Leasehold Mortgages. Lessee shall have the right during the term of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes. 15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing. 15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee. 15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property. 15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease. 15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee. 15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease. 15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances. 15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease. 15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances. 15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 3 contracts
Samples: Ground Lease Agreement, Ground Lease Agreement, Ground Lease Agreement
Leasehold Mortgages. Lessee (a) Tenant shall have the right during the term of this Lease right, without ------------------- Landlord's prior consent, to mortgage all or any part or part of the Lessee's leasehold interest in created by this Lease, without the prior consent of the Port, and to assign refinance the Lesseesame, at any time and from time to time, under a leasehold mortgage or deed of trust on Tenant's interest in this Lease leasehold estate (herein referred to as collateral security for such leasehold mortgage. All rights acquired by a "Leasehold Mortgage"; the holder of the leasehold mortgage any such Leasehold Mortgage is referred to herein as a "Leasehold Mortgagee"), provided that all rights acquired under such Leasehold Mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None covenants, conditions and restrictions set forth in this Lease.
(b) Landlord agrees that, after its receipt of notice of the terms, covenants or conditions existence of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The a Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving and the name and address of the leasehold mortgageeholder thereof, and thereafter for so long as any such Leasehold Mortgage remains unsatisfied of record, the Port agrees that whenever the Port sends a notice to the Lessee under the terms following provisions shall apply:
(i) There shall be no cancellation, surrender or modification of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by joint action of Landlord and Tenant without the Lessee without prior written consent of the leasehold mortgagee Leasehold Mortgagee, except as the Leasehold Mortgage or any other agreement between Tenant and the Port will not enter into Leasehold Mortgagee may provide or permit.
(ii) Any notice given to Tenant by Landlord shall simultaneously be given to the Leasehold Mortgagee at the address furnished to the Landlord. If such notice pertains to a default or defaults by Tenant, then any amendments Leasehold Mortgagee shall have the right to cure the default complained of within the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result same period from the acquisition by or the devolution upon any one entity date of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the LesseeLeasehold Mortgagee as is given Tenant pursuant to the applicable provisions of this Lease, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port and Landlord agrees to accept a tender of cure of the Leasehold Mortgagee's performance in curing the default from the leasehold mortgagee as fully as if Tenant had cured the cure were tendered default. If a notice advises that Landlord had attempted to terminate this Lease because of the default or defaults of Tenant, then, notwithstanding any provision of this Lease to the contrary, any Leasehold Mortgagee shall have, at its election, the right:
(1) provided that the default or defaults of Tenant can be cured by the Lessee. Providedpayment of money, however, that to nullify any attempted termination as fully as if it takes the leasehold mortgagee more than no default had ever occurred by paying all Rent and other monetary amounts then in default to Landlord within thirty (30) days after the Leasehold Mortgagee's receipt of Landlord's notice of termination; or
(2) to postpone indefinitely any attempted termination of this Lease by giving Landlord, within thirty (30) days after the Leasehold Mortgagee's receipt of Landlord's notice, notice of its intention to foreclose its Leasehold Mortgage, accompanied by its payment of all Rent and other sums payable hereunder then in default, and thereafter, commencing and proceeding with reasonable diligence, to cure a default (other than the payment any defaults reasonably susceptible of any money due under the lease) because the leasehold mortgagee is not in being cured without actual possession of the propertyPremises and to foreclose its Leasehold Mortgage, the lease meanwhile paying all amounts due Landlord under this Lease; such postponement shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession continue until confirmation of the property and diligently pursues its right to possession. No tender foreclosure sale, whereupon such notice of cure of a termination shall be deemed nullified as fully as if no default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Leasehad occurred.
15.5 In (iii) Landlord agrees that in the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate any termination of this Lease or in not approved by Leasehold Mortgagee and upon notice from the event Leasehold Mortgagee given within sixty (60) days after the leasehold mortgagee forecloses date upon its leasehold mortgage and becomes the holder which Leasehold Mortgagee receives written notice of the Lessee's interest in this Leaseany such termination from Landlord, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to Landlord will enter into a new lease Lease for the Premises with the leasehold mortgagee under Leasehold Mortgagee holding the highest priority, or its designee, for the remainder of the Term, commencing as of the date this Lease is terminated as to Tenant but effective as of the date of this Lease and in any event prior to the interest of any subsequent transferee of Landlord's interest in the Premises, at the Rent and otherwise upon the same terms and conditions provisions as this Lease and for any unexpired term of are herein contained. Notwithstanding the lease. The Port's execution and delivery of the lease foregoing, it shall be without any representation or warranty of any kind, including any representations or warranties regarding title a condition to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no Landlord's obligation to enter into a such new lease Lease that the Leasehold Mortgagee, or its designee, pay to Landlord, at the time of execution of such new Lease, all sums due Landlord by reason of Tenant's default hereunder and perform all other obligations which reasonably can be performed without being in possession, together with any leasehold mortgagees unless the dispute is resolved to the PortLandlord's satisfaction within ninety (90) days of the termination of reasonable costs and expenses in terminating this Lease, including reasonable attorneys' fees.
15.6.3 Upon (iv) The Leasehold Mortgagee shall be given notice of any actions or proceedings in bankruptcy or under the execution of the new lease United States Bankruptcy Code by the leasehold mortgagee parties hereto as required by law, and shall have the Port, right to intervene therein and be made a party to such proceedings at its sole cost and expense. Any Leasehold Mortgagee which elects not to intervene or become a party to such proceeding shall have the Port will convey right to the leasehold mortgagee by quit claim deed, title to receive from Tenant a copy of any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage award or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancesdecision made therein.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 2 contracts
Samples: Ground Lease Agreement (Geo Specialty Chemicals Inc), Ground Lease (Geo Specialty Chemicals Inc)
Leasehold Mortgages. Lessee 18.1 Tenant may execute and deliver one or more mortgages, deeds of trust or other leasehold security agreements ("Leasehold Indentures") without the consent of Landlord. If either Tenant or the mortgagee, grantee or corporate trustee under any such Leasehold Indenture sends Landlord a notice advising of the existence of such Leasehold Indenture and the address of the mortgagee, grantee or corporate trustee thereunder for the service of notices, such mortgagee, grantee or corporate trustee shall be deemed to be a "Leasehold Lender." Landlord shall be under no obligation under this Article XVIII to any mortgagee, grantee or corporate trustee under a Leasehold Indenture who is not a Leasehold Lender.
18.2 Upon the occurrence of any Event of Default hereunder by Xxxxxx, written notice to that effect shall be sent by Landlord to each Leasehold Lender at the same time notice of such Event of Default is sent to Tenant, and each Leasehold Lender shall have the same opportunity to cure the default as Tenant has as provided in Section 12.1 herein.
