Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control. (a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor. (b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply: (i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served. (ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee. (iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity. (iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure. (v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions: (A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows: (B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease. (vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail. (vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect. (viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee. (ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise. (c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder. (d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 6 contracts
Samples: Hotel Lease Agreement (Moody National REIT II, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT II, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until
(i) the FCRHA has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non- monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 6 contracts
Samples: Deed of Lease, Deed of Lease, Deed of Lease
Leasehold Mortgages. To Subject to the extent any provision in requirements of this Article 24 conflicts XX, Lessee may assign or is inconsistent with encumber Lessee’s interest in the Leasehold as security for any other provision debt or obligation of Lessee [to an Institutional Investor] by a Leasehold Mortgage containing such terms and provisions as Lessee may, in its sole discretion, deem fit and proper; provided, however, that all right, title and interest acquired by such Leasehold Mortgagee under such Leasehold Mortgage from Lessee shall be subject to this Lease and to the rights and interests of Lessor herein and to the rights of any holder of a Fee Mortgage arising under or by virtue of this Lease. Lessor shall have the right to request and, Lessee shall use its commercially reasonable efforts to obtain, a non-disturbance agreement from any Leasehold Mortgagee, in favor of Lessor and any holder of a Fee Mortgage, confirming that the provisions of this Lease, including the provisions of this Article 24 shall control.
(a) LesseeSection 20.2, will be honored by and binding upon any Leasehold Mortgagee, and its successors further containing such other terms and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long conditions as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgagea Fee Mortgage shall reasonably request, at the address provided for in clause (vi) including attornment of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease Fee Mortgage in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow Fee Mortgage succeeds to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by interest of Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 3 contracts
Samples: Lease Agreement (CorEnergy Infrastructure Trust, Inc.), Membership Interests Purchase Agreement (Arc Logistics Partners LP), Membership Interests Purchase Agreement (CorEnergy Infrastructure Trust, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts conflict or is are inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 3 contracts
Samples: Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage Collateral Agent, acting at the direction of the Applicable Authorized Representative, each Grantor shall execute and deliver a mortgage, deed of trust, assignment of leases and rents, or other security document (a “Leasehold Mortgage”) granting a Lien on each parcel of real property and the improvements thereto leased by any Grantor (a “Leasehold Mortgaged Property”) under the laws of the applicable jurisdiction to cause such Leasehold Mortgaged Property to be prior subjected to a Lien having at least the priority described in lien thereto Section 4.3 securing the Obligations and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien will take all such actions as shall be and be deemed customary in a transaction of this nature to be void grant and perfect such Lien, including to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including (i) the filing and recording of no force or effect.
financing statements, fixture filings, the Leasehold Mortgage and other documents, (viiiii) No agreement between Lessor conducting lien searches and Lessee modifying, canceling or surrendering this Lease shall be effective without providing title insurance insuring the prior written consent first priority Lien of the leasehold mortgagee.
Mortgage subject only to Permitted Liens and including such endorsements as are customarily issued in connection with transactions of this nature, (ixiii) The fee title providing legal opinions and (iv) obtaining landlords' consents). Notwithstanding the foregoing, the Grantors shall not be required to execute and deliver a Leasehold Mortgage with respect to any Leasehold Mortgaged Property if such Grantor shall have determined in good faith that the higher of (a) the book value or (b) the fair market value of the requested Leasehold Mortgage is less than $3,000,000 and provided evidence of such determination to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseCollateral Agent.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc)
Leasehold Mortgages. To the extent any provision (a) Notwithstanding anything contained in this Article 24 conflicts XXVI or is inconsistent with any other provision of this LeaseLease to the contrary, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign Xxxxxx's interest in this Lease and the leasehold interest created hereby may at any time and from time to time be, directly or indirectly, subjected to one or more Leasehold Mortgages upon prior notice to Landlord, but without having to obtain the consent of Lessor. LesseeLandlord, and Xxxxxx's interest in this Lease may at any time, directly or indirectly, be assigned to a Leasehold Mortgagee as collateral security, provided, however, that notwithstanding anything to the contrary contained in this Section or elsewhere in this Lease: (i) no Leasehold Mortgage or any extension thereof shall be a lien or encumbrance upon the estate or interest of Landlord in and to the Premises (collectively, the "Superior Interests"), (ii) such Leasehold Mortgage shall be subject and subordinate at all times to such Superior Interests, and (iii) there shall be no obligation of Landlord whatsoever to subordinate its successors interest in any of the Superior Interests to any Leasehold Mortgage or to "join in" any Leasehold Mortgage. No Leasehold Mortgagee shall be entitled to the benefits of this Section, unless and assigns, until a true copy of the original of each instrument creating and effecting such Leasehold Mortgage and written notice containing the name and post office address of the Leasehold Mortgagee thereunder shall have the unconditional right been delivered to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of LessorLandlord.
(b) If LesseeLandlord shall give to each Leasehold Mortgagee whose name and address shall have been provided to Landlord, or Lessee’s successors or assigns, shall mortgage notice of any Event of Default and each notice of termination of this Lease in compliance with at the provisions of this Sectionsame time as, then so long as and whenever, any such mortgage notice shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect be given by Landlord to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Tenant, and no such notice of an Event of Default or notice of termination by Lessor to Lessee hereunder Landlord shall be deemed to have been duly given to Tenant unless and until a copy thereof has shall have been so servedgiven to each such Leasehold Mortgagee. Each Leasehold Mortgagee shall thereupon have a period of ten (10) Business Days more in the case of an Event of Default in the payment of Rent, and thirty (30) days more in the case of any other Event of Default which is capable of being cured by the Leasehold Mortgagee without taking possession of the Premises, after notice of such Event of Default is given to such Leasehold Mortgagee, for curing the Event of Default, or causing the same to be cured by Xxxxxx, and Landlord shall not have the right to terminate this Lease or to reenter the Premises under the provisions of Article XIV, until the cure period has expired without a cure having been made, provided, however, that nothing contained in this Section shall be deemed to impose upon any Leasehold Mortgagee the obligation to perform any obligation of Tenant under this Lease or to remedy any Event of Default. Landlord shall accept performance by a Leasehold Mortgagee of any covenant, condition, or agreement on Tenant's part to be performed under this Lease with the same force and effect as though performed by Xxxxxx. Notwithstanding the forgoing to the contrary, no performance by or on behalf of a Leasehold Mortgagee shall cause it to become a "mortgagee in possession" or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease.
(c) Notwithstanding the foregoing to the contrary, Landlord shall not have the right to terminate this Lease, or to reenter the Premises, by reason of an Event of Default by Xxxxxx, as long as:
(i) a Leasehold Mortgagee, in good faith, shall have commenced promptly to cure the Event of Default in question and prosecutes the same to completion with reasonable diligence and continuity, or
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect possession of the performance Premises is required in order to cure the Event of work required to be performedDefault in question, or of acts to be donea Leasehold Mortgagee, or of conditions to be remedied, if steps shall in good faith, (A) shall have been commenced within entered into possession of the time permitted therefor Premises with the permission of Tenant for such purpose, or (B) shall have notified Landlord of its intention to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) institute foreclosure proceedings to obtain possession directly or through a receiver, and within thirty (30) days of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) giving of such holder shall not be obligated to continue such possession or to continue notice commences such foreclosure proceedings, and thereafter prosecutes such proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, diligence and continuity or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by receives an assignment of this Lease in lieu of foreclosureforeclosure from Tenant, and, upon obtaining possession pursuant to clause (A) or clause (B) above, commences promptly to cure the Event of Default in question and prosecutes the same to completion with reasonable diligence and continuity.
(vd) In From and after the event date upon which Xxxxxxxx receives notice of the termination any mortgage by Tenant of its interest in this Lease prior to the expiration of the Term (includingLease, without limitation, in connection with a rejection of Landlord and Tenant shall not modify or amend this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 respect or cancel or terminate this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, than as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective provided herein without the prior written consent of the leasehold mortgageeLeasehold Mortgagee(s) specified in such notice.
(ixe) The fee title to In case of termination of this Lease or a reentry into the Leased Property and the leasehold estate created therein pursuant to Premises under the provisions of Article XIV, Landlord, shall give prompt notice thereof to each Leasehold Mortgagee under a Leasehold Mortgage whose name and address shall have been given to Landlord. Landlord, on written request of such Leasehold Mortgagee made any time within fifteen (15) days after the giving of such notice by Landlord and at such Leasehold Mortgagee's expense, shall execute and deliver within fifteen (15) days thereafter a new lease of the Premises to the Leasehold Mortgagee, or its nominee or designee, for the remainder of the Term, upon all the covenants, conditions, limitations and agreements herein contained, provided, however, that the Leasehold Mortgagee or its nominee or designee shall (i) pay to Landlord, simultaneously with the delivery of such new lease, all unpaid Base Rent and Additional Rent due under this Lease up to and including the date of the commencement of the term of such new lease and all expenses including, without limitation, reasonable attorneys' fees and disbursements and court costs, incurred by Landlord in connection with the Event of Default by Tenant, the termination of this Lease and the preparation of the new lease, and (ii) deliver to Landlord a statement, in writing, acknowledging that Landlord, by entering into a new lease with the Leasehold Mortgagee or its nominee or designee, shall not merge but shall always have or be kept separate and distinctdeemed to have waived any rights or remedies with respect to Event(s) of Default existing under this Lease, notwithstanding that any such Event(s) of Default existed prior to the union execution of the new lease, and that the breached obligations which gave rise to the Event(s) of Default and which are so susceptible of being cured by Leasehold Mortgagee or its nominee or designee are also obligations under said new lease, but such estates in Lesseestatement shall be subject to the proviso that the applicable grace periods, Lessorif any, or in any other person by purchase, operation provided under the new lease for curing such obligations shall begin to run as of law or otherwisethe first day of the term of said new lease.
(cf) In the event of any lawsuit, arbitration, appraisal, or other dispute resolution proceeding, or any proceeding relating to the determination of Rent or any component thereof between Landlord and Tenant, then (i) Landlord shall notify each Leasehold Mortgagee of whom Landlord shall have been given notice of the commencement thereof, which notice shall enclose copies of all notices, papers, and other documents related to such proceeding to the extent given or received by Landlord, and (ii) except to the extent provided otherwise in the Leasehold Mortgage, each Leasehold Mortgagee shall be entitled to participate in such proceeding. Such participation may, to the extent so desired by the Leasehold Mortgagee, include (x) receiving copies of all notices, demands, and other written communications and documents at the same time they are served upon or delivered to Tenant, (y) filing any papers contemplated or permitted by such proceedings, and (z) attending and participating in all hearings, meetings, and other sessions or proceedings relating to such dispute resolution.
(g) Except as provided in Subsection (e) above, no Leasehold Mortgagee, or any person acting for or on behalf of a Leasehold Mortgagee, or any person acquiring Tenant's leasehold estate pursuant to any foreclosure or other exercise of a Leasehold Mortgagee's rights under its Leasehold Mortgage or assignment in lieu of foreclosure, shall have any liability under or with respect to this Lease or a new lease except during such period as such person is Tenant under this Lease or a new lease. Notwithstanding anything to the contrary herein, such person's liability shall not in any event extend beyond its interest in this Lease or a new lease and shall terminate upon such person's assignment or abandonment of this Lease or the new lease.
(h) No Leasehold Mortgage shall affect or reduce any rights or obligations of either party under this Lease. All such rights and obligations shall continue in full force and effect notwithstanding any Leasehold Mortgage.
(i) There shall be no limitation whatsoever on the amount or nature of any obligation secured by a Leasehold Mortgage, the purpose for which the proceeds of any such financing may be applied, the nature or character of any Leasehold Mortgagee, the subsequent assignment, transfer or hypothecation of any Leasehold Mortgage, or the creation of participation or syndication interests with respect to any Leasehold Mortgage.
(j) If any leasehold mortgagee actual or prospective Leasehold Mortgagee requires any modification(s) of this Lease, then Landlord shall, at Tenant's or such Leasehold Mortgagee's request and expense, promptly execute and deliver to Tenant such instruments in recordable form effecting such modification(s) as such actual or prospective Leasehold Mortgagee shall acquire title require, provided, however, that such modification(s) do not in any way alter the Rent payable hereunder or the Term hereof, or adversely affect Landlord's rights or increase Landlord's obligations hereunder to Lessee’s interest more than a de minimis extent.
(k) Upon request by Tenant or by any existing or prospective Leasehold Mortgagee, Landlord shall deliver to the requesting party, at such requesting party's cost and expense, such documents and agreements as the requesting party shall reasonably request to further effectuate the intentions of the parties with respect to Leasehold Mortgages as set forth in this Lease, including a separate written instrument in recordable form signed and acknowledged by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgageeLandlord setting forth and confirming, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability directly for the performance benefit of specified Leasehold Mortgagee(s), any or observance all rights of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderLeasehold Mortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Ground Lease, Ground Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and Section 10.05 and such other rights as are expressly granted to obtain the consent of LessorMortgagees in this Lease. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant after the foreclosure or transfer and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part caused to be performed and observed from and after the date of commenced such assignment, provided that cure) within such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.additional fifteen
Appears in 2 contracts
Samples: Deed of Lease, Comprehensive Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Lessee shall have the unconditional right to mortgagegrant leasehold mortgages and/or collateral assignments of this Agreement (collectively, pledge and/or assign this Lease without having to obtain the consent "Leasehold Mortgage") in favor of Lessor. Lesseeleasehold lenders of Lessee ("Leasehold Lender"), and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of recordevent, the following provisions shall apply:
(ia) LessorAny Leasehold Lender under any note or loan secured by a Leasehold Mortgage or collateral assignment of lease on Lessee’s interest (or any successor’s interest to Lessee’s interest), upon serving Lessee with any notice who succeeds to such interest by foreclosure, deed-in-lieu of defaultforeclosure, or otherwise, may take title to and shall have all of the rights of Lessee under this Agreement, including the right to exercise any renewal option(s) or purchase option(s) set forth in this Agreement, and to assign this Agreement as permitted herein.
(b) Lessor shall deliver to the Leasehold Lender (at the address specified herein, or at such other notice under the provisions of or with respect address as shall be designated in writing to this Lease, shall also serve Lessor) a copy of such any default notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice given by Lessor to Lessee hereunder under the Lease. No default notice from Lessor to Lessee shall be deemed to have been duly given effective as against Leasehold Lender unless and until a copy thereof has been so servedreceived by Leasehold Lender.
(iic) Any holder of such mortgage, in case If Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of defaults on any monetary obligations under this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of defaultAgreement, Lessor shall take no action to effect will accept a termination of this Lease without first giving to cure thereof by the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, Leasehold Lender within thirty (30) days after service Leasehold Lender’s receipt of written notice of such notice that the Lease has been terminateddefault. For non-monetary defaults, Lessor shall enter into will not terminate this Agreement for so long as the Leasehold Lender is diligently pursuing a new lease cure of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leasedefault, and shall be for the remainder if curing such non-monetary default requires possession of the term of this Lease and at the rent and upon all the agreementsProject, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, then Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required agrees to give the Leasehold Lender a reasonable time to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement obtain possession of the term of any new lease executed pursuant Project and to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under cure such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectdefault.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred, all proceeds from any loan secured by Xxxxxx’s interest in this Lease shall be used by Tenant only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Xxxxx at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Xxxxx and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge, and deliver any instruments reasonably requested by Xxxxxxxx to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by assignment in lieu or on behalf of foreclosure a Mortgagee of any covenant, condition or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained agreement on tenantTenant’s part to be performed hereunder with the same force and observed from effect as though performed by Xxxxxx, so long as such performance is made in accordance with the terms and after provisions of this Lease. Landlord shall not object to any temporary entry onto the date Premises by or on behalf of Mortgagee to the extent necessary to effect such assignmentMortgagee’s cure rights, provided that such assignee assumes entry is in compliance with all Applicable Laws. If possession of the obligations Premises or any part thereof is required in order to cure such Event of Lessee Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the form reasonably process of curing (or caused to be commenced such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by any leasehold mortgagee clause (d) of Lessee.this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises,
Appears in 2 contracts
Samples: Ground Lease, Ground Lease
Leasehold Mortgages. To SECTION 33.01. Tenant and every successor and assign of Tenant (including, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) is hereby given the extent right by Landlord in addition to any provision other rights herein granted, without Landlord's prior written consent, to mortgage its interest in this Article 24 conflicts Lease(s), or is inconsistent with any other provision of part or parts thereof, and any sublease(s) under one or more leasehold Mortgage(s), and assign this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its any sublease(s) as collateral security for such Mortgage (s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interest of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given so to mortgage such interest in this Lease, except as expressly provided herein. If Tenant and/or Tenant's successors and assignsassigns (including, shall have the unconditional right to mortgagebut not limited to, pledge and/or assign this Lease without having to obtain the consent any sublessee of Lessor. LesseeTenant, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(bbut only with Tenant's prior consent) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Mortgagee and the pertinent recording date with respect to such Mortgage(s), then Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(i) LessorA. There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
B. Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgageleasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, at after services of such notice upon it, to remedy or cause to be remedies the address provided for in clause (vi) of this Section 24.1(b)defaults complained of, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeTenant.
(iiiC. Anything herein contained notwithstanding, while such leasehold Mortgage(s) For remains unsatisfied of record, or until written notice of satisfaction is given by the purposes holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this ArticleLease, no event entitled Landlord to terminate this Lease, and if before the expiration of default thirty (30) days from the date of service of notice or termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall be deemed have notified Landlord of its desire to exist nullify such notice and shall have paid to Landlord all Basic Rent and additional rent and other payments herein provided for, and then in respect default, and shall have complied or shall commence the work of complying with all of the performance other requirements of work required to be performed, or of acts to be done, or of conditions to be remediedthis Lease, if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of not effect.
D. If the Landlord shall elect to terminate this Lease by reason of any default of Tenant, the leasehold Mortgagee(s) shall not only have the right to nullify and notice of termination by curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination of this Lease as fixed by Landlord in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than past non-monetary defaults, and provided further that the leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell Tenant's interest herein, the time of said Mortgagee to comply with the provisions of this Article 33 (except Section 33.01 (C) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity.
(ivE. Landlord agrees that the name of the leasehold Mortgagee(s) Notwithstanding anything herein contained may be added to the contrary, upon the occurrence "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the leasehold Mortgage(s) or collateral document shall so provide.
F. Landlord agrees that in the event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant other than for nonpayment of Rent or Additional Rent and other payments herein provided for, that Landlord will enter into a new lease of the Demised Premises with the leasehold Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of the date of such termination, at the Basic Rent and additional rent and upon the terms, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
(1) Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within fifteen (15) days after the date of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v2) In Said Mortgagee(s) or its nominee(s) shall pay to Landlord at the event time of the termination execution and delivery of this Lease prior to the expiration of the Term (includingsaid new lease, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney's fees to which Landlord shall have been subjected by reason of such default.
(3) Said Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease.
(A4) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Demised Premises to Tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease.
(B5) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of Tenant under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new terminated lease.
(vi6) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant The Tenant under such new lease for shall have the purposes of same right, title, and interest in accordance with and to the provisions of buildings and improvements on the Demised Premises as Tenant had under the terminated lease.
G. Landlord agrees promptly after submission to execute, acknowledge and deliver any agreements modifying this Lease requested by any leasehold Mortgagee(s), provided that such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into modification does not decrease Tenant's obligations or decrease Landlord's rights pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for this Lease.
H. The proceeds from any insurance policies or arising from a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any leasehold Mortgagee(s) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or an part, of Tenant's are of such proceeds pursuant to such Mortgage(s).
I. The leasehold Mortgagee(s) shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagee(s) shall not merge but elect to intervene or become a party to such proceedings, the leasehold Mortgagee(s) shall always be kept separate receive notice of, and distinct, notwithstanding the union a copy of such estates any award or decision made in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisesaid arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (c) If any s), an agreement prepared at the sole cost and expense of Tenant, in form satisfactory to such leasehold mortgagee Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term "Mortgage", whenever used herein, shall acquire title to Lessee’s interest include whatever security instruments are used in this Leasethe locale of the Demised Premises, by foreclosure such as, without limitations, deeds of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgageetrust, or under a new lease security deeds and conditional deeds, as well as financing statements, security agreements and other documentation required pursuant to this Articlethe Uniform Commercial Code. The term "Mortgage" whenever used herein, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions also include any instruments required in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderconnection with a sale-leaseback transaction.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Lease (Yardville National Bancorp), Lease (Yardville National Bancorp)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant will have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, shall have nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to mortgagecure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.06 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessorat the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease;
(iii) such Mortgage will contain in substance the following provisions: “This instrument is executed upon serving Lessee with condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Xxxxx at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of defaultsuch sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Xxxxx will, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any other notice under insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Xxxxx and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with respect to this Leasethe consent of the mortgagor or its predecessors in interest, shall also serve a copy or may hereafter be modified, amended or renewed with the consent of such notice upon the mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof.
(c) Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, the Mortgagee specified in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, Section 10.04(j) below will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if Mortgagee of any covenant, condition, or agreement on Tenant’s part to be performed hereunder with the same had been force and effect as though performed by Xxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. Landlord will not object to any temporary entry onto the Premises by Lesseeor on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder.
(iiid) For During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the purposes process of this Article, no event of default shall be deemed to exist in respect of the performance of work required curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, in connection with a rejection payment of this Lease in all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement payment of any and all sums which would at that time be due under this Lease but Impositions or payments of installments for such termination, and of all other defaults, if any, under this Lease then known Impositions are being made to Lessor. Such holder shall thereupon have the option to obtain a new Lease Depository in accordance with and upon Article 5 above)) within any applicable grace periods. However, at any time after the following terms and conditions:
(A) Upon the written request delivery of the holder of such mortgageaforementioned agreement, within thirty (30) days after service of such notice the Mortgagee may notify Landlord, in writing, that the Lease it has been terminated, Lessor shall enter into a new lease relinquished possession of the Leased Property with Premises or that it will not institute foreclosure proceedings or, if such holderproceedings have been commenced, or his designeethat it has discontinued them, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leaseand, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which event, the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to Mortgagee will have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no further liability under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of such assignment, provided that such assignee assumes the obligations Premises and to take any other action Landlord deems appropriate by reason of Lessee hereunderany uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) Lessor hereby agrees of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to deliver to Lessee a ground lessor estoppel certificate in (A) dispossess Tenant or other occupants of the form reasonably required by any leasehold mortgagee of Lessee.Premises,
Appears in 2 contracts
Samples: Deed of Lease, Deed of Lease
Leasehold Mortgages. To AAF may, at its sole cost and expense and without the extent consent of the Department, execute, deliver and cause or permit to be recorded against AAF’s interest in the Property and AAF’s improvements and facilities on the Property (excluding the Road Improvements), one or more Leasehold Mortgages (as hereinafter defined), if at the time any provision such Leasehold Mortgage is executed and delivered to the Leasehold Mortgagee, no Event of Default by AAF exists or if an existing Event of Default by AAF will be cured in connection with the Leasehold Mortgage, and upon and subject to the following terms and conditions:
a. a Leasehold Mortgage may not secure any debt issued by any person other than AAF or for any purpose other than the Project;
b. no Leasehold Mortgage or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge or security interest on or against any or all of AAF’s interest in the Property shall extend to or affect the fee simple interest in the Property, the Department’s interest hereunder, or the Department’s reversionary interest and estate in and to the Property or any part thereof;
c. the Department shall have no liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, or any interest accrued thereon or any other sum secured thereby or accruing thereunder, and, except for violation by the Department of the express obligations to the Leasehold Mortgagee set forth in this Article 24 conflicts Agreement and for any remedies of the Leasehold Mortgagee provided by law, the Leasehold Mortgagee shall not be entitled to seek any damages or other amounts against the Department for any or all of the same;
d. the Department shall have no obligation to any Leasehold Mortgagee in the enforcement of the Department’s rights and remedies herein and by law except as expressly set forth in this Agreement and unless such Leasehold Mortgagee has provided the Department with notice of its Leasehold Mortgage as provided in this Agreement;
e. each Leasehold Mortgage shall provide that if an event of default under the Leasehold Mortgage has occurred and is inconsistent with any other provision continuing and the Leasehold Mortgagee gives notice of such event of default to AAF, then the Leasehold Mortgagee shall give notice of such default to the Department;
f. subject to the terms of this LeaseAgreement and except as specified herein, all rights acquired by a Leasehold Mortgagee under any Leasehold Mortgage shall be subject and subordinate to all of the provisions of this Article 24 Agreement and to all of the rights of the Department under this Agreement;
g. while any Leasehold Mortgage is outstanding, the Department shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right not agree to mortgage, pledge and/or assign any amendment to or modification of this Lease Agreement or agree to a voluntary surrender or termination of this Agreement by AAF without having to obtain the consent of Lessorthe Leasehold Mortgagee;
h. notwithstanding any enforcement of the security of any Leasehold Mortgage, AAF shall remain responsible to the Department for the payment of all sums owing to the Department under this Agreement and the performance and observance of all of AAF’s covenants and obligations under this Agreement;
i. except as expressly provided in this Agreement, a Leasehold Mortgagee shall not, by virtue of its Leasehold Mortgage, acquire any greater rights or interest in the Property than AAF has at any applicable time under this Agreement;
j. each Leasehold Mortgagee, the Department and AAF shall enter into a consent agreement in a form acceptable to all parties whereby all parties consent to the assignment of the Leasehold Mortgage to an agent in connection with the financing of the Leasehold Mortgage; provided that such consent agreement shall be in a customary form and shall include the rights and protections provided to the Leasehold Mortgagee in this Agreement. LesseeNothing herein shall obligate the Department to consent to service of process in connection with any legal proceeding brought outside of Florida (or the commencement or prosecution of any legal proceeding brought outside of Florida) or enter into any agreement not governed by Florida law; and
k. whenever a Leasehold Mortgage exists as to which the Department has been provided notice in accordance with the requirements of this Agreement, and its successors until the obligations of AAF secured by such Leasehold Mortgage have been completely paid and assignsperformed and the Leasehold Mortgage has been discharged, the Department shall have send to the unconditional right to sublet all Leasehold Mortgagee, by certified or registered mail, a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment true, correct and complete copy of any interests in Lessee notice to AAF of a default by AAF under the Agreement at the same time as and whenever any such notice of default shall be permitted without having given by the Department to obtain the consent of Lessor.
(b) If LesseeAAF, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect addressed to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, Leasehold Mortgagee at the address provided for in clause (vi) of this Section 24.1(b), and no last furnished to the Department by such Leasehold Mortgagee. No notice by Lessor to Lessee hereunder the Department shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured so given to and (y) such holder received by Leasehold Mortgagee. AAF or any Leasehold Mortgagee shall agree with Lessor notify the Department in writing to comply during of the period execution of such forbearance with Leasehold Mortgage and the name and place for service of notice upon such of Leasehold Mortgagee. Upon such notification to the termsDepartment that AAF has entered, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lesseeor is about to enter, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion into a Leasehold Mortgage, the Department hereby agrees for the benefit of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 terminationLeasehold Mortgagee, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after written request by AAF, to execute and deliver to AAF and Leasehold Mortgagee an agreement, in a customary form acceptable to all parties which shall include the rights and protections provided to the Leasehold Mortgagee in this Agreement. Nothing herein shall obligate the Department to consent to service of such notice that process in connection with any legal proceeding brought outside of Florida (or the Lease has been terminated, Lessor shall commencement or prosecution of any legal proceeding brought outside of Florida) or enter into a new lease any agreement not governed by Florida law. Notwithstanding anything in this Agreement to the contrary, if there is more than one Leasehold Mortgagee, only that Leasehold Mortgagee, to the exclusion of all other Leasehold Mortgagees, which AAF or the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at Leasehold Mortgage first notified the date Department of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of a Leasehold Mortgage, shall have the rights as a Leasehold Mortgagee under this Agreement, unless such new leaseLeasehold Mortgagee has designated in writing another Leasehold Mortgagee to exercise such rights; provided, Lessor shall allow however, that a notice to the tenant Department of a Leasehold Mortgage may name more than one Leasehold Mortgagee and the rights referred to in this Agreement may extend to all Leasehold Mortgagees named therein and if such tenant notice is submitted by a representative of all such Leasehold Mortgagees (which representative may itself be a Leasehold Mortgagee). Any references in this Agreement to the “Leasehold Mortgagee” shall be entitled to an adjustment in an amount equal references to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice Leasehold Mortgagee or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders representative of more than one Leasehold Mortgagee, acting on behalf of such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionLeasehold Mortgagees, the new lease shall be entered into pursuant to notice of whose Leasehold Mortgage was earliest received by the request of Department unless the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectcontext otherwise requires.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Lease Agreement (Virgin Trains USA LLC), Lease Agreement (Virgin Trains USA LLC)
Leasehold Mortgages. To (a) Without the extent requirement of any provision consent of Landlord, Tenant shall have the right to mortgage its entire interest under this Lease and in this Article 24 conflicts and to the Improvements. The execution and delivery of any such Mortgage shall not be deemed to constitute an assignment or is inconsistent with any other provision transfer of this Lease, nor shall the provisions holder of any such Mortgage be deemed (prior to a foreclosure judgment and the taking of possession as hereinafter provided) an assignee or transferee of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have Lease so as to require such holder to assume the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent performance of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion any of the Leased Property without having terms, covenants or conditions on the part of Tenant to obtain be performed hereunder. Tenant shall give prompt notice to Landlord of the consent execution and delivery of Lessor. Any pledge or assignment a Mortgage meeting the requirements of any interests in Lessee this Section 15.02 and shall be permitted without having to obtain the consent of Lessorfurnish it with conformed copies thereof.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage Notwithstanding anything contained in this Lease to the contrary, no purchaser or transferee at any foreclosure sale or other transfer authorized by law or this Lease shall acquire any right, title or interest in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at Leased Premises or the address provided for in clause Improvements unless (vii) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgagesaid purchaser or transferee shall, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause instrument transferring the same or immediately after acquiring the same, assume and agree to be remediedkeep, observe and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such perform all of the terms, conditions covenants and covenants provisions of this Lease as are on the part of the Tenant to be kept, observed and performed (including the obligation to cure defaults arising prior to such assumption curable by the payment of money or otherwise reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder cured) and shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings therein agree that no further or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, additional mortgage or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease shall be made, except as provided in lieu this Article XIV and (ii) a duplicate-original of foreclosure.
(v) In said assumption agreement, duly executed and acknowledged by said purchaser or transferee, shall be delivered to Landlord promptly following the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder consummation of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, sale or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leasetransfer.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 2 contracts
Samples: Option Agreement (Hollywood Park Operating Co), Assignment of Option Agreement (Hollywood Park Operating Co)
Leasehold Mortgages. To From and after the extent any provision in this Article 24 conflicts or is inconsistent with any other provision Effective Date of this Lease, Tenant shall be permitted to grant a mortgage encumbering its leasehold interest in the provisions of this Article 24 shall control.Leased Property subject to and only in accordance with the following requirements:
(a) Lessee, Landlord shall not under any circumstances be deemed to have joined in the mortgage and/or subordinated or subjected its interest in and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent lien and encumbrance of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.mortgage; and
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions term of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of exceed the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to may only run concurrently with an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement extension of the term of any new lease executed pursuant provided that Tenant has exercised its option to paragraph extend the term as provided in Section 2.3 hereof; and
(vc) of this Section, all subleases the mortgagee must be an institutional financial entity; and
(d) the Mortgage shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used contain an express statement by the tenant under such new lease for mortgagee acknowledging that the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee simple title to the Leased Property is not encumbered thereby and that Landlord shall have no liability thereunder; and
(e) the leasehold estate created therein pursuant Mortgage shall include the agreement of the mortgagee to simultaneously provide to Landlord a copy of any notice sent to mortgagor/Tenant thereunder. Except as expressly provided elsewhere herein, any assignment, transfer, sublease or encumbrance in violation of this Article shall be voidable at Landlord's option. Landlord agrees and acknowledges that the mortgages reflected in the Third Party Documents and/or the Permitted Exceptions ("Existing Mortgages") are expressly permitted and allowed hereunder and shall not be subject to the provisions of this Lease shall not merge but shall always be kept separate and distinctterms, notwithstanding the union of such estates in Lessee, Lessor, conditions or in any other person by purchase, operation of law or otherwiselimitations set forth above.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease Agreement (CNL Retirement Properties Inc)
Leasehold Mortgages. To Lessee is hereby given the extent any provision right by Lessor to mortgage its interest in this Article 24 conflicts Lease from time to time, under a single leasehold mortgage (as the same may be amended, modified, consolidated, extended or is inconsistent with any other provision of refinanced, the "Leasehold Mortgage"), and assign this Lease, or any part or parts thereof, as collateral security for the provisions Leasehold Mortgage, upon the condition that all rights acquired under or as a result of such Leasehold Mortgage shall be subject and subordinate to each and all of the covenants, conditions and restrictions set forth in this Article 24 shall control.
(a) LesseeLease, and its successors and assigns, shall have to all rights now or hereafter affecting the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of LessorPremises or any portion thereof. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in If Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance Lease, or any part or parts hereof, the holder of such Leasehold Mortgage (the "Leasehold Mortgagee") shall provide Lessor with notice of the provisions Leasehold Mortgage (including a copy thereof) and the name and address of this Sectionthe Leasehold Mortgagee. Lessor agrees that following receipt of such notice by Lessor, then and so long as any such mortgage the Leasehold Mortgage shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the Leasehold Mortgagee to Lessor, the following provisions shall apply:
(ia) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause No termination (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection condemnation of all or substantially all of the Property as described in Section 5.1 above), cancellation, surrender or modification of this Lease in (other than any amendment which confirms the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement amount 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and Basic Rent determinated in accordance with the provisions of such new lease. If Section 2.2 below or any CPI Escalation as provided in Section 13.2) by Lessee, nor the holders waiver by Lessee of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions any of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease nor the giving by Lessee of any consent shall be effective as to the Leasehold Mortgagee unless consented to in writing by the Leasehold Mortgagee, which consent shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, unreasonably withheld or in any other person by purchase, operation of law or otherwisedelayed.
(cb) If Lessor, upon providing Lessee any leasehold mortgagee shall acquire title to Lessee’s interest in notice of (i) default under this Lease, by foreclosure (ii) a termination of this Lease, or (iii) a mortgage thereon matter on which Lessor may predicate or by assignment in lieu of foreclosure or by an assignment from claim a designee or wholly owned subsidiary corporation default, shall at the same time provide a copy of such mortgagee, or under a new lease pursuant notice to the Leasehold Mortgagee of which Lessor has been provided notice in accordance with the first paragraph of this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderSection 6.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To (a) The parties agree that Lessor shall be permitted to mortgage its fee interest in the Improvements, its interest as lessee under the Ground Lease and its interest as lessor under this Lease(each, a "Leasehold Mortgage"), provided that (i) any such Leasehold Mortgage shall encumber all such interests of Lessor in the Premises, and (ii) to the extent required by the holder of any Fee Mortgage (each, a "Fee Mortgagee"), the holder of any such Leasehold Mortgage (each, a "Leasehold Mortgagee"), shall consent and enter into an agreement with such Fee Mortgagee pursuant to which a lockbox or other similar arrangement is established for the collection of all rents due from any Subtenant (a "Lockbox"), which agreement shall contain provisions consistent with the terms described on SCHEDULE E annexed hereto and made a part hereof, and which shall in all other respects be reasonably acceptable to the Fee Mortgagee and the Leasehold Mortgagee. This Lease shall be subject and subordinate to the terms and provisions of, and the lien of, any such Leasehold Mortgage, provided that (i) such Leasehold Mortgage contains an express provision in this Article 24 conflicts or is inconsistent with any other provision to the effect that, if there shall be a foreclosure of the Leasehold Mortgage, the holder of such Leasehold Mortgage will not evict Lessee, disturb Lessee's possession under this Lease, or terminate or disturb Lessee's leasehold estate or rights hereunder, and will recognize Lessee as the direct tenant of such holder on the same terms and conditions as are contained in this Lease, subject to the provisions hereinafter set forth, provided no Event of Default shall have occurred and be continuing hereunder, or (ii) Lessee shall obtain a separate subordination, non-disturbance and attornment agreement from the holder of such Leasehold Mortgage, which agreement may be conditioned upon conditions then ordinary and customary in subordination, non-disturbance and attornment agreements entered into by lenders at that time. If, in connection with the financing of the Premises by Lessor, any lending institution shall request reasonable modifications of this Article 24 shall control.
(a) Lease that do not increase Lessee's monetary obligations under this Lease, and its successors and assignsor materially adversely affect or diminish the rights, shall have or materially increase the unconditional right to mortgageother obligations of Lessee under this Lease, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessormake such modifications.
