Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless: (i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.” (b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof. (c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises. (i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation); (ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder; (iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 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) Tenant Lessee, and its successors and assigns, shall have the unconditional right to mortgage or mortgage, pledge its interest in and/or assign this Lease without having to one obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or more Mortgagees at a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any time and from time interests in Lessee shall be permitted without having to time during obtain the Termconsent of Lessor.
(b) If Lessee, provided howeveror Lessee’s successors or assigns, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in shall mortgage this Lease shall be used only in connection compliance with the costs provisions of pre- developmentthis Section, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under then so long as any such Mortgagemortgage shall remain unsatisfied of record, the following provisions shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessapply:
(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 time address provided for in clause (vi) of making 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 there is 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 existing and unremedied Event event of Default on the part of Tenant under any default shall be deemed to exist in respect of the agreementsperformance of work required to be performed, termsor of acts to be done, covenants 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 conditions 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 on without first giving to the part holder of Tenant such mortgage written notice thereof and a reasonable time thereafter within which either (x) to be performed; provided 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 if that: (x) such Event 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 Default existssuch forbearance with such of the terms, but conditions and covenants of this Lease has 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 terminated and such Event of Default will be cured simultaneously with the granting waived by Lessor upon completion of such Mortgage foreclosure proceedings or with the proceeds from upon such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenantacquisition 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.
(iiv) 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 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 subject to 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;Lease to the date of execution of such new lease.
(iiivi) such Mortgage Any notice or other communication which Lessor shall contain 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 deemed served by registered mail, addressed to contain such holder at his address as set forth 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, such mortgage. Any notice 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 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 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, communication which consent shall not be unreasonably withheld or delayed. Nevertheless, the holder of a mortgage on this mortgage agrees from time Lease shall desire or is required to 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 FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Tenant 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 no grace 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 cure period 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 have commencedbe void and of no force or effect.
(viii) unless No agreement between Lessor and until a copy thereof Lessee modifying, canceling or surrendering this Lease shall have been given be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to each such Mortgagee. Upon receipt 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 noticeestates in Lessee, 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 DefaultLessor, or in the case 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 non-monetary Event mortgage thereon or by assignment in lieu of Default which 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 require more than thereupon be released from all liability for the additional fifteen (15) Business Days to cure using due diligence, then performance or observance of the covenants and conditions in 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 or lease contained on behalf of a Mortgagee of any covenant, condition or agreement on Tenanttenant’s part to be performed hereunder with and observed from and after the same force and effect as though performed by Tenant, so long as date of such 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 Mortgagee’s cure rightsassignment, provided that such entry is in compliance with all Applicable Laws. If possession assignee assumes the obligations of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee Lessee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the 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), 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 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 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 form reasonably required by clause (d) any leasehold mortgagee 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 10.05Lessee.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: 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 conflict or are inconsistent with any other provision of this Lease, the provisions of this Article 24 shall control.
(a) Tenant Lessee, and its successors and assigns, shall have the unconditional right to mortgage or mortgage, pledge its interest in and/or assign this Lease without having to one obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or more Mortgagees at a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any time and from time interests in Lessee shall be permitted without having to time during obtain the Termconsent of Lessor.
(b) If Lessee, provided howeveror Lessee’s successors or assigns, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in shall mortgage this Lease shall be used only in connection compliance with the costs provisions of pre- developmentthis Section, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under then so long as any such Mortgagemortgage shall remain unsatisfied of record, the following provisions shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessapply:
(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 time address provided for in clause (vi) of making 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 there is 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 existing and unremedied Event event of Default on the part of Tenant under any default shall be deemed to exist in respect of the agreementsperformance of work required to be performed, termsor of acts to be done, covenants 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 conditions 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 on without first giving to the part holder of Tenant such mortgage written notice thereof and a reasonable time thereafter within which either (x) to be performed; provided 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 if that: (x) such Event 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 Default existssuch forbearance with such of the terms, but conditions and covenants of this Lease has 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 terminated and such Event of Default will be cured simultaneously with the granting waived by Lessor upon completion of such Mortgage foreclosure proceedings or with the proceeds from upon such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenantacquisition 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.
(iiv) 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 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 subject to 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;Lease to the date of execution of such new lease.
(iiivi) such Mortgage Any notice or other communication which Lessor shall contain 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 deemed served by registered mail, addressed to contain such holder at his address as set forth 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, such mortgage. Any notice 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 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 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, communication which consent shall not be unreasonably withheld or delayed. Nevertheless, the holder of a mortgage on this mortgage agrees from time Lease shall desire or is required to 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 FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Tenant 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 no grace 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 cure period 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 have commencedbe void and of no force or effect.
(viii) unless No agreement between Lessor and until a copy thereof Lessee modifying, canceling or surrendering this Lease shall have been given be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to each such Mortgagee. Upon receipt 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 noticeestates in Lessee, 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 DefaultLessor, or in the case 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 non-monetary Event mortgage thereon or by assignment in lieu of Default which 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 require more than thereupon be released from all liability for the additional fifteen (15) Business Days to cure using due diligence, then performance or observance of the covenants and conditions in 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 or lease contained on behalf of a Mortgagee of any covenant, condition or agreement on Tenanttenant’s part to be performed hereunder with and observed from and after the same force and effect as though performed by Tenant, so long as date of such 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 Mortgagee’s cure rightsassignment, provided that such entry is in compliance with all Applicable Laws. If possession assignee assumes the obligations of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee Lessee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the 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), 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 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 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 form reasonably required by clause (d) any leasehold mortgagee 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 10.05Lessee.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 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. (a) Tenant Subject to the requirements of this Article XX, Lessee may assign or encumber Lessee’s interest in the Leasehold as security for any 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 mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 request 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 Lessee shall use its commercially reasonable efforts 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 demolitionobtain, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 disturbance agreement from any Leasehold Mortgagee, in favor of Default, or in the case Lessor and any holder of a non-monetary Event of Default which shall require more than Fee Mortgage, confirming that 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless Section 20.2, will be honored by and until such time as it becomesbinding upon any Leasehold Mortgagee, and then only for so long further containing such other terms and conditions as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 MortgageFee Mortgage shall reasonably request, the FCRHA will neither agree including attornment of Lessee to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Fee Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(iv) event the holder of the Fee 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, 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 succeeds to the holder interest 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 MortgageesLessor hereunder.
Appears in 3 contracts
Samples: Lease Agreement (CorEnergy Infrastructure Trust, Inc.), Membership Interests Purchase Agreement (CorEnergy Infrastructure Trust, Inc.), Membership Interests Purchase Agreement (Arc Logistics Partners LP)
Leasehold Mortgages. (a) Tenant shall 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 TenantXxxxxx’s interest in this Lease shall be used by Tenant only in connection with the costs of pre- 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease Xxxxx at any foreclosure sale hereunder, 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 right, title or interest in or to said Lease or the leasehold estate hereby mortgaged or pledged as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Lease Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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)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, the FCRHA 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 2 contracts
Samples: Ground Lease, Ground Lease
Leasehold Mortgages. (a) Tenant shall 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 shall will be used only in connection with the costs of pre- 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, shall will by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 10.06 and such other rights as are expressly granted to Mortgagees hereunderin this Lease. No Mortgage shall will be effective, unless:
(i) at 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 shall will be subject to all the agreements, terms, covenants covenants, and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to will contain in substance the following provisions:
(A) : “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease Xxxxx at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shallwill, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) Landlord. “The purchaser or transferee of said Lease shallXxxxx 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.”
(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 will not name, in such foreclosure action or otherwise, and in any event shall will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) Lease who are not Affiliates of Tenant.”
(F) . “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 Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee shall will give to the FCRHA Landlord written notice of the making of any Mortgage (which notice shall will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall will thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period shall will be deemed to have commenced) unless and until a copy thereof shall will have been given to each such Mortgagee. Upon receipt of such notice, each the Mortgagee shall specified in Section 10.04(j) below will 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) 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 will require more than the additional fifteen (15) 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall will have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall Landlord will accept performance by or on behalf of a such Mortgagee of any covenant, condition condition, or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall 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, 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 shall will notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall will have first delivered to the FCRHALandlord, 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 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 FCRHALandlord, 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 will have no further liability under such agreement from and after the date it delivers such notice to the FCRHA Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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 shall 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 shall 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 the FCRHA Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, 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 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 shall will be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 2 contracts
Samples: Deed of Lease, Deed of Lease
Leasehold Mortgages. (a) Tenant shall have Upon the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall be used only in connection with the costs of pre- development, development, construction, carry, and operations request of the Project and (y) no holder of any MortgageCollateral Agent, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) acting at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any direction of the agreementsApplicable Authorized Representative, termseach Grantor shall execute and deliver a mortgage, covenants deed of trust, assignment of leases 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 shall be subject to all the agreements, terms, covenants and conditions of 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 hereunderrents, or other transfer authorized security document (a “Leasehold Mortgage”) granting a Lien on each parcel of real property and the improvements thereto leased by law by reason any Grantor (a “Leasehold Mortgaged Property”) under the laws of the applicable jurisdiction to cause such Leasehold Mortgaged Property to be subjected to a default hereunder where no foreclosure sale is requiredLien having at least the priority described in Section 4.3 securing the Obligations and will take all such actions as shall be and customary in a transaction of this nature to grant and perfect such Lien, shallincluding to execute any and all further documents, as a result of financing statements, agreements and instruments, and take all such sale or transfer, acquire any 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
further actions (including (i) the FCRHA has been given written notice filing and recording of such sale or transfer of said Lease financing statements, fixture filings, the Leasehold Mortgage and the effective date thereofother documents, and (ii) such purchaser or transferee has delivered to conducting lien searches and providing title insurance insuring the FCRHA a duplicate original or certified copy first priority Lien 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 Mortgage subject only to Permitted Liens and including such endorsements as are customarily issued in connection with transactions of this nature, (iii) providing legal opinions and (iv) obtaining landlords' consents). Notwithstanding 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 foreclosureforegoing, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Grantors shall not be required to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgagee, execute and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to deliver 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, Leasehold Mortgage with respect to any monetary Event of Default, the FCRHA Leasehold Mortgaged Property if such Grantor 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider determined in good faith any modification 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 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesCollateral Agent.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Rotech Healthcare Inc), Term Loan Credit Agreement (Rotech Healthcare Inc)
Leasehold Mortgages. (a) Tenant shall have Notwithstanding anything contained in Article XXVI or any other provision of this Lease to the right to mortgage or pledge its contrary, Xxxxxx's interest in this Lease to one or more Mortgagees and the leasehold interest created hereby may at any time and from time to time during be, directly or indirectly, subjected to one or more Leasehold Mortgages upon prior notice to Landlord, but without the Termconsent of Landlord, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s and Xxxxxx's interest in this Lease shall may at any time, directly or indirectly, 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled assigned to a New Lease Leasehold Mortgagee as more fully set forth collateral security, provided, however, that notwithstanding anything to the contrary contained in this Section 10.04 and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
or elsewhere in this Lease: (i) at 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 Leasehold Mortgage or with any extension thereof shall be a lien or encumbrance upon the proceeds from such Mortgageestate or interest of Landlord in and to the Premises (collectively, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
the "Superior Interests"), (ii) such Leasehold Mortgage shall be subject and subordinate at all times to all the agreementssuch Superior Interests, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain and there shall be deemed no obligation of Landlord whatsoever 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 subordinate 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, shall, as a result of such sale or transfer, acquire any right, title or interest in any of the Superior Interests to any Leasehold Mortgage or to said Lease or "join in" any Leasehold Mortgage. No Leasehold Mortgagee shall be entitled to the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHAbenefits of this Section, 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 until a duplicate original or certified true copy of the original of each instrument of sale or transfer to creating and effecting such Leasehold Mortgage and written notice containing the FCRHA.”
(B) “The purchaser or transferee of said Lease shall, effective from name and after the effective date post office address 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 Leasehold Mortgagee thereunder 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 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 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 unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time delivered to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoingLandlord.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall give to each MortgageeLeasehold Mortgagee whose name and address shall have been provided to Landlord, at the address notice of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, any Event of Default and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) termination of Default under the Lease) this Lease at the same time as as, and whenever whenever, any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice of an Event of Default or notice of termination by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been so given to each such Leasehold Mortgagee. Upon receipt of such notice, each Each Leasehold Mortgagee shall thereupon 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 an Event of DefaultDefault in the payment of Rent, and thirty (ii30) a period of fifteen (15) Business Days days more in the case of a non-monetary 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 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 causing the same to completion with reasonable diligence be cured by Xxxxxx, and continuityLandlord 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. The FCRHA Landlord shall accept performance by or on behalf of a Leasehold Mortgagee of any covenant, condition condition, or agreement on Tenant’s 's part to be performed hereunder under this Lease with the same force and effect as though performed by TenantXxxxxx. Notwithstanding the forgoing to the contrary, so long as such no 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 a Leasehold Mortgagee shall cause it to the extent necessary become a "mortgagee in possession" or otherwise cause it to effect such Mortgagee’s cure rights, provided such entry is be deemed to be in compliance with all Applicable Laws. If possession of the Premises or any part thereof 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) if possession of the Premises is required in order to cure such the Event of DefaultDefault in question, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which a Leasehold Mortgagee, in good faith and acting with reasonable diligence and continuityfaith, is attempting or in the process of curing (or caused to be commenced such cureA) 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 shall have entered into possession thereof. At any time prior to the expiration of the additional cure period afforded Mortgagee under Section 10.04(cPremises with the permission of Tenant for such purpose, or (B) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice shall have notified Landlord of its intention to institute foreclosure proceedingsproceedings to obtain possession directly or through a receiver, and thereafter, provided Mortgagee within thirty (30) days of the giving of such notice commences such foreclosure proceedings, and thereafter prosecutes such proceedings with all reasonable diligence and continuity (subject to Unavoidable Delays) or receives an assignment of this Lease in lieu of foreclosure from Tenant, and, upon obtaining such possessionpossession 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 all reasonable diligence and continuity continuity.
(subject to Unavoidable Delays)d) From and after the date upon which Xxxxxxxx receives notice of any mortgage by Tenant of its interest in this Lease, the FCRHA will Landlord and Tenant shall not exercise modify or amend this Lease in any remedies to respect or cancel or terminate this Lease other than as provided herein without the prior written consent of the Leasehold Mortgagee(s) specified in such notice.
(e) In case of termination of this Lease or dispossess Tenant a reentry into the Premises under the provisions of possession thereof; provided 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: that the Leasehold Mortgagee or its nominee or designee shall (i) Mortgagee shall have first delivered pay to Landlord, simultaneously with the FCRHAdelivery 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 writingconnection with the Event of Default by Tenant, its agreement to cure (or caused to be cured)the termination of this Lease and the preparation of the new lease, 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 deliver to Landlord 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 the FCRHAstatement, in writing, acknowledging that it has relinquished possession Landlord, by entering into a new lease with the Leasehold Mortgagee or its nominee or designee, shall not have or be deemed to have waived any rights or remedies with respect to Event(s) of the Premises or Default existing under this Lease, notwithstanding that it will not institute foreclosure proceedings or, if any 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 Event(s) of Default existed prior to the date it delivers such notice), and, thereupon, the FCRHA shall have the unrestricted right to terminate this Lease, dispossess Tenant execution of the Premises new lease, and that the breached obligations which gave rise to take any other action the FCRHA deems appropriate by reason of any uncured Event Event(s) 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 and which are not capable so susceptible of being cured by Leasehold Mortgagee or its nominee or designee are also obligations under said new lease, but such Mortgageestatement shall be subject to the proviso that the applicable grace periods, and if any Mortgageeany, assignee or transferee provided under the new lease for curing such obligations shall acquire the Premises pursuant begin 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 run as 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 first day of the Premises under this Lease or a New Lease)term of said new lease.
(f) With respect In the event of any lawsuit, arbitration, appraisal, or other dispute resolution proceeding, or any proceeding relating to the determination of Rent or any non-monetary Event component thereof between Landlord and Tenant, then (i) Landlord shall notify each Leasehold Mortgagee of Defaultwhom Landlord shall have been given notice of the commencement thereof, so long as a 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 diligently exercising its cure rights under this Section 10.04 with respect thereto within entitled to participate in such proceeding. Such participation may, to the applicable cure periods set forth above extent so desired by the Leasehold Mortgagee, include (x) receiving copies of all notices, demands, and so long as, if possession of other written communications and documents at the Premises is required same time they are served upon or delivered 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 PremisesTenant, (iiy) serve a termination noticefiling any papers contemplated or permitted by such proceedings, 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 (iiiz) being herein the “FCRHA’s Termination Rights”). In additionattending and participating in all hearings, with respect meetings, and other sessions or proceedings relating 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 10.05dispute resolution.
(g) The exercise of Except as provided in Subsection (e) above, no Leasehold Mortgagee, or any rights person acting for or remedies on behalf of a Mortgagee under a MortgageLeasehold Mortgagee, including the consummation of or any person acquiring Tenant's leasehold estate pursuant to any foreclosure or transfer 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 constitute an Event of Default; provided however, that 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 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 10.03new lease.
(h) Except as provided 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 clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this Lease unless full force and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premiseseffect notwithstanding any Leasehold Mortgage.
(i) If there is more than one 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 rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien (subsequent assignment, transfer or which has obtained the consent hypothecation of any Mortgagees that are senior Leasehold Mortgage, or the creation of participation or syndication interests with respect to such Mortgagee)any Leasehold Mortgage.
(j) In addition to the other rights, notices and cure periods afforded to the holders of If any Mortgage, the FCRHA further agrees that:
(iactual or prospective Leasehold Mortgagee requires any modification(s) without the prior written consent of each holder of a Mortgage, the FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept 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 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 more than a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);de minimis extent.
(iik) The FCRHA Upon request by Tenant or by any existing or prospective Leasehold Mortgagee, Landlord shall consider in good faith any modification deliver to the Lease requested by a Mortgagee or prospective Mortgagee requesting party, at such requesting party's cost and expense, such documents and agreements as a condition or term of granting financing the requesting party shall reasonably request to Tenant, provided that further effectuate the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder intentions of the Mortgage most senior in lien priority on this Lease shall have the right parties with respect to 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 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, conditions and covenants applicable to Mortgagee(s), Leasehold Mortgages as set forth in such Articles); and
(v) at the request of Tenant from time to timethis Lease, the FCRHA shall execute including a separate written instrument in recordable form signed and deliver an instrument addressed to the holder of any Mortgage confirming that such holder is a Mortgagee acknowledged by Landlord setting forth and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be confirming, directly for the benefit of specified Leasehold Mortgagee(s), any or all rights of Leasehold Mortgagees.
Appears in 2 contracts
Samples: Ground Lease, Ground Lease
Leasehold Mortgages. (a) Tenant shall have AAF may, at its sole cost and expense and without the right consent of the Department, execute, deliver and cause or permit to mortgage or pledge its be recorded against AAF’s interest in this Lease to the Property and AAF’s improvements and facilities on the Property (excluding the Road Improvements), one or more Mortgagees Leasehold Mortgages (as hereinafter defined), if at the time any time such Leasehold Mortgage is executed and from time delivered to time during the TermLeasehold Mortgagee, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured no Event of Default by Tenant’s interest in this Lease shall AAF exists or if an existing Event of Default by AAF will be used only cured in connection with the costs of pre- development, development, construction, carryLeasehold Mortgage, and operations 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 Project 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 Agreement and (y) 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 holder 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 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 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 Department under this Agreement;
g. while any Leasehold Mortgage is outstanding, the Department shall not agree to any amendment to or modification of this Agreement or agree to a voluntary surrender or termination of this Agreement by AAF without the consent of the Leasehold Mortgagee;
h. notwithstanding any enforcement of the security of any Leasehold Mortgage, nor anyone claiming byAAF 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, through or under any such Mortgagea Leasehold Mortgagee shall not, shall by virtue thereofof its Leasehold Mortgage, 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 right, title or interest in or 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 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 all parties whereby all parties consent 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 Leasehold Mortgage to an agent in connection with the financing of the Leasehold Mortgage; provided that such consent agreement shall be made except in a customary form and 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 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 provisions contained in Article 10 requirements of this Agreement, and until the Lease.”
(C) “This mortgage is not obligations of AAF secured by such Leasehold Mortgage have been completely paid and performed and the Leasehold Mortgage has been discharged, the Department shall send to the Leasehold Mortgagee, by certified or registered mail, 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 true, correct and option to retain and apply the proceeds complete copy of any insurance or the proceeds notice to AAF of any condemnation award toward the payment of the sum secured a default 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 AAF under the Lease) who are not Affiliates of Tenant.”
(F) “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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) Agreement at the same time as and whenever any such notice of default shall thereafter be given by the FCRHA Department to TenantAAF, and no addressed to Leasehold Mortgagee at the address last furnished to the Department by such Leasehold Mortgagee. No notice by the FCRHA Department shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been so given to each such and received by Leasehold 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession of the Premises AAF or any part thereof is required in order to cure such Event of Default, Leasehold Mortgagee shall notify the FCRHA within Department in writing of the applicable period afforded execution of such Leasehold Mortgage and the name and place for service of notice upon such Leasehold Mortgagee. Upon such notification to Mortgagee hereunder.
(d) During any period in which the Department that AAF has entered, or is about to enter, into a Leasehold Mortgage, the Department hereby agrees for the benefit of such Leasehold Mortgagee, and within thirty (30) days after written request by AAF, to execute and deliver to AAF and Leasehold Mortgagee an agreement, in good faith a customary form acceptable to all parties which shall include the rights and acting protections provided to the Leasehold Mortgagee in this Agreement. Nothing herein shall obligate the Department to consent to service of process in connection with reasonable diligence and continuity, is attempting or in the process any legal proceeding brought outside of curing Florida (or caused to be commenced such 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 commencement 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 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 prosecution of any Impositions legal proceeding brought outside of Florida) or payments of installments for Impositions are being made to a Depository in accordance with Article 5 above)) within enter into any applicable grace periodsagreement not governed by Florida law. 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 Agreement 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Leasehold Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 Leasehold Mortgagee).
(j) In addition , to the exclusion of all other rightsLeasehold Mortgagees, notices and cure periods afforded to which AAF or the holders Leasehold Mortgage first notified the Department of any the execution of a Leasehold Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right rights as a Leasehold Mortgagee under this Agreement, unless such Leasehold Mortgagee has designated in writing another Leasehold Mortgagee to participate exercise such rights; provided, however, that a notice to the Department of a Leasehold Mortgage may name more than one Leasehold Mortgagee and the rights referred to in any dispute resolution proceedings under Article 34 hereof;
this Agreement may extend to all Leasehold Mortgagees named therein if such notice is submitted by a representative of all such Leasehold Mortgagees (iv) which representative may itself be a Leasehold Mortgagee). Any references in this Agreement to the holder “Leasehold Mortgagee” shall be references to the Leasehold Mortgagee or representative of the Mortgage most senior in lien priority more than one Leasehold Mortgagee, acting on this Lease shall have the right to participate in the adjustments behalf 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant from time to timeLeasehold Mortgagees, the FCRHA shall execute and deliver an instrument addressed to notice of whose Leasehold Mortgage was earliest received by the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to Department unless the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgageescontext otherwise requires.
Appears in 2 contracts
Samples: Lease Agreement (Virgin Trains USA LLC), Lease Agreement (Virgin Trains USA LLC)
Leasehold Mortgages. (a) Tenant Lessee shall have the right to mortgage grant leasehold mortgages and/or collateral assignments of this Agreement (collectively, "Leasehold Mortgage") in favor of leasehold lenders of Lessee ("Leasehold Lender"), and in such event, the following provisions shall apply:
(a) Any Leasehold Lender under any note or pledge its interest in this Lease to one or more Mortgagees 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 Tenanta Leasehold Mortgage or collateral assignment of lease on Lessee’s interest in this Lease (or any successor’s interest to Lessee’s interest), who succeeds to such interest by foreclosure, deed-in-lieu of foreclosure, or otherwise, may take title to and shall be used only in connection with the costs of pre- development, development, construction, carry, and operations have all of the Project and (y) no holder rights of any MortgageLessee under this Agreement, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except including the right to cure exercise any renewal option(s) or remedy Tenant’s defaults or become entitled to a New Lease as more fully purchase option(s) set forth in this Section 10.04 and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 thereofAgreement, 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 FCRHAassign this Agreement as permitted herein.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee Lessor shall give deliver to the FCRHA written notice of Leasehold Lender (at the making address specified herein, or at such other address as shall be designated in writing to Lessor) a copy of any Mortgage (which default notice given by Lessor to Lessee under the Lease. No default notice from Lessor to Lessee shall contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereofbe deemed effective as against Leasehold Lender unless received by Leasehold Lender.
(c) If Lessee defaults on any monetary obligations under this Agreement, Lessor will accept a cure thereof by the FCRHA shall have received timely the Leasehold Lender within thirty (30) days after Leasehold Lender’s receipt of written notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such Mortgageedefault. 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 For non-monetary Event of Defaultdefaults, 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 Lessor will be necessary, not terminate this Agreement for so long as such Mortgagee shall have commenced to the Leasehold Lender is diligently pursuing a 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Mortgageedefault, and if any Mortgagee, assignee or transferee shall acquire the Premises pursuant to a foreclosure or transfer in lieu of foreclosure, then any curing 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 default requires possession of the Premises is required Project, then Lessor agrees to cure give 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 Leasehold Lender a termination notice, or (iii) bring a proceeding on account of such default reasonable time 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or obtain possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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 Project and to serve as the Depository (subject to any terms, conditions and covenants applicable to Mortgagee(s), as set forth in cure 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 Mortgageesdefault.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Leasehold Mortgages. SECTION 33.01. Tenant and every successor and assign of Tenant (aincluding, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) Tenant shall have is hereby given the right by Landlord in addition to any other rights herein granted, without Landlord's prior written consent, to mortgage or pledge its interest in this Lease to Lease(s), or any part or parts thereof, and any sublease(s) under one or more Mortgagees at leasehold Mortgage(s), and assign this Lease, or any time part or parts thereof, and from time to time during any sublease(s) as collateral security for such Mortgage (s), upon the Term, provided however, condition that (xall rights acquired under such Mortgage(s) 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, subject to each and operations all of the Project covenants, conditions and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 Lease, and such other to all rights as are expressly granted to Mortgagees hereunder. No Mortgage and interest of Landlord herein, none of which covenants, conditions or restrictions is or shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any waived by Landlord by reason of the agreements, terms, covenants and conditions of this Lease on the part of Tenant right given so to be performed; provided however, that if mortgage 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;, except as expressly provided herein. If Tenant and/or Tenant's successors and assigns (including, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) shall mortgage this 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 name and address of the Mortgagee and the pertinent recording date with respect to such Mortgage(s), Landlord agrees that so long as any such leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(ii) such Mortgage A. There shall be subject 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, after services of such notice upon it, to all remedy or cause to be remedies the agreementsdefaults complained of, termsand Landlord shall accept such performance by or at the instigation of such leasehold Mortgagee(s) as if the same had been done by Tenant.
C. Anything herein contained notwithstanding, covenants and conditions while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this Lease;
, entitled Landlord to terminate this Lease, and if before the expiration of thirty (iii30) days from the date of service of notice or termination upon such leasehold Mortgagee(s) such Mortgage leasehold Mortgagee(s) shall contain have notified Landlord of its desire to nullify such notice and shall be deemed have paid 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, or Landlord all Basic Rent and additional rent and 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 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 thereofpayments herein provided for, and (ii) such purchaser then in default, and shall have complied or transferee has delivered to shall commence the FCRHA a duplicate original or certified copy work 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 complying with all of the termsother requirements of this Lease, 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 if any are then 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 otherwisedefault, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 prosecute the same to completion with reasonable diligence diligence, then in such event Landlord shall not be entitled to terminate this Lease and continuity. The FCRHA any notice of termination theretofore given shall accept performance be void and of not effect.
D. If the Landlord shall elect to terminate this Lease by or on behalf of a Mortgagee reason of any covenantdefault of Tenant, condition 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 agreement on Tenant’s part cause to be performed hereunder with cured any then existing money defaults and meanwhile pay the same force and effect as though performed by Tenantother terms, so long as such performance is made in accordance with the terms conditions and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or Lease 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 Tenant's part thereof is required in order to cure such Event of 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 cure) a complied with and performed, other than past non-monetary Event of Default within defaults, and provided further that the time periods provided leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest 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 by foreclosure of the additional cure period afforded Mortgagee under Section 10.04(cMortgage(s) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, otherwise 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 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 (continuity.
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 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 termination of this Lease 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 same conditions of title as this Lease is subject to Unavoidable Delays)on the date of the execution hereof, and to the FCRHA will not exercise rights, if any, of any remedies 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 termination and such written request is accompanied by payment to terminate Landlord of sums then due to Landlord under this Lease.
(2) Said Mortgagee(s) or its nominee(s) shall 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 or dispossess Tenant of possession thereof; provided howeverbut for such termination, that: (i) Mortgagee and in addition thereto, any expenses, including reasonable attorney's fees to which Landlord shall have first delivered to the FCRHA, in writing, been subjected by reason of such default.
(3) Said Mortgagee(s) or its agreement to cure (or caused nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be cured)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 (ii) during transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the period in which Mortgagee is curing (or causing such cure of) such Event performance of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed the new lease.
(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)4) 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 Landlord shall not warrant possession of the Demised Premises or that it will not institute foreclosure proceedings orto Tenant under the new lease.
(5) Such new lease shall be expressly made subject to the rights, if such proceedings have been commencedany, that it has discontinued them, and, in such event, of Tenant under the Mortgagee shall have no further liability terminated lease.
(6) The Tenant 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 new lease shall have the unrestricted right same right, title, and interest in and to terminate the 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 modification does not decrease Tenant's obligations or decrease Landlord's rights pursuant to 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.
(eH. The proceeds from any insurance policies or arising from a condemnation are to be held by any leasehold Mortgagee(s) 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 distributed 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 Lease unless and until such time as it becomesLease, and then only for so long as it remains, the owner of but the leasehold estate created hereby and no performance by Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or on behalf an part, of Tenant's are of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 proceeds pursuant to such MortgageeMortgage(s).
(jI. The leasehold Mortgagee(s) In addition to the other rights, notices and cure periods afforded to the holders shall be given notice of any Mortgagearbitration proceedings by the parties hereto, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become a party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease leasehold Mortgagee(s) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims award or decision made in said arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (s), an agreement prepared at the sole cost and expense of the nature set forth Tenant, in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and form satisfactory to serve as the Depository (subject to any terms, conditions and covenants applicable to such leasehold Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term "Mortgage", whenever used herein, shall include whatever security instruments are used in the locale of the Demised Premises, such as, without limitations, deeds of trust, security deeds and conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to timewell as financing statements, the FCRHA shall execute security agreements and deliver an instrument addressed other documentation required pursuant to the holder of Uniform Commercial Code. The term "Mortgage" whenever used herein, shall also include any Mortgage confirming that such holder is instruments required in connection with a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgageessale-leaseback transaction.