18.3 If any Leasehold Lender or a person designated by a Leasehold Lender shall either become the owner of the interest of Tenant hereunder upon the exercise of any remedy provided for in the Leasehold Indenture or shall enter into a new lease with Landlord as provided in Section 18.4, such Leasehold Lender or such person shall have the right during the term of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign to any person such interest or such new lease upon notice to Landlord without obtaining the Lesseeconsent or approval of Landlord, except that, if neither Tenant nor Guarantor has a net worth of Seventy-Five Million Dollars ($75,000,000) or more, then Landlord's interest in this Lease as collateral security for reasonable consent to such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposesassignment is required.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser 18.4 If this lease is terminated for any reason or transferee of the Lease at any foreclosure sale is rejected or disaffirmed pursuant to bankruptcy law or other transfer authorized law affecting creditors' rights, any Leasehoid Lender, or a person designated by law or by reason of a default under any Leasehold Lender, shall have the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered exercisable by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default Landlord within the time provided for in the lease ten (10) days after the leasehold mortgagee's receipt effective date of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Providedtermination, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee rejection or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees disaffirmance to enter into a new lease of the Demised Premises with Landlord. The term of the leasehold mortgagee under new lease shall begin on the date of the termination of this lease and shall continue for the remainder of the Lease Term. Such new lease shall otherwise contain the same terms and conditions as this Lease those set forth herein, except for requirements which are no longer applicable or have already been performed, provided that all defaults which are susceptible of being remedied by the payment of money shall have been cured, and for any unexpired term provided further that such new lease shall require the tenant thereunder promptly to commence and expeditiously continue to remedy all other defaults on the part of Tenant hereunder to the extent reasonably possible. It is the intention of the parties hereto that such new lease shall have the same priority relative to other rights or interests to or in the fee estate in the land covered by this lease and Landlord covenants to use commercially reasonable efforts to cause to be subordinated to such new lease any lien or encumbrance which is subject to this lease. The Port's execution provisions of this Article XVIII shall survive the termination of this lease and delivery shall continue in full force and effect thereafter to the same extent as if this Section 18.4 were a separate and independent contract by and among Landlord, Tenant and each Leasehold Lender. From the date on which any Leasehold Lender shall serve upon Landlord the aforesaid notice of the exercise of its rights to enter into a new lease, such Leasehold Lender may use and enjoy the Demised Premises without hindrance or interference by Landlord.
18.5 No Leasehold Lender shall become personally liable for the performance or observance of any covenants or conditions to be performed or observed by Xxxxxx unless and until such Leasehold Lender becomes the owner of Tenant's interest hereunder upon the exercise of any remedy provided for in any Leasehold Indenture or enters into a new lease with Landlord as herein provided. Thereafter such Leasehold Lender shall be without any representation liable for the performance and observance of such covenants and conditions only so long as such Leasehold Lender owns such interest or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of is tenant under such new lease.
15.6.1 The Port 18.6 Landlord agrees that the exercise of its rights under this lease in case of an Event of Default shall be obligated to enter into not, if the Leasehold Lender accepts a new lease pursuant to this Article XVIII, result in the merger of the estate of the sublandlord under any sublease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults estate of the Lessee subtenant thereunder. The exercise of any rights of a Leasehold Lender under this Lease Article XVIII shall not relieve Zayre Corp. of its obligations under the lease guarantee and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee Landlord's obligations hereunder shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution be conditioned upon receipt of a written approval or consent by Zayre Corp., within 21 days after the Leasehold Lender provides a notice of its election, acknowledging that the performance of such obligations shall not relieve Zayre Corp. of its obligations under the lease guarantee. If Landlord does not receive such written approval or consent, Landlord may terminate its obligations by delivering a notice of termination to the Leasehold Lender. Failure by Xxxxx to deliver such approval or consent shall not relieve it of any prior liability under its guarantee or of any subsequent liability if Landlord does not terminate Leasehold Lender's new lease and any related conveyanceslease.
15.6.2 If more than one leasehold mortgagee requests 18.7 Without the prior written consent of each Leasehold Lender, Landlord will not accept a new voluntary surrender of this lease or in the event of a dispute between the Lessee estate created hereby and a leasehold mortgagee, the Port shall have no duty will not consent to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination amendment of this Leaselease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 2 contracts
Samples: Lease Agreement (Basic Us Reit Inc), Lease (Basic Us Reit Inc)
Leasehold Mortgages. Lessee 20.1 Tenant shall have the unrestricted right during the term of this Lease at any time and from time to time to mortgage the Lessee's Tenant’s interest in this Leasethe Demised Premises and the Tenant Improvements, without subject, however, to the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for limitations hereinafter set forth. Any such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject and subordinate to each the rights of Landlord hereunder. A mortgage of the Tenant Improvements and/or Tenant’s leasehold interest under this Lease is hereinafter referred to as a “Leasehold Mortgage”, and every termany party to whom a Leasehold Mortgage is granted is hereinafter referred to as a “Leasehold Mortgagee”.
20.2 No Leasehold Mortgagee shall be entitled to enjoy the rights or benefits mentioned herein, covenant and condition nor shall the provisions of this Lease and pertaining to all rights and interests Leasehold Mortgages be binding upon Landlord, unless Landlord shall have been given fifteen (15) days’ prior written notice of the Port. None name and address of any Leasehold Mortgagee together with the terms, covenants or conditions of address for all notices to which the Lease Leasehold Mortgagee shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposesentitled.
15.1 20.3 The Leasehold Mortgage shall contain provisions providing an acknowledgement by the Leasehold Mortgagee that no purchaser or transferee the Leasehold Mortgage shall be subject to all of the terms of this Lease. In no event shall such Leasehold Mortgage affect Landlord’s fee interest in the Demised Premises or Improvements or its reversionary interest in this Lease.
20.4 With respect to any permitted Leasehold Mortgage, Landlord and Tenant agree as follows:
(a) When giving notice to Tenant with respect to any default hereunder, Landlord shall also serve a copy of each such notice upon any Leasehold Mortgagee who shall have given Landlord a written notice specifying its name and address. No such notice shall be effective unless and until served on any Leasehold Mortgagee as herein provided. In the event Tenant shall default in the performance of any of the terms, covenants, agreements and conditions of this Lease at on Tenant’s part to be performed, any foreclosure sale Leasehold Mortgagee shall have the right, within the grace period available to Tenant for curing such default as extended below, to cure or make good such default or to cause the same to be cured or made good whether the same consists of the failure to pay rent or the failure to perform any other transfer authorized obligation, and Landlord shall accept such performances on the part of any Leasehold Mortgagee as though the same had been done or performed by law or by reason Tenant.