(b) If LesseeUnless expressly waived or modified therein, or Lessee’s successors or assigns, shall mortgage this Lease any nondisturbance provision contained in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, a Leasehold Mortgage or any other notice under the provisions of or with respect separate subordination, nondisturbance and attornment agreement delivered to this Lease, shall also serve a copy of such notice upon Lessee by the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder any Leasehold Mortgage shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within made on the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to condition that neither the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) Leasehold Mortgage nor anyone claiming by, through or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder including a purchaser at a foreclosure sale, shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.be:
(vi) In the event liable for any act or omission of the termination of this Lease any prior to the expiration of the Term lessor (including, without limitation, in connection with a rejection the then defaulting Lessor), except to the extent arising or continuing after the Leasehold Mortgagee or such purchaser shall have succeeded to the right and title of this Lease the defaulting lessor in the event of a bankruptcy of LesseePremises, or (ii) subject to any defense or offsets which Lessee may have against any prior lessor (including, without limitation, the then defaulting Lessor), Lessor except to the extent arising or continuing after the Leasehold Mortgagee or such purchaser shall serve upon have succeeded to the holder right and title of such mortgage 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 terminationdefaulting lessor in the Premises, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:or
(Aiii) Upon bound by any payment of Rental which Lessee may have made to any prior landlord (including, without limitation, the written request of the holder of such mortgage, within then defaulting Lessor) more than thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease in advance of the Leased Property with date upon which such holderpayment was due, or his designee, as follows:or
(Biv) Such new lease bound by any obligation to make any payment to or on behalf of Lessee, except to the extent arising or continuing after the Leasehold Mortgagee or such purchaser shall be effective as at have succeeded to the date of termination of this Lease, right and shall be for the remainder title of the term of this Lease and at defaulting lessor in the rent and upon all the agreementsPremises, terms, covenants and conditions hereof, including or
(v) bound by any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow obligation to perform any work or to make improvements to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.Premises, or
(vi) Any notice bound by any amendment or other communication which Lessor shall desire or is required to give to or serve upon the holder modification of a mortgage on this Lease shall be made after the date of its mortgage without its consent (other than any amendment which confirms the amount of any CPI Escalation as provided in writing and shall be served by registered mailSection 11.2), addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.or
(vii) Effective upon the commencement of the term of bound to return any new lease executed pursuant collateral delivered by Lessee to paragraph (v) of Lessor in connection with Lessee's obligations under this Section, all subleases shall be assigned Lease until such collateral has come into its actual possession and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been be entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into collateral pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions terms of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseLease.
(c) If Within fifteen (15) days after request of Lessor, Lessee shall execute and deliver such documents, agreements, instruments, assignments, forms and affidavits which may be required in connection with any leasehold mortgagee shall acquire title such superior Leasehold Mortgage, and to Lessee’s interest in confirm the subordination of this LeaseLease to such superior Leasehold Mortgage, including, without limitation, any subordination, nondisturbance and attornment agreement contemplated by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
subparagraph (da) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.above. I.6
Appears in 1 contract
Samples: Master Lease Agreement (Steinway Musical Instruments Inc)
Leasehold Mortgages. To (i) Ground Lessor hereby consents to the extent any provision in this Article 24 conflicts or is inconsistent with any other provision Assignment of this Lease, the provisions Lessor Deed of this Article 24 shall control.
(a) Trust and the Lessor Security Agreement; the Liens granted to Agent therein; and all other Liens granted to Agent in any of the Operative Documents and the Property to secure the Lessor Obligations. After the Expiration Date of the Facility 2 Lease Agreement, Ground Lessee may, as security for any indebtedness of Ground Lessee, and grant to any holder of such indebtedness a Lien in its successors and assignsleasehold interest in the Ground Lease Property (any such Liens, shall have together with the unconditional right Liens granted to mortgageAgent pursuant to the Operative Documents, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right be referred to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(bherein as "Leasehold Mortgages") If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the applicable provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Stanford Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within Subject to the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect terms of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Stanford Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings Person may become the legal owner and holder of the leasehold interest in the Ground Lease Property created by this Lease through such Agreement by foreclosure proceedings of a Leasehold Mortgage or by as a result of an assignment of this Lease or conveyance in lieu of foreclosuresuch foreclosure and, upon becoming such an owner, shall become the Ground Lessee hereunder with the rights and obligations thereof.
(viii) In Ground Lessor shall notify each holder of a Leasehold Mortgage (a "Leasehold Mortgagee") of any default by Ground Lessee hereunder. No notice of a default by Ground Lessee shall be deemed effective until so served. Any Leasehold Mortgagee shall have the event right to correct or cure any such default within the same period of time after receipt of such notice as is given to Ground Lessee under this Agreement to correct or cure defaults, plus an additional period of thirty (30) days thereafter. Ground Lessor will accept performance by any Leasehold Mortgagee of any covenant, condition or agreement on Ground Lessee's part to be performed hereunder with the termination same force and effect as though performed by Ground Lessee.
(iv) If this Agreement should terminate by reason of this Lease prior to the expiration of the Term (including, without limitation, in connection with a disaffirmance or rejection of this Lease in Agreement by Ground Lessee or any receiver, liquidator or trustee for the event property of a bankruptcy Ground Lessee, or by any Governmental Authority that has taken possession of the business or property of Ground Lessee by reason of the insolvency or alleged insolvency of Ground Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditionsthen:
(A) Upon the written Ground Lessor shall give notice thereof to each Leasehold Mortgagee and, upon request of the holder of such mortgage, any Leasehold Mortgagee made within thirty sixty (3060) days after service of Ground Lessor has given such notice that the Lease has been terminatednotice, Ground Lessor shall enter into a new ground lease of the Leased Ground Lease Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be Leasehold Mortgagee for the remainder of the term hereof on the same terms and conditions as contained in this Agreement. (If more than one Leasehold Mortgagee shall request Ground Lessor to enter into a new ground lease, Ground Lessor shall enter into such a new ground lease with the requesting Leasehold Mortgagee holding the highest priority Leasehold Mortgage. If two or more requesting Leasehold Mortgagees share the highest priority, the new ground lease shall name all such Leasehold Mortgagees as co-tenants thereunder.)
(B) The estate of any Leasehold Mortgagee, as lessee under such a new ground lease, shall have the same priority as the estate of Ground Lessee created under this Agreement. If the Facility 2 Lease and Agreement or Facility 2 Purchase Agreement are in effect at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date time of execution of such new ground lease, such new ground lease shall be made subject to the Facility 2 Lease Agreement and the Facility 2 Purchase Agreement.
(v) No modification or early termination of this Agreement shall be effective without the consent of a Leasehold Mortgagee if (A) Ground Lessee has agreed with such Leasehold Mortgagee that such Leasehold Mortgagee's consent will be required for any such modification or early termination and (B) Ground Lessor has been notified of such agreement.
(vi) Any notice No Leasehold Mortgagee will assume any liability under this Ground Lease either by virtue of its Leasehold Mortgage or other communication which Lessor shall desire by any subsequent receipt or is required to give to collection of rents or serve upon profits generated from the holder of a mortgage on this Ground Lease shall be in writing Property, unless and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which until the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such Leasehold Mortgagee acquires Ground Lessee's leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by the Ground Lease Property at foreclosure of a mortgage thereon or by assignment deed in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderforeclosure.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To a. If Lessee mortgages or provides a deed of trust encumbering its leasehold estate (a “Mortgage”), the extent any provision Lessee shall notify Lessor in this Article 24 conflicts the manner provided for the giving of notice, of the execution of such Mortgage and name the place for service of notice upon the mortgagees, beneficiaries or is inconsistent with any other provision holders of this Leaseindebtedness (the “Leasehold Mortgagee”). In such event, Lessor agrees, subject to the provisions of this Article 24 shall control.
(a) Lesseethe Estoppel Certificate, and its successors and assigns, shall have for the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent benefit of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all such mortgagees or a portion holders of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyindebtedness:
(i) LessorThat Lessor will give to Leasehold Mortgagee simultaneously with service on Lessee, a duplicate of any and all default notices given by Lessor to Lessee. Such notices shall be given in the manner and be subject to the terms of the notice provisions of this Lease.
(ii) That such Leasehold Mortgagee shall have the privilege of performing any of Lessee’s covenants under this Lease of curing any default of Lessee or of exercising any election option or privilege conferred upon serving Lessee with by the terms of this Lease.
(iii) That Lessor shall not terminate this Lease for any default of Lessee if, within a period of thirty (30) days after the expiration of the period of time within which Lessee might cure such default under the provisions of this Lease, provided the Leasehold Mortgagee has received notice of default, and the Leasehold Mortgagee commences to eliminate the cause of such default and proceeds diligently and with reasonable dispatch to so cure.
(iv) That no rights, privilege or any other notice under the provisions of option to cancel or with respect to terminate this Lease, shall also serve a copy of such notice upon the holder of such mortgageavailable to Lessee, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given exercised effectively unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, joined in case Lessee shall be in default hereunder, shall, within by the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosureLeasehold Mortgagee.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of That no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the payment of rental or the performance or observance of the any of Lessee’s covenants and conditions in agreements shall attach to or be imposed upon the Leasehold Mortgagee, unless such lease contained on tenant’s part to be performed Leasehold Mortgagee forecloses its interest and observed from and after becomes the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderunder this Lease.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease Agreement (Intrepid Technology & Resources, Inc.)
Leasehold Mortgages. To Notwithstanding anything contained herein to the extent contrary, Tenant and every successor and permitted assign of Tenant (including, but not limited to, any provision subtenant of Tenant, but only with Xxxxxx’s prior written consent) is hereby given the right by Xxxxxxxx, in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, without Xxxxxxxx’s prior written consent, to: (a) mortgage its interest in the Premises and its interest in, to and under this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its successors interest in any subleases, pursuant to one or more Leasehold Mortgages, and assignsto collaterally assign, shall have mortgage or otherwise encumber its interest in the unconditional right Premises and its interest in, to mortgageand under this Lease, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lesseeor any part or parts thereof, and its successors interest in any subleases, as collateral security for such mortgages, collateral assignments or encumbrances; provided that the same shall be subject to each and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having covenants, conditions and restrictions set forth in this Lease, and to obtain all rights and interests of Landlord herein and in the consent Fee Estate, none of Lessor. Any pledge which covenants, conditions or assignment of any interests in Lessee restrictions is or shall be permitted without having waived by Landlord by reason of the right given so to obtain mortgage such interest in the consent Premises and Xxxxxx’s interest in, to and under this Lease or for any other reason whatsoever (all such mortgages, encumbrances, or collateral assignments of Lessor.
the Premises and Xxxxxx’s interest in, to and under this Lease as collateral security being herein collectively called “Leasehold Mortgages”; each, a “Leasehold Mortgage”; and the institutional holders, beneficiaries or assignees thereof (i.e., holders, beneficiaries and assignees thereof that are regulated lending institutions registered to conduct associated activities in the State of New York) being herein collectively called “Leasehold Mortgagees”; each, a “Leasehold Mortgagee”); and (b) pledge direct or indirect ownership interests in Tenant to one or more institutional lenders as collateral security for a loan (all such pledges of a direct or indirect ownership interest in Tenant as collateral security being herein collectively called “Mezzanine Pledges”; each, a “Mezzanine Pledge”; and the institutional holders, beneficiaries or assignees thereof (i.e., holders, beneficiaries and assignees thereof that are regulated lending institutions registered to conduct associated activities in the State of New York) being herein collectively called “Mezzanine Lenders”; each, a “Mezzanine Lender”). If LesseeTenant and/or Tenant’s successors and permitted assigns (including, but not limited to, any subtenant of Tenant, but only with Tenant’s prior written consent) shall mortgage its interest in the Premises and/or Tenant’s interest in, to and under this Lease, or Lessee’s successors any part or assignsparts thereof, or if Tenant shall mortgage this Lease pledge any direct or indirect ownership interest in compliance Tenant pursuant to one or more Mezzanine Pledges, and if the institutional holders or beneficiaries of such Leasehold Mortgages or Mezzanine Pledges so regulated and registered shall, within ninety (90) days of its execution, send to Landlord a true copy thereof, together with a written notice specifying the provisions name and address of this Sectionsuch Leasehold Mortgagee or Mezzanine Lender and in the case of a Leasehold Mortgage, the pertinent recording data with respect to such Leasehold Mortgage(s) (such notice and/or any notice given by a Leasehold Mortgagee to Landlord of its contact information, collectively, the “Leasehold Mortgagee Notice”), then the Parties agrees that, so long as any such mortgage Leasehold Mortgage(s) or Mezzanine Pledge(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holders thereof to Landlord, the following provisions shall apply:
(i) LessorUpon request, upon serving Lessee with Xxxxxxxx agrees to acknowledge receipt of any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so servedLeasehold Mortgagee Notice.
(ii) Any holder Landlord will give the Leasehold Mortgagees and Mezzanine Lenders a copy of any written notice from Landlord to Tenant hereunder at the time of giving such notice to Tenant, all such notices shall be addressed to Leasehold Mortgagees and Mezzanine Lenders at the address(es) and to the attention(s) as set forth in the respective Leasehold Mortgagee Notice (which notice shall be delivered to all Leasehold Mortgagees and Mezzanine Lenders in the same manner as such notice is delivered to Tenant pursuant to Section 14.01 hereof), which notice details may only be changed by Tenant or the applicable Leasehold Mortgagee or Mezzanine Lender (as applicable) by providing written notice to Landlord of such mortgage, changes in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lesseeaccordance with Section 14.01.
(iii) For the purposes Landlord will not exercise any right, power or remedy with respect to terminating this Lease by reason of any Event of Default hereunder, and no termination of this Article, no event of default Lease in connection therewith shall be deemed effective, unless Landlord shall have so given to exist the Leasehold Mortgagees and Mezzanine Lenders written notice or a copy of its notice to Tenant of such default or any such termination, as the case may be, and Landlord will not exercise any right, power or remedy with respect to terminating this Lease or re-entering the Premises (except as expressly provided in Section 7.07 or elsewhere in this Lease) by reason of any uncured default hereunder until the expiration of any grace or cure period provided in this Lease with respect thereto, which grace period will commence to run from the date Landlord has given the Leasehold Mortgagee(s) and/or Mezzanine Lender(s), as applicable, written notice of such default or a copy of its notice to Tenant of such default, provided:
1. with respect to a Payment Event of Default, the Leasehold Mortgagee and/or Mezzanine Lender, as applicable, shall have a grace period to fully cure such default within thirty (30) calendar days of the performance date that notice thereof is given to the applicable Leasehold Mortgagee or Mezzanine Lender;
2. with respect to an Other Event of work Default, the Leasehold Mortgagee and/or Mezzanine Lender, as applicable, shall have a grace period to fully cure such default within ninety (90) days of the date that notice thereof is given to the applicable Leasehold Mortgagee or Mezzanine Lender; provided, further, in the case of any default that cannot reasonably be cured within ninety (90) days despite Tenant’s and/or Leasehold Mortgagee’s and/or Mezzanine Lender’s application of good faith and reasonable efforts, Leasehold Mortgagee and/or Mezzanine Lender, as applicable, shall have such greater period of time as is reasonably necessary to cure such default, provided Leasehold Mortgagee and/or Mezzanine Lender, as applicable, shall (x) commence to remedy the default within the ninety (90) day period and shall diligently continue without interruption to prosecute such cure to completion, or (y) if possession of the Premises is required in order to cure such default, institute judicial or non-judicial foreclosure proceedings within such ninety (90) day period and diligently prosecute such proceedings in order to obtain possession directly or through a receiver, and, upon obtaining such possession, commence promptly to cure the default and diligently prosecute the same to completion without interruption; provided that, during the period in which such action is being taken and any foreclosure proceedings are pending, all of the other obligations of Tenant under this Lease, to the extent they are reasonably susceptible of being performed, shall be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained Any Leasehold Mortgagee or Mezzanine Lender may make any payment or perform any act required hereunder to be made or performed by Xxxxxx and Landlord shall accept payment and performance by a Leasehold Mortgagee or Mezzanine Lender of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the contrarysame force and effect as though performed by Xxxxxx, and does hereby authorize entry upon the occurrence Premises by the Leasehold Mortgagees or Mezzanine Lenders for such purpose provided that no entry by the Leasehold Mortgagee or Mezzanine Lenders upon the Premises for such purpose shall constitute or be deemed to be an eviction of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof Tenant and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession waive or to continue such foreclosure proceedings after such defaults release Tenant from any obligation or default hereunder (except any obligation or default which shall have been cured and (y) such holder shall agree with Lessor 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 fully performed or corrected by such holderpayment or performance by a Leasehold Mortgagee or Mezzanine Lender). Any Subject to the rights of Tenant hereunder, a Leasehold Mortgagee or Mezzanine Lender may enter the Premises to seek to cure a default by Lessee, not reasonably susceptible or Event of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosureDefault.
(v) In Tenant shall give the event Leasehold Mortgagees and Mezzanine Lenders notice of any condemnation proceedings affecting the Premises, and such Leasehold Mortgagees and Mezzanine Lenders shall have the right to intervene and be made a party to such condemnation proceedings.
(vi) Xxxxxx agrees to provide the Leasehold Mortgagees and Mezzanine Lenders notice of any judicial or arbitration proceedings by or between the Parties, and Leasehold Mortgagees shall have the right to intervene therein and be made a party to such proceedings.
(vii) Landlord agrees that the name of the termination of this Lease prior Leasehold Mortgagees and Mezzanine Lenders may be added to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement “Loss Payable Endorsement” of any and all sums which would at insurance policies required to be carried by Tenant hereunder on condition that time the insurance proceeds are to be due under applied (either by Tenant or by any such Leasehold Mortgagee) in the manner specified in this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:Lease.
(Aviii) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor No Leasehold Mortgagee or Mezzanine Lender shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all become personally liable under the agreements, terms, covenants and or conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to unless and until it becomes, and then only for as long as it remains, the date owner of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mailleasehold estate, addressed to such holder at his address except as set forth in such mortgageherein to the contrary. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address Except as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor herein to the tenant under such new leasecontrary, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration upon any permitted assignment of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionLeasehold Mortgagee or Mezzanine Lender, the new lease permitted assignor Leasehold Mortgagee or Mezzanine Lender shall be entered into pursuant to the request relieved of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee liability which may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed accrue hereunder from and after the date of such assignment, ; provided that the assignee shall execute and deliver to Landlord a recordable instrument of assumption wherein such assignee assumes shall assume and agree to perform and observe the covenants and conditions in this Lease contained on Tenant’s part to be performed and observed. Nothing contained in this Section 8.02 shall be deemed to release Tenant or any succeeding lessee (other than such Leasehold Mortgagee or Mezzanine Lender) of its liabilities hereunder. Notwithstanding the provisions of this subsection (viii) or any other provision of this Lease to the contrary, any and all Leasehold Mortgagees, Mezzanine Lenders and other successors to and permitted assigns of Tenant’s interest in the Premises and/or this Lease shall remain liable for all obligations and other liabilities of Lessee hereunderTenant under or in connection with this Lease accruing during the period in which such party was in possession of the Premises or otherwise succeeded to Xxxxxx’s interest, it being the intention of the Parties that no manner of assignment nor assumption of Tenant’s interest in this Lease and/or the Premises nor other manner of transferring any of the same, whether in whole or in part, shall discharge any such liability or other obligation.
(dix) Lessor hereby agrees There shall be no merger of this Lease nor of the leasehold estate created by this Lease with the Fee Estate or any part thereof by reason of the fact that the same Person, firm, corporation or other entity may acquire or own or hold the same, directly or indirectly, and no such merger shall occur unless and until Landlord and all Persons, corporations, firms and other entities, including any Leasehold Mortgagee having any interest in this Lease or the leasehold estate created by this Lease, shall join in a written instrument effecting such merger and shall duly record the same.
(x) There shall be no cancellation, surrender or modification of this Lease or attornment of any subtenant without the prior written consent of the Leasehold Mortgagee or Mezzanine Lender which would be entitled to deliver enter into a new lease of the Premises pursuant to Lessee a ground lessor estoppel certificate the provisions of Section 11.07, and no such cancellation, surrender or modification shall be effective without such prior written consent.
(xi) Tenant shall bear all costs and expenses, including, without limitation, all of Landlord’s actual out-of-pocket costs and expenses, including, without limitation, Landlord’s reasonable attorneys’ fees, related to any modification(s) sought by Tenant, any Leasehold Mortgagee or any Mezzanine Lender to any of the covenants set forth in this Article 8. The term “Leasehold Mortgagee,” whenever used herein, shall include the holder of security instruments as used in the form reasonably locale of the Premises, including, without limitation, deeds of trust, security deeds and conditional deeds, as well as financing statements security agreements and other securitization documentation required by any leasehold mortgagee pursuant to the Uniform Commercial Code, provided such holder is a regulated lending institutions registered to conduct associated activities in the State of LesseeNew York.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To 1) Xxxxxx, may from time to time during the extent any provision in this Article 24 conflicts or is inconsistent with any other provision term of this LeaseLease mortgage, the provisions of this Article 24 hypothecate, or encumber, in whole or in part, its leasehold estate, subject to Lessor's prior written consent, which shall control.not be unreasonably withheld or delayed, and which consent shall not be withheld provided in each case that:
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion The holder of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee Leasehold Mortgage shall be permitted without having an Institutional Lender whose lending activities are regulated or supervised by an agency of the federal government or the State of New York, with a minimum tangible net worth (i.e. net worth less intangible assets such as goodwill, trade names, patent rights and the like) or capital and surplus, at the time of such encumbrance or hypothecation, of at least Two Million Dollars ($2,000,000) but in no event less than the minimum net worth required to obtain be maintained by such lender under any applicable regulations of the consent of Lessor.Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or any other applicable federal or state governmental agency;
(b) If Lessee, In no event shall Lessor be required to encumber or Lessee’s successors subordinate its fee title to the Premises or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:part thereof or interest therein for any reason;
(ic) The Leasehold Mortgage shall not prohibit the disposition and application of insurance proceeds and condemnation awards as provided herein;
(d) The Leasehold Mortgage shall encumber only the Lessee's interest as Xxxxxx in the Premises and its interest as owner of the Improvements;
(e) The Lessee or holder of the Leasehold Mortgage shall promptly deliver to the Lessor, upon serving Lessee with any in the manner herein provided for the giving of notice of defaultto Lessor, or any other notice under the provisions of or with respect to this Lease, shall also serve a true copy of such notice upon the Leasehold Mortgage and any assignment thereof, and shall notify the Lessor of the address of the holder of the Leasehold Mortgage to which notices from the Lessor may be sent; and
(f) Until such mortgagetime as construction of the Improvements contemplated by this lease is complete, at all of the address provided for proceeds from any loan secured by the Lessee's interest in clause (vithe Property shall be utilized in connection with the development and construction of such improvements. Xxxxxx's consent under this subparagraph 17.E.(1) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
if Lessor does not respond to Xxxxxx's written request for Xxxxxx's consent within ten (ii10) Any holder days of Xxxxxx's receipt of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right request accompanied by all information reasonably necessary to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lesseeconsider.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To (1) Tenant, may from time to time during the extent term of this Lease mortgage, hypothecate, or encumber, in whole or in part, its leasehold estate, subject to Landlord's prior written consent, which shall not be unreasonably withheld or delayed, and which consent shall not be withheld provided in each case that:
(a) The holder of the Leasehold Mortgage shall be an Institutional Lender whose lending activities are regulated or supervised by an agency of the federal government or the Commonwealth of Massachusetts with a minimum tangible net worth (i.e. net worth less intangible assets such as goodwill, trade names, patent rights and the like) in no event less than the minimum net worth required to be maintained by such lender under any provision applicable regulations of the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or any other applicable federal or state governmental agency;
(b) In no event shall Landlord be required to encumber or subordinate its fee title to the Premises or any part thereof or interest therein for any reason;
(c) The Leasehold Mortgage shall not prohibit the disposition and application of insurance proceeds and condemnation awards as provided herein;
(d) The Leasehold Mortgage shall encumber only the Tenant's interest as Tenant in the Premises and its interest as owner of the Improvements;
(e) The Tenant or holder of the Leasehold Mortgage shall promptly deliver to the Landlord, in the manner herein provided for the giving of notice to Landlord, a true copy of the Leasehold Mortgage and any assignment thereof, and shall notify the Landlord of the address of the holder of the Leasehold Mortgage to which notices from the Landlord may be sent; and
(f) Until such time as construction of the Improvements contemplated by this lease is complete, all of the proceeds from any loan secured by the Tenant's interest in the Property shall be utilized in connection with the development and construction of such improvements, which may include so-called “soft costs” . Xxxxxxxx's consent under this subparagraph 17(D)(1) shall be deemed to have been given if Landlord does not respond to Xxxxxx's written request for Landlord's consent within ten (10) days of Landlord's receipt of such request accompanied by all information reasonably necessary to consider.
(2) In the event that Tenant encumbers or hypothecates its interest in this Article 24 conflicts or is inconsistent with Lease as security for a loan as permitted above, and provided that Xxxxxx delivers written notice to Landlord of the name and address of the lender of such loan, then Landlord hereby agrees that Landlord will give written notice of any other provision default under the terms of this Lease, the provisions of this Article 24 shall control.
(a) Lesseeby registered or certified mail, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, lender at the address provided for contained in clause (vi) such notice. Provided Tenant gives to Landlord written notice of this Section 24.1(b)the name and address of such lender as required above, and no notice of a default by Lessor Landlord to Lessee hereunder Tenant shall be deemed to have been duly given to Tenant unless and until a copy thereof has been so served.
(ii) Any holder of mailed to such mortgagelender at the address provided. Such lender, in case Lessee Tenant shall be in default hereunderunder this Lease, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance of such holder lender as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed Tenant. Provided Tenant gives to exist in respect Landlord written notice of the performance name and address of work such lender as required above, Landlord shall not take any action to terminate this Lease because of any default or breach thereunder on the part of Tenant if such lender (i) within sixty (60) days after mailing of written notice to such lender from Landlord of its intention to terminate the Lease for such default or breach, shall cure such default or breach if the same can be performedcured by the payment of expenditure of money, or of acts to be done, or of conditions to be remedied, if steps (ii) shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall diligently take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property Premises (including possession by a receiver) and to cure such default or (y) breach in the case of a default or breach which cannot be cured unless and until such lender has obtained possession and shall, during such time, pay all rental and all other payments required to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest be made under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.or
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion Section xxx of the Leased Property without having to obtain the consent of LessorLease is deleted in its entirety and replaced with this Section 8. Any pledge or assignment of any interests in Lessee shall be permitted without having entitled to obtain the consent of Lessor.
(b) If Lessee, or Lesseeencumber Xxxxxx’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s leasehold interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
Unit (vbut not the fee title interest) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon on the following terms and conditions:
(Aa) Upon Any leasehold mortgage loan shall not exceed the written request amount of sixty five percent (65%) of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of total purchase price paid by Lessee for Xxxxxx’s interest under this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vib) Any notice Leasehold mortgage loans are only permitted from lenders that are (i) federally insured banks, (ii) state-chartered banks, (iii) insurance companies, or (iv) any other communication which Lessor shall desire or is required to give to or serve upon lender approved by the holder of a mortgage on this Lease shall be Landlord in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of (a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise“Permitted Mortgagee”).
(c) If any leasehold mortgagee shall acquire title Provided that a Permitted Mortgagee provides written notice to Lessee’s interest Lessor stating the address to which notices are to be sent to the Permitted Mortgagee in this Lease, by foreclosure the event of a mortgage thereon default under or breach of this Lease by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation Lessee occurs, Lessor shall provide written notice of such mortgageeevent of default or breach to Permitted Mortgagee. In such event, with respect to an event of default or breach caused by Xxxxxx’s failure to timely pay rent or any other cost or charge due under this Lease (a “Monetary Default”), or under as to any other event of default or breach of this Lease caused by Lessee which is not a new lease Monetary Default (a “Non-Monetary Default”), Permitted Mortgagee shall have a period of two hundred and seventy days (270) days from notice to cure such Monetary Default or Non-Monetary Default. The foregoing notwithstanding, Lessor shall be entitled to pursue any and all remedies afforded Lessor pursuant to this ArticleLease or as may be permitted by Florida law during the pendency of any Monetary Default or Non-Monetary Default, but Lessor shall not finalize any such mortgagee may assign such lease remedy until the cure period provided for in this Section 8.(c) has expired and, if Permitted Mortgagee does in fact tender a full and shall thereupon be released from all liability for the performance or observance complete cure of the covenants subject Monetary Default or Non-Monetary Default, then Lessor shall stop pursuing such remedies and conditions in such lease contained on tenant’s part accept the cure tendered by Permitted Mortgagee. Otherwise, Lessor shall be permitted to be performed and observed from and after the date pursue all of such assignment, provided that such assignee assumes the obligations of Lessee hereunderits remedies to completion.
(d) Permitted Mortgagee shall provide written notice to Lessor hereby agrees of the commencement of any foreclosure or collection action with respect to deliver any leasehold mortgage held by a Permitted Mortgagee with respect to Lessee the Unit. In the event of any foreclosure or deed-in-lieu of foreclosure by a ground lessor estoppel certificate Permitted Mortgagee of its leasehold mortgage which results in Permitted Mortgagee acquiring the leasehold interest in the form reasonably Unit, then Permitted Mortgagee shall be bound by the terms and conditions of this Lease, specifically including, without limitation, the obligations for payment of all rent (including any unpaid rent then due and owing to Lessor) and obtaining all insurance required by any leasehold mortgagee under this Lease and Permitted Mortgagee shall otherwise attorn to Lessor on the terms and conditions of Lesseethis Lease.
Appears in 1 contract
Samples: Condominium Lease Amendment
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in If Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Sectiongrant a Qualified Mortgage, then from and after the date on which an executed copy of such Qualified Mortgage is furnished to 90 87 Lessor so long as any such mortgage Qualified Mortgage shall remain unsatisfied of record, record the following provisions shall apply:
(ia) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect if Lessor shall become entitled to this Lease, shall also serve a copy Termination Notice (as defined in section 22) Lessor shall, before serving such Termination Notice, use its best efforts to give to the holder of such any Qualified Mortgage a notice upon (the "Mortgagee Notice") that an Event of Default specified therein remains unremedied and that Lessor is entitled to serve a Termination Notice, and the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder Qualified Mortgage shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such defaultany Event of Default under clause (a), (b) or cause (c) of section 22 within a period of 10 days after its receipt of the same to be remedied, Mortgagee Notice and Lessor shall accept such performance by or at any other Event of Default within a period of 30 days after its receipt of the instance of such holder as if the same had been made by LesseeMortgagee Notice.
(iiib) For the purposes In case of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event an Event of defaultDefault (other than an Event of Default specified in clause (a), (b) or (c) of section 22 or an Event of Default specified in clause (d) of section 22 arising from the failure by Lessee to perform its obligations under section 11.1(a)) if, within 30 days after its receipt of the Mortgagee Notice, such holder shall:
(i) notify Lessor shall take no action of its election to effect a termination of this Lease without first giving proceed with due diligence promptly to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain acquire possession of the mortgaged property (including possession by a receiver) Combined Premises or (y) to institute, prosecute and complete foreclosure proceedings foreclose the Qualified Mortgage or otherwise acquire to extinguish Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s 's interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion ; and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.91 88
(vii) In deliver to Lessor an instrument (the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any "Payment 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(APerformance Agreement") Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing duly executed and shall be served by registered mail, addressed to acknowledged wherein such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.that:
Appears in 1 contract
Samples: Lease (Goldman Sachs Group Inc)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have Without the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the prior consent of Lessor. LesseeLandlord, and its successors and assigns, Tenant shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause mortgage this Lease and the same to be remedied, leasehold estate hereby created. The execution and Lessor delivery of a Mortgage shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall not be deemed to exist in respect constitute an assignment or transfer of this Lease nor shall the holder of any Mortgage, as such, be deemed an assignee or transferee of this Lease so as to require such holder to assume the performance of work required any of the covenants or agreements on the part of Tenant to be performedperformed hereunder. No action or agreement hereafter taken or entered into by Tenant to cancel, surrender, modify or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on amend this Lease shall be in writing and shall be served by registered mailbinding upon or enforceable against a Mortgagee, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgageesuch Mortgagee.
(ixb) The fee title A Mortgagee shall only have the rights provided for herein if there has been delivered to Landlord a true, correct and complete copy of the Leased Property Mortgage in question, together with written notice executed by Tenant setting forth the name and address of the Mortgagee. Landlord shall not be bound to recognize any assignment of a Mortgage unless and until Landlord shall be given written notice of such assignment and the leasehold estate created therein pursuant name and address of the assignee. A Mortgagee shall cease to be entitled to any of the provisions rights provided for herein if its Mortgage is satisfied or discharged of this Lease record or if Mortgagee has given written notice to Landlord that its Mortgage has been satisfied. Tenant shall not merge but grant any Mortgage unless such Mortgage shall always expressly state that the proceeds of any insurance policies and condemnation awards shall be kept separate held, used and distinct, notwithstanding applied for the union of such estates purposes and in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest the manner provided in this Lease, by foreclosure of and a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and Mortgagee whose Mortgage does not so provide shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee have no rights hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 Tenant shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, mortgage or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist pledge its interest in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to one or more Mortgagees which at any time and from time to time during the holder of such mortgage written notice thereof and a reasonable time thereafter within which either Term, provided however, that (x) to obtain possession until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of pre-development, development, construction, carry, and operations of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such holder Mortgage, shall agree with Lessor by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in writing this Section 10.04 and Section 10.05 and such other rights as are expressly granted to comply during Mortgagees in this Lease. No Mortgage shall be effective, unless: at the period time of making such forbearance with such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions and covenants of this Lease as are reasonably susceptible on the part of being complied Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion the granting of such foreclosure proceedings Mortgage or upon with the proceeds from such acquisition of LesseeMortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease, except that any of ; such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease; such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant after the foreclosure or transfer and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the foregoing.” Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a mortgage on this Lease duplicate original or certified copy thereof. Landlord shall be in writing and shall be served by registered mailgive to each Mortgagee, addressed to at the address of such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder. During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant. Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease). With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05. The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03. Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effect.
(viii) No agreement between Lessor the Premises. If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee). In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that: without the prior written consent of the leasehold mortgagee.
(ix) The fee title each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease; Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee (including the Mortgage language set forth in Section10.04(a)(iii)) as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder; the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchasedispute resolution proceedings under Article 34 hereof; the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, operation conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and at the request of law or otherwise.
(c) If Tenant from time to time, Landlord shall execute and deliver an instrument addressed to the holder of any leasehold mortgagee shall acquire title Mortgage confirming that such holder is a Mortgagee and entitled to Lessee’s interest the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The SAA shall apply to, and have priority and be superior to, any leasehold mortgage.
(x) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Master Lease Agreement (Moody National REIT I, Inc.)
Leasehold Mortgages. To Tenant and every successor and assign of Tenant is hereby given the extent any provision right by Landlord in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, subject to Landlord’s prior written consent, to mortgage its interests in this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its successors any sublease(s) under one or more leasehold mortgage(s) (each, a "Leasehold Mortgage"), and assignsassign this Lease, or any part or parts thereof, and any sublease(s) as collateral security for such Leasehold Mortgage(s), upon the condition that all rights acquired under such Leasehold Mortgage(s) shall, except as otherwise specifically provided herein, be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants, conditions and restrictions set forth in this Lease is or shall have be waived by Landlord by reason of the unconditional right given so to mortgage such interest in this Lease, except as expressly provided herein. Notwithstanding the foregoing, Tenant shall not create or permit to exist any lien, mortgage, or charge on, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lesseeof, and its successors and assignsor conditional sale or other title retention agreement with respect to, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment encumbrance of any interests kind on Landlord’s interest in Lessee shall be permitted without having to obtain Landlord’s estate and/or interest in the consent of Lessor.
(b) Demised Premises and/or this Lease. If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Leasehold Mortgage(s) (each, a "Leasehold Mortgagee") shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Leasehold Mortgagee and the pertinent recording date with respect to such Leasehold Mortgage(s), then Landlord agrees that so long as any such mortgage Leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the applicable Leasehold Mortgagee(s) to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the Leasehold Mortgagee(s);
(b) Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (viLeasehold Mortgagee(s). The Leasehold Mortgagee(s) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, thereupon have the right to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee(s) as if the same had been made done by LesseeTenant. If Tenant does not cure within the applicable cure period under this Lease, Landlord shall notify Leasehold Mortgagee(s) if it intends to terminate this Lease and Leasehold Mortgagee(s) shall, after receiving such notice, have forty-five (45) days from the date of service of notice of termination upon such Leasehold Mortgagee(s) to notify Landlord of its desire to nullify such notice and shall have paid to Landlord all Rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, except as provided in Section (g) hereof, if any are then in default, and shall prosecute the same to completion with reasonable diligence (not to exceed ninety (90) days unless such default cannot reasonably be cured within said ninety (90) day period or possession of the Demised Premises is required for such cure), then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect;
(c) If Landlord shall elect to terminate this Lease by reason of any default of Tenant, the Leasehold Mortgagee(s) shall not only have the right to nullify any notice of termination by curing such default, as aforesaid, provided that such Leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay Rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant’s part to be complied with and performed, other than past non-monetary defaults, and provided further that the Leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant’s interest in this Lease by foreclosure of the Leasehold Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence.