Appears in 2 contracts
Samples: Lease (Yardville National Bancorp), Lease (Yardville National Bancorp)
Leasehold Mortgages. (a) Without the requirement of any consent of Landlord, Tenant shall have the right to mortgage or pledge its entire interest in under this Lease and in and to one the Improvements. The execution and delivery of any such Mortgage shall not be deemed to constitute an assignment or more Mortgagees at any time and from time to time during transfer of this Lease, nor shall the 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 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled Mortgage be deemed (prior to a New foreclosure judgment and the taking of possession as hereinafter provided) an assignee or transferee of this Lease so as more fully set forth in this Section 10.04 and to require such other rights as are expressly granted holder to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at assume the time performance 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 or conditions of this Lease on the part of Tenant to be performed; provided however, that if such Event performed hereunder. Tenant shall give prompt notice to Landlord of Default exists, but the execution and delivery of a Mortgage meeting the requirements of this Section 15.02 and shall furnish it with conformed copies thereof.
(b) Notwithstanding anything contained in this Lease has not been terminated and such Event of Default will be cured simultaneously with to the granting of such Mortgage or with the proceeds from such Mortgagecontrary, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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, this Lease shall acquire any right, title or interest in or to said Lease this Lease, the Leased Premises or the leasehold estate hereby mortgaged or pledged as between such transferee and said the FCRHA, Improvements 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 shall, in the instrument of sale transferring the same or transfer to immediately after acquiring 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 foreclosuresame, assume and agree to keep, observe and perform all of the terms, covenants and conditions provisions of the this Lease to be observed or performed on the part of the Tenant andto 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 cured) and shall therein agree that no further or additional mortgage or assignment of the this 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such Mortgagee. Upon receipt of such noticemade, 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 (except as provided 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, this Article XIV and (ii) a period duplicate-original of fifteen (15) Business Days more in the case of a non-monetary Event of Defaultsaid assumption agreement, duly executed and acknowledged by said purchaser or in the case of a non-monetary Event of Default which transferee, 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Landlord promptly following the consummation of any foreclosure such sale 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 10.03transfer.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 2 contracts
Samples: Assignment of Option Agreement (Hollywood Park Operating Co), Option Agreement (Hollywood Park Operating Co)
Leasehold Mortgages.
(a) Tenant shall 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 shall 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, shall 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 hereunderin this Lease. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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.fifteen
Appears in 2 contracts
Samples: Deed of Lease, Comprehensive Agreement
Leasehold Mortgages. Except as expressly authorized in this Section 89 (a) Tenant Project Financing), the Lessee shall have not mortgage the right to mortgage or pledge its Lessee’s interest in this Lease Agreement or the letting hereunder in whole or in part, or any portion of the Premises in whole or in part. The Parties acknowledge that the Lessee intends to enter into one or more Mortgagees at financings or series of financings to incur Lessee Debt, including any time and Refinancings, from time to time during the Term. The Lessee shall have the right, provided howeverat its sole cost and expense, 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 incurring (i) the costs Initial Lessee Debt under the initial Financing Documents, or (ii) subject to Section 90(a), any subsequent Lessee Debt (including any other Lessee Debt issued in accordance with the terms of pre- developmentthen-existing Financing Documents that were approved by the Port Authority in accordance with this Agreement), development, construction, carry, and operations to grant a Leasehold Mortgage to secure the obligations of the Project Lessee with respect to such Lessee Debt; provided, that at the time of execution and (y) no holder delivery of any such Leasehold Mortgage, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except no Event of Default has occurred and is continuing and 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 following terms and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage conditions shall be effective, unlesssatisfied:
(i) at the time of making such Leasehold 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 shall be subject to all the agreements, terms, covenants and conditions of 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 may not cover any foreclosure sale hereunderproperty of, or secure any debt issued or guaranteed by, any Person other transfer authorized by law by reason than the Lessee (or a financial institution providing a financial guaranty or similar credit enhancement in respect of a default hereunder where no foreclosure sale is required, shall, 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 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 debt of the instrument of sale or transfer to the FCRHA.”
Lessee) and (B) “The purchaser or transferee of said Lease shall, effective from and after shall only secure the effective date obligations of the foreclosure Lessee under the then-existing Financing Documents or transfer in lieu of foreclosure, assume and agree to perform all of a Refinancing approved by 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 Port Authority 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation90(a);
(ii) The FCRHA subject to clause (xiv) below, no Leasehold Mortgage shall consider in good faith any modification to encumber less than the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term entire interest of granting financing to Tenant, provided that the same does not materially increase Lessee under this Agreement and the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunderPremises;
(iii) no Leasehold Mortgage shall encumber any property other than the holder of the Mortgage most senior in lien priority on this Lease shall have the right Premises and Lessee’s personal property, or contain any cross-default, cross-collateral or similar provisions with respect to participate in any dispute resolution proceedings under Article 34 hereofsuch other property;
(iv) the holder 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 Mortgage most senior in lien priority on this Lease shall have Financing Documents, unless otherwise agreed by the right to participate in Port Authority; provided that the adjustments principal amount of any insurance claims Lessee Debt initially incurred to finance the D&C Work Costs that is refinanced pursuant to the terms and provisions of the nature Port Authority-approved Financing Documents shall not be subject to the maximum principal cap set forth in Article 7 and Article 8 hereof and condemnation awards this clause (iv);
(v) 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 nature Lessee’s interest in this Agreement 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 Article 9 hereof 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 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 “Event of Default” to the Lessee, then such mortgagee shall simultaneously give notice of such “Event of Default” to the Port Authority;
(ix) subject to the terms of this Agreement and except as specified herein, all rights acquired by the holder of a Leasehold Mortgage (including any Recognized Mortgagee) shall be subject and subordinate to all of the provisions of this Agreement and to serve as all of the Depository rights of the Port Authority under this Section 89 (subject 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 a waiver of the Lessee’s rights and obligations under, (including, in each case, amendments to or variations or modifications of the defined terms used in such provisions) or any other amendment, variation or modification of this 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 any inconsistency between the terms, covenants, conditions and covenants applicable to Mortgagee(s)provisions of this Agreement and the terms, as set forth in such Articles)covenants, conditions and provisions of the Leasehold Mortgage or any of the Financing Documents, the terms, covenants, conditions and provisions of this Agreement shall control; and
(vxiv) at the request of Tenant from time to timeLeasehold Mortgage shall provide that following the Completion Date, the FCRHA shall execute and deliver an instrument addressed legal description of the premises set forth in exhibits to the holder of Leasehold Mortgage and any Mortgage confirming that such holder is a Mortgagee and entitled related diagrams therein shall be amended, as necessary, to reflect the lease lines delineating the final Premises, which amendment may, in the event the legal description attached as exhibits to the benefit Leasehold Mortgage and any related diagrams therein, include property that lies outside such final lease lines, include a non-discretionary partial release of all provisions contained in certain parts of the Lease which are expressly stated to be for Premises and the benefit Lessee’s rights therein from the lien of Mortgageesthe Leasehold Mortgage and the applicable Financing Documents.
Appears in 1 contract
Leasehold Mortgages. 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 not under common ownership or control with Lessee (a) Tenant collectively, an “Unaffiliated Entity” hereafter), and if the holder of such Leasehold Mortgage shall have provide the right 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 shall apply in respect 8/9/2017 REVISION - AIRPORT STANDARD GOUND LEASE: CITY LESSEE to mortgage or pledge its interest such Leasehold Mortgage.
B. The term "Leasehold Mortgage" as used in this Lease Agreement shall include, but not be limited to, a mortgage, a deed of trust, a deed to one secure debt, or more Mortgagees at any time and from time other security instrument by which Xxxxxx's leasehold estate is mortgaged, conveyed, assigned, or otherwise transferred, to time during the Termsecure a debt or other obligation, 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 construction contemplated.
C. The City, upon providing Lessee any notice of pre- developmentdefault under this Agreement or termination of this Agreement, developmentshall at the same time provide a copy of such notice to the Leasehold Mortgagee by first class U.S. mail at the address specified in the notice given pursuant to Article IX, constructionSection A, carryabove. Such Leasehold Mortgagee shall have the additional periods of time specified in Article IX, Section D hereof to remedy, commence remedying, or cause to be remedied the default or acts or omissions which are specified in any such notice. The City shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Xxxxxx.
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 (90) days to:
1. Notify the 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 operations 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 8/9/2017 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 Project and (y) no holder of any Mortgageleasehold estate hereby created, nor anyone claiming byshall the Leasehold Mortgagee, through as such, be deemed to be an assignee or under any transferee of this Agreement or of the leasehold estate hereby created so as to require such MortgageLeasehold Mortgagee, shall by virtue thereofas such, acquire any greater rights hereunder than Tenant has, except to assume 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time performance 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 or conditions of this Lease on Agreement. Any Leasehold Mortgagee who takes an instrument of assignment or transfer in lieu of the part foreclosure of Tenant the Leasehold Mortgagee shall be deemed to be performed; provided howevera permitted assignee or transferee, 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 have agreed 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part Lessee to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 obligationspurchase and assignment, 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 Lease unless and until such time as it becomes, and then but only for so long as it remains, such purchaser or assignee is the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of estate. If the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Leasehold Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the its designee shall become holder of the Mortgage most senior in lien priority leasehold estate and if the Hangar and Improvements on this Lease the Leased Premises shall have been or become materially damaged on, before or after the right to participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder date 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 such purchase 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 timeassignment, the FCRHA Leasehold Mortgagee or its designee shall execute and deliver an instrument addressed be obligated to repair, replace or reconstruct 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 Mortgageesbuilding or other improvements.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. (a) Tenant shall 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 shall will be used only in connection with the costs of pre- 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, shall 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 hereunderin this Lease. No Mortgage shall will be effective, unless:
(i) : at 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 shall will be subject to all the agreements, terms, covenants covenants, and conditions of this Lease;
(iii) ; such Mortgage shall contain and shall be deemed to will contain in substance the following provisions:
(A) : “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA 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, shallwill, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) Landlord. “The purchaser or transferee of said Lease shallwill, 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.”
(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 will not name, in such foreclosure action or otherwise, and in any event shall 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.”
(F) . “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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) ” Tenant or the Mortgagee shall will give to the FCRHA Landlord written notice of the making of any Mortgage (which notice shall will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall . 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall will thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period shall will be deemed to have commenced) unless and until a copy thereof shall will have been given to each such Mortgagee. Upon receipt of such notice, each Mortgagee shall will 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) 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 will require more than the additional fifteen (15) 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall will have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall Landlord will accept performance by or on behalf of a Mortgagee of any covenant, condition condition, or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall 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, 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 shall will notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall will have first delivered to the FCRHALandlord, 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 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 FCRHALandlord, 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 will have no further liability under such agreement from and after the date it delivers such notice to the FCRHA Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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 shall 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 shall 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 the FCRHA Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, 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 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 shall will be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall 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 the “FCRHALandlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA shall Landlord will not exercise any of the FCRHALandlord’s Termination Rights so long as a Mortgagee shall 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, the FCRHA Landlord may exercise any of the FCRHALandlord’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided in this Lease shallwill, 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- 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 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 shall will 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 will become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall will cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall will take control or possession of the Premises.
(i) . If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall will be 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 Landlord further agrees that:
(i) : without the prior written consent of each holder of a Mortgage, the FCRHA Landlord 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall Lease; Landlord will consider in good faith any modification to the 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 the FCRHALandlord’s obligations or materially diminish the FCRHALandlord’s rights and immunities hereunder;
(iii) ; the holder of the Mortgage most senior in lien priority on this Lease shall will have the right to 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 will 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) and at the request of Tenant from time to time, the FCRHA shall 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. (a) Without the prior consent of Landlord, Tenant shall have the right to mortgage or pledge its interest in this Lease and the leasehold estate hereby created. The execution and delivery of a Mortgage shall not be deemed to one constitute an assignment or more Mortgagees 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 transfer of this Lease nor shall 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 byas such, through be deemed an assignee or under any transferee of this Lease so as to require such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except holder to assume 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time performance 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 or agreements on the part of Tenant to be performed; provided howeverperformed hereunder. No action or agreement hereafter taken or entered into by Tenant to cancel, that if such Event of Default existssurrender, but modify or amend 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 shall be subject to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed binding 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 enforceable 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 such Mortgagee.
(b) 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 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, Mortgage unless and until Landlord shall be given written notice of such assignment and the FCRHA will neither agree name and address of the assignee. A Mortgagee shall cease to be entitled to any material modification of the rights provided for herein if its Mortgage is satisfied or material amendment discharged of record or if Mortgagee has given written notice to Landlord that its Mortgage has been satisfied. Tenant shall not grant any Mortgage unless such Mortgage shall expressly state that the proceeds of any insurance policies and condemnation awards shall be held, used and applied for purposes and in the manner provided in this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same whose Mortgage does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease so provide shall have the right to 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 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, 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 Mortgageesno rights hereunder.
Appears in 1 contract
Leasehold Mortgages. The Lessee shall have the right, at its sole cost and expense, to grant one or more (subject to Section 18.7) Leasehold Mortgages, if at the time any such Leasehold Mortgage is executed and delivered to the Leasehold Mortgagee, no Lessee Default exists unless any such Lessee Default will be cured pursuant to Section 18.3 in connection with entering into such Leasehold Mortgage, and upon and subject to the following terms and conditions:
(a) Tenant the Lessee shall have provided the right form of the Leasehold Mortgage to mortgage 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 pledge its interest 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 Lease to one or more Mortgagees at any time and from time to time during the TermAgreement; provided, 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;
(xd) until Final Completion has occurredno Leasehold Mortgage or other instrument purporting to mortgage, pledge, encumber or create a lien, charge or security interest on or against any or all proceeds from 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 loan part thereof (other than a Permitted Lessee Encumbrance);
(e) the Authority shall have no liability whatsoever for payment of the principal sum secured by Tenant’s any Leasehold Mortgage, or any interest in this Lease shall be used only in connection with accrued thereon or any other sum secured thereby or accruing thereunder, and, except for violation by the costs of pre- development, development, construction, carry, and operations Authority of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except express obligations to the right to cure or remedy Tenant’s defaults or become entitled to a New Lease as more fully Leasehold Mortgagee set forth in this Section 10.04 Article 18 and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under for any remedies of the agreementsLeasehold Mortgagee provided by Law, terms, covenants and conditions the Leasehold Mortgagee shall not be entitled to seek any damages or other amounts against the Authority for any or all 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 Leasesame;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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
(if) the FCRHA 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 been given written provided the Authority with 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 its Leasehold Mortgage in accordance with the provisions contained in Article 10 of the Lease.”Leasehold Mortgagee Notice Requirements;
(Cg) “This mortgage each Leasehold Mortgage shall provide that if an event of default under the Leasehold Mortgage has occurred and is not continuing and the Leasehold Mortgagee gives notice of such event of default to the Lessee, then the Leasehold Mortgagee shall give notice of such default to the Authority (and the Authority shall be obligated to provide a security interest in or lien on copy of such notice to the fee interest in the premises covered by the Lease hereby mortgaged.”Signatory Airlines);
(Dh) “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 the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Lease 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 landlord thereunderAuthority 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, as said Lease may the Authority shall not agree to any amendment to or modification of this Agreement that could reasonably be expected to have been previously modified, amended a material adverse effect on the rights or renewed with interests of the Leasehold Mortgagee or agree to a voluntary surrender or termination of this Agreement by the Lessee without the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgageeLeasehold Mortgagee, which consent shall not be unreasonably withheld withheld, delayed or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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).conditioned;
(j) In addition to notwithstanding any enforcement of the other rights, notices and cure periods afforded to the holders security of any Leasehold Mortgage, the FCRHA further agrees that: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;
(ik) without the prior written consent a Leasehold Mortgagee shall not, by virtue of each holder of a its Leasehold Mortgage, acquire any greater rights or interest in the FCRHA will neither agree to LMM Airport Facility than the Lessee has at any material modification applicable time under this Agreement, other than such rights or material amendment of this Lease, nor accept a surrender interest as may be granted or cancellation of this Lease except acquired in accordance with the express terms and provisions of this Lease (e.g.Sections 18.2, condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Mortgagee 18.3, 18.4 or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles)18.5; and
(vl) at the request of Tenant from time to timeeach Leasehold Mortgagee, the FCRHA Authority, the Lessee and the GDB shall execute and deliver an instrument addressed enter into a consent agreement in a form acceptable to all parties whereby all parties consent to the holder assignment of any Mortgage confirming this Agreement to an agent in connection with the financing of the Leasehold Mortgage; provided that such holder is consent agreement shall be in a Mortgagee customary form and entitled shall include only the rights and protections provided to the benefit Leasehold Mortgagee in this Agreement (including those provided in Section 16.6 and this Article 18). Nothing herein shall obligate the Authority to consent to service of all provisions contained process, become subject to any legal process in any jurisdiction other than in the Lease which are expressly stated to be for Commonwealth, or enter into any agreement not governed by the benefit Laws of Mortgageesthe Commonwealth.
Appears in 1 contract
Leasehold Mortgages. Tenant and every successor and assign of Tenant is hereby given the right by Landlord in addition to any other rights herein granted, subject to Landlord’s prior written consent, to mortgage its interests in this Lease, or any part or parts thereof, and any sublease(s) under one or more leasehold mortgage(s) (each, a "Leasehold Mortgage"), and assign 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 be waived by Landlord by reason of the 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 of, or conditional sale or other title retention agreement with respect to, or encumbrance of any kind on Landlord’s interest in Landlord’s estate and/or interest in the Demised Premises and/or this Lease. If Tenant shall mortgage this 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 name and address of the Leasehold Mortgagee and the pertinent recording date with respect to such Leasehold Mortgage(s), Landlord agrees that so long as any such Leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the applicable Leasehold Mortgagee(s) to Landlord, the following provisions shall apply:
(a) 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee(s). The Leasehold Mortgagee(s) shall thereupon have the right to mortgage remedy or pledge its interest in cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee(s) as if the same had been done by Tenant. 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 one 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 more Mortgagees at shall commence the work of complying with all of the other requirements of this Lease, except as provided in Section (g) hereof, if any time are then in default, and from time shall prosecute the same to time during 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 TermDemised 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 howeverthat 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 (xthe Leasehold Mortgagee(s) until Final Completion has occurred, all proceeds from any loan secured by 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.
(d) Subject to the terms of Section (b) and (c) above, 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 foreclosure or otherwise, and such acquisition shall not require Landlord’s consent or be used deemed a default under the Lease. Upon Landlord’s receipt from Leasehold Mortgagee of written notice of such an acquisition sent to Landlord at the address set forth below (or to any other address given by Landlord in writing to Leasehold Mortgagee), Landlord shall permit the Purchaser to enter into possession of the Property and to hold the same and exercise and enjoy all of 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 connection 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 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 termination of this Lease 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 costs Leasehold Mortgagee or its nominee(s) for the remainder of pre- developmentthe term effective as of the date of such termination, developmentwith the same Rent and upon the terms and, constructionprovisions, carrycovenants and agreements as herein contained and subject only to the same conditions of title as this Lease is subject to on the date of the execution hereof, and operations to the rights, if any, of any parties then in possession of any part of the Project and (y) no holder of any MortgageDemised Premises, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessprovided:
(i) at the time 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 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 termination and such Event written request is accompanied by payment to Landlord 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 sums then due to Landlord under this Lease;
(ii) Said Leasehold Mortgagee(s) or its nominee(s) shall 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 Mortgage termination, and in addition thereto, any expenses, including reasonable attorneys’ fees, to which Landlord shall be subject to all the agreements, terms, covenants and conditions have been subjected by reason of this Leasesuch default;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(ASaid Leasehold Mortgagee(s) “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 writingnominee(s) 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, shall, 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 as between such transferee shall perform 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 observe 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 herein 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with and shall further remedy any other conditions which Tenant under the same force and effect as though performed by Tenant, so long as such performance is made in accordance with terminated lease was obligated to perform under the terms and provisions of this Lease. The FCRHA ; 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 of the obligations of Tenant under the new lease;
(iv) Landlord shall 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, provided such entry is in compliance with all Applicable Laws. If warrant possession of the Demised Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify tenant under the FCRHA within the applicable period afforded to Mortgagee hereunder.new lease;
(dv) 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 Such new lease shall be commenced such 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 expressly made subject 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 Defaultrights, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedingsif any, 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 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 as terminated; and
(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)vi) 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 Tenant 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 new lease shall have the unrestricted right same right, title and interest in and to terminate 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 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, dispossess Tenant 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 Premises City of Tempe, or (b) the cost to complete the improvements, and to take any other action (iii) 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 loan documents provide that City will not be required to cure perform any nonobligation of Developer other than making regularly-monetary Events of Default of Tenant scheduled principal and interest payments on 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 portion of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer in lieu of foreclosure (provided however, that financing allocable to 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the PremisesProperty.
(i) If there is more than one Mortgagee, the rights The proceeds from any insurance policies or arising from a condemnation are to be held by any Leasehold Mortgagee(s) and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 distributed pursuant 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 FCRHA will neither agree to any material modification or material amendment provisions of this Lease, nor accept a surrender but the Leasehold Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or cancellation any part, of this Lease except in accordance with the express terms and provisions Tenant’s share of this Lease (e.g., condemnationsuch proceeds not required for restoration pursuant to such Leasehold Mortgage(s);
(iik) The FCRHA Leasehold Mortgagee(s) shall consider in good faith be given notice of any modification to litigation or arbitration proceedings by the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenantparties hereto, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become a party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease Leasehold Mortgagee(s) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims of the nature set forth award or decision made 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 Mortgageessaid arbitration proceedings.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall have is hereby given the right by Landlord, in addition to any other 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 benefit of the Premises, under one or pledge its more leasehold deed(s) of trust or mortgage(s) (individually, a "Mortgage" and collectively, the "Mortgages"), and 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 profits of the Premises, (iii) any assignment, subleases or other transfer of all or any part of Tenant's rights under this Lease (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 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, restrictions, rights and interests is or shall be waived by Landlord by reason of the right so given to Tenant to mortgage such interest in this Lease to one or more Mortgagees at any time and from time to time during the TermLease, except as expressly provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in herein. If Tenant shall mortgage this Lease and if the Mortgagee under such Mortgage shall be used only in connection with the costs send to Landlord a true copy 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, together with a written notice specifying the name and addresses of the Mortgagee and the pertinent recording date with respect to such Mortgage(s), Landlord agrees that so long as any obligations secured by such leasehold Mortgage(s) shall by virtue thereofremain unsatisfied, 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage following provisions shall be effective, unlessapply:
(ia) If at any time there shall be more than one Mortgage, the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any holder of the agreementsMortgage prior in lien, 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 vested 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 457 EXHIBIT H 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 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 Article 21 (including, without limitation, payment the right to give consents or approval or any other right vested in any Mortgagee by this Lease) to the exclusion of all Additional Costs and Impositions due hereunder (including further, without limitation, the payment holder of any Impositions or payments junior Mortgage.
(b) Landlord shall, upon sending Tenant any notice of installments for Impositions are being made to default, simultaneously send a Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery copy 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 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 or affect a Mortgagee or Tenant unless a copy of such notice shall be given to the Mortgagee pursuant to this subsection (b) of this Section 21.01 and accruing Article 27 hereof. In addition to the other rights of the Mortgagee set forth in this Article 21, the Mortgagee shall, after service of any such notice upon it, have the right to cure or cause the cure of any default by Tenant hereunder, and Landlord shall accept such performance by or at the instigation of such Mortgagee as if the same had been done by Tenant. All notices to the Mortgagee shall be sent return receipt requested and shall not be effective until received by such Mortgagee.
(c) Landlord shall allow the 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 date it delivers expiration of such notice)additional thirty (30) day period, and, thereupon, shall allow the FCRHA shall have Mortgagee such additional days as is reasonably necessary for the unrestricted right to terminate this Lease, dispossess Tenant curing of the Premises and to take default, in which event Landlord may not exercise 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 on account 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, default so long as a the Mortgagee shall be is diligently exercising its cure and with continuity engaged in curing the default. The rights of the Mortgagee under this Section 10.04 with respect thereto within subsection (c) are in addition to the applicable cure periods set forth above and so long as, if possession of rights provided to the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause under subsection (d) of this Section 10.0421.01.
(d) If the Mortgagee, its nominee, or a purchaser at a foreclosure or other sale shall acquire title to Tenant's interest in this Lease and shall cure all of Tenant's defaults under this Lease which are susceptible of being cured by such Mortgagee or by such nominee or purchaser, as the FCRHA 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 (i) re-enter be deemed to be defaults under this Lease as between Landlord and the PremisesMortgagee, (ii) serve a termination notice, its nominee or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants purchaser. If Mortgagee does obtain possession of the Premises, (B) re-enter the PremisesLandlord 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.
(Ce) terminate 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 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 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 FCRHA’s Termination Rights so long as a United States Code) or any other insolvency law. The Mortgagee shall be diligently exercising deemed to have satisfied its cure rights under this Section 10.04 within the time periods set forth above. Upon any Mortgagee ceasing obligation 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 commence foreclosure proceedings or cause Tenant's interest in this Lease shallto 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, however, and the Mortgagee shall not be construed deemed to either (i) extend have failed to satisfy such obligation if 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 is unable to cure any non- monetary Event of Default by Tenant that is not capable of being cured and do so as a condition to preserving this Lease or, in result of the case provisions of a Mortgagee only, to obtaining a New Lease as provided in Section 10.05362 of the U.S. Bankruptcy Code or similar provisions of any other insolvency law.
(gf) 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 No 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 its nominee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so as long as it remains, the owner of the leasehold estate created hereby Tenant's interest in this Lease, and no performance by such liability shall be limited to such Mortgagee's or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee nominee's interest in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(ig) If there is more than one MortgageeLandlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee(s) an agreement (prepared at the rights sole cost and obligations afforded by this Section 10.04 expense of Tenant and in form reasonably satisfactory to a Mortgagee shall be exercisable only by Landlord and such leasehold Mortgagee(s)) among Landlord, Tenant and the party whose collateral interest in leasehold Mortgagee(s), agreeing to all of 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Mortgagees21.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Southern Energy Inc)
Leasehold Mortgages. (a) Tenant Tenant, and its successors, subtenants and assigns permitted hereunder shall have the right to mortgage or and pledge its interest their respective interests in this Lease (“Leasehold Mortgage”) to a lender who is not affiliated with Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this Section 20.20. Landlord and Tenant expressly intend and agree that the provisions of this Section 2020 and such other provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to one or more Mortgagees at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurredcontrary, all proceeds from any loan secured by Tenant’s interest in this Lease Leasehold Mortgages shall be used only in connection with the costs of pre- development, development, construction, carry, expressly subordinate and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain , and at all times shall be deemed inferior and subject 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, 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 prior right, title or and 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 Landlord herein. Notwithstanding anything 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 shallcontrary set forth in this Lease, 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 event shall the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option Property or Facility Premises be subordinate to retain and apply the proceeds any Leasehold Mortgage. A notice of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only each Leasehold Mortgage shall be delivered 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written notice of the making of any Mortgage (which notice shall contain Landlord specifying the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such Leasehold Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, 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. If Tenant, or Tenant’s successors or assigns, shall mortgage this Lease, then so long as any such Leasehold Mortgage shall remain unsatisfied of record and Tenant shall have properly delivered notice given by to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the FCRHA to following provisions shall apply: Landlord, upon serving upon Tenant hereunder (including any notices notice of Event(s) an Event of Default or any other notice under the provisions of this Lease) at the same time as and whenever any , shall also serve a copy of such notice shall thereafter be given by the FCRHA to Tenantupon Leasehold Mortgagee, and no such notice by the FCRHA shall be deemed to have been duly given as to Tenant (and no grace or cure period shall be deemed to have commenced) the Leasehold Mortgagee unless and until a copy thereof shall have has been given to each such so served upon the Leasehold Mortgagee. Upon receipt Landlord’s furnishing a copy of such noticenotice 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, each provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease. Any Leasehold Mortgagee, in case there shall be a Tenant Default under this Lease, shall have the right (but not the obligation) to remedy such Event of Tenant Default (or cause the same to be remedied, ) within the following additional time periods thirty (in each instance 30) days after the applicable period afforded notice to Leasehold Mortgagee of such 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 necessaryafter 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 such Mortgagee shall have commenced (x) curative action reasonably satisfactory to cure (or caused to be commenced such cure) Landlord is instituted within such additional fifteen (15) Business Day period and diligently and continuously prosecutes pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Landlord shall accept such performance by or causes to be prosecuted at the instance of Leasehold Mortgagee as if the same had been made by Tenant. Any provision of this Lease to completion with reasonable diligence and continuity. The FCRHA shall accept the contrary notwithstanding, no performance by or on behalf of a Leasehold Mortgagee shall cause it to become a "“mortgagee in possession"” or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease. The Landlord agrees that, in the event of a non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the Leasehold Mortgagee reasonable time within which to obtain possession of the Premises, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Tenant’s interest under this Lease with diligence and without unreasonable delay. The Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of any covenantall covenants and agreements of Tenant, condition or agreement on Tenant’s part to except those which by their nature cannot be performed hereunder 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 same force matters which have been cured by the Leasehold Mortgagee and effect as though performed 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, to remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by Tenantforeclosure of any Leasehold Mortgagee, so long as deed-in-lieu thereof or otherwise to any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such performance is made foreclosure proceedings (any such transferee of the Lease), that upon becoming the legal owner and holder of this Lease shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure or deed-in-lieu thereof, judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default. In the event of the termination of this Lease prior to the expiration of the Term, whether by summary proceedings to dispossess, service of notice to terminate, or otherwise, due to a Tenant Default, Landlord shall serve upon Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions: Upon the written request of Leasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminated to Leasehold Mortgagee, Landlord shall enter into a new lease of the Premises with Leasehold Mortgagee or its designee as follows: Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be deemed to impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof. If this Lease is (a) rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Tenant prior to such rejection or termination). The new lease shall be executed by Landlord and the Leasehold Mortgagee or its nominee(s) within ninety (90) days after the receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this "“Lease"” shall be deemed also to refer to such new lease. Any notice or other communication which Landlord shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served by either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Leasehold Mortgagee at its address provided to Landlord. The City, acting by and through the City Representative, shall, at the request of the Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to the City and consistent with the terms and provisions contained in this Section 20.20. Within twenty (20) days of the Tenant’s request for a lender’s rights agreement pursuant to the provisions of this Section 20,20, time being of the essence, the City, acting by and through the City Representative, shall execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall be in a form and substance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, and at the option of such Leasehold Mortgagee incorporates, the terms and provisions of this LeaseSection 20.20. The FCRHA shall not object Tenant agrees to pay for the City’s reasonable attorneys’ fees expended in connection with any temporary entry onto the Premises by or on behalf of Mortgagee lender’s rights agreement. Landlord agrees 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, negotiate in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused execute modifications to be commenced such 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 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 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, 2020 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 related provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or cancellation of this Lease except prospective Leasehold Mortgagee) in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification event that such Leasehold Mortgagee desires changes to the Lease requested by a Mortgagee or prospective Mortgagee provisions as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Mortgageescurrently stated.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. (a) Tenant shall 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 TenantXxxxxx’s interest in this Lease shall 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Lease Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on TenantXxxxxx’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 the FCRHA 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 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 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 the “FCRHALandlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA Landlord shall not exercise any of the FCRHALandlord’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 Landlord may exercise any of the FCRHALandlord’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- 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 Landlord further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the FCRHA Landlord 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 express terms and provisions of this Lease (e.g., condemnation)Lease;
(ii) The FCRHA Landlord shall consider in good faith any modification to the 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 the FCRHALandlord’s obligations or materially diminish the FCRHALandlord’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the request of Tenant Xxxxxx from time to time, the FCRHA Xxxxxxxx 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. Notwithstanding anything contained herein to the contrary, Tenant and every successor and permitted assign of Tenant (including, but not limited to, any subtenant of Tenant, but only with Xxxxxx’s prior written consent) is hereby given the right by Xxxxxxxx, in addition to any other rights herein granted, without Xxxxxxxx’s prior written consent, to: (a) Tenant shall have the right to mortgage or pledge its interest in the Premises and its interest in, to and under this Lease Lease, or any part or parts thereof, and its interest in any subleases, pursuant to one or more Mortgagees at any time Leasehold Mortgages, and from time to time during the Termcollaterally assign, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s mortgage or otherwise encumber its interest in the Premises and its interest in, to and under this Lease Lease, or any part or parts thereof, and its interest in any subleases, as collateral security for such mortgages, collateral assignments or encumbrances; provided that the same shall be used only in connection with the costs of pre- development, development, construction, carry, subject to each and operations all of the Project covenants, conditions and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 Lease, and such other to all rights as are expressly granted to Mortgagees hereunder. No Mortgage and interests of Landlord herein and in the Fee Estate, none of which covenants, conditions or restrictions is or shall be effectivewaived by Landlord by reason of the right given so to mortgage such interest in the Premises and Xxxxxx’s interest in, unlessto and under this Lease or for any other reason whatsoever (all such mortgages, encumbrances, or collateral assignments of 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 Tenant 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 any part or parts thereof, or if Tenant shall pledge any direct or indirect ownership interest in 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 name and address of such 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 Leasehold Mortgage(s) or Mezzanine Pledge(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holders thereof to Landlord, the following provisions shall apply:
(i) Upon request, Xxxxxxxx agrees to acknowledge receipt of any Leasehold Mortgagee Notice.