(b) In the case of a default under by Tenant in the mortgage where payment of money, Landlord will take no foreclosure sale is required shall further assign or transfer any right, title or interest in or action to effect a termination of this Lease or by reason thereof unless such default has continued beyond thirty (30) days after the leasehold estate covered by fifteen (15)-day grace period for Tenant to cure such payment, it being the Leasehold Mortgage unless intent hereof and the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address understanding of the leasehold mortgagee, the Port agrees parties that whenever the Port sends a notice any Leasehold Mortgagee shall be allowed not less than thirty (30) days in addition to the Lessee fifteen (15)-day grace period granted to Tenant to cure any default of Tenant in the payment of rent or in the making of any other monetary payment required under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it (c) In the cases of any non-monetary default by Tenant, Landlord will not accept take no action to effect a voluntary cancellation or surrender termination of the this Lease by reason thereof unless such default has continued beyond the Lessee without prior written consent of the leasehold mortgagee grace period available to Tenant for curing such default, and the Port will not enter into then only after Landlord shall have given to any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than Leasehold Mortgagee thirty (30) days after the expiration of Tenant’s thirty-day grace period for curing such default within which either:
(i) to commence and diligently proceed to cure a such default, if such default (other than is susceptible of being cured by the payment of any money due under the lease) because the leasehold mortgagee is not in Leasehold Mortgagee without obtaining possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes Demised Premises and Improvements;
(ii) to commence and diligently proceed to obtain possession of the property Demised Premises and diligently pursues its right to possession. No tender of cure of Improvements (including possession by a default by the leasehold mortgagee shall require the leasehold mortgagee receiver) and to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a such default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event case of a default which is personal susceptible of being cured when the Leasehold Mortgagee has obtained possession thereof; or
(iii) to the Lessee (institute foreclosure proceedings and thereafter to complete such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's foreclosure proceedings or otherwise acquire Tenant’s interest under this Lease with reasonable and continuous diligence. A Leasehold Mortgagee shall not be required to continue such foreclosure proceedings if the default which prompted the foreclosure of such has been cured.
(d) During the period that a Leasehold Mortgagee shall be in possession of the Demised Premises or Improvements or during the pendency of any foreclosure proceedings instituted by a Leasehold Mortgagee, the Leasehold Mortgagee shall pay or cause to be paid the Minimum Rent specified in Section 3 and all other rent and charges of whatsoever nature payable by Tenant hereunder which have accrued and are unpaid and which thereafter accrue during said period. Following the acquisition of Tenant’s leasehold estate by the Leasehold Mortgagee, either as a result of foreclosure or acceptance of an assignment in lieu of foreclosure, the Leasehold Mortgagee shall, as promptly as possible commence the cure of all defaults hereunder to be cured and thereafter diligently prosecute such cure to completion.
(e) In the event that this Lease is terminated or canceledby Landlord on account of any default, then at the Landlord shall give prompt written notice thereof to each Leasehold Mortgagee. Landlord, within thirty (30) days after receiving a written request of the leasehold mortgageetherefor, the Port agrees to enter into which shall be given by any Leasehold Mortgagee within thirty (30) days after such termination, will execute and deliver a new lease of the Demised Premises and Improvements to the Leasehold Mortgagee, for the remainder of the term of this Lease, containing the same covenants, agreements, terms, provisions and limitations as are contained herein, provided (i) that the Leasehold Mortgagee shall pay to Landlord, simultaneously with the leasehold mortgagee under delivery of such new lease all expenses including, without limitation, reasonable attorneys’ fees and disbursements and court costs, incurred by Landlord in connection with the same terms and conditions as default by Tenant, the termination of this Lease and for any unexpired term the preparation of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated , and (ii) the Leasehold Mortgagee agrees to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease does commence and has remedied and cured or has commenced and is diligently completing the proceed to cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge under this Lease and remove any persons occupying the premises. The leasehold mortgagee susceptible of being cured by Leasehold Mortgagee.
(f) Nothing herein shall indemnify the Port and hold it harmless preclude Landlord from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with exercising any of Landlord’s rights or remedies with respect to any default by Tenant during any period of any such forbearance, subject to the provisions rights of this Section 15.6any Leasehold Mortgagee as herein provided.
(g) All notices by Landlord to Leasehold Mortgagees shall be given in accordance with Article 28 herein, addressed to the Leasehold Mortgagee at the address last specified to Landlord by the Leasehold Mortgagee.
Appears in 1 contract
Leasehold Mortgages. Notwithstanding the foregoing or anything to ------------------- the contrary contained in the Loan Documents, Lender acknowledges that Lessee shall have has granted Leasehold Mortgages encumbering its lessee interest in and to each of the right during Properties under the term of this Master Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease Leasehold Mortgagees as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each Leasehold Financings and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given Lender consents to the Lessee to assign its interest in this Lease for security purposes.existence of such Leasehold Financings and such Leasehold Mortgages do not constitute a breach of Section
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further 11.1. Borrower agrees that it will not accept a voluntary cancellation grant any request for consent or surrender approval of any additional Leasehold Mortgage (as defined under the Lease by Master Lease), or, to the Lessee extent Borrower has the right to consent to or approve of same under the Master Lease, any amendment or modification of any existing Leasehold Financing or Leasehold Mortgage Document or assignment, in whole or in part, of any existing Leasehold Financing or Leasehold Mortgage Document without Lender's prior written consent, which consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes unreasonably withheld, conditioned or delayed, and without delivery of a Rating Confirmation. Borrower represents and warrants that it has delivered to obtain possession Lender true and complete copies of all Leasehold Mortgage Documents for each of the property and diligently pursues Leasehold Financings in its right possession which Leasehold Mortgage Documents as of April 20, 2001 constituted and, to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the LesseeBorrower's interest in this Leaseknowledge, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs currently constitute all of the obligations and covenants of material documents evidencing and/or securing the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal Leasehold Financings and, to the Lessee Borrower's knowledge, (such as a bankruptcya) and which cansame have not be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated amended or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title modified except pursuant to any improvements on the Property by the Lessee amendment or modification delivered to Lender, (b) such Leasehold Mortgage Documents are in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements full force and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbranceseffect and (c) no defaults exist thereunder.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have the right during the term of this Lease 29.1 C-I Arlington will be entitled, at any time and from time to mortgage the Lessee's interest in this Leasetime, without the prior consent City's consent, and on terms and conditions determined by C-I Arlington to be appropriate, to mortgage, pledge, grant deed(s) of trust, or otherwise encumber all or any portion of the Portleasehold estate created hereby and all or any portion of the right, title, and interest of C-I Arlington under this Parking Lease, and to assign assign, hypothecate, or pledge it as security for the Lesseepayment of any debt to any holder of a promissory note or other evidence of indebtedness (such notes, mortgages, deeds of trust, and other documents evidencing and securing such loans hereinafter referred to as a "Leasehold Mortgage" and a holder of a Leasehold Mortgage as a "Leasehold Mortgagee"), all of which shall be subordinate to the City's interest under this Agreement. After the execution and recordation of any Leasehold Mortgage, C-I Arlington or the Leasehold Mortgagee must notify the City in writing that a Leasehold Mortgage has been given and executed by C-I Arlington and must furnish the City with the 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 C-I Arlington under and pursuant to the terms and provisions of this Lease as collateral security for Parking Lease. The Leasehold Mortgagee will have the same cure rights available to C-I Arlington with respect to any alleged failure by C-I Arlington to perform under this Parking Lease; and if the alleged failure is cured in accordance with the provisions of this Parking Lease, then the City will accept such leasehold mortgage. All rights acquired cure tendered by the holder of Leasehold Mortgagee. No Leasehold Mortgagee will be or become liable to the leasehold mortgage shall be subject to each and every term, covenant and condition City as an assignee of this Parking Lease or otherwise until it expressly assumes such liability in writing, and no assumption may be inferred or result from foreclosure or other appropriate proceedings in the nature thereof, or, as the result of any other action or remedy provided for by any Leasehold Mortgage or other instrument executed in connection with the Leasehold Mortgage or from a conveyance from C-I Arlington pursuant to all which the purchaser at foreclosure (or grantee or transferee in lieu thereof) acquires the rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee C-I Arlington under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Parking Lease, provided the leasehold mortgagee performs all obligations of the obligations and covenants of the Lessee contained in this Lease which C-I Arlington are capable of being performed by the leasehold mortgageefulfilled.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Parking Lease
Leasehold Mortgages. Lessee Section 19.1 The Tenant may at any time or times mortgage or otherwise encumber its rights as Tenant under this Lease for purposes of alterations to the Premises as defined in Article VII; provided that any such mortgage or encumbrance shall contain a provision granting Landlord the right and option, exercisable by written notice within the 30-day period following the recordation of a notice of default, to purchase the Leasehold Mortgagee’s position for cash in an amount equal to the entire balance of principal and interest due and owing by tenant and providing further that Landlord shall have 90 days after the right during recordation of a notice of default in which to complete said purchase.
Section 19.2 Subject to the term provisions of Article X, the Landlord will be deemed to have expressly consented to the assignment of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of any person who purchases this Lease and to all the rights and interests created by it at a sale resulting from foreclosure or an assignment in lieu of foreclosure, of a mortgage on, or other security interest in, the Port. None Tenant’s rights under this Lease (a “Leasehold Mortgagee”).
Section 19.3 If the Landlord gives any notice of the terms, covenants default or conditions of the Lease shall be waived by the Port by reason of the right given termination to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgageeTenant, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port Landlord will contemporaneously send a copy of the notice to each person of whom the leasehold mortgageeLandlord has received written notice who holds a Leasehold Mortgage (a “Leasehold Mortgagee”) at as nearly as possible the same time as the notice is given to the Tenant, at the address specified in writing to the Landlord in the notice of the existence of the Leasehold Mortgage. In no event may the Landlord give a notice of termination to the Tenant unless a copy of the prior notice of default, if any, has been given to each Leasehold Mortgagee as provided in this Section and in time to permit the Leasehold Mortgagee to cure the default as provided in Section 19.4.
15.3 Section 19.4 The Port further agrees Landlord will accept performance by any Leasehold Mortgagee of any obligation of the Tenant under this Lease with the same effect as though timely performed by the Tenant, if performance by the Leasehold Mortgagee is lawful and occurs within the following time periods:
(a) With regard to any payment of rent or any other sum of money due under this Lease from the Tenant, within 10 days after notice of the default in payment is given to the Leasehold Mortgagee; and
(b) As to all other defaults, within 30 days after notice of the Tenant’s default is given to the Leasehold Mortgagee. Any default of a type which cannot with due diligence be cured within 30 days will, for the purposes of this Section, be deemed cured by the Leasehold Mortgagee if within the 30-day period the Leasehold Mortgagee undertakes in writing to the Landlord to cure the default and thereafter proceeds diligently to cure it. If the event of default specified in a notice of default or termination is one of the events specified in Sections 11. 1 (c) or 23.7 the default will be deemed cured if the Leasehold Mortgagee notifies the Landlord within 30 days after the notice of the Tenant’s default is given to the Leasehold Mortgagee that it the Leasehold Mortgagee intends to foreclose its Leasehold Mortgage, the Leasehold Mortgagee proceeds diligently to foreclose the Leasehold Mortgage, the Leasehold Mortgagee or its designee in fact acquires the rights of the Tenant under this Lease, and all other obligations of the Tenant under this Lease are. fulfilled as provided in this Section.
Section 19.5 While there exists an unpaid Leasehold Mortgage of which the Landlord has received written notice, this Lease will not be modified or amended, and the Landlord will not accept a voluntary cancellation termination of this Lease or a surrender of the Lease by Premises, without the Lessee without prior written consent of the leasehold mortgagee and holder of each such Leasehold Mortgage.
Section 19.6 The Tenant may add the Port will not enter into name of any amendments Leasehold Mortgagee as an insured party under any insurance policy the Tenant is required to obtain under this Lease if it is specified in the Leasehold Mortgage or another document that the proceeds of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates insurance are to be divided as provided in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event Section 19.7 If following foreclosure of a default by Leasehold Mortgage of all the Lessee which has not been cured by Tenant’s rights under this Lease, a Leasehold Mortgagee or its designee asks the Lessee or by the leasehold mortgagee and which would permit the Port Landlord to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder enter into a lease of the Lessee's interest in Premises with the Leasehold Mortgagee or its designee for the remainder of the term of this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to Landlord will enter into a new lease with the leasehold mortgagee under Leasehold Mortgagee or its designee for the same terms and conditions as remainder of the term of this Lease, at the rent provided in this Lease and for any unexpired containing all the other terms and provisions of this Lease relating to periods after commencement of the term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney feesthe provisions of Article X, real property transfer taxessubject to the existing rights of any other person to possession of all or a portion of the Premises, escrow fees and recording fees incurred in connection with if
(a) at the preparation and execution of a time the new lease is executed, all rent, Impositions and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a utility charges the Tenant is required to pay under this Lease to the date the new lease is executed have been paid by the Tenant, the Leasehold Mortgagee or its designee;
(b) in case any of the Tenant’s other obligations in this Lease have not been fulfilled, the Leasehold Mortgagee or its designee agrees at the time the new lease is executed that failure to fulfill those obligations within the time and in the manner specified in this Lease will constitute an event of a dispute between default under the Lessee and a leasehold mortgagee, new lease;
(c) the Port shall have no duty to determine Leasehold Mortgagee or its designee pays the relative priority Landlord at the time of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease an amount equal to all previously unreimbursed expense, including reasonable attorneys’ fees, incurred by the leasehold mortgagee and Landlord because of any prior defaults by the Port, Tenant; and
(d) the Port new lease will convey be made subject to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvementsrights, if any, it shall be the responsibility of the leasehold mortgagee Tenant under this Lease.