(iiid) For Subject to the purposes terms of this ArticleSection (b) and (c) above, no event the Leasehold Mortgagee, or its successors, assignees, or any purchaser at a foreclosure sale (each a "Purchaser") shall have the unrestricted right to acquire Tenant’s interest under the Lease by foreclosure, assignment or transfer in lieu of default foreclosure or otherwise, and such acquisition shall not require Landlord’s consent or be deemed a default under the Lease. Upon Landlord’s receipt from Leasehold Mortgagee of written notice of such an acquisition sent to exist Landlord at the address set forth below (or to any other address given by Landlord in respect writing to Leasehold Mortgagee), Landlord shall permit the Purchaser to enter into possession of the performance Property and to hold the same and exercise and enjoy all of work the rights, privileges and benefits of Tenant under the Lease (without any representations or warranties of the validity of such rights), and such acquisition shall constitute an assumption by the Purchaser of Tenant’s obligations under the Lease, provided, however, that the Purchaser shall not be liable for Tenant’s obligations under the Lease until it shall become the owner of the Lease, either by foreclosure or assignment in lieu thereof or otherwise, and then only during the period of time it is the owner of said Lease; provided, however, that, as a condition to the right of the Purchaser to acquire Tenant’s leasehold estate as aforesaid, Purchaser shall promptly upon acquiring the leasehold estate, cure all of the defaults of Tenant under the Lease which are outstanding as of the date of such acquisition of the leasehold estate, except as provided in Section (c) above and (g) below;
(e) Landlord agrees that the name of the Leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be performed, or of acts carried by Tenant hereunder on condition that the insurance proceeds are to be done, applied in the manner specified in this Lease and that the Leasehold Mortgage(s) or of conditions to be remedied, if steps collateral document shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.so provide;
(ivf) Notwithstanding anything herein contained to Landlord agrees that in the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant (other than a monetary default which Leasehold Mortgagee does not cure) that Landlord will enter into a new lease of the Demised Premises with the Leasehold Mortgagee or its nominee(s) for the remainder of the term effective as of the date of such termination, with the same Rent and upon the terms and, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
(i) Said Leasehold Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within forty-five (45) days after Leasehold Mortgagee receives notice of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: ;
(xii) such holder Said Leasehold Mortgagee(s) or its nominee(s) shall not be obligated pay to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during Landlord at the period of such forbearance with such time of the termsexecution and delivery of said new lease, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorneys’ fees, to which Landlord shall have been subjected by reason of such default;
(iii) Said Leasehold Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant’s part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease;
(Aiv) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Demised Premises to tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease;
(Bv) Such new lease shall be effective expressly made subject to the rights, if any, of Tenant under this Lease as at terminated; and
(vi) Tenant under such new lease shall have the date same right, title and interest in and to the Building and Improvements on the Demised Premises as Tenant had under this Lease as terminated;
(g) Nothing herein contained shall require the Leasehold Mortgagee(s) or its nominee(s) to cure any default of termination Tenant referred to in the Lease or any other nonmonetary default which are not otherwise curable by Leasehold Mortgagee due to the nature of the default;
(h) Without City’s prior written consent, Developer shall not (a) obtain any financing to be secured by a lien on or security interest in this Lease or the Property, or (b) allow any encumbrance or lien to be created on or attached to this Lease or the Property, whether by voluntary act of the Developer or otherwise. The City shall not unreasonably withhold its consent to any such financing or encumbrance if Developer submits to City an affidavit from Developer and its lender that (i) all funds advanced will be used solely and absolutely for the development and improvement of the Property and for no other purpose whatsoever, (ii) the amount of such financing does not exceed 75% of the greater of (a) the Purchase Price for the Property, if within the first five (5) years of this Lease, or if not, then established by an appraisal performed at Developer’s cost by an independent qualified appraiser with not less than 10 years of experience valuing similar properties in the City of Tempe, or (b) the cost to complete the improvements, and shall (iii) the loan documents provide that City will not be for the remainder required to perform any obligation of Developer other than making regularly-scheduled principal and interest payments on that portion of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow financing allocable to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseProperty.
(vii) Any notice The proceeds from any insurance policies or other communication which Lessor shall desire or is required to give to or serve upon the holder of arising from a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any Leasehold Mortgagee(s) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the Leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or any part, of Tenant’s share of such proceeds not required for restoration pursuant to such Leasehold Mortgage(s);
(k) The Leasehold Mortgagee(s) shall be given notice of any litigation or arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the Leasehold Mortgagee(s) shall not merge but elect to intervene or become a party to such proceedings, the Leasehold Mortgagee(s) shall always be kept separate receive notice of, and distinct, notwithstanding the union a copy of such estates any award or decision made in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisesaid arbitration proceedings.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To Tenant will have the extent any provision right to mortgage or pledge its interest in this Article 24 conflicts Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.05 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, unless: at the time of making such Mortgage there is inconsistent no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with any other provision the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease; such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease; such Mortgage will contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the provisions leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of this Article 24 shall control.
(a) Lesseesuch sale or transfer of said Lease and the effective date thereof, and its successors and assigns, shall have the unconditional right (ii) such purchaser or transferee has delivered to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all Landlord a duplicate original or a portion certified copy of the Leased Property without having instrument of sale or transfer to obtain Landlord. “The purchaser or transferee of said Lease will, effective from and after the consent effective date of Lessor. Any pledge the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant after the foreclosure or transfer and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any interests insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance accordance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied the Lease. “In the event of recordforeclosure, the following provisions shall apply:
mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (iexcept for default) Lessorof, upon serving Lessee any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Lease and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with any notice the consent of defaultthe mortgagor or its predecessors in interest, or any other notice under may hereafter be modified, amended or renewed with the provisions consent of or with respect to this Leasethe mortgagee. Nevertheless, shall also serve a copy of such notice upon the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the foregoing.” Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof. Landlord will give to each Mortgagee, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, each Mortgagee will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if a Mortgagee of any covenant, condition, or agreement on Tenant’s part to be performed hereunder with the same had been force and effect as though performed by Tenant, so long as such performance is made by Lessee.
(iii) For in accordance with the purposes terms and provisions of this ArticleLease. Landlord will not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, no event of default shall be deemed to exist provided such entry is in respect compliance with all Applicable Laws. If possession of the performance Premises or any part thereof is required in order to cure such Event of work required Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder. During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in connection accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee will have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant. Notwithstanding anything in this Section 10.04 to the contrary, a rejection Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in the event lieu of a bankruptcy of Lessee)foreclosure (provided however, Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of Landlord may continue to pursue any and all sums which would remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that time be due any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease but for such terminationor a New Lease). With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and of all other defaultsso long as, if anypossession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord will not exercise any of Landlord’s Termination Rights so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease will, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05. The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, will not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee will be an Event of Default under this Lease then known to Lessorunless such assignment meets the requirements of Section 10.03. Such holder shall thereupon have the option to obtain a new Lease Except as provided in accordance with and upon the following terms and conditions:
clause (A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (vd) of this SectionSection 10.04, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no Mortgagee will become liable under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage shall be prior in lien thereto estate created hereby and thereupon the written requests for a new lease no performance by or on behalf of each holder such Mortgagee of a leasehold mortgage junior in lien shall be and Tenant’s obligations hereunder will cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee will take control or possession of no force the Premises. If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee will be exercisable only by the party whose collateral interest in the Premises is senior in lien (or effect.
(viii) No agreement between Lessor which has obtained the consent of any Mortgagees that are senior to such Mortgagee). In addition to the other rights, notices and Lessee modifyingcure periods afforded to the holders of any Mortgage, canceling or surrendering this Lease shall be effective Landlord further agrees that: without the prior written consent of the leasehold mortgagee.
(ix) The fee title each holder of a Mortgage, Landlord will neither agree to the Leased Property and the leasehold estate created therein pursuant to the provisions any modification or amendment of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, nor accept a surrender or cancellation of this Lease; Landlord will consider in good faith any modification to the Lease requested by foreclosure a Mortgagee or prospective Mortgagee (including the Mortgage language set forth in Section10.04(a)(iii)) as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder; the holder of Lessee hereunder.
(d) Lessor hereby agrees the Mortgage most senior in lien priority on this Lease will have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof; the holder of the Mortgage most senior in lien priority on this Lease will have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and at the request of Tenant from time to time, Landlord will execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, The Concessionaire shall have the unconditional right right, at its sole cost and expense, to mortgagegrant one or more Leasehold Mortgages, pledge and/or assign this Lease without having to obtain secured by the consent of Lessor. Lessee, and its successors and assigns, shall have Concessionaire Interest or the unconditional right to sublet all or a portion of Utility Fee if at the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as time any such mortgage shall remain unsatisfied of record, Leasehold Mortgage is executed and delivered to the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this ArticleLeasehold Mortgagee, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with Concessionaire Default exists and upon and subject to the following terms and conditions:
(Aa) Upon a Leasehold Mortgage may not cover any property of, or secure any debt issued or guaranteed by, any Person other than the written request Concessionaire or the Concessionaire’s Parent, but may cover shares or equity interests in the capital of the holder Concessionaire and any cash reserves or deposits held in the name of the Concessionaire;
(b) no Person other than an Institutional Lender shall be entitled to the benefits and protections accorded to a Leasehold Mortgagee in this Agreement; provided, however, that lessors and lenders to the Concessionaire (and lenders to a Leasehold Mortgagee that is a Lessor) may be Persons other than Institutional Lenders so long as any Leasehold Mortgage securing the loans made by such Persons is held by an Institutional Lender acting as collateral agent or trustee;
(c) no Leasehold Mortgage or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge or security interest on or against any or all of the Concessionaire Interest shall extend to or affect the fee simple interest in the Utility System, the University’s interest hereunder or the University’s reversionary interests and estates in and to the Utility System or any part thereof; in addition, any foreclosure or termination of this Agreement by the University shall simultaneously terminate the Leasehold Mortgage, provided that such termination shall not affect, modify or terminate the Concessionaire’s obligations to the Leasehold Mortgagee with respect to the Leasehold Mortgage Debt;
(d) the University shall have no liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, or any interest accrued thereon or any other sum secured thereby or accruing thereunder, and, except for violation by the University of express obligations set forth herein or in any other agreement with the Leasehold Mortgagee, the Leasehold Mortgagee shall not be entitled to seek any damages or other amounts against the University for any or all of the same;
(e) the University shall have no obligation to any Leasehold Mortgagee in the enforcement of the rights and remedies of the University under this Agreement or by Law, except as expressly set forth in this Agreement or in any agreement with the Leasehold Mortgagee and unless such Leasehold Mortgagee has provided the University with notice of its Leasehold Mortgage in accordance with the Leasehold Mortgagee Notice Requirements;
(f) each Leasehold Mortgage shall provide that if the Concessionaire is in default under the Leasehold Mortgage and the Leasehold Mortgagee gives notice of such mortgagedefault to the Concessionaire, within thirty (30) days after service then the Leasehold Mortgagee shall give written notice of such notice that default to the Lease University;
(g) subject to the terms of this Agreement and the terms of any direct consent agreement executed by and between the University and Leasehold Mortgagee, all rights acquired by a Leasehold Mortgagee under any Leasehold Mortgage shall be subject and subordinate to all of the provisions of this Agreement and to all of the rights of the University hereunder and the Leasehold Mortgagee shall agree to be bound by the terms of this Agreement to the extent applicable to the Leasehold Mortgagee;
(h) notwithstanding any enforcement of the security of any Leasehold Mortgage, the Concessionaire shall remain liable to the University for the payment of all sums owing to the University under this Agreement and the performance and observance of all of the Concessionaire’s covenants and obligations under this Agreement; and
(i) a Leasehold Mortgagee shall not, by virtue of its Leasehold Mortgage, acquire any greater rights or interest in the Utility System than the Concessionaire has been terminatedat any applicable time under this Agreement, Lessor other than such rights granted expressly to such Leasehold Mortgagee pursuant to this Article 19, and each Leasehold Mortgagee, the University and the Concessionaire shall enter into a new lease consent agreement in a form acceptable to all parties; provided that such consent agreement shall be in a customary form and shall include the rights and protections provided to the Leasehold Mortgagees in this Agreement. While any Leasehold Mortgage is outstanding, the University shall not agree to any amendment or modification of this Agreement that could reasonably be expected to have a material adverse effect on the rights or interests of the Leased Property with such holder, Leasehold Mortgagee or his designee, as follows:
(B) Such new lease shall be effective as at the date of agree to a voluntary surrender or termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used Agreement by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective Concessionaire without the prior written consent of the leasehold mortgageeLeasehold Mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) LessorWithin 90 days after the Effective Date, upon serving Lessee the Borrower shall deliver to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit E hereto (with any notice such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the properties listed on Schedule 5.01(r)(i) hereto, duly executed by the appropriate Loan Party (collectively, the “Leasehold Mortgages”), together with (A) evidence that counterparts of defaultthe Leasehold Mortgages have been duly executed, acknowledged and delivered in form suitable for filing or any recording, in all filing or recording offices that are necessary, in the Administrative Agent’s reasonable judgment, in order to create a valid first and subsisting Lien (subject only to the Permitted Encumbrances) on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid (or duly provided for in a manner acceptable to the Administrative Agent), (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or other notice insurance policies customarily available in relevant jurisdictions for each of the Mortgages (in each case, the “Leasehold Mortgage Policies”) in form and substance, with endorsements and in an amount reasonably acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Administrative Agent, insuring the Leasehold Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects and encumbrances, excepting only Permitted Encumbrances, which include no standard survey exception, and providing for such other affirmative insurance (including endorsements for future advances under the provisions Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable, (C) estoppel and consent agreements, in form and substance reasonably satisfactory to the Administrative Agent, executed by each of or the lessors of the leased real properties listed on Schedule 5.01(r)(ii) hereto, along with (x) a memorandum of lease in recordable form with respect to this Leasesuch leasehold interest, shall also serve executed and acknowledged by the owner of the affected real property, as lessor, or (y) evidence that the applicable lease with respect to such leasehold interest or a copy memorandum thereof has been recorded in all places necessary, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such notice upon leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such mortgageholder, at the address provided for in clause (vi) of this Section 24.1(b)each case in form sufficient to give such constructive notice upon recordation, and no notice otherwise in form reasonably satisfactory to the Administrative Agent, (D) evidence of the insurance required by Lessor the terms of the Leasehold Mortgages, (E) a corporate formalities opinion relating to Lessee hereunder shall be deemed the valid existence and good standing of the applicable Loan Parties and the due authorization, execution and delivery of the Leasehold Mortgages in a form and from a law firm acceptable to have been duly given unless the Administrative Agent in its reasonable discretion, such opinion being substantially in the form of Exhibit H-2 hereto, and until otherwise in form and substance reasonably satisfactory to the Administrative Agent, (F) opinions of local counsel for the Loan Parties in states in which the properties encumbered by a copy thereof Leasehold Mortgage are located, with respect to the enforceability and perfection of the leasehold Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent and (vii) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may deem reasonably necessary or desirable and evidence that all other actions that the Administrative Agent may deem reasonably necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been so servedtaken.
(ii) Any holder of such mortgage, Notwithstanding anything to the contrary in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
clause (iiii) For the purposes of this ArticleSection 5.01(r), no event of default shall be deemed with respect to exist in respect of the performance of work any leasehold interest required to be performedencumbered with a first priority Leasehold Mortgage pursuant to clause (i), (A) the Borrower shall use commercially reasonable efforts to obtain (y) (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the lessor of such leasehold interest, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of acts such leasehold interest, and (z) any lessor consent or approval of such Leasehold Mortgage as may be required pursuant to be donethe terms of the applicable lease with respect to such leasehold interest, and (B) if the Borrower shall fail to obtain the documents referred to in clauses (y) or of conditions (z) above with respect to be remediedany such leasehold interest, if steps after using commercially reasonable efforts to do so, the Borrower shall have no further obligation to comply with this Section with respect to the applicable leasehold interest. As used in good faiththis Section, have been commenced within “commercially reasonable efforts” shall require the time permitted therefor Borrower to rectify commence the same and shall be prosecuted matter referred to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained in a manner consistent with customary business practices, but shall not require that the Borrower commence litigation or expend any sums of money except such sums as may be required to compensate a lessor for reasonable expenses in reviewing the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property applicable documentation (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, fees in connection with a rejection of this Lease in such review). The Borrower shall promptly, upon request, provide the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together Administrative Agent 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 Lessor. Such holder shall thereupon have report in reasonable detail summarizing the option commercially reasonable efforts undertaken to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth items referenced in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailclause (ii).
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Credit Agreement (Hexacomb CORP)
Leasehold Mortgages. To Tenant and every successor and assign of Tenant is hereby given the extent any provision right by Landlord, in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, to mortgage its interests in this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its successors any sublease(s) under one or more leasehold mortgage(s) (each, a "Leasehold Mortgage"), and assignsassign this Lease, or any part or parts thereof, and any sublease(s) as collateral security for such Leasehold Mortgage(s), upon the condition that all rights acquired under such Leasehold Mortgage(s) shall, except as otherwise specifically provided herein, be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants, conditions and restrictions set forth in this Lease is or shall have be waived by Landlord by reason of the unconditional right given so to mortgage such interest in this Lease, except as expressly provided herein. Notwithstanding the foregoing, Tenant shall not create or permit to exist any lien, mortgage, or charge on, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lesseeof, and its successors and assignsor conditional sale or other title retention agreement with respect to, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment encumbrance of any interests kind on Landlord's interest in Lessee shall be permitted without having to obtain Landlord's estate and/or interest in the consent of Lessor.
(b) Premises and/or this Lease. If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Leasehold Mortgage(s) (each, a "Leasehold Mortgagee") shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Section, then the Leasehold Mortgagee and the pertinent recording date with respect to such Leasehold Mortgage(s). Landlord agrees that so long as any such mortgage Leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the applicable Leasehold Mortgagee(s) to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the Leasehold Mortgagee(s) and as more completely described below;
(b) Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (viLeasehold Mortgagee(s). The Leasehold Mortgagee(s) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, thereupon have the right to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee(s) as if the same had been made done by LesseeTenant. If Tenant does not cure within the applicable cure period under this Lease, Landlord shall notify Leasehold Mortgagee(s) if it intends to terminate this Lease and Leasehold Mortgagee(s) shall, after receiving such notice, have forty-five (45) days from the date of service of notice of termination upon such Leasehold Mortgagee(s) to notify Landlord of its desire to nullify such notice and shall have paid to Landlord all Rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, except as provided in Section (g) hereof, if any are then in default, and shall prosecute the same to completion with reasonable diligence (not to exceed ninety (90) days unless such default cannot reasonably be cured within said ninety (90) day period or possession of the Premises is required to make such cure;
(c) If Landlord shall elect to terminate this Lease by reason of any default of Tenant, the Leasehold Mortgagee(s) shall have the right to nullify any notice of termination by curing such default, as aforesaid, provided that such Leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay Rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than past non-monetary defaults, and provided further that the Leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the Leasehold Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence.
(iiid) For Subject to the purposes terms of this Articlesubsections (b) and (c) above, no event the Leasehold Mortgagee, or its successors, assignees, or any purchaser at a foreclosure sale (each a "Purchaser") shall have the unrestricted right to acquire Tenant's interest under the Lease by foreclosure, assignment or transfer in lieu of default foreclosure or otherwise, and such acquisition shall not require Landlord's consent or be deemed a default under the Lease. Upon Landlord's receipt from Leasehold Mortgagee of written notice of such an acquisition sent to exist Landlord at the address set forth below (or to any other address given by Landlord in respect writing to Leasehold Mortgagee), Landlord shall permit the Purchaser to enter into possession of the performance Property and to hold the same and exercise and enjoy all of work the rights, privileges and benefits of Tenant under the Lease (without any representations or warranties of the validity of such rights), and such acquisition shall constitute an assumption by the Purchaser of Tenant's obligations under the Lease, provided, however, that the Purchaser shall not be liable for Tenant's obligations under the Lease until it shall become the owner of the Lease, either by foreclosure or assignment in lieu thereof or otherwise, and then only during the period of time it is the owner of said Lease; provided, however, that, as a condition to the right of the Purchaser to acquire Tenant's leasehold estate as aforesaid, Purchaser shall promptly upon acquiring the leasehold estate, cure all of the defaults of Tenant under the Lease which are outstanding as of the date of such acquisition of the leasehold estate, except as provided in Section (c) above and (g) below;
(e) Landlord agrees that the name of the Leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.carried by Tenant hereunder;
(ivf) Notwithstanding anything herein contained to Landlord agrees that in the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant that Landlord will enter into a new lease of the Premises with the Leasehold Mortgagee or its nominee(s) for the remainder of the term effective as of the date of such termination, with the same Rent and upon the terms and, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Premises, provided: said Leasehold Mortgagee(s) or its nominee(s) shall make written request upon Landlord for such new lease within forty-five (45) days after Leasehold Mortgagee receives notice of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: ;
(xi) such holder Said Leasehold Mortgagee(s) or its nominee(s) shall not be obligated pay to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during Landlord at the period of such forbearance with such time of the termsexecution and delivery of said new lease, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorneys' fees, to which Landlord shall have been subjected by reason of such default;
(ii) Said Leasehold Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease;
(Aiii) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Premises to tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease;
(Biv) Such new lease shall be effective as at expressly made subject to the date rights, if any, of termination of this Lease, and shall be for the remainder of the term of Tenant under this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.as terminated; and
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant Tenant under such new lease for shall have the purposes of same right, title and interest in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant and to the request Improvements on the Premises as Tenant had under this Lease as terminated;
(g) Nothing herein contained shall require the Leasehold Mortgagee(s) or its nominee(s) to cure any default of Tenant referred to in the Lease or any other nonmonetary default which are not otherwise curable by Leasehold Mortgagee due to the nature of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.default;
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts A. If Lessee shall execute a Leasehold Mortgage of its leasehold estate to an entity which is not directly or indirectly owned or controlled by, or is inconsistent not under common ownership or control with any other provision Lessee (collectively, an “Unaffiliated Entity” hereafter), and if the holder of this Leasesuch Leasehold Mortgage shall provide the City with notice of such Leasehold Mortgage together with a true copy of such Leasehold Mortgage and the name and address of the Mortgagee, then following receipt of such notice by the City, the provisions of this Article 24 shall controlapply in respect 8/9/2017 REVISION - AIRPORT STANDARD GOUND LEASE: CITY LESSEE to such Leasehold Mortgage.
(a) LesseeB. The term "Leasehold Mortgage" as used in this Agreement shall include, and its successors and assignsbut not be limited to, shall have the unconditional right to a mortgage, pledge and/or assign this Lease without having a deed of trust, a deed to obtain secure debt, or other security instrument by which Xxxxxx's leasehold estate is mortgaged, conveyed, assigned, or otherwise transferred, to secure a debt or other obligation, in connection with the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessorconstruction contemplated.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) LessorC. The City, upon serving providing Lessee with any notice of default, default under this Agreement or any other notice under the provisions termination of or with respect to this LeaseAgreement, shall also serve at the same time provide a copy of such notice upon to the holder of such mortgage, Leasehold Mortgagee by first class U.S. mail at the address provided for specified in clause (vi) of this the notice given pursuant to Article IX, Section 24.1(b)A, and no notice by Lessor to Lessee hereunder above. Such Leasehold Mortgagee shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right additional periods of time specified in Article IX, Section D hereof to remedy such defaultremedy, commence remedying, or cause the same to be remedied, and Lessor remedied the default or acts or omissions which are specified in any such notice. The City shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee as if the same had been made done by LesseeXxxxxx.
D. Anything contained in this Agreement to the contrary notwithstanding, if any default shall occur which entitles the City to terminate this Agreement, the City shall have no right to terminate this Agreement unless, following the expiration of the period of time given Lessee to cure such default or the act or omission which gave rise to such default, the Leasehold Mortgagee is given an additional period of ninety (iii90) For days to:
1. Notify the purposes City of such Leasehold Mortgagee’s desire to defeat such Termination Notice; and
2. Pay or cause to be paid all rent, additional rent, and other payments then due and in arrears as specified in the Termination Notice to such Leasehold Mortgagee and which may become due during such ninety (90) day period; and
3. Comply with due diligence and continuity, or in good faith commence to and with diligence continue to pursue compliance with all non-monetary requirements of this Article8/9/2017 REVISION - AIRPORT STANDARD GOUND LEASE: CITY LESSEE Agreement then in default.
E. The making of a Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Agreement or of the leasehold estate hereby created, no event nor shall the Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of default this Agreement or of the leasehold estate hereby created so as to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions of this Agreement. Any Leasehold Mortgagee who takes an instrument of assignment or transfer in lieu of the foreclosure of the Leasehold Mortgagee shall be deemed to exist in respect of the performance of work required to be performeda permitted assignee or transferee, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event agreed to perform all of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights on the part of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed hereunder from and after the date of such purchase and assignment, provided that but only for so long as such purchaser or assignee assumes is the obligations owner of Lessee hereunderthe leasehold estate. If the Leasehold Mortgagee or its designee shall become holder of the leasehold estate and if the Hangar and Improvements on the Leased Premises shall have been or become materially damaged on, before or after the date of such purchase and assignment, the Leasehold Mortgagee or its designee shall be obligated to repair, replace or reconstruct the building or other improvements.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, Tenant and its successors and assignsassigns are hereby given the right by Landlord in addition to any other rights herein granted, shall have the unconditional right without Landlord's prior written consent, to mortgagemortgage its interests in this Lease and any sublease(s) under one or more first leasehold mortgages, pledge and/or and assign this Lease without having to obtain the consent of Lessor. LesseeLease, and any sublease(s) as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given to mortgage such interest in this Lease, except as expressly provided herein. If Tenant or its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, assigns shall mortgage this Lease in compliance leasehold, and if the holder(s) of such Mortgage(s) shall send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Mortgagee and the pertinent recording date, then if any, with respect to such Mortgage(s) (which notice provision may be satisfied by a letter from the leasehold Mortgagee to Landlord specifying each Building location subject to such mortgage, and that a true and correct form of such leasehold Mortgage is attached to such letter), Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
(b) Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgage, at leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the address provided for in clause same period (viplus an additional fifteen (15) of this Section 24.1(bdays), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder after service of such mortgagenotice upon it, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remediedremedied the default complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeTenant.
(iiic) For Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the purposes of this Articleholder(s) to Landlord, no event of if any default shall be deemed occur which, pursuant to exist in respect any provision of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion entitles Landlord to terminate this Lease, and acquisition shall then be cured with reasonable diligence. Such holderif, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to before the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after from the date of service of notice of termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and additional rent and other payments herein provided for which are then in default, and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, which are then in default and which are capable of cure by such leasehold Mortgagee(s), and shall prosecute the same to completion with due diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
(d) Landlord agrees that the name of the leasehold Mortgagee(s) may be added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease.
(e) Landlord agrees that, in the event of termination of this Lease has been terminatedby reason of any default by Tenant or rejection in bankruptcy, Lessor shall Landlord will enter into a new lease of the Leased Property with the leasehold Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of the date of such holdertermination, or his designeeat the rent and additional rent and upon the terms, provisions, covenants and agreements as followsherein contained, and to the rights, if any, of any parties then in possession of any part of the Leased Property, provided:
(Bi) Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within thirty (30) days after the date of such termination and such written request is accompanied by payment to Landlord of sums then due to Landlord under this Lease;
(ii) Said Mortgagee(s) or its nominee(s) shall thereafter pay to Landlord at the time of the execution and delivery of said new lease, any and all sums which would at the time of the execution and delivery thereof, be due pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorneys' fees, to which Landlord shall have been subjected by reason of such default (after Landlord has applied any security held hereunder);
(iii) Said Mortgagee(s) or its nominee(s) shall thereafter perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease;
(iv) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of Tenant under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new terminated lease.;
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the The tenant under such new lease for shall have the purposes of same right, title and interest in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant and to the request of the holder whose leasehold mortgage shall be prior in lien thereto buildings and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to improvements on the Leased Property and as Tenant had under the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseterminated lease.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Restaurant Lease (Ich Corp /De/)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have Without the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the prior consent of Lessor. LesseeLandlord, and its successors and assigns, Tenant shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause mortgage this Lease and the same to be remedied, leasehold estate hereby created. The execution and Lessor delivery of a Mortgage shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall not be deemed to exist in respect constitute an assignment or transfer of this Lease nor shall the holder of any Mortgage, as such, be deemed an assignee or transferee of this Lease so as to require such holder to assume the performance of work required any of the covenants or agreements on the part of Tenant to be performedperformed hereunder. No action or agreement hereafter taken or entered into by Tenant to cancel, surrender, modify or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on amend this Lease shall be in writing and shall be served by registered mailbinding upon or enforceable against a Mortgage, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgageesuch Mortgagee.
(ixb) The fee title A Mortgagee shall only have the rights provided for herein if there has been delivered to Landlord a true, correct and complete copy of the Leased Property Mortgage in question, together with written notice executed by Tenant setting forth the name and address of the Mortgagee. Landlord shall not be bound to recognize any assignment of a Mortgage unless and until Landlord shall be given written notice of such assignment and the leasehold estate created therein pursuant name and address of the assignee. A Mortgagee shall cease to be entitled to any of the provisions rights provided for herein if its Mortgage is satisfied or discharged of this Lease record or if Mortgagee has given written notice to Landlord that its Mortgage has been satisfied. Tenant shall not merge but grant any Mortgage unless such Mortgage shall always expressly state that the proceeds of any insurance policies and condemnation awards shall be kept separate held, used and distinct, notwithstanding applied for purposes and in the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest manner provided in this Lease, by foreclosure of and a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and Mortgagee whose Mortgage does not so provide shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee have no rights hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, The Concessionaire shall have the unconditional right right, at its sole cost and expense, to mortgagegrant one or more (subject to Section 18.7) Leasehold Mortgages, pledge and/or assign this Lease without having to obtain secured by the consent of Lessor. Lessee, and its successors and assigns, shall have Concessionaire Interest or Revenues if at the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as time any such mortgage shall remain unsatisfied of record, Leasehold Mortgage is executed and delivered to the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this ArticleLeasehold Mortgagee, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of Concessionaire Default exists unless any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then Concessionaire Default will be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior pursuant to the expiration of the Term (including, without limitation, Section 18.3 in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of entering into such mortgage 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 terminationLeasehold Mortgage, and of all other defaults, if any, under this Lease then known upon and subject to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(Aa) Upon a Leasehold Mortgage may not cover any property of, or secure any debt issued or guaranteed by, any Person other than the written request Concessionaire, but may cover shares or equity interests in the capital of the holder Concessionaire and any cash reserves or deposits held in the name of the Concessionaire;
(b) no Person other than an Institutional Lender shall be entitled to the benefits and protections accorded to a Leasehold Mortgagee in this Agreement; provided, however, that lessors and lenders to the Concessionaire (and lenders to a Leasehold Mortgagee that is a Lessor) may be Persons other than Institutional Lenders so long as any Leasehold Mortgage securing the loans made by such Persons is held by an Institutional Lender acting as collateral agent or trustee;
(c) no Leasehold Mortgage or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge or security interest on or against any or all of the Concessionaire Interest shall extend to or affect the fee simple interest in the System, the City interest hereunder or its reversionary interests and estates in and to the System or any part thereof;
(d) the City shall have no liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, or any interest accrued thereon or any other sum secured thereby or accruing thereunder, and, except for violation by the City of express obligations set forth herein, the Leasehold Mortgagee shall not be entitled to seek any damages or other amounts against the City for any or all of the same;
(e) the City shall have no obligation to any Leasehold Mortgagee in the enforcement of the rights and remedies of the City under this Agreement or by Law provided, except as expressly set forth in this Agreement and unless such Leasehold Mortgagee has provided the City with notice of its Leasehold Mortgage in accordance with the Leasehold Mortgagee Notice Requirements;
(f) each Leasehold Mortgage shall provide that if the Concessionaire is in default under the Leasehold Mortgage and the Leasehold Mortgagee gives notice of such mortgagedefault to the Concessionaire, within thirty (30) days after service then the Leasehold Mortgagee shall give notice of such notice default to the City;
(g) subject to the terms of this Agreement, all rights acquired by a Leasehold Mortgagee under any Leasehold Mortgage shall be subject and subordinate to all of the provisions of this Agreement and to all of the rights of the City hereunder;
(h) while any Leasehold Mortgage is outstanding, the City shall not agree to any amendment or modification of this Agreement that could reasonably be expected to have a material adverse effect on the Lease rights or interests of the Leasehold Mortgagee or agree to a voluntary surrender or termination of this Agreement by the Concessionaire without the consent of the Leasehold Mortgagee;
(i) notwithstanding any enforcement of the security of any Leasehold Mortgage, the Concessionaire shall remain liable to the City for the payment of all sums owing to the City under this Agreement and the performance and observance of all of the Concessionaire’s covenants and obligations under this Agreement; and
(j) a Leasehold Mortgagee shall not, by virtue of its Leasehold Mortgage, acquire any greater rights or interest in the System than the Concessionaire has been terminatedat any applicable time under this Agreement, Lessor other than such rights or interest as may be granted or acquired in accordance with Section 18.2, 18.3, 18.4 or 18.5; and each Leasehold Mortgagee, the City and the Concessionaire shall enter into a new lease of the Leased Property with consent agreement in a form acceptable to all parties; provided that such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease consent agreement shall be in writing a customary form and shall be served by registered mail, addressed include the rights and protections provided to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth Leasehold Mortgagees in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailAgreement.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Concession and Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts A. If Lessee shall execute a Leasehold Mortgage of its leasehold estate to an entity which is not directly or indirectly owned or controlled by, or is inconsistent not under common ownership or control with any other provision Lessee (collectively, a n “Unaffiliated Entity” hereafter), and if the holder of this Leasesuch Leasehold Mortgage shall provide the City with notice of such Leasehold Mortgage together with a true copy of such Leasehold Mortgage and the name and address of the Mortgagee, then following receipt of such notice by the City, the provisions of this Article 24 10 shall controlapply in respect to such Leasehold Mortgage.
(a) LesseeB. The term "Leasehold Mortgage" as used in this Agreement shall include, and its successors and assignsbut not be limited to, shall have the unconditional right to a mortgage, pledge and/or assign this Lease without having a deed of trust, a deed to obtain secure debt, or other security instrument by which Lessee's leasehold estate is mortgaged, conveyed, assigned, or otherwise transferred, to secure a debt or other obligation, in connection with the consent of Lessor. Lesseeconstruction contemplated by Articles 4.4 through 4.5, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessorabove.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) LessorC. The City, upon serving providing Lessee with any notice of default, default under this Agreement or any other notice under the provisions termination of or with respect to this LeaseAgreement, shall also serve at the same time provide a copy of such notice upon to the holder of such mortgage, Leasehold Mortgagee by first class U.S. mail at the address provided for specified in clause (vi) of this the notice given pursuant to Section 24.1(b)10.1, and no notice by Lessor to Lessee hereunder above. Such Leasehold Mortgagee shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right additional periods of time specified in Sections 10.4 hereof to remedy such defaultremedy, commence remedying, or cause the same to be remedied, and Lessor remedied the default or acts or omissions which are specified in any such notice. The City shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee as if the same had been made done by Lessee.
D. Anything contained in this Agreement to the contrary notwithstanding, if any default shall occur which entitles the City to terminate this Agreement, the City shall have no right to terminate this Agreement unless, following the expiration of the period of time given Lessee to cure such default or the act or omission which gave rise to such default, the Leasehold Mortgagee is given an additional period of thirty (iii30) For days to:
1. Notify the purposes City of such Leasehold Mortgagee's desire to defeat such Termination Notice; and
2. Pay or cause to be paid all rent, additional rent, and other payments then due and in arrears as specified in the Termination Notice to such Leasehold Mortgagee and which may become due during such thirty (30) day period; and
3. Comply with due diligence and continuity, or in good faith commence to and with diligence continue to pursue compliance with all non-monetary requirements of this ArticleAgreement then in default.
E. The making of a Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Agreement or of the leasehold estate hereby created, no event nor shall the Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of default this Agreement or of the leasehold estate hereby created so as to require such Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions of this Agreement. Any Leasehold Mortgagee who takes an instrument of assignment or transfer in lieu of the foreclosure of the Leasehold Mortgagee shall be deemed to exist in respect of the performance of work required to be performeda permitted assignee or transferee, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event agreed to perform all of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights on the part of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed hereunder from and after the date of such purchase and assignment, provided that but only for so long as such purchaser or assignee assumes is the obligations owner of Lessee hereunderthe leasehold estate. If the Leasehold Mortgagee or its designee shall become holder of the leasehold estate and if the Hangar and Improvements on the Leased Premises shall have been or become materially damaged on, before or after the date of such purchase and assignment, the Leasehold Mortgagee or its designee shall be obligated to repair, replace or reconstruct the building or other improvements.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Hangar Ground Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, A. The Lessee shall have the unconditional right unrestricted right, from time to mortgagetime, pledge and/or assign to encumber, hypothecate, or mortgage its interest in this Lease and the leasehold estate created hereby under one or more "Leasehold Mortgage(s)" (as hereinafter defined) to a "Leasehold Mortgagee" (as hereinafter defined) without the prior consent of the Authority upon the condition, however, that all rights acquired under a Leasehold Mortgage shall be subject to all the covenants, conditions, and restrictions set forth in this Lease that the Lessee is required to observe, pay, and perform. The right of the Lessee to grant a Leasehold Mortgage without having to obtain the consent of Lessor. Lesseethe Authority shall also include the refinancing of such Leasehold Mortgage and all renewals, modifications, consolidations, replacements, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice extensions thereof upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Providedcondition, however, that: (x) that all rights acquired under such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder Leasehold Mortgage shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior subject to the expiration of the Term (includingcovenants, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 terminationconditions, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as restrictions set forth in this Lease that the Lessee is required to observe, pay, and perform. In the event a Leasehold Mortgagee or at any other party succeeding to the rights of the Lessee under this Lease, whether through foreclosure, acceptance of an assignment or deed in lieu of foreclosure, or any possession, surrender, assignment, judicial action, or any other action taken by or on behalf of a Leasehold Mortgagee, the Authority agrees that this Lease shall not terminate as a result of such transfer, surrender, assignment, judicial or other action and the Authority shall recognize such Leasehold Mortgagee or such other addresses party as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant Lessee under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the terms and provisions of such new leasehereof. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionAs used herein, the new lease term "Leasehold Mortgagee" shall be entered into pursuant to the request mean: (i) any life insurance company, trust company, bank, national banking association, federal or state savings and loan association, state licensed branch or agency office of a foreign bank, pension plan, real estate investment trust (as defined in Section 856 of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.Internal Revenue Code
Appears in 1 contract
Samples: Ground Lease Agreement (Atlantic Coast Airlines Inc)
Leasehold Mortgages. To Subject to the extent any provision in requirements of this Article 24 conflicts XX, Lessee may assign or is inconsistent with encumber Lessee’s interest in the Leasehold as security for any other provision debt or obligation of Lessee to an Institutional Investor by a Leasehold Mortgage containing such terms and provisions as Lessee may, in its sole discretion, deem fit and proper; provided, however, that all right, title and interest acquired by such Leasehold Mortgagee under such Leasehold Mortgage from Lessee shall be subject to this Lease and to the rights and interests of Lessor herein and to the rights of any holder of a Fee Mortgage arising under or by virtue of this Lease. Lessor shall have the right to request and, Lessee shall use its commercially reasonable efforts to obtain, a non-disturbance agreement from any Leasehold Mortgagee, in favor of Lessor and any holder of a Fee Mortgage, confirming that the provisions of this Lease, including the provisions of this Article 24 shall control.
(a) LesseeSection 20.2, will be honored by and binding upon any Leasehold Mortgagee, and its successors further containing such other terms and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long conditions as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgagea Fee Mortgage shall reasonably request, at the address provided for in clause (vi) including attornment of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease Fee Mortgage in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow Fee Mortgage succeeds to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by interest of Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage Collateral Agent, acting at the direction of the Applicable Authorized Representative, each Grantor shall execute and deliver a mortgage, deed of trust, assignment of leases and rents, or other security document (a “Leasehold Mortgage”) granting a Lien on each parcel of real property and the improvements thereto leased by any Grantor (a “Leasehold Mortgaged Property”) under the laws of the applicable jurisdiction to cause such Leasehold Mortgaged Property to be prior subjected to a Lien having at least the priority described in lien thereto Section 4.3 securing the Obligations and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien will take all such actions as shall be and be deemed customary in a transaction of this nature to be void grant and perfect such Lien, including to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including (i) the filing and recording of no force or effect.
financing statements, fixture filings, the Leasehold Mortgage and other documents, (viiiii) No agreement between Lessor conducting lien searches and Lessee modifying, canceling or surrendering this Lease shall be effective without providing title insurance insuring the prior written consent first priority Lien of the leasehold mortgagee.
Mortgage subject only to Permitted Liens and including such endorsements as are customarily issued in connection with transactions of this nature, (ixiii) The fee title providing legal opinions and (iv) obtaining landlords’ consents). Notwithstanding the foregoing, the Grantors shall not be required to execute and deliver a Leasehold Mortgage with respect to any Leasehold Mortgaged Property if such Grantor shall have determined in good faith that the higher of (a) the book value or (b) the fair market value of the requested Leasehold Mortgage is less than $3,000,000 and provided evidence of such determination to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseCollateral Agent.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To Section 19.1 Tenant and every successor and assign of Tenant is hereby given the extent any provision right by Landlord in this Article 24 conflicts or is inconsistent with addition to any other provision rights herein granted, without Landlord's prior written consent, to mortgage (including conveyance by deed of trust) its interests in this Lease, or any part or parts thereof under one or more leasehold Mortgage(s) and assign this Lease, or any part or parts thereof, as collateral security for such Mortgage(s), upon the provisions condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Article 24 shall control.
(a) LesseeLease, and its to all rights and interests of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given so to mortgage such interest in this Lease, except as expressly provided herein. If Tenant and/or Tenant's successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, assigns shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall, within thirty (30) days of execution send to Landlord a true copy thereof together with written native specifying the provisions name and address of this Section, then the Mortgagees) and the pertinent recording date with respect to such Mortgage(s) Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(i) LessorSection 19.1.1 There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
Section 19.1.2 Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgage, at leasehold Mortgage(s). The leasehold Mortgagees) shall thereupon have the address same period of time provided for in clause to Tenant pursuant to Article XXIII hereof (vi) of this Section 24.1(bas extended by Article XX hereof), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder after service of such mortgagenotice upon it, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagees) as if the same had been made done by LesseeTenant.
(iiiSection 19.1.3 Anything herein contained notwithstanding, while such leasehold Mortgages) For remains unsatisfied of record, or until written notice of satisfaction is given by the purposes holders) to Landlord, if any default shall occur which, pursuant to any provision of this ArticleLease, no event entitles Landlord to terminate this Lease, and if before the expiration of default thirty (30) days from the date of service of notice of termination upon such leasehold Mortgagees) such leasehold Mortgagees) shall be deemed have notified Landlord of its (their) desire to exist nullify such notice and shall have paid to Landlord all rent and other payments herein provided for, and then in respect default, and shall have complied or shall commence the work of complying with ail of the performance other requirements of work required to be performedthis Lease, or of acts to be done, or of conditions to be remediedexcept as provided in Section 19.1.4., if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
Section 19.1.4 If Landlord shall elect to terminate this Lease by reason of default of Tenant, the leasehold Mortgagees) shall not only have the right to nullify any notice of termination by curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination of this Lease as fixed by Landlord in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagees) shall cure or cause to be cured any then existing money defaults and meanwhile pay the rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than past non-monetary defaults, and provided further that the leasehold Mortgagees) shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagees) shall be actively engaged in steps to acquire or sell Tenant's interest herein, the time of said Mortgagees) to comply with the provisions of this section 19.1.4 shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity.
(ivSection 19.1.5 Landlord agrees that the name of the leasehold Mortgaqee(s) Notwithstanding anything herein contained may be added to the contrary, upon the occurrence "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the leasehold Mortgage(s) or collateral document shall so provide.
Section 19.1.6 Landlord agrees that in the event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant that Landlord will enter into a new lease of the Demised Premises with the leasehold Mortgagees) or nominee(s), 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 only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
Section 19.1.6.1 Said Mortgagees) or nominees) shall make written request upon Landlord for such new lease within fifteen (15)days after the date of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: (x;
Section 19.1.6.2 Said Mortgagees) such holder or nominees) shall not be obligated pay to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during Landlord at the period of such forbearance with such time of the termsexecution and delivery of said new lease, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would would, at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and of all other defaultsin addition thereto, if anyany expenses, under this Lease then known including reasonable attorneys' fees, to Lessor. Such holder which Landlord shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder been subjected by reason of such mortgage, within thirty (30default;
Section 19.1.6.3 Said Mortgagees) days after service of such notice that or its nominees) shall perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the Lease has been terminated, Lessor shall enter into a new terminated lease of was obligated to perform under the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination terms of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.;
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the Section 19.1.6.4 The tenant under such new lease for shall have the purposes of same right, title and interest in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant and to the request improvements and personal property as Tenant under the terminated lease had;
Section 19.1.7 Nothing herein contained shall require said leasehold Mortgagees) or nominees) to cure any default of the holder whose leasehold mortgage shall be prior Tenant referred to in lien thereto and thereupon the written requests for Article 24 hereof;
Section 19.1.8 The proceeds from any insurance policies or arising from a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any leasehold Mortgagees) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the leasehold Mortgagees) may reserve rights to apply to the Mortgage debt all, or any part, of Tenant's share of such proceeds pursuant to such Mortgage(s);
Section 19.1.9 The leasehold Mortgagees) shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made party to such proceed ings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagees) shall not merge but elect to intervene or become party to such proceedings, the leasehold Mortgagees) shall always be kept separate receive notice of, and distincta copy of any award or decision made in said arbitration proceedings; and
Section 19.1.10 Landlord shall, notwithstanding upon request, execute, acknowledge and deliver to each leasehold Mortgagee, an agreement prepared at the union sole cost and expense of Tenant, in form satisfactory to such estates leasehold Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions of this Article XIX. The term "Mortgage", whenever used herein, shall include whatever security instruments are used in Lesseethe locale of the Demised Premises, Lessorsuch as, or in any without limitation, deeds to secure debt, deeds of trust and conditional deeds, as well as financing statements, security agreements and other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease documentation required pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderUniform Commercial Code.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To Tenant is hereby given the extent any provision right by Landlord, in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, with or without Landlord's prior written consent, to mortgage its interests in this Lease, including, without limitation, any easements granted by Landlord for the provisions benefit of this Article 24 shall control.
the Premises, under one or more leasehold deed(s) of trust or mortgage(s) (a) Lesseeindividually, a "Mortgage" and collectively, the "Mortgages"), and its successors to give to the holder of any such Mortgage (a "Mortgagee") a lien, assignment and/or security interest in (i) any personal property included within this Lease, (ii) the rents, income, receipts, revenues and assignsprofits of the Premises, shall have the unconditional right to mortgage(iii) any assignment, pledge and/or assign subleases or other transfer of all or any part of Tenant's rights under this Lease without having (iv) any rights of extension, renewal or expansion contained in this Lease, as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to obtain the consent of Lessor. Lessee, each and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having covenants, conditions and restrictions set forth in this Lease and to obtain the consent all rights and interests of Lessor. Any pledge Landlord herein, none of which covenants, conditions, restrictions, rights and interests is or assignment of any interests in Lessee shall be permitted without having waived by Landlord by reason of the right so given to obtain the consent of Lessor.
(b) Tenant to mortgage such interest in this Lease, except as expressly provided herein. If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance and if the Mortgagee under such Mortgage shall send to Landlord a true copy of any such Mortgage, together with a written notice specifying the provisions name and addresses of this Sectionthe Mortgagee and the pertinent recording date with respect to such Mortgage(s), then Landlord agrees that so long as any obligations secured by such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordunsatisfied, the following provisions shall apply:
(ia) LessorIf at any time there shall be more than one Mortgage, the holder of the Mortgage prior in lien, shall be vested with the rights of the 457 EXHIBIT H Mortgagee under this Article 21 (including, without limitation, the right to give consents or approval or any other right vested in any Mortgagee by this Lease) to the exclusion of the holder of any junior Mortgage.
(b) Landlord shall, upon serving Lessee with sending Tenant any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve simultaneously send a copy of such notice to the Mortgagee, using such reasonable method and to such address as may be designated in a written notice from such Mortgagee to Landlord. No notice given by Landlord to Tenant shall be binding upon the holder or affect a Mortgagee or Tenant unless a copy of such mortgage, at notice shall be given to the address provided for in clause Mortgagee pursuant to this subsection (vib) of this Section 24.1(b)21.01 and Article 27 hereof. In addition to the other rights of the Mortgagee set forth in this Article 21, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, the Mortgagee shall, within the period and otherwise as herein providedafter service of any such notice upon it, have the right to remedy such default, cure or cause the same to be remediedcure of any default by Tenant hereunder, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Mortgagee as if the same had been made done by LesseeTenant. All notices to the Mortgagee shall be sent return receipt requested and shall not be effective until received by such Mortgagee.
(iiic) For Landlord shall allow the purposes Mortgagee concurrently the same cure period given to Tenant hereunder to cure such default, plus an additional thirty (30) days within which to cure the default, or, in the case of non-monetary default or other condition which cannot in the exercise of due diligence be cured by Mortgagee prior to the expiration of such additional thirty (30) day period, shall allow the Mortgagee such additional days as is reasonably necessary for the curing of the default, in which event Landlord may not exercise any remedies on account of such default so long as the Mortgagee is diligently and with continuity engaged in curing the default. The rights of the Mortgagee under this subsection (c) are in addition to the rights provided to the Mortgagee under subsection (d) of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuitySection 21.01.
(ivd) Notwithstanding anything herein contained If the Mortgagee, its nominee, or a purchaser at a foreclosure or other sale shall acquire title to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of Tenant's interest in this Lease without first giving to the holder and shall cure all of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Tenant's defaults under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the terms, conditions and covenants of this Lease as which are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such Mortgagee or by such nominee or purchaser, as the case may be, within the time reasonably required therefor, then the defaults of any prior holder of Tenant's interest in this Lease which are not susceptible of being cured by such Mortgagee (or by such nominee or purchaser) shall not be deemed to be defaults under this Lease as between Landlord and the Mortgagee, its nominee or such purchaser. If Mortgagee does obtain possession of the Premises, Landlord agrees to acknowledge Mortgagee, or its nominee as a successor to Tenant under this Lease, provided Mortgagee agrees to be bound by the terms and provisions of all other agreements between Landlord and Tenant relating to the Premises existing both as of the Commencement Date and the date of succession.
(e) To the extent permitted by law, Landlord acknowledges that as between Landlord and the Mortgagee, its nominee or a purchaser at a foreclosure or other sale, this Lease shall not be deemed to be terminated EXHIBIT H notwithstanding the rejection of this Lease by operation of law, by Tenant or by its representative, or by any trustee appointed in Tenant's bankruptcy case, pursuant to the U.S. Bankruptcy Code (Title 11 of the United States Code) or any other insolvency law. The Mortgagee shall be deemed to have been waived by Lessor upon completion of such satisfied its obligation to commence foreclosure proceedings or upon cause Tenant's interest in this Lease to be sold under a power of sale by asserting a claim in Tenant's case under the U.S. Bankruptcy Code or other insolvency proceeding, and the Mortgagee shall not be deemed to have failed to satisfy such acquisition obligation if the Mortgagee is unable to do so as a result of Lessee’s the provisions of Section 362 of the U.S. Bankruptcy Code or similar provisions of any other insolvency law.
(f) No Mortgagee or its nominee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for as long as it remains, the owner of Tenant's interest in this Lease, except that any of and such events of default which are reasonably susceptible of being cured after liability shall be limited to such completion and acquisition shall then be cured with reasonable diligence. Such holder, Mortgagee's or his designee, or other purchaser nominee's interest in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosurePremises.
(vg) In Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee(s) an agreement (prepared at the event sole cost and expense of Tenant and in form reasonably satisfactory to Landlord and such leasehold Mortgagee(s)) among Landlord, Tenant and the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lesseeleasehold Mortgagee(s), Lessor shall serve upon the holder agreeing to all of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectArticle 21.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Southern Energy Inc)
Leasehold Mortgages. To A. Notwithstanding any other provision hereof to the extent contrary, Tenant shall have the right, from time to time, to convey or encumber by mortgage, deed to secure debt, deed of trust, or similar financing instrument, Tenant’s leasehold estate and interest in and to the Demised Premises or any provision part thereof (each such leasehold mortgage, deed to secure debt, deed of trust, or other financing instrument being hereinafter referred to as a “Leasehold Mortgage” and the holder thereof as a “Leasehold Mortgagee”) provided that the rights acquired under such mortgage shall be subject to each and all of the covenants, conditions, and restrictions set forth in this Article 24 conflicts Lease and to all rights and interest of Landlord herein, none of which covenants, conditions or restrictions is inconsistent or shall be waived by Landlord by reason of the right given to so mortgage such interest in this Lease, except as expressly provided herein. The execution and delivery of a Leasehold Mortgage shall not, in and of itself, be deemed to constitute an assignment or transfer of this Lease nor shall the Leasehold Mortgagee, as such, be deemed an assignee or transferee of this Lease so as to require such Leasehold Mortgagee to assume the performance of any of the covenants or agreements on the part of Tenant to be performed hereunder. Tenant shall also have the right from time to time to obtain financing by a “sale and leaseback” of Tenant’s leasehold interest hereunder (i.e., an assignment of Tenant’s leasehold estate under this Lease simultaneously with or subsequent to the making of a sublease of all of the Demised Premises to Tenant). If Tenant shall enter into any such financing arrangement, it shall deliver to Landlord true and complete copies of the instruments effecting such transaction within thirty (30) days of their execution. Simultaneously with the delivery to the Landlord of the aforesaid instruments effecting such transaction, Tenant shall also give Landlord notice of the name and address of the party providing such financing.
B. Tenant agrees that it shall not encumber its leasehold estate with more than two (2) Leasehold Mortgages at one time without the prior, written consent of Landlord. With respect to any Leasehold Mortgagee or other person providing financing as to which Landlord shall have been given notice in accordance with the provisions of such subparagraph (a), the following shall apply, notwithstanding any other provision of this Lease, Lease to the provisions contrary:
1) No voluntary termination by Tenant of this Article 24 Lease shall control.
(a) Lessee, be effective unless consented to in writing by such Leasehold Mortgagee; and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign any material amendment or material modification of this Lease without having to obtain or the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment exercise by Tenant of any interests in Lessee shall be permitted without having option to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to terminate this Lease, shall also serve a copy without the written consent of such notice upon Leasehold Mortgagee, shall be voidable as against such Leasehold Mortgagee at its option. If any Leasehold Mortgagee shall fail to respond to any written consent under this Section 47(b)(l) within thirty (30) days after the holder receipt by such Leasehold Mortgagee of such mortgage, at the address provided for in clause (vi) of written request [which written request shall make specific reference to this Section 24.1(b47(b)(l)], and no notice by Lessor to Lessee hereunder the Leasehold Mortgagee shall be deemed to have been duly granted its consent to such request.
2) Landlord shall give any and all notices given to Tenant hereunder simultaneously to any such Leasehold Mortgagee at the address of such Leasehold Mortgagee provided to Landlord, and no such notice shall be effective as to such Leasehold Mortgagee unless and until a copy thereof has been so served.
given to such Leasehold Mortgagee. In the event Landlord sends Tenant notice of an Event of Default, from and after the time that such notice has been delivered to such Leasehold Mortgagee, such Leasehold Mortgagee shall have a period equal to the period granted to the Tenant plus, with respect to monetary defaults, an additional five (ii5) Any holder business days in which to effect a cure, and with respect to non-monetary defaults only, an additional ten (10) business days in which to affect a cure of any Event of Default by Tenant under this Lease (provided, however, that if such mortgagecure is of a nature that it cannot be effected within such a period of time, in case Lessee no Event of Default shall have been deemed to have occurred hereunder as long as such Leasehold Mortgagee shall have commenced to cure such Event of Default within such period and shall thereafter be in default taking diligent steps to effect the same). Landlord shall accept performance of any and all of Tenant’s obligations hereunder, shallincluding the obligations to pay Rent, within the period from any such Leasehold Mortgagee and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 obligation by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder Leasehold Mortgagee shall be deemed to have been waived a cure effected by Lessor upon completion Tenant. Landlord hereby consents to the entry into the Demised Premises by any such Leasehold Mortgagee for the purpose of effecting the cure of any default by Tenant. In the event of an Event of Default by the Tenant hereunder, any Leasehold Mortgagee may effect the cure of such foreclosure proceedings or upon Event of Default by foreclosing its Leasehold Mortgage, obtaining possession of the Demised Premises and performing all of Tenant’s obligations hereunder.
3) Notwithstanding anything contained herein to the contrary, if it shall be necessary for any such acquisition Leasehold Mortgagee to obtain possession of Lessee’s interest in the Demised Premises to effect any such cure of an Event of Default by Tenant under this Lease, except then Landlord shall not commence any proceeding or action to terminate this Lease if (i) such Leasehold Mortgagee shall have informed Landlord within the grace period applicable to such Leasehold Mortgage that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holderLeasehold Mortgagee has taken steps to foreclose its Leasehold Mortgage, or his designee, cancel its sublease or other purchaser in foreclosure proceedings may become financing arrangement, necessary to obtain possession of the legal owner Demised Premises, (ii) the Rent shall be paid and holder all other provisions and requirements of this Lease through which are capable of being observed and performed without obtaining possession of the Demised Premises are so observed and performed while any such foreclosure, other action or other remedy is being prosecuted by any such Leasehold Mortgagee and for so long thereafter as such Leasehold Mortgagee shall have obtained possession of the Demised Premises, and (iii) such Leasehold Mortgagee shall be diligently prosecuting such foreclosure proceedings or by assignment cancellation and attempting to effect a cure of this Lease the Event of Default. Nothing herein contained shall be deemed to require the Leasehold Mortgagee to continue with any foreclosure or other proceedings, or, in lieu the event such Leasehold Mortgagee shall otherwise acquire possession of foreclosurethe Demised Premises, to continue such possession, if the Event of Default in respect to which Landlord shall have given the notice shall be remedied.
(v4) In Landlord agrees that in the event of the termination of this Lease by reason of any Event of Default by Tenant, and if Landlord has prior to the expiration such termination been given notice of the name and address of such Leasehold Mortgagee, Landlord will enter into a new lease of the Demised Premises with any Leasehold Mortgagee or its nominee for the remainder of the Base Term of this Lease, and any Option Periods thereto, effective as of the date of such termination, at the Rent and upon the terms, options, provisions, covenants and agreements as herein contained, provided:
a. Such Leasehold Mortgagee shall make written request upon Landlord for such new lease prior to or within ten (including10) business days after the date of such termination and such written request is accompanied by (i) payment to Landlord of all sums then due to Landlord hereunder, without limitation(ii) a written, enforceable agreement by which Leasehold Mortgagee agrees to be bound by the terms, provisions and conditions hereof, in connection with a rejection form reasonably satisfactory to Landlord; and (iii) if Leasehold Mortgagee is not an individual, reasonable evidence of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder authority of such mortgage written notice that Leasehold Mortgagee to assume this Lease; and
b. Such Leasehold Mortgagee or its nominee shall pay to Landlord at the Lease has been terminated together with a statement time of the execution and delivery of said new lease any and all sums which would at that time be due under this Lease hereunder but for such termination, together with any expenses, including reasonable attorneys’ fees, incurred by Landlord as a result of such termination, as well as in the preparation, execution and delivery of such new lease.
c. Such Leasehold Mortgagee or its nominee shall perform and observe all covenants herein contained to be performed on Tenant’s part and shall further remedy any other defaults, if anyconditions which Tenant, under this Lease then known the terminated Lease, was obligated to Lessorperform. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of The tenant under such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective have the same right, title and interest in and to the buildings and improvements on the Demised Premises as at Tenant had under the date of termination of this Lease, and terminated lease.
5) No Leasehold Mortgagee shall be for the remainder of the term of this Lease and at the rent and upon all become liable under the agreements, terms, covenants and or conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to unless and until it becomes the date owner of execution the leasehold estate. If Leasehold Mortgagee or its nominee shall so become the owner of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder leasehold estate, then any assignment of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth entire interest in this Lease by Leasehold Mortgagee or at such other addresses as nominee shall be designated by Lessor by notice in writing given subject to such holder by registered mail.
(vii) Effective upon the commencement Section 14 of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure except that the Leasehold Mortgagee or such nominee shall be relieved of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee any further liability which may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed accrue hereunder from and after the date of such assignment, provided that the assignee shall execute and deliver to Landlord a recordable instrument of assumption wherein such assignee assumes shall assume and agree to perform and observe the obligations covenants and conditions in this Lease contained on Tenant’s part to be performed and observed; provided however, that the foregoing provision shall not apply (a) to any subsequent assignments of Lessee hereunderthe leasehold estate, or (b) if Tenant or an affiliate of Tenant is the Leasehold Mortgagee or its nominee.
(d6) Lessor If at any time there shall be two or more Leasehold Mortgages constituting a lien on the Tenant’s interest in this Lease and the leasehold estate hereby agrees created, the holder of the Leasehold Mortgage recorded prior in time shall be vested with the rights under Section 47(b)(4) of this Lease to deliver the exclusion of the holder(s) of the other Leasehold Mortgages; provided, however, that if the holder of a Leasehold Mortgage recorded prior in time to Lessee any other Leasehold Mortgage shall fail or refuse to exercise the rights set forth in this Lease, the holder of the other Leasehold Mortgage next in time shall have the right to exercise such rights; provided, however, such other Leasehold Mortgagee shall be likewise required to fully comply with all the terms and conditions hereof in exercising such rights. All of the provisions contained in this Lease with respect to Leasehold Mortgages and the rights of Leasehold Mortgages shall survive the termination of this Lease for such period of time as shall be necessary to effectuate the rights granted to all Leasehold Mortgagees by the provisions of this Lease.
7) Nothing contained herein shall require any Leasehold Mortgagee or its nominee to cure any Event of Default by Tenant hereunder, unless Leasehold Mortgagee or its nominee enters into a ground lessor estoppel certificate new lease with Landlord as provided for under subsection 4 above.
C. Notwithstanding anything contained in this Section 46 to the form reasonably required by contrary, Landlord shall have the right to approve or decline any leasehold mortgagee new tenant which obtains possession or seeks to obtain possession of Lesseethe Demised Premises pursuant to this Section 46.
Appears in 1 contract
Leasehold Mortgages. To 11.1 Tenant will be entitled, at any time and from time to time, without the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeCity’s consent, and its successors on terms and assignsconditions determined by Tenant to be appropriate, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent pledge, grant deed(s) of Lessor. Lesseetrust, and its successors and assigns, shall have the unconditional right to sublet or otherwise encumber all or a any portion of the Leased Property without having leasehold estate created hereby and all or any portion of the right, title, and interest of Tenant under this Agreement (including Tenant’s interest in the Project Land Improvements), and to obtain assign, hypothecate, or pledge it as security for the consent of Lessor. Any pledge or assignment payment of any interests in Lessee debt to any holder of a promissory note or other evidence of indebtedness (such notes, mortgages, deeds of trust, and other documents evidencing and securing such loans hereinafter referred to as a “Leasehold Mortgage“ and a holder of a Leasehold Mortgage as a “Leasehold Mortgagee“), all of which shall be permitted without having subordinate to obtain the consent of LessorCity’s interest under this Agreement.
(b) If Lessee11.2 After the execution and recordation of any Leasehold Mortgage, Tenant or Lessee’s successors or assigns, shall mortgage this Lease the Leasehold Mortgagee must notify the City in compliance writing that a Leasehold Mortgage has been given and executed by Tenant and must furnish the City with the provisions address to which copies of this Section, then so long as any such mortgage shall remain unsatisfied of record, notices should be mailed. The City agrees that it will thereafter give to the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgageLeasehold Mortgagee, at the address provided for in clause (vi) of this Section 24.1(b)so given, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement duplicate copies 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease notices in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice writing that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow City may from time to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to time give to or serve upon the holder of a mortgage on this Lease shall be in writing Tenant under and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) the terms and provisions of this Section, all subleases shall be assigned Agreement. The Leasehold Mortgagee will have the same cure rights available to Tenant with respect to any alleged failure by Tenant to perform under this Agreement; and transferred without recourse by Lessor to if the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease alleged failure is cured in accordance with the provisions of this SectionAgreement, then the new lease shall City will accept such cure tendered by the Leasehold Mortgagee.
11.3 No Leasehold Mortgagee will be entered into pursuant or become liable to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions City as an assignee of this Lease shall not merge but shall always be kept separate Agreement or otherwise until it expressly assumes such liability in writing, and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.no
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right at any time and from time to mortgagetime to mortgage its interest in this Lease under one or more Leasehold Mortgages, pledge and/or and to assign this Lease without having to obtain the consent of Lessorand any Sublease(s) as collateral security for such Leasehold Mortgage(s). Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance and if the Leasehold Mortgagee shall send to Landlord a true copy of the Leasehold Mortgage together with written notice specifying the provisions name and address of this Sectionthe Leasehold Mortgagee, then Landlord agrees that so long as any such mortgage Leasehold Mortgage shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder thereof to Landlord, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the Leasehold Mortgagee.
(b) Landlord shall, upon serving Lessee Tenant with any notice of defaultDefault (which notice shall specify the nature of the Default) or termination, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period as provided the Tenant, after service of such mortgagenotice upon it, at to remedy or cause to be remedied the address provided for in clause (vi) of this Section 24.1(b)defaults complained of, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee as if the same had been made done by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contraryTenant; provided however, upon the occurrence of any event an Event of defaultDefault under Section 16.1(a), Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults Leasehold Mortgagee shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such written notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, from Landlord to remedy or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed cause to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at remedied such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered maildefault thereunder.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease (Ecoscience Corp/De)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, pledge and/or or conditionally assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right a Permitted Leasehold Mortgagee subject to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this SectionSection and ARTICLE XII, then so long as and the payment to the Landlord of any amounts due, if any on account thereof, under ARTICLE IV above. In no event shall the fee interest in the Premises or, unless specifically set forth herein or in any instrument given by the Landlord in connection therewith, any Rent be subordinate to any leasehold mortgage. Regardless of whether any such leasehold mortgage requires the Landlord’s consent, Tenant shall remain unsatisfied of record, provide the following provisions shall apply:
(i) Lessor, upon serving Lessee Landlord with any written notice of defaultany such leasehold mortgage at least thirty (30) days prior to the closing of any such transaction. The making of a mortgage under the prior paragraph shall not be deemed to constitute an assignment, nor shall any mortgagee under such a mortgage not in actual possession of the Premises be deemed an assignee of the leasehold estate created hereby, so as to require such mortgagee to assume the obligations of Tenant hereunder. However, a mortgagee in actual possession and the purchaser at any sale of the leasehold estate created hereby upon foreclosure of a mortgage given in accordance with the prior paragraph, or any other notice the assignee of Tenant’s interest under the provisions this Lease pursuant to an assignment in lieu of or with respect to this Leasesuch foreclosure, shall also serve a copy be deemed to be an assignee of Tenant (but no consent by the Landlord to such notice upon assignment or transfer shall be required) and subject to the holder terms and conditions of such mortgageSection 12.02 hereof, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder assumed the obligations of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed Tenant hereunder arising from and after the date of taking actual possession or of such purchase or assignment. Prior to taking possession of the Premises following a foreclosure by any mortgagee, provided such mortgagee shall cure all monetary defaults and non-monetary defaults that such are not Incurable Lease Defaults. If a mortgagee (or nominee) who has so assumed the obligations of Tenant hereunder thereafter assigns its interests in this Lease to an assignee who assumes the obligations of Lessee Tenant hereunder.
, such mortgagee (d) Lessor hereby agrees or nominee), upon compliance by such assignee with Maryland laws, shall be relieved of the obligations of Tenant arising after such assignment and assumption. A conditional assignment of Tenant’s interest in this Lease to deliver to Lessee a ground lessor estoppel certificate mortgagee as security for a mortgage granted in accordance with the form reasonably required prior paragraph shall not constitute an assumption of liability by any leasehold the mortgagee of LesseeTenant’s obligations hereunder until the date of such mortgagee’s taking of actual possession pursuant to the exercise of its rights under such conditional assignment; provided, however, that such mortgagee shall cure all monetary defaults and non-monetary defaults that are not Incurable Lease Defaults in existence as of the time of such foreclosure.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision AccessCal shall not mortgage, encumber, hypothecate, pledge, lien by deed in trust, or assign rents, issues and profits belonging to AccessCal, and/or collaterally assign its interest in this Article 24 conflicts Lease Agreement or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign leasehold estate created by this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If LesseeAgreement, or Lessee’s successors or assigns, shall mortgage the leasehold estate created by this Lease in compliance with the provisions of this SectionAgreement, then so long as any such mortgage shall remain unsatisfied of recordor any, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of defaultall, or any other notice under part of the provisions of or with respect AccessCal’s right, title and interest to the leasehold estate created by this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause Lease (vi) of this Section 24.1(bcollectively “Leasehold Mortgage”), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of ANAHEIM, which consent may be granted or withheld in ANAHEIM’s sole and absolute discretion. ANAHEIM’s consent to any such Leasehold Encumbrance by AccessCal shall be subject to the leasehold mortgageefollowing conditions: lender.
(ixa) The fee title Leasehold Mortgage shall be for the benefit of (i) an institutional
(b) A permitted Leasehold Mortgage may, except as hereinafter provided, cover all or part of AccessCal’s interest in (i) this Lease Agreement; (ii) the Property; (iii) the Improvements, (iv) the rents, issues and profits that belong to AccessCal; and (v) equipment, personal property and fixtures used at or in the Leased operation of the Property by AccessCal. Neither AccessCal nor any sublessee shall be permitted, without ANAHEIM’s approval, in its sole discretion, to allow a Leasehold Mortgage to cover more (for example, a blanket lien covering this and other real property owned by AccessCal) than AccessCal’s entire interest in this Lease Agreement, the Property and the leasehold Improvements, nor may the Leasehold Mortgage be cross- collateralized or cross-defaulted with any other obligation of the trustor or any other party. ANAHEIM’s fee estate created therein pursuant shall not be subjected to the provisions lien of any such Leasehold Mortgage and ANAHEIM shall not be required to join in any Leasehold Mortgage. ANAHEIM shall not have any liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, nor any interest accrued thereon, nor any other sum secured thereby or accruing thereunder; and the Leasehold Mortgage shall seek no damages against ANAHEIM for any or all of the same. Leasehold Mortgagees shall have all the benefits provided in this Article or provided elsewhere in this Lease shall not merge but shall always be kept separate Agreement; and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest provisions set forth in this Lease, by foreclosure of a mortgage thereon Article or by assignment provided elsewhere in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease Lease Agreement; and shall thereupon be released from all liability the provisions set forth in this Lease Agreement for the performance benefit of Leasehold Mortgagees may be enforced by them. In no event will ANAHEIM subordinate its fee and reversionary interests or observance of the covenants its interests in rents due under this Lease Agreement and conditions in such lease contained on tenant’s part Subleases to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderconstruction financing or permanent financing.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease
Leasehold Mortgages. To (a) Tenant shall have the extent light to mortgage this Lease, subject, however, to the limitations of this Section. Any such leasehold mortgage (a “Leasehold Mortgage”) shall be subject and subordinate to the rights of Landlord under this Lease and any provision mortgage or other encumbrance now or hereafter encumbering the Building or Landlord’s interest in the Building, and shall be subject to the mutual execution of an intercreditor agreement between such Leasehold Mortgagee and the holder of the senior mortgage upon Landlord’s fee estate from time to time. The form of Leasehold Mortgage shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed. Tenant shall provide Landlord with any proposed Leasehold Mortgage no less than thirty (30) days before the date upon which Tenant intends to grant such Leasehold Mortgage
(b) No holder of a Leasehold Mortgage (a “Leasehold Mortgagee”) shall have the rights or benefits mentioned in this Article 24 conflicts or is inconsistent Section, nor shall the provisions of this Section be binding upon Landlord, unless and until the name and address of the Leasehold Mortgagee shall have been delivered to Landlord in accordance with any other provision Section 26 of this Lease, the provisions notwithstanding any other form of this Article 24 shall controlnotice, actual or constructive.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(bc) If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyapply until the earlier of (x) the satisfaction of the Leasehold Mortgage of record, (y) Landlord’s receipt of notice from Tenant or Leasehold Mortgagee that Tenant has satisfied the terms of the Leasehold Mortgage, and (z) the termination of this Lease:
(i) LessorLandlord, upon serving Lessee with upon Tenant any notice of default, or any other notice under the provisions of or with respect default pursuant to this Lease, shall also serve a copy of such notice upon the holder of such mortgageLeasehold Mortgagee, at the address provided for to Landlord in clause (vi) of accordance with this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.Section
(ii) Any holder If Tenant fails to comply with the terms and conditions of such mortgagethis Lease, in case Lessee Leasehold Mortgagee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such defaultfailures, or cause the same to be remedied, within a reasonable period of time if Tenant has failed to remedy such failure within the time period granted to Tenant under this Lease, and Lessor Landlord shall accept such performance by or at the instance of such holder Leasehold Mortgagee as if the same had been made by LesseeTenant. No termination of this Lease shall be binding on any Leasehold Mortgagee unless effected in compliance with the terms and conditions of the Leasehold Mortgage.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon the holder of a mortgage on this Lease Leasehold Mortgagee shall be in writing and shall be served by registered mail, or by a nationally recognized overnight courier service with guaranteed next business day delivery, addressed to such holder Leasehold Mortgagee at his the address provided to Landlord in accordance with this Section, or at such other address as set forth shall be designated by such Leasehold Mortgagee by notice in such mortgagewriting given to Landlord in accordance with Section 26 of this Lease. Notices shall be deemed to have been given upon the earlier of actual receipt or three (3) business days after posting in the United States mail or one (1) business day after deposit with a nationally recognized overnight courier service., Any notice or other communication which the holder of a mortgage on this Lease Leasehold Mortgagee shall desire or is required to give to or serve upon Lessor Landlord shall be deemed to have been duly given or served if sent delivered in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in accordance with Section 26 of this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailLease.
(viiiv) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor Anything herein contained to the tenant under such new leasecontrary notwithstanding, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease Section shall be entered into pursuant inure only to the request benefit of the holder whose leasehold mortgage Leasehold Mortgagee. Tenant shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectnot grant more than one Leasehold Mortgage at one time.
(viiiv) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without Within ten (10) days after the prior written consent satisfaction of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease Leasehold Mortgage, Tenant shall not merge but shall always be kept separate and distinct, notwithstanding the union notify Landlord of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee satisfaction and Tenant shall acquire title to Lessee’s interest in this Lease, by foreclosure of cause a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation release of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part Leasehold Mortgage to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate recorded in the form reasonably required by appropriate recorder’s office. Tenant shall deliver a copy of any leasehold mortgagee of Lesseesuch release to Landlord promptly after recording.
Appears in 1 contract
Samples: Office and Industrial Lease Agreement (WuXi PharmaTech (Cayman) Inc.)
Leasehold Mortgages. To Tenant, and its successors, subtenants and assigns permitted hereunder shall have the extent any provision right to mortgage and pledge their respective interests in this Article 24 conflicts or Lease (“Leasehold Mortgage”) to a lender who is inconsistent not affiliated with any Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this Section 20.20. Landlord and Tenant expressly intend and agree that the provisions of this Section 2020 and such other provision provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to the contrary, all Leasehold Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet at all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee times shall be permitted without having inferior and subject to obtain the consent prior right, title and interest of Lessor.
Landlord herein. Notwithstanding anything to the contrary set forth in this Lease, in no event shall the fee interest in the Property or Facility Premises be subordinate to any Leasehold Mortgage. A notice of each Leasehold Mortgage shall be delivered to the Landlord specifying the name and address of such Leasehold Mortgagee to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (b30) days of such mortgage being recorded. If LesseeTenant, or LesseeTenant’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this SectionLease, then so long as any such mortgage Leasehold Mortgage shall remain unsatisfied of recordrecord and Tenant shall have properly delivered notice to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the following provisions shall apply:
(i) Lessor: Landlord, upon serving Lessee with upon Tenant any notice of default, an Event of Default or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Leasehold Mortgagee, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given as to the Leasehold Mortgagee unless and until a copy thereof has been so served.
(ii) Any holder served upon the Leasehold Mortgagee. Landlord’s furnishing a copy of such mortgagenotice to Leasehold Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Tenant, provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease. Any Leasehold Mortgagee, in case Lessee there shall be in default hereundera Tenant Default under this Lease, shall, within the period and otherwise as herein provided, shall have the right to remedy such default, Tenant Default (or cause the same to be remedied) within thirty (30) days after notice to Leasehold Mortgagee of such Tenant Default (which will be after expiration of all Tenant notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Tenant Default so long as (x) curative action reasonably satisfactory to Landlord is instituted within such period and diligently and continuously pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Lessor Landlord shall accept such performance by or at the instance of such holder Leasehold Mortgagee as if the same had been made by Lessee.
(iii) For the purposes Tenant. Any provision of this ArticleLease to the contrary notwithstanding, no event performance by or on behalf of default a Leasehold Mortgagee shall cause it to become a "“mortgagee in possession"” or otherwise cause it to be deemed to exist be in respect possession of the performance of work required to be performedPremises or bound by or liable under this Lease. The Landlord agrees that, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of defaulta non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), Lessor shall take no action to effect a termination above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the holder of such mortgage written notice thereof and a Leasehold Mortgagee reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (Premises, including possession by a receiver) , or (y) to institute, prosecute institute and complete foreclosure proceedings or otherwise acquire LesseeTenant’s interest under this LeaseLease with diligence and without unreasonable delay. ProvidedThe Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of all covenants and agreements of Tenant, howeverexcept those which by their nature cannot be performed or cured by any person other than the then Tenant which has defaulted (“Incurable Lease Defaults”), that: (x) such holder the Landlord’s right to terminate this Lease shall be waived with respect to the matters which have been cured by the Leasehold Mortgagee and with respect to the Incurable Lease Defaults. Notwithstanding anything to the contrary set forth in this Section 20(c),20(c), Leasehold Mortgagee shall have the right, but shall not be obligated obligated, to continue such possession remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by foreclosure of any Leasehold Mortgagee, deed-in-lieu thereof or otherwise to continue any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such foreclosure proceedings after (any such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such transferee of the termsLease), conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor that upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become becoming the legal owner and holder of this Lease through shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure proceedings or by assignment of this Lease in deed-in-lieu of foreclosure.
(v) thereof, judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default. In the event of the termination of this Lease prior to the expiration of the Term (includingTerm, without limitationwhether by summary proceedings to dispossess, in connection with service of notice to terminate, or otherwise, due to a rejection of this Lease in the event of a bankruptcy of Lessee)Tenant Default, Lessor Landlord shall serve upon the holder of such mortgage 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 LessorLandlord. Such holder Leasehold Mortgagee shall thereupon have the option to obtain a new Lease lease in accordance with and upon the following terms and conditions:
(A) : Upon the written request of the holder of such mortgageLeasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminatedterminated to Leasehold Mortgagee, Lessor Landlord shall enter into a new lease of the Leased Property Premises with such holder, Leasehold Mortgagee or his designee, its designee as follows:
(B) : Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as at of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewalextension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, Lessor shall allow to the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such tenant termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be entitled deemed to an adjustment impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof. If this Lease is (a) rejected by a trustee or debtor-in-possession in an amount equal any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the net income derived extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Lessor from Tenant prior to such rejection or termination). The new lease shall be executed by Landlord and the Leased Property during Leasehold Mortgagee or its nominee(s) within ninety (90) days after the period from receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date of termination of that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this "“Lease"” shall be deemed also to refer to such new lease.
(vi) . Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon the holder of a mortgage on this Lease Leasehold Mortgagee shall be in writing and shall be served by registered either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to such holder Leasehold Mortgagee at his its address as set forth in such mortgageprovided to Landlord. Any notice or other communication which The City, acting by and through the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor City Representative, shall, at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be prior in lien thereto a form and thereupon substance that is reasonably acceptable to the written requests City and consistent with the terms and provisions contained in this Section 20.20. Within twenty (20) days of the Tenant’s request for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No lender’s rights agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease Section 20,20, time being of the essence, the City, acting by and through the City Representative, shall not merge but execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall always be kept separate in a form and distinctsubstance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, notwithstanding and at the union option of such estates Leasehold Mortgagee incorporates, the terms and provisions of this Section 20.20. Tenant agrees to pay for the City’s reasonable attorneys’ fees expended in Lessee, Lessor, or connection with any lender’s rights agreement. Landlord agrees to negotiate in any other person by purchase, operation good faith and execute modifications to this Section 2020 and related provisions of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or by assignment prospective Leasehold Mortgagee) in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided event that such assignee assumes Leasehold Mortgagee desires changes to the obligations of Lessee hereunderprovisions as currently stated.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To SECTION 33.01. Tenant and every successor and assign of Tenant (including, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) is hereby given the extent right by Landlord in addition to any provision other rights herein granted, without Landlord's prior written consent, to mortgage its interest in this Article 24 conflicts Lease(s), or is inconsistent with any other provision of part or parts thereof, and any sublease(s) under one or more leasehold Mortgage(s), and assign this Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, and its any sublease(s) as collateral security for such Mortgage (s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights and interest of Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given so to mortgage such interest in this Lease, except as expressly provided herein. If Tenant and/or Tenant's successors and assignsassigns (including, shall have the unconditional right to mortgagebut not limited to, pledge and/or assign this Lease without having to obtain the consent any sublessee of Lessor. LesseeTenant, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(bbut only with Tenant's prior consent) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance leasehold, or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall, within thirty (30) days of its execution, send to Landlord a true copy thereof, together with written notice specifying the provisions name and address of this Sectionthe Mortgagee and the pertinent recording date with respect to such Mortgage(s), then Landlord agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(i) LessorA. There shall be no cancellation, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the leasehold Mortgagee(s).
B. Landlord shall, upon serving Lessee Tenant with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgageleasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, at after services of such notice upon it, to remedy or cause to be remedies the address provided for in clause (vi) of this Section 24.1(b)defaults complained of, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeTenant.
(iiiC. Anything herein contained notwithstanding, while such leasehold Mortgage(s) For remains unsatisfied of record, or until written notice of satisfaction is given by the purposes holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this ArticleLease, no event entitled Landlord to terminate this Lease, and if before the expiration of default thirty (30) days from the date of service of notice or termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall be deemed have notified Landlord of its desire to exist nullify such notice and shall have paid to Landlord all Basic Rent and additional rent and other payments herein provided for, and then in respect default, and shall have complied or shall commence the work of complying with all of the performance other requirements of work required to be performed, or of acts to be done, or of conditions to be remediedthis Lease, if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of not effect.
D. If the Landlord shall elect to terminate this Lease by reason of any default of Tenant, the leasehold Mortgagee(s) shall not only have the right to nullify and notice of termination by curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination of this Lease as fixed by Landlord in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than past non-monetary defaults, and provided further that the leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell Tenant's interest herein, the time of said Mortgagee to comply with the provisions of this Article 33 (except Section 33.01 (C) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity.
(ivE. Landlord agrees that the name of the leasehold Mortgagee(s) Notwithstanding anything herein contained may be added to the contrary, upon the occurrence "Loss Payable Endorsement" of any and all insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Lease and that the leasehold Mortgage(s) or collateral document shall so provide.
F. Landlord agrees that in the event of default, Lessor shall take no action to effect a termination of this Lease without first giving by reason of any default by Tenant other than for nonpayment of Rent or Additional Rent and other payments herein provided for, that Landlord will enter into a new lease of the Demised Premises with the leasehold Mortgagee(s) or its nominee(s), for the remainder of the term, effective as of the date of such termination, at the Basic Rent and additional rent and upon the terms, provisions, covenants and agreements as herein contained and subject only to the holder same conditions of title as this Lease is subject to on the date of the execution hereof, and to the rights, if any, of any parties then in possession of any part of the Demised Premises, provided:
(1) Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within fifteen (15) days after the date of such mortgage termination and such written notice thereof and a reasonable time thereafter within which either (x) request is accompanied by payment to obtain possession Landlord of the mortgaged property (including possession by a receiver) or (y) sums then due to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Landlord under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v2) In Said Mortgagee(s) or its nominee(s) shall pay to Landlord at the event time of the termination execution and delivery of this Lease prior to the expiration of the Term (includingsaid new lease, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that the time of the execution and delivery thereof, be due under pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney's fees to which Landlord shall have been subjected by reason of such default.
(3) Said Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of all other defaults, if any, of the obligations of Tenant under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:lease.
(A4) Upon the written request Landlord shall not warrant possession of the holder of such mortgage, within thirty (30) days after service of such notice that Demised Premises to Tenant under the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:lease.
(B5) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of Tenant under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new terminated lease.
(vi6) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant The Tenant under such new lease for shall have the purposes of same right, title, and interest in accordance with and to the provisions of buildings and improvements on the Demised Premises as Tenant had under the terminated lease.
G. Landlord agrees promptly after submission to execute, acknowledge and deliver any agreements modifying this Lease requested by any leasehold Mortgagee(s), provided that such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into modification does not decrease Tenant's obligations or decrease Landlord's rights pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for this Lease.
H. The proceeds from any insurance policies or arising from a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed condemnation are to be void held by any leasehold Mortgagee(s) and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein distributed pursuant to the provisions of this Lease Lease, but the leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or an part, of Tenant's are of such proceeds pursuant to such Mortgage(s).
I. The leasehold Mortgagee(s) shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagee(s) shall not merge but elect to intervene or become a party to such proceedings, the leasehold Mortgagee(s) shall always be kept separate receive notice of, and distinct, notwithstanding the union a copy of such estates any award or decision made in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisesaid arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (c) If any s), an agreement prepared at the sole cost and expense of Tenant, in form satisfactory to such leasehold mortgagee Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term "Mortgage", whenever used herein, shall acquire title to Lessee’s interest include whatever security instruments are used in this Leasethe locale of the Demised Premises, by foreclosure such as, without limitations, deeds of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgageetrust, or under a new lease security deeds and conditional deeds, as well as financing statements, security agreements and other documentation required pursuant to this Articlethe Uniform Commercial Code. The term "Mortgage" whenever used herein, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions also include any instruments required in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee connection with a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.sale-leaseback transaction. ARTICLE XXXIV TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
Appears in 1 contract
Samples: Lease (Yardville National Bancorp)
Leasehold Mortgages. To At any time and from time to time during the extent any provision in this Article 24 conflicts or is inconsistent with any other provision term of this Lease, and any extension thereof, Lessee may encumber to any person, firm or entity ("Lender") by deed of trust or mortgage or other security instrument ("Leasehold Mortgage") all or any portion of Lessee's interest under this Lease and the provisions of this Article 24 shall control.
(a) Lesseeleasehold estate hereby created, and to assign its successors interest in this Lease and assigns, shall have the unconditional right to in any sublease as collateral security for such mortgage, pledge and/or assign this Lease deed of trust or security instrument, for any purpose or purposes without having to obtain the consent of Lessor. Lessee; provided, however, that no Leasehold Mortgage incurred by Lessee pursuant to this Paragraph shall, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having not have power to obtain the consent of Lessor.
(b) If Lesseeincur any encumbrance, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to except for this Lease, shall also serve that will constitute a copy of such notice upon lien or encumbrance on the holder of such mortgage, fee at the address provided for in clause (vi) of this Section 24.1(b), Property. Lessor and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein amend this Lease to include any provision that a proposed Lender may reasonably request; provided, have however, that such provision implements Lender protection provisions in this Lease or preserves the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect lien of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon Leasehold Mortgage on the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest default under this Lease. Provided, however, that: (x) such holder Such amendment shall not be obligated to continue such possession neither affect the rent or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with term provided for in this Lease nor materially adversely affect any other rights of Lessor in writing to comply under this Lease. Any improvements constructed on the Property during the period term of such forbearance with such of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that and any extensions thereof, shall be and remain the property of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to Lessee until the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of sooner termination of this Lease, and at which time they shall be for become the remainder property of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseLesser.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Quaker Fabric Corp /De/)
Leasehold Mortgages. To ASC, and every successor and assign of ASC, is hereby given the extent any provision right by IMA in this Article 24 conflicts or is inconsistent with addition to any other provision of this rights herein granted, subject to IMA's prior written consent which shall not be unreasonably withheld, to mortgage its interests in the Lease, the provisions of this Article 24 shall control.
(a) Lesseeor any part or parts thereof, under one or more leasehold Mortgage(s), and its to assign the Lease, or any part or parts thereof, and any subleases, or parts thereof, as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to each and every one of the covenants, conditions and restrictions set forth in the Lease, and to all rights and interests of IMA herein, none of which covenants, conditions or restrictions is or shall be waived by IMA by reason of the right given so to mortgage such interest in the Lease, except as expressly provided herein. If ASC and/or ASC's successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, assigns shall mortgage this Lease in compliance leasehold or any part or parts thereof, and if the holder(s) of such Mortgage(s) shall send to IMA written notice of such Mortgage(s) specifying the name and address of the Mortgagee(s) and the pertinent recording data with the provisions of this Sectionrespect to such Mortgage(s), then IMA agrees that so long as any such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder(s) to IMA, the following provisions shall apply:
(ia) LessorThere shall be no cancellation, surrender or modification of the Lease by joint action of IMA and ASC without the prior consent in writing of the leasehold Mortgagee(s); provided that termination upon default shall be governed by the following provisions of this Section 22.
(b) IMA shall, upon serving Lessee ASC with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also simultaneously serve a copy of such notice upon the holder holder(s) of such mortgage, at the address provided for in clause (vi) of this Section 24.1(bleasehold Mortgagee(s), provided IMA shall be kept informed in writing by ASC of current addresses of all Mortgagees and no such notice by Lessor of default to Lessee hereunder ASC shall be deemed effective as to have been duly given any person or entity unless and until a copy thereof has been so served.
(ii) Any holder of such mortgagenotice is served upon each such person or entity; however, in case Lessee the failure of ASC to provide IMA with the name of any Mortgagee(s) shall be in default hereunder, shall, within the period and otherwise as herein provided, constitute a waiver of IMA's requirement to provide notice. The leasehold Mortgagee(s) shall thereupon have the right same period as ASC, after service of such notice upon it, to remedy such default, or cause the same to be remediedremedied the defaults complained of, and Lessor IMA shall accept such performance by or at the instance instigation of such holder leasehold Mortgagee(s) as if the same had been made done by LesseeASC.
(iiic) For Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the purposes of this Articleholder(s) to IMA, no event of if any default shall be deemed occur which, pursuant to exist in respect any provision of the performance Lease, entitles IMA to terminate the Lease, and if before the expiration of ten (10) days from the date of service of notice of termination upon such leasehold Mortgagee(s) such leasehold Mortgagee(s) shall have notified IMA of its desire to nullify such notice and shall have paid to IMA all Rent and additional Rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work required to be performed, or of acts to be done, or complying with all of conditions to be remediedthe other requirements of the Lease, if steps any are then in default, and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with diligence reasonable diligence, then in such event IMA shall not be entitled to terminate the Lease and continuityany notice of termination theretofore given shall be void and of no effect.
(ivd) Notwithstanding anything herein contained If IMA shall elect to terminate the contrary, upon the occurrence Lease by reason of any event default of ASC, the leasehold Mortgagee(s) shall not only have the right to nullify any notice of termination by curing such default, Lessor as aforesaid, but shall take no action also have the right to effect a postpone and extend the specified date for the termination of this the Lease without first giving as fixed by IMA in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing monetary defaults and meanwhile pay the holder of such mortgage written notice thereof Rent, additional Rent and a reasonable time thereafter within which either (x) to obtain possession comply with and perform all of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such of the other terms, conditions and covenants provisions of the Lease on ASC's part to be complied with and performed, other than past non-monetary defaults, and provided further, that the leasehold Mortgagee(s) shall forthwith take steps to acquire or sell ASC's interest in the Lease by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell ASC's interest herein, the time of said Mortgagee to comply with the provisions of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder Section shall be deemed extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity, provided the quality of the commercial alpine ski resort operator shall not have been waived by Lessor upon completion of such foreclosure proceedings reduced or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosureimpaired.
(ve) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease IMA agrees that in the event of a bankruptcy termination of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement by reason of any default by ASC other than for nonpayment of Rent or additional Rent and all sums which would at other payments herein provided for, that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall IMA will enter into a new lease of the Leased Property Premises with the leasehold Mortgagee(s) or its nominee(s), provided reasonable assurances of the capability of the new operator are provided, for the remainder of the Term, effective as of the date of such holdertermination, or his designeeat the Rent and additional Rent and upon the terms, provisions, covenants and agreements as followsherein contained and subject only to the same conditions of title as the Lease is subject to on the date of the execution hereof, and to the rights, if any, of the parties then in possession of any part of the Leased Premises, provided:
(Bi) Said Mortgagee(s) or its nominee(s) shall make written request upon IMA for such new lease within fifteen (15) days after the date of such termination and such written request shall be accompanied by payment to IMA of all sums then due to IMA under the Lease.
(ii) Said Mortgagee(s) or its nominee(s) shall pay to IMA at the time of the execution and delivery of said new lease, any and all sums which would at the time of the execution and delivery thereof, be due pursuant to the Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney's fees, to which IMA shall have been subjected by reason of such default.
(iii) Said Mortgagee(s) or its nominee(s) shall perform and observe all covenants herein contained on ASC's part to be performed and shall further remedy any other conditions which ASC under the terminated lease was obligated to perform under the terms of the Lease.
(iv) IMA shall not warrant possession of the Leased Premises to ASC under the new Lease.
(v) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow expressly made subject to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to rights, if any, of ASC under the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseterminated Lease.
(vi) Any notice The Mortgagee, or other communication which Lessor its nominee, under such new lease shall desire or is required have the same right, title and interest in and to give to or serve upon the holder of a mortgage Ski Improvements on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address the Leased Premises as set forth in such mortgage. Any notice or other communication which ASC had under the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailterminated Lease.
(vii) Effective upon Nothing herein contained shall require the commencement leasehold Mortgagee(s) or its nominee(s) to cure any default of the term ASC, except as a condition of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectexercising its rights hereunder.
(viii) No agreement between Lessor IMA agrees promptly after submission to execute, acknowledge and Lessee modifyingdeliver any agreements modifying the Lease requested by any leasehold Mortgagee(s), canceling provided that such modification does not decrease ASC's obligations or surrendering this Lease shall be effective without decrease IMA's rights pursuant to the prior written consent of the leasehold mortgageeLease.
(ix) The fee title proceeds from any insurance policies or arising from a condemnation are to the Leased Property be held by any leasehold Mortgagee(s) and the leasehold estate created therein distributed pursuant to the provisions of this Lease shall not merge the Lease, but shall always be kept separate and distinctthe leasehold Mortgagee(s) may reserve its right to apply to the mortgage debt all, notwithstanding the union or any part, of ASC's share of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseproceeds pursuant to such mortgage(s).
(cx) If The leasehold Mortgagee(s) shall be given notice of any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, arbitration proceedings by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease the parties hereto and shall thereupon have the right to intervene therein and be released from made a party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold Mortgagee(s) shall not elect to intervene or become a party to such proceedings, the leasehold Mortgagee(s) shall receive notice of, and a copy of any award or decision made in said arbitration proceedings. IMA, upon request, shall execute, acknowledge and deliver to each leasehold Mortgagee(s), an agreement prepared at the sole cost and expense of ASC in form satisfactory to such leasehold Mortgagee(s) between IMA, ASC and the leasehold Mortgagee(s), agreeing to (a) all liability for the performance or observance of the covenants provisions of this Section 22 and conditions (b) such other provisions as are customary and acceptable to all parties in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereundermortgaging long-term leaseholds in connection with large commercial development projects.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ski Lease (Asc Holdings Inc)
Leasehold Mortgages. To (a) Notwithstanding anything to the extent any provision contrary contained in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant may from time to time, and its successors and assigns, shall have the unconditional right in each case upon prior written notice to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:Landlord,
(i) Lessorencumber, upon serving Lessee hypothecate or mortgage its interest in the Premises with any notice one or more mortgages, assignments of default, leasehold interest or any other notice under the provisions security instruments in favor of an institutional lender or with respect lenders as security for a loan or loans (referred to this Lease, shall also serve herein as a copy of such notice upon “Permitted Institutional Mortgage,” and the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(bPermitted Institutional Mortgage is referred to herein as a “Permitted Institutional Mortgagee”), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of obtain equity investment financing with respect to any investment tax credits generated by the Project (an “Equity Investment”) from one or more investors (referred to herein as an “Investor”). Each such mortgage, in case Lessee Permitted Institutional Mortgage shall be in default hereunder, shall, within mature no later than the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect last day of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination term of this Lease, and shall be for a Leasehold Mortgage only, expressly subject to the remainder of the term terms and conditions of this Lease Lease. It is expressly understood and at agreed that Tenant has no right to mortgage or otherwise encumber the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and Premises, except that Tenant may encumber the leasehold estate created therein pursuant fee title to the provisions Improvements that Tenant develops on the Property upon prior written notice to Landlord. Tenant shall promptly deliver to Landlord a true copy of the Permitted Institutional Mortgage and any assignment thereof. A list of the Permitted Institutional Mortgagees and Investors is attached hereto as Exhibit E. Tenant shall notify Landlord of any change to the address and/or to the identity of the parties listed on Exhibit E, it being understood and agreed that Landlord shall have no obligation to notify a Permitted Institutional Mortgagee or any Investor not currently indicated on Exhibit E of any default under this Lease shall not merge but shall always be kept separate Article 14 until and distinct, notwithstanding unless the union name and address of such estates Permitted Institutional Mortgagee or Investor shall have been provided to Landlord in Lessee, Lessor, or in any other person by purchase, operation of law or otherwisewriting.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To Tenant and every successor and assign of Tenant is hereby given the extent right (exercisable at any provision time and from time to time during the Principal Term) by Landlord, to mortgage their interests in this Article 24 conflicts or is inconsistent with any other provision of this Lease, under one or more leasehold mortgages) to parties who are not Tenant Affiliates and who are institutional-type lenders (including, without limitation, banks, savings and loan associations, insurance companies and mortgage investments trusts), and to assign this Lease, and all subleases), as collateral security for such leasehold mortgages), upon the condition that all rights acquired under such leasehold mortgages) shall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease Agreement, and to all rights and interests of Landlord in this Lease Agreement, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the right given to Tenant to mortgage Tenant's interest in this Lease Agreement, except as expressly provided in this Section 36. If Tenant desires to mortgage its interest under this Lease to a leasehold mortgagee who is not an institutional type investor then, as long as such proposed leasehold mortgagee is not a Tenant Affiliate, the Landlord agrees not unreasonably to withhold or delay its approval of such leasehold mortgagee. If Tenant and/or Tenant's successors and assigns shall mortgage this leasehold and if the holder of any such leasehold mortgage shall send to Landlord notice specifying the name and address of such holder and the pertinent recording data with respect to its leasehold mortgage, and if such holder shall have been approved by Landlord as aforesaid, then Landlord agrees that the following provisions shall apply to each leasehold mortgage with respect to which such conditions are met (each being herein called a "Leasehold Mortgage"), so long as such Leasehold Mortgage shall remain unsatisfied of this Article 24 shall control.record or until notice of satisfaction of such Leasehold Mortgage is given by the holder to Landlord:
(a) LesseeThere shall be no cancellation, surrender or modification of this Lease Agreement by joint action of Landlord and Tenant without the prior consent in writing of the holder of the Leasehold Mortgage, and its successors and assignsno merger shall result from the acquisition by, shall have the unconditional right to mortgageor devolution upon, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion any one entity of the Leased Property without having to obtain fee and leasehold estates in the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of LessorPremises.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) LessorLandlord shall, upon serving Lessee Tenant with any notice of default, default or any other notice under the provisions of or with respect to provided for in this LeaseLease Agreement, shall also simultaneously serve a copy of such notice upon the holder of the Leasehold Mortgage; and no such mortgagenotice to Tenant shall be effective unless a copy of such notice is also served on the holder of the Leasehold Mortgage. The holder of the Leasehold Mortgage shall thereupon have the same period, at after service of such notice upon it, to remedy or cause to be remedied the address provided for in clause (vi) of this Section 24.1(b)defaults complained of, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such the holder of the Leasehold Mortgage as if the same had been made done by LesseeTenant.
(iiic) For the purposes If any default by Tenant shall occur which, pursuant to any provision of this ArticleLease Agreement or law, no event entitles Landlord to terminate this Lease Agreement, and if, before the expiration of default shall be deemed to exist in respect ten (10) days from the date of service of notice of termination upon the holder of the performance Leasehold Mortgage, such holder shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all minimum Rent and other payments provided for in this Lease to which are then in default, and shall have complied (or shall have commenced the work required to be performedof complying) with all of the other obligations of Tenant under this Lease which are then in default, or of acts to be done, or of conditions to be remedied, if steps and shall in good faith, have been commenced within the time permitted therefor to rectify prosecute the same and shall be prosecuted to completion with diligence reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and continuityany notice of termination theretofore given shall be void and of no effect; and in the event that the holder of more than one Leasehold Mortgage shall desire so to act, the holder of the Leasehold Mortgage which is prior in lien shall have the prior right so to act.
(ivd) Notwithstanding anything herein contained If any default by Tenant shall occur which, pursuant to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination provision of this Lease without first giving Agreement or law, entitles Landlord to terminate this Lease Agreement, and Landlord elects to terminate this Lease Agreement, the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder Leasehold Mortgage shall not be obligated only have the right to continue nullify any notice of termination by curing such possession or default, as aforesaid, but shall also have the right to continue such foreclosure proceedings after such defaults shall have been cured postpone and (y) such holder shall agree with Lessor in writing to comply during extend 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of specified date for the termination of this Lease Agreement as fixed by Landlord in Landlord's notice of termination, for a period of not more than four (4) months, provided that such holder shall within ten (10) days of the notice of termination cure or cause to be cured any then existing monetary defaults and meanwhile pay the rent, additional rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, and provided further that the holder of the Leasehold Mortgage shall forthwith take steps to acquire or sell Tenant's interest in this Lease Agreement by foreclosure of the Leasehold Mortgage or otherwise and shall prosecute the same to completion with due diligence. If at the end of said four (4) month period the holder of the Leasehold Mortgage shall be actively engaged in steps to acquire or sell Tenant's interest in this Lease Agreement and shall have given notice thereof to Landlord, the time for the holder to comply with the provisions of this subparagraph (d) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity; provided, however, that such extension shall not exceed sixty (60) days.
(e) Landlord agrees that in the event of any termination of this Lease Agreement or of any New Lease made pursuant to this subparagraph (e) prior to the its stated expiration of the Term date for any reason whatsoever (including, without limitation, in connection with a by operation of law or the rejection of this Lease Agreement or any New Lease by Tenant as debtor in the event possession or any trustee of a bankruptcy of LesseeTenant in any bankruptcy, reorganization, arrangement or similar proceeding), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor Landlord shall enter into a new lease ("New Lease") of the Leased Property Premises with such holderthe holder of the Leasehold Mortgage (or its nominee) or, if there be more than one Leasehold Mortgage, then with the holder entitled under subparagraph (e) (iii) (or his designeeits nominee) , as follows:
(B) Such new lease shall be for the remainder of the Term of this Lease, effective as at of the date of termination such termination, at the rent and upon the same terms, provisions, covenants and agreements as contained in this Lease Agreement (including without limitation all renewal options and/or rights of first refusal), and subject only to the same conditions of title as this Lease Agreement is subject to on the date of the execution hereof and to others created pursuant to other Paragraphs of this Lease, and shall be for to the remainder rights, if any, of any parties then in possession of any part of the term Premises, provided:
(i) The holder (or its nominee) shall make request upon Landlord for such New Lease and shall enter into the New Lease within sixty (60) days after the date on which the holder has received written notice of the occurrence of such termination.
(ii) The holder (or its nominee) shall pay to Landlord at the time of the execution and delivery of the New Lease all sums which would at the time of the execution and delivery of the New Lease be due pursuant to this Lease and at the rent and upon all the agreementsAgreement but for such termination, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to less the net income derived received by Lessor from the Leased Property during the period from Landlord subsequent to the date of termination of this Lease Agreement pursuant to subparagraph (v) (C) below and prior to the date execution and delivery of execution of such new leasethe New Lease.
(viiii) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests holder makes request upon Lessor for a new lease Landlord in accordance with the provisions of this Sectionsubparagraph (e) , the new lease New Lease shall be entered into pursuant delivered to the holder requesting such New Lease whose Leasehold Mortgage is prior in lien and prior in estate, and the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior any Leasehold Mortgage which is subordinate in lien shall be and be deemed to be void and of no force or and effect.
(viiiiv) No agreement between Lessor Upon the execution and Lessee modifyingdelivery of the New Lease, canceling or surrendering all subleases which theretofore may have been assigned and transferred to Landlord shall thereupon be assigned and transferred (without recourse) by Landlord to the Tenant under the New Lease; and the Tenant under the New Lease shall have the benefit of all of the right, title, interest, powers and privileges of Tenant under this Lease shall be effective without Agreement in and to the Premises, including specifically assignment of Landlord's interest in and to any then existing sublease where the sublessee may have attorned to Landlord and which, at the time of cancellation or termination of this Lease Agreement, was prior written consent in right to the lien of the leasehold mortgagee.
(ix) The fee title to holder of the Leased Property and the leasehold estate created therein Leasehold Mortgage or which by separate agreement or by its terms had been granted non-disturber privileges pursuant to the provisions of this Lease Agreement; and Landlord hereby agrees that, with respect to any such sublease so assigned, Landlord will not modify or amend any of the terms or provisions thereof, during the period between the expiration or termination of this Lease Agreement and the execution and delivery of the New Lease.
(v) Following the termination of this Lease Agreement or any New Lease and until the right of the holders of all Leasehold Mortgages to enter into a New Lease shall have expired without any New Lease having been executed:
(A) Landlord shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, alter or in any way demolish the buildings or other person by purchaseimprovements situate on the Premises; and, operation of law during said period, Landlord shall not remove, replace or otherwisechange any furniture, furnishing, fixtures or equipment located on the Premises.
(cB) Landlord shall not terminate any sublease or the rights of any subtenant under such sublease unless such subtenant shall be in default under such sublease.
(C) Landlord shall receive all base rent and other payments due from subtenants as agent of the holders of all Leasehold Mortgages and shall deposit such rents and payments in a separate and segregated in trust for the Premises but Landlord may withdraw such sums, from time to time, to pay any rent due Landlord and any necessary operating expenses and carrying charges of the Premises; and, upon the execution and delivery of the New Lease, Landlord shall account and release to the tenant under the New Lease for the balance, if any, of the base rent, additional rent and other payments made under the subleases.
(f) The holder of the Leasehold Mortgage shall be given notice of any arbitration proceedings by the parties hereto, and shall have the right to intervene therein and be made a party to such proceedings; and the parties hereto do hereby consent to such intervention. In the event that the holder of the Leasehold Mortgage shall not elect to intervene or become a party to such proceedings, the holder of the Leasehold Mortgage shall receive notice of, and a copy of any award or decision made in said arbitration proceedings.
(g) Landlord shall, upon request, execute, acknowledge and deliver to the holder of the Leasehold Mortgage an agreement prepared at the sole cost and expense of Tenant, in form reasonably satisfactory to such holder, between Landlord, Tenant and the holder, agreeing to all of the provisions of this
(h) If Tenant shall fail timely to deliver an Extension Notice, the holder of the Leasehold Mortgage which is first in lien shall nevertheless have the right to deliver such Extension Notice provided that it does so not later than thirty (30) days after Landlord has given the Reminder Notice that Tenant has failed to timely deliver such Extension Notice.
(i) Landlord shall not sell, assign, transfer, convey or in any leasehold mortgagee shall acquire manner alienate or dispose of title to Lessee’s to, or any interest in, any portion of the Premises or in this LeaseLease Agreement without specific provision that such sale, assignment, conveyance or other alienation or disposition is and shall be subject to all of the rights of Tenant as provided in this Lease Agreement and to the holder of the Leasehold Mortgage.
(j) No payment made to Landlord by the holder of the Leasehold Mortgage shall constitute agreement that such payment was, in fact, due under the terms of this Lease Agreement; and the holder of the Leasehold Mortgage having made any payment to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment.
(k) The making of a Leasehold Mortgage shall not be deemed to constitute an assignment of this Lease Agreement or of the leasehold estate hereby created, nor shall the holder of any Leasehold Mortgage, as such, be deemed an assignee of this Lease Agreement or of the leasehold estate hereby created so as to require such holder, as the holder of the Leasehold Mortgage, to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed under this Lease Agreement; but the purchaser at any sale of this Lease Agreement and of the leasehold estate hereby created in any proceedings for the foreclosure of a mortgage thereon any Leasehold Mortgage, or by the assignment of this Lease Agreement and of the leasehold estate hereby created under any instrument of assignment in lieu of foreclosure or by of any Leasehold Mortgage, shall be deemed to be an assignment from a designee or wholly owned subsidiary corporation assignee of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease Lease Agreement and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderleasehold estate hereby created.
(dl) Lessor hereby agrees This Lease may be assigned to deliver any party without Landlord's consent as a result of a foreclosure of the Leasehold Mortgage or as the result of a deed or assignment in lieu of foreclosure of a Leasehold Mortgage.
(m) No holder of a Leasehold Mortgage shall have any personal liability for performance of Tenant's obligations under this Lease unless and until such holder acquires title to Lessee a ground lessor estoppel certificate in Tenant's leasehold estate or assumes possession of the form reasonably required by any leasehold mortgagee of LesseePremises.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Xxxxxx’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Xxxxx and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Xxxxxxxx to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Xxxxxx’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Xxxxxx, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that:
(i) without the prior written consent of the leasehold mortgagee.each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease;
(ixii) The fee title Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder;
(iii) the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchase, operation of law or otherwise.dispute resolution proceedings under Article 34 hereof;
(civ) If the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any leasehold mortgagee insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Xxxxxx from time to time, Xxxxxxxx shall acquire title execute and deliver an instrument addressed to Lessee’s interest the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To 43.01. As used herein, the extent term “Leasehold Mortgage” shall mean any provision third-party bona fide mortgage, deed of trust, deed to secure debt, assignment, security interest, pledge, financing statement or any other instrument(s) or agreement(s) intended to grant security for any obligation (including a purchase-money or other promissory note) encumbering Tenant’s leasehold estate hereunder, as entered into, renewed, modified, consolidated, amended, extended or assigned from time to time during the Term. Notwithstanding anything contained in this Article 24 conflicts 7 or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained lease to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeTenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate interest created therein pursuant hereby may at any time and from time to time be, directly or indirectly, subjected to one or more Leasehold Mortgages upon prior notice to Landlord, but without the provisions consent of this Lease shall not merge but shall always be kept separate Landlord, and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to LesseeTenant’s interest in this Leaselease may at any time, by foreclosure directly or indirectly, be assigned to a Leasehold Mortgagee (as hereinafter defined) as collateral security; provided, that notwithstanding anything to the contrary contained in this Article 43 or elsewhere in this lease: (i) no Leasehold Mortgage or any extension thereof shall be a lien or encumbrance upon the estate or interest of a mortgage thereon or by assignment Landlord in lieu and to the Premises (collectively, the “Superior Interests”); (ii) such Leasehold Mortgage shall be subject and subordinate at all times to such Superior Interests; (iii) there shall be no obligation of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant Landlord whatsoever to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance subordinate its interest in any of the covenants Superior Interests to any Leasehold Mortgage or to “join in” any Leasehold Mortgage; and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(div) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.and
Appears in 1 contract
Samples: Lease Agreement (Citigroup Inc)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred (i.e. all Phases that are related to the Premises under this Lease), all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that:
(i) without the prior written consent of the leasehold mortgagee.each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease;
(ixii) The fee title Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder;
(iii) the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchase, operation of law or otherwise.dispute resolution proceedings under Article 34 hereof;
(civ) If the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any leasehold mortgagee insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, Landlord shall acquire title execute and deliver an instrument addressed to Lessee’s interest the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To (a) Tenant shall not encumber its interest in this Lease with any mortgage or other security. The foregoing notwithstanding, from time to time during the extent Term, and without the prior written consent of Landlord, Tenant may enter into a leasehold mortgage (a “Permitted Leasehold Mortgage”), with an Institutional Lender (which shall thereafter constitute a Recognized Mortgagee), subject to the following terms and conditions:
(i) No Permitted Leasehold Mortgage shall be secured by interests in any real property other than Tenant’s Leasehold interest in the Premises and the Subleases.
(ii) Tenant or Recognized Mortgagee shall promptly deliver to Landlord, in the manner herein provided for the giving of notice to Landlord, a true copy of the Permitted Leasehold Mortgage and of any assignment thereof and shall notify Landlord of the address of the successor Recognized Mortgagee to which notices may be sent.
(iii) Notwithstanding any provision in this Article 24 conflicts the Lease to the contrary, in the event of any casualty to or is inconsistent with condemnation of the Premises or any other provision portion thereof during such time as a Recognized Mortgagee shall be the holder of a Permitted Leasehold Mortgage encumbering Tenant’s interest herein, the Recognized Mortgagee shall be entitled to receive all insurance proceeds and/or condemnation awards allocated to the improvements located upon the Premises or the Tenant’s leasehold interest and shall have the obligation, to restore the Building and the Premises as required, under and pursuant to the terms and conditions of this Lease, provided such obligation shall only be to the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have extent that such insurance proceeds and/or condemnation awards are paid to the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of LessorRecognized Mortgagee.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease With respect to any Permitted Leasehold Mortgage made in compliance accordance with the provisions of this Section10.03, then so long as any such mortgage shall remain unsatisfied each of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee When giving notice to Tenant with respect to any notice of default, or any other notice default under the provisions of or with respect to this LeaseSection 22.01 and 22.02, shall Landlord will also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Recognized Mortgagee, and no such notice by Lessor to Lessee hereunder Tenant shall be deemed to have been duly given effective unless and until a copy thereof has been of such notice is so served.served upon the Recognized Mortgagee, which service shall be in the manner herein provided for the giving of notice to the holder of a Recognized Mortgagee;
(ii) Any holder Landlord will not exercise any right, power or remedy with respect to any default hereunder unless Tenant or a Recognized Mortgagee shall have failed to remedy such default within any applicable grace period set forth in this Agreement (which grace period shall commence, with respect to a Recognized Mortgagee, upon receipt by Recognized Mortgagee of the notice of default) and for an additional 30 days thereafter (the “Mortgagee Grace Period”), provided that (i) if such default is of such mortgagea nature that it cannot, in case Lessee shall with the exercise of due diligence, be in default hereunder, shall, cured within the cure period and otherwise as herein providedthe Mortgagee Grace Period, the provisions of subsection (iv) below shall apply.;
(iii) In case Tenant shall default under any of the provisions of this Lease, the Recognized Mortgagee shall have the right to remedy make good such default, or cause default whether the same consists of the failure to be remediedpay rent or the failure to perform any other matter or thing which Tenant is hereby required to do or perform, and Lessor Landlord shall accept such performance by or at on the instance part of such holder the Recognized Mortgagee as if though the same had been made done or performed by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.Tenant;
(iv) Notwithstanding anything herein contained to In the contrary, upon the occurrence case of any event Event of defaultDefault by Tenant (including any of the Events of Default set forth in Section 22.01 hereof other than in the payment of money hereunder or other than a default which may be cured by the payment of money hereunder), Lessor shall Landlord will take no action to effect a termination of the term of this Lease by the service of a notice of termination by reason of any such default without first giving to the holder of such mortgage written notice thereof and a Recognized Mortgagee reasonable time thereafter within which either (xX) to obtain possession of the mortgaged property Premises (including possession by a receiver) and cure such default in the case of a default which is susceptible of being cured when the Recognized Mortgagee has obtained possession, or (yY) to institute, prosecute institute foreclosure proceedings and complete foreclosure proceedings such foreclosure, or otherwise acquire LesseeTenant’s interest under this Lease. Provided, with diligence and continuity in the case of a default which is not so susceptible of being cured by the Recognized Mortgagee; provided, however, that: (x) such holder that the Recognized Mortgagee shall not be obligated required to continue such possession or to continue such foreclosure proceedings after such defaults shall if the default which would have been cured the reason for serving such a termination notice shall be cured; and (y) such holder provided, further, that nothing herein shall agree preclude Landlord from exercising any rights or remedies under this Lease with Lessor in writing respect to comply any other default by Tenant during the any period of such forbearance with such of forbearance. Notwithstanding anything contained herein to the termscontrary, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any a Recognized Mortgagee shall not be required to cure or remedy any default by Lessee, which is not reasonably so susceptible of being cured by Recognized Mortgagee (including, but not limited to, Tenant’s bankruptcy or wrongful assignment of the Lease or subletting of the Premises), and upon foreclosure or other acquisition of Tenant’s interest in this Lease by a Recognized Mortgagee or its designee, all such holder defaults under this Lease shall be deemed to have been waived by Lessor upon completion of fully cured as to Recognized Mortgagee, its designee and its successors and assigns, provided that the foregoing shall not waive or release Tenant with respect to such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.default;
(v) In the event Landlord and Tenant agree not to enter into any modification of the termination this Lease, or accept surrender of this Lease prior without the consent of any then-existing Recognized Mortgagee without first providing such Recognized Mortgagee with the notice and opportunity to the expiration of the Term (includingcure Tenant defaults as provided under this Section 10.03(b), without limitationwhich consent such modification or surrender shall be void and of no effect; provided, in connection with a rejection that Landlord shall not be liable for damages, lost profits or other monetary sum to any Recognized Mortgagee or successor thereto or assign thereof for breach of this Lease in the event of a bankruptcy of Lessee), Lessor covenant (it being agreed that Recognized Mortgagee shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option right to obtain a new Lease in accordance injunctive relief and specific performance with and upon respect to any violation of this covenant).
(c) The provisions of this Section 10.03 are conditioned on the following terms and conditionsfollowing:
(A1) Upon the written request of the holder of such mortgageThe Recognized Mortgagee shall, within thirty (30) days after service notice of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as followsdefault:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used by Tenant only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge, and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by assignment in lieu or on behalf of foreclosure a Mortgagee of any covenant, condition or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained agreement on tenantTenant’s part to be performed hereunder with the same force and observed from effect as though performed by Tenant, so long as such performance is made in accordance with the terms and after provisions of this Lease. Landlord shall not object to any temporary entry onto the date Premises by or on behalf of Mortgagee to the extent necessary to effect such assignmentMortgagee’s cure rights, provided that such assignee assumes entry is in compliance with all Applicable Laws. If possession of the obligations Premises or any part thereof is required in order to cure such Event of Lessee Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the form reasonably process of curing (or caused to be commenced such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by any leasehold mortgagee clause (d) of Lessee.this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises,
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To (a) Tenant, and its successors, subtenants and assigns permitted hereunder shall have the extent any provision right to mortgage and pledge their respective interests in this Article 24 conflicts or Lease (“Leasehold Mortgage”) to a lender who is inconsistent not affiliated with any Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this Section 20. Landlord and Xxxxxx expressly intend and agree that the provisions of this Section 20 and such other provision provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to the contrary, all Leasehold Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet at all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee times shall be permitted without having inferior and subject to obtain the consent prior right, title and interest of LessorLandlord herein. Notwithstanding anything to the contrary set forth in this Lease, in no event shall the fee interest in the Property or Facility Premises be subordinate to any Leasehold Mortgage.
(b) A notice of each Leasehold Mortgage shall be delivered to the Landlord specifying the name and address of such Leasehold Mortgagee to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (30) days of such mortgage being recorded.
(c) If LesseeTenant, or LesseeXxxxxx’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this SectionLease, then so long as any such mortgage Leasehold Mortgage shall remain unsatisfied of recordrecord and Tenant shall have properly delivered notice to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the following provisions shall apply:
(i) LessorLandlord, upon serving Lessee with upon Tenant any notice of default, an Event of Default or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Leasehold Mortgagee, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given as to the Leasehold Mortgagee unless and until a copy thereof has been so servedserved upon the Leasehold Mortgagee. Landlord’s furnishing a copy of such notice to Leasehold Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Tenant, provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease.
(ii) Any holder of such mortgageLeasehold Mortgagee, in case Lessee there shall be in default hereundera Tenant Default under this Lease, shall, within the period and otherwise as herein provided, shall have the right to remedy such default, Tenant Default (or cause the same to be remedied) within thirty (30) days after notice to Leasehold Mortgagee of such Tenant Default (which will be after expiration of all Tenant notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Tenant Default so long as (x) curative action reasonably satisfactory to Landlord is instituted within such period and diligently and continuously pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Lessor Landlord shall accept such performance by or at the instance of such holder Leasehold Mortgagee as if the same had been made by LesseeTenant. Any provision of this Lease to the contrary notwithstanding, no performance by or on behalf of a Leasehold Mortgagee shall cause it to become a “mortgagee in possession” or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease.
(iii) For The Landlord agrees that, in the purposes of this Article, no event of default shall a non-monetary Tenant Default which cannot be deemed cured by the Leasehold Mortgagee pursuant to exist in respect paragraph (ii), above, without obtaining possession of the performance Premises, the Landlord will not terminate this Lease without first giving to the Leasehold Mortgagee reasonable time within which to obtain possession of work required to be performedthe Premises, including possession by a receiver, or of acts to be done, institute and complete foreclosure proceedings or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion otherwise acquire Tenant’s interest under this Lease with diligence and continuitywithout unreasonable delay. The Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of all covenants and agreements of Tenant, except those which by their nature cannot be performed or cured by any person other than the then Tenant which has defaulted (“Incurable Lease Defaults”), the Landlord’s right to terminate this Lease shall be waived with respect to the matters which have been cured by the Leasehold Mortgagee and with respect to the Incurable Lease Defaults.
(iv) Notwithstanding anything herein contained to the contrarycontrary set forth in this Section 20(c), upon Leasehold Mortgagee shall have the occurrence of right, but shall not be obligated, to remedy any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest Tenant Default under this Lease. ProvidedIt shall be a condition precedent to any assignment or transfer of this Lease by foreclosure of any Leasehold Mortgagee, however, that: deed-in-lieu thereof or otherwise to any third-party (xunrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) such holder shall not be obligated to continue such possession or to continue purchaser in any such foreclosure proceedings after (any such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such transferee of the termsLease), conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor that upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become becoming the legal owner and holder of this Lease through shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure proceedings or by assignment of this Lease in deed-in-lieu of foreclosurethereof, judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default.
(v) In the event of the termination of this Lease prior to the expiration of the Term (includingTerm, without limitationwhether by summary proceedings to dispossess, in connection with service of notice to terminate, or otherwise, due to a rejection of this Lease in the event of a bankruptcy of Lessee)Tenant Default, Lessor Landlord shall serve upon the holder of such mortgage 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 LessorLandlord. Such holder Leasehold Mortgagee shall thereupon have the option to obtain a new Lease lease in accordance with and upon the following terms and conditions:
(A) : Upon the written request of the holder of such mortgageLeasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminatedterminated to Leasehold Mortgagee, Lessor Landlord shall enter into a new lease of the Leased Property Premises with such holder, Leasehold Mortgagee or his designee, its designee as follows:
(B) : Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as at of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewalextension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, Lessor shall allow to the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such tenant termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be entitled deemed to an adjustment impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof.
(vi) If this Lease is (a) rejected by a trustee or debtor-in-possession in an amount equal any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the net income derived extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Lessor from Tenant prior to such rejection or termination). The new lease shall be executed by Xxxxxxxx and the Leased Property during Leasehold Mortgagee or its nominee(s) within ninety (90) days after the period from receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date of termination of that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this “Lease” shall be deemed also to refer to such new lease.
(vivii) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon the holder of a mortgage on this Lease Leasehold Mortgagee shall be in writing and shall be served by registered either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to such holder Leasehold Mortgagee at his its address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required provided to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailLandlord.
(viid) Effective upon The City, acting by and through the commencement of the term of any new lease executed pursuant to paragraph (v) of this SectionCity Representative, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new leaseshall, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to at the request of the holder whose leasehold mortgage Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be prior in lien thereto a form and thereupon substance that is reasonably acceptable to the written requests City and consistent with the terms and provisions contained in this Section 20. Within twenty (20) days of the Tenant’s request for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No lender’s rights agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease Section 20, time being of the essence, the City, acting by and through the City Representative, shall not merge but execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall always be kept separate in a form and distinctsubstance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, notwithstanding and at the union option of such estates Leasehold Mortgagee incorporates, the terms and provisions of this Section 20. Xxxxxx agrees to pay for the City’s reasonable attorneys’ fees expended in Lessee, Lessor, or in connection with any other person by purchase, operation of law or otherwiselender’s rights agreement.
(ce) If any leasehold mortgagee shall acquire title Xxxxxxxx agrees to Lessee’s interest negotiate in good faith and execute modifications to this Section 20 and related provisions of this Lease, by foreclosure of a mortgage thereon which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or by assignment prospective Leasehold Mortgagee) in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided event that such assignee assumes Leasehold Mortgagee desires changes to the obligations of Lessee hereunderprovisions as currently stated.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To a) Tenant shall have the right to enter into any recordable leasehold mortgage to the extent the same is solely limited to the leasehold interest of Tenant and does not increase the rights of the leasehold mortgagee beyond the leasehold interest of Tenant in the Premises. Notwithstanding the foregoing, except as otherwise provided herein: (i) it is expressly understood that Landlord’s consent to the execution and recordation of a leasehold mortgage by Tenant does not constitute approval by Landlord of any provision in this Article 24 conflicts or of the provisions of the leasehold mortgage; and (ii) if there is inconsistent with any other provision of a conflict between the leasehold mortgage and this Lease, the provisions terms of this Article 24 Lease shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If LesseeTenant, or LesseeTenant’s successors or assignsassignees, shall mortgage mortgages or grants to a leasehold mortgagee or lender a security interest in Tenant’s interest in this Lease and the Premises, and if the leasehold mortgagee or lender sends to Landlord a true copy of the leasehold mortgage or security agreement executed in compliance connection therewith together with the provisions of this Sectiona written notice specifying such mortgagee’s or lender’s name and address, then so long as any such leasehold mortgage or security agreement shall remain unsatisfied of recordrecord or until written notice of satisfaction is given by the holder to Landlord, the following provisions shall apply:
(i) LessorThere shall be no cancellation, surrender, acceptance or surrender, amendment, or modification of this Lease by joint action of Landlord and Tenant, or by Tenant alone, without in each case, written notice to the holder. Nor shall any merger result from the acquisition by, or devolution upon, any one entity of the fee and the leasehold estates of the Premises.
(ii) Landlord shall, upon serving Lessee Tenant with any notice or other communication, whether of default, default or any other notice under the provisions of or with respect to this Leasematter, shall also simultaneously serve a copy of such notice upon the holder. However, Landlord’s failure to deliver such notice to the holder shall not constitute a default or breach by Landlord under this Lease. Nevertheless, Landlord may not undertake any action to enforce any of such mortgage, at its rights under this Lease and in connection with the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor given to Lessee hereunder shall be deemed to have been duly given Tenant unless and until a copy thereof has been so servedof the same is served upon the holder.
(iiiii) Any In the event of any default by Tenant under this Lease, the holder shall have, after service of notice of such mortgagedefault upon the holder, in case Lessee shall be in default hereunder, shall, within the same period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remediedremedied the default complained of as Tenant has under this Lease, and Lessor Landlord shall accept such performance by or at the instance instigation of such the holder as if the same had been made rendered by Lessee.
(iii) For the purposes of this Article, no event Tenant. Each notice of default given by Landlord shall be deemed to exist in respect state the amounts of the performance of work required rent and whatever other payments are being claimed to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuitydefault.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or Landlord agrees that (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such the holder shall have the right, but not be obligated the obligation, to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any remedy any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due Tenant under this Lease but for such terminationby performing any applicable term, and of all other defaultscovenant, if any, under this Lease then known to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, condition or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination agreement of this Lease, and (z) Landlord shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of accept such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived performance by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing with the same force and shall be served effect as if furnished by registered mailTenant, addressed subject to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of this Lease.
(v) Not more than one twice during any calendar year, Landlord, within ten business (10) days after a request in writing by Tenant or the holder, shall furnish a written statement, duly acknowledged, that this Lease is in full force and effect and that there are no defaults thereunder by Tenant, or if there are any defaults, such statement shall specify the defaults Landlord claims to exist, and that this Lease has not been modified or changed, or if there have been such modifications or changes, Landlord shall provide a complete copy thereof to the holder.
(vi) Landlord hereby consents to: (w) holder’s foreclosure of a leasehold mortgage mortgage, (x) any sale of Tenant’s interest in this Lease and the Premises in connection with a foreclosure, whether by judicial proceedings or by virtue of any power of sale contained in the leasehold mortgage, (y) any conveyance of Tenant’s interest in this Lease and the Premises from Tenant to the holder, or its nominee or designee, by virtue of or in lieu of foreclosure or other appropriate proceedings, and (z) if holder, or its nominee or designee, becomes the holder of Tenant’s interest in this Lease and the Premises, the conveyance of such interest by holder, or its nominee or designee, to: (A) to another creditworthy convenience store operator that meets Landlord’s approval, which approval shall make written requests not be unreasonably conditioned, delayed, or denied, and will be based upon Lessor for a new lease Landlord’s customary review and evaluation of the prospective tenant, or (B) any other conveyance in accordance with the terms of the assignment provisions of the then lease (which shall be the same as those contained in this SectionLease, except that all obligations and liabilities of the new holder, or its nominee or designee, under such lease shall be entered into cease and terminate upon such assignment).
c) Anything herein contained notwithstanding, while such leasehold mortgage remains unsatisfied of record, or until written notice of satisfaction is given by the holder to Landlord, if any default shall occur which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the request expiration of ten (10) days after the date of service of notice of termination upon such leasehold mortgagee, such leasehold mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the holder whose leasehold mortgage other requirements of this Lease, if any are then in default, and shall prosecute the same to completion with reasonable diligence, then in such event Landlord shall not be prior in lien thereto entitled to terminate this Lease and thereupon the written requests for a new lease any notice of each holder of a leasehold mortgage junior in lien termination theretofore given shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ixd) The fee title proceeds from any insurance policies or arising from a condemnation of Tenant’s interest in the Premises are to the Leased Property be held by any leasehold mortgagee and the leasehold estate created therein distributed pursuant to the provisions of this Lease shall not merge Lease, but shall always be kept separate and distinctthe leasehold mortgagee may reserve rights to apply to the mortgage debt all, notwithstanding the union or any part, of Tenant’s share of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseproceeds pursuant to such mortgage.
(ce) If any The leasehold mortgagee shall acquire title be given notice of any arbitration proceedings by the parties hereto, and shall have the right to Lessee’s interest intervene therein and be made party to such proceedings, and the parties hereto do hereby consent to such intervention. In the event that the leasehold mortgagee shall not elect to intervene or become party to such proceedings, the leasehold mortgagee shall receive notice of, and a copy of, any award or decision made in this Leasesaid arbitration proceedings.
f) The term “mortgage,” whenever used herein, by foreclosure shall include whatever security instruments are used in the locale of a mortgage thereon or by assignment in lieu the Premises, such as, without limitation, deeds to secure debt, deeds of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgageetrust, or under a new lease and conditional deeds, as well as financing statements, security agreements, and other documentation required pursuant to this Articlethe Uniform Commercial Code. The term “mortgage”, such mortgagee may assign such lease and whenever used herein, shall thereupon be released from all liability for the performance or observance of the covenants and conditions also include any instrument required in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderconnection with a sale-leaseback transaction.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease Agreement (Pantry Inc)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, The Lessee shall have the unconditional right right, at its sole cost and expense, to mortgagegrant one or more (subject to Section 18.7) Leasehold Mortgages, pledge and/or assign this Lease without having to obtain if at the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as time any such mortgage shall remain unsatisfied of record, Leasehold Mortgage is executed and delivered to the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this ArticleLeasehold Mortgagee, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of Lessee Default exists unless any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then Lessee Default will be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior pursuant to the expiration of the Term (including, without limitation, Section 18.3 in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of entering into such mortgage 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 terminationLeasehold Mortgage, and of all other defaults, if any, under this Lease then known upon and subject to Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(Aa) Upon the written request Lessee shall have provided the form of the holder Leasehold Mortgage to the Authority and the Authority shall have, after delivery of the form of Leasehold Mortgage to, and consultation with, the Signatory Airlines, determined that each such Leasehold Mortgage is in compliance with this Section 18.1 and the Use Agreement;
(b) a Leasehold Mortgage may not cover any property of, or secure any debt issued or guaranteed by, any Person other than the Lessee (or a financial institution providing a financial guaranty or similar credit enhancement in respect of any debt of the Lessee); provided that it may cover shares or equity interests in the capital of the Lessee and any cash reserves or deposits held in the name of the Lessee;
(c) no Person other than an Institutional Lender shall be entitled to the benefits and protections accorded to a Leasehold Mortgagee in this Agreement; provided, however, that lessors and lenders to the Lessee, including any financial insurers, shall be entitled to the benefits and protections accorded to a Leasehold Mortgagee in this Agreement so long as any Leasehold Mortgage securing the relevant debt or financial insurance provided by such Persons is held by an Institutional Lender acting as collateral agent or trustee with the customary powers given collateral agents or trustees in similar commercial financing transactions;
(d) no Leasehold Mortgage or other instrument purporting to mortgage, pledge, encumber or create a lien, charge or security interest on or against any or all of the Lessee Interest shall extend to or affect the fee simple interest in the LMM Airport Facility, the Authority’s interest hereunder or its reversionary interest and estate in and to the LMM Airport Facility or any part thereof (other than a Permitted Lessee Encumbrance);
(e) the Authority shall have no liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, or any interest accrued thereon or any other sum secured thereby or accruing thereunder, and, except for violation by the Authority of the express obligations to the Leasehold Mortgagee set forth in this Article 18 and for any remedies of the Leasehold Mortgagee provided by Law, the Leasehold Mortgagee shall not be entitled to seek any damages or other amounts against the Authority for any or all of the same;
(f) the Authority shall have no obligation to any Leasehold Mortgagee in the enforcement of the Authority’s rights and remedies herein and by Law provided, except as expressly set forth in this Agreement and unless such Leasehold Mortgagee has provided the Authority with notice of its Leasehold Mortgage in accordance with the Leasehold Mortgagee Notice Requirements;
(g) each Leasehold Mortgage shall provide that if an event of default under the Leasehold Mortgage has occurred and is continuing and the Leasehold Mortgagee gives notice of such mortgageevent of default to the Lessee, within thirty then the Leasehold Mortgagee shall give notice of such default to the Authority (30) days after service and the Authority shall be obligated to provide a copy of such notice to the Signatory Airlines);
(h) subject to the terms of this Agreement and except as specified herein, all rights acquired by a Leasehold Mortgagee under any Leasehold Mortgage shall be subject and subordinate to all of the provisions of this Agreement and to all of the rights of the Authority hereunder and to all of the rights of the Signatory Airlines under this Article 18 and under the Use Agreement;
(i) while any Leasehold Mortgage is outstanding, the Authority shall not agree to any amendment to or modification of this Agreement that could reasonably be expected to have a material adverse effect on the Lease rights or interests of the Leasehold Mortgagee or agree to a voluntary surrender or termination of this Agreement by the Lessee without the consent of the Leasehold Mortgagee, which consent shall not be unreasonably withheld, delayed or conditioned;
(j) notwithstanding any enforcement of the security of any Leasehold Mortgage, the Lessee shall remain liable to the Authority for the payment of all sums owing to the Authority under this Agreement and the performance and observance of all of the Lessee’s covenants and obligations under this Agreement, unless otherwise satisfied;
(k) a Leasehold Mortgagee shall not, by virtue of its Leasehold Mortgage, acquire any greater rights or interest in the LMM Airport Facility than the Lessee has been terminatedat any applicable time under this Agreement, Lessor other than such rights or interest as may be granted or acquired in accordance with Sections 18.2, 18.3, 18.4 or 18.5; and
(l) each Leasehold Mortgagee, the Authority, the Lessee and the GDB shall enter into a new lease consent agreement in a form acceptable to all parties whereby all parties consent to the assignment of this Agreement to an agent in connection with the financing of the Leased Property with Leasehold Mortgage; provided that such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease consent agreement shall be in writing a customary form and shall be served by registered mail, addressed include only the rights and protections provided to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth Leasehold Mortgagee in this Lease Agreement (including those provided in Section 16.6 and this Article 18). Nothing herein shall obligate the Authority to consent to service of process, become subject to any legal process in any jurisdiction other than in the Commonwealth, or at such other addresses as shall be designated enter into any agreement not governed by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement Laws of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effectCommonwealth.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision Except as expressly authorized in this Article 24 conflicts or is inconsistent with any other provision of this LeaseSection 89 (Project Financing), the provisions Lessee shall not mortgage the Lessee’s interest in this Agreement or the letting hereunder in whole or in part, or any portion of this Article 24 shall control.
(a) Lesseethe Premises in whole or in part. The Parties acknowledge that the Lessee intends to enter into one or more financings or series of financings to incur Lessee Debt, and its successors and assignsincluding any Refinancings, from time to time during the Term. The Lessee shall have the unconditional right right, at its sole cost and expense, in connection with incurring (i) the Initial Lessee Debt under the initial Financing Documents, or (ii) subject to mortgageSection 90(a), pledge and/or assign any subsequent Lessee Debt (including any other Lessee Debt issued in accordance with the terms of then-existing Financing Documents that were approved by the Port Authority in accordance with this Lease without having Agreement), to obtain grant a Leasehold Mortgage to secure the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion obligations of the Leased Property without having Lessee with respect to obtain such Lessee Debt; provided, that at the consent time of Lessor. Any pledge or assignment execution and delivery of any interests in Lessee such Leasehold Mortgage, no Event of Default has occurred and is continuing and the following terms and conditions shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applysatisfied:
(i) Lessor, upon serving Lessee with the Leasehold Mortgage (A) may not cover any notice of defaultproperty of, or secure any debt issued or guaranteed by, any Person other notice than the Lessee (or a financial institution providing a financial guaranty or similar credit enhancement in respect of any debt of the Lessee) and (B) shall only secure the obligations of the Lessee under the provisions of then-existing Financing Documents or a Refinancing approved by the Port Authority in accordance with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b90(a), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.;
(ii) Any holder subject to clause (xiv) below, no Leasehold Mortgage shall encumber less than the entire interest of such mortgage, in case the Lessee shall be in default hereunder, shall, within under this Agreement and the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.Premises;
(iii) For no Leasehold Mortgage shall encumber any property other than the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performedPremises and Lessee’s personal property, or of acts contain any cross-default, cross-collateral or similar provisions with respect to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.any such other property;
(iv) Notwithstanding anything herein contained the aggregate principal amount of Lessee Debt secured by the Leasehold Mortgage shall not exceed a maximum amount of Four Billion Dollars and No Cents ($4,000,000,000.00), determined without taking into account any prepayments, redemptions or refundings made pursuant to any of the Financing Documents, unless otherwise agreed by the Port Authority; provided that the principal amount of any Lessee Debt initially incurred to finance the D&C Work Costs that is refinanced pursuant to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof terms and a reasonable time thereafter within which either (x) to obtain possession provisions of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder Port Authority-approved Financing Documents shall not be obligated subject to continue such possession the maximum principal cap set forth in this clause (iv);
(v) no Leasehold Mortgage or other instrument purporting to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such mortgage, pledge, encumber or create a lien, charge or security interest on or against any or all of the terms, conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this LeaseAgreement shall extend to or affect the fee simple interest in the Premises, the Port Authority’s interest under this Agreement or its reversionary interest and estate in and to the Premises or any part thereof;
(vi) the Port Authority shall have no liability whatsoever for payment of the principal sum secured by any Leasehold Mortgage, or any interest accrued thereon or any other sum secured thereby or accruing thereunder and, except for violation by the Port Authority of the express obligations to a Recognized Mortgagee set forth in this Section 89 (Project Financing) and for any remedies of the Recognized Mortgagee provided by Applicable Law, no Recognized Mortgagee shall be entitled to seek any damages or other amounts against the Port Authority for any or all of the same;
(vii) the Port Authority shall have no obligation to the holder of a Leasehold Mortgage (including any Recognized Mortgagee) in the enforcement of the Port Authority’s rights and remedies herein or as otherwise provided by Applicable Law, except as expressly set forth in this Agreement;
(viii) the Leasehold Mortgage shall provide that any if an “Event of Default” under the applicable Financing Documents has occurred and is continuing, and the mortgagee under such Leasehold Mortgage gives notice of such events “Event of default which are reasonably susceptible Default” to the Lessee, then such mortgagee shall simultaneously give notice of being cured after such completion “Event of Default” to the Port Authority;
(ix) subject to the terms of this Agreement and acquisition except as specified herein, all rights acquired by the holder of a Leasehold Mortgage (including any Recognized Mortgagee) shall then be cured with reasonable diligence. Such holdersubject and subordinate to all of the provisions of this Agreement and to all of the rights of the Port Authority under this Section 89 (Project Financing);
(x) neither this Section 89 (Project Financing) nor a Leasehold Mortgage shall prevent the Lessee from amending this Agreement without the approval of a Recognized Mortgagee; provided, that a Leasehold Mortgage may contain provisions requiring the approval of a Recognized Mortgagee or Recognized Mortgagees (such approval not to be unreasonably withheld, delayed or conditioned) for any amendment, variation, modification of, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event a waiver of the termination of this Lease prior to the expiration of the Term Lessee’s rights and obligations under, (including, without limitationin each case, amendments to or variations or modifications of the defined terms used in connection with a rejection such provisions) or any other amendment, variation or modification of this Lease Agreement that could reasonably be expected to have a material adverse effect on the rights or interests of a Recognized Mortgagee; and provided, further, that the applicable Financing Documents will expressly state that the Recognized Mortgagee will respond to any request from the Lessee or the Port Authority for approval of a modification or amendment of this Agreement within a reasonable period of time;
(xi) notwithstanding any enforcement of the security of the Leasehold Mortgage, the Lessee shall remain liable to the Port Authority for the payment of all sums owing to the Port Authority under this Agreement and the performance and observance of all of the Lessee’s covenants and obligations under this Agreement, unless otherwise satisfied;
(xii) no holder of a Leasehold Mortgage (including any Recognized Mortgagee) shall, by virtue of such Leasehold Mortgage, acquire any greater rights or interest in the Premises than the Lessee has at any applicable time under this Agreement, other than such rights or interest as may be granted to or acquired by the Recognized Mortgagee in accordance with this Section 89 (Project Financing);
(xiii) as between the Port Authority and any holder of a Leasehold Mortgage (including any Recognized Mortgagee), in the event of a bankruptcy any inconsistency between the terms, covenants, conditions and provisions of Lessee)this Agreement and the terms, Lessor covenants, conditions and provisions of the Leasehold Mortgage or any of the Financing Documents, the terms, covenants, conditions and provisions of this Agreement shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:control; and
(Axiv) Upon the written request Leasehold Mortgage shall provide that following the Completion Date, the legal description of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as premises set forth in such mortgage. Any notice or other communication which exhibits to the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor Leasehold Mortgage and any related diagrams therein shall be deemed amended, as necessary, to have been duly given or served if sent reflect the lease lines delineating the final Premises, which amendment may, in duplicate by registered mail addressed the event the legal description attached as exhibits to Lessor at Lessor’s address as set forth in this Lease or at the Leasehold Mortgage and any related diagrams therein, include property that lies outside such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement final lease lines, include a non-discretionary partial release of certain parts of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned Premises and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for Lessee’s rights therein from the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request lien of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property Leasehold Mortgage and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwiseapplicable Financing Documents.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To further secure the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, performance and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion payment of the Leased Property without having obligations of Corporation under the Loan Documents, Corporation grants to obtain the consent of Lessor. Any pledge or assignment of any Agent a present security interest in its leasehold interests in Lessee the parcels of real property and leased restaurant sites described on Exhibit B attached hereto. Corporation and Agent shall enter into a separate Leasehold Mortgage for each such parcel of real property substantially in the form attached hereto as Exhibit C and each such Leasehold Mortgage shall be permitted without having recorded or filed in the appropriate public records to obtain provide record notice to all third persons. Notwithstanding any term or covenant of the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with Leasehold Mortgages to the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of recordcontrary, the following provisions shall applyapply thereto:
(ia) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request conflict or ambiguity between any provision of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, Leasehold Mortgage and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionAgreement and any of the other Loan Documents, the new lease provisions hereof and of the Loan Documents other than the Leasehold Mortgages shall be entered into pursuant control;
(b) in the event of any conflict or ambiguity between any provision of the Leasehold Mortgages and the rights of and obligations of the Tenant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new landlord under any lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
encumbered thereby (viii) No agreement between Lessor and Lessee modifyingherein an "Encumbered Lease"), canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this the Encumbered Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.control; and
(c) If without limiting the generality of the foregoing, absent an Event of Default hereunder the landlord's insurance requirements under the Encumbered Leases shall supercede any leasehold mortgagee greater amount required under the Loan Documents, and the Agent shall acquire title consent to Lessee’s the application of insurance and condemnation proceeds for reconstruction of the leased premises consistent with the requirements of each Encumbered Lease. So long as and under the condition that no Event of Default exists hereunder, or any event which with the giving of notice or passage of time could constitute an Event of Default, then upon and in the 7 event of the bona fide sale of the Corporation's interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance any of the covenants restaurant sites subject hereto to an un-affiliated third party in an arm's length transaction, the Leasehold Mortgage and conditions all other security interests of the Agent hereunder encumbering such restaurant site and personal property located thereat shall be released. No release price shall be due, so long as the Corporation pays any costs incurred by Agent in connection with any such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderrelease.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, pledge and/or assign throughout the Term of this Lease without having to obtain the consent of Lessor. Lessee, mortgage its interest in this Lease and its successors interest in the Building with a leasehold mortgage or similar document (“Leasehold Mortgage”) to any mortgage lender. However, Landlord shall not be required to subordinate its fee interest or, if applicable, its mortgage on the Premises, to such Leasehold Mortgage. Tenant shall supply Landlord with the name and assigns, shall have the unconditional right to sublet all or a portion address of the Leased Property without having to obtain leasehold mortgagee (the consent of Lessor“Leasehold Mortgagee”). Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so So long as any Leasehold Mortgage shall be a lien upon Tenant’s leasehold estate, Landlord shall notify such mortgage shall remain unsatisfied Leasehold Mortgagee of recordany default by Tenant simultaneously with giving any such notice to Tenant; Xxxxxxxx agrees that the name of the Leasehold Mortgagee may be added to any and all insurance policies required to be carried by Tenant hereunder; and Landlord shall, upon request, execute, acknowledge and deliver to each Leasehold Mortgagee a written statement within ten (10) days of the following provisions shall apply:
request therefore certifying as follows: (i) Lessorthat this Lease is unmodified and in full force and effect (or, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof if there has been so served.
a modification, stating the nature thereof and that the Lease is in full force and effect as modified); (ii) Any holder that to the best of the Landlord’s knowledge, there are no uncured defaults on the part of the Tenant (or, if any such mortgagedefaults exist, in case Lessee shall be in default hereunder, shall, within the period special nature and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, extent thereof); and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For such other matters as the purposes Leasehold Mortgagee may reasonably request. Xxxxxxxx agrees that it will, upon written request by Xxxxxx execute such instruments as may be required at any time and from time to time to subordinate the rights and interest of this Article, no event of default shall be deemed to exist Landlord in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained fee to the contrary, lien of any Leasehold Mortgage placed by Tenant upon the occurrence of any event of defaultPremises. If required by the lending institution, Lessor shall take no action Xxxxxxxx further agrees to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor join 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address documents as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Sectionnecessary, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease but shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in thereby incur any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby personal liability. Landlord agrees to deliver provide Leasehold Mortgagee notice and opportunity to Lessee a ground lessor estoppel certificate in cure Events of Default by Tenant under the form reasonably required by any leasehold mortgagee of LesseeLease.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. Landlord shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein “Landlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, Landlord shall not exercise any of Landlord’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, Landlord may exercise any of Landlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, Landlord further agrees that:
(i) without the prior written consent of the leasehold mortgagee.each holder of a Mortgage, Landlord will neither agree to any modification or amendment of this Lease, nor accept a surrender or cancellation of this Lease;
(ixii) The fee title Landlord shall consider in good faith any modification to the Leased Property Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase Landlord’s obligations or diminish Landlord’s rights and immunities hereunder;
(iii) the leasehold estate created therein pursuant to holder of the provisions of Mortgage most senior in lien priority on this Lease shall not merge but shall always be kept separate and distinct, notwithstanding have the union of such estates in Lessee, Lessor, or right to participate in any other person by purchase, operation of law or otherwise.dispute resolution proceedings under Article 34 hereof;
(civ) If the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments of any leasehold mortgagee insurance claims of the nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, Landlord shall acquire title execute and deliver an instrument addressed to Lessee’s interest the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant the Lease which are expressly stated to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance benefit of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunderMortgagees.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To Tenant, and its successors, subtenants and assigns permitted hereunder, shall have the extent any provision right to mortgage and pledge its interesttheir respective interests in this Article 24 conflicts Lease (“Leasehold Mortgage”) to any bank, trust company or national banking association, acting for its own account or in a fiduciary capacitya lender who is inconsistent not affiliated with any Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this sectionSection 20. Landlord and Tenant expressly intend and agree that the provisions of this Section 2020 and such other provision provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to the contrary, all Leasehold Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet at all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee times shall be permitted without having inferior and subject to obtain the consent prior right, title and interest of Lessor.
Landlord herein. Notwithstanding anything to the contrary set forth in this Lease, in no event shall the fee interest in the Property or Facility Premises be subordinate to any Leasehold Mortgage. A notice of each Leasehold Mortgage shall be delivered to the Landlord specifying the name and address of such Leasehold Mortgagee to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (b30) If Lesseedays of such mortgage being recorded. So long as anyIf Tenant, or LesseeTenant’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this SectionLease, then so long as any such mortgage Leasehold Mortgage shall remain unsatisfied of recordrecord and Tenant shall have properly delivered notice to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the following provisions shall apply:
(i) Lessorapply with respect to such Leasehold Mortgagee: Landlord, upon serving Lessee with upon Tenant any notice of default, aan Event of Default or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Leasehold Mortgagee, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given as to the Leasehold Mortgagee unless and until a copy thereof has been so served.
(ii) Any holder served upon the Leasehold Mortgagee. Landlord’s furnishing a copy of such mortgagenotice to Leasehold Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Tenant, provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease. Any Leasehold Mortgagee, in case Lessee there shall be in default hereundera Tenant Default under this Lease, shall, within the period and otherwise as herein provided, shall have the right to remedy such default, Tenant Default (or cause the same to be remedied) within thirty (30) days after notice to Leasehold Mortgagee of such Tenant Default (which will be after expiration of all Tenant notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Tenant Default so long as (x) curative action reasonably satisfactory to Landlord is instituted within such period and diligently and continuously pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Lessor Landlord shall accept such performance by or at the instance of such holder Leasehold Mortgagee as if the same had been made by Lessee.
(iii) For the purposes Tenant. Any provision of this ArticleLease to the contrary notwithstanding, no event performance by or on behalf of default a Leasehold Mortgagee shall cause it to become a "“mortgagee in possession"” or otherwise cause it to be deemed to exist be in respect possession of the performance of work required to be performedPremises or bound by or liable under this Lease. The Landlord agrees that, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of defaulta non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), Lessor shall take no action to effect a termination above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the holder of such mortgage written notice thereof and a Leasehold Mortgagee reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (Premises, including possession by a receiver) , or (y) to institute, prosecute institute and complete foreclosure proceedings or otherwise acquire LesseeTenant’s interest under this LeaseLease with diligence and without unreasonable delay. ProvidedThe Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of all covenants and agreements of Tenant, howeverexcept those which by their nature cannot be performed or cured by any person other than the then Tenant which has defaulted (“Incurable Lease Defaults”), that: (x) such holder the Landlord’s right to terminate this Lease shall be waived with respect to the matters which have been cured by the Leasehold Mortgagee and with respect to the Incurable Lease Defaults. Notwithstanding anything to the contrary set forth in this Section 20(b),20(c), Leasehold Mortgagee shall have the right, but shall not be obligated obligated, to continue such possession remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by foreclosure of any Leasehold Mortgagee, deed-in-lieu thereof or otherwise to continue any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such foreclosure proceedings after (any such defaults shall have been cured and (y) such holder shall agree with Lessor in writing to comply during the period of such forbearance with such transferee of the termsLease), conditions and covenants of this Lease as are reasonably susceptible of being complied with by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor that upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become becoming the legal owner and holder of this Lease through shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure proceedings or by assignment of this Lease in deed-in-lieu of foreclosure.
(v) thereof. , judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default. In the event of the termination of this Lease prior to the expiration of the Term (includingTerm, without limitationwhether by summary proceedings to dispossess, in connection with service of notice to terminate, or otherwise, due to a rejection of this Lease in the event of a bankruptcy of Lessee)Tenant Default, Lessor Landlord shall serve upon the holder of such mortgage 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 LessorLandlord. Such holder Leasehold Mortgagee shall thereupon have the option to obtain a new Lease lease in accordance with and upon the following terms and conditions:
(A) : Upon the written request of the holder of such mortgageLeasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminatedterminated to Leasehold Mortgagee, Lessor Landlord shall enter into a new lease of the Leased Property Premises with such holder, Leasehold Mortgagee or his designee, its designee as follows:
(B) : Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as at of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewalextension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, Lessor shall allow to the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such tenant termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be entitled deemed to an adjustment impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof. If this Lease is (a) rejected by a trustee or debtor-in-possession in an amount equal any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the net income derived extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Lessor from Tenant prior to such rejection or termination). The new lease shall be executed by Landlord and the Leased Property during Leasehold Mortgagee or its nominee(s) within ninety (90) days after the period from receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date of termination of that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this "“Lease"” shall be deemed also to refer to such new lease.
(vi) . Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon the holder of a mortgage on this Lease Leasehold Mortgagee shall be in writing and shall be served by registered either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to such holder Leasehold Mortgagee at his its address as set forth provided to Landlord. Simultaneously with the giving to Tenant of any process in such mortgage. Any notice any action or other communication which the holder proceeding brought for foreclosure of a mortgage Leasehold Mortgage or any notice of (i) default or acceleration under a Leasehold Mortgage, (ii) a matter on this Lease shall desire which such a default or is required to give to acceleration may be predicated or serve upon Lessor shall be deemed to have been duly given claimed, (iii) a foreclosure of a Leasehold Mortgage, or served (iv) a condition which if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given continued may lead to such holder by registered mail.
(vii) Effective upon foreclosure, the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor Leasehold Mortgagee will deliver duplicate copies thereof to the tenant under such new leaseLandlord by certified mail or overnight delivery service. The City, acting by and all moneys on deposit with Lessor which Lessee would have been entitled to use but for through the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this SectionCity Representative, the new lease shall be entered into pursuant to shall, at the request of the holder whose leasehold mortgage Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be prior in lien thereto a form and thereupon substance that is reasonably acceptable to the written requests City and consistent with the terms and provisions contained in this Section 20.20. Within twenty (20) days of the Tenant’s request for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No lender’s rights agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease Section 20,20, time being of the essence, the City, acting by and through the City Representative, shall not merge but execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall always be kept separate in a form and distinctsubstance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, notwithstanding and at the union option of such estates Leasehold Mortgagee incorporates, the terms and provisions of this Section 20.20. Tenant agrees to pay for the City’s reasonable attorneys’ fees expended in Lessee, Lessor, or connection with any lender’s rights agreement. Landlord agrees to negotiate in any other person by purchase, operation good faith and execute modifications to this Section 20 and related provisions of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or by assignment prospective Leasehold Mortgagee) in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided event that such assignee assumes Leasehold Mortgagee desires changes to the obligations of Lessee hereunderprovisions as currently stated.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To Tenant may, from time to time, grant to any one or more Institutional Lender providing financing or refinancing to Tenant with respect to Tenant’s Leasehold Interest in the extent Private Facilities a Leasehold Mortgage lien encumbering Tenant’s Leasehold Interest in the Private Facilities and its interest in, to and under this Lease, together with an assignment of Subleases and rents and a security interest in any provision Personal Property owned by Tenant, and an assignment of the Master Development Plan, the Plans and Specifications and development rights under Building Permits, as well Tenant’s rights, title and interest in, to and under agreements with Contractors, Architects and other design building professionals and other income, receipts, revenues, issues and profits inuring to Tenant from the Project, in order to secure the repayment of such financing, including interest thereon, and the performance of all of the terms, covenants and agreements to be performed or observed under all agreements executed in connection with such financing or refinancing. Landxxxx xxxees that it shall enter into such amendments to this Article 24 conflicts or is inconsistent with Lease as may be reasonably requested by any other provision Institutional Lender in furtherance thereof. Except as expressly provided by the terms of this Lease, no such Leasehold Mortgage, lien or security interest shall attach to Landlord’s Estate the provisions of this Article 24 Public Facilities Parcel, the Public Facilities or to any other property owned or leased by Landlord nor shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lesseeassignment affect Landlord’s interest in this Lease, except that or in any of such events of default which are reasonably susceptible of being cured after such completion leases and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, rents or other purchaser in foreclosure proceedings proceeds from the Private Facilities. Tenant may become have one or more Leasehold Mortgages at any time and Landlord shall have the legal owner and holder of this Lease through such foreclosure proceedings right to rely upon any notice, statement or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon request received from the holder of such mortgage written notice that the Lease has been terminated together with a statement any Leasehold Mortgage without investigation or inquiry 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leasenature.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant will have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Xxxxxx’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, shall have nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to mortgagecure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.06 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessorat the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease;
(iii) such Mortgage will contain in substance the following provisions: “This instrument is executed upon serving Lessee with condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of defaultsuch sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Xxxxx will, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any other notice under insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Xxxxx and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with respect to this Leasethe consent of the mortgagor or its predecessors in interest, shall also serve a copy or may hereafter be modified, amended or renewed with the consent of such notice upon the mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof.
(c) Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, the Mortgagee specified in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, Section 10.04(j) below will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if Mortgagee of any covenant, condition, or agreement on Xxxxxx’s part to be performed hereunder with the same had been force and effect as though performed by Xxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. Landlord will not object to any temporary entry onto the Premises by Lesseeor on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder.
(iiid) For During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the purposes process of this Article, no event of default shall be deemed to exist in respect of the performance of work required curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, in connection with a rejection payment of this Lease in all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement payment of any and all sums which would at that time be due under this Lease but Impositions or payments of installments for such termination, and of all other defaults, if any, under this Lease then known Impositions are being made to Lessor. Such holder shall thereupon have the option to obtain a new Lease Depository in accordance with and upon Article 5 above)) within any applicable grace periods. However, at any time after the following terms and conditions:
(A) Upon the written request delivery of the holder of such mortgageaforementioned agreement, within thirty (30) days after service of such notice the Mortgagee may notify Landlord, in writing, that the Lease it has been terminated, Lessor shall enter into a new lease relinquished possession of the Leased Property with Premises or that it will not institute foreclosure proceedings or, if such holderproceedings have been commenced, or his designeethat it has discontinued them, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leaseand, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which event, the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to Mortgagee will have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no further liability under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of such assignment, provided that such assignee assumes the obligations Premises and to take any other action Landlord deems appropriate by reason of Lessee hereunderany uncured Event of Default by Xxxxxx.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) Lessor hereby agrees of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to deliver to Lessee a ground lessor estoppel certificate in (A) dispossess Tenant or other occupants of the form reasonably required by any leasehold mortgagee of Lessee.Premises,
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeTenant will have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees which at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Xxxxxx’s interest in this Lease will be used only in connection with the costs of pre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, shall have nor anyone claiming by, through or under any such Mortgage, will by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to mortgagecure or remedy Tenant’s defaults or become entitled to a New Lease as more fully set forth in this Section 10.04 and Section 10.06 and such other rights as are expressly granted to Mortgagees in this Lease. No Mortgage will be effective, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessorat the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage will be subject to all the agreements, terms, covenants, and conditions of this Lease;
(iii) such Mortgage will contain in substance the following provisions: “This instrument is executed upon serving Lessee with condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Xxxxx at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, will, as a result of such sale or transfer, acquire any right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged, unless and until (i) Landlord has been given written notice of defaultsuch sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Xxxxx will, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any other notice under insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee will not name, in such foreclosure action or otherwise, and in any event will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease who are not Affiliates of Tenant. “This mortgage and all rights of the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Xxxxx and the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with respect to this Leasethe consent of the mortgagor or its predecessors in interest, shall also serve a copy or may hereafter be modified, amended or renewed with the consent of such notice upon the mortgagee. Nevertheless, the holder of this mortgage agrees from time to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee will give to Landlord written notice of the making of any Mortgage (which notice will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such mortgageMortgage and a duplicate original or certified copy thereof.
(c) Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided for in clause by Article 25, a copy of each notice given by Landlord to Tenant hereunder (viincluding any notices of Event(s) of this Section 24.1(b)Default under the Lease) at the same time as and whenever any such notice will thereafter be given by Landlord to Tenant, and no such notice by Lessor to Lessee hereunder shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period will be deemed to have commenced) unless and until a copy thereof has will have been so served.
(ii) Any holder given to each such Mortgagee. Upon receipt of such mortgagenotice, the Mortgagee specified in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, Section 10.04(j) below will have the right (but not the obligation) to remedy such default, Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten Business Days more in the case of a monetary Event of Default, and Lessor shall (ii) a period of 15 Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which will require more than the additional 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee will have commenced to cure (or caused to be commenced such cure) within such additional 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord will accept such performance by or at the instance on behalf of such holder as if Mortgagee of any covenant, condition, or agreement on Tenant’s part to be performed hereunder with the same had been force and effect as though performed by Xxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. Landlord will not object to any temporary entry onto the Premises by Lesseeor on behalf of Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee will notify Landlord within the applicable period afforded to Mortgagee hereunder.
(iiid) For During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the purposes process of this Article, no event of default shall be deemed to exist in respect of the performance of work required curing (or caused to be performed, or commenced such cure) a non-monetary Event of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced Default within the time permitted therefor periods provided in Section 10.04(c), Landlord will not exercise any remedies to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of terminate this Lease without first giving to the holder or dispossess Tenant of such mortgage written notice thereof and a reasonable possession thereof. At any time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee will have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, in connection with a rejection payment of this Lease in all Base Rent, Additional Costs and Impositions due hereunder (including further, without limitation, the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement payment of any and all sums which would at that time be due under this Lease but Impositions or payments of installments for such termination, and of all other defaults, if any, under this Lease then known Impositions are being made to Lessor. Such holder shall thereupon have the option to obtain a new Lease Depository in accordance with and upon Article 5 above)) within any applicable grace periods. However, at any time after the following terms and conditions:
(A) Upon the written request delivery of the holder of such mortgageaforementioned agreement, within thirty (30) days after service of such notice the Mortgagee may notify Landlord, in writing, that the Lease it has been terminated, Lessor shall enter into a new lease relinquished possession of the Leased Property with Premises or that it will not institute foreclosure proceedings or, if such holderproceedings have been commenced, or his designeethat it has discontinued them, as follows:
(B) Such new lease shall be effective as at the date of termination of this Leaseand, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which event, the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to Mortgagee will have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant no further liability under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of such assignment, provided that such assignee assumes the obligations Premises and to take any other action Landlord deems appropriate by reason of Lessee hereunderany uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee will not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee will acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured will no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee will be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee will be taking the actions required by clause (d) Lessor hereby agrees of this Section 10.04, Landlord will not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to deliver to Lessee a ground lessor estoppel certificate in (A) dispossess Tenant or other occupants of the form reasonably required by any leasehold mortgagee of Lessee.Premises,
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee3 6.1.1 Tenant, and its successors and assigns, assigns permitted hereunder shall have the unconditional 4 right to mortgage, mortgage and pledge and/or assign their respective interests in this Lease without having (“Leasehold Mortgage”) to obtain a 5 lender who is not affiliated with Tenant (“Leasehold Mortgagee”), in accordance with and subject 6 to the consent terms, conditions, requirements and limitations of Lessorthis Section 6. LesseeLandlord and Tenant 7 expressly intend and agree that the provisions of this Section 6 and such other provisions of this 8 Lease which, by their express terms, are for the benefit of Leasehold Mortgagees, are intended for 9 the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, 10 designees, successors and permitted assigns. Notwithstanding anything in this Lease to the 11 contrary, all Leasehold Mortgages shall be expressly subordinate and subject to the terms, 12 covenants and conditions of this Lease, and its successors at all times shall be inferior and assignssubject to the prior 13 right, title and interest of Landlord herein. Notwithstanding anything to the contrary set forth in 14 this Lease, in no event shall have the unconditional right fee interest in the Property or the Premises be subordinate or 15 subject to sublet all or any Leasehold Mortgage.
16 6.1.2 A notice of each Leasehold Mortgage shall be delivered to the Landlord as 17 provided in Section 18.14 of this Lease specifying the name and address of such Leasehold 18 Mortgagee to which notices shall be sent. Landlord shall be furnished a portion copy of each such recorded 19 Leasehold Mortgage within thirty (30) days of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment effective date of any interests in Lessee shall be permitted without having to obtain the consent of LessorLeasehold Mortgage.
(b) 20 6.1.3 If LesseeTenant, or LesseeXxxxxx’s successors or permitted assigns, shall mortgage this Lease in compliance with the provisions of this Section21 Lease, then so long as any such mortgage Leasehold Mortgage shall remain unsatisfied of recordrecord and Tenant 22 shall have properly delivered notice to Landlord in compliance with Section 18.14 hereof with 23 respect to such Leasehold Mortgagee, the following provisions shall apply:
(i) Lessor24 6.1.3.1. Landlord, upon serving Lessee with upon Tenant any notice of default, an Event of 25 Default or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice 26 upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b)Leasehold Mortgagee, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given as to the 27 Leasehold Mortgagee unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, served upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.Leasehold
Appears in 1 contract
Samples: Operating Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre- development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Xxxxxx has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Xxxxx at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until
(i) the FCRHA has been given written notice of such sale or transfer of said Xxxxx and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Xxxxx and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Xxxxxx, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non- monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 1 contract
Samples: Deed of Lease
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) LesseeDisclosure Schedule (6.5) sets forth each of the Leasehold Properties which are subject to a Leasehold Mortgage as of the Closing Date. With respect to all other Leasehold Properties not set forth on Disclosure Schedule (6.5), and on or prior to December 15, 2006, or at such later date as Lender, in its successors and assignssole discretion, may elect, Lender shall have received, upon Lender’s request, duly executed counterparts of mortgages, in form and substance reasonably satisfactory to the unconditional right Lender (the “Leasehold Mortgages”) with respect to mortgageeach Leasehold Property for filing in the county in which each such Leasehold Property is located, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lesseein each case duly executed and delivered by Borrower, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applytogether with:
(i) Lessor, upon serving Lessee with any notice evidence of default, the completion (or any other notice under satisfactory arrangements for the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vicompletion) of this Section 24.1(b)all recordings and filings of the Leasehold Mortgages as may be necessary or, and no notice by Lessor in the opinion of the Lender, desirable to Lessee hereunder shall create a valid, perfected first priority Lien against each Leasehold Property purported to be deemed to have been duly given unless and until a copy thereof has been so served.covered thereby; and
(ii) Any holder of such mortgageother consents, approvals, opinions, or documents as the Lender reasonably may request, in case Lessee shall be in default hereunder, shall, within the period form and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained substance satisfactory to the contraryLender, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either including (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
) (A) Upon the written request an opinion of the holder of such mortgagelocal counsel to Borrower, within thirty (30) days after service of such notice that the Lease has been terminatedin form and substance reasonably satisfactory to Lender, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new Estoppel Certificates and Consents to Leasehold Mortgages to be delivered with respect to each Leasehold Property, (C) evidence that the applicable lease shall be effective as at or a memorandum thereof has been recorded in all locations necessary or desirable, in the date of termination of this LeaseLender’s reasonable judgment, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution to give constructive notice to third-party purchasers of such new leaseleasehold interest, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor or (D) if a leasehold interest was acquired or subleased from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in writing and shall be served by registered mail, addressed to such holder at his address as set forth each case in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mailLender.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Loan and Security Agreement (Charys Holding Co Inc)
Leasehold Mortgages. To further secure the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, performance and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion payment of the Leased Property without having obligations of Corporation under the Loan Documents, Corporation grants to obtain the consent of Lessor. Any pledge or assignment of any Agent a present security interest in its leasehold interests in Lessee the parcels of real property and leased restaurant sites described on Exhibit B attached hereto. Corporation and Agent shall enter into a separate Leasehold Mortgage for each such parcel of real property substantially in the form attached hereto as Exhibit C and each such Leasehold Mortgage shall be permitted without having recorded or filed in the appropriate public records to obtain provide record notice to all third persons. Notwithstanding any term or covenant of the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with Leasehold Mortgages to the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of recordcontrary, the following provisions shall applyapply thereto:
(ia) Lessorin the event of any conflict or ambiguity between any provision of the Leasehold Mortgage and the provisions of this Agreement and any of the other Loan Documents, upon serving Lessee the provisions hereof and of the Loan Documents other than the Leasehold Mortgages shall control;
(b) in the event of any conflict or ambiguity between any provision of the Leasehold Mortgages and the rights of and obligations of the Tenant to the landlord under any lease encumbered thereby (herein an "Encumbered Lease"), the provisions of the Encumbered Lease shall control; and
(c) without limiting the generality of the foregoing, absent an Event of Default hereunder the landlord's insurance requirements under the Encumbered Leases shall supercede any greater amount required under the Loan Documents, and the Agent shall consent to the application of insurance and condemnation proceeds for reconstruction of the leased premises consistent with any notice the requirements of defaulteach Encumbered Lease. So long as and under the condition that no Event of Default exists hereunder, or any other event which with the giving of notice under the provisions or passage of or with respect to this Leasetime could constitute an Event of Default, shall also serve a copy of such notice then upon the holder of such mortgage, at the address provided for and in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration bona fide sale of the Term (includingCorporation's interest in any of the restaurant sites subject hereto to an unaffiliated third party in an arm's length transaction, without limitationthe Leasehold Mortgage and all other security interests of the Agent hereunder encumbering such restaurant site and personal property located thereat shall be released. No release price shall be due, so long as the Corporation pays any costs incurred by Agent in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of any such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaserelease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Solely to the extent required by the terms of the Credit Agreement and the Operative Documents, Ground Lessee shall at all times have the right to encumber by the Mortgage (defined in the Credit Agreement; hereinafter, the "Leasehold Mortgage") as security for any debt, all of Ground Lessee's right, title and interest hereunder including, without limiting the generality of the foregoing, its right to use and occupy the Site together with its rights and interests in and to all buildings, improvements, and its successors fixtures now or hereafter placed on the Site; in all respects, however (except as herein expressly provided), subordinate and assignsinferior to Ground Lessor's rights, shall title, privileges, liens and interests as provided in this Ground Lease; and Ground Lessee shall, in no event, have the unconditional right to, in any way, encumber Ground Lessor's fee simple title and reversionary interest in and to mortgage, pledge and/or assign this Lease without having to obtain the consent of LessorSite. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Ground Lessee shall be not amend or otherwise modify the Leasehold Mortgage except as permitted without having to obtain by the consent of LessorCredit Agreement or the Operative Documents.
(b) If LesseeThe Agent (defined in the Credit Agreement) as mortgagee under the Leasehold Mortgage (the "Leasehold Mortgagee") may, at its option, at any time before this Ground Lease shall have been terminated, pay any amount or Lessee’s successors do any act or assigns, thing required of Ground Lessee by the terms of this Ground Lease and shall mortgage this Lease in compliance with be thereby subrogated to any and all of the rights of Ground Lessee under the terms and provisions of this Section, then Ground Lease; and all payments so long as any such mortgage shall remain unsatisfied of record, made and all acts or things so done and performed by the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder Leasehold Mortgagee shall be deemed as effective to prevent a forfeiture of the rights of Ground Lessee as the same would have been duly given unless if done and until a copy thereof has been so servedperformed by Ground Lessee instead of the Leasehold Mortgagee.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(vc) In the event of the termination of this Ground Lease or of any new lease made pursuant to the provisions of this paragraph (e) prior to its stated expiration date, Ground Lessor will notify the expiration of Leasehold Mortgagee and certify in writing to the Term Leasehold Mortgagee all amounts then due to Ground Lessor under this Ground Lease (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lesseeor such new lease), and Ground Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall will enter into a new lease of the Leased Property Site with the Leasehold Mortgagee (or its designee or nominee) for the remainder of the Term, to commence as of the date of the termination of this Ground lease (or any new lease) at the same Rent and upon all of the other terms, provisions, covenants and agreements in this Ground Lease contained, upon condition that (i) the Leasehold Mortgagee shall make written request to Ground Lessor for such holder, or his designee, as follows:
(B) Such new lease not later than thirty (30) days from the date such notice by Ground Lessor is given to the Leasehold Mortgagee, (ii) the Leasehold Mortgagee shall be effective pay to Ground Lessor at the time of the execution and delivery of said new lease all sums which, as at the date of termination of this Lease, execution and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution delivery of such new lease, Lessor shall allow to the tenant named therein were past due and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of owing under this Lease to the date of execution of Ground Lease, and (iii) such new leaselease shall require the lessee thereunder to perform any obligation of Ground Lessee under this Ground Lease not then performed.
(vid) Any notice Ground Lessor will not modify, amend, cancel or other communication which Lessor shall desire or is required to give to or serve upon the holder of accept a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) surrender of this SectionGround Lease, all subleases nor shall this Ground Lease be assigned and transferred without recourse terminated by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Ground Lessee would have been entitled to use but for the (including a termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request express provisions hereof), nor shall Ground Lessee elect any option granted to it under this Ground Lease, without the prior written consent of all the Leasehold Mortgagee. Any such modification, amendment, cancellation, surrender, termination or option election without the written consent of the holder whose leasehold mortgage Leasehold Mortgagee shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viiie) No agreement between union of the interests of Ground Lessor and Ground Lessee modifying, canceling or surrendering shall result in a merger of this Ground Lease shall be effective and the fee interests in the Site without the prior written consent of the leasehold mortgageeLeasehold Mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To Notwithstanding anything to the extent any provision contrary contained in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right right, at any time and from time to mortgagetime, pledge and/or assign this Lease without having to obtain mortgage its leasehold interest in the consent of Lessor. LesseePremises on such terms, conditions and maturity as Tenant shall determine, and its successors to enter into any and assignsall extensions, modifications, amendments, replacements, and refinancings of any such leasehold mortgage as Tenant may desire; provided, however, the terms of any such leasehold mortgage shall have expressly disclaim any interest against Landlord’s interest in the unconditional right Premises and shall absolve Landlord of any liability with respect to sublet all or a portion the financing secured by such leasehold mortgage. In addition, in the event the original principal balance of the Leased Property without having obligation secured by any one or more mortgages encumbering the Tenant’s leasehold interest exceeds the amount of the Facility Payment, plus amounts incurred to obtain pay financing costs and to fund reserves in connection with Tenant’s arrangements to finance the consent Facility Payment, the terms of Lessor. Any pledge or assignment such mortgages shall provide that, in the event of any interests in Lessee a default under the terms thereof, the Parking Facility shall be permitted without having released from the liens of such mortgages upon payment to obtain the consent holders thereof of Lessor.
(b) an amount equal to the fair market value of the Parking Facility at the time of such default. If LesseeTenant, or LesseeTenant’s successors or assigns, assigns shall mortgage this Lease in compliance with the provisions of this Sectionsaid leasehold interest, then so as long as any such leasehold mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest contrary contained in this Lease, except that and any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the pertinent provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part deemed to be performed amended and observed from and after modified to the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees extent necessary so as to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.provide as follows:
Appears in 1 contract
Samples: Sublease Agreement (Red Hat Inc)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b24.1 (b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Hotel Lease Agreement (Moody National REIT II, Inc.)
Leasehold Mortgages. To (a) Tenant permitted or allowed in accordance with the extent any provision in this Article 24 conflicts or is inconsistent with any other provision applicable term and provisions of this Lease, may, without Landlord’s consent, from time to time pledge, mortgage or encumber the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right leasehold estate demised to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of LessorTenant hereunder. Any pledge such pledge, deed of trust, mortgage or assignment of any interests in Lessee encumbrance upon the he extended modified, amended demised hereunder as the same may be extended, modified, the Leasehold estate demised to Tenant hereunder; provided however, that each Leasehold Mortgagee shall be permitted without having an Institutional Lender or if not, then prior to obtain the consent delivery of Lessor.
(b) If Lesseeeach Leasehold Mortgage to a Leasehold Mortgagee which is not an Institutional Lender, or LesseeTenant shall first comply with the terms and provisions set forth below in this subsection. Tenant shall be entitled to request from time to time Landlord’s successors or assignswritten waiver and acknowledgement, shall mortgage this Lease in which may be relied upon by Tenant’s prospective lender under a proposed Leasehold Mortgage, of Tenant’s compliance with the provisions “Minimum Ratio Requirements” (as hereinafter defined) by giving written notice to Landlord of this Section, then so long as Tenant’s intent to incur indebtedness that will be secured by a new Leasehold Mortgage. Tenant shall not incur any such mortgage indebtedness or give the applicable Leasehold Mortgage until it has obtained such waiver and acknowledgement as aforesaid. Such written notice to Landlord will be accompanied by a certificate of an officer of Tenant wherein Tenant represents and warrants to Landlord that Tenant’s obtaining the loan to be secured by such new Leasehold Mortgage will not cause Tenant to violate the Minimum Ratio Requirements. Landlord shall remain unsatisfied of recorddeliver the aforesaid written waiver and acknowledgement to Tenant (or Tenant’s prospective lender, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(bif requested), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of form reasonably requested by Tenant or such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgageprospective lender, within thirty (30) days of Tenant’s request therefor, unless Landlord reasonably believes that Tenant’s representation and warranty contained in such certificate is false or inaccurate. Tenant shall within three (3) days after service a request by Landlord, provide Landlord with copies of financial statements, certified by the Chief Financial officer of Tenant, as requested by Landlord in order to enable Landlord to make the above determination. Upon Landlord’s delivery of such notice that the Lease has been terminatedwaiver and acknowledgement, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant Tenant shall be entitled to an adjustment incur the indebtedness in an amount equal question and deliver a Leasehold Mortgage to secure the net income derived by Lessor from same at any time within the Leased Property during the 180 day period from the date of termination of this Lease to the date of execution following Landlord’s delivery of such new leasewaiver and acknowledgement.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Leasehold Mortgages. To Notwithstanding anything to the extent any provision contrary contained in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right right, at any time and from time to time, without being required to obtain Landlord’s consent, to mortgage, pledge and/or assign as security or otherwise encumber for security purposes the leasehold interest herein demised on such terms, conditions and maturity as Tenant shall determine, and to enter into any and all extensions, modifications, amendments, replacements(s), and refinancing(s) of any such leasehold mortgage as Tenant may desire. Any such lender, secured party or pledgee and any then holder of any leasehold mortgage, security or pledge may be referred to in this Lease without having as “Leasehold Mortgagee.” Upon Tenant’s request, Landlord shall make such changes or modifications to obtain this Lease, with the consent exception of Lessor. Lessee, those provisions of this Lease concerning the Base Rent and its successors and assigns, shall have the unconditional right to sublet all or a portion length of the Leased Property without having Term, as are reasonably requested by any Leasehold Mortgagee to obtain facilitate the consent mortgaging of Lessorthe leasehold estate. Any pledge Landlord shall execute such instruments as may be required by each Leasehold Mortgagee in order to subordinate the rights and interest of Landlord to the lien of each mortgage; however, in no event shall Landlord be required to subordinate its fee simple title in the land to such Leasehold Mortgagee. At the request of Tenant or assignment of any interests Leasehold Mortgagee, Landlord shall enter into a Landlord’s Consent and Agreement containing language substantially similar to that set forth in Lessee this Section 21, or otherwise as shall be permitted without having mutually satisfactory to obtain the consent of Lessor.
(b) Landlord and such Leasehold Mortgagee. If LesseeTenant, or LesseeTenant’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Sectionsaid leasehold interest then, then so as long as any such leasehold mortgage shall remain unsatisfied of record, the following provisions shall apply, notwithstanding anything to the contrary contained in this Lease, and any pertinent provisions of this Lease shall be deemed to be amended and modified to the extent necessary so as to provide as follows:
(ia) LessorThere shall be no cancellation, upon surrender, acceptance of surrender, or material modification of this Lease or attornment of any subtenant to Landlord without the Leasehold Mortgagee’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) If any Leasehold Mortgagee shall register with Landlord its name and address in writing, Landlord, on serving Lessee with on Tenant any notice of default, default or any other notice under pursuant to the provisions of of, or with respect to to, this Lease, shall also at the same time serve a copy duplicate counterpart of such notice upon the on such Leasehold Mortgagee by Certified Mail, Return Receipt Requested, addressed to said holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so servedregistered with Landlord.
(iic) Any holder of such mortgageSuch Leasehold Mortgagee, in case Lessee the event Tenant shall be in default hereunder, shallshall have the right, within the applicable cure period and otherwise which is of the same duration as herein providedTenant’s commencing, have however, upon the right Leasehold Mortgagee’s actual receipt of a notice of default from Landlord, to remedy or cause to be remedied such default, or cause the same to be remedied, and Lessor Landlord shall accept such performance by or at the instance instigation of such holder Leasehold Mortgagee as if the same had been made performed by Lessee.
(iii) For the purposes of this Article, no event of Tenant. No default shall be deemed to exist by Tenant in respect of the performance of performing work required to be performed, or of acts to be done, or of conditions to be remedied, shall be deemed to exist, if steps shall steps, in good faith, shall have been promptly commenced within the time permitted therefor by Tenant or by said Leasehold Mortgagee or by any other party, person or entity to rectify the same and shall be prosecuted to completion with diligence and continuitycontinuity within applicable cure periods as specified herein.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(vd) In the event of the termination of this Lease prior to is terminated before the natural expiration of the Term (includingthen current Term, without limitationwhether by summary dispossession proceedings, in connection with a rejection service of this Lease in the event of a bankruptcy of Lessee)notice to terminate, Lessor shall or otherwise, due to Tenant’s default, Landlord shall, by Certified Mail, Return Receipt Requested, serve upon the holder on any Leasehold Mortgagee written notice of such mortgage written notice that the Lease has been terminated termination, 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 LessorLandlord. Such holder shall Leasehold Mortgagee shall, upon payment of any amounts due under the Lease, thereupon have the option to obtain a new Lease in accordance with and upon following options, but without releasing Tenant from its obligations under the following terms and conditionsLease:
(Ai) Upon On the written request of the holder of such mortgageLeasehold Mortgagee, within thirty (30) days after service of such the aforementioned notice that the Lease has been terminatedof termination, Lessor Landlord shall enter into a new or direct lease of the Leased Property Premises with such holderthe Leasehold Mortgagee, or his its designee, as follows:provided in the following subparagraph (ii).
(Bii) Such new lease shall be entered into at the reasonable cost of Tenant thereunder, shall be effective as at of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon additional rent and on all the agreements, terms, covenants covenants, and conditions hereof, including any applicable rights of renewalthis Lease. Upon The new Tenant under Lease shall in all instances be subject to the use and assignment restrictions set forth in the Lease. On the execution of such new leasethe Lease, Lessor shall allow to the tenant Tenant named therein shall pay any and all sums which would at the time of the execution thereof be due under this Lease but for the termination as aforesaid and shall otherwise fully remedy or agree in writing to promptly remedy any existing defaults under this Lease. The new Tenant shall pay all reasonable expenses of Landlord, including reasonable counsel fees and court costs incurred in recovering possession of the Leased Premises as well as in the preparation, execution and delivery of such documents required to allow the new tenant to sign the Lease. Nothing contained herein shall release the Tenant named in this Lease from any of its obligations under this Lease which may not have been discharged or fully performed by any Leasehold Mortgagee, or its designees.
(iii) Notwithstanding the provisions of this Lease, if Landlord shall elect to terminate this Lease by reason of Tenant being in default of rent or other covenants of Tenant hereunder or because of:
(A) The filing of a petition by or against Tenant for adjudication as a bankrupt under the Bankruptcy Code, or for reorganization within the meaning of Chapter XI of the Code or any successor provision, or the filing of any petition by or against Tenant under any future Bankruptcy Code provision for the same or similar relief; and the adjudication of Tenant as a bankrupt, or the entry of an order for reorganization under said Chapter XI or any successor provision, or the entry of an order for similar relief under any future Bankruptcy Code;
(B) The involuntary dissolution or the involuntary commencement of any action or proceeding for the dissolution or liquidation of Tenant, or for the appointment of a permanent receiver or a permanent trustee of all or substantially all of the property of Tenant;
(C) The taking possession of Tenant’s property by any governmental office or agency other than Landlord pursuant to statutory authority for the dissolution, rehabilitation, reorganization, or liquidation of Tenant; or
(D) The making by Tenant of an assignment for the benefit of creditors and Tenant being duly removed from possession or proceedings being commenced in a court of competent jurisdiction to remove said Tenant from possession; and provided that the proceedings under (A), (B) and (C) shall not be dismissed or vacated within sixty (60) days after the institution or appointment, such as the case may be, then the holder of any mortgage on the leasehold interest who shall be entitled to an adjustment in an amount equal notice, shall have and be subrogated to any and all rights of Tenant with respect to the net income derived curing of any default (other than the defaults specified in said subdivisions (A), (B), (C) and (D)) and shall also have the right to postpone and extend the specified date for the termination of this Lease, fixed by Lessor from Landlord in a notice given pursuant thereto, for a period of not more than nine (9) months, provided such Leasehold Mortgagee shall promptly cure, or be diligently engaged in curing, any then existing default of Tenant not requiring possession (other than the Leased Property during defaults heretofore enumerated in (A), (B), (C) and (D) of this subparagraph (d)) and shall forthwith take steps to acquire Tenant’s interest in the period from Lease by foreclosure of the mortgage or otherwise. If, before the date of specified for the termination of this Lease as extended by the such Leasehold Mortgagee, the Tenant in default under the provisions of said subdivisions (A), (B), (C) and (D) shall be duly removed from possession, or proceedings have been instituted and are pending for such removal, and if the Leasehold Mortgagee or its designee shall deliver to Landlord its agreement and obligation to perform and observe the covenants and conditions to be performed by Tenant in this Lease contained and executed in the manner required to entitle a deed to recordation, then, and in such event, any such default specified in said subdivisions (A), (B), (C) and (D) on the part of Tenant shall be waived. In the event the Lease is terminated following any default by Tenant thereunder, including without limitation, by reason of any rejection of the Lease pursuant to the date of execution of such new lease.
(vi) Any notice Federal Bankruptcy Code or other communication which Lessor applicable state or federal law relating to bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws, or otherwise, or as a result of an incurable, non-monetary breach of the Lease, Leasehold Mortgagee shall desire have the right to assume the Lease covering the Leased Premises or is required to give to request that Landlord enter into a new lease with such Leasehold Mortgagee or serve upon its nominee or designee (the holder of a mortgage on this “New Lease”). The New Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which contain all of the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as same terms set forth in this Lease or at such other addresses as and shall be designated by Lessor by notice of the same priority as the Lease over all mortgages or other liens, charges, or other encumbrances against the Leased Premises. Tenant shall have no right, title or interest in writing given or to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination New Lease or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein thereby.
(e) The Leasehold Mortgagee shall be named as an insured, as its interest may appear, in all policies of insurance carried by Tenant pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinctLease. Upon written request, notwithstanding duplicate originals of the union policies of such estates insurance shall be held by the Leasehold Mortgagee. If duplicate originals of such policies are not obtainable, certified copies thereof shall be delivered to Landlord. The proceeds of such insurance in Lesseecase of loss shall be paid to, Lessorand deposited with, or the Leasehold Mortgagee, and said Leasehold Mortgagee shall disburse, in any other person the absence of a default of Tenant to such holder said proceeds for the purpose of rebuilding, restoring and repairing the Leased Premises, and all proceeds shall be deemed trust funds to be used by purchaseTenant for this purpose of rebuilding, operation of law or otherwiserestoring and repairing.
(cf) If The Tenant shall give the Leasehold Mortgagee written notice of any leasehold mortgagee condemnation proceedings by any governmental agency other than Landlord affecting the Leased Premises. The said holder shall acquire title have the right to Lesseeintervene and be made a party to any such condemnation proceedings and the parties hereto hereby consent that the said holder may be made such party or intervenor. Tenant’s interest in any award or damages for such taking is hereby set over, transferred and assigned by Tenant to the said Leasehold Mortgagee to the extent of the balance of any principal, interest or other payment due or which shall thereafter accrue or become due to the said holder, but in the event of a partial taking of the improvements on the Leased Premises or a partial taking of the land forming part of the Leased Premises which does not result in the cancellation or termination of this Lease, there shall be paid to Tenant, as trust funds, out of the Tenant’s interest in any award or damages for such taking, an amount equivalent to the cost to restore the improvements then on the Leased Premises to a complete architectural unit, including, without limitation, access cuts and roadways. Whatever repairs shall be made shall be comparable in quality to the part of the improvements so taken.
(g) The Leasehold Mortgagee shall be given notice by foreclosure Tenant of any legal proceeding by the parties hereto, and shall have the right to intervene and be made a mortgage thereon party to such proceedings, and the parties consent to such intervention. In the event the said Leasehold Mortgagee shall not elect to intervene or become a party to such proceedings, the said Leasehold Mortgagee shall receive notice, and a copy, of any award or decision made in said proceedings from the Tenant.
(h) If the Leasehold Mortgagee shall be an institutional lender such as a bank, trust company, savings and loan association, insurance company, union pension or retirement fund, government agency, or other lending institution whose loans on real estate are regulated by law, and the said Leasehold Mortgagee shall desire to contest the validity of any tax, levy, special or general assessments, water and sewer rent, or other governmental impositions or charges agreed to be paid by Tenant, such right is hereby granted to said holder.
(i) No Leasehold Mortgagee shall be personally liable under this Lease unless and until such Leasehold Mortgagee shall become the owner of the leasehold estate or has taken possession of the same, and then only for as long as it remains such owner or possessor subject to the provisions of this Lease. On any assignment in lieu of foreclosure or this Lease by an assignment from a designee or wholly owned subsidiary corporation any owner of such mortgageethe leasehold estate whose interest shall have been acquired by, through, or under a new lease pursuant to this Articleany Leasehold Mortgagee or shall have been derived immediately from any holder thereof, such mortgagee the assignor shall be relieved of any further liability which may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed first accrue hereunder from and after the date of such assignment, provided it being the intention of the parties that once the Leasehold Mortgagee shall succeed to Tenant’s interest hereunder, any and all subsequent assignments, whether by such holder, any purchaser at foreclosure sale or other transferee, or any assignee assumes of either shall effect a release of the obligations of Lessee hereunderassignor’s liability for defaults first occurring thereafter.
(dj) Lessor hereby agrees On the execution and delivery of any new or direct Lease as provided in this Section 21, all subleases which theretofore may have been assigned and transferred to deliver Landlord shall thereupon be transferred and assigned by Landlord to Lessee a ground lessor estoppel certificate the new tenant under the new or direct Lease.
(k) The execution of any such leasehold mortgage shall be deemed an assignment by Tenant to such mortgagee of Tenant’s election to remain in possession of the Leased Premises pursuant to 11 U.S.C. Section 364(h)(1) in the form reasonably required event of a rejection of this Lease by a trustee in bankruptcy of Landlord.
(l) The rights of the Leasehold Mortgagee under this Section are subject to the agreement of such holder to cure all monetary defaults and to pay any leasehold mortgagee rents hereunder during the period it is exercising its rights hereunder in accordance with terms hereof.
(m) Neither the voluntary or other surrender of Lesseethe Lease by Tenant, the mutual cancellation thereof by Landlord and Tenant, the conveyance of Landlord’s interest in the Leased Premises to Tenant nor the conveyance of Tenant’s interest in the Leased Premises to Landlord, shall work a merger, if any Leasehold Mortgage is then outstanding. In the event that Tenant acquires the fee title or any other estate, title or interest in the Leased Premises, any Leasehold Mortgage shall attach to and cover and be in lien upon the fee title or such other estate so acquired.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees at any time and from time to time during the consent Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, unless and until (i) the FCRHA has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease.”
(E) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant.”
(F) “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be entitled unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time to an adjustment in an amount equal time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the net income derived by Lessor from FCRHA written notice of the Leased Property during making of any Mortgage (which notice shall contain the period from name and office address of the date of termination of this Lease to Mortgagee) promptly after the date of execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any If the FCRHA shall have received timely the notice or other communication which Lessor described in Section 10.04(b) above, the FCRHA shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by the holder FCRHA to Tenant hereunder (including any notices of a mortgage on this Lease Event(s) of Default under the Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by the FCRHA to give to or serve upon Lessor Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing deemed to have commenced) unless and until a copy thereof shall have been given to each such holder Mortgagee. Upon receipt of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in the case of a non- monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by registered mail.
(vii) Effective upon the commencement or on behalf of the term a Mortgagee of any new lease executed pursuant covenant, condition or agreement on Tenant’s part to paragraph (v) of this Sectionbe performed hereunder with the same force and effect as though performed by Tenant, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under so long as such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such new leaseMortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the holders Premises or any part thereof is required in order to cure such Event of more than one Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused to be commenced such leasehold mortgage cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall make written requests upon Lessor have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a new lease Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to the FCRHA (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non- monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that the FCRHA may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under this Lease or a New Lease).
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises, (B) re-enter the Premises, or (C) terminate this Lease or the leasehold estate (such rights described in clauses (i), (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall not exercise any of the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing to diligently exercise such rights and undertaking such activities, the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shall, however, be construed to either (i) extend the Term beyond the stated Fixed Expiration Date provided for in this Lease that would have applied if no Event of Default had occurred or (ii) require such Mortgagee to cure any non-monetary Event of Default by Tenant that is not capable of being cured and as a condition to preserving this Lease or, in the case of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05.
(g) The exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute an Event of Default; provided however, that any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee shall be an Event of Default under this Lease unless such assignment meets the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this SectionLease unless and until such time as it becomes, and then only for so long as it remains, the new lease shall be entered into pursuant to the request owner of the holder whose leasehold mortgage estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and cause such Mortgagee to be deemed to be void a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of no force or effectthe Premises.
(viiii) No agreement between Lessor If there is more than one Mortgagee, the rights and Lessee modifying, canceling or surrendering obligations afforded by this Lease Section 10.04 to a Mortgagee shall be effective exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained the consent of any Mortgagees that are senior to such Mortgagee).
(j) In addition to the other rights, notices and cure periods afforded to the holders of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the leasehold mortgagee.
(ix) The fee title FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the Leased Property express terms and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct(e.g., notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.condemnation);
(cii) If The FCRHA shall consider in good faith any leasehold mortgagee shall acquire title modification to Lessee’s interest in this Lease, the Lease requested by foreclosure a Mortgagee or prospective Mortgagee as a condition or term of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant granting financing to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignmentTenant, provided that such assignee assumes the same does not materially increase the FCRHA’s obligations of Lessee or materially diminish the FCRHA’s rights and immunities hereunder.;
(diii) Lessor hereby agrees the holder of the Mortgage most senior in lien priority on this Lease shall have the right to deliver participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to Lessee a ground lessor estoppel certificate participate in the form reasonably required by adjustments of any leasehold mortgagee insurance claims of Lesseethe nature set forth in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. To the extent any provision
7.1.1 Except as provided in this Article 24 conflicts or is inconsistent with any other provision of this LeaseSection 7.1.2 below, the provisions of this Article 24 Concessionaire shall control.
(a) Lessee, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applynot:
(i) Lessorengage in any financing or other transaction creating any mortgage or security interest upon its leasehold interest in any of the Premises or the Premises Improvements; (ii) place or suffer to be placed any lien or other encumbrance upon its leasehold interest in any of the Premises or any Premises Improvements; (iii) suffer any levy or attachment to be made on its leasehold interest in any of the Premises or any Premises Improvements; or (iv) pledge, upon serving Lessee with any notice of defaultmortgage, assign, encumber, or otherwise grant a security interest in its leasehold interest in any of the Premises, any Premises Improvements, or the rents, issues, profits or other notice under income of any of the provisions Premises or any of or the Premises Improvements, including, without limitation, any payments pursuant to, and the right to receive payment under, the Resident Housing Agreements. The Concessionaire shall not be in breach of this Section 7.1.1 with respect to this any encumbrance permitted by the applicable Lease.
7.1.2 During the Term, shall also serve the Concessionaire may encumber by mortgage, deed of trust or security agreement to secure one or more loans (in each case, a copy of such notice upon “Leasehold Mortgage”) its leasehold interest in the Premises, the Premises Improvements and/or the Gross Revenues. The proposed holder of any such mortgageLeasehold Mortgage must be approved in writing by the BOR prior to the execution of the Leasehold Mortgage on the terms and conditions in this Agreement. Any mortgagee that is approved in writing by the BOR shall be referred to in this Agreement and the other Operative Agreements, at as applicable, as an “Approved Mortgagee.” The BOR agrees to execute an estoppel certificate and any other similar documentation as reasonably may be required by an Approved Mortgagee to evidence the address provided BOR’s consent to such Leasehold Mortgage. Notwithstanding any foreclosure, the Concessionaire shall remain liable for in clause (vi) the performance of this Section 24.1(b)all the terms, covenants, and no notice conditions of the Operative Agreements that by Lessor the terms thereof are to Lessee hereunder be carried out and performed by the Concessionaire.
7.1.3 No Leasehold Mortgage shall extend to or affect the fee, the reversionary interest, or the estate of the BOR in the Premises or Premises Improvements. No Leasehold Mortgage shall be deemed to have been duly given unless binding upon any of the Premises or Premises Improvements until it is approved by the BOR and until a copy thereof has been so serveddelivered to the BOR.
7.1.4 The Concessionaire shall immediately notify the BOR promptly of any lien or encumbrance on (iia) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect any of the performance of work required to be performedPremises, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(ivb) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) Premises Improvements or (yc) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeConcessionaire’s interest in this Leasethe Premises or Premises Improvements, except that whether created by act of the Concessionaire or otherwise, of which the Concessionaire has notice.
7.1.5 If an Approved Mortgagee or an Approved Mortgagee Affiliate (as defined below) acquires, by deed-in-lieu, at a foreclosure of its mortgage or deed of trust, or otherwise, the Concessionaire’s leasehold interest in (a) any of the Premises or (b) any Premises Improvements, this Agreement and the other Operative Documents shall continue in full force and effect provided that such events Approved Mortgagee or Approved Mortgagee Affiliate provides written notice to the BOR within two (2) Business Days of default which are reasonably susceptible such acquisition. The acquisition by anyone other than an Approved Mortgagee or an Approved Mortgagee Affiliate of being cured after such completion the Concessionaire’s leasehold interest in (a) any of the Premises or (b) any Premises Improvements shall require the prior written approval of the BOR. No agent or nominee shall be appointed to operate and acquisition shall then be cured with reasonable diligencemanage any portion of the Premises or the Premises Improvements without obtaining the prior written approval of the BOR. Such holderapproval shall be withheld or granted under the terms and conditions described in this Agreement or the Operating Agreement. Notwithstanding anything to the contrary contained in this Section 7.1.5, the BOR may withhold approval of any purchaser (other than the Approved Mortgagee or his designeean Approved Mortgagee Affiliate) of the Concessionaire’s leasehold interest in the Premises or any Premises Improvements if the BOR determines in its sole discretion that such purchaser’s acquisition would in any way impair the operations of any Institution. As used in this Article VII, “Approved Mortgagee Affiliate” means a corporation, limited liability company, or other purchaser in foreclosure proceedings may become the legal owner entity that Controls, is owned and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holderControlled by, or his designeeis under common ownership and Control with, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseApproved Mortgagee.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Master Concession Agreement
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right right, from time to time, to conveyor encumber by mortgage, pledge and/or assign this Lease deed to secure debt, or similar financing instrument, Tenant's leasehold estate and interest in and to the Property and the Improvements thereto, or any part thereof (each such leasehold mortgage, deed to secure debt or other financing instrument being herein referred to as a "Leasebold Mortgage" and the holder thereof as a "Leasebold Mortgagee") without having to obtain the consent of LessorLandlord. LesseeThe execution and delivery of a Leasehold Mortgage shall not, in and its successors and assignsof itself, be deemed to constitute an assignment or transfer of this Sublease nor shall have the unconditional right Leasehold Mortgagee, as such, be deemed an assignee or transferee of this Sublease so as to sublet all or a portion require such Leasehold Mortgagee to assume the performance of any of the Leased Property without having covenants or agreements on the part of Tenant to obtain be performed hereunder. If Tenant shall enter into any such financing arrangement, it shall deliver to Landlord true and complete copies of the consent instruments effecting -10- 2044792 vOS such transaction. Tenant shall also give Landlord notice of Lessor. Any pledge or assignment the name and address of any interests in Lessee shall be permitted without having to obtain the consent of Lessorparty providing such financing.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as With respect to any such mortgage shall remain unsatisfied of recordLeasehold Mortgage, the following provisions shall applyapply notwithstanding anything in this Sublease to the contrary:
(i1) Lessor, upon serving Lessee with No current or voluntary tennination by Tenant of this Sublease shall be effective unless consented to in writing by such Leasehold Mortgagee; and any notice material amendment or material modification of default, this Sublease or the exercise by Tenant of any other notice under option to terminate this Sublease without the provisions of or with respect to this Lease, shall also serve a copy written consent of such notice upon the holder Leasehold Mortgagee shall be voidable as against such Leasehold Mortgagee at its option.
(2) Landlord shall give any and all notices (as hereinafter defined) given to Tenant hereunder simultaneously to any such Leasehold Mortgagee of such mortgage, which Landlord is aware at the address of such Leasehold Mortgagee provided for in clause (vi) of this Section 24.1(b)to Landlord, and no such notice by Lessor to Lessee hereunder shall be deemed effective as to have been duly given such Leasehold Mortgagee unless and until a copy thereof has been so served.
(ii) Any holder given to such Leasehold Mortgagee that has provided its current address to Landlord. In the event Landlord sends Tenant a notice of default. from and after the time that such. notice has been delivered to such mortgageLeasehold Mortgagee, in case Lessee such Leasehold Mortgagee shall be in default hereunder, shall, within have a period equal to the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained granted to the contraryTenant plus, upon the occurrence of any event of defaultwith respect to monetary defaults, Lessor shall take no action an additional ten (10) business days in which to effect a termination cure. and with respect to non~monetary defaults only, an additional thirty (30) days in which to effect a cure of any default by Tenant under this Lease without first giving Sublease. Landlord shall accept performance of any and all of Tenant's obligations hereunder. including Tenant's obligation to pay Rent, from any such Leasehold Mortgagee, and the holder perfonnance of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 obligation by such holder. Any default by Lessee, not reasonably susceptible of being cured by such holder Leasehold Mortgagee shall be deemed to have been waived a cure effected by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligenceTenant. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior Landlord hereby consents to the expiration entry onto the Property by any such Leasehold Mortgagee for the purpose of effecting the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage written notice that the Lease has been terminated together with a statement cure 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived default by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new leaseTenant.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Sublease Agreement
Leasehold Mortgages. To Tenant is hereby given the extent any provision right by Landlord, in this Article 24 conflicts or is inconsistent with addition to any other provision of rights herein granted, with or without Landlord's prior written consent, to mortgage its interests in this Lease, including, without limitation, any easements granted by Landlord for the provisions benefit of this Article 24 shall control.
the Premises, under one or more leasehold deed(s) of trust or mortgage(s) (a) Lesseeindividually, a "Mortgage" and collectively, the "Mortgages"), and its successors to give to the holder of any such Mortgage (a "Mortgagee") a lien, assignment and/or security interest in (i) any personal property included within this Lease, (ii) the rents, income, receipts, revenues and assignsprofits of the Premises, shall have the unconditional right to mortgage(iii) any assignment, pledge and/or assign subleases or other transfer of all or any part of Tenant's rights under this Lease without having (iv) any rights of extension, renewal or expansion contained in this Lease, as collateral security for such Mortgage(s), upon the condition that all rights acquired under such Mortgage(s) shall be subject to obtain the consent of Lessor. Lessee, each and its successors and assigns, shall have the unconditional right to sublet all or a portion of the Leased Property without having covenants, conditions and restrictions set forth in this Lease and to obtain the consent all rights and interests of Lessor. Any pledge Landlord herein, none of which covenants, conditions, restrictions, rights and interests is or assignment of any interests in Lessee shall be permitted without having waived by Landlord by reason of the right so given to obtain the consent of Lessor.
(b) Tenant to mortgage such interest in this Lease, except as expressly provided herein. If Lessee, or Lessee’s successors or assigns, Tenant shall mortgage this Lease in compliance and if the Mortgagee under such Mortgage shall send to Landlord a true copy of any such Mortgage, together with a written notice specifying the provisions name and addresses of this Sectionthe Mortgagee and the pertinent recording date with respect to such Mortgage(s), then Landlord agrees that so long as any obligations secured by such mortgage leasehold Mortgage(s) shall remain unsatisfied of recordunsatisfied, the following provisions shall apply:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed from and after the date of such assignment, provided that such assignee assumes the obligations of Lessee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the form reasonably required by any leasehold mortgagee of Lessee.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Potomac Electric Power Co)
Leasehold Mortgages. To the extent any provision in this Article 24 conflicts or is inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Lessee, and its successors and assigns, Tenant shall have the unconditional right to mortgage, mortgage or pledge and/or assign its interest in this Lease without having to obtain one or more Mortgagees which at any time and from time to time during the consent Term, provided that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used by Tenant only in connection with the costs of Lessor. Lesseepre-development, development, construction, carry, and its successors operations of the Project and assigns(y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall have by virtue thereof, acquire any greater rights hereunder than Tenant has, except the unconditional right to sublet all cure or remedy Tenant’s defaults or become entitled to a portion of the Leased Property without having New Lease as more fully set forth in this Section 10.04 and such other rights as are expressly granted to obtain the consent of LessorMortgagees hereunder. Any pledge or assignment of any interests in Lessee No Mortgage shall be permitted without having to obtain the consent of Lessor.
(b) If Lesseeeffective, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as any such mortgage shall remain unsatisfied of record, the following provisions shall applyunless:
(i) Lessor, upon serving Lessee with any notice of default, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice upon the holder of such mortgage, at the address provided for in clause (vi) time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreements, terms, covenants and conditions of this Section 24.1(b), and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder Lease on the part of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required Tenant to be performed; provided however, or that if such Event of acts to be doneDefault exists, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of but this Lease without first giving to has not been terminated and such Event of Default will be cured simultaneously with the holder granting of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of Mortgage or with the mortgaged property (including possession by a receiver) or (y) to instituteproceeds from such Mortgage, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) Tenant may nevertheless enter into such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of LesseeMortgage for Tenant’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.;
(vii) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease Mortgage shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon subject to all the agreements, terms, covenants and conditions hereofof this Lease;
(iii) such Mortgage shall contain in substance the following provisions: “This instrument is executed upon condition that (unless this condition be released or waived by Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunder, including or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shall, as a result of such sale or transfer, acquire any applicable right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said Landlord, unless and until (i) Landlord has been given written notice of such sale or transfer of said Lease and the effective date thereof, and (ii) such purchaser or transferee has delivered to Landlord a duplicate original or certified copy of the instrument of sale or transfer to Landlord. “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosure, assume and agree to perform all of the terms, covenants and conditions of the Lease to be observed or performed on the part of Tenant and, that no further or additional mortgage or assignment of the Lease hereby mortgaged may be made except in accordance with the provisions contained in Article 10 of the Lease. “This mortgage is not a security interest in or lien on the fee interest in the premises covered by the Lease hereby mortgaged. “The mortgagee hereunder waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises in accordance with the provisions of the Lease. “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) who are not Affiliates of Tenant. “This mortgage and all rights of renewal. Upon the mortgagee hereunder are, without the necessity for the execution of such new leaseany further documents, Lessor shall allow subject to the tenant named therein terms of said Lease and such tenant shall the rights of the landlord thereunder, as said Lease may have been previously modified, amended or renewed with the consent of the mortgagor or its predecessors in interest, or may hereafter be entitled to an adjustment in an amount equal to modified, amended or renewed with the net income derived by Lessor from consent of the Leased Property during mortgagee. Nevertheless, the period from the date of termination holder of this Lease mortgage agrees from time to time upon request and without charge to execute, acknowledge, and deliver any instruments reasonably requested by Landlord to evidence the date foregoing.”
(b) Tenant or the Mortgagee shall give to Landlord written notice of the making of any Mortgage (which notice shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such new leaseMortgage and a duplicate original or certified copy thereof.
(vic) Any notice or other communication which Lessor Landlord shall desire or is required to give to or serve upon each Mortgagee, at the holder address of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as Mortgagee set forth in the notice from such mortgage. Any Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice or other communication which given by Landlord to Tenant hereunder (including any notices of Event(s) of Default under the holder of a mortgage on this Lease Lease) at the same time as and whenever any such notice shall desire or is required thereafter be given by Landlord to give to or serve upon Lessor Tenant, and no such notice by Landlord shall be deemed to have been duly given to Tenant (and no grace or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as cure period shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void have commenced) unless and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease until a copy thereof shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title have been given to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union each such Mortgagee. Upon receipt of such estates notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event of Default or cause the same to be remedied, within the following additional time periods (in Lesseeeach instance after the applicable period afforded Tenant for remedying the Event of Default or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more in the case of a monetary Event of Default, Lessorand (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of Default, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure the case of a mortgage thereon non-monetary Event of Default which shall require more than the additional fifteen (15) Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. Landlord shall accept performance by assignment in lieu or on behalf of foreclosure a Mortgagee of any covenant, condition or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained agreement on tenantTenant’s part to be performed hereunder with the same force and observed from effect as though performed by Tenant, so long as such performance is made in accordance with the terms and after provisions of this Lease. Landlord shall not object to any temporary entry onto the date Premises by or on behalf of Mortgagee to the extent necessary to effect such assignmentMortgagee’s cure rights, provided that such assignee assumes entry is in compliance with all Applicable Laws. If possession of the obligations Premises or any part thereof is required in order to cure such Event of Lessee Default, Mortgagee shall notify Landlord within the applicable period afforded to Mortgagee hereunder.
(d) Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or in the form reasonably process of curing (or caused to be commenced such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event of Default, Mortgagee may send Landlord notice of its intention to institute foreclosure proceedings, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays), Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Landlord, in writing, its agreement to cure (or caused to be cured), and (ii) during the period in which Mortgagee is curing (or causing such cure of) such Event of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed (including, without limitation, payment of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment of any Impositions or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned agreement, the Mortgagee may notify Landlord, in writing, that it has relinquished possession of the Premises or that it will not institute foreclosure proceedings or, if such proceedings have been commenced, that it has discontinued them, and, in such event, the Mortgagee shall have no further liability under such agreement from and after the date it delivers such notice to Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action Landlord deems appropriate by reason of any uncured Event of Default by Tenant.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any such non-monetary Event of Default by Tenant that is not capable of being cured shall no longer be deemed an Event of Default.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within the applicable cure periods set forth above and so long as, if possession of the Premises is required to cure the same, Mortgagee shall be taking the actions required by any leasehold mortgagee clause (d) of Lessee.this Section 10.04, Landlord shall not (i) re-enter the Premises, (ii) serve a termination notice, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants of the Premises,
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. To Notwithstanding the extent any provision in this Article 24 conflicts or is inconsistent with any other provision terms of this LeaseSection 5.12, the provisions of this Article 24 shall control.
(a) LesseeTenant, and its successors and assigns, shall have the unconditional right to mortgage, pledge and/or or conditionally assign this Lease without having to obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right Leasehold Mortgagees subject to sublet all or a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any interests in Lessee shall be permitted without having to obtain the consent of Lessor.
(b) If Lessee, or Lessee’s successors or assigns, shall mortgage this Lease in compliance with the provisions of this Section, then so long as Section 8. Tenant shall provide the Landlord with written notice of any such Leasehold Mortgage or any refinancing of the Leased Premises at least thirty (30) days prior to the closing of any such transaction. The making of a mortgage under the prior paragraph shall remain unsatisfied not be deemed to constitute an assignment, nor shall any mortgagee under such a mortgage not in actual possession of recordthe Leased Premises be deemed an assignee of the leasehold estate created hereby, so as to require such mortgagee to assume the following provisions shall apply:
(i) Lessorobligations of Tenant hereunder, but a mortgagee in actual possession and the purchaser at any sale of the leasehold estate created hereby upon serving Lessee foreclosure of a mortgage given in accordance with any notice of defaultthe prior paragraph, or any other notice the assignee of Tenant’s interest under the provisions this Lease pursuant to an assignment in lieu of or with respect to this Leasesuch foreclosure, shall also serve a copy be deemed to be an assignee of Tenant (but no consent by the Landlord to such notice upon assignment or transfer shall be required) and subject to the holder of such mortgage, at the address provided for in clause (vi) terms and conditions of this Section 24.1(b)8, and no notice by Lessor to Lessee hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served.
(ii) Any holder assumed the obligations of such mortgage, in case Lessee shall be in default hereunder, shall, within the period and otherwise as herein provided, have the right to remedy such default, or cause the same to be remedied, and Lessor shall accept such performance by or at the instance of such holder as if the same had been made by Lessee.
(iii) For the purposes of this Article, no event of default shall be deemed to exist in respect of the performance of work required to be performed, or of acts to be done, or of conditions to be remedied, if steps shall in good faith, have been commenced within the time permitted therefor to rectify the same and shall be prosecuted to completion with diligence and continuity.
(iv) Notwithstanding anything herein contained to the contrary, upon the occurrence of any event of default, Lessor shall take no action to effect a termination of this Lease without first giving to the holder of such mortgage written notice thereof and a reasonable time thereafter within which either (x) to obtain possession of the mortgaged property (including possession by a receiver) or (y) to institute, prosecute and complete foreclosure proceedings or otherwise acquire Lessee’s interest under this Lease. Provided, however, that: (x) such holder shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured and (y) such holder shall agree with Lessor 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 holder. Any default by Lessee, not reasonably susceptible of being cured by such holder shall be deemed to have been waived by Lessor upon completion of such foreclosure proceedings or upon such acquisition of Lessee’s interest in this Lease, except that any of such events of default which are reasonably susceptible of being cured after such completion and acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser in foreclosure proceedings may become the legal owner and holder of this Lease through such foreclosure proceedings or by assignment of this Lease in lieu of foreclosure.
(v) In the event of the termination of this Lease prior to the expiration of the Term (including, without limitation, in connection with a rejection of this Lease in the event of a bankruptcy of Lessee), Lessor shall serve upon the holder of such mortgage 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 Lessor. Such holder shall thereupon have the option to obtain a new Lease in accordance with and upon the following terms and conditions:
(A) Upon the written request of the holder of such mortgage, within thirty (30) days after service of such notice that the Lease has been terminated, Lessor shall enter into a new lease of the Leased Property with such holder, or his designee, as follows:
(B) Such new lease shall be effective as at the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including any applicable rights of renewal. Upon the execution of such new lease, Lessor shall allow to the tenant named therein and such tenant shall be entitled to an adjustment in an amount equal to the net income derived by Lessor from the Leased Property during the period from the date of termination of this Lease to the date of execution of such new lease.
(vi) Any notice or other communication which Lessor shall desire or is required to give to or serve upon the holder of a mortgage on this Lease shall be in writing and shall be served by registered mail, addressed to such holder at his address as set forth in such mortgage. Any notice or other communication which the holder of a mortgage on this Lease shall desire or is required to give to or serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Lessor at Lessor’s address as set forth in this Lease or at such other addresses as shall be designated by Lessor by notice in writing given to such holder by registered mail.
(vii) Effective upon the commencement of the term of any new lease executed pursuant to paragraph (v) of this Section, all subleases shall be assigned and transferred without recourse by Lessor to the tenant under such new lease, and all moneys on deposit with Lessor which Lessee would have been entitled to use but for the termination or expiration of this Lease may be used by the tenant under such new lease for the purposes of and in accordance with the provisions of such new lease. If the holders of more than one such leasehold mortgage shall make written requests upon Lessor for a new lease in accordance with the provisions of this Section, the new lease shall be entered into pursuant to the request of the holder whose leasehold mortgage shall be prior in lien thereto and thereupon the written requests for a new lease of each holder of a leasehold mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(viii) No agreement between Lessor and Lessee modifying, canceling or surrendering this Lease shall be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to the Leased Property and the leasehold estate created therein pursuant to the provisions of this Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates in Lessee, Lessor, or in any other person by purchase, operation of law or otherwise.
(c) If any leasehold mortgagee shall acquire title to Lessee’s interest in this Lease, by foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by an assignment from a designee or wholly owned subsidiary corporation of such mortgagee, or under a new lease pursuant to this Article, such mortgagee may assign such lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in such lease contained on tenant’s part to be performed and observed Tenant hereunder arising from and after the date of taking actual possession or of such purchase or assignment, . If a mortgagee (or nominee) who has so assumed the obligations of Tenant hereunder thereafter assigns its interests in this Lease (or in any new lease as provided that such in Section 8.3.5) to an assignee who assumes the obligations of Lessee hereunder.
Tenant hereunder (d) Lessor hereby agrees or under the new lease, as the case may be), such mortgagee (or nominee), shall be relieved of the obligations of Tenant arising after such assignment and assumption. A conditional assignment of Xxxxxx’s interest in this Lease to deliver to Lessee a ground lessor estoppel certificate mortgagee as security for a mortgage granted in accordance with the form reasonably required prior paragraph shall not constitute an assumption of liability by any leasehold the mortgagee of LesseeTenant’s obligations hereunder until the date of such mortgagee’s taking of actual possession pursuant to the exercise of its rights under such conditional assignment.
Appears in 1 contract
Samples: Ground Lease