(ii) Landlord will give the Leasehold Mortgagees and Mezzanine Lenders a copy of any written notice from Landlord to Tenant hereunder at the time of making giving such Mortgage there 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 no existing and unremedied Event of Default on delivered to Tenant pursuant to Section 14.01 hereof), which notice details may only be changed by Tenant or the part of Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant applicable Leasehold Mortgagee or Mezzanine Lender (as applicable) by providing written notice 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 Landlord of such Mortgage or changes in accordance with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of this Lease;Section 14.01.
(iii) such Mortgage shall contain and shall be deemed Landlord will not exercise any right, power or remedy with respect to contain in substance the following provisions:
(A) “This instrument is executed upon condition that (unless terminating 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, or other transfer authorized by law by reason of any Event of Default hereunder, and no termination of this Lease in connection therewith shall be effective, unless Landlord shall have so given to the Leasehold Mortgagees and Mezzanine Lenders written notice or a copy of its notice to Tenant of such default hereunder where no foreclosure sale is required, shallor any such termination, as a result of such sale or transferthe case may be, acquire and Landlord will not exercise any right, title power or interest in or remedy with respect to said terminating this Lease or re-entering the leasehold estate hereby mortgaged Premises (except as expressly provided in Section 7.07 or pledged 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 between such transferee and said the FCRHAapplicable, unless and until
(i) the FCRHA has been given written notice of such sale default 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each its notice given by the FCRHA to Tenant hereunder 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 (including any notices 30) calendar days of Event(s) of Default under the Lease) at the same time as and whenever any such date that notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly thereof is given to Tenant (and no grace the applicable Leasehold Mortgagee or cure period shall be deemed Mezzanine Lender;
2. with respect to have commenced) unless and until a copy thereof an Other Event of Default, the Leasehold Mortgagee and/or Mezzanine Lender, as applicable, shall have been a grace period to fully cure such default within ninety (90) days of the date that notice thereof is given to each such 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 Leasehold Mortgagee or causing the same to be remedied has expired): (i) a period of ten (10) Business Days more Mezzanine Lender; provided, further, in the case of a monetary Event 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 Defaultgood faith and reasonable efforts, and (ii) a period of fifteen (15) Business Days more in the case of a non-monetary Event of DefaultLeasehold Mortgagee and/or Mezzanine Lender, or in the case of a non-monetary Event of Default which as applicable, shall require more than the additional fifteen (15) Business Days to cure using due diligence, then have such longer greater period of time as will be necessary, so long as such Mortgagee shall have commenced 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 caused (y) if possession of the Premises is required in order to be commenced cure such cure) default, institute judicial or non-judicial foreclosure proceedings within such additional fifteen ninety (1590) Business Day day period and continuously prosecutes diligently prosecute such proceedings in order to obtain possession directly or causes through a receiver, and, upon obtaining such possession, commence promptly to be prosecuted cure the default and diligently prosecute the same to completion with reasonable diligence without interruption; provided that, during the period in which such action is being taken and continuity. The FCRHA 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.
(iv) 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 on behalf of a Mortgagee Mezzanine Lender of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall not object to any temporary does hereby authorize entry onto upon the Premises by the Leasehold Mortgagees or on behalf 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 Tenant and shall not waive or release Tenant from any obligation or default hereunder (except any obligation or default which shall have been fully performed or corrected by such payment or performance by a Leasehold Mortgagee or Mezzanine Lender). Subject to the extent necessary to effect such Mortgagee’s cure rightsrights of Tenant hereunder, provided such entry is in compliance with all Applicable Laws. If possession of a Leasehold Mortgagee or Mezzanine Lender may enter the Premises or any part thereof is required in order to seek to cure such a default or Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(dv) During any period in which Mortgagee, in good faith Tenant shall give the Leasehold Mortgagees and acting with reasonable diligence and continuity, is attempting or in the 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), 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 Mezzanine Lenders notice of its intention to institute foreclosure proceedingsany condemnation proceedings affecting the Premises, and thereafter, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence Leasehold Mortgagees 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 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 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 Mezzanine Lenders shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises intervene and be made a party to take any other action the FCRHA deems appropriate by reason of any uncured Event of Default by Tenantsuch condemnation proceedings.
(evi) Notwithstanding anything in this Section 10.04 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 Leasehold Mortgagees and Mezzanine Lenders may be added to the contrary, a Mortgagee shall not be required to cure any non-monetary Events “Loss Payable Endorsement” 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 insurance policies required to be carried by Tenant hereunder on condition that the insurance proceeds are to be applied (either by Tenant or in equity against the defaulting Tenant, unless Tenant was released of such obligations, provided further, that by any such remedies may not involve Leasehold Mortgagee) in the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises under manner specified in this Lease or a New Lease).
(fviii) 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 No Leasehold 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 Mezzanine Lender shall become personally liable under the provisions agreements, terms, covenants or conditions of this Lease unless and until such time as it becomes, and then only for so as long as it remains, the owner of the leasehold estate created hereby estate, except as set forth herein to the contrary. Except as set forth herein to the contrary, upon any permitted assignment of this Lease by a Leasehold Mortgagee or Mezzanine Lender, the permitted assignor Leasehold Mortgagee or Mezzanine Lender shall be relieved of any liability which may accrue hereunder from and no performance by or on behalf after the date of such assignment; provided that the assignee shall execute and deliver to Landlord a recordable instrument of assumption wherein such assignee 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 obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior and/or this Lease shall remain liable for all obligations and other liabilities of Tenant under or in lien (connection with this Lease accruing during the period in which such party was in possession of the Premises or which has obtained otherwise succeeded to Xxxxxx’s interest, it being the consent 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 Mortgagees that are senior to of the same, whether in whole or in part, shall discharge any such Mortgagee)liability or other obligation.
(jix) In addition to 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 rightsentity may acquire or own or hold the same, notices directly or indirectly, and cure periods afforded to 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 holders 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 Mortgage, the FCRHA further agrees that:
(i) subtenant without the prior written consent of each holder the Leasehold Mortgagee or Mezzanine Lender which would be entitled to enter into a new lease of a Mortgagethe Premises pursuant to the provisions of Section 11.07, the FCRHA will neither agree 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 material modification or material amendment of this Leasemodification(s) sought by Tenant, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Leasehold Mortgagee or prospective Mortgagee as a condition or any Mezzanine Lender to any of the covenants set forth in this Article 8. The term of granting financing to Tenant“Leasehold Mortgagee,” whenever used herein, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) shall include the holder of security instruments as used in the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder locale of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments Premises, including, without limitation, deeds of any insurance claims of the nature set forth in Article 7 trust, security deeds 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)conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to time, the FCRHA shall execute well as financing statements security agreements and deliver an instrument addressed other securitization documentation required pursuant to the holder of any Mortgage confirming that Uniform Commercial Code, provided such holder is a Mortgagee and entitled regulated lending institutions registered to the benefit of all provisions contained conduct associated activities in the Lease which are expressly stated to be for the benefit State of MortgageesNew York.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. Section 33.01. Tenant and every successor and assign of Tenant (aincluding, but not limited to, any sublessee of Tenant, but only with Tenant’s prior consent) is hereby given the right by Landlord in addition to any other rights herein granted, without Landlord’s prior written consent, to mortgage its interest in this Lease(s), or any part or parts thereof, and any sublease(s) under one or more leasehold Mortgage(s), and assign this Lease, or any part or parts thereof, 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 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 assigns (including, but not limited to, any sublessee of Tenant, but only with Tenant’s prior consent) shall mortgage this 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 name and address of the Mortgagee and the pertinent recording date with respect to such Mortgage(s), Landlord agrees that so long as any such leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
A. 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, after services of such notice upon it, to remedy or cause to be remedies the defaults complained of, and Landlord shall accept such performance by or at the instigation of such leasehold Mortgagee(s) as if the same had been done by Tenant.
C. Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this Lease, entitled Landlord to terminate this Lease, and if before the expiration of thirty (30) days from the date of service of notice or 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 Basic Rent and additional 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, if any are then in default, and shall prosecute the same 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 mortgage or pledge its interest in 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 to one or as fixed by Landlord in its notice of termination, for a period of not more Mortgagees at any time and from time to time during the Termthan six (6) months, provided howeverthat 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 (xthe leasehold Mortgagee(s) until Final Completion has occurred, all proceeds from any loan secured by 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 used only actively engaged in connection steps to acquire or sell Tenant’s interest herein, the time of said Mortgagee to comply with the costs provisions of pre- developmentthis 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.
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 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 termination of this Lease by reason of any default by Tenant other than for nonpayment of Rent or Additional Rent and other payments herein provided for, developmentthat Landlord will enter into a new lease of the Demised Premises with the leasehold Mortgagee(s) or its nominee(s), constructionfor the remainder of the term, carryeffective 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 same conditions of title as this Lease is subject to on the date of the execution hereof, and operations to the rights, if any, of any parties then in possession of any part of the Project and (y) no holder of any MortgageDemised Premises, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessprovided:
(i1) 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 termination and such written request is accompanied by payment to Landlord of sums then due to Landlord under this Lease.
(2) Said Mortgagee(s) or its nominee(s) shall pay to Landlord at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 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 Mortgage termination, and a duplicate original or certified copy thereofin addition thereto, any expenses, including reasonable attorney’s fees to which Landlord shall have been subjected by reason of such default.
(c3) If the FCRHA Said Mortgagee(s) or its nominee(s) shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, perform and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement observe all covenants herein contained on Tenant’s part to be performed hereunder with 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 of the obligations of Tenant under the new lease.
(4) Landlord shall not warrant possession of the Demised Premises to Tenant under the new lease.
(5) Such new lease shall be expressly made subject to the rights, if any, of Tenant under the terminated lease.
(6) The Tenant under such new lease shall have the same force right, title, and effect interest in and to the buildings and improvements on the Demised Premises as though performed 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 modification does not decrease Tenant, so long as such performance is made in accordance with ’s obligations or decrease Landlord’s rights pursuant to this Lease.
H. The proceeds from any insurance policies or arising from a condemnation are to be held by any leasehold Mortgagee(s) and distributed pursuant to the terms and provisions of this Lease. The FCRHA shall not object , but the leasehold Mortgagee(s) may reserve its rights to any temporary entry onto the Premises by or on behalf of Mortgagee apply to the extent necessary to effect mortgage debt all, or an part, of Tenant’s are of 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 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 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 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 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 proceeds 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 LeaseMortgage(s).
(fI. The leasehold Mortgagee(s) 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 given notice of any rights or remedies of a Mortgagee under a Mortgage, including arbitration proceedings by 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 Lease unless and until such time as it becomesparties hereto, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become a party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease leasehold Mortgagee(s) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims award or decision made in said arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (s), an agreement prepared at the sole cost and expense of the nature set forth Tenant, in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and form satisfactory to serve as the Depository (subject to any terms, conditions and covenants applicable to such leasehold Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term “Mortgage”, whenever used herein, shall include whatever security instruments are used in the locale of the Demised Premises, such as, without limitations, deeds of trust, security deeds and conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to timewell as financing statements, the FCRHA shall execute security agreements and deliver an instrument addressed other documentation required pursuant to the holder of Uniform Commercial Code. The term “Mortgage” whenever used herein, shall also include any Mortgage confirming that such holder is instruments required in connection with a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgageessale-leaseback transaction.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 the FCRHA 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 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 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 the “FCRHALandlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA Landlord shall not exercise any of the FCRHALandlord’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 Landlord may exercise any of the FCRHALandlord’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- 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 Landlord further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the FCRHA Landlord 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 express terms and provisions of this Lease (e.g., condemnation)Lease;
(ii) The FCRHA Landlord shall consider in good faith any modification to the 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 the FCRHALandlord’s obligations or materially diminish the FCRHALandlord’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Landlord 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. (ai) Tenant Within 90 days after the Effective Date, 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 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 the Leasehold Mortgages have been duly executed, acknowledged and delivered in form suitable for filing or recording, in all filing or recording offices that are necessary, in the right Administrative Agent’s reasonable judgment, in order to mortgage 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 pledge its interest duly provided for in this Lease a manner acceptable to one the Administrative Agent), (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or more Mortgagees at any time other insurance policies customarily available in relevant jurisdictions for each of the Mortgages (in each case, the “Leasehold Mortgage Policies”) in form and from time substance, with endorsements and in an amount reasonably acceptable to time during the TermAdministrative Agent, provided howeverissued, that 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 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 the lessors of the leased real properties listed on Schedule 5.01(r)(ii) hereto, along with (x) until Final Completion has occurreda memorandum of lease in recordable form with respect to such leasehold interest, all proceeds from any loan secured executed and acknowledged by Tenant’s interest in this Lease shall be used only in connection with the costs of pre- development, development, construction, carry, and operations owner of the Project and affected real property, as lessor, or (y) no 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 such 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 holder, in each case in form sufficient to give such constructive notice upon recordation, and otherwise in form reasonably satisfactory to the Administrative Agent, (D) evidence of the insurance required by the terms of the Leasehold Mortgages, (E) a corporate formalities opinion relating to 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 the Administrative Agent in its reasonable discretion, such opinion being substantially in the form of Exhibit H-2 hereto, and 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 Leasehold Mortgage are located, with respect to the enforceability and perfection of the leasehold Mortgages and any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except related fixture filings in form and substance reasonably satisfactory to 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 Administrative Agent and (vii) such other rights consents, agreements and confirmations of lessors and third parties as are expressly granted 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 Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing create valid first and unremedied Event of Default subsisting Liens on the part of Tenant under any of property described in 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 Mortgages 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;taken.
(ii) such Mortgage shall be subject Notwithstanding anything to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain contrary 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, 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 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
clause (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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 10.045.01(r), the FCRHA shall not (i) re-enter the Premises, (ii) serve with respect to any leasehold interest required to be encumbered with a termination notice, or (iii) bring a proceeding on account of such default first priority Leasehold Mortgage pursuant 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 clause (i), (iiA) 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 such leasehold interest, and (iiiz) being herein any lessor consent or approval of such Leasehold Mortgage as may be required pursuant to the “FCRHA’s Termination Rights”). In additionterms 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 (z) above with respect to any monetary Event of Defaultsuch leasehold interest, after using commercially reasonable efforts to do so, the FCRHA Borrower shall have no further obligation to comply with this Section with respect to the applicable leasehold interest. As used in this Section, “commercially reasonable efforts” shall require the Borrower to commence the matter referred to with diligence and in a manner consistent with customary business practices, but shall not exercise 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 FCRHA’s Termination Rights so long as applicable documentation (including reasonable legal fees in connection with such review). The Borrower shall promptly, upon request, provide the Administrative Agent with a Mortgagee shall be diligently exercising its cure rights under this Section 10.04 within report in reasonable detail summarizing the time periods set forth above. Upon any Mortgagee ceasing commercially reasonable efforts undertaken to diligently exercise such rights and undertaking such activities, obtain the FCRHA may exercise any of the FCRHA’s Termination Rights hereunder. Nothing in the protections to Mortgagees provided items referenced 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 clause (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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Credit Agreement (Hexacomb CORP)
Leasehold Mortgages. Tenant and every successor and assign of Tenant is hereby given the right by Landlord, in addition to any other rights herein granted, to mortgage its interests in this Lease, or any part or parts thereof, and any sublease(s) under one or more leasehold mortgage(s) (each, a "Leasehold Mortgage"), and assign 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 be waived by Landlord by reason of the 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 of, or conditional sale or other title retention agreement with respect to, or encumbrance of any kind on Landlord's interest in Landlord's estate and/or interest in the Premises and/or this Lease. If Tenant shall mortgage this 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 name and address of the Leasehold Mortgagee and the pertinent recording date with respect to such Leasehold Mortgage(s). Landlord agrees that so long as any such Leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the applicable Leasehold Mortgagee(s) to Landlord, the following provisions shall apply:
(a) 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) and as more completely described below;
(b) Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Leasehold Mortgagee(s). The Leasehold Mortgagee(s) shall thereupon have the right to mortgage remedy or pledge its interest in cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee(s) as if the same had been done by Tenant. 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 one or more Mortgagees at any time notify Landlord of its desire to nullify such notice and from time shall have paid to time during the Term, Landlord all Rent and other payments herein 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 pre- development, development, construction, carryfor, and operations then in default, and shall have complied or shall commence the work of complying with all of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions requirements of this Lease;
, except as provided in Section (iiig) such Mortgage shall contain hereof, if any are then in default, 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 prosecute the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by (not to exceed ninety (90) days unless such default cannot reasonably be cured within said ninety (90) day period or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 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 sameother terms, Mortgagee 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 be taking forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the actions required by clause Leasehold Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence.
(d) Subject to the terms of this Section 10.04, the FCRHA shall not subsections (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), (iib) and (iiic) being herein the “FCRHA’s Termination Rights”). In addition, with respect to any monetary Event of Defaultabove, the FCRHA Leasehold Mortgagee, or its successors, assignees, or any purchaser at a foreclosure sale (each a "Purchaser") shall not exercise any of have the FCRHA’s Termination Rights so long as a Mortgagee shall be diligently exercising its cure rights unrestricted right to acquire Tenant's interest 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 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 or an Affiliate of written notice of such Mortgagee an acquisition sent to Landlord at the address set forth below (or to any other address given by Landlord in writing to Leasehold Mortgagee), Landlord shall permit the Purchaser to enter into possession of the Property and to hold the same and exercise and enjoy all of 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 an Event of Default liable for Tenant's obligations under this the 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 until it shall become liable under the provisions owner of this Lease unless and until such time as it becomesthe Lease, either by foreclosure or assignment in lieu thereof or otherwise, and then only for so long as during the period of time it remains, 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 created hereby and no performance by or on behalf estate, cure all of the defaults of Tenant under the Lease which are outstanding as of the date of such Mortgagee acquisition of Tenant’s obligations hereunder shall cause such Mortgagee 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 deemed carried by Tenant hereunder;
(f) Landlord agrees that in the event of termination of this Lease 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 be a “mortgagee the 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” unless and until such Mortgagee shall take control or 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 termination and such written request is accompanied by payment to Landlord of sums then due to Landlord under this Lease;
(i) If there is more than one MortgageeSaid Leasehold Mortgagee(s) or its nominee(s) shall pay to Landlord at the time of the execution and delivery of said new lease, any and all sums which would at the rights time of the execution and obligations afforded by this Section 10.04 delivery thereof, be due pursuant to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except but for such termination, and in accordance with the express terms and provisions addition thereto, any expenses, including reasonable attorneys' fees, to which Landlord shall have been subjected by reason of this Lease (e.g., condemnation)such default;
(ii) The FCRHA Said Leasehold Mortgagee(s) or its nominee(s) shall consider in good faith perform and observe all covenants herein contained on Tenant's part to be performed and shall further remedy any modification other conditions which Tenant under the terminated lease was obligated to perform under the Lease requested terms of this Lease; and upon execution and delivery of such new lease, any subleases which may have theretofore been assigned and transferred by a Mortgagee or prospective Mortgagee Tenant to Landlord, as a condition or term security under this Lease, shall thereupon be deemed to be held by Landlord as security for the performance of granting financing to Tenant, provided that all of the same does not materially increase obligations of Tenant under the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereundernew lease;
(iii) the holder Landlord shall not warrant possession of the Mortgage most senior in lien priority on this Lease shall have Premises to tenant under the right to participate in any dispute resolution proceedings under Article 34 hereofnew lease;
(iv) Such new lease shall be expressly made subject to the holder rights, if any, of the Mortgage most senior in lien priority on Tenant under 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles)terminated; and
(v) at Tenant under such new lease shall have the request same right, title and interest in and to the 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 from time referred 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 or any other nonmonetary default which are expressly stated not otherwise curable by Leasehold Mortgagee due to be for the benefit nature of Mortgagees.the default;
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall have Lessee is hereby given the right by Lessor to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and from time to time during time, under a single leasehold mortgage (as the Termsame may be amended, provided howevermodified, that (x) until Final Completion has occurredconsolidated, all proceeds from any loan secured by Tenant’s interest in this Lease shall be used only in connection with extended or refinanced, the costs of pre- development, development, construction, carry"Leasehold Mortgage"), and operations of assign this Lease, or any part or parts thereof, as collateral security for the Project and (y) no holder of any Leasehold Mortgage, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except upon 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 all rights acquired under 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, 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 Leasehold Mortgage shall be subject and subordinate to each and all of the covenants, conditions and restrictions set forth in this Lease, and to all rights now or transferhereafter affecting the Premises or any portion thereof. If Lessee shall mortgage this Lease, acquire or any rightpart or parts hereof, title the holder of such Leasehold Mortgage (the "Leasehold Mortgagee") shall provide Lessor with notice of the Leasehold Mortgage (including a copy thereof) and the name and address of the Leasehold Mortgagee. Lessor agrees that following receipt of such notice by Lessor, and so long as the Leasehold Mortgage shall remain unsatisfied of record 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 until written notice of such sale or transfer of said Lease and satisfaction is given by the effective date thereofLeasehold Mortgagee to Lessor, 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.”following provisions shall apply:
(Ba) “The purchaser No termination (except in connection with a condemnation of all 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 substantially all of the termsProperty as described in Section 5.1 above), covenants and conditions cancellation, surrender or modification of this Lease (other than any amendment which confirms 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 amount 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 Basic Rent determinated in accordance with the provisions of Section 2.2 below or any CPI Escalation as provided in Section 13.2) by Lessee, nor the Lease.”
(E) “In the event waiver by Lessee 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 the mortgagee hereunder are, without provisions of this Lease nor the necessity for the execution giving by Lessee of any further documents, subject consent shall be effective as to the terms of said Lease and Leasehold Mortgagee unless consented to in writing by 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 mortgageeLeasehold Mortgagee, which consent shall not be unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written Lessor, upon providing Lessee any 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Defaultdefault under this Lease, 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions termination 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 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 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 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 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 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 matter on account which Lessor may predicate or claim a default, shall at the same time provide a copy of such default notice 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Leasehold Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien (or which Lessor 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 FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except been provided notice in accordance with the express terms and provisions first paragraph of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesSection 6.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 Xxxxx at any foreclosure sale hereunder, 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 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 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 the mortgagee hereunder are, without the necessity for the execution of any further documents, subject to the terms of said Lease Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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. (a) Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees right, at any time and from time to time during time, to mortgage its leasehold interest in the TermPremises on such terms, provided conditions and maturity as Tenant shall determine, and to enter into any and all extensions, modifications, amendments, replacements, and refinancings of any such leasehold mortgage as Tenant may desire; provided, however, that (x) until Final Completion has occurred, all proceeds from the terms of any loan secured by Tenantsuch leasehold mortgage shall expressly disclaim any interest against Landlord’s interest in the Premises and shall absolve Landlord of any liability with respect to the financing secured by such leasehold mortgage. In addition, in the event the original principal balance of the 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 pay financing costs and to fund reserves in connection with Tenant’s arrangements to finance the Facility Payment, the terms of such mortgages shall provide that, in the event of a default under the terms thereof, the Parking Facility shall be released from the liens of such mortgages upon payment to the holders thereof of an amount equal to the fair market value of the Parking Facility at the time of such default. If Tenant, or Tenant’s successors or assigns shall mortgage said leasehold interest, then 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 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 deemed to be performed; provided however, that if such Event of Default exists, but this Lease has not been terminated amended 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 modified to the extent necessary so as 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 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 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 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 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 provide 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 thatfollows:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Sublease Agreement (Red Hat Inc)
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to 10.1 On one or more Mortgagees at any time and from time to time during the Termoccasions, 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 pre- developmentDepartment's prior written consent, developmentnot to be unreasonably withheld, construction, carry, Lessee may take back a Leasehold Mortgage upon a sale and operations assignment of the Project leasehold estate created by this Agreement or may mortgage or otherwise encumber Lessee's leasehold estate to an Institutional Investor (as hereinafter defined), under one or more Leasehold Mortgages and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 assign this Agreement as more fully set forth in this Section 10.04 and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 security for such Mortgage or with Mortgages; subject, however, to the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions limitations of this Lease;
(iii) such Mortgage Article. At no time 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 Department permit subordination 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, shall, 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 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 Leased Premises. The Department hereby mortgagedconsents to Lessee's use of Chemical Bank as a Leasehold Mortgagee.”
(Da) “The mortgagee hereunder waives all right (i) Leasehold Mortgage upon a sale and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward the payment assignment of the sum secured by this leasehold estate or shall mortgage but only Lessee's leasehold estate 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 otherwisean Institutional Investor, 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 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 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 unreasonably withheld or delayed. Nevertheless, if 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 such Leasehold Mortgage shall provide the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written Department with notice of the making such Leasehold Mortgage together with a true copy of any such Leasehold Mortgage (which notice shall contain and the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each MortgageeDepartment and Lessee agree that, at the address following receipt of such Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA Department, the provisions of this Article 10 shall apply in respect to each such Leasehold Mortgage; provided that the provisions o-f this Article shall not be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) binding on the Department, unless and until a copy thereof such notice shall have been given to each and such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 have first copy delivered to the FCRHADepartment, 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 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 notwithstanding any other action the FCRHA deems appropriate by reason form 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, actual 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 10.05constructive.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) Tenant Tenant, and its successors, subtenants and assigns permitted hereunder, shall have the right to mortgage or and pledge its interest interesttheir respective interests in this Lease (“Leasehold Mortgage”) to any bank, trust company or national banking association, acting for its own account or in a fiduciary capacitya lender who is not affiliated with Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this sectionSection 20. Landlord and Tenant expressly intend and agree that the provisions of this Section 2020 and such other provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to one or more Mortgagees at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurredcontrary, all proceeds from any loan secured by Tenant’s interest in this Lease Leasehold Mortgages shall be used only in connection with the costs of pre- development, development, construction, carry, expressly subordinate and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain , and at all times shall be deemed inferior and subject 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, 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 prior right, title or and 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 Landlord herein. Notwithstanding anything 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 shallcontrary set forth in this Lease, 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 event shall the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option Property or Facility Premises be subordinate to retain and apply the proceeds any Leasehold Mortgage. A notice of any insurance or the proceeds of any condemnation award toward the payment of the sum secured by this mortgage but only each Leasehold Mortgage shall be delivered 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written notice of the making of any Mortgage (which notice shall contain Landlord specifying the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such Leasehold Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (30) days of such mortgage being recorded. So long as anyIf Tenant, or Tenant’s successors or assigns, shall mortgage this Lease, then so long as any such Leasehold Mortgage shall remain unsatisfied of record and Tenant shall have properly delivered notice given by to Landlord in compliance with Section 20(b) hereof with respect to such Leasehold Mortgagee, the FCRHA following provisions shall apply with respect to such Leasehold Mortgagee: Landlord, upon serving upon Tenant hereunder (including any notices notice of Event(s) aan Event of Default or any other notice under the provisions of this Lease) at the same time as and whenever any , shall also serve a copy of such notice shall thereafter be given by the FCRHA to Tenantupon Leasehold Mortgagee, and no such notice by the FCRHA shall be deemed to have been duly given as to Tenant (and no grace or cure period shall be deemed to have commenced) the Leasehold Mortgagee unless and until a copy thereof shall have has been given to each such so served upon the Leasehold Mortgagee. Upon receipt Landlord’s furnishing a copy of such noticenotice 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, each provided, that Landlord may not terminate this Lease or exercise any remedies against Tenant without first giving such Leasehold Mortgagee notice and opportunity to cure as provided in this Lease. Any Leasehold Mortgagee, in case there shall be a Tenant Default under this Lease, shall have the right (but not the obligation) to remedy such Event of Tenant Default (or cause the same to be remedied, ) within the following additional time periods thirty (in each instance 30) days after the applicable period afforded notice to Leasehold Mortgagee of such 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 necessaryafter 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 such Mortgagee shall have commenced (x) curative action reasonably satisfactory to cure (or caused to be commenced such cure) Landlord is instituted within such additional fifteen (15) Business Day period and diligently and continuously prosecutes pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Landlord shall accept such performance by or causes to be prosecuted at the instance of Leasehold Mortgagee as if the same had been made by Tenant. Any provision of this Lease to completion with reasonable diligence and continuity. The FCRHA shall accept the contrary notwithstanding, no performance by or on behalf of a Leasehold Mortgagee shall cause it to become a "“mortgagee in possession"” or otherwise cause it to be deemed to be in possession of the Premises or bound by or liable under this Lease. The Landlord agrees that, in the event of a non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the Leasehold Mortgagee reasonable time within which to obtain possession of the Premises, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Tenant’s interest under this Lease with diligence and without unreasonable delay. The Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of any covenantall covenants and agreements of Tenant, condition or agreement on Tenant’s part to except those which by their nature cannot be performed hereunder 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 same force matters which have been cured by the Leasehold Mortgagee and effect as though performed with respect to the Incurable Lease Defaults. Notwithstanding anything to the contrary set forth in this Section 20(b),20(c), Leasehold Mortgagee shall have the right, but shall not be obligated, to remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by Tenantforeclosure of any Leasehold Mortgagee, so long as deed-in-lieu thereof or otherwise to any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such performance is made foreclosure proceedings (any such transferee of the Lease), that upon becoming the legal owner and holder of this Lease shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure or deed-in-lieu thereof. , judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default. In the event of the termination of this Lease prior to the expiration of the Term, whether by summary proceedings to dispossess, service of notice to terminate, or otherwise, due to a Tenant Default, Landlord shall serve upon Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions: Upon the written request of Leasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminated to Leasehold Mortgagee, Landlord shall enter into a new lease of the Premises with Leasehold Mortgagee or its designee as follows: Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be deemed to impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof. If this Lease is (a) rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Tenant prior to such rejection or termination). The new lease shall be executed by Landlord and the Leasehold Mortgagee or its nominee(s) within ninety (90) days after the receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this "“Lease"” shall be deemed also to refer to such new lease. Any notice or other communication which Landlord shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served by either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Leasehold Mortgagee at its address provided to Landlord. Simultaneously with the giving to Tenant of any process in any action or proceeding brought for foreclosure of a Leasehold Mortgage or any notice of (i) default or acceleration under a Leasehold Mortgage, (ii) a matter on which such a default or acceleration may be predicated or claimed, (iii) a foreclosure of a Leasehold Mortgage, or (iv) a condition which if continued may lead to such foreclosure, the Leasehold Mortgagee will deliver duplicate copies thereof to the Landlord by certified mail or overnight delivery service. The City, acting by and through the City Representative, shall, at the request of the Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to the City and consistent with the terms and provisions contained in this Section 20.20. Within twenty (20) days of the Tenant’s request for a lender’s rights agreement pursuant to the provisions of this Section 20,20, time being of the essence, the City, acting by and through the City Representative, shall execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall be in a form and substance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, and at the option of such Leasehold Mortgagee incorporates, the terms and provisions of this LeaseSection 20.20. The FCRHA shall not object Tenant agrees to pay for the City’s reasonable attorneys’ fees expended in connection with any temporary entry onto the Premises by or on behalf of Mortgagee lender’s rights agreement. Landlord agrees 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in which Mortgagee, negotiate in good faith and acting with reasonable diligence and continuity, is attempting or in the process of curing (or caused execute modifications to be commenced such 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 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 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, 20 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 related provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or cancellation of this Lease except prospective Leasehold Mortgagee) in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification event that such Leasehold Mortgagee desires changes to the Lease requested by a Mortgagee or prospective Mortgagee provisions as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Mortgageescurrently stated.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge not encumber its interest in this Lease to one with any mortgage or more Mortgagees at any time and other security. The foregoing notwithstanding, from time to time during the Term, provided howeverand without the prior written consent of Landlord, that Tenant may enter into a leasehold mortgage (x) until Final Completion has occurreda “Permitted Leasehold Mortgage”), all proceeds from any loan secured by Tenant’s interest in this Lease with an Institutional Lender (which shall be used only in connection with thereafter constitute a Recognized Mortgagee), subject to the costs of pre- development, development, construction, carry, following terms and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessconditions:
(i) at the time of making such No Permitted Leasehold Mortgage there is no existing and unremedied Event of Default on the part of Tenant under shall be secured by interests in 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 real property other than Tenant’s Leasehold interest in this Lease;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 the Lease to the contrary, in the event of any casualty to or condemnation of the Premises or any portion thereof during such Mortgage time as a Recognized Mortgagee shall be subject 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 agreementsimprovements located upon the Premises or the Tenant’s leasehold interest and shall have the obligation, termsto restore the Building and the Premises as required, covenants under and pursuant to the terms and conditions of this Lease;
(iii) , provided such Mortgage obligation shall contain and shall only 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, 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 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 that such insurance proceeds and/or condemnation awards are required for and applied paid to the demolition, repair or restoration of the mortgaged premises Recognized Mortgagee.
(b) With respect to any Permitted Leasehold Mortgage made in accordance with the provisions of 10.03, each of the Lease.”following provisions shall apply:
(Ei) “In the event of foreclosure, the mortgagee shall not name, in such foreclosure action or otherwise, and in When giving notice to Tenant with respect to any event shall not disturb the possession or right to possession (except for default) of, any subtenants of Tenant default under the Lease) who are not Affiliates provisions of Tenant.”
(F) “This mortgage Section 22.01 and all rights of the mortgagee hereunder are22.02, 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, Landlord will also serve a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by upon the FCRHA to TenantRecognized Mortgagee, and no such notice by the FCRHA to Tenant shall be deemed effective unless a copy of such notice is so 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) Landlord will not exercise any right, power or remedy with respect to any default hereunder unless Tenant or a Recognized Mortgagee shall have been duly given failed to Tenant 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 no grace or for an additional 30 days thereafter (the “Mortgagee Grace Period”), provided that (i) if such default is of such a nature that it cannot, with the exercise of due diligence, be cured within the cure period and the Mortgagee Grace Period, the provisions of subsection (iv) below shall be deemed to have commencedapply.;
(iii) unless and until a copy thereof In case Tenant shall have been given to each such Mortgagee. Upon receipt default under any of such noticethe provisions of this Lease, each the Recognized Mortgagee shall have the right to make good such default whether the same consists of the failure to pay rent or the failure to perform any other matter or thing which Tenant is hereby required to do or perform, and Landlord shall accept such performance on the part of the Recognized Mortgagee as though the same had been done or performed by Tenant;
(but not iv) In the obligation) to remedy such case of any Event of Default or cause by Tenant (including any of the same to be remedied, within the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event Events of Default set forth in Section 22.01 hereof other than in the payment of money hereunder or causing other than a default which may be cured by the same payment of money hereunder), Landlord will take no action to be remedied has expired): 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 Recognized Mortgagee reasonable time within which either (iX) to obtain possession of the Premises (including possession by a period of ten (10receiver) Business Days more and cure such default in the case of a monetary Event default which is susceptible of Defaultbeing cured when the Recognized Mortgagee has obtained possession, or (Y) to institute foreclosure proceedings and (ii) a period of fifteen (15) Business Days more complete such foreclosure, or otherwise acquire Tenant’s interest under this Lease, with diligence and continuity in the case of a non-monetary Event default which is not so susceptible of Defaultbeing cured by the Recognized Mortgagee; provided, or in however, that 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 Recognized Mortgagee shall not be required to continue such possession or continue such foreclosure proceedings if the default which would have commenced to cure (or caused to be commenced been the reason for serving 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 a termination notice shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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; and provided, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedingsfurther, 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 that nothing herein shall preclude Landlord from exercising any rights or remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall 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 with respect 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 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 default by reason Tenant during any period of any uncured Event of Default by Tenant.
(e) such forbearance. Notwithstanding anything in this Section 10.04 contained herein to the contrary, a Recognized Mortgagee shall not be required to cure or remedy any non-monetary Events of Default of Tenant that are default which is not capable 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 defaults under this Lease shall be deemed to have been fully cured as to Recognized Mortgagee, its designee and if its successors and assigns, provided that the foregoing shall not waive or release Tenant with respect to such default;
(v) Landlord and Tenant agree not to enter into any Mortgageemodification of this Lease, 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 accept surrender 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien (or which has obtained without the consent of any Mortgagees then-existing Recognized Mortgagee without first providing such Recognized Mortgagee with the notice and opportunity to cure Tenant defaults as provided under this Section 10.03(b), without which consent such modification or surrender shall be void and of no effect; provided, that are senior to such Mortgagee).
(j) In addition to the Landlord shall not be liable for damages, lost profits or 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 FCRHA will neither agree monetary sum to any material modification Recognized Mortgagee or material amendment successor thereto or assign thereof for breach of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease covenant (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a it being agreed that Recognized Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in obtain injunctive relief and specific performance with respect to any dispute resolution proceedings under Article 34 hereof;violation of this covenant).
(ivc) The provisions of this Section 10.03 are conditioned on 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); andfollowing:
(v1) at the request The Recognized Mortgagee shall, within thirty (30) days after notice 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.default:
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall 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 shall be used by Tenant only in connection with the costs of pre- 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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)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, the FCRHA 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease
Leasehold Mortgages. (a) Tenant The parties agree that Lessor shall have the right be permitted to mortgage or pledge its fee interest in the Improvements, its interest in as lessee under the Ground Lease and its interest as lessor under this Lease to one or more Mortgagees at any time and from time to time during the TermLease(each, a "Leasehold Mortgage"), provided however, that (xi) until Final Completion has occurredany 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 proceeds rents due from any loan secured by Tenant’s interest 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 this all other respects be reasonably acceptable to the Fee Mortgagee and the Leasehold Mortgagee. This Lease shall be used only 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 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 costs of pre- development, development, construction, carry, and operations financing of the Project Premises by Lessor, any lending institution shall request reasonable modifications of this Lease that do not increase Lessee's monetary obligations under this Lease, or materially adversely affect or diminish the rights, or materially increase the other obligations of Lessee under this Lease, Lessee shall make such modifications.
(b) Unless expressly waived or modified therein, any nondisturbance provision contained in a Leasehold Mortgage or any separate subordination, nondisturbance and (y) no attornment agreement delivered to Lessee by the holder of any Mortgage, Leasehold Mortgage shall be deemed to have been made on the condition that neither the holder of such Leasehold Mortgage nor anyone claiming by, through or under any such Mortgageholder, including a purchaser at a foreclosure sale, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessbe:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under liable for 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 act or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 omission 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 lessor (including, without limitation, payment 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 all Additional Costs and Impositions due hereunder the defaulting lessor in the Premises, or (including furtherii) subject to any defense or offsets which Lessee may have against any prior lessor (including, without limitation, 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 the defaulting lessor in the Premises, or
(iii) bound by any payment of any Impositions or payments of installments for Impositions are being Rental which Lessee may have made to a Depository any prior landlord (including, without limitation, the then defaulting Lessor) more than thirty (30) days in accordance with Article 5 above)advance of the date upon which such payment was due, or
(iv) within bound by any applicable grace periods. Howeverobligation to make any payment to or on behalf of Lessee, at any time except to the extent arising or continuing after the delivery Leasehold Mortgagee or such purchaser shall have succeeded to the right and title of the aforementioned agreementdefaulting lessor in the Premises, or
(v) bound by any obligation to perform any work or to make improvements to the Mortgagee may notify the FCRHAPremises, in writing, that it has relinquished possession or
(vi) bound by any amendment or modification 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 this Lease made after the date it delivers such notice to of its mortgage without its consent (other than any amendment which confirms 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 amount 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 CPI Escalation as provided in Section 10.0511.2), or
(vii) bound to return any collateral delivered by Lessee to Lessor in connection with Lessee's obligations under this Lease until such collateral has come into its actual possession and Lessee would be entitled to such collateral pursuant to the terms of this Lease.
(gc) 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.
Within fifteen (h15) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the days after request of Tenant from time to timeLessor, the FCRHA Lessee shall execute and deliver an instrument addressed such documents, agreements, instruments, assignments, forms and affidavits which may be required in connection with any such superior Leasehold Mortgage, and to confirm the holder subordination of this Lease to such superior Leasehold Mortgage, including, without limitation, any Mortgage confirming that such holder is a Mortgagee subordination, nondisturbance and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgagees.attornment agreement contemplated by subparagraph (a) above. I.6
Appears in 1 contract
Samples: Master Lease Agreement (Steinway Musical Instruments Inc)
Leasehold Mortgages. (ai) Tenant Ground Lessor hereby consents to the Assignment of Lease, the Lessor Deed of 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, grant to any holder of such indebtedness a Lien in its leasehold interest in the Ground Lease Property (any such Liens, together with the Liens granted to Agent pursuant to the Operative Documents, to be referred to herein as "Leasehold Mortgages") in compliance with the applicable provisions of the Stanford Lease.
(ii) Subject to the terms of the Stanford Lease, any Person may become the legal owner and holder of the leasehold interest in the Ground Lease Property created by this Agreement by foreclosure of a Leasehold Mortgage or as a result of an assignment or conveyance in lieu of such foreclosure and, upon becoming such an owner, shall become the Ground Lessee hereunder with the rights and obligations thereof.
(iii) 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 right to mortgage correct or pledge its interest in this Lease to one or more Mortgagees 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 shall 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 cure any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at within the same period of time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such Mortgagee. Upon after receipt of such noticenotice as is given to Ground Lessee under this Agreement to correct or cure defaults, 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 plus an 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 thirty (1030) 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 days thereafter. Ground Lessor 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 or on behalf of a any Leasehold Mortgagee of any covenant, condition or agreement on Tenant’s Ground Lessee's part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions Ground Lessee.
(iv) If this Agreement should terminate by reason of a disaffirmance or rejection of this Lease. The FCRHA shall not object to Agreement by Ground Lessee or any temporary entry onto receiver, liquidator or trustee for the Premises property of Ground Lessee, or by or 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 any Governmental Authority that has taken possession of the Premises business or property of Ground Lessee by reason of the insolvency or alleged insolvency of Ground Lessee, then:
(A) Ground Lessor shall give notice thereof to each Leasehold Mortgagee and, upon request of any part thereof is required Leasehold Mortgagee made within sixty (60) days after Ground Lessor has given such notice, Ground Lessor shall enter into a new ground lease of the Ground Lease Property with such Leasehold Mortgagee for the remainder of the term hereof on the same terms and conditions as contained in order to cure such Event of Default, this Agreement. (If more than one Leasehold Mortgagee shall notify request Ground Lessor to enter into a new ground lease, Ground Lessor shall enter into such a new ground lease with the FCRHA within requesting Leasehold Mortgagee holding the applicable period afforded 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 Agreement or Facility 2 Purchase Agreement are in effect at the time of execution of such new ground lease, such new ground lease shall be made subject to Mortgagee hereunderthe Facility 2 Lease Agreement and the Facility 2 Purchase Agreement.
(dv) During 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 period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting such modification or in the 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), 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 have first delivered to the FCRHA, in writing, its agreement to cure (or caused to be cured), early termination and (iiB) during the period in which Mortgagee is curing (or causing Ground Lessor has been notified of 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 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.
(evi) Notwithstanding anything No Leasehold Mortgagee will assume any liability under this Ground Lease either by virtue of its Leasehold Mortgage or by any subsequent receipt or collection of rents or profits generated from the Ground Lease Property, unless and until the Leasehold Mortgagee acquires Ground Lessee's leasehold interest 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 Ground Lease Property at foreclosure or transfer by deed 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. 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 not under common ownership or control with Lessee (a) Tenant collectively, a n “Unaffiliated Entity” hereafter), and if the holder of such Leasehold Mortgage shall have provide the right 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 10 shall apply in respect to mortgage or pledge its interest such Leasehold Mortgage.
B. The term "Leasehold Mortgage" as used in this Lease Agreement shall include, but not be limited to, a mortgage, a deed of trust, a deed to one secure debt, or more Mortgagees at any time and from time other security instrument by which Lessee's leasehold estate is mortgaged, conveyed, assigned, or otherwise transferred, to time during the Termsecure a debt or other obligation, 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 construction contemplated by Articles 4.4 through 4.5, above.
C. The City, upon providing Lessee any notice of pre- developmentdefault under this Agreement or termination of this Agreement, developmentshall at the same time provide a copy of such notice to the Leasehold Mortgagee by first class U.S. mail at the address specified in the notice given pursuant to Section 10.1, constructionabove. Such Leasehold Mortgagee shall have the additional periods of time specified in Sections 10.4 hereof to remedy, carrycommence remedying, or cause to be remedied the default or acts or omissions which are specified in any such notice. The City shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been 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 (30) days to:
1. Notify the 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 operations 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 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 Project and (y) no holder of any Mortgageleasehold estate hereby created, nor anyone claiming byshall the Leasehold Mortgagee, through as such, be deemed to be an assignee or under any transferee of this Agreement or of the leasehold estate hereby created so as to require such MortgageLeasehold Mortgagee, shall by virtue thereofas such, acquire any greater rights hereunder than Tenant has, except to assume 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time performance 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 or conditions of this Lease on Agreement. Any Leasehold Mortgagee who takes an instrument of assignment or transfer in lieu of the part foreclosure of Tenant the Leasehold Mortgagee shall be deemed to be performed; provided howevera permitted assignee or transferee, 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 have agreed 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part Lessee to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 obligationspurchase and assignment, 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 Lease unless and until such time as it becomes, and then but only for so long as it remains, such purchaser or assignee is the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of estate. If the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Leasehold Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the its designee shall become holder of the Mortgage most senior in lien priority leasehold estate and if the Hangar and Improvements on this Lease the Leased Premises shall have been or become materially damaged on, before or after the right to participate in any dispute resolution proceedings under Article 34 hereof;
(iv) the holder date 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 such purchase 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 timeassignment, the FCRHA Leasehold Mortgagee or its designee shall execute and deliver an instrument addressed be obligated to repair, replace or reconstruct 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 Mortgageesbuilding or other improvements.
Appears in 1 contract
Samples: Hangar Ground Lease Agreement
Leasehold Mortgages. (a) Tenant A. The Lessee shall have the right unrestricted right, from time to time, to encumber, hypothecate, or mortgage or pledge its interest in this Lease to and the leasehold estate created hereby under one or more Mortgagees at any time and from time "Leasehold Mortgage(s)" (as hereinafter defined) to time during a "Leasehold Mortgagee" (as hereinafter defined) without the Termprior consent of the Authority upon the condition, 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 pre- development, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or rights acquired under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 Leasehold Mortgage shall be subject to all the agreementscovenants, termsconditions, covenants and conditions 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 the Authority shall also include the refinancing of such Leasehold Mortgage and all renewals, modifications, consolidations, replacements, and extensions thereof upon the condition, however, that all rights acquired under such Leasehold Mortgage shall be subject to the covenants, conditions, and restrictions set forth in this Lease that the Lessee is required to observe, pay, and perform. In the event a Leasehold Mortgagee or any other party succeeding to the rights of the Lessee under 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 , whether through foreclosure, acceptance of an assignment 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, 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 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 deed in lieu of foreclosure, assume and agree to perform all of the termsor any possession, covenants and conditions of the Lease to be observed or performed on the part of Tenant andsurrender, 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 demolitionassignment, 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 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 the consent of the mortgagor or its predecessors in interestjudicial action, or may hereafter be modified, amended or renewed with the consent of the mortgagee, which consent shall not be unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 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 of any covenant, condition or agreement on Tenant’s part to be performed hereunder with such other party as the same force and effect as though performed by Tenant, so long as such performance is made Lessee under this Lease in accordance with the terms and provisions of this Leasehereof. 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 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 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c)As used herein, 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, thatterm "Leasehold Mortgagee" shall mean: (i) Mortgagee shall have first delivered to the FCRHAany 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 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 Section 856 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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.Internal Revenue Code
Appears in 1 contract
Samples: Ground Lease Agreement (Atlantic Coast Airlines Inc)
Leasehold Mortgages. (a) Tenant shall have Notwithstanding anything to the right to mortgage or pledge its interest contrary contained in this Lease to one or more Mortgagees at any time and Lease, Tenant may 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 shall be used only in connection with the costs of pre- development, development, construction, carrytime, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right in each case upon prior written notice 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:Landlord,
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreementsencumber, 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 hypothecate or with the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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 mortgage 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, shall, 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 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.”
Premises with one or more mortgages, assignments of leasehold interest or any other security instruments in favor of an institutional lender or lenders as security for a loan or loans (D) referred to herein as a “The mortgagee hereunder waives all right Permitted Institutional Mortgage,” 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 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 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 unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees from time such Permitted Institutional Mortgage is referred to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.herein as a “Permitted Institutional Mortgagee”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 obtain 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, investment financing with respect to any monetary Event of Default, investment tax credits generated by the FCRHA Project (an “Equity Investment”) from one or more investors (referred to herein as an “Investor”). Each such Permitted Institutional Mortgage shall not exercise any mature no later than the last day 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment term of this Lease, nor accept and shall be a surrender or cancellation Leasehold Mortgage only, expressly subject to the terms and conditions of this Lease except in accordance with Lease. It is expressly understood and agreed that Tenant has no right to mortgage or otherwise encumber the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification fee title to the Lease requested by Premises, except that Tenant may encumber the fee title to the 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 prospective any Investor not currently indicated on Exhibit E of any default under this Article 14 until and unless the name and address of such Permitted Institutional Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease Investor shall have the right been provided to participate Landlord 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 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, 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 Mortgageeswriting.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. (a1) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and Xxxxxx, may 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 term of this Lease on the part of Tenant to be performed; provided howevermortgage, 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 shall be subject to all the agreements, terms, covenants and conditions of 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 hereunderhypothecate, 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 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 nameencumber, in such foreclosure action whole or otherwisein part, 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 the mortgagee hereunder are, without the necessity for the execution of any further documentsits leasehold estate, 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgageeLessor's prior written consent, which consent shall not be unreasonably withheld or delayed. Nevertheless, 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 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 be maintained by such lender under any applicable regulations of the Federal Deposit Insurance Corporation, the holder of this mortgage agrees from time to time upon request Federal Savings and without charge to executeLoan Insurance Corporation, acknowledge. and deliver or any instruments reasonably requested by the FCRHA to evidence the foregoing.”other applicable federal or state governmental agency;
(b) Tenant In no event shall Lessor be required to encumber or the Mortgagee shall give subordinate its fee title to the FCRHA written notice of the making of Premises or 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 duplicate original part thereof or certified copy thereof.interest therein for any reason;
(c) If The Leasehold Mortgage shall not prohibit the FCRHA disposition and application of insurance proceeds and condemnation awards as provided herein;
(d) The Leasehold Mortgage shall have received timely 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, in the manner herein provided for the giving of notice described in Section 10.04(b) aboveto Lessor, a true copy of the FCRHA Leasehold Mortgage and any assignment thereof, and shall give to each Mortgagee, at 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 Mortgagee set forth time as construction of the Improvements contemplated by this lease is complete, all of the proceeds from any loan secured by the Lessee's interest in the notice from Property shall be utilized in connection with the development and construction of such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(simprovements. Xxxxxx's consent under this subparagraph 17.E.(1) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given if Lessor does not respond to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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, Xxxxxx's written request for Xxxxxx's consent 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 days of a monetary Event Xxxxxx's receipt 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 request accompanied by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 all information reasonably 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunderconsider.
(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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease
Leasehold Mortgages. (a1) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and Tenant, may 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 term of this Lease on the part of Tenant to be performed; provided howevermortgage, 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 shall be subject to all the agreements, terms, covenants and conditions of 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 hereunderhypothecate, 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 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 nameencumber, in such foreclosure action whole or otherwisein part, 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 the mortgagee hereunder are, without the necessity for the execution of any further documentsits leasehold estate, 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgageeLandlord's prior written consent, which consent shall not be unreasonably withheld or delayed. Nevertheless, 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 applicable regulations of the Federal Deposit Insurance Corporation, the holder of this mortgage agrees from time to time upon request Federal Savings and without charge to executeLoan Insurance Corporation, acknowledge. and deliver or any instruments reasonably requested by the FCRHA to evidence the foregoing.”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 Mortgagee Leasehold Mortgage shall give promptly deliver to the FCRHA 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 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 default under the terms of this Lease, by registered or certified mail, to such lender at the address contained in such notice. Provided Tenant gives 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such Mortgagee set forth in the lender as required above, no notice from such Mortgagee or from Tenant, and otherwise in the manner provided of a default by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof has been mailed to such lender at the address provided. Such lender, in case Tenant shall have been given to each such Mortgagee. Upon receipt of such noticebe in default under this Lease, each Mortgagee shall shall, within the period and otherwise as herein provided, have the right (but not the obligation) to remedy such Event of Default default, or cause the same to be remedied, within and Landlord shall accept such performance by or at the following additional time periods (in each instance after the applicable period afforded Tenant for remedying the Event of Default or causing such lender as if the same had been made by Tenant. Provided Tenant gives to be remedied has expired): Landlord written notice of the name and address of 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) a period within sixty (60) days after mailing of ten 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 cured by the payment of expenditure of money, or (10ii) Business Days more shall diligently take action to obtain possession of the Premises (including possession by receiver) and to cure such default or breach 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, default or in the case of a non-monetary Event of Default breach 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 cannot 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 Lease unless and until such time as it becomeslender has obtained possession and shall, during such time, pay all rental and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee all other payments required to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of made under this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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.or
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and right, from time to time during the Termtime, provided howeverto conveyor encumber by mortgage, that (x) until Final Completion has occurreddeed to secure debt, all proceeds from any loan secured by or similar financing instrument, Tenant’s 's leasehold estate and interest in this Lease shall be used only in connection with and to the costs 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 the consent of pre- development, development, construction, carry, Landlord. The execution and operations delivery of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Leasehold Mortgage shall not, in and of itself, be effectivedeemed to constitute an assignment or transfer of this Sublease nor shall the Leasehold Mortgagee, unless:
(i) at as such, be deemed an assignee or transferee of this Sublease so as to require such Leasehold Mortgagee to assume the time performance 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 or agreements 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, performed hereunder. If Tenant may nevertheless shall enter into any such Mortgage for Tenant’s interest in this Lease;
(ii) financing arrangement, it shall deliver to Landlord true and complete copies of the instruments effecting -10- 2044792 vOS such Mortgage transaction. Tenant shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 also give Landlord notice of such sale or transfer of said Lease the name and the effective date thereof, and (ii) such purchaser or transferee has delivered to the FCRHA a duplicate original or certified copy address of the instrument of sale or transfer to the FCRHAparty providing such financing.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) With respect to any Leasehold Mortgage, the following shall apply notwithstanding anything in this Sublease to the contrary:
(1) No current or voluntary tennination by Tenant of this Sublease shall be effective unless consented to in writing by such Leasehold Mortgagee; and any material amendment or material modification of this Sublease or the exercise by Tenant of any option to terminate this Sublease without the written consent of such Leasehold Mortgagee shall give to the FCRHA 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 be voidable as against such Mortgage and a duplicate original or certified copy thereofLeasehold Mortgagee at its option.
(c2) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall give any and all notices (as hereinafter defined) given to each Mortgagee, Tenant hereunder simultaneously to any such Leasehold Mortgagee of which Landlord is aware at the address of such Leasehold Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to TenantLandlord, and no such notice shall be effective as to such Leasehold Mortgagee unless and until a copy thereof has been 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 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 ten (10) business days in which to effect a 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 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 FCRHA perfonnance of such obligation by such Leasehold Mortgagee shall be deemed to have been duly given to Tenant (and no grace or a cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed effected by Tenant, so long as such performance is made in accordance with . Landlord hereby consents to the terms and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises Property by or on behalf any such Leasehold Mortgagee for the purpose of Mortgagee to effecting 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Sublease Agreement
Leasehold Mortgages. (a) Tenant shall have is hereby given the right by Landlord, in addition to any other rights herein granted, with or without Landlord's prior written consent, to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 interests in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 any easements granted by Landlord for the benefit of all Additional Costs the Premises, under one or more leasehold deed(s) of trust or mortgage(s) (individually, a "Mortgage" and Impositions due hereunder (including further, without limitationcollectively, the payment "Mortgages"), and to give to the holder of any Impositions or payments of installments for Impositions are being made to such Mortgage (a Depository "Mortgagee") a lien, assignment and/or security interest 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 Premisesany personal property included within this Lease, (ii) serve a termination noticethe rents, or (iii) bring a proceeding on account of such default to (A) dispossess Tenant or other occupants income, receipts, revenues and profits of the Premises, (Biii) re-enter the Premisesany assignment, subleases or (C) terminate other transfer of all or any part of Tenant's rights under this Lease (iv) any rights of extension, renewal or the leasehold estate (expansion contained in this Lease, as collateral security for such rights described in clauses (iMortgage(s), (iiupon the condition that all rights acquired under such Mortgage(s) shall be subject to each and (iii) being herein all of the “FCRHA’s Termination Rights”)covenants, conditions and restrictions set forth in this Lease and to all rights and interests of Landlord herein, none of which covenants, conditions, restrictions, rights and interests is or shall be waived by Landlord by reason of the right so given to Tenant to mortgage such interest in this Lease, except as expressly provided herein. In additionIf Tenant shall mortgage this Lease 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 name and addresses of the Mortgagee and the pertinent recording date with respect to any monetary Event of Defaultsuch Mortgage(s), the FCRHA shall not exercise any of the FCRHA’s Termination Rights Landlord agrees that so long as a Mortgagee any obligations secured by such leasehold Mortgage(s) 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 activitiesremain unsatisfied, 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, following provisions 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 thatapply:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Asset Purchase and Sale Agreement (Potomac Electric Power Co)
Leasehold Mortgages. (a) Without the prior consent of Landlord, Tenant shall have the right to mortgage or pledge its interest in this Lease and the leasehold estate hereby created. The execution and delivery of a Mortgage shall not be deemed to one constitute an assignment or more Mortgagees 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 transfer of this Lease nor shall 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 byas such, through be deemed an assignee or under any transferee of this Lease so as to require such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except holder to assume 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time performance 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 or agreements on the part of Tenant to be performed; provided howeverperformed hereunder. No action or agreement hereafter taken or entered into by Tenant to cancel, that if such Event of Default existssurrender, but modify or amend 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 shall be subject to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance the following provisions:
(A) “This instrument is executed binding 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, or other transfer authorized by law by reason of enforceable against a default hereunder where no foreclosure sale is required, shall, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 such Mortgagee.
(b) 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 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, Mortgage unless and until Landlord shall be given written notice of such assignment and the FCRHA will neither agree name and address of the assignee. A Mortgagee shall cease to be entitled to any material modification of the rights provided for herein if its Mortgage is satisfied or material amendment discharged of record or if Mortgagee has given written notice to Landlord that its Mortgage has been satisfied. Tenant shall not grant any Mortgage unless such Mortgage shall expressly state that the proceeds of any insurance policies and condemnation awards shall be held, used and applied for the purposes and in the manner provided in this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided that the same whose Mortgage does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease so provide shall have the right to 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 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, 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 Mortgageesno rights hereunder.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall 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 shall be used only in connection with the costs of pre- 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, shall 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 hereunderin this Lease. No Mortgage shall be effective, unless:
(i) : at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) ” Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA . Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 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 FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 the FCRHA Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, 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 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 the “FCRHALandlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA Landlord shall not exercise any of the FCRHALandlord’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 Landlord may exercise any of the FCRHALandlord’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- 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) . If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 Landlord further agrees that:
(i) : without the prior written consent of each holder of a Mortgage, the FCRHA Landlord 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA Lease; Landlord shall consider in good faith any modification to the 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 the FCRHALandlord’s obligations or materially diminish the FCRHALandlord’s rights and immunities hereunder;
(iii) ; the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) and at the request of Tenant from time to time, the FCRHA Landlord 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) Tenant Lessee, and its successors and assigns, shall have the unconditional right to mortgage or mortgage, pledge its interest in and/or assign this Lease without having to one obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or more Mortgagees at a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any time and from time interests in Lessee shall be permitted without having to time during obtain the Termconsent of Lessor.