Section 19.8 Upon request by the Tenant the Landlord will execute, acknowledge and deliver to cancel and discharge this Lease and remove any persons occupying Leasehold Mortgagee an agreement, prepared at the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or Tenant’s expense, including attorney fees, in which may arise from such action or from the Port's compliance with any of Landlord agrees as between the Landlord and the Leasehold Mortgagee to all the provisions of this Section 15.6Article XIX.
Appears in 1 contract
Leasehold Mortgages. Lessee (A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in the GL Property created by this Ground Lease, as well as BNPLC's rights and interests in buildings, fixtures, equipment and Improvements situated on the Land and rents, issues, profits, revenues and other income to be derived by BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease, and of the Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold estate created by this Ground Lease, or of any Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without the consent of Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective until it is so served. Any Leasehold Mortgagee shall have the right during to correct or cure any such default within the term same period of time after receipt of such notice as is given to BNPLC under this Ground Lease to correct or cure defaults, plus an additional period of thirty days thereafter. Lessor will accept performance by any Leasehold Mortgagee of any covenant, condition or agreement on BNPLC's part to be performed hereunder with the same force and effect as though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a disaffirmance or rejection of this Ground Lease to mortgage by BNPLC or any receiver, liquidator or trustee for the Lessee's interest in this Leaseproperty of BNPLC, without the prior consent or by any governmental authority which had taken possession of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder business or property of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port BNPLC by reason of the right given insolvency or alleged insolvency of BNPLC, then:
(1) Lessor shall give notice thereof to the Lessee to assign its interest in this Lease for security purposes.
15.1 The each Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name Mortgagee; and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment request of any money due under the lease) because the leasehold mortgagee is not in possession of the propertyLeasehold Mortgagee made within sixty days after Lessor has given such notice, the lease Lessor shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new ground lease of the GL Property with such Leasehold Mortgagee for the leasehold mortgagee under remainder of the Ground Lease Term, at the same Ground Lease Rent and on the same terms and conditions as contained in this Lease and for any unexpired term Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the new lease, shall have priority equal to the estate of BNPLC hereunder. The Port's execution and delivery That is, there shall be no charge, lien or burden upon the GL Property prior to or superior to the estate granted by such new lease which was not prior to or superior to the estate of BNPLC under this Ground Lease as of the lease shall be without any representation or warranty date immediately preceding the termination of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new leasethis Ground Lease.
15.6.1 The Port (3) Notwithstanding the foregoing, if Lessor shall be obligated receive requests to enter into a new ground lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If from more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgageeLeasehold Mortgagee, the Port Lessor shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation be required to enter into a only one new ground lease, and the new ground lease with any leasehold mortgagees unless the dispute is resolved shall be to the Portrequesting Leasehold Mortgagee who holds the highest priority lien or interest in BNPLC's satisfaction within ninety (90) days leasehold estate in the Land. If the liens or security interests of two or more such requesting Leasehold Mortgagees which shared the highest priority just prior to the termination of this Ground Lease, the new ground lease shall name all such Leasehold Mortgagees as co-tenants thereunder.
15.6.3 Upon (E) If BNPLC has agreed with any Leasehold Mortgagee that such Leasehold Mortgagee's consent will be required to any modification or early termination of this Ground Lease by BNPLC, and if Lessor has been notified of such agreement, such consent will be required.
(F) 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 execution GL Property, unless and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL Property at foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to include, in addition to the items specified in Paragraph 11, confirmation of the new lease by the leasehold mortgagee and the Port, the Port will convey foregoing in any statement provided to the leasehold mortgagee by quit claim deed, title a Leasehold Mortgagee or prospective Leasehold Mortgagee pursuant to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancesParagraph 11.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have Lessee, and every successor and assign of Lessee, is hereby given the right during the term of this Lease right, without Lessor’s consent, to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The or assign this Lease as security, under one or more leasehold mortgages or deeds of trust (each a “Leasehold Mortgage”). If Lessee and/or any successor or assign shall mortgage this Lease, and if the holder at the time in question of any Leasehold Mortgage (the “Leasehold Mortgagee”) shall contain send to Lessor written notice thereof, specifying Leasehold Mortgagee’s name and address, Lessor agrees that the following provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or apply to this Lease or the leasehold estate covered by the such Leasehold Mortgage unless the Port has approved the assignee or transferee and to any successive holders thereof, and shall supersede any inconsistent provisions contained in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms any other section of this Lease, as long as the Port will contemporaneously send Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by such Leasehold Mortgagee to Lessor. Lessor hereby acknowledges notice of the Leasehold Mortgages created pursuant to the Memorandum of Lease, as defined in the Facility Lease.
(a) Lessor shall, upon providing Lessee with notice of default or notice of termination or other notice provided for in this Lease, simultaneously provide a copy of the such notice to each Leasehold Mortgagee. No notice to Lessee under this Lease shall be deemed to have been duly given unless and until a copy thereof has been so served upon each Leasehold Mortgagee. Each Leasehold Mortgagee shall thereupon have the leasehold mortgageesame right as Lessee, but not the obligation, to remedy or to cause to be remedied or to commence to remedy the defaults which are the subject matter of such notice, in addition to the other rights granted to Leasehold Mortgagee in this Section 10.2. Lessor shall accept such performance by or on behalf of Leasehold Mortgagee as if the performance had been done by Lessee.
15.3 The Port further agrees that it will (b) If any Lessee Event of Default (as defined herein) shall occur, Lessor shall have no right to terminate this Lease or exercise any remedies under this Lease, including but not accept a voluntary cancellation limited to, any rights to reenter, repossess or surrender of relet the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger Land, unless Lessor shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of first give to each Leasehold Mortgagee a notice of default from (the Port “Leasehold Mortgagee Notice of Default”), which shall contain a statement of all existing events of default under the Lease. If within thirty (30) days after receipt of such Leasehold Mortgagee Notice of Default, Leasehold Mortgagee shall have cured any stated monetary Lessee Event of Default and/or if within ninety (90) days after receipt of such Leasehold Mortgagee Notice of Default, Leasehold Mortgagee shall have cured or commenced the curing of any stated nonmonetary Lessee Event of Default and shall thereafter prosecute the same to completion with all reasonable diligence, then in such event, but subject to the Lesseeprovisions of Section 10.2(c) below, the leasehold mortgagee may cure Lessor shall not be entitled to terminate this Lease or exercise any default within the time provided for in the lease after the leasehold mortgagee's receipt of such remedy and both the notice of default. The Port agrees default given to accept a tender Lessee and the Leasehold Mortgagee Notice of cure of default from Default given to Leasehold Mortgagee shall be null and void.
(c) In the leasehold mortgagee as if the cure were tendered by the Lessee. Providedevent, however, that if it takes in order to cure such Lessee Event of Default possession of, or title to, the leasehold mortgagee more than thirty (30) days to cure estate would be required, or if the Lessee Event of Default is of such a default (other than the payment of any money due under the lease) because the leasehold mortgagee nature that it is not reasonably susceptible of cure by a Leasehold Mortgagee, Lessor shall not be entitled to terminate this Lease or exercise any such remedy, provided that (i) Leasehold Mortgagee shall notify Lessor within such ninety (90) day period that it has elected to proceed under this Section 10.2(c); and (ii) Leasehold Mortgagee shall (a) cure or cause to be cured any stated monetary Lessee Event of Default as provided in Section 10.2(b) above; and (b) perform or cause to be performed all of Lessee’s other nonmonetary obligations under this Lease which are reasonably susceptible of being performed by Leasehold Mortgagee without having gained possession of the propertyLand and title to the leasehold; and (c) take steps to acquire or sell Lessee’s interest in this Lease by judicial or nonjudicial foreclosure or similar enforcement proceeding of the Leasehold Mortgage, or acceptance of a deed in lieu of foreclosure (“Foreclosure”) or otherwise and prosecute the same to completion with reasonable diligence. If Leasehold Mortgagee is complying with the provisions of this Section 10.2(c), then upon Leasehold Mortgagee’s having caused this Lease to be transferred by Foreclosure or otherwise, this Lease shall continue in full force and effect as a lease between Lessor and Leasehold Mortgagee, its designee, the lease shall not be in default if purchaser of the leasehold mortgagee promptly undertakes to obtain possession estate in any Foreclosure proceedings, or the assignee or transferee of the property leasehold estate under any assignment or transfer, and diligently pursues Leasehold Mortgagee, its right to possession. No tender of cure of a default by the leasehold mortgagee designee or such purchaser, shall require the leasehold mortgagee to with due diligence cure any future defaults by Lessee Event of Default.
(d) Nothing in this Section 10.2, however, shall be construed to require a Leasehold Mortgagee to continue such Foreclosure or other steps after the stated Lessee Event of Default has been cured. If the stated Lessee Event of Default shall be cured and Leasehold Mortgagee shall discontinue such Foreclosure or require the leasehold mortgagee to perform any other term or condition of steps, this Lease shall continue in full force and effect as if Lessee had not defaulted under this Lease.
15.5 (e) In the event of the termination of this Lease prior to the expiration of the Term due to a default Lessee Event of Default, whether due to a bankruptcy event, insolvency, liquidation, reorganization or winding-up or otherwise, whether by summary proceedings to dispossess, by service of notice to terminate, or otherwise, Lessor shall serve upon each 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 Lessee Events of Default, if any, then known to Lessor. Any Leasehold Mortgagee thereupon shall have the option to obtain a new lease in accordance with and upon the following terms and conditions (it being understood and agreed that if more than one (1) Leasehold Mortgagee requests a new lease, the Leasehold Mortgagee with the lien of highest priority shall be entitled to such new lease):
(i) any Leasehold Mortgagee must deliver to Lessor its request for a new lease within sixty (60) days after its receipt of notice that the Lease has been terminated;
(ii) the new lease shall be entered into at the reasonable cost of the Lessee which has not been cured by thereunder, shall be effective as at the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder date of the Lessee's interest in termination of this Lease, and shall be for the Port agrees 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, rights of first refusal and options to accept purchase; and
(iii) the leasehold mortgagee as new lease shall require the Lessee to perform any unfilled obligation of Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable is reasonably susceptible of being performed by such Lessee; and upon the leasehold mortgagee.
15.6 In the event execution of a default which is personal such new lease, Lessor shall allow to the Lessee (named therein, and such as a bankruptcy) and which cannot Lessee shall be cured entitled to, an adjustment in an amount equal to the net income derived by Lessor from the leasehold mortgagee and premises during the Lessee's interest under period from the date of termination of this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority date of execution of such new lease.
15.6.1 (f) Leasehold Mortgagee shall not be deemed to be an assignee or transferee of this Lease or of the leasehold estate by virtue of being the mortgagee under the Leasehold Mortgage so as to require Leasehold Mortgagee to assume the performance of any of the terms, covenants and conditions on the part of Lessee to be performed hereunder. The Port liability of Leasehold Mortgagee, its successors and assigns, shall be obligated limited in all respects to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under its interest in this Lease and has remedied the leasehold estate created hereby.
(g) Any notice or other communication which Lessor shall desire or is required to give to or serve upon Leasehold Mortgagee shall be in writing and cured or has commenced and is diligently completing addressed to each Leasehold Mortgagee at the cure of all non-monetary defaults susceptible to cure by any party other than address set forth in the original Lessee. The leasehold mortgagee shall pay all costs and expenses notice provision of the Portapplicable Leasehold Mortgage, includingas modified by the most recent written notice delivered to Lessor from such Leasehold Mortgagee identifying such Leasehold Mortgagee’s interest in the leasehold and this Lease, but not limited to, attorney fees, real property transfer taxes, escrow fees or at such other address as shall be designated by each Leasehold Mortgage by notice in writing given to Lessor. Any notice or other communication which the Leasehold Mortgagee shall desire or is required to give to or serve upon Lessor shall be in writing and recording fees incurred addressed at the address for Lessor set forth in connection this Lease. Each such notice and communication provided for under this section otherwise shall comply with the preparation and execution requirements of a new lease and any related conveyancesnotice as provided for in Article XIV.
15.6.2 If more than one leasehold mortgagee requests a new lease or in (h) In the event any Leasehold Mortgagee shall request reasonable modifications to this Lease, Lessor agrees that it shall not unreasonably withhold, delay or condition its consent thereto, provided that such modifications do not change the amount, manner or time of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority payment of any of the leasehold mortgages and the Port shall have no obligation Rent due from Lessee to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of Lessor under this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Ground Lease (Cubic Corp /De/)
Leasehold Mortgages. Lessee a. Notwithstanding the delivery of any previous notice to the Leasehold Mortgagee under Section 13.c hereof and the failure of the Leasehold Mortgagee to remedy or cure any default identified in such notice, if this Lease shall terminate early for any reason or be rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors' rights, Lessor shall give notice of such termination, rejection or disaffirmance to the Leasehold Mortgagee in accordance with Section 13.c hereof, such notice to be given prior to the effective date of such termination, rejection or disaffirmance, and the Leasehold Mortgagee, or a person designated by the Leasehold Mortgagee, shall have the right during to enter into a new lease of the Premises with Lessor. Such right shall be exercisable by written notice given to Lessor within thirty (30) days after the date of the Leasehold Mortgagee's receipt of such notice from Lessor. The term of said new lease shall begin on the date of the termination, rejection or disaffirmance of this Lease and shall continue for the remainder of the term of this Lease plus, if the termination arises due to mortgage an "Event of Default" (as defined in the Lessee's interest in this Building A Lease) by Tenant under the Building A Lease (a "Building A Lease Default"), without an additional period of forty-five (45) years from the prior consent expiration date of the Portterm (the “Building A Default Extension Term”), and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of Lessor's Post Encumbrance Proceeds (as defined below). If the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest Building A Default Extension Term is not initially in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default effect under the mortgage where no foreclosure sale is new lease, it shall automatically be instated under the new lease without further notice to or action by any party upon the occurrence of Building A Lease Default. If the Building A Default Extension Term was not required as part of an agreement to purchase or lease the Premises by a third party who required the Building A Default Extension Term as part of such purchase or lease by it, then the Building A Default Extension Term shall further assign or transfer any right, title or interest in or to this Lease or terminate on the leasehold estate covered date that the obligations secured by the Leasehold Mortgage unless are repaid in full and discharged pursuant to the Port has approved terms thereof. If the assignee Building A Default Extension Term was required as part of an agreement to purchase or transferee lease the Premises by a third party who required the Building A Default Extension Term as part of such purchase or lease by it, then any consideration paid for such purchase or lease that is remaining after the obligations secured by the Leasehold Mortgage are repaid in writingfull and discharged pursuant to the terms thereof shall be
b. In connection with the execution and delivery of a new lease pursuant to Section 19.a, Lessor agrees to quitclaim all of Lessor's right, title and interest in Building A to the new lessee thereunder for the remaining term of this Lease (including the Building A Default Extension Term, if applicable). At the expiration or sooner termination of the new lease, Section 11 regarding title to the Building A shall govern.
15.2 In c. Notwithstanding anything herein or in the Building A Lease to the contrary, following any Building A Lease Default, upon written notice given by the Leasehold Mortgagee to Lessor (and without further action, notice or documentation beyond such written notice), the term of this Lease shall be automatically extended for a Building A Default Extension Term commencing upon delivery of the Leasehold Mortgagee’s notice to Lessor. If the Building A Default Extension Term is not required as part of an agreement to purchase or lease the Premises by a third party who required the Building A Default Extension Term as part of such purchase or lease by it, then the Building A Default Extension Term shall terminate on the date that the obligations secured by the Leasehold Mortgage are repaid in full and discharged pursuant to the terms thereof. If the Building A Default Extension Term is required as part of an agreement to purchase or lease the Premises by a third party who required the Building A Default Extension Term as part of such purchase or lease by it, then any consideration paid for such purchase or lease after the obligations secured by the Leasehold Mortgage are repaid in full
d. Neither the Leasehold Mortgagee, nor its successors or assigns, shall have any liability for the performance or observance of any covenants or conditions to be performed or observed hereunder by Lessee unless and until the Leasehold Mortgagee, its successors or assigns, becomes the owner of Lessee's interest hereunder upon the exercise of any remedy provided for in the Leasehold Mortgage or enters into a new lease with Lessor pursuant to subsection a. above. Thereafter, the Leasehold Mortgagee, or its successor or assign (as the case may be) that becomes the owner of Lessee’s interest hereunder or that enters into a new lease, shall be liable for the performance and observance of such covenants and conditions only for so long as such party owns such interest which has been foreclosed or remains lessee under such new lease, and Lessor agrees to look solely to the interest of such party in the Premises in the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee breach or default by such party under the terms of this Lease, and agrees that any judgment or decree to enforce the Port will contemporaneously send a copy obligations of such party shall be enforceable only to the extent of the notice to interest of such party in the leasehold mortgageePremises.
15.3 The Port further agrees that it will e. This Lease cannot accept a voluntary cancellation be cancelled, surrendered, modified, altered or surrender of amended without the Lease by the Lessee without prior written consent of the leasehold mortgagee and Leasehold Mortgagee given in accordance with Section
f. Notwithstanding the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates foregoing, in the property.
15.4 In the event of a notice Building A Lease Default, and the exercise by Leasehold Mortgagee of default its rights under Section 19.a, if Leasehold Mortgagee determines to sell or lease the Premises to a third-party, Leasehold Mortgagee shall obtain from such third-party a bona fide arm’s length written offer (the Port “Offer”), acceptable to Leasehold Mortgagee, to purchase or lease the Lessee, Premises; and Lessor will have the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt “Right of First Refusal” set forth herein. Leasehold Mortgagee shall submit a written copy of the notice of default. The Port agrees Offer to accept a tender of cure of default from Lessor and Lessor has the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than right for thirty (30) days following delivery of the Offer to cure a default Lessor within which Lessor may elect to purchase or lease the Premises (“Acceptance Notice”) on the precise terms and conditions of the Offer (except that if the Offer shall be in whole or in part for consideration other than cash, Lessor shall have the payment right to pay in cash the fair market value of any money due under such non-cash consideration). A failure of Tenant to elect to purchase or lease the leasePremises within the thirty (30) because the leasehold mortgagee is not in possession day period shall be deemed Lessor’s consent to Leasehold Mortgagee's sale or lease of the property, Premises to the lease shall not be third party purchaser or tenant as set forth in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possessionforegoing clause. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event Lessor delivers the Acceptance Notice, Leasehold Mortgagee shall convey or lease the Premises to Tenant at the date of such mutually agreed upon closing date. At closing of a default sale, Leasehold Mortgagee shall deliver the Premises free and clear of all liens, restrictions and encumbrances created by Leasehold Mortgagee, except for the Lessee which has not been cured Permitted Encumbrances, any encumbrances expressly consented or agreed to by Lessor during the Lessee term, liens or encumbrances created or suffered by the leasehold mortgagee and which would permit the Port to forfeit any person or otherwise terminate this Lease entity other than Leasehold Mortgagee or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder contractors performing any portion of work arising by reason of the Lessee's interest in this Lease, failure of a tenant under the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all lease of the obligations Premises to have observed or performed any term, covenant or agreement herein to be observed or performed thereunder, and covenants the lien of any taxes then affecting the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 Premises. In the event of a default which is personal Lessor shall elect not to purchase or lease the Premises, Leasehold Mortgagee may thereafter sell or lease the Premises only to the Lessee (such as a bankruptcythird party making the Offer or its assignee(s) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease only in accordance with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kindthereof, including any representations or warranties regarding title unless a further Offer is submitted to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease Lessor in accordance with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.619.f.
Appears in 1 contract
Leasehold Mortgages. Lessee (A0 By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in the GL Property created by this Ground Lease, as well as BNPLC's rights and interests in buildings, fixtures, equipment and Improvements situated on the Land and rents, issues, profits, revenues and other income to be derived by BNPLC therefrom. (B0 Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease, and of the Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold estate created by this Ground Lease, or of any Improvements, equipment, fixtures and other [Land] property assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without the consent of Lessor. (C0 Lessor shall serve notice of any default by BNPLC hereunder upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective until it is so served. Any Leasehold Mortgagee shall have the right during to correct or cure any such default within the term same period of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, time after receipt of a written such notice from the Lessee giving the name and address as is given to BNPLC under this Ground Lease to correct or cure defaults, plus an additional period of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port thirty days thereafter. Lessor will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease performance by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment Leasehold Mortgagee of any money due under covenant, condition or agreement on BNPLC's part to be performed hereunder with the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property same force and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee effect as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being though performed by the leasehold mortgageeBNPLC.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee (a) The Company shall at all times and from time to time have the right to encumber, pledge or hypothecate all of the Company’s right, title and interest under this Lease pursuant to a Leasehold Mortgage, as security for any debt of the Company (such mortgage, deed to secure debt or other instrument(s) being hereinafter referred to as a “Leasehold Mortgage”, and the holder(s) from time to time of such Leasehold Mortgage being hereinafter referred to as a “Leasehold Mortgagee”), in each case without the consent of either the Issuer or the Holder of the Bond. In the event that a Leasehold Mortgagee shall provide the Issuer with written notice of its name and address (a “Notice of Leasehold Mortgage”), then, following receipt by the Issuer of such Notice of Leasehold Mortgage and for so long as such Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction of such Leasehold Mortgage is given by the Leasehold Mortgagee to the Issuer, the provisions of subsections (b) through (g) of this Section 9.3 shall apply to each such Leasehold Mortgagee. Upon written request of such Leasehold Mortgagee, the Issuer shall acknowledge receipt of a Notice of Leasehold Mortgage by an instrument in recordable form provided to the Issuer by the Leasehold Mortgagee.
(b) No cancellation, rejection, surrender, amendment or modification (other than by expiration of the Lease Term) of this Lease or release of the Company hereunder shall be effective as to any Leasehold Mortgagee unless consented to in writing by such Leasehold Mortgagee. Without limiting the generality of the foregoing, no rejection of this Lease by Company or by a trustee in bankruptcy for the Company shall be effective as to any Leasehold Mortgagee unless consented to in writing by such Leasehold Mortgagee. The Issuer shall, on serving the Company with any notice of any default under this Lease, simultaneously serve a copy of such notice upon each Leasehold Mortgagee. No such notice by the Issuer to the Company shall be deemed to have been duly given unless and until a copy thereof has been so provided to every Leasehold Mortgagee in the manner specified herein. From and after the date such notice has been given to a Leasehold Mortgagee, each such Leasehold Mortgagee shall have an additional 90-day period beyond any period granted to the Company under this Lease for remedying any default specified in such notice or causing the same to be remedied, but the Leasehold Mortgagee shall in no manner be obligated to do so. The Issuer shall accept such cure by or at the instigation of the Leasehold Mortgagee as if the same had been performed by the Company. The Company hereby authorizes each Leasehold Mortgagee to take any such action that such Leasehold Mortgagee deems necessary to cure any such default and does hereby authorize entry upon the Project by each such Leasehold Mortgagee for the purpose of curing such defaults.
(c) In the event that the Issuer shall elect to terminate this Lease by reason of any default of the Company under Article VII, such Leasehold Mortgagee shall have the right, which right shall be exercised, if at all, within thirty (30) days after such Leasehold Mortgagee is notified of the Issuer’s election to terminate the Lease, to postpone and extend the specified date for the termination of this Lease as fixed by the Issuer in its notice of termination for a period of not more than twelve (12) months, provided that such Leasehold Mortgagee shall, during such six (6) month period, (A) pay or cause to be paid any Basic Rent and Additional Rent and other payments and charges payable to the Issuer as the same become due and continue its good faith efforts to perform all of the Company’s other obligations under this Lease, excepting (i) obligations of the Company to satisfy or otherwise discharge any lien, charge or encumbrance against Company’s interest in this Lease or the Project provided that such lien, charge or encumbrance is junior in priority to the lien of the mortgage held by such Leasehold Mortgagee and does not affect the Issuer’s fee simple interest in the Project, and (ii) past non-monetary obligations then in default and not reasonably susceptible of being cured by such Leasehold Mortgagee, and (B) if not enjoined or stayed, take steps to acquire or sell the Company’s interest in this Lease by foreclosure of the Leasehold Mortgage or other appropriate means and prosecute the same to completion with due diligence. If at the end of such twelve (12) month period such Leasehold Mortgagee is complying with the immediately preceding paragraph and such Leasehold Mortgagee is prohibited by any process or injunction issued by any court of competent jurisdiction or by reason of any action in any court of competent jurisdiction from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, this Lease shall not then terminate, and the time for completion by such Leasehold Mortgagee of its proceedings shall continue so long as such Leasehold Mortgagee is enjoined or stayed and thereafter for so long as such Leasehold Mortgagee proceeds in good faith and with due diligence to complete steps to acquire or sell the Company’s interest in this Lease by foreclosure of the Leasehold Mortgage or by other appropriate means. Nothing in this paragraph, however, shall be construed to extend this Lease beyond the original Lease Term, nor to require a Leasehold Mortgagee to continue foreclosure proceedings after a default has been cured. In the event that such default shall be cured and the Leasehold Mortgagee shall discontinue such foreclosure proceedings, this Lease shall continue in full force and effect as if the Company had not defaulted under this Lease. In the event that a Leasehold Mortgagee complies with this subsection 9.3(c) and Leasehold Mortgagee acquires the Company’s right title and interest herein by foreclosure or otherwise, then, upon the acquisition of the Company’s right, title and interest herein by such Leasehold Mortgagee or its designee, or any other purchaser or assignee at a foreclosure sale or otherwise, this Lease shall continue in full force and effect as if the Company had not defaulