for any previous defaults of LESSEE occurring prior to the time MORTGAGEE takes possession, and (ii) MORTGAGEE’S right to assign or sublet all or any of the structures, improvements, fixtures or any other portion of the PremisesLeased Premises shall be conditioned on the prior written consent of CITY, including without limitation in CITY’S sole discretion. CITY’S obligation to agree to a mortgage on the demised premises is subject to MORTGAGEE’S obligation to notify CITY of any Addition. Tenant shall only be permitted to mortgage Tenant's interest under this Lease, which such mortgage shall in no manner alter breaches by LESSEE of the terms and conditions of this Lease, nor impact Landlord's rights as the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any mortgage and giving LESSEE and/or CITY ten (10) days to cure said breach(es) and full reinstatement of the structures, improvements, fixtures or mortgage on cure. XXXXXX agrees that any other portion uncured breach of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have the right to review and approve terms of any leasehold mortgage and any other documents to on the Leased Premises will be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision breach of this Lease and that all outstanding obligations entitle CITY to immediate possession of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documentsLeased Premises.
Appears in 1 contract
Samples: Land Lease Agreement
Leasehold Mortgage. (a) Tenant shall have the unrestricted right at any time and from time to time without Landlord's consent to mortgage the Property and the Leased Premises, including the Improvements, and its leasehold interest under this Lease (but not Landlord's fee interest), subject however to the limitations hereinafter set forth (including Landlord's prior security interest described in Paragraph 26 (b) below). Any such mortgage shall be permitted subject and subordinate to encumber the fee simple title in rights of Landlord hereunder. A mortgage of the LandProperty and/or Tenant's leasehold interest under this Lease is herein referred to as a "Leasehold Mortgage," and the party holding the Leasehold Mortgage (including any affiliate of such party) the "Leasehold Mortgagee."
(b) No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein, Building nor shall the provisions of this Lease pertaining to Leasehold Mortgages be binding upon Landlord, unless Landlord shall have been given written notice of the name and address of the Leasehold Mortgagee together with a true and correct copy of the Leasehold Mortgage, the note secured thereby, the security agreement related to any personal property located on or Premises associated with the Property, financing statements related to any personal property located on or associated with the Property, all as related to any obligations to the Leasehold Mortgage, plus such portions of any loan agreement and/or other written agreements between the Leasehold Mortgagee and Tenant which pertain to the direct use, maintenance, and/or operations of the Property; and, during the Term of the Lease, any modifications or amendments to any of the structuresabove referenced specific documents.
(c) So long as such Leasehold Mortgage shall remain in effect, improvementsthe following provisions shall apply:
(1) Landlord shall serve a copy of any notice, fixtures including a notice of default, required to be served on Tenant under this Lease upon such Leasehold Mortgagee at the address provided in the notice referred to in subsection (b) hereof, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been served on the Leasehold Mortgagee.
(4) Upon the occurrence of an event of default, Landlord shall take no action to terminate this Lease without first giving to the Leasehold Mortgagee written notice thereof and, in the event of a monetary default, a period of fifteen (15) days after written notice to cure such default, or any other portion in the case of a non-monetary default, a period of ninety (90) days within which either (i) to obtain possession of the PremisesLeased Premises (including possession by a receiver) or (ii) to institute, including without limitation any Addition. Tenant shall only be permitted to mortgage prosecute and complete foreclosure proceedings or otherwise acquire Tenant's interest under this Lease, or (iii) to cure such default Such Leasehold Mortgagee, within ninety (90) days after obtaining possession or acquiring Tenant's interest under this Lease, (the "Leasehold Mortgage Cure Period"), shall be required to cure all non-monetary defaults reasonably susceptible of being cured by such Leasehold Mortgagee; provided, however, that: (A) such Leasehold Mortgagee shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (B) nothing herein contained shall preclude Landlord, subject to the provisions of this Section, from exercising any rights or remedies under this Lease with respect to any other default by Tenant; (C) such Leasehold Mortgagee shall agree with Landlord in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such Leasehold Mortgagee; and (D) if a non-monetary default which the Leasehold Mortgagee is otherwise required to cure pursuant to the provisions of this subparagraph (c)(4) is not reasonably susceptible to cure within the Leasehold Mortgagee Cure Period, the Leasehold Mortgagee shall be deemed to be in compliance with the requirements hereof as long as it has commenced action to cure such mortgage default within the Leasehold Mortgagee Cure Period, and diligently pursues such cure to completion, provided that it completes the cure of such default within 120 days of after receiving written notice of default. For purposes of this Section 22(c)(4), the phrase “non-monetary defaults” shall not apply to any failure of the Tenant to have undertaken or completed contemplated constructions related to the Property; or any failure of the Tenant to rebuild any damaged or destroyed Improvements located on the Property. Also, for purposes of this Section 22(c)(4), in the event that the Tenant shall have obtained judicial delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, or the Tenant shall have sought or been subjected to any bankruptcy proceedings which include or result in the delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, then during any period of such delay or restriction the periods of time referred to in the first two sentences of this Section 22(c)(4) shall be suspended and shall resume running upon the expiration of any applicable appeal period in relation to the court orders and/or expiration periods which are applicable, if such court orders or expiration dates would permit the Leasehold Mortgagee to proceed with curing any defaults or foreclosing on the Leasehold Mortgage. Such Leasehold Mortgagee may become the legal owner and holder of Tenant's interest under this Lease by foreclosure or assignment in lieu of foreclosure; but no manner alter third party other than Leasehold Mortgagee shall be entitled to acquire Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure unless and until such proposed acquirer or assignee shall have satisfied the requirements set forth in Section 16(a)(1)(b)-(c).
(d) In the event of termination of this Lease prior to the expiration of the term, by reason of any default or for any other reason including, without limitation any rejection or disaffirmance pursuant to the Bankruptcy Code or pursuant to any insolvency or other law affecting creditors’ rights but excluding any termination by reason of condemnation or casualty as provided in Sections 15 and 16 herein or the default of Tenant and the failure to cure such default by the Leasehold Mortgagee after having notice thereof as provided in subparagraph (c)(4) above as a result of such bankruptcy proceeding, Landlord shall serve upon the Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Such Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions:
(1) Upon written request of the Leasehold Mortgagee within sixty (60) days after service of such notice that the Lease has been terminated, Landlord shall enter into a new lease of the Leased Premises with such Leasehold Mortgagee, or its designee, as set forth in clause (2) below. If the new lease is to be with an individual or entity other than the Leasehold Mortgagee, as a direct party, then such individual or entity, as designee of the Leasehold Mortgagee, shall have satisfied the requirements set forth in Section 16(a)(1)(b)-(d).
(2) Such new lease shall be effective on the date of termination of this Lease and shall be for the remainder of the term of this Lease, at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Such new lease shall require the tenant thereunder to perform all unfulfilled obligations of Tenant under this Lease which are reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the tenant named therein shall pay all sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay the reasonable expenses (including but not limited to attorneys’ fees and costs) incurred by Landlord in connection with such defaults and termination, the recovery of possession of said Leased Premises and the preparation, execution and delivery of such new lease. Upon execution and delivery of such new lease, such tenant shall be entitled to an adjustment in the amount otherwise owed pursuant to the terms of this paragraph, such adjustment to be equal to the net income, if any, derived by Landlord from the Leased Premises during the period from the date of termination of this Lease to the date of execution of the new Lease.
(3) Any such new lease shall maintain the same priority as this Lease with regard to any Leasehold Mortgage affecting the Property or any part thereof or any other rights, liens or encumbrances thereon. The provisions of the immediately preceding sentence shall be self-executing; provided, however, Landlord shall execute such reasonable documents as are necessary to effectuate the foregoing.
(e) Except as otherwise provided in this Lease, this Lease may not be modified, amended, or canceled by the mutual agreement of Landlord and Tenant or surrendered without the express written consent of the Leasehold Mortgagee. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
(f) If Landlord and Tenant shall acquire the interest of the other hereunder, this Lease shall remain outstanding and no merger of the leasehold into the fee interest shall be deemed to have occurred.
(g) If any Leasehold Mortgagee shall acquire title to Tenant's interest under this Lease by foreclosure, assignment in lieu of foreclosure or otherwise, or under a new lease pursuant to subsection (d) above, the same shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate thereby created, and such Leasehold Mortgagee may assign such interest under this Lease or in such new lease (subject to the terms of Paragraph 16 (a)(i) regarding assignment) and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease or in such new lease contained on Tenant's or Tenant's part to be performed and observed from and after the date of such assignment; provided, however, that the assignee of such Leasehold Mortgagee shall have expressly assumed this Lease or such new lease and written evidence of such assumption shall have been submitted to Landlord.
(h) Landlord acknowledges that as between Landlord and Leasehold Mortgagee, its nominee or a purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated notwithstanding the rejection of the Lease by Tenant or its representative in any proceeding under the Bankruptcy Reform Act of 1978 (the "Bankruptcy Code"), as amended, or any other insolvency law, provided that Leasehold Mortgagee, its nominee or a purchaser at a foreclosure sale confirms in writing that it is bound by the terms and conditions of the Lease to the same extent as Tenant named therein.
(i) Each Leasehold Mortgagee shall be given notice of any litigation, arbitration or other proceeding relating to this Lease, nor impact Landlord's rights as Lease and any dispute between the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present parties thereto and Landlord shall have the right to review intervene in any such litigation, arbitration or other proceeding, but only to the extent of its interest as mortgagee, as its interest may appear, and approve of any leasehold mortgage and any other documents to be recorded in relation not as a direct party to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Landlitigation, Building arbitration or the Premisesother proceeding. Landlord agreesIn any event, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee each Leasehold Mortgagee shall receive a copy of all notices any award or decision made in such litigation, arbitration or other proceeding.
(j) In the event of default made by Landlord upon Tenant under in any Leasehold Mortgage, and regardless of the enforcement of Leasehold Mortgagee's rights thereunder, Leasehold Mortgagee shall not have the right to remove any property, including any buildings, equipment or other improvements that constitute its collateral, from the Leased Premises. At the termination of this Lease, to permit all such leasehold mortgagee an opportunity to cure any such defaults, which in no event improvements shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser be the property of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 1 contract
Leasehold Mortgage. Tenant shall not be permitted to encumber Notwithstanding the fee simple title in the Land, Building or Premises or any provisions of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage Tenant's interest under this Lease, which such mortgage shall in no manner alter the terms and conditions Article 17 regarding Transfer of this Lease, nor impact Landlord's rights as but subject to the owner provisions of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgagethis Article 22, Tenant shall present and Landlord shall have the right at any time and from time to review and approve of any time to encumber (i) the entire (but not less than the entire) leasehold mortgage and any other documents to be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made estate created by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure or (ii) any or all of Tenant's Property by one or more mortgages, deeds of trust or other security instruments (any such defaultsmortgage, which deed of trust, or other security instrument that satisfies the requirements of this Article 22 being herein referred to as a "Leasehold Mortgage") to secure repayment of a loan (and associated obligations) made to Tenant for the purpose of financing the construction of any Improvements made pursuant to the terms of this Lease or the acquisition or leasing of any of Tenant's Property or for the long-term financing thereof, provided that in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser interest of Tenant's leasehold interest Landlord in the Premises, be subject or subordinate to any lien or encumbrance of any mortgage, deed of trust or other security instrument. Any Leasehold Mortgage shall by its terms provide that all proceeds of any property insurance covering the Premises and all Awards shall be payable to Landlord for application in foreclosure as accordance with the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision provisions of this Lease and that all outstanding obligations the holder of such Leasehold Mortgage shall give Landlord written notice of any default of Tenant under such Leasehold Mortgage contemporaneously with the Tenant have been paid in fullgiving of such notice to Tenant. Tenant shall reimburse Landlorddeliver to Landlord promptly after execution by Tenant a true and verified copy of any Leasehold Mortgage, and any amendment, modification or extension thereof, together with the name and address of the owners and holder thereof. At Tenant's reasonable out-of-pocket costsrequest, including attorneys feesLandlord will enter into an agreement with Tenant and the holder of a Leasehold Mortgage, to review in the form of attached Exhibit I, in which case such documentsAgreement will supersede any inconsistent provisions of this Lease.
Appears in 1 contract
Leasehold Mortgage. (a) Tenant shall have the unrestricted right at any time and from time to time without Landlord's consent to mortgage the Property and the Leased Premises, including the Improvements, and its leasehold interest under this Lease (but not Landlord's fee interest), subject however to the limitations hereinafter set forth (including Landlord's prior security interest described in Paragraph 26 (b) below). Any such mortgage shall be permitted subject and subordinate to encumber the fee simple title in rights of Landlord hereunder. A mortgage of the LandProperty and/or Tenant's leasehold interest under this Lease is herein referred to as a "Leasehold Mortgage," and the party holding the Leasehold Mortgage (including any affiliate of such party) the "Leasehold Mortgagee."
(b) No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein, Building nor shall the provisions of this Lease pertaining to Leasehold Mortgages be binding upon Landlord, unless Landlord shall have been given written notice of the name and address of the Leasehold Mortgagee together with a true and correct copy of the Leasehold Mortgage, the note secured thereby, the security agreement related to any personal property located on or Premises associated with the Property, financing statements related to any personal property located on or associated with the Property, all as related to any obligations to the Leasehold Mortgage, plus such portions of any loan agreement and/or other written agreements between the Leasehold Mortgagee and Tenant which pertain to the direct use, maintenance, and/or operations of the Property; and, during the Term of the Lease, any modifications or amendments to any of the structuresabove referenced specific documents.
(c) So long as such Leasehold Mortgage shall remain in effect, improvementsthe following provisions shall apply:
(1) Landlord shall serve a copy of any notice, fixtures including a notice of default, required to be served on Tenant under this Lease upon such Leasehold Mortgagee at the address provided in the notice referred to in subsection (b) hereof, and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been served on the Leasehold Mortgagee.
(2) Upon the occurrence of an event of default, Landlord shall take no action to terminate this Lease without first giving to the Leasehold Mortgagee written notice thereof and, in the event of a monetary default, a period of fifteen (15) days after written notice to cure such default, or any other portion in the case of a non-monetary default, a period of ninety (90) days within which either (i) to obtain possession of the PremisesLeased Premises (including possession by a receiver) or (ii) to institute, including without limitation any Addition. Tenant shall only be permitted to mortgage prosecute and complete foreclosure proceedings or otherwise acquire Tenant's interest under this Lease, or (iii) to cure such default. Such Leasehold Mortgagee, within ninety (90) days after obtaining possession or acquiring Tenant's interest under this Lease, (the "Leasehold Mortgage Cure Period"), shall be required to cure all non-monetary defaults reasonably susceptible of being cured by such Leasehold Mortgagee; provided, however, that: (A) such Leasehold Mortgagee shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (B) nothing herein contained shall preclude Landlord, subject to the provisions of this Section, from exercising any rights or remedies under this Lease with respect to any other default by Tenant; (C) such Leasehold Mortgagee shall agree with Landlord in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such Leasehold Mortgagee; and (D) if a non-monetary default which the Leasehold Mortgagee is otherwise required to cure pursuant to the provisions of this subparagraph (c)(4) is not reasonably susceptible to cure within the Leasehold Mortgagee Cure Period, the Leasehold Mortgagee shall be deemed to be in compliance with the requirements hereof as long as it has commenced action to cure such mortgage default within the Leasehold Mortgagee Cure Period, and diligently pursues such cure to completion, provided that it completes the cure of such default within 120 days after receiving written notice of default. For purposes of this Section 22(c)(4), the phrase “non-monetary defaults” shall not apply to any failure of the Tenant to have undertaken or completed contemplated constructions related to the Property; or any failure of the Tenant to rebuild any damaged or destroyed Improvements located on the Property. Also, for purposes of this Section 22(c)(4), in the event that the Tenant shall have obtained judicial delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, or the Tenant shall have sought or been subjected to any bankruptcy proceedings which include or result in the delay or restriction upon any actions of the Leasehold Mortgagee to enforce any and all obligations owing to Leasehold Mortgagee, including foreclosing on the Leasehold Mortgage, then during any period of such delay or restriction the periods of time referred to in the first two sentences of this Section 22(c)(4) shall be suspended and shall resume running upon the expiration of any applicable appeal period in relation to the court orders and/or expiration periods which are applicable, if such court orders or expiration dates would permit the Leasehold Mortgagee to proceed with curing any defaults or foreclosing on the Leasehold Mortgage. Such Leasehold Mortgagee may become the legal owner and holder of Tenant's interest under this Lease by foreclosure or assignment in lieu of foreclosure; but no manner alter third party other than Leasehold Mortgagee shall be entitled to acquire Tenant’s interest under this Lease by foreclosure or assignment in lieu of foreclosure unless and until such proposed acquirer or assignee shall have satisfied the requirements set forth in Section 16(a)(1)(b)-(c).
(d) In the event of termination of this Lease prior to the expiration of the term, by reason of any default or for any other reason including, without limitation any rejection or disaffirmance pursuant to the Bankruptcy Code or pursuant to any insolvency or other law affecting creditors’ rights but excluding any termination by reason of condemnation or casualty as provided in Sections 15 and 16 herein or the default of Tenant and the failure to cure such default by the Leasehold Mortgagee after having notice thereof as provided in subparagraph (c)(4) above as a result of such bankruptcy proceeding, Landlord shall serve upon the Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Such Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions:
(1) Upon written request of the Leasehold Mortgagee within sixty (60) days after service of such notice that the Lease has been terminated, Landlord shall enter into a new lease of the Leased Premises with such Leasehold Mortgagee, or its designee, as set forth in clause (2) below. If the new lease is to be with an individual or entity other than the Leasehold Mortgagee, as a direct party, then such individual or entity, as designee of the Leasehold Mortgagee, shall have satisfied the requirements set forth in Section 16(a)(1)(b)-(d).
(2) Such new lease shall be effective on the date of termination of this Lease and shall be for the remainder of the term of this Lease, at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Such new lease shall require the tenant thereunder to perform all unfulfilled obligations of Tenant under this Lease which are reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the tenant named therein shall pay all sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay the reasonable expenses (including but not limited to attorneys’ fees and costs) incurred by Landlord in connection with such defaults and termination, the recovery of possession of said Leased Premises and the preparation, execution and delivery of such new lease. Upon execution and delivery of such new lease, such tenant shall be entitled to an adjustment in the amount otherwise owed pursuant to the terms of this paragraph, such adjustment to be equal to the net income, if any, derived by Landlord from the Leased Premises during the period from the date of termination of this Lease to the date of execution of the new Lease.
(3) Any such new lease shall maintain the same priority as this Lease with regard to any Leasehold Mortgage affecting the Property or any part thereof or any other rights, liens or encumbrances thereon. The provisions of the immediately preceding sentence shall be self-executing; provided, however, Landlord shall execute such reasonable documents as are necessary to effectuate the foregoing.
(e) Except as otherwise provided in this Lease, this Lease may not be modified, amended, or canceled by the mutual agreement of Landlord and Tenant or surrendered without the express written consent of the Leasehold Mortgagee. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
(f) If Landlord and Tenant shall acquire the interest of the other hereunder, this Lease shall remain outstanding and no merger of the leasehold into the fee interest shall be deemed to have occurred.
(g) If any Leasehold Mortgagee shall acquire title to Tenant's interest under this Lease by foreclosure, assignment in lieu of foreclosure or otherwise, or under a new lease pursuant to subsection (d) above, the same shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate thereby created, and such Leasehold Mortgagee may assign such interest under this Lease or in such new lease (subject to the terms of Paragraph 16 (a)(i) regarding assignment) and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease or in such new lease contained on Tenant's or Tenant's part to be performed and observed from and after the date of such assignment; provided, however, that the assignee of such Leasehold Mortgagee shall have expressly assumed this Lease or such new lease and written evidence of such assumption shall have been submitted to Landlord.
(h) Landlord acknowledges that as between Landlord and Leasehold Mortgagee, its nominee or a purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated notwithstanding the rejection of the Lease by Tenant or its representative in any proceeding under the Bankruptcy Reform Act of 1978 (the "Bankruptcy Code"), as amended, or any other insolvency law, provided that Leasehold Mortgagee, its nominee or a purchaser at a foreclosure sale confirms in writing that it is bound by the terms and conditions of the Lease to the same extent as Tenant named therein.
(i) Each Leasehold Mortgagee shall be given notice of any litigation, arbitration or other proceeding relating to this Lease, nor impact Landlord's rights as Lease and any dispute between the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present parties thereto and Landlord shall have the right to review intervene in any such litigation, arbitration or other proceeding, but only to the extent of its interest as mortgagee, as its interest may appear, and approve of any leasehold mortgage and any other documents to be recorded in relation not as a direct party to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Landlitigation, Building arbitration or the Premisesother proceeding. Landlord agreesIn any event, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee each Leasehold Mortgagee shall receive a copy of all notices any award or decision made in such litigation, arbitration or other proceeding.
(j) In the event of default made by Landlord upon Tenant under in any Leasehold Mortgage, and regardless of the enforcement of Leasehold Mortgagee's rights thereunder, Leasehold Mortgagee shall not have the right to remove any property, including any buildings, equipment or other improvements that constitute its collateral, from the Leased Premises. At the termination of this Lease, to permit all such leasehold mortgagee an opportunity to cure any such defaults, which in no event improvements shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser be the property of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 1 contract
Leasehold Mortgage. Tenant shall not be permitted (A) Lessee may from time to encumber time, and with the fee simple title prior, written notice to Lessor, secure financing, debt offering, or general credit lines from banks, insurance companies, governmental or quasi-governmental entities or other lenders (hereinafter, a “Leasehold Mortgagee”), granting to such Leasehold Mortgagee as security for such financing, debt offering or general credit lines a mortgage encumbering Lessee’s leasehold interest in the LandLand (which may include a collateral assignment of Lessee’s leasehold interest in the Land with rights of reassignment and/or a security or mortgage interest in the Building and the personal property of Xxxxxx) (hereinafter a “Leasehold Mortgage”).
(B) Upon the written request of Xxxxxx delivered as a notice in accordance with this Lease, Building Xxxxxx agrees to execute such documents or Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant instruments as shall only be permitted evidence Lessor’s consent to mortgage Tenant's a Leasehold Mortgage and/or security interest in Lessee’s leasehold interest under this LeaseLease and Xxxxxx’s FF&E, including but not limited to Lessee’s conditional assignment of this Lease to Leasehold Mortgagee, and Lessor will enter into good faith negotiations with Leasehold Mortgagee for the creation of a non-disturbance and recognition agreement and estoppel (a “Lessee SNDA”), if required by Leasehold Mortgagee, which such mortgage Lessee SNDA shall in no manner alter provide to Leasehold Mortgagee the terms same rights to notice of and conditions time to cure any default of Lessee as provided to Lessee under the provisions of this Lease. Lessor and Lessee agree to execute or make such further modifications or amendments to this Lease as a prospective or existing holder of any Leasehold Mortgage may reasonably request, nor impact Landlord's provided that no such modification or amendment shall require Lessor to subordinate or encumber the Lessor’s fee interest in the Land to such Leasehold Mortgage and no such modification or amendment shall materially and adversely modify the material terms of this Lease or Lessor’s rights or remedies hereunder. A failure of Lessor to respond in writing to such a request for consent within thirty (30) business days of such initial request and within five (5) days following a subsequent written “reminder” request shall be deemed consent by Lessor to such request or an acceptance of such document, as the owner case may be.
(C) Lessor shall give to Leasehold Mortgagee (provided that Leasehold Mortgagee shall have given to Lessor a notice specifying such holder’s name and address) a copy of any notice, consent, approval, request, demand or communication given to Lessee under this Lease at the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by same time as and whenever any such leasehold mortgage. In the event Tenant desires notice shall thereafter be given by Lessor to obtain a leasehold mortgageLessee.
(D) If Lessor shall give any such notice, Tenant then Leasehold Mortgagee shall present and Landlord shall (provided that it notifies Lessor of its intention to do so) thereupon have the right to review and approve remedy an Event of any leasehold mortgage and any other documents Default or to cause such Event of Default to be recorded in relation remedied within the same time period available to Lessee hereunder. Lessor will accept performance by Leasehold Mortgagee with the same force and effect as though performed by Xxxxxx. No such leasehold mortgage prior Event of Default shall be deemed to their record exist and Lessor shall not exercise any rights Lessor may have as a result of such Event of Default as long as such holder shall cure, if a cure is possible, the claimed Event of Default. Under all circumstances, a Rent Default and a Reimbursement Default be deemed to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request be an Event of Default for which a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documentsis possible.
Appears in 1 contract
Samples: Ground Sublease Agreement (Li-Cycle Holdings Corp.)
Leasehold Mortgage. (a) Tenant, and any successor or assign of Tenant, may, without Landlord's consent, from time to time pledge, mortgage or encumber Tenant's interest in the Lease and/or the leasehold estate demised hereunder. Any such pledge, deed of trust, mortgage or encumbrance upon the Lease or the leasehold estate demised hereunder, as the same may be extended, modified, amended or replaced, is herein referred to as a "Leasehold Mortgage." There shall be no limitation or restriction upon (i) the number of separate Leasehold Mortgages Tenant may place on the Lease and/or the leasehold estate demised hereunder, or (ii) the principal amount and other sums secured by any such Leasehold Mortgage; provided, however, that the aggregate principal amounts of all Leasehold Mortgages outstanding at any one time during the Term shall in no event exceed seventy-five percent (75%) of the fair market value of the Hotel with respect to the Hotel. Such principal amount or other sums may also be secured by other mortgages, deeds of trust or security agreements. Without limiting the generality of the foregoing, any Leasehold Mortgage may secure loans and advances other than for the construction on the Leased Premises of the improvements herein contemplated; and the Leasehold Mortgage may secure loans and advances for the construction and improvement of other properties in other locations. Any Leasehold Mortgage shall by its terms be made expressly subject and subordinate to all of the provisions, covenants, conditions, exceptions and reservations herein contained. Landlord shall not be permitted bound to encumber recognize any Leasehold Mortgagee unless such Leasehold Mortgagee or Tenant shall have notified Landlord of the fee simple title existence of such Leasehold Mortgage and of the name and address of such Leasehold Mortgagee.
(b) Landlord hereby agrees with and for the benefit of each Leasehold Mortgagee and the heirs, personal representatives, successors and assigns of each Leasehold Mortgagee:
(i) When giving notice to Tenant with respect to any default under the Lease or any exercise of any right to terminate the Lease, Landlord will also give a copy of such notice by registered or certified mail to each Leasehold Mortgagee at the address of each Leasehold Mortgagee furnished to Landlord; provided, however, Landlord shall not at any time be required to give a copy of such notice to more than three (3) Leasehold Mortgagees under not more than three (3) Leasehold Mortgages, nor shall Landlord be required to give a copy of such notice to more than one Leasehold Mortgagee with respect to any one Leasehold Mortgage. No such notice to Tenant shall be deemed to have been duly given, nor shall such notice be effective unless such notice is also given in the Land, Building or Premises or said manner to each such Leasehold Mortgagee as aforesaid.
(ii) In case Tenant shall default in respect of any of the structuresprovisions of the Lease, improvementsany Leasehold Mortgagee shall have the right, fixtures but not the obligation, to cure such default within the period provided for herein whether the same consists of the failure to pay Rental or the failure to perform any other portion matter or thing which Tenant is required to do or perform under the Lease, and Landlord shall accept performance by or on behalf of such Leasehold Mortgagee(s) as though, and with the same effect as if, the same had been done or performed by Tenant. A Leasehold Mortgagee will have a period of time after the service of such notice upon it within which to cure the default specified in such notice, or cause it to be cured, which is the same period for cure, if any, as is given to Tenant under the Lease in respect of the Premisesspecified default after the giving of such notice to Tenant, including without limitation plus an additional period of thirty (30) days. In the event of a default (or in the event that Landlord is seeking to terminate the Lease by reason of a default) which cannot reasonably be cured within said period, the period of time for cure shall be extended for so long as any Addition. Tenant shall only be permitted Leasehold Mortgagee is diligently proceeding to mortgage Tenant's interest under this Leaseattempt to cure such default, which such mortgage shall in no manner alter provided that the terms and conditions of this Lease, nor impact Landlord's rights as Leasehold Mortgagee has begun proceedings to cure the owner of default within the Premisessaid period. In no event shall a default due to a failure to pay Minimum Rental (or other sums payable by Tenant hereunder to Landlord) be deemed a default which cannot be reasonably cured within such additional period of thirty (30) days.
(iii) If any default by Tenant under the Landlord's fee simple title in the Land, Building or the Premises or any Lease is of such a nature that a Leasehold Mortgagee must first obtain possession of the structuresLeased Premises in order to effect a cure, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have no right, and shall take no action, to effect a termination of the right Lease until the Leasehold Mortgagee has had a reasonable opportunity either (a) to review cure such default, if the default is reasonably susceptible of being cured by Leasehold Mortgagee after Leasehold Mortgagee obtains possession of the Leased Premises by appointment of a receiver, institution of foreclosure proceedings or otherwise, or (b) to institute and approve with reasonable diligence complete foreclosure or other appropriate proceedings to acquire possession of any and control over Tenant's leasehold mortgage and any other documents to be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title estate in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, if the default is not reasonably susceptible of being cured by Leasehold Mortgagee even after it obtains possession; but upon condition that the Leasehold Mortgagee shall deliver to permit such leasehold mortgagee an opportunity to cure any such defaultsLandlord, which in no event shall exceed later than sixty (60) business days and after the expiration of the aforesaid grace period applicable to recognize Leasehold Mortgagee as to the particular default, a recordable instrument by which Leasehold Mortgagee undertakes that (x) during the pendency of any such mortgagee foreclosure or any purchaser of other proceedings with respect to Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations until the interest of Tenant in the Tenant have been paid in full. Tenant Lease shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.terminate and
Appears in 1 contract
Samples: Ground Lease (Mutual Benefit Chicago Marriott Suite Hotel Partners L P)
Leasehold Mortgage. Tenant shall not be permitted (A) Lessee may from time to encumber time, and with the fee simple title in the Landprior, Building written notice to Lessor, secure financing, debt offering, or Premises general credit lines from banks, insurance companies or any of the structuresother lenders, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage Tenant's interest under this Lease, which such mortgage shall in no manner alter the terms and conditions of this Lease, nor impact Landlord's rights as the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have the right to review and approve of any leasehold mortgage and any other documents to be recorded in relation granting to such leasehold banks, insurance companies, or other lenders (hereinafter, a “Leasehold Mortgagee”) as security for such financing or general credit lines a mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's encumbering Lessee’s leasehold interest in the Premises (which may include a collateral assignment of Lessee’s leasehold interest in foreclosure as the tenant under Premises with rights of reassignment (hereinafter a “Leasehold Mortgage”) and/or a security interest in Lessee’s FF&E; provided any Leasehold Mortgage shall not materially affect Lessor’s rights pursuant to this Lease.
(B) Upon request of Lessee, Lessor agrees to execute such documents or instruments as shall evidence Lessor’s consent to a Leasehold Mortgage and/or security interest in Lessee’s FF&E, including but not limited to a conditional assignment of this Lease to Leasehold Mortgagee and a subordination, non-disturbance, and attornment agreement, if required by Leasehold Mortgagee, and give Leasehold Mortgagee the same right to notice of and time to cure any default of Lessee as is provided Lessee under the provisions of this Lease. Lessor and Lessee agree to execute or make such further modifications or amendments to this Lease as a prospective or existing holder of any Leasehold Mortgage may request, provided that any such mortgagee modification or purchaser in foreclosure complies with each amendment shall not materially and every term and provision adversely modify any material terms of this Lease. A failure of Lessor to respond in writing to such a request for consent within thirty (30) business days of such request shall be deemed consent by Lessor to such request or an acceptance of such document, as the case may be.
(C) Lessor shall give to Leasehold Mortgagee (provided Leasehold Mortgagee shall have given to Lessor a notice specifying such holder’s name and address) a copy of any notice, consent, approval, request, demand or communication given to Lessee under this Lease at the same time as and whenever any such notice shall thereafter be given by Lessor to Lessee.
(D) If Lessor shall give any such notice, then Leasehold Mortgagee shall (provided that all outstanding obligations it notifies Lessor of its intention to do so) thereupon have the Tenant right to remedy a Default or to cause such Default to be remedied within the same time period available to Lessee hereunder. Lessor will accept performance by Leasehold Mortgagee with the same force and effect as though performed by Lessee. No such Default shall be deemed to exist and Lessor shall not exercise any rights Lessor may have been paid in full. Tenant as a result of such Default as long as such holder shall reimburse Landlord's reasonable out-of-pocket costscure, including attorneys feesif a cure is possible, to review such documentsthe claimed Default.
Appears in 1 contract
Leasehold Mortgage. Tenant A. The State acknowledges that the purchasers of the Bonds and/or a provider of credit enhancement for the Bonds and/or a provider of Private Debt may require ABPC to mortgage its leasehold estate under this Lease as a precondition to their purchase and/or credit enhancement, respectively, of the Bonds or the provision of such Private Debt. The State hereby consents to the granting of a leasehold mortgage for such purpose.
B. If ABPC does mortgage its leasehold estate under this Lease to secure the interests of the holders of the Bonds and/or a credit enhancer of the Bonds and/or a provider of Private Debt, the Trustee, acting on behalf of the holders of the Bonds and/or such credit enhancement provider and/or such Private Debt provider, as the Trust Indenture shall provide (the “Leasehold Mortgagee”), shall be entitled, in the event such Leasehold Mortgagee forecloses upon or otherwise acquires the leasehold interest of ABPC, to sell, sublet, assign, or otherwise dispose of such leasehold interest, provided the assignee or other party acquiring the leasehold interest is approved by the State, which approval shall not be permitted to encumber unreasonably withheld nor decision delayed. In the fee simple title event ABPC is in the Land, Building or Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage Tenant's interest default under this Lease, which the State and ABPC expressly agree that the Leasehold Mortgagee shall be entitled to enter upon the Leased Premises, to perform such mortgage curative acts as may be necessary, and/or to operate and manage the Leased Premises, either in its own name and right or on behalf of ABPC
C. The State shall send separate written notice by registered or certified mail, postage prepaid, to the Leasehold Mortgagee at such address as the Leasehold Mortgagee shall designate, of any of the following events:
(a) The failure of ABPC to perform or comply with any of the provisions or covenants contained in no manner alter the terms and conditions of this Lease, nor impact Landlord's rights the cessation of business operations by ABPC for reasons other than maintenance, replacement, or repair of the Leased Premises, the abandonment of the Leased Premises by ABPC, or any other event which constitutes a default by ABPC under this Lease or for which this Lease may be terminated (any of the foregoing shall constitute a “default” for purposes of this Section 53); or
(b) The occurrence of any event which gives rise to an election by ABPC or the State to cancel or terminate this Lease. All notices shall be given promptly upon the occurrence of any event requiring notice.
D. In the event ABPC fails to cure any default of this Lease within the time allowed hereunder, the State shall provide the Leasehold Mortgagee with separate written notice of the failure of ABPC to cure such default within the time allowed, and the Leasehold Mortgagee shall be allowed an additional period of at least 30 days to cure such default (including taking possession of the Leased Premises if necessary to effect the cure) or to institute foreclosure proceeding (or otherwise acquire title to ABPC’s leasehold estate under this Lease). If such default is one which cannot reasonably be cured within 30 days, such default by ABPC shall not result in a termination of this Lease provided the Leasehold Mortgagee is paying all Rent and proceeding to cure such default by ABPC or to foreclose upon ABPC’s leasehold estate. The State grants the Leasehold Mortgagee the right to enter upon the Leased Premises to cure any default by ABPC. The State shall accept any curative acts performed by the Leasehold Mortgagee as though they were performed timely by ABPC.
E. No amendment to this Lease shall be made without the prior express written consent of the Leasehold Mortgagee.
F. The Leasehold Mortgagee shall not be liable for ABPC’s obligations under this Lease unless and until the Leasehold Mortgagee becomes the owner of ABPC’s leasehold estate under this Lease by foreclosure or by deed in lieu of foreclosure, and thereafter shall remain liable for such obligations only so long as it remains the owner of the Premises. In no event leasehold estate.
G. The State shall execute and deliver to the Landlord's fee simple title Leasehold Mortgagee, upon request from time to time, an estoppel certificate pertaining to the status of payments and the performance of obligations hereunder and to such other information as the Leasehold Mortgagee may reasonably require.
H. The Leasehold Mortgagee shall enjoy the rights granted under this Section 53 until such time as the Bonds are repaid in full and the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have the right to review and approve of any leasehold mortgage and any other documents to securing such payment is released. The Leasehold Mortgagee shall be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do entitled but not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgageerequired, to provide to exercise such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documentsrights within its sole discretion.
Appears in 1 contract
Samples: Construction Lease Agreement (Standard Parking Corp)
Leasehold Mortgage. Tenant shall not have the right to mortgage the Leasehold under a Leasehold Mortgage and to assign the entire Leasehold as collateral security for such Leasehold Mortgage. The parties hereby acknowledge and agree that Landlord's right, title and interest in and to the Property are and at all times shall be permitted superior to encumber any Leasehold Mortgage. In addition, Landlord shall have no obligation to guarantee any of Tenant's indebtedness or other obligations secured by any Leasehold Mortgage. If Tenant shall mortgage the fee simple Leasehold, in accordance with Section 23.5, Landlord agrees that so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holders of any such Leasehold Mortgage to Landlord, the following provisions shall apply:
(a) Landlord agrees that if the Leasehold Mortgagee acquires title to the Leasehold by reason of any event of default by Tenant, if requested by and at the cost of such Leasehold Mortgagee within thirty (30) days of the Leasehold Mortgagee acquiring title, Landlord will, upon the Leasehold Mortgagee curing all past monetary defaults of Tenant, enter into a new lease of the Property with the Leasehold Mortgagee for the remainder of the Term, effective as of the date of such termination, at the Rent and upon the terms, provisions, covenants and agreements as herein contained and subject to the rights, if any, of any parties then in possession of any part of the LandProperty;
(b) Nothing herein contained shall require the Leasehold Mortgagee to enter into a new lease;
(c) Foreclosure of the Leasehold Mortgage, Building or Premises or any sale or conveyance of the structuresLeasehold from Tenant to the Leasehold Mortgagee in lieu thereof, improvements, fixtures shall not require the consent of Landlord or constitute a breach of any other portion provision of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage Tenant's interest or a default under this Lease, provided the Leasehold Mortgagee satisfies the following conditions upon such foreclosure, sale or conveyance Landlord shall recognize the purchaser or other transferee in connection therewith as Tenant hereunder: (x) such Leasehold Mortgagee, in good faith, has promptly notified Landlord of its intent to cure any default of Tenant, and thereafter, (i) in the event of a default which can be cured by the payment of money, has cured such mortgage default within thirty (30) days after notice thereof has been given to such Leasehold Mortgagee, or (y) in the event of any other default, has promptly commenced to cure such default and is prosecuting the same to completion with reasonable diligence, subject to force majeure; or (ii) if possession of the Property is required in order to cure such default, or if such default is not susceptible of being cured by such Mortgagee, as long as such Mortgagee, in good faith, shall in no manner alter have notified Landlord and Tenant that such Mortgagee intends to institute proceedings under its Mortgage and, thereafter, as long as such proceedings shall have been promptly instituted and shall be prosecuted with reasonable diligence and, after having obtained possession, such Mortgagee prosecutes the cure to completion with reasonable diligence.
(d) In the event the Leasehold Mortgagee becomes Tenant under this Lease or under any new lease, the Leasehold Mortgagee shall be personally liable for the obligations of Tenant under this Lease or a new lease for the period of time that the Leasehold Mortgagee remains Tenant hereunder. The Leasehold Mortgagee's right thereafter to assign this Lease or the new lease shall be subject to the terms and conditions of this Lease, nor impact Landlord's rights as the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. In the event Tenant desires to obtain a leasehold mortgage, Tenant shall present and Landlord shall have the right to review and approve of any leasehold mortgage and any other documents to be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure any such defaults, which in no event shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser of Tenant's leasehold interest in the Premises in foreclosure as the tenant under this Lease, provided that such mortgagee or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documents.
Appears in 1 contract
Samples: Lease (Golf Trust of America Inc)
Leasehold Mortgage. The parties acknowledge that Tenant intends to mortgage its leasehold interest created hereunder. Notwithstanding anything else contained herein to the contrary, with respect to such a leasehold mortgage and the mortgagee ("Mortgagee") thereunder, Landlord and Tenant agree that:
(a) They shall together execute a Memorandum of Lease in written form, which shall be recorded in the Office of the Recorder of County, such that a title insurance company may issue its mortgagee's title insurance policy on the recorded leasehold estate.
(b) Landlord shall send to Mortgagee a copy of any notice it sends to Tenant hereunder, provided that Mortgagee has first submitted Mortgagee's address to Landlord in writing.
(c) Tenant shall not be permitted have no right to encumber amend, modify, cancel or terminate this Lease without the fee simple title in the Land, Building or Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition. Tenant shall only be permitted to mortgage TenantMortgagee's interest under this Lease, which such mortgage shall in no manner alter the terms and conditions of this Lease, nor impact Landlord's rights as the owner of the Premises. In no event shall the Landlord's fee simple title in the Land, Building or the Premises or any of the structures, improvements, fixtures or any other portion of the Premises, including without limitation any Addition, be encumbered by any such leasehold mortgage. prior written consent thereto.
(d) In the event of any default on the part of Tenant desires to obtain a leasehold mortgagehereunder, Tenant shall present and Landlord shall have the right to review give Mortgagee written notice thereof, and approve of any leasehold mortgage and any other documents to be recorded in relation to such leasehold mortgage prior to their record to confirm that such documents do not encumber Landlord's fee simple title in the Land, Building or the Premises. Landlord agrees, upon the request of a leasehold mortgagee, to provide to such leasehold mortgagee a copy of all notices of default made by Landlord upon Tenant under this Lease, to permit such leasehold mortgagee an opportunity to cure said default for a period of not less than thirty (30) days beyond, or longer than, any period given to Tenant to cure such defaults, which in no event default.
(e) If the Mortgagee shall exceed sixty (60) business days and to recognize such mortgagee or any purchaser take possession of Tenant's leasehold interest in estate, by foreclosure or otherwise, then (I) Mortgagee shall not be liable for any previous defaults of Tenant occurring prior to the Premises in foreclosure as time Mortgagee takes possession, and (ii) to the tenant under this Leaseextent Mortgagee's right to assign or sublet all or any portion of the premises is conditioned on the prior consent of Landlord, provided Landlord agrees that such mortgagee consent shall not be unreasonably withheld or purchaser in foreclosure complies with each and every term and provision of this Lease and that all outstanding obligations of the Tenant have been paid in full. Tenant shall reimburse Landlord's reasonable out-of-pocket costs, including attorneys fees, to review such documentsdelayed.
Appears in 1 contract
Samples: Lease Agreement