(b) If Lessee, provided howeveror Lessee’s successors or assigns, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in shall mortgage this Lease shall be used only in connection compliance with the costs provisions of pre- developmentthis Section, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under then so long as any such Mortgagemortgage shall remain unsatisfied of record, the following provisions shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessapply:
(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 time address provided for in clause (vi) of making 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 there is 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 existing and unremedied Event event of Default on the part of Tenant under any default shall be deemed to exist in respect of the agreementsperformance of work required to be performed, termsor of acts to be done, covenants 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 conditions 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 on without first giving to the part holder of Tenant such mortgage written notice thereof and a reasonable time thereafter within which either (x) to be performed; provided 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 if that: (x) such Event 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 Default existssuch forbearance with such of the terms, but conditions and covenants of this Lease has 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 terminated and such Event of Default will be cured simultaneously with the granting waived by Lessor upon completion of such Mortgage foreclosure proceedings or with the proceeds from upon such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenantacquisition 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.
(iiv) 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 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 subject to 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;Lease to the date of execution of such new lease.
(iiivi) such Mortgage Any notice or other communication which Lessor shall contain 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 deemed served by registered mail, addressed to contain such holder at his address as set forth 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, such mortgage. Any notice 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 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 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, communication which consent shall not be unreasonably withheld or delayed. Nevertheless, the holder of a mortgage on this mortgage agrees from time Lease shall desire or is required to 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 FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Tenant 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 no grace 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 cure period 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 commencedpriority and be superior to, any leasehold mortgage.
(x) unless The fee title to the Leased Property and until a copy thereof the leasehold estate created therein pursuant to the provisions of this Lease shall have been given to each such Mortgagee. Upon receipt not merge but shall always be kept separate and distinct, notwithstanding the union of such noticeestates in Lessee, 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 DefaultLessor, or in the case 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 non-monetary Event mortgage thereon or by assignment in lieu of Default which 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 require more than thereupon be released from all liability for the additional fifteen (15) Business Days to cure using due diligence, then performance or observance of the covenants and conditions in 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 or lease contained on behalf of a Mortgagee of any covenant, condition or agreement on Tenanttenant’s part to be performed hereunder with and observed from and after the same force and effect as though performed by Tenant, so long as date of such 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 Mortgagee’s cure rightsassignment, provided that such entry is in compliance with all Applicable Laws. If possession assignee assumes the obligations of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee Lessee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the 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), 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 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 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 form reasonably required by clause (d) any leasehold mortgagee 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 10.05Lessee.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Master Lease Agreement (Moody National REIT I, Inc.)
Leasehold Mortgages. (a) Notwithstanding anything to the contrary contained in this Lease, Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees right, at any time and from time to time during time, without being required to obtain Landlord’s consent, to mortgage, pledge 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 as “Leasehold Mortgagee.” Upon Tenant’s request, Landlord shall make such changes or modifications to this Lease, with the exception of those provisions of this Lease concerning the Base Rent and the length of the Term, provided as are reasonably requested by any Leasehold Mortgagee to facilitate the mortgaging of the leasehold estate. 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 any Leasehold Mortgagee, Landlord shall enter into a Landlord’s Consent and Agreement containing language substantially similar to 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 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, shall 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 21, or otherwise as shall be mutually satisfactory to Landlord and such Leasehold Mortgagee. If Tenant, or Tenant’s successors or assigns, shall mortgage said leasehold interest then, 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:
(a) There shall be no cancellation, 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 on Tenant any notice of default or any other rights notice pursuant to the provisions of, or with respect to, this Lease, shall at the same time serve a duplicate counterpart of such notice on such Leasehold Mortgagee by Certified Mail, Return Receipt Requested, addressed to said holder at the address registered with Landlord.
(c) Such Leasehold Mortgagee, in the event Tenant shall be in default hereunder, shall have the right, within the applicable cure period which is of the same duration as are expressly granted Tenant’s commencing, however, upon the Leasehold Mortgagee’s actual receipt of a notice of default from Landlord, to Mortgagees hereunderremedy or cause to be remedied such default, and Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been performed by Tenant. No Mortgage default by Tenant in performing work required to be performed, acts to be done, or conditions to be remedied, shall be effectivedeemed to exist, unlessif steps, in good faith, shall have been promptly commenced by Tenant or by said Leasehold Mortgagee or by any other party, person or entity to rectify the same and prosecuted to completion with diligence and continuity within applicable cure periods as specified herein.
(d) In the event this Lease is terminated before the natural expiration of the then current Term, whether by summary dispossession proceedings, service of notice to terminate, or otherwise, due to Tenant’s default, Landlord shall, by Certified Mail, Return Receipt Requested, serve on any Leasehold Mortgagee written notice of such 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 Landlord. Such Leasehold Mortgagee shall, upon payment of any amounts due under the Lease, thereupon have the following options, but without releasing Tenant from its obligations under the Lease:
(i) at On the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any written request of the agreementsLeasehold Mortgagee, termswithin thirty (30) days after service of the aforementioned notice of termination, covenants and conditions Landlord shall enter into a new or direct lease 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 Leased Premises with the granting of such Mortgage Leasehold Mortgagee, or with its designee, as provided in the proceeds from such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;following subparagraph (ii).
(ii) such Mortgage Such lease shall be subject to entered into at the reasonable cost of Tenant thereunder, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and additional rent and on all the agreements, terms, covenants covenants, and conditions of this Lease;. 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 the Lease, the 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) such Mortgage Notwithstanding the provisions of this Lease, if Landlord shall contain and shall be deemed elect to contain terminate this Lease by reason of Tenant being in substance the following provisionsdefault of rent or other covenants of Tenant hereunder or because of:
(A) “This instrument is executed upon condition 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 (unless 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 notice, shall have and be subrogated to any and all rights of Tenant with respect to the 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 condition Lease, fixed by 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 released diligently engaged in curing, any then existing default of Tenant not requiring possession (other than the 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 Lease by foreclosure of the mortgage or waived otherwise. If, before the date specified for the termination of this Lease as extended by the FCRHA such Leasehold Mortgagee, the Tenant in default under the provisions of said Lease 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 successors designee shall deliver to Landlord its agreement and obligation to perform and observe the covenants and conditions to be performed by Tenant in interest 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 an instrument in writing) no purchaser or transferee of said Lease at any foreclosure sale hereunderTenant thereunder, or other transfer authorized by law including without limitation, by reason of a default hereunder where no foreclosure sale is requiredany rejection of the Lease pursuant to the Federal Bankruptcy Code or other applicable state or federal law relating to bankruptcy, shallinsolvency, 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 have the right to assume the Lease covering the Leased Premises or request that Landlord enter into a new lease with such sale Leasehold Mortgagee or transferits nominee or designee (the “New Lease”). The New Lease shall contain all of the same terms set forth in this Lease and shall be of the same priority as the Lease over all mortgages or other liens, acquire any charges, or other encumbrances against the Leased Premises. Tenant shall have no right, title or interest in or to said such New 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereofcreated thereby.
(ce) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such The Leasehold Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed named as an insured, as its interest may appear, in all policies of insurance carried by Tenant pursuant to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. Upon written request, duplicate originals of the policies of such 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 FCRHA proceeds of such insurance in case of loss shall not object be paid to, and deposited with, the Leasehold Mortgagee, and said Leasehold Mortgagee shall disburse, in 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 Tenant for this purpose of rebuilding, restoring and repairing.
(f) The Tenant shall give the Leasehold Mortgagee written notice of any condemnation proceedings by any governmental agency other than Landlord affecting the Leased Premises. The said holder shall have the right to intervene and be made a party to any temporary entry onto such condemnation proceedings and the Premises 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 or on behalf of Tenant to the said Leasehold 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 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 any a partial taking of the land forming part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d) During any period in Leased Premises which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or does not result in the process cancellation or termination of curing (this Lease, there shall be paid to Tenant, as trust funds, out of the Tenant’s interest in any award or caused to be commenced damages for such cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c)taking, the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior an amount equivalent to the expiration of cost to restore the additional cure period afforded Mortgagee under Section 10.04(c) improvements then on the Leased Premises to cure (or caused to be cured) the Event of Defaulta complete architectural unit, 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 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 access cuts and Impositions due hereunder (including further, without limitation, roadways. Whatever repairs shall be made shall be comparable in quality to 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 part 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, improvements 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 10.05taken.
(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 Leasehold Mortgagee shall be an Event given notice by Tenant of Default under this Lease unless any legal proceeding by the parties hereto, and shall have the right to intervene and be made a party to such assignment meets proceedings, and the requirements 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 Section 10.03any award or decision made in said proceedings from the Tenant.
(h) Except as provided in clause (d) of this Section 10.04, no If the Leasehold Mortgagee shall become 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 the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, Leasehold Mortgagee shall become the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or has taken possession of the Premises.
(i) If there is more than one Mortgageesame, and then only for as long as it remains such owner or possessor subject to the provisions of this Lease. On any assignment of this Lease by any owner of the leasehold estate whose interest shall have been acquired by, through, or under any Leasehold Mortgagee or shall have been derived immediately from any holder thereof, the rights assignor shall be relieved of any further liability which may first accrue hereunder from and obligations afforded by this Section 10.04 to a after the date of such assignment, it being the intention of the parties that once the Leasehold Mortgagee shall be exercisable only 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 of either shall effect a release of 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)assignor’s liability for defaults first occurring thereafter.
(j) In addition 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 Landlord shall thereupon be transferred and assigned by Landlord to the other rights, notices and cure periods afforded to new tenant under the holders new or direct Lease.
(k) The execution of any Mortgage, such leasehold mortgage shall be deemed an assignment by Tenant to such mortgagee of Tenant’s election to remain in possession of the FCRHA further agrees that:
(iLeased Premises pursuant to 11 U.S.C. Section 364(h)(1) without in the prior written consent of each holder event of a Mortgage, the FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender or cancellation rejection of this Lease except 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 rents hereunder during the period it is exercising its rights hereunder in accordance with the express terms and provisions of this Lease (e.g., condemnation);hereof.
(iim) The FCRHA shall consider in good faith any modification to Neither the voluntary or other surrender of the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenant, provided 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 same does not materially increase fee title or any other estate, title or interest in the FCRHA’s obligations or materially diminish the FCRHA’s rights Leased Premises, any Leasehold Mortgage shall attach to and immunities hereunder;
(iii) the holder of the Mortgage most senior cover and be in lien priority on this Lease shall have upon the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in fee title or 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 Mortgageesother estate so acquired.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. (a) 11.1 Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees will be entitled, at any time and from time to time during time, without the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by TenantCity’s interest in this Lease shall be used only in connection with the costs of pre- development, development, construction, carryconsent, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 terms and conditions of this Lease on the part of determined by Tenant to be performed; provided howeverappropriate, that if such Event to mortgage, pledge, grant deed(s) 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 shall be subject to all the agreements, terms, covenants and conditions of 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 hereundertrust, 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 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 otherwise encumber 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner portion of the leasehold estate created hereby and no performance by all or on behalf any portion of such Mortgagee the right, title, and interest of Tenant under this Agreement (including Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien (Project Land Improvements), and to assign, hypothecate, or which has obtained pledge it as security for the consent payment of any Mortgagees that are senior debt 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 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 subordinate to the City’s interest under this Agreement.
11.2 After the execution and recordation of any Leasehold Mortgage, Tenant or the FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept Leasehold Mortgagee must notify the City in writing that a surrender or cancellation of this Lease except in accordance Leasehold Mortgage has been given and executed by Tenant and must furnish the City with the express address to which copies of notices should be mailed. The City agrees that it will thereafter give to the Leasehold Mortgagee, at the address so given, duplicate copies of any and all notices in writing that the City may from time to time give or serve upon Tenant under and pursuant to the terms and provisions of this Lease (e.g.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 if the alleged failure is cured in accordance with the provisions of this Agreement, condemnation);then the City will accept such cure tendered by the Leasehold Mortgagee.
(ii) The FCRHA shall consider in good faith any modification 11.3 No Leasehold Mortgagee will be or become liable to the Lease requested by a Mortgagee City as an assignee of this Agreement or prospective Mortgagee as a condition or term of granting financing to Tenantotherwise until it expressly assumes such liability in writing, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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.no
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. If Lessee shall grant 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 such Qualified Mortgage shall remain unsatisfied of record the following provisions shall apply:
(a) Tenant if Lessor shall become entitled to serve a Termination Notice (as defined in section 22) Lessor shall, before serving such Termination Notice, use its best efforts to give to the holder of any Qualified Mortgage a notice (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 Qualified Mortgage shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at remedy 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part under clause (a), (b) or (c) of Tenant under any section 22 within a period of 10 days after its receipt of the agreements, terms, covenants Mortgagee Notice and conditions of this Lease on the part of Tenant to be performed; provided however, that if such any other Event of Default exists, but this Lease has not been terminated and such Event within a period 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 shall be subject to all the agreements, terms, covenants and conditions of 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 30 days after 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, shall, 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 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 receipt of the instrument of sale or transfer to the FCRHAMortgagee Notice.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written notice In case of the making occurrence 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 an 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 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 than an Event of Default of the acquiring Mortgagee, assignee or transferee of this Lease after such foreclosure or transfer specified 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 (ia), (iib) 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 (iic) 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 section 22 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 specified in clause (d) of this Section 10.04section 22 arising from the failure by Lessee to perform its obligations under section 11.1(a)) if, no Mortgagee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner within 30 days after its receipt of the leasehold estate created hereby and no performance by or on behalf of Mortgagee Notice, such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 thatholder shall:
(i) without notify Lessor of its election to proceed with due diligence promptly to acquire possession of the prior written consent of each holder of a Mortgage, Combined Premises or to foreclose the FCRHA will neither agree Qualified Mortgage or otherwise to any material modification or material amendment of extinguish Lessee's interest in this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms ; and provisions of this Lease (e.g., condemnation);91 88
(ii) The FCRHA shall consider in good faith any modification deliver to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Lessor an instrument addressed to (the holder of any Mortgage confirming that "Payment and Performance Agreement") in writing duly executed and acknowledged wherein 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.agrees that:
Appears in 1 contract
Samples: Lease (Goldman Sachs Group Inc)
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at At any time and from time to time during the Termterm of this Lease, provided howeverand any extension thereof, that Lessee may encumber to any person, firm or entity (x"Lender") until Final Completion has occurredby deed of trust or mortgage or other security instrument ("Leasehold Mortgage") all or any portion of Lessee's interest under this Lease and the leasehold estate hereby created, all proceeds from any loan secured by Tenant’s and to assign its interest in this Lease shall be used only and in connection with any sublease as collateral security for such mortgage, deed of trust or security instrument, for any purpose or purposes without the costs consent of pre- developmentLessor; provided, 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 existsno Leasehold Mortgage incurred by Lessee pursuant to this Paragraph shall, but this Lease has and Lessee shall not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgagehave power to incur any encumbrance, Tenant may nevertheless enter into such Mortgage except for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 will constitute a lien 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 encumbrance on the fee interest at the Property. Lessor and Lessee shall amend this Lease to include any provision that a proposed Lender may reasonably request; provided, however, that such provision implements Lender protection provisions in this Lease or preserves the premises covered by lien of the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right and option to retain and apply Leasehold Mortgage on the proceeds occurrence 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 default under the Lease) who are not Affiliates of Tenant.”
(F) “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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Such amendment shall not object to any temporary entry onto neither affect the Premises by rent or 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 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 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 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 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 term provided for in this Lease that would have applied if no Event nor materially adversely affect any other rights 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 Lessor under this Lease unless such assignment meets Lease. Any improvements constructed on the requirements of Section 10.03.
(h) Except as provided in clause (d) of this Section 10.04, no Mortgagee shall become liable under Property during the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment term of this Lease, nor accept a surrender and any extensions thereof, shall be and remain the property of Lessee until the expiration or cancellation sooner termination of this Lease except in accordance with Lease, at which time they shall become the express terms and provisions property of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesLesser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Quaker Fabric Corp /De/)
Leasehold Mortgages. (a) Tenant shall 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 shall be used by Tenant only in connection with the costs of pre- 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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)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, the FCRHA 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease
Leasehold Mortgages. (a) Tenant Notwithstanding the terms of Section 5.12, Tenant, and its successors and assigns, shall have the right to mortgage mortgage, pledge or pledge its interest in conditionally assign this Lease to one or more Leasehold Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless 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 not be deemed to constitute an assignment, nor shall any mortgagee under such a mortgage not in actual possession of the Leased Premises be deemed an assignee of the leasehold estate created hereby, so as to require such mortgagee to assume the obligations of Tenant hereunder, but a mortgagee in actual possession and until such time as it becomes, and then only for so long as it remains, the owner purchaser at any sale of the leasehold estate created hereby and no performance by upon foreclosure of a mortgage given in accordance with the prior paragraph, or on behalf the assignee of Tenant’s interest under this Lease pursuant to an assignment in lieu of such Mortgagee foreclosure, shall be deemed to be an assignee of Tenant (but no consent by the Landlord to such assignment or transfer shall be required) and subject to the terms and conditions of this Section 8, shall be deemed to have assumed the obligations of 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 in Section 8.3.5) to an assignee who assumes the obligations of Tenant hereunder (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 a mortgagee as security for a mortgage granted in accordance with the prior paragraph shall not constitute an assumption of liability by the mortgagee of Tenant’s obligations hereunder shall cause until the date of such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or mortgagee’s taking of actual possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 pursuant to the other rights, notices and cure periods afforded to the holders exercise of any Mortgage, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s its rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Mortgageesconditional assignment.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. (a) Tenant shall have and its successors and assigns are hereby given the right by Landlord in addition to any other rights herein granted, without Landlord's prior written consent, to mortgage or pledge its interest interests in this Lease to and any sublease(s) under one or more Mortgagees at first leasehold mortgages, and assign this Lease, and any time and from time to time during sublease(s) as collateral security for such Mortgage(s), upon the Term, provided however, condition that (xall rights acquired under such Mortgage(s) 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, subject to each and operations all of the Project covenants, conditions and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 Lease, and such other to all rights as are expressly granted to Mortgagees hereunder. No Mortgage and interests of Landlord herein, none of which covenants, conditions or restrictions is or shall be effectivewaived by Landlord by reason of the right given to mortgage such interest in this Lease, unlessexcept as expressly provided herein. If Tenant or its successors and assigns shall mortgage this leasehold, and if the holder(s) of such Mortgage(s) shall send to Landlord a true copy thereof, together with written notice specifying the name and address of the Mortgagee and the pertinent recording date, 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 leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(a) 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period (plus an additional fifteen (15) days), after service of such notice upon it, to remedy or cause to be remedied the default complained of, and Landlord shall accept such performance by or at the instigation of such leasehold Mortgagee(s) as if the same had been done by Tenant.
(c) Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder(s) 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 expiration of thirty (30) days 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 by reason of any default by Tenant or rejection in bankruptcy, 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 termination, at the rent and additional rent and upon the terms, provisions, covenants and agreements as herein contained, and to the rights, if any, of any parties then in possession of any part of the Leased Property, provided:
(i) at Said Mortgagee(s) or its nominee shall make written request upon Landlord for such new lease within thirty (30) days after the time date 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 termination and such Event written request is accompanied by payment to Landlord 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 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 Mortgage 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 subject performed and shall further remedy any other conditions which Tenant under the terminated lease was obligated to all perform under the agreements, terms, covenants and conditions terms of this Lease;
(iiiiv) such Mortgage shall contain and Such new lease 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, 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 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 expressly made subject 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 shallrights, effective from and after the effective date of the foreclosure or transfer in lieu of foreclosureif any, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation)terminated lease;
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at The tenant under such new lease shall have the request of Tenant from time to timesame right, the FCRHA shall execute title and deliver an instrument addressed interest in and to the holder of any Mortgage confirming that such holder is a Mortgagee buildings and entitled to improvements on the benefit of all provisions contained in Leased Property as Tenant had under the Lease which are expressly stated to be for the benefit of Mortgageesterminated lease.
Appears in 1 contract
Samples: Restaurant Lease (Ich Corp /De/)
Leasehold Mortgages. (a) Tenant Subject to the requirements of this Article XX, Lessee may assign or encumber Lessee’s interest in the Leasehold as security for any 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 mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 request 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 Lessee shall use its commercially reasonable efforts 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 demolitionobtain, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 disturbance agreement from any Leasehold Mortgagee, in favor of Default, or in the case Lessor and any holder of a non-monetary Event of Default which shall require more than Fee Mortgage, confirming that 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless Section 20.2, will be honored by and until such time as it becomesbinding upon any Leasehold Mortgagee, and then only for so long further containing such other terms and conditions as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 MortgageFee Mortgage shall reasonably request, the FCRHA will neither agree including attornment of Lessee to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Fee Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(iv) event the holder of the Fee 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, 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 succeeds to the holder interest 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 MortgageesLessor hereunder.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall be used only in connection with the costs of pre- 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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
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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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-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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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-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- 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 further secure the performance and payment of the obligations of Corporation under the Loan Documents, Corporation grants to Agent a present security interest in its leasehold interests in 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 recorded or filed in the appropriate public records to provide record notice to all third persons. Notwithstanding any term or covenant of the Leasehold Mortgages to the contrary, the following provisions shall apply thereto:
(a) Tenant shall have in the right to mortgage event of any conflict or pledge its interest in this Lease to one or more Mortgagees at ambiguity between 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 shall be used only in connection with the costs of pre- development, development, construction, carry, and operations provision of the Project Leasehold Mortgage and (y) no holder the provisions of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 Agreement and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreementsother Loan Documents, terms, covenants the provisions hereof 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 Loan Documents other than 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 LeaseLeasehold Mortgages shall control;
(iib) such Mortgage shall be subject to all in the agreements, terms, covenants and conditions event of this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance any conflict or ambiguity between any provision of 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, 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 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 Leasehold Mortgages and the effective date thereof, rights of and (ii) such purchaser or transferee has delivered obligations of the Tenant to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
landlord under any lease encumbered thereby (B) “The purchaser or transferee of said Lease shallherein an "Encumbered Lease"), 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 Encumbered Lease 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.control; and
(c) If without limiting the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession generality of the Premises or any part thereof is required in order to cure such Event of Defaultforegoing, 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 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 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 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 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 acquiring Mortgagee, assignee or transferee leased premises consistent with the requirements 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 each Encumbered Lease).
(f) With respect to any non-monetary Event of Default, so . So long as a Mortgagee shall be diligently exercising its cure rights and 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 condition that would have applied if no Event of Default had occurred exists hereunder, or (ii) require such Mortgagee to cure any non- monetary Event event which with the giving of Default by Tenant that is not capable notice or passage 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 time could constitute an Event of Default; provided however, that then upon and in the event of the bona fide sale of the Corporation's interest in any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure the restaurant sites subject hereto to an entity unaffiliated third party in an arm's length transaction, the Leasehold Mortgage and all other than a Mortgagee or an Affiliate security interests of the Agent hereunder encumbering such Mortgagee restaurant site and personal property located thereat 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 10.04released. No release price shall be due, no Mortgagee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance Corporation pays any costs incurred by or on behalf of Agent in connection with any such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premisesrelease.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. SECTION 33.01. Tenant and every successor and assign of Tenant (aincluding, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) Tenant shall have is hereby given the right by Landlord in addition to any other rights herein granted, without Landlord's prior written consent, to mortgage or pledge its interest in this Lease to Lease(s), or any part or parts thereof, and any sublease(s) under one or more Mortgagees at leasehold Mortgage(s), and assign this Lease, or any time part or parts thereof, and from time to time during any sublease(s) as collateral security for such Mortgage (s), upon the Term, provided however, condition that (xall rights acquired under such Mortgage(s) 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, subject to each and operations all of the Project covenants, conditions and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 Lease, and such other to all rights as are expressly granted to Mortgagees hereunder. No Mortgage and interest of Landlord herein, none of which covenants, conditions or restrictions is or shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any waived by Landlord by reason of the agreements, terms, covenants and conditions of this Lease on the part of Tenant right given so to be performed; provided however, that if mortgage 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;, except as expressly provided herein. If Tenant and/or Tenant's successors and assigns (including, but not limited to, any sublessee of Tenant, but only with Tenant's prior consent) shall mortgage this 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 name and address of the Mortgagee and the pertinent recording date with respect to such Mortgage(s), Landlord agrees that so long as any such leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(ii) such Mortgage A. There shall be subject 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, after services of such notice upon it, to all remedy or cause to be remedies the agreementsdefaults complained of, termsand Landlord shall accept such performance by or at the instigation of such leasehold Mortgagee(s) as if the same had been done by Tenant.
C. Anything herein contained notwithstanding, covenants and conditions while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder(s) to Landlord, if any default shall occur which, pursuant to any provision of this Lease;
, entitled Landlord to terminate this Lease, and if before the expiration of thirty (iii30) days from the date of service of notice or termination upon such leasehold Mortgagee(s) such Mortgage leasehold Mortgagee(s) shall contain have notified Landlord of its desire to nullify such notice and shall be deemed have paid 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, or Landlord all Basic Rent and additional rent and 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 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 thereofpayments herein provided for, and (ii) such purchaser then in default, and shall have complied or transferee has delivered to shall commence the FCRHA a duplicate original or certified copy work 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 complying with all of the termsother requirements of this Lease, 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 if any are then 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 otherwisedefault, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 prosecute the same to completion with reasonable diligence diligence, then in such event Landlord shall not be entitled to terminate this Lease and continuity. The FCRHA any notice of termination theretofore given shall accept performance be void and of not effect.
D. If the Landlord shall elect to terminate this Lease by or on behalf of a Mortgagee reason of any covenantdefault of Tenant, condition 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 agreement on Tenant’s part cause to be performed hereunder with cured any then existing money defaults and meanwhile pay the same force and effect as though performed by Tenantother terms, so long as such performance is made in accordance with the terms conditions and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or Lease 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 Tenant's part thereof is required in order to cure such Event of 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 cure) a complied with and performed, other than past non-monetary Event of Default within defaults, and provided further that the time periods provided leasehold Mortgagee(s) shall forthwith take steps to acquire or sell Tenant's interest 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 by foreclosure of the additional cure period afforded Mortgagee under Section 10.04(cMortgage(s) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, otherwise 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 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 (continuity.
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 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 termination of this Lease 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 same conditions of title as this Lease is subject to Unavoidable Delays)on the date of the execution hereof, and to the FCRHA will not exercise rights, if any, of any remedies 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 termination and such written request is accompanied by payment to terminate Landlord of sums then due to Landlord under this Lease.
(2) Said Mortgagee(s) or its nominee(s) shall 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 or dispossess Tenant of possession thereof; provided howeverbut for such termination, that: (i) Mortgagee and in addition thereto, any expenses, including reasonable attorney's fees to which Landlord shall have first delivered to the FCRHA, in writing, been subjected by reason of such default.
(3) Said Mortgagee(s) or its agreement to cure (or caused nominee(s) shall perform and observe all covenants herein contained on Tenant's part to be cured)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 (ii) during transferred by Tenant to Landlord, as security under this Lease, shall thereupon be deemed to be held by Landlord as security for the period in which Mortgagee is curing (or causing such cure of) such Event performance of Default (and any foreclosure proceedings are pending), all of the other obligations of Tenant under this Lease are being duly performed the new lease.
(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)4) 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 Landlord shall not warrant possession of the Demised Premises or that it will not institute foreclosure proceedings orto Tenant under the new lease.
(5) Such new lease shall be expressly made subject to the rights, if such proceedings have been commencedany, that it has discontinued them, and, in such event, of Tenant under the Mortgagee shall have no further liability terminated lease.
(6) The Tenant 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 new lease shall have the unrestricted right same right, title, and interest in and to terminate the 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 modification does not decrease Tenant's obligations or decrease Landlord's rights pursuant to 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.
(eH. The proceeds from any insurance policies or arising from a condemnation are to be held by any leasehold Mortgagee(s) 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 distributed 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 Lease unless and until such time as it becomesLease, and then only for so long as it remains, the owner of but the leasehold estate created hereby and no performance by Mortgagee(s) may reserve its rights to apply to the mortgage debt all, or on behalf an part, of Tenant's are of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 proceeds pursuant to such MortgageeMortgage(s).
(jI. The leasehold Mortgagee(s) In addition to the other rights, notices and cure periods afforded to the holders shall be given notice of any Mortgagearbitration proceedings by the parties hereto, the FCRHA further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become a party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease leasehold Mortgagee(s) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims award or decision made in said arbitration proceedings.
J. Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee (s), an agreement prepared at the sole cost and expense of the nature set forth Tenant, in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and form satisfactory to serve as the Depository (subject to any terms, conditions and covenants applicable to such leasehold Mortgagee(s), between Landlord, Tenant and leasehold Mortgagee(s), agreeing to all of the provisions herein. The term "Mortgage", whenever used herein, shall include whatever security instruments are used in the locale of the Demised Premises, such as, without limitations, deeds of trust, security deeds and conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to timewell as financing statements, the FCRHA shall execute security agreements and deliver an instrument addressed other documentation required pursuant to the holder of Uniform Commercial Code. The term "Mortgage" whenever used herein, shall also include any Mortgage confirming that such holder is instruments required in connection with 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.sale-leaseback transaction. ARTICLE XXXIV TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES
Appears in 1 contract
Samples: Lease (Yardville National Bancorp)
Leasehold Mortgages. (a) Tenant shall 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 TenantXxxxxx’s interest in this Lease shall will be used only in connection with the costs of pre- 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, shall will by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 10.06 and such other rights as are expressly granted to Mortgagees hereunderin this Lease. No Mortgage shall will be effective, unless:
(i) at 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 shall will be subject to all the agreements, terms, covenants covenants, and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to will contain in substance the following provisions:
(A) : “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA Landlord under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee of said Lease Xxxxx at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default hereunder where no foreclosure sale is required, shallwill, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) Landlord. “The purchaser or transferee of said Lease shallXxxxx 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.”
(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 will not name, in such foreclosure action or otherwise, and in any event shall will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) Lease who are not Affiliates of Tenant.”
(F) . “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 Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee shall will give to the FCRHA Landlord written notice of the making of any Mortgage (which notice shall will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall will thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period shall will be deemed to have commenced) unless and until a copy thereof shall will have been given to each such Mortgagee. Upon receipt of such notice, each the Mortgagee shall specified in Section 10.04(j) below will 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) 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 will require more than the additional fifteen (15) 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall will have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall Landlord will accept performance by or on behalf of a such Mortgagee of any covenant, condition condition, or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall 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, 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 shall will notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall will have first delivered to the FCRHALandlord, 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 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 FCRHALandlord, 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 will have no further liability under such agreement from and after the date it delivers such notice to the FCRHA Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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 shall 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 shall 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 the FCRHA Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, 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 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 shall will be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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. (a) Tenant shall have From and after the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions Effective Date of this Lease;
(iii) such Mortgage shall contain and , Tenant shall be deemed permitted 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 grant a mortgage encumbering 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, shall, as a result of such sale or transfer, acquire any right, title or leasehold interest in or the Leased Property subject 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 only in accordance with the provisions contained following requirements:
(a) Landlord shall not under any circumstances be deemed to have joined in Article 10 the mortgage and/or subordinated or subjected its interest in and to the Leased Property to the lien and encumbrance 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”mortgage; and
(b) Tenant or the Mortgagee term of any such mortgage shall give to not exceed the FCRHA written notice term of this Lease and may only run concurrently with an extension of the making of any Mortgage (which notice shall contain term provided that Tenant has exercised its option to extend the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.term as provided in Section 2.3 hereof; and
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter mortgagee must be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.an institutional financial entity; and
(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 cure) a non-monetary Event of Default within Mortgage shall contain an express statement by the time periods provided in Section 10.04(c), mortgagee acknowledging that the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior fee simple title 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, Leased Property is not encumbered thereby 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 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 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 Landlord 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), thereunder; 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 the 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 Section 10.04 to Article shall be voidable at Landlord's option. Landlord agrees and acknowledges that the contrary, a Mortgagee mortgages reflected in the Third Party Documents and/or the Permitted Exceptions ("Existing Mortgages") are expressly permitted and allowed hereunder and shall not be required subject to cure any non-monetary Events of Default of Tenant that are not capable of being cured by such Mortgageethe terms, and if any Mortgagee, assignee conditions 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 limitations 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease Agreement (CNL Retirement Properties Inc)
Leasehold Mortgages. (a) Section 19.1 Tenant shall have and every successor and assign of Tenant is hereby given the right by Landlord in addition to any other rights herein granted, without Landlord's prior written consent, to mortgage or pledge (including conveyance by deed of trust) its interest interests in this Lease to Lease, or any part or parts thereof under one or more Mortgagees at leasehold Mortgage(s) and assign this Lease, or any time and from time to time during part or parts thereof, as collateral security for such Mortgage(s), upon the Term, provided however, condition that (xall rights acquired under such Mortgage(s) 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, subject to each and operations all of the Project covenants, conditions and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 Lease, and such other to all rights as are expressly granted to Mortgagees hereunder. No Mortgage and interests of Landlord herein, none of which covenants, conditions or restrictions is or shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any waived by Landlord by reason of the agreements, terms, covenants and conditions of this Lease on the part of Tenant right given so to be performed; provided however, that if mortgage 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;, except as expressly provided herein. If Tenant and/or Tenant's successors and assigns shall mortgage this 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 name and address of the Mortgagees) and the pertinent recording date with respect to such Mortgage(s) Landlord agrees that so long as any such leasehold Mortgage(s) shall remain unsatisfied of record or until written notice of satisfaction is given by the holder(s) to Landlord, the following provisions shall apply:
(ii) such Mortgage Section 19.1.1 There shall be subject 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 Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagees) shall thereupon have the same period of time provided to all Tenant pursuant to Article XXIII hereof (as extended by Article XX hereof), after service of such notice upon it, to remedy or cause to be remedied the agreementsdefaults complained of, termsand Landlord shall accept such performance by or at the instigation of such leasehold Mortgagees) as if the same had been done by Tenant.
Section 19.1.3 Anything herein contained notwithstanding, covenants and conditions while such leasehold Mortgages) remains unsatisfied of record, or until written notice of satisfaction is given by the holders) 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 expiration of thirty (iii30) days from the date of service of notice of termination upon such leasehold Mortgagees) such Mortgage leasehold Mortgagees) shall contain have notified Landlord of its (their) desire to nullify such notice and shall be deemed have paid 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, or Landlord all rent and 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 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 thereofpayments herein provided for, and (ii) such purchaser then in default, and shall have complied or transferee has delivered to shall commence the FCRHA a duplicate original or certified copy work of complying with ail of the instrument other requirements of sale or transfer to the FCRHAthis Lease, except as provided in Section 19.1.4.”
(B) “The purchaser or transferee of said Lease shall, effective from and after the effective date of the foreclosure or transfer if any are then 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 otherwisedefault, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 prosecute the same to completion with reasonable diligence diligence, then in such event Landlord shall not be entitled to terminate this Lease and continuity. The FCRHA any notice of termination theretofore given shall accept performance 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 on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part cause to be performed hereunder cured any then existing money defaults and meanwhile pay the rent and comply with and perform all of the same force and effect as though performed by Tenantother terms, so long as such performance is made in accordance with the terms conditions and provisions of this Lease. The FCRHA shall not object to any temporary entry onto the Premises by or Lease 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 Tenant's part thereof is required in order to cure such Event of 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 cure) a complied with and performed, other than past non-monetary Event of Default within defaults, and provided further that the time periods provided leasehold Mortgagees) shall forthwith take steps to acquire or sell Tenant's interest 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 by foreclosure of the additional cure period afforded Mortgagee under Section 10.04(cMortgage(s) to cure (or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of its intention to institute foreclosure proceedings, otherwise 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 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 (subject continuity.
Section 19.1.5 Landlord agrees that the name of the leasehold Mortgaqee(s) may be added to Unavoidable Delays), the FCRHA will not exercise "Loss Payable Endorsement" of any remedies and all insurance policies required to terminate 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 dispossess Tenant collateral document shall so provide.
Section 19.1.6 Landlord agrees that in the event of possession thereof; provided however, that: (i) Mortgagee shall 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 termination 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 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 default by Tenant that Landlord will enter into a new lease of Default by Tenant.
(ethe Demised Premises with the leasehold Mortgagees) Notwithstanding anything in this Section 10.04 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 contrarysame conditions of title as this Lease is subject to on the date of the execution hereof, a Mortgagee 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 not make written request upon Landlord for such new lease within fifteen (15)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;
Section 19.1.6.2 Said Mortgagees) or nominees) shall 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 required 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;
Section 19.1.6.3 Said Mortgagees) 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 terminated lease was obligated to perform under the terms of this Lease;
Section 19.1.6.4 The tenant under such new lease shall have the same right, title and interest in and to the 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 non-monetary Events of Default default of Tenant that referred to in Article 24 hereof;
Section 19.1.8 The proceeds from any insurance policies or arising from a condemnation are not capable of being cured to be held by such Mortgagee, any leasehold Mortgagees) and if any Mortgagee, assignee or transferee shall acquire the Premises distributed 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 Lease unless and until such time as it becomesLease, and then only for so long as it remains, the owner of but the leasehold estate created hereby and no performance by Mortgagees) may reserve rights to apply to the Mortgage debt all, or on behalf any part, of Tenant's share of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 proceeds pursuant 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 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 express terms and provisions of this Lease (e.g., condemnationMortgage(s);
(iiSection 19.1.9 The leasehold Mortgagees) The FCRHA shall consider in good faith be given notice of any modification to arbitration proceedings by the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenantparties hereto, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease leasehold Mortgagees) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims award or decision made in said arbitration proceedings; and
Section 19.1.10 Landlord shall, upon request, execute, acknowledge and deliver to each leasehold Mortgagee, an agreement prepared at the sole cost and expense of the nature set forth Tenant, in Article 7 and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and form satisfactory to serve as the Depository (subject to any terms, conditions and covenants applicable to such 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 the locale of the Demised Premises, such as, without limitation, deeds to secure debt, deeds of trust and conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to timewell as financing statements, the FCRHA shall execute security agreements and deliver an instrument addressed other documentation required pursuant 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 MortgageesUniform Commercial Code.
Appears in 1 contract
Leasehold Mortgages. (a) Tenant 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 mortgage or pledge its interest encumber by the Mortgage (defined in this Lease to one or more Mortgagees at the Credit Agreement; hereinafter, the "Leasehold Mortgage") as security for any time and from time to time during the Term, provided however, that (x) until Final Completion has occurreddebt, 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 Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 fixtures now or hereafter placed on the Site; in all respects, however (except as herein expressly provided), subordinate and inferior to Ground Lessor's rights, title, privileges, liens and interests as provided in this Ground Lease; and Ground Lessee shall, in no event, have the right to, in any way, encumber Ground Lessor's fee simple title and reversionary interest in and to the Site. Ground Lessee shall not amend or to said Lease otherwise modify the Leasehold Mortgage except as permitted by the Credit Agreement 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 FCRHAOperative Documents.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or The Agent (defined in the Mortgagee shall give to Credit Agreement) as mortgagee under the FCRHA written notice of the making of any Leasehold Mortgage (which notice shall contain the name and office address of the "Leasehold Mortgagee") promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgageemay, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenantits option, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including at any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof before this Ground Lease shall have been given terminated, pay any amount or do any act or thing required of Ground Lessee by the terms of this Ground Lease and shall be thereby subrogated to each such Mortgagee. Upon receipt any and all of such notice, each Mortgagee shall have the right (but not the obligation) to remedy such Event rights 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with Ground Lessee under the terms and provisions of this Ground Lease. The FCRHA ; and all payments so made and all acts or things so done and performed by the Leasehold Mortgagee shall not object be as effective to prevent a forfeiture of the rights of Ground Lessee as the same would have been if done and performed by Ground Lessee instead of the Leasehold Mortgagee.
(c) In the event of the termination of this Ground Lease or of any temporary entry onto the Premises by or on behalf of Mortgagee new lease made pursuant to the extent necessary provisions of this paragraph (e) prior to effect its stated expiration date, Ground Lessor will notify the Leasehold Mortgagee and certify in writing to the Leasehold Mortgagee all amounts then due to Ground Lessor under this Ground Lease (or such Mortgagee’s cure rightsnew lease), provided such entry is in compliance with all Applicable Laws. If possession and Ground Lessor will enter into a new lease of the Premises 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 part thereof is required new lease) at the same Rent and upon all of the other terms, provisions, covenants and agreements in order to cure such Event of Defaultthis Ground Lease contained, upon condition that (i) the Leasehold Mortgagee shall notify make written request to Ground Lessor for such new lease not later than thirty (30) days from the FCRHA within date such notice by Ground Lessor is given to the applicable period afforded Leasehold Mortgagee, (ii) the Leasehold Mortgagee shall pay to Mortgagee hereunderGround Lessor at the time of the execution and delivery of said new lease all sums which, as at the date of execution and delivery of such new lease, were past due and owing under this Ground Lease, and (iii) such new lease shall require the lessee thereunder to perform any obligation of Ground Lessee under this Ground Lease not then performed.
(d) During any period in which MortgageeGround Lessor will not modify, in good faith and acting with reasonable diligence and continuityamend, is attempting cancel or in accept a surrender of this Ground Lease, nor shall this Ground Lease be terminated by Ground Lessee (including a termination pursuant to the 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(cexpress provisions hereof), the FCRHA will not exercise nor shall Ground Lessee elect any remedies option granted 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 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 it 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 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 Ground 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 all the Leasehold Mortgagee. Any such modification, amendment, cancellation, surrender, termination or option election without the written consent of the Leasehold Mortgagee shall be void and of no force or effect.
(e) No union of the interests of Ground Lessor and Ground Lessee shall result in a Mortgage, the FCRHA will neither agree to any material modification or material amendment merger of this Lease, nor accept a surrender or cancellation of this Ground Lease except and the fee interests in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to Site without the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder prior written consent of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesLeasehold Mortgagee.
Appears in 1 contract
Leasehold Mortgages. To further secure the performance and payment of the obligations of Corporation under the Loan Documents, Corporation grants to Agent a present security interest in its leasehold interests in 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 recorded or filed in the appropriate public records to provide record notice to all third persons. Notwithstanding any term or covenant of the Leasehold Mortgages to the contrary, the following provisions shall apply thereto:
(a) Tenant shall have in the right to mortgage event of any conflict or pledge its interest in this Lease to one or more Mortgagees at ambiguity between 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 shall be used only in connection with the costs of pre- development, development, construction, carry, and operations provision of the Project Leasehold Mortgage and (y) no holder the provisions of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 Agreement and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under any of the agreementsother Loan Documents, terms, covenants the provisions hereof 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 Loan Documents other than 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 LeaseLeasehold Mortgages shall control;
(iib) such Mortgage shall be subject to all in the agreements, terms, covenants and conditions event of this Lease;
(iii) such Mortgage shall contain and shall be deemed to contain in substance any conflict or ambiguity between any provision of 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, 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 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 Leasehold Mortgages and the effective date thereof, rights of and (ii) such purchaser or transferee has delivered obligations of the Tenant to the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
landlord under any lease encumbered thereby (B) “The purchaser or transferee of said Lease shallherein an "Encumbered Lease"), 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 Encumbered Lease 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.control; and
(c) If without limiting the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 Mortgagee’s cure rights, provided such entry is in compliance with all Applicable Laws. If possession generality of the Premises or any part thereof is required in order to cure such Event of Defaultforegoing, 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 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 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 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 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 acquiring Mortgagee, assignee or transferee leased premises consistent with the requirements 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 each Encumbered Lease).
(f) With respect to any non-monetary Event of Default, so . So long as a Mortgagee shall be diligently exercising its cure rights and 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 condition that would have applied if no Event of Default had occurred exists hereunder, or (ii) require such Mortgagee to cure any non- monetary Event event which with the giving of Default by Tenant that is not capable notice or passage 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 time could constitute an Event of Default; provided however, that then upon and in the 7 event of the bona fide sale of the Corporation's interest in any assignment of this Lease resulting from any such foreclosure or transfer in lieu of foreclosure the restaurant sites subject hereto to an entity un-affiliated third party in an arm's length transaction, the Leasehold Mortgage and all other than a Mortgagee or an Affiliate security interests of the Agent hereunder encumbering such Mortgagee restaurant site and personal property located thereat 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 10.04released. No release price shall be due, no Mortgagee shall become liable under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance Corporation pays any costs incurred by or on behalf of Agent in connection with any such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premisesrelease.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) Tenant shall have permitted or allowed in accordance with the right to mortgage or pledge its interest in applicable term and provisions of this Lease to one or more Mortgagees at any time and Lease, may, without Landlord’s consent, from time to time during pledge, mortgage or encumber the 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 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, shall by virtue thereof, acquire any greater rights hereunder than leasehold estate demised to 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall Any such pledge, deed of trust, mortgage or encumbrance upon the he extended modified, amended demised hereunder as the same may be effectiveextended, unless:
(i) at modified, the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Leasehold estate demised to Tenant under any of the agreements, terms, covenants and conditions of this Lease on the part of Tenant to be performedhereunder; provided however, that each Leasehold Mortgagee shall be an Institutional Lender or if such Event not, then prior to the delivery of Default exists, but this Lease has each Leasehold Mortgage to a Leasehold Mortgagee which is not been terminated and such Event of Default will be cured simultaneously with the granting of such Mortgage or with the proceeds from such Mortgagean Institutional Lender, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
(ii) such Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance 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 written waiver and acknowledgement, which may be relied upon by Tenant’s prospective lender under a proposed Leasehold Mortgage, of this LeaseTenant’s compliance with the “Minimum Ratio Requirements” (as hereinafter defined) by giving written notice to Landlord of Tenant’s intent to incur indebtedness that will be secured by a new Leasehold Mortgage. The FCRHA Tenant shall not object incur any such indebtedness or give the applicable Leasehold Mortgage until it has obtained such waiver and acknowledgement as aforesaid. Such written notice to any temporary entry onto Landlord will be accompanied by a certificate of an officer of Tenant wherein Tenant represents and warrants to Landlord that Tenant’s obtaining the Premises loan to be secured by such new Leasehold Mortgage will not cause Tenant to violate the Minimum Ratio Requirements. Landlord shall deliver the aforesaid written waiver and acknowledgement to Tenant (or on behalf Tenant’s prospective lender, if requested), in the form reasonably requested by Tenant or such prospective lender, within thirty (30) days of Mortgagee to 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 a request by Landlord, provide Landlord with copies of financial statements, certified by the extent necessary to effect such Mortgagee’s cure rightsChief Financial officer of Tenant, provided such entry is in compliance with all Applicable Laws. If possession of the Premises or any part thereof is required as requested by Landlord in order to cure enable Landlord to make the above determination. Upon Landlord’s delivery of such Event of Defaultwaiver and acknowledgement, Mortgagee Tenant shall notify be entitled to incur the FCRHA within the applicable period afforded indebtedness in question and deliver a Leasehold Mortgage 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 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 secure 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 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 Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after within the 180 day period following Landlord’s 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 waiver 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 Tenantacknowledgement.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) Tenant
7.1.1 Except as provided in Section 7.1.2 below, the Concessionaire shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessnot:
(i) at the time of making such Mortgage there is no existing and unremedied Event of Default on the part of Tenant under engage in any financing or other transaction creating any mortgage or security interest upon its leasehold interest in any of the agreements, terms, covenants and conditions of this Lease on Premises or the part of Tenant to be performedPremises Improvements; 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 shall place or suffer to be subject to all the agreements, terms, covenants and conditions of 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 placed any foreclosure sale hereunder, lien 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 right, title or encumbrance upon its leasehold 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
Premises Improvements; (diii) During suffer any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting levy or in the process of curing (or caused attachment to be commenced such cure) a non-monetary Event of Default within the time periods provided made on its leasehold interest 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(cPremises or any Premises Improvements; or (iv) to cure (pledge, mortgage, assign, encumber, or caused to be cured) the Event of Default, Mortgagee may send the FCRHA notice of otherwise grant a security interest in 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 leasehold interest in any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall 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 Premises, any Premises Improvements, or the rents, issues, profits or other obligations income of Tenant under this Lease are being duly performed (any of the Premises or any of 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 any encumbrance permitted by the applicable Lease.
7.1.2 During the Term, the Concessionaire may encumber by mortgage, deed of trust or security agreement to secure one or more loans (in each case, a “Leasehold Mortgage”) its leasehold interest in the Premises, the Premises Improvements and/or the Gross Revenues. The proposed holder of any such Leasehold 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, 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 BOR’s consent to such Leasehold Mortgage. Notwithstanding any foreclosure, the Concessionaire shall remain liable for the performance of all Additional Costs the terms, covenants, and Impositions due hereunder (including further, without limitationconditions of the Operative Agreements that by the terms thereof are to be carried out and performed by the Concessionaire.
7.1.3 No Leasehold Mortgage shall extend to or affect the fee, the payment of any Impositions reversionary interest, 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 estate of the aforementioned agreement, BOR in the Mortgagee may notify the FCRHA, in writing, that it has relinquished possession Premises or Premises Improvements. No Leasehold Mortgage shall be binding upon any of the Premises or that Premises Improvements until it will not institute foreclosure proceedings or, if such proceedings have is approved by the BOR and a copy thereof has 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 delivered to the FCRHA (except for any obligations assumed by BOR.
7.1.4 The Concessionaire shall immediately notify 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 BOR promptly of any uncured Event of Default by Tenant.
lien or encumbrance on (ea) 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, (Bb) 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 Premises Improvements or (iic) 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of TenantConcessionaire’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien (or Premises Improvements, whether created by act of the Concessionaire or otherwise, of which the Concessionaire has obtained the consent of any Mortgagees that are senior to such Mortgagee)notice.
7.1.5 If an Approved Mortgagee or an Approved Mortgagee Affiliate (jas defined below) In addition 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 Approved Mortgagee or Approved Mortgagee Affiliate provides written notice to the BOR within two (2) Business Days of such acquisition. The acquisition by anyone other rights, notices and cure periods afforded to than an Approved Mortgagee or an Approved Mortgagee Affiliate of the holders Concessionaire’s leasehold interest in (a) any of the Premises or (b) any Mortgage, the FCRHA further agrees that:
(i) without Premises Improvements shall require the prior written consent approval of each holder the BOR. No agent or nominee shall be appointed to operate and manage any portion of a Mortgagethe Premises or the Premises Improvements without obtaining the prior written approval of the BOR. Such approval 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 FCRHA will neither agree to BOR may withhold approval of any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with purchaser (other than the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the Lease requested by a Approved Mortgagee or prospective an Approved Mortgagee as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iiiAffiliate) the holder of the Mortgage most senior Concessionaire’s leasehold interest in lien priority on this Lease shall have the right to participate Premises or any Premises Improvements if the BOR determines in its sole discretion that such purchaser’s acquisition would in any dispute resolution proceedings under Article 34 hereof;
(iv) way impair the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate in the adjustments operations of any insurance claims of the nature set forth Institution. As used in this Article 7 VII, “Approved Mortgagee Affiliate” means a corporation, limited liability company, or other entity that Controls, is owned and Article 8 hereof Controlled by, or is under common ownership and condemnation awards of the nature set forth in Article 9 hereof and to serve as the Depository (subject to any termsControl with, 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 MortgageesApproved Mortgagee.
Appears in 1 contract
Samples: Master Concession Agreement
Leasehold Mortgages. (a) Tenant shall have the right throughout the Term of this Lease to mortgage or pledge its interest in this Lease and its interest in the Building with a leasehold mortgage or similar document (“Leasehold Mortgage”) to one or more Mortgagees 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 address of the leasehold mortgagee (the “Leasehold Mortgagee”). So long as any Leasehold Mortgage shall be a lien upon Tenant’s leasehold estate, Landlord shall notify such Leasehold Mortgagee of any 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 request therefore certifying as follows: (i) that this Lease is unmodified and in full force and effect (or, if there has been a modification, stating the nature thereof and that the Lease is in full force and effect as modified); (ii) that to the best of the Landlord’s knowledge, there are no uncured defaults on the part of the Tenant (or, if any such defaults exist, the special nature and extent thereof); and (iii) such other matters as the 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 during to subordinate the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s rights and interest of Landlord in this Lease shall be used only in connection with the costs of pre- development, development, construction, carry, and operations of fee to the Project and (y) no holder lien of any MortgageLeasehold Mortgage placed by Tenant upon the Premises. If required by the lending institution, nor anyone claiming byXxxxxxxx further agrees to join in the execution of such documents as may be necessary, through or under but shall not thereby incur any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right personal liability. Landlord agrees to provide Leasehold Mortgagee notice and opportunity 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at the time of making such Mortgage there is no existing and unremedied Event Events 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease Agreement
Leasehold Mortgages. (a) Tenant 3 6.1.1 Tenant, and its successors and assigns permitted hereunder shall have the 4 right to mortgage or and pledge its interest their respective interests in this Lease (“Leasehold Mortgage”) to a 5 lender who is not affiliated with Tenant (“Leasehold Mortgagee”), in accordance with and subject 6 to the terms, conditions, requirements and limitations of this Section 6. Landlord 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 one or more Mortgagees at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurred11 contrary, all proceeds from any loan secured by Tenant’s interest in this Lease Leasehold Mortgages shall be used only in connection with expressly subordinate and subject to 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, 12 covenants and conditions of this Lease;
(iii) such Mortgage shall contain , and at all times shall be deemed inferior and subject 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, 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 prior 13 right, title or and 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 Landlord herein. Notwithstanding anything 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 shallcontrary set forth in 14 this Lease, 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 event shall 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 Property or the proceeds Premises be subordinate or 15 subject to any Leasehold Mortgage.
16 6.1.2 A notice of any condemnation award toward the payment of the sum secured by this mortgage but only each Leasehold Mortgage shall be delivered to the extent such proceeds are required for and applied to the demolition, repair or restoration of the mortgaged premises Landlord as 17 provided 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 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 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 unreasonably withheld or delayed. Nevertheless, the holder Section 18.14 of this mortgage agrees from time to 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 FCRHA written notice of the making of any Mortgage (which notice shall contain Lease specifying the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at the address of such Leasehold 18 Mortgagee set forth in the notice from such Mortgagee or from Tenant, and otherwise in the manner provided by Article 25, to which notices shall be sent. Landlord shall be furnished a copy of each such recorded 19 Leasehold Mortgage within thirty (30) days of the effective date of any Leasehold Mortgage.
20 6.1.3 If Tenant, or Xxxxxx’s successors or permitted assigns, shall mortgage this 21 Lease, then so long as any such Leasehold Mortgage shall remain unsatisfied of record and Tenant 22 shall have properly delivered notice given by to Landlord in compliance with Section 18.14 hereof with 23 respect to such Leasehold Mortgagee, the FCRHA to following provisions shall apply:
24 6.1.3.1. Landlord, upon serving upon Tenant hereunder (including any notices notice of Event(s) an Event of 25 Default or any other notice under the provisions of this Lease) at the same time as and whenever any , shall also serve a copy of such notice shall thereafter be given by the FCRHA to Tenant26 upon Leasehold Mortgagee, and no such notice by the FCRHA shall be deemed to have been duly given as to Tenant (and no grace or cure period shall be deemed to have commenced) the 27 Leasehold Mortgagee unless and until a copy thereof shall have has been given to each such Mortgagee. Upon receipt of such notice, each Mortgagee shall have so served upon 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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.Leasehold
Appears in 1 contract
Samples: Operating Lease
Leasehold Mortgages. (a) Tenant shall have and every successor and assign of Tenant is hereby given the right to mortgage or pledge its interest in this Lease to one or more Mortgagees (exercisable at any time and from time to time during the Principal Term) by Landlord, provided howeverto mortgage their interests in 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 (xall rights acquired under such leasehold mortgages) until Final Completion has occurredshall be subject to each and all of the covenants, conditions and restrictions set forth in this Lease Agreement, and to all proceeds from any loan secured 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 '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 be used only in connection with mortgage this leasehold and if the costs of pre- development, development, construction, carry, and operations of the Project and (y) no 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"), nor anyone claiming by, through or under any so long as such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Leasehold Mortgage shall be effective, unlessremain unsatisfied of record or until notice of satisfaction of such Leasehold Mortgage is given by the holder to Landlord:
(ia) at the time of making such Mortgage there is There shall be no existing and unremedied Event of Default on the part of Tenant under any of the agreementscancellation, terms, covenants and conditions surrender or modification of this Lease on the part Agreement by joint action of Landlord and 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 the mortgagee hereunder are, without the necessity for the execution prior consent in writing 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 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 unreasonably withheld or delayed. Nevertheless, the holder of this mortgage agrees the Leasehold Mortgage, and no merger shall result from time to time upon request the acquisition by, or devolution upon, any one entity of the fee and without charge to execute, acknowledge. and deliver any instruments reasonably requested by leasehold estates in the FCRHA to evidence the foregoingPremises.”
(b) Landlord shall, upon serving Tenant or the Mortgagee shall give to the FCRHA written with any notice of default or other notice provided for in this Lease Agreement, simultaneously serve a copy of such notice upon the making of any Mortgage (which notice shall contain the name and office address holder of the Mortgagee) promptly after the execution Leasehold Mortgage; and delivery no such notice 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, after service of such notice upon it, to remedy or cause to be remedied the defaults complained of, and a duplicate original Landlord shall accept such performance by or certified copy thereofat the instigation of the holder of the Leasehold Mortgage as if the same had been done by Tenant.
(c) If the FCRHA any default by Tenant shall have received timely the notice described in Section 10.04(b) aboveoccur which, the FCRHA shall give pursuant to each Mortgageeany provision of this Lease Agreement or law, at the address of such Mortgagee set forth in the notice from such Mortgagee or from Tenantentitles Landlord to terminate this Lease Agreement, and otherwise in if, before the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 expiration of ten (10) Business Days more days from the date of service of notice of termination upon the holder of the 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 the case of a monetary Event of Defaultthis Lease to which are then in default, and shall have complied (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 curethe work of complying) 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 which are being duly performed then in default, and shall prosecute the same 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; 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.
(d) If any default by Tenant shall occur which, pursuant to any provision of this Lease Agreement or law, entitles Landlord to terminate this Lease Agreement, and Landlord elects to terminate this Lease Agreement, the holder of the Leasehold Mortgage 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 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 its stated expiration date for any reason whatsoever (including, without limitation, payment by operation of all Additional Costs law or the rejection of this Lease Agreement or any New Lease by Tenant as debtor in possession or any trustee of Tenant in any bankruptcy, reorganization, arrangement or similar proceeding), Landlord shall enter into a new lease ("New Lease") of the Premises with the 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 its nominee) , for the remainder of the Term of this Lease, effective as of the date of such termination, at the rent and Impositions due hereunder upon the same terms, provisions, covenants and agreements as contained in this Lease Agreement (including furtherwithout limitation all renewal options and/or rights of first refusal), without limitationand 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 to the payment rights, if any, of any Impositions parties then in possession of any part of the Premises, provided:
(i) The holder (or payments 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 installments 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 Agreement but for Impositions are being made such termination, less the net income received by Landlord subsequent to a Depository the date of termination of this Lease Agreement pursuant to subparagraph (v) (C) below and prior to the execution and delivery of the New Lease.
(iii) If more than one holder makes request upon Landlord in accordance with Article 5 above)the provisions of this subparagraph (e) within , the New Lease shall be 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 of any applicable grace periods. However, at any time after Leasehold Mortgage which is subordinate in lien shall be void and of no force and effect.
(iv) Upon the execution and delivery of the aforementioned agreementNew Lease, the Mortgagee all subleases which theretofore 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 assigned and transferred to Landlord shall have no further liability under such agreement from thereupon be assigned and after the date it delivers such notice transferred (without recourse) by Landlord to the FCRHA (except for any obligations assumed by Tenant under the Mortgagee New Lease; and accruing prior to the date it delivers such notice), and, thereupon, Tenant under the FCRHA New Lease shall have the unrestricted benefit of all of the right, title, interest, powers and privileges of Tenant under this Lease 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 in right to terminate this Lease, dispossess Tenant the lien of the Premises holder of the 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 take any other action such sublease so assigned, Landlord will not modify or amend any of the FCRHA deems appropriate by reason terms or provisions thereof, during the period between the expiration or termination of any uncured Event this Lease Agreement and the execution and delivery of Default by Tenantthe New Lease.
(ev) Notwithstanding anything in this Section 10.04 to Following 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 termination of this Lease after such foreclosure Agreement or transfer in lieu any New Lease and until the right of foreclosure the holders of all Leasehold Mortgages to enter into a New Lease shall have expired without any New Lease having been executed:
(provided however, that the FCRHA may continue to pursue any and all remedies at law A) Landlord shall not alter or in equity against any way demolish the defaulting Tenantbuildings or other improvements situate on the Premises; and, unless Tenant was released of such obligationsduring said period, provided furtherLandlord shall not remove, that replace or change any such remedies may furniture, furnishing, fixtures or equipment located on the Premises.
(B) Landlord shall not involve terminate any sublease or the disturbance of quiet possession rights of any Mortgagee, assignee or transferee 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 under this Lease or a 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) With respect to any non-monetary Event The holder of Default, so long as a Mortgagee the Leasehold Mortgage shall be diligently exercising its cure rights under this Section 10.04 with respect thereto within given notice of any arbitration proceedings by the applicable cure periods set forth above parties hereto, and so long as, if possession 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 Premises is required Leasehold Mortgage shall not elect to cure the same, Mortgagee shall be taking the actions required by clause (d) of this Section 10.04intervene or become a party to such proceedings, 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 holder of the PremisesLeasehold Mortgage shall receive notice of, (B) re-enter the Premises, and a copy of any award or (C) terminate this Lease or the leasehold estate (such rights described decision made 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 10.05said arbitration proceedings.
(g) The exercise 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 manner alienate or dispose of title to, or any interest in, any portion of the Premises or in this Lease 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 rights or remedies such payment.
(k) The making of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, Leasehold Mortgage shall not be deemed to constitute an Event of Default; provided however, that any assignment of this Lease resulting from 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 any Leasehold Mortgage, or transfer the assignment of this Lease Agreement and of the leasehold estate hereby created under any instrument of assignment in lieu of foreclosure to an entity other than a Mortgagee or an Affiliate of such Mortgagee any Leasehold Mortgage, shall be deemed to be an Event assignee of Default under this Lease unless such assignment meets Agreement and of the requirements of Section 10.03leasehold estate hereby created.
(hl) Except This Lease may be assigned to any party without Landlord's consent as provided a result of a foreclosure of the Leasehold Mortgage or as the result of a deed or assignment in clause lieu of foreclosure of a Leasehold Mortgage.
(dm) No holder of this Section 10.04, no Mortgagee a Leasehold Mortgage shall become liable have any personal liability for performance of Tenant's obligations under the provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the holder acquires title to Tenant's leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or assumes possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) A. Notwithstanding any other provision hereof to the contrary, Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and right, from time to time during the Termtime, provided howeverto convey or encumber by mortgage, that (x) until Final Completion has occurreddeed to secure debt, all proceeds from any loan secured by deed of trust, or similar financing instrument, Tenant’s leasehold estate and interest in this Lease and to the Demised Premises or any 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 used only in connection with subject to each and all of the costs of pre- developmentcovenants, development, construction, carryconditions, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 restrictions set forth in this Section 10.04 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 to so mortgage such other rights interest in this Lease, except as are expressly granted to Mortgagees hereunderprovided herein. No The execution and delivery of a Leasehold Mortgage shall not, in and of itself, be effectivedeemed to constitute an assignment or transfer of this Lease nor shall the Leasehold Mortgagee, unless:
(i) at as such, be deemed an assignee or transferee of this Lease so as to require such Leasehold Mortgagee to assume the time performance 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 or agreements on the part of Tenant to be performedperformed 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 to the contrary:
1) No voluntary termination by Tenant of this Lease shall be effective unless consented to in writing by such Leasehold Mortgagee; and any material amendment or material modification of this Lease or the exercise by Tenant of any option to terminate this Lease, without the written consent of such 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 receipt by such Leasehold Mortgagee of such written request [which written request shall make specific reference to this Section 47(b)(l)], the Leasehold Mortgagee shall be deemed to have 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 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 (5) 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 cure is of a nature that it cannot be effected within such a period of time, no Event of Default exists, but this Lease has not shall have been terminated and deemed to have occurred hereunder as long as such Leasehold Mortgagee shall have commenced to cure such Event of Default will within such period and shall thereafter be cured simultaneously with taking diligent steps to effect the granting same). Landlord shall accept performance of any and all of Tenant’s obligations hereunder, including the obligations to pay Rent, from any such Leasehold Mortgagee and the performance of such Mortgage or with obligation by such Leasehold Mortgagee shall be deemed to have been a cure effected by Tenant. Landlord hereby consents to the proceeds from 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 Event of Default by foreclosing its Leasehold Mortgage, Tenant may nevertheless enter into such Mortgage for obtaining possession of the Demised Premises and performing all of Tenant’s interest in obligations hereunder.
3) Notwithstanding anything contained herein to the contrary, if it shall be necessary for any such Leasehold Mortgagee to obtain possession of the Demised Premises to effect any such cure of an Event of Default by Tenant under this Lease;
, 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 such Leasehold Mortgagee has taken steps to foreclose its Leasehold Mortgage, or cancel its sublease or other financing arrangement, necessary to obtain possession of the Demised Premises, (ii) such Mortgage the Rent shall be subject paid and all other provisions and requirements of this Lease 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 or cancellation and attempting to effect a cure of 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 the event such Leasehold Mortgagee shall otherwise acquire possession of the Demised Premises, to continue such possession, if the Event of Default in respect to which Landlord shall have given the notice shall be remedied.
4) 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 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 (10) 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, (ii) a written, enforceable agreement by which Leasehold Mortgagee agrees to be bound by the terms, provisions and conditions hereof, in a form reasonably satisfactory to Landlord; and (iii) if Leasehold Mortgagee is not an individual, reasonable evidence of the authority of such Leasehold Mortgagee to assume this Lease; and
b. Such Leasehold Mortgagee or its nominee shall pay to Landlord at the time of the execution and delivery of said new lease any and all sums which would at that time be due 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 conditions which Tenant, under the terminated Lease, was obligated to perform. The tenant under such new lease shall have the same right, title and interest in and to the buildings and improvements on the Demised Premises as Tenant had under the terminated lease.
5) No Leasehold Mortgagee shall become liable under the agreements, terms, covenants and or conditions of this Lease;
(iii) Lease unless and until it becomes the owner of the leasehold estate. If Leasehold Mortgagee or its nominee shall so become the owner of the leasehold estate, then any assignment of the entire interest in this Lease by Leasehold Mortgagee or such Mortgage shall contain and nominee shall be deemed subject to contain in substance Section 14 of this Lease, except that the following provisions:
(A) “This instrument is executed upon condition that (unless this condition Leasehold Mortgagee or such nominee shall be released or waived by the FCRHA under said Lease or its successors in interest by an instrument in writing) no purchaser or transferee relieved of said Lease at any foreclosure sale hereunder, or other transfer authorized by law by reason of a default further liability which may accrue hereunder where no foreclosure sale is required, shall, 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 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 such assignment, provided that the foreclosure or transfer in lieu assignee shall execute and deliver to Landlord a recordable instrument of foreclosure, assumption wherein such assignee shall assume and agree to perform all of and observe the terms, covenants and conditions of the in this 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder and observed; provided however, that the foregoing provision shall not apply (a) to any subsequent assignments of the leasehold estate, or (b) if Tenant or an affiliate of Tenant is the Leasehold Mortgagee or its nominee.
6) 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 created, the holder of the Leasehold Mortgage recorded prior in time shall be vested with the same force and effect as though performed by Tenantrights under Section 47(b)(4) of this Lease to the exclusion of the holder(s) of the other Leasehold Mortgages; provided, so long as however, that if the holder of a Leasehold Mortgage recorded prior in time to 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 performance is made in accordance 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. 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 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunder.
(d7) During Nothing contained herein shall require any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting Leasehold Mortgagee or in the 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), 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 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 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 nominee 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 Tenanthereunder, unless Tenant was released of such obligations, Leasehold Mortgagee or its nominee enters into a new lease with Landlord as provided further, that any such remedies may not involve the disturbance of quiet possession of any Mortgagee, assignee or transferee of the Premises for under this Lease or a New Lease)subsection 4 above.
(f) With respect to any non-monetary Event of Default, so long as a Mortgagee shall be diligently exercising its cure rights under C. Notwithstanding anything contained in 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 46 to the other rightscontrary, 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease Landlord shall have the right to participate in approve or decline any dispute resolution proceedings under Article 34 hereof;
(iv) the holder new tenant which obtains possession or seeks to obtain possession of the Mortgage most senior in lien priority on Demised Premises pursuant to 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, 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 MortgageesSection 46.
Appears in 1 contract
Leasehold Mortgages. 43.01. As used herein, the term “Leasehold Mortgage” shall mean any 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 (aincluding a purchase-money or other promissory note) Tenant shall have encumbering Tenant’s leasehold estate hereunder, as entered into, renewed, modified, consolidated, amended, extended or assigned from time to time during the right Term. Notwithstanding anything contained in Article 7 or any other provision of this lease to mortgage or pledge its the contrary, Tenant’s interest in this Lease to one or more Mortgagees lease and the leasehold interest created hereby may at any time and from time to time during be, directly or indirectly, subjected to one or more Leasehold Mortgages upon prior notice to Landlord, but without the Termconsent of Landlord, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by and Tenant’s interest in this Lease shall lease may at any time, directly or indirectly, 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, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy Tenant’s defaults or become entitled assigned to a New Lease Leasehold Mortgagee (as more fully set forth hereinafter defined) as collateral security; provided, that notwithstanding anything to the contrary contained in this Section 10.04 and such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
Article 43 or elsewhere in this lease: (i) at 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 Leasehold Mortgage or with any extension thereof shall be a lien or encumbrance upon the proceeds from such Mortgageestate or interest of Landlord in and to the Premises (collectively, Tenant may nevertheless enter into such Mortgage for Tenant’s interest in this Lease;
the “Superior Interests”); (ii) such Leasehold Mortgage shall be subject and subordinate at all times to all the agreements, terms, covenants and conditions of this Lease;
such Superior Interests; (iii) such Mortgage shall contain and there shall be deemed no obligation of Landlord whatsoever 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 subordinate 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, shall, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree Superior Interests to any material modification Leasehold Mortgage or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms to “join in” any Leasehold Mortgage; and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 (Citigroup Inc)
Leasehold Mortgages. a. If Lessee mortgages or provides a deed of trust encumbering its leasehold estate (a) Tenant a “Mortgage”), the Lessee shall have notify Lessor in the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and from time to time during manner provided for the Termgiving of notice, 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 pre- development, development, construction, carry, and operations of the Project execution of such Mortgage and name the place for service of notice upon the mortgagees, beneficiaries or holders of indebtedness (y) no holder the “Leasehold Mortgagee”). In such event, Lessor agrees, subject to the provisions of any Mortgagethe Estoppel Certificate, nor anyone claiming by, through for the benefit of such mortgagees or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessholders of indebtedness:
(i) at 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 That Lessor will give 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 Leasehold Mortgagee simultaneously with the granting service on Lessee, a duplicate 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 any and all default notices given by Lessor to Lessee. Such notices shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 manner 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 the mortgagee hereunder are, without the necessity for the execution of any further documents, be 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 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 unreasonably withheld or delayed. Nevertheless, the holder notice provisions of this mortgage agrees from time to 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 FCRHA 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 duplicate original or certified copy thereofLease.
(cii) If the FCRHA 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 Lessee 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 timely notice of default, and the notice described in Section 10.04(b) above, Leasehold Mortgagee commences to eliminate the FCRHA shall give to each Mortgagee, at the address cause of such Mortgagee set forth in the notice from such Mortgagee default and proceeds diligently and with reasonable dispatch to so cure.
(iv) That no rights, privilege or from Tenantoption to cancel or terminate this Lease, and otherwise in the manner provided by Article 25available to Lessee, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) exercised effectively unless and until a copy thereof shall have been given to each such 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 (joined 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 TenantLeasehold Mortgagee.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at That no liability for the request payment of Tenant from time to time, rental or the FCRHA shall execute and deliver an instrument addressed to the holder performance of any Mortgage confirming that of Lessee’s covenants and agreements shall attach to or be imposed upon the Leasehold Mortgagee, unless such holder is a Leasehold Mortgagee forecloses its interest and entitled to becomes the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of MortgageesLessee under this Lease.
Appears in 1 contract
Samples: Lease Agreement (Intrepid Technology & Resources, Inc.)
Leasehold Mortgages. (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 of the provisions of the leasehold mortgage; and (ii) if there is a conflict between the leasehold mortgage and this Lease, the terms of this Lease shall control.
b) If Tenant, or pledge its Tenant’s successors or assignees, mortgages or grants to a leasehold mortgagee or lender a security interest in this Lease to one or more Mortgagees 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 shall be used only 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 connection therewith together with a written notice specifying such mortgagee’s or lender’s name and address, so long as such leasehold mortgage or security agreement shall remain unsatisfied of record or until written notice of satisfaction is given by the costs of pre- developmentholder to Landlord, 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, following provisions shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessapply:
(i) at the time of making such Mortgage there is There shall be no existing and unremedied Event of Default on the part of Tenant under any of the agreementscancellation, termssurrender, covenants and conditions acceptance or surrender, amendment, or modification of this Lease on by joint action of Landlord and Tenant, or by Tenant alone, without in each case, written notice to the part holder. Nor shall any merger result from the acquisition by, or devolution upon, any one entity of Tenant to be performed; provided however, that if such Event the fee and the leasehold estates 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;Premises.
(ii) Landlord shall, upon serving Tenant with any notice or other communication, whether of default or any other matter, simultaneously serve a copy of such Mortgage notice upon the holder. However, Landlord’s failure to deliver such notice to the holder shall be subject to all the agreements, terms, covenants and conditions of not constitute a default or breach by Landlord under 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, 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 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 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 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 unreasonably withheld or delayed. Nevertheless, the holder Landlord may not undertake any action to enforce any of its rights under this mortgage agrees from time to time upon request Lease 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 FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely in connection with the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof of the same is served upon the holder.
(iii) In the event of any default by Tenant under this Lease, the holder shall have been given to each such Mortgagee. Upon receipt have, after service of notice of such noticedefault upon the holder, each Mortgagee the same period to remedy or cause to be remedied the default complained of as Tenant has under this Lease, and Landlord shall accept such performance by or at the instigation of the holder as if the same had been rendered by Tenant. Each notice of default given by Landlord shall state the amounts of rent and whatever other payments are being claimed to be in default.
(iv) Landlord agrees that (y) the holder shall have the right (right, but not the obligation) , to remedy such Event of Default or cause the same to be remediedany default by Tenant under this Lease by performing any applicable term, 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder of this Lease, and (z) Landlord shall accept such performance by the holder with the same force and effect as though performed if furnished by Tenant, so long as subject to and in accordance with the provisions of this Lease.
(v) Not more than 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 performance is made 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, (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 not be unreasonably conditioned, delayed, or denied, and will be based upon 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 Lease, except that all obligations and provisions liabilities of the holder, or its nominee or designee, under such lease shall 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. 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 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 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA will not exercise any remedies entitles Landlord to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to Lease, and if before the expiration of ten (10) days after the additional cure period afforded Mortgagee under Section 10.04(c) to cure (or caused to be cured) the Event date of Default, Mortgagee may send the FCRHA service of notice of termination upon such leasehold mortgagee, such leasehold mortgagee shall have notified Landlord of its intention desire to institute foreclosure proceedingsnullify such notice and shall have paid to Landlord all rent and other payments herein provided for, and thereafterthen in default, provided Mortgagee commences such foreclosure proceedings, prosecutes such proceedings and shall have complied or shall commence the work of complying with all reasonable diligence of the other requirements of this Lease, if any are then in default, and continuity (subject to Unavoidable Delays) and, upon obtaining such possession, commences promptly to cure the Event of Default and prosecutes shall prosecute the same to completion with all reasonable diligence and continuity (subject to Unavoidable Delays)diligence, the FCRHA will then in such event Landlord shall not exercise any remedies be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
d) The proceeds from any insurance policies or dispossess Tenant arising from a condemnation of possession thereof; provided however, that: (i) Mortgagee shall have first delivered to Tenant’s interest in the FCRHA, in writing, its agreement to cure (or caused Premises are to be cured), held by any leasehold mortgagee 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 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 distributed 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 Lease unless and until such time as it becomesLease, and then only for so long as it remains, the owner of but the leasehold estate created hereby and no performance by mortgagee may reserve rights to apply to the mortgage debt all, or on behalf of such Mortgagee any part, of Tenant’s obligations hereunder shall cause share of such Mortgagee proceeds pursuant to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premisesmortgage.
(ie) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee The leasehold mortgagee shall be exercisable only given notice of any arbitration proceedings 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 rightsparties hereto, 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to participate 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 any dispute resolution proceedings under Article 34 hereof;said arbitration proceedings.
(ivf) The term “mortgage,” whenever used herein, shall include whatever security instruments are used in the holder locale of the Mortgage most senior in lien priority on this Lease shall have the right Premises, such as, without limitation, deeds to participate in the adjustments secure debt, deeds of any insurance claims of the nature set forth in Article 7 trust, 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)conditional deeds, as set forth in such Articles); and
(v) at the request of Tenant from time to timewell as financing statements, the FCRHA shall execute security agreements, and deliver an instrument addressed other documentation required pursuant to the holder of Uniform Commercial Code. The term “mortgage”, whenever used herein, shall also include any Mortgage confirming that such holder is instrument required in connection with a Mortgagee and entitled to the benefit of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgageessale-leaseback transaction.
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) Tenant Lessee, and its successors and assigns, shall have the unconditional right to mortgage or mortgage, pledge its interest in and/or assign this Lease without having to one obtain the consent of Lessor. Lessee, and its successors and assigns, shall have the unconditional right to sublet all or more Mortgagees at a portion of the Leased Property without having to obtain the consent of Lessor. Any pledge or assignment of any time and from time interests in Lessee shall be permitted without having to time during obtain the Termconsent of Lessor.
(b) If Lessee, provided howeveror Lessee’s successors or assigns, that (x) until Final Completion has occurred, all proceeds from any loan secured by Tenant’s interest in shall mortgage this Lease shall be used only in connection compliance with the costs provisions of pre- developmentthis Section, development, construction, carry, and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under then so long as any such Mortgagemortgage shall remain unsatisfied of record, the following provisions shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unlessapply:
(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 time address provided for in clause (vi) of making 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 there is 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 existing and unremedied Event event of Default on the part of Tenant under any default shall be deemed to exist in respect of the agreementsperformance of work required to be performed, termsor of acts to be done, covenants 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 conditions 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 on without first giving to the part holder of Tenant such mortgage written notice thereof and a reasonable time thereafter within which either (x) to be performed; provided 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 if that: (x) such Event 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 Default existssuch forbearance with such of the terms, but conditions and covenants of this Lease has 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 terminated and such Event of Default will be cured simultaneously with the granting waived by Lessor upon completion of such Mortgage foreclosure proceedings or with the proceeds from upon such Mortgage, Tenant may nevertheless enter into such Mortgage for Tenantacquisition 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.
(iiv) 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 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 subject to 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;Lease to the date of execution of such new lease.
(iiivi) such Mortgage Any notice or other communication which Lessor shall contain 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 deemed served by registered mail, addressed to contain such holder at his address as set forth 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, such mortgage. Any notice 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 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 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgagee, communication which consent shall not be unreasonably withheld or delayed. Nevertheless, the holder of a mortgage on this mortgage agrees from time Lease shall desire or is required to 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 FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA serve upon Lessor shall be deemed to have been duly given or served if sent in duplicate by registered mail addressed to Tenant 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 no grace 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 cure period 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 have commencedbe void and of no force or effect.
(viii) unless No agreement between Lessor and until a copy thereof Lessee modifying, canceling or surrendering this Lease shall have been given be effective without the prior written consent of the leasehold mortgagee.
(ix) The fee title to each such Mortgagee. Upon receipt 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 noticeestates in Lessee, 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 DefaultLessor, or in the case 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 non-monetary Event mortgage thereon or by assignment in lieu of Default which 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 require more than thereupon be released from all liability for the additional fifteen (15) Business Days to cure using due diligence, then performance or observance of the covenants and conditions in 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 or lease contained on behalf of a Mortgagee of any covenant, condition or agreement on Tenanttenant’s part to be performed hereunder with and observed from and after the same force and effect as though performed by Tenant, so long as date of such 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 Mortgagee’s cure rightsassignment, provided that such entry is in compliance with all Applicable Laws. If possession assignee assumes the obligations of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee Lessee hereunder.
(d) During any period in which Mortgagee, in good faith and acting with reasonable diligence and continuity, is attempting or Lessor hereby agrees to deliver to Lessee a ground lessor estoppel certificate in the 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), 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 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 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 form reasonably required by clause (d) any leasehold mortgagee 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 10.05Lessee.
(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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Hotel Lease Agreement (Moody National REIT II, Inc.)
Leasehold Mortgages. Section xxx of the Lease is deleted in its entirety and replaced with this Section 8. Lessee shall be entitled to encumber Xxxxxx’s leasehold interest in the Unit (but not the fee title interest) on the following terms and conditions:
(a) Tenant Any leasehold mortgage loan shall have not exceed the right to mortgage or pledge its interest in this Lease to one or more Mortgagees at any time and from time to time during amount of sixty five percent (65%) of the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured total purchase price paid by TenantLessee for Xxxxxx’s interest in this Lease shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant 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 lender approved by the Mortgagee shall give to the FCRHA written notice of the making of any Mortgage Landlord in writing (which notice shall contain the name and office address of the a “Permitted Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof”).
(c) If the FCRHA shall have received timely the Provided that a Permitted Mortgagee provides written notice described in Section 10.04(b) above, the FCRHA shall give to each Mortgagee, at Lessor stating the address to which notices are to be sent to the Permitted Mortgagee in the event of a default under or breach of this Lease by Lessee occurs, Lessor shall provide written notice of such Mortgagee set forth in the notice from such Mortgagee event of default or from Tenant, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA breach to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such Permitted Mortgagee. Upon receipt In such event, with respect to an event of such noticedefault or breach caused by Xxxxxx’s failure to timely pay rent or any other cost or charge due under this Lease (a “Monetary Default”), each or as to any other event of default or breach of this Lease caused by Lessee which is not a Monetary Default (a “Non-Monetary Default”), Permitted 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 two hundred and seventy days (10270) 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 days from notice to cure such Event of Monetary Default or Non-Monetary Default. The foregoing notwithstanding, Mortgagee Lessor 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 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 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 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 entitled 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 afforded Lessor pursuant to this Lease 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 remedy until the cure period provided for in this Section 8.(c) has expired and, if Permitted Mortgagee does in fact tender a New Lease)full and complete cure of the subject Monetary Default or Non-Monetary Default, then Lessor shall stop pursuing such remedies and accept the cure tendered by Permitted Mortgagee. Otherwise, Lessor shall be permitted to pursue all of its remedies to completion.
(fd) With respect to any non-monetary Event of Default, so long as a Permitted 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 provide written notice to Lessor of the Premises is required to cure the same, Mortgagee shall be taking the actions required by clause (d) commencement of this Section 10.04, the FCRHA shall not (i) re-enter the Premises, (ii) serve a termination notice, any foreclosure 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, collection action with respect to any monetary Event of Default, leasehold mortgage held by a Permitted Mortgagee with respect to the FCRHA shall not exercise any of Unit. In 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 event 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 deed-in-lieu of foreclosure to an entity other than by a Permitted Mortgagee or an Affiliate of such its leasehold mortgage which results in Permitted Mortgagee acquiring the leasehold interest in the Unit, then Permitted 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only bound 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 terms 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 FCRHA will neither agree to any material modification or material amendment conditions of this Lease, nor accept a surrender or cancellation 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 under this Lease and Permitted Mortgagee shall otherwise attorn to Lessor on the terms and conditions of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesLease.
Appears in 1 contract
Samples: Condominium Lease Amendment
Leasehold Mortgages. (a) Tenant shall have the right to mortgage or pledge its interest in this Lease to one or more Mortgagees 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 to mortgage its interest in this Lease shall be used only in connection with the costs of pre- development, development, construction, carryunder one or more Leasehold Mortgages, and operations to assign this Lease and any Sublease(s) as collateral security for such Leasehold Mortgage(s). If Tenant shall mortgage this Lease and if the Leasehold Mortgagee shall send to Landlord a true copy of the Project Leasehold Mortgage together with written notice specifying the name and (y) no holder address of any Mortgagethe Leasehold Mortgagee, nor anyone claiming by, through or under Landlord agrees that so long as any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Leasehold Mortgage shall be effectiveremain unsatisfied of record or until written notice of satisfaction is given by the holder thereof to Landlord, unlessthe following provisions shall apply:
(ia) at the time of making such Mortgage there is There shall be no existing and unremedied Event of Default on the part of Tenant under any of the agreementscancellation, terms, covenants and conditions surrender or modification of this Lease on by joint action of Landlord and Tenant without the part prior consent in writing of the Leasehold Mortgagee.
(b) Landlord shall, upon serving Tenant with any notice of Default (which notice shall specify the nature of the Default) or termination, simultaneously serve a copy of such notice upon the Leasehold Mortgagee. The Leasehold Mortgagee shall thereupon have the same period as provided the Tenant, after service of such notice upon it, to remedy or cause to be performedremedied the defaults complained of, and the Landlord shall accept such performance by or at the instigation of such Leasehold Mortgagee as if the same had been done by Tenant; provided however, that if such Event upon the occurrence 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 10.0416.1(a), no Leasehold Mortgagee shall become liable under the provisions of this Lease unless and until have thirty (30) days after written notice from Landlord to remedy or cause to have remedied such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premisesdefault thereunder.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Ground Lease (Ecoscience Corp/De)
Leasehold Mortgages. (a) Tenant shall have the right to mortgage, pledge or conditionally assign this Lease to a Permitted Leasehold Mortgagee subject to the provisions of this Section and ARTICLE XII, 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 provide the Landlord with written notice of any 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 pledge the assignee of Tenant’s interest under this Lease pursuant to an assignment in lieu of such foreclosure, shall be deemed to be an assignee of Tenant (but no consent by the Landlord to such assignment or transfer shall be required) and subject to the terms and conditions of Section 12.02 hereof, shall be deemed to have assumed the obligations of 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, such mortgagee shall cure all monetary defaults and non-monetary defaults that are not Incurable Lease Defaults. If a mortgagee (or nominee) who has so assumed the obligations of Tenant hereunder thereafter assigns its interest interests in this Lease to one an assignee who assumes the obligations of Tenant hereunder, such mortgagee (or more Mortgagees at any time nominee), upon compliance by such assignee with Maryland laws, shall be relieved of the obligations of Tenant arising after such assignment and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured by assumption. A conditional assignment of 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 Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 mortgagee as more fully set forth in this Section 10.04 and such other rights as are expressly security for a mortgage granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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, paragraph shall not constitute an Event assumption 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 liability by 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee mortgagee of Tenant’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 cause such Mortgagee to be deemed to be a “mortgagee cure all monetary defaults and non-monetary defaults that are not Incurable Lease Defaults in possession” unless and until such Mortgagee shall take control or possession existence as of the Premisestime of such foreclosure.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) Tenant AccessCal shall have the right not mortgage, encumber, hypothecate, pledge, lien by deed in trust, or assign rents, issues and profits belonging to mortgage or pledge AccessCal, and/or collaterally assign its interest in this Lease to one or more Mortgagees 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 shall 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 right, title or interest in or to said Lease Agreement 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 created by this mortgage but only to the extent such proceeds are required for and applied to the demolitionLease Agreement, 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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)created by this Lease Agreement, (ii) and (iii) being herein the “FCRHA’s Termination Rights”). In additionor any, with respect to all, or any monetary Event of Default, the FCRHA shall not exercise any part of the FCRHAAccessCal’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 right, title and interest 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Premises is senior in lien Lease (or which has obtained the consent of any Mortgagees that are senior to such Mortgageecollectively “Leasehold Mortgage”).
(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 MortgageANAHEIM, the FCRHA will neither agree which consent may be granted or withheld in ANAHEIM’s sole and absolute discretion. ANAHEIM’s consent to any material modification or material amendment of this Lease, nor accept a surrender or cancellation of this Lease except in accordance with such Leasehold Encumbrance by AccessCal shall be subject to the express terms and provisions of this Lease (e.g., condemnation);following conditions: lender.
(iia) The FCRHA Leasehold Mortgage shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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(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 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 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 shall not be subjected to the 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 Agreement; and the provisions set forth in this Article or provided elsewhere in this Lease Agreement; and the provisions set forth in this Lease Agreement for the benefit of Leasehold Mortgagees may be enforced by them. In no event will ANAHEIM subordinate its fee and reversionary interests or its interests in rents due under this Lease Agreement and Subleases to construction financing or permanent financing.
Appears in 1 contract
Samples: Lease
Leasehold Mortgages. (a) Tenant shall have the right 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 mortgage or pledge its other encumbrance now or hereafter encumbering the Building or Landlord’s interest in this Lease the Building, and shall be subject to one or more Mortgagees at any time 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 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 shall be used only in connection with the costs time. The form 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 Leasehold Mortgage shall be subject to all the agreements, terms, covenants and conditions of 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, 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 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 Landlord’s prior 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 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 the consent of the mortgagor or its predecessors in interest, or may hereafter be modified, amended or renewed with the consent of the mortgageeapproval, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Nevertheless, Tenant shall provide Landlord with any proposed Leasehold Mortgage no less than thirty (30) days before the holder of this mortgage agrees from time date upon which Tenant intends to time upon request and without charge to execute, acknowledge. and deliver any instruments reasonably requested by the FCRHA to evidence the foregoing.”grant such Leasehold Mortgage
(b) Tenant or the Mortgagee shall give to the FCRHA written notice No holder of the making of any a Leasehold Mortgage (which notice a “Leasehold Mortgagee”) shall contain have the rights or benefits mentioned in this Section, nor shall the provisions of this Section be binding upon Landlord, unless and until the name and office address of the Mortgagee) promptly after the execution and delivery Leasehold Mortgagee shall have been delivered to Landlord in accordance with Section 26 of such Mortgage and a duplicate original this Lease, notwithstanding any other form of notice, actual or certified copy thereofconstructive.
(c) If Tenant shall mortgage this Lease in compliance with the FCRHA provisions of this Section, then the following provisions shall have received timely apply until the earlier of (x) the satisfaction of the Leasehold Mortgage of record, (y) Landlord’s receipt of notice described in Section 10.04(bfrom Tenant or Leasehold Mortgagee that Tenant has satisfied the terms of the Leasehold Mortgage, and (z) abovethe termination of this Lease:
(i) Landlord, upon serving upon Tenant any notice of default pursuant to this Lease, shall also serve a copy of such notice upon the FCRHA shall give to each Leasehold Mortgagee, at the address provided to Landlord in accordance with this Section
(ii) If Tenant fails to comply with the terms and conditions of such Mortgagee set forth in the notice from such Mortgagee or from Tenantthis Lease, and otherwise in the manner provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such Mortgagee. Upon receipt of such notice, each Leasehold Mortgagee shall have the right (but not the obligation) to remedy such Event of Default failures, or cause the same to be remedied, within a reasonable period of time if Tenant has failed to remedy such failure within the following additional time periods (in each period granted to Tenant under this Lease, and Landlord shall accept such performance by or at the instance after the applicable period afforded Tenant for remedying the Event of Default or causing such Leasehold Mortgagee as if the same had been made by Tenant. 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) Any notice or other communication which Landlord shall desire or is required to give to or serve upon the Leasehold Mortgagee shall be remedied has expired): 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 Leasehold Mortgagee at the address provided to Landlord in accordance with this Section, or at such other address as shall be designated by such Leasehold Mortgagee by notice in writing 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 (i3) business days after posting in the United States mail or one (1) business day after deposit with a period nationally recognized overnight courier service., Any notice or other communication which the Leasehold Mortgagee shall desire or is required to give to or serve upon Landlord shall be delivered in accordance with Section 26 of this Lease.
(iv) Anything herein contained to the contrary notwithstanding, the provisions of this Section shall inure only to the benefit of the Leasehold Mortgagee. Tenant shall not grant more than one Leasehold Mortgage at one time.
(v) Within ten (10) Business Days more days after the satisfaction of the Leasehold Mortgage, Tenant shall notify Landlord of such satisfaction and Tenant shall cause a release of such Leasehold Mortgage to be recorded in the case of appropriate recorder’s office. Tenant shall deliver 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 or on behalf of a Mortgagee copy of any covenant, condition or agreement on Tenant’s part such release to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 shall notify the FCRHA within the applicable period afforded to Mortgagee hereunderLandlord promptly after recording.
(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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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: Office and Industrial Lease Agreement (WuXi PharmaTech (Cayman) Inc.)
Leasehold Mortgages. (a) Tenant Tenant, and its successors, subtenants and assigns permitted hereunder shall have the right to mortgage or and pledge its interest their respective interests in this Lease (“Leasehold Mortgage”) to a lender who is not affiliated with Tenant (“Leasehold Mortgagee”) and in and to the improvements constituting the Facility, in accordance with and subject to the terms, conditions, requirements and limitations of this Section 20. Landlord and Xxxxxx expressly intend and agree that the provisions of this Section 20 and such other provisions of this Lease which, by their terms, are for the benefit of Leasehold Mortgagees, are intended for the benefit of and enforceable by such Leasehold Mortgagees and their respective nominees, designees, successors and assigns. Notwithstanding anything in this Lease to one or more Mortgagees at any time and from time to time during the Term, provided however, that (x) until Final Completion has occurredcontrary, all proceeds from any loan secured by Tenant’s interest in this Lease Leasehold Mortgages shall be used only in connection with the costs of pre- development, development, construction, carry, expressly subordinate and operations of the Project and (y) no holder of any Mortgage, nor anyone claiming by, through or under any such Mortgage, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of this Lease;
(iii) such Mortgage shall contain , and at all times shall be deemed inferior and subject 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, 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 prior right, title or and 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 Landlord herein. Notwithstanding anything 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 shallcontrary set forth in this Lease, 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 event shall the fee interest in the premises covered by the Lease hereby mortgagedProperty or Facility Premises be subordinate to any Leasehold Mortgage.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee A notice of each Leasehold Mortgage shall give be delivered to the FCRHA written notice of the making of any Mortgage (which notice shall contain Landlord specifying the name and office address of the Mortgageesuch Leasehold Mortgagee to which notices shall be sent. Landlord shall be furnished a copy of each such recorded Leasehold Mortgage within thirty (30) promptly after the execution and delivery days of such Mortgage and a duplicate original or certified copy thereofmortgage being recorded.
(c) If the FCRHA Tenant, or Xxxxxx’s successors or assigns, shall mortgage this Lease, then so long as any such Leasehold Mortgage shall remain unsatisfied of record and Tenant shall have received timely the properly delivered notice described to Landlord in compliance with Section 10.04(b20(b) abovehereof with respect to such Leasehold Mortgagee, the FCRHA following provisions shall give to each Mortgageeapply:
(i) Landlord, at upon serving upon Tenant any notice of an Event of Default or any other notice under the address provisions of such Mortgagee set forth in the notice from such Mortgagee or from Tenantthis Lease, and otherwise in the manner provided by Article 25, shall also serve a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenantupon Leasehold Mortgagee, and no such notice by the FCRHA shall be deemed to have been duly given as to Tenant (and no grace or cure period shall be deemed to have commenced) the Leasehold Mortgagee unless and until a copy thereof shall have has been given to each such so served upon the Leasehold Mortgagee. Upon receipt Landlord’s furnishing a copy of such noticenotice 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, each 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 Leasehold Mortgagee, in case there shall be a Tenant Default under this Lease, shall have the right (but not the obligation) to remedy such Event of Tenant Default (or cause the same to be remedied, ) within the following additional time periods thirty (in each instance 30) days after the applicable period afforded notice to Leasehold Mortgagee of such 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 necessaryafter 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 such Mortgagee shall have commenced (x) curative action reasonably satisfactory to cure (or caused to be commenced such cure) Landlord is instituted within such additional fifteen (15) Business Day period and diligently and continuously prosecutes pursued to completion thereafter and (y) periodic progress reports thereon are delivered to Landlord, and Landlord shall accept such performance by or causes to be prosecuted at the instance of Leasehold Mortgagee as if the same had been made by Tenant. Any provision of this Lease to completion with reasonable diligence and continuity. The FCRHA shall accept 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) The Landlord agrees that, in the event of a non-monetary Tenant Default which cannot be cured by the Leasehold Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Premises, the Landlord will not terminate this Lease without first giving to the Leasehold Mortgagee reasonable time within which to obtain possession of the Premises, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Tenant’s interest under this Lease with diligence and without unreasonable delay. The Landlord agrees that upon acquisition of Tenant’s interest under this Lease by a Leasehold Mortgagee and performance by the Leasehold Mortgagee of any covenantall covenants and agreements of Tenant, condition or agreement on Tenant’s part to except those which by their nature cannot be performed hereunder 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 same force matters which have been cured by the Leasehold Mortgagee and effect as though performed with respect to the Incurable Lease Defaults.
(iv) Notwithstanding anything to the contrary set forth in this Section 20(c), Leasehold Mortgagee shall have the right, but shall not be obligated, to remedy any Tenant Default under this Lease. It shall be a condition precedent to any assignment or transfer of this Lease by Tenantforeclosure of any Leasehold Mortgagee, so long as deed-in-lieu thereof or otherwise to any third-party (unrelated to Leasehold Mortgagee or any entity or institution comprising Leasehold Mortgagee) purchaser in any such performance is made foreclosure proceedings (any such transferee of the Lease), that upon becoming the legal owner and holder of this Lease shall execute an agreement pursuant to which such lease transferee agrees to assume all obligations of Tenant under this Lease first arising from and after such foreclosure or deed-in-lieu thereof, judicial sale or other transfer and shall be responsible to timely cure any then uncured continuing Tenant Default.
(v) In the event of the termination of this Lease prior to the expiration of the Term, whether by summary proceedings to dispossess, service of notice to terminate, or otherwise, due to a Tenant Default, Landlord shall serve upon Leasehold Mortgagee written notice that the Lease has been terminated together with a statement of any and all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. Leasehold Mortgagee shall thereupon have the option to obtain a new lease in accordance with and upon the following terms and conditions: Upon the written request of Leasehold Mortgagee, delivered to Landlord within thirty (30) days after service of such notice that the Lease has been terminated to Leasehold Mortgagee, Landlord shall enter into a new lease of the Premises with Leasehold Mortgagee or its designee as follows: Such new lease shall be entered into within thirty (30) days of such Leasehold Mortgagee’s written request at the sole cost of Leasehold Mortgagee or such designee, shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the terms, covenants and conditions hereof, including any applicable rights of extension. Such new lease shall require the tenant to perform any unfulfilled obligation of Tenant under this Lease which is reasonably susceptible of being performed by such tenant. Upon the execution of such new lease, the new tenant named therein shall pay any and all rent and other sums which would at the time of the execution thereof be due under this Lease but for such termination and shall pay all expenses, including counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the recovery of possession of the Premises, and the preparation, execution and delivery of such new lease. Nothing herein contained shall be deemed to impose any obligation on the part of Landlord to deliver physical possession of the Premises to such Leasehold Mortgagee unless Landlord at the time of the execution and delivery of such new lease shall have obtained physical possession thereof.
(vi) If this Lease is (a) rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Tenant (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Leasehold Mortgagee or its nominee(s) shall request and certify in writing to Landlord that it intends to perform the obligations of Tenant as and to the extent required hereunder, Landlord shall execute and deliver to the Leasehold Mortgagee or such nominee(s) such new lease which shall be for the balance of the remaining term under the original Lease before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Lease (except for any requirements which have been fulfilled by Tenant prior to such rejection or termination). The new lease shall be executed by Xxxxxxxx and the Leasehold Mortgagee or its nominee(s) within ninety (90) days after the receipt by Landlord of such written notice. The Leasehold Mortgagee or its nominee(s) shall, at the time of the execution and delivery of such new ground lease, pay to Landlord all sums which would have become payable hereunder by Tenant to Landlord between the date that this Lease shall have been effectively terminated to the date of the execution and delivery of such new lease had this Lease not terminated. References herein as to this “Lease” shall be deemed also to refer to such new lease.
(vii) Any notice or other communication which Landlord shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and shall be served by either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Leasehold Mortgagee at its address provided to Landlord.
(d) The City, acting by and through the City Representative, shall, at the request of the Tenant made from time to time and at any time, enter into a lender’s rights agreement with any Leasehold Mortgagee identified by the Tenant, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to the City and consistent with the terms and provisions contained in this Section 20. Within twenty (20) days of the Tenant’s request for a lender’s rights agreement pursuant to the provisions of this Section 20, time being of the essence, the City, acting by and through the City Representative, shall execute and deliver to the Tenant such a lender’s rights agreement benefiting the identified Leasehold Mortgagee, which executed lender’s rights agreement shall be in a form and substance that are reasonably acceptable to the City and such Leasehold Mortgagee and that is consistent with, and at the option of such Leasehold Mortgagee incorporates, the terms and provisions of this LeaseSection 20. The FCRHA shall not object Xxxxxx agrees to pay for the City’s reasonable attorneys’ fees expended in connection with any temporary entry onto the Premises by or on behalf of Mortgagee to the extent necessary to effect such Mortgageelender’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 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 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 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 Depository in accordance with Article 5 above)) within any applicable grace periods. However, at any time after the delivery of the aforementioned rights 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 Xxxxxxxx agrees to negotiate in good faith and execute modifications to 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, 20 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 related provisions of this Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of this Lease, nor accept a surrender which Landlord has accepted in its reasonable discretion, with each Leasehold Mortgagee (or cancellation of this Lease except prospective Leasehold Mortgagee) in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification event that such Leasehold Mortgagee desires changes to the Lease requested by a Mortgagee or prospective Mortgagee provisions as a condition or term of granting financing to Tenant, provided that the same does not materially increase the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Mortgageescurrently stated.
Appears in 1 contract
Samples: Lease Agreement
Leasehold Mortgages. The Concessionaire shall have the right, at its sole cost and expense, to grant one or more Leasehold Mortgages, secured by the Concessionaire Interest or the Utility Fee if at the time any such Leasehold Mortgage is executed and delivered to the Leasehold Mortgagee, no Concessionaire Default exists and upon and subject to the following terms and conditions:
(a) Tenant a Leasehold Mortgage may not cover any property of, or secure any debt issued or guaranteed by, any Person other than the Concessionaire or the Concessionaire’s Parent, but may cover shares or equity interests in the capital of the Concessionaire and any cash reserves or deposits held in the name of the Concessionaire;
(b) no Person other than an Institutional Lender shall have be entitled to the right benefits and protections accorded to mortgage or pledge its interest a Leasehold Mortgagee in this Lease to one or more Mortgagees at any time and from time to time during the TermAgreement; provided, provided however, that lessors and lenders to the Concessionaire (xand lenders to a Leasehold Mortgagee that is a Lessor) until Final Completion 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 occurredprovided 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 default to the Concessionaire, then the Leasehold Mortgagee shall give written notice of such default to the 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 proceeds from rights acquired by a Leasehold Mortgagee under any loan secured by Tenant’s interest in this Lease Leasehold Mortgage shall be used only in connection with the costs of pre- development, development, construction, carry, subject and operations subordinate to all of the Project 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;
(yh) no holder notwithstanding any enforcement of the security of any Leasehold Mortgage, nor anyone claiming bythe 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, through or under any such Mortgage, shall by virtue thereofof its Leasehold Mortgage, 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 right, title or interest in or the Utility System than the Concessionaire has at any applicable time under this Agreement, other than such rights granted expressly to said Lease or such Leasehold Mortgagee pursuant to this Article 19, and each Leasehold Mortgagee, 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 University and the effective date thereof, Concessionaire shall enter into a consent agreement in a form acceptable to all parties; provided that such consent agreement shall be in a customary form and (ii) such purchaser or transferee has delivered shall include the rights and protections provided to the FCRHA 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 duplicate original material adverse effect on the rights or certified copy interests of the instrument of sale Leasehold Mortgagee 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 a voluntary surrender or termination 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 this Agreement 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 the mortgagee hereunder are, Concessionaire 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoingLeasehold Mortgagee.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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
Leasehold Mortgages. (a) Tenant shall have the right may, from time to mortgage or pledge its interest in this Lease time, grant to any one or more Mortgagees at Institutional Lender providing financing or refinancing to Tenant with respect to Tenant’s Leasehold Interest in the 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 time and from time to time during the Term, provided however, that (x) until Final Completion has occurred, all proceeds from any loan secured Personal Property owned by Tenant’s interest in this Lease shall be used only in connection with the costs of pre- development, development, construction, carry, and operations an assignment of the Project Master Development Plan, the Plans and (y) no holder of any MortgageSpecifications and development rights under Building Permits, nor anyone claiming by, through or under any such Mortgage, shall by virtue thereof, acquire any greater rights hereunder than Tenant has, except the right to cure or remedy as well Tenant’s defaults or become entitled rights, title and interest in, to a New Lease as more fully set forth 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 this Section 10.04 and such other rights as are expressly granted order to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at secure 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 repayment of such Mortgage or with the proceeds from such Mortgagefinancing, Tenant may nevertheless enter into such Mortgage for Tenant’s including interest in this Lease;
(ii) such Mortgage shall be subject to all the agreementsthereon, terms, covenants and conditions of 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, 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 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 performance 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 agreements to be performed or observed under all agreements executed in connection with such financing or performed on the part of Tenant and, refinancing. Landxxxx xxxees that no further or additional mortgage or assignment of the it shall enter into such amendments to this Lease hereby mortgaged as 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy Institutional Lender in furtherance thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 . Except as expressly provided by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 FCRHA will neither agree to any material modification or material amendment of this Lease, no such Leasehold Mortgage, lien or security interest shall attach to Landlord’s Estate the Public Facilities Parcel, the Public Facilities or to any other property owned or leased by Landlord nor accept a surrender shall any such assignment affect Landlord’s interest in this Lease, or cancellation of this Lease except in accordance with any leases and rents or other proceeds from the express terms Private Facilities. Tenant may have one or more Leasehold Mortgages at any time and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease Landlord shall have the right to participate in rely upon 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 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 termsnotice, conditions and covenants applicable to Mortgagee(s), as set forth in such Articles); and
(v) at the statement or request of Tenant received from time to time, the FCRHA shall execute and deliver an instrument addressed to the holder of any Leasehold Mortgage confirming that such holder is a Mortgagee and entitled to the benefit without investigation or inquiry of all provisions contained in the Lease which are expressly stated to be for the benefit of Mortgageesany nature.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. (a) Tenant shall 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 TenantXxxxxx’s interest in this Lease shall will be used only in connection with the costs of pre- 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, shall will by virtue thereof, acquire any greater rights hereunder than Tenant Xxxxxx 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 10.06 and such other rights as are expressly granted to Mortgagees hereunderin this Lease. No Mortgage shall will be effective, unless:
(i) at 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 shall will be subject to all the agreements, terms, covenants covenants, and conditions of this Lease;
(iii) such Mortgage shall contain and shall be deemed to will contain in substance the following provisions:
(A) : “This instrument is executed upon condition that (unless this condition be released or waived by the FCRHA 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, shallwill, 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 as between such transferee and said the FCRHApledged, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) Landlord. “The purchaser or transferee of said Lease shallXxxxx 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.”
(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 will not name, in such foreclosure action or otherwise, and in any event shall will not disturb the possession or right to possession (except for default) of, any subtenants of Tenant under the Lease) Lease who are not Affiliates of Tenant.”
(F) . “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 Xxxxx and 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 unreasonably withheld or delayed. 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 the FCRHA Xxxxxxxx to evidence the foregoing.”
(b) Tenant or the Mortgagee shall will give to the FCRHA Landlord written notice of the making of any Mortgage (which notice shall will contain the name and office address of the Mortgagee) promptly after the execution and delivery of such Mortgage and a duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Landlord will give to each Mortgagee identified to Landlord pursuant to Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall will thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA shall Landlord will be deemed to have been duly given to Tenant (and no grace or cure period shall will be deemed to have commenced) unless and until a copy thereof shall will have been given to each such Mortgagee. Upon receipt of such notice, each the Mortgagee shall specified in Section 10.04(j) below will 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) 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 will require more than the additional fifteen (15) 15 Business Days to cure using due diligence, then such longer period of time as will be necessary, so long as such Mortgagee shall will have commenced to cure (or caused to be commenced such cure) within such additional fifteen (15) 15 Business Day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence and continuity. The FCRHA shall Landlord will accept performance by or on behalf of a such Mortgagee of any covenant, condition condition, or agreement on TenantXxxxxx’s part to be performed hereunder with the same force and effect as though performed by TenantXxxxxx, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA shall 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, 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 shall will notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA Landlord will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall will have first delivered to the FCRHALandlord, 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 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 FCRHALandlord, 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 will have no further liability under such agreement from and after the date it delivers such notice to the FCRHA Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA shall Landlord will have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA Landlord deems appropriate by reason of any uncured Event of Default by TenantXxxxxx.
(e) Notwithstanding anything in this Section 10.04 to the contrary, a Mortgagee shall 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 shall 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 shall 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 the FCRHA Landlord may continue to pursue any and all remedies at law or in equity against the defaulting Tenant, 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 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 shall will be taking the actions required by clause (d) of this Section 10.04, the FCRHA shall 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 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 express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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. (a) Tenant shall 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 occurredoccurred (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 pre- 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, shall 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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 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, shall, 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 as between as such transferee and said the FCRHALandlord, unless and until
until (i) the FCRHA 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 the FCRHA Landlord a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”
(B) 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.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA Landlord to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA Landlord shall 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 by Article 25, a copy of each notice given by the FCRHA Landlord to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA Landlord to Tenant, and no such notice by the FCRHA Landlord shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 Landlord shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such performance is made in accordance with the terms and provisions of this Lease. The FCRHA Landlord shall 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, 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 shall notify the FCRHA 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 cure) a non-monetary Event of Default within the time periods provided in Section 10.04(c), the FCRHA 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 the FCRHA 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), the FCRHA 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 the FCRHALandlord, 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 the FCRHALandlord, 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 Landlord (except for any obligations assumed by the Mortgagee and accruing prior to the date it delivers such notice), and, thereupon, the FCRHA Landlord shall have the unrestricted right to terminate this Lease, dispossess Tenant of the Premises and to take any other action the FCRHA 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 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)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, the FCRHA 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 the “FCRHALandlord’s Termination Rights”). In addition, with respect to any monetary Event of Default, the FCRHA Landlord shall not exercise any of the FCRHALandlord’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 Landlord may exercise any of the FCRHALandlord’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- 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 Landlord further agrees that:
(i) without the prior written consent of each holder of a Mortgage, the FCRHA Landlord 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 express terms and provisions of this Lease (e.g., condemnation)Lease;
(ii) The FCRHA Landlord shall consider in good faith any modification to the 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 the FCRHALandlord’s obligations or materially diminish the FCRHALandlord’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 Landlord 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: Ground Lease
Leasehold Mortgages. (a) Tenant shall have ASC, and every successor and assign of ASC, is hereby given the right by IMA in addition to any other rights herein granted, subject to IMA's prior written consent which shall not be unreasonably withheld, to mortgage its interests in the Lease, or pledge its interest in this Lease to any part or parts thereof, under one or more Mortgagees 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 shall be used only in connection with the costs of pre- development, development, construction, carryleasehold Mortgage(s), and operations of to assign the Project and (y) no holder of Lease, or any Mortgage, nor anyone claiming by, through part or under any such Mortgage, shall by virtue parts thereof, acquire and any greater subleases, or parts thereof, as collateral security for such Mortgage(s), upon the condition that all 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 acquired under such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(iMortgage(s) at 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 shall be subject to each and every one of the covenants, conditions and restrictions set forth in the Lease, and to all the agreementsrights and interests of IMA herein, termsnone of which covenants, covenants and conditions of this Lease;
(iii) such Mortgage shall contain and or restrictions is or 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, or other transfer authorized by law IMA by reason of a default hereunder where no foreclosure sale is requiredthe right given so to mortgage such interest in the Lease, shallexcept as expressly provided herein. If ASC and/or ASC's successors and assigns shall mortgage this leasehold or any part or parts thereof, as a result and if the holder(s) of such sale or transfer, acquire any right, title or interest in or Mortgage(s) shall send 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 IMA written notice of such sale or transfer Mortgage(s) specifying the name and address of said Lease the Mortgagee(s) and the effective date thereofpertinent recording data with respect to such Mortgage(s), and (iiIMA agrees that so long as any such leasehold Mortgage(s) such purchaser shall remain unsatisfied of record or transferee has delivered until written notice of satisfaction is given by the holder(s) to IMA, the FCRHA a duplicate original or certified copy of the instrument of sale or transfer to the FCRHA.”following provisions shall apply:
(Ba) “The purchaser There shall be no cancellation, surrender 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 modification of the Lease to be observed or performed on by joint action of IMA and ASC without the part of Tenant and, that no further or additional mortgage or assignment prior consent in writing of the Lease hereby mortgaged may leasehold Mortgagee(s); provided that termination upon default shall 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 governed 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 following provisions of the Leasethis Section 22.”
(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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA written IMA shall, upon serving ASC with any notice of default, simultaneously serve a copy of such notice upon the making holder(s) of such leasehold Mortgagee(s), provided IMA shall be kept informed in writing by ASC of current addresses of all Mortgagees and no such notice of default to ASC shall be effective as to any person or entity unless and until a copy of such notice is served upon each such person or entity; however, the failure of ASC to provide IMA with the name of any Mortgage (which notice Mortgagee(s) shall contain constitute a waiver of IMA's requirement to provide notice. The leasehold Mortgagee(s) shall thereupon have the name and office address of the Mortgagee) promptly same period as ASC, after the execution and delivery service of such Mortgage notice upon it, to remedy or cause to be remedied the defaults complained of, and a duplicate original IMA shall accept such performance by or certified copy thereofat the instigation of such leasehold Mortgagee(s) as if the same had been done by ASC.
(c) If the FCRHA shall have received timely the Anything herein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice satisfaction is given by the FCRHA holder(s) to Tenant hereunder (including IMA, if any notices default shall occur which, pursuant to any provision of Event(s) of Default under the Lease) at , entitles IMA to terminate the same time as and whenever any such notice shall thereafter be given by the FCRHA to TenantLease, and no such notice by if before the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 expiration of ten (10) Business Days more in days from the case date of a monetary Event service of Defaultnotice 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 (ii) a period of fifteen (15) Business Days more then in the case of a non-monetary Event of Defaultdefault, 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 and shall have commenced to cure (complied or caused to be commenced such cure) within such additional fifteen (15) Business Day period shall commence the work of complying with all of the other requirements of the Lease, if any are then in default, and continuously prosecutes or causes to be prosecuted shall prosecute the same to completion with reasonable diligence and continuity. The FCRHA shall accept performance by or on behalf of a Mortgagee of any covenantdiligence, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as then in such performance is made in accordance with the terms and provisions of this Lease. The FCRHA event IMA shall not object be entitled to terminate the Lease and any temporary entry onto the Premises by or on behalf notice 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 termination theretofore given shall be void and of the Premises or any part thereof is required in order to cure such Event of Default, Mortgagee shall notify the FCRHA within the applicable period afforded to Mortgagee hereunderno effect.
(d) During If IMA shall elect to terminate the Lease by reason of any default of ASC, the leasehold Mortgagee(s) 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 the Lease 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 Rent, additional Rent and comply with and perform all of the other terms, conditions and 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 which Mortgageethe 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, in good faith and acting the time of said Mortgagee to comply with the provisions of this Section shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity, is attempting or in provided the 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), the FCRHA will not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof. At any time prior to the expiration quality 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 commercial alpine ski resort operator shall not exercise any remedies to terminate this Lease or dispossess Tenant of possession thereof; provided however, that: (i) Mortgagee shall 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 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 Tenantreduced or impaired.
(e) Notwithstanding anything IMA agrees that in this Section 10.04 the event of termination of the Lease by reason of any default by ASC other than for nonpayment of Rent or additional Rent and other payments herein provided for, that IMA will enter into a new lease of the Leased 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 termination, at the Rent and additional Rent and upon the terms, provisions, covenants and agreements as herein contained and subject only to the contrary, a Mortgagee shall not be required same conditions of title as the Lease is subject to cure any non-monetary Events on the date of Default of Tenant that are not capable of being cured by such Mortgageethe execution hereof, and to the rights, if any Mortgageeany, 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 parties then 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 part 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 Leased 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Mortgagee, the rights and obligations afforded by this Section 10.04 to a Mortgagee shall be 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 thatprovided:
(i) without Said Mortgagee(s) or its nominee(s) shall make written request upon IMA for such new lease within fifteen (15) days after the prior date of such termination and such written consent request shall be accompanied by payment to IMA of each holder of a Mortgage, all sums then due to IMA under the 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 express terms and provisions of this Lease (e.g., condemnation);.
(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 expressly made subject to the rights, if any, of ASC under the terminated Lease.
(vi) The FCRHA Mortgagee, or its nominee, under such new lease shall consider have the same right, title and interest in good faith and to the Ski Improvements on the Leased Premises as ASC had under the terminated Lease.
(vii) Nothing herein contained shall require the leasehold Mortgagee(s) or its nominee(s) to cure any modification default of ASC, except as a condition of exercising its rights hereunder.
(viii) IMA agrees promptly after submission to execute, acknowledge and deliver any agreements modifying the Lease requested by a Mortgagee or prospective Mortgagee as a condition or term of granting financing to Tenantany leasehold Mortgagee(s), provided that the same such modification does not materially increase the FCRHA’s decrease ASC's obligations or materially diminish decrease IMA's rights pursuant to the FCRHA’s rights and immunities hereunder;Lease.
(iiiix) The proceeds from any insurance policies or arising from a condemnation are to be held by any leasehold Mortgagee(s) and distributed pursuant to the holder provisions of the Mortgage most senior in lien priority on this Lease Lease, but the leasehold Mortgagee(s) may reserve its right to apply to the mortgage debt all, or any part, of ASC's share of such proceeds pursuant to such mortgage(s).
(x) The leasehold Mortgagee(s) shall be given notice of any arbitration proceedings by the parties hereto and shall have the right to participate in any dispute resolution proceedings under Article 34 hereof;
(ivintervene 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 elect to intervene or become a party to such proceedings, the holder of the Mortgage most senior in lien priority on this Lease leasehold Mortgagee(s) shall have the right to participate in the adjustments receive notice of, and a copy of any insurance claims of the nature set forth award or decision made in Article 7 said arbitration proceedings. IMA, upon request, shall execute, acknowledge and Article 8 hereof and condemnation awards of the nature set forth in Article 9 hereof and deliver to serve as the Depository (subject to any terms, conditions and covenants applicable to each leasehold Mortgagee(s), as set forth in such Articles); and
(v) an agreement prepared at the request sole cost and expense of Tenant from time ASC in form satisfactory to timesuch leasehold Mortgagee(s) between IMA, ASC and the FCRHA shall execute leasehold Mortgagee(s), agreeing to (a) all of the provisions of this Section 22 and deliver an instrument addressed (b) such other provisions as are customary and acceptable to the holder of any Mortgage confirming that such holder is a Mortgagee and entitled to the benefit of all provisions contained parties in the Lease which are expressly stated to be for the benefit of Mortgageesmortgaging long-term leaseholds in connection with large commercial development projects.
Appears in 1 contract
Samples: Ski Lease (Asc Holdings Inc)
Leasehold Mortgages. The Concessionaire shall have the right, at its sole cost and expense, to grant one or more (subject to Section 18.7) Leasehold Mortgages, secured by the Concessionaire Interest or Revenues if at the time any such Leasehold Mortgage is executed and delivered to the Leasehold Mortgagee, no Concessionaire Default exists unless any such Concessionaire Default will be cured pursuant to Section 18.3 in connection with entering into such Leasehold Mortgage, and upon and subject to the following terms and conditions:
(a) Tenant a Leasehold Mortgage may not cover any property of, or secure any debt issued or guaranteed by, any Person other than the Concessionaire, but may cover shares or equity interests in the capital of the Concessionaire and any cash reserves or deposits held in the name of the Concessionaire;
(b) no Person other than an Institutional Lender shall have be entitled to the right benefits and protections accorded to mortgage or pledge its interest a Leasehold Mortgagee in this Lease to one or more Mortgagees at any time and from time to time during the TermAgreement; provided, provided however, that lessors and lenders to the Concessionaire (xand lenders to a Leasehold Mortgagee that is a Lessor) until Final Completion 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 occurredprovided 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 default to the Concessionaire, then the Leasehold Mortgagee shall give notice of such default to the City;
(g) subject to the terms of this Agreement, all proceeds from rights acquired by a Leasehold Mortgagee under any loan secured by Tenant’s interest in this Lease Leasehold Mortgage shall be used only in connection with the costs of pre- development, development, construction, carry, subject and operations subordinate to all of the Project provisions of this Agreement and to all of the rights of the City hereunder;
(yh) no holder 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 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, nor anyone claiming bythe 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, through or under any such Mortgage, shall by virtue thereofof its Leasehold Mortgage, 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 such other rights as are expressly granted to Mortgagees hereunder. No Mortgage shall be effective, unless:
(i) at 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 shall be subject to all the agreements, terms, covenants and conditions of 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, 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 right, title or interest in the System than the Concessionaire has at any applicable time under this Agreement, other than such rights or to said Lease or the leasehold estate hereby mortgaged or pledged interest 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 granted or acquired in accordance with the provisions contained in Article 10 of the Lease.”
(C) “This mortgage is not a security interest in Section 18.2, 18.3, 18.4 or lien on the fee interest in the premises covered by the Lease hereby mortgaged.”
(D) “The mortgagee hereunder waives all right 18.5; 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 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 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 unreasonably withheld or delayed. 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 the FCRHA to evidence the foregoing.”
(b) Tenant or the Mortgagee shall give to the FCRHA 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 duplicate original or certified copy thereof.
(c) If the FCRHA shall have received timely the notice described in Section 10.04(b) above, the FCRHA shall 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 by Article 25, a copy of each notice given by the FCRHA to Tenant hereunder (including any notices of Event(s) of Default under the Lease) at the same time as and whenever any such notice shall thereafter be given by the FCRHA to Tenant, and no such notice by the FCRHA shall be deemed to have been duly given to Tenant (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such 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 or on behalf of a Mortgagee of any covenant, condition or agreement on Tenant’s part to be performed hereunder with the same force and effect as though performed by Tenant, so long as such 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 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 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 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 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 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 Lease unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of such Mortgagee of Tenant’s obligations hereunder shall cause such Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Premises.
(i) If there is more than one Leasehold Mortgagee, the City and the Concessionaire shall enter into a 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 obligations afforded by this Section 10.04 to a Mortgagee shall be 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 protections provided 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 FCRHA will neither agree to any material modification or material amendment of Leasehold Mortgagees in this Lease, nor accept a surrender or cancellation of this Lease except in accordance with the express terms and provisions of this Lease (e.g., condemnation);
(ii) The FCRHA shall consider in good faith any modification to the 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 the FCRHA’s obligations or materially diminish the FCRHA’s rights and immunities hereunder;
(iii) the holder of the Mortgage most senior in lien priority on this Lease shall have the right to 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 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, 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 MortgageesAgreement.
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Samples: Concession and Lease Agreement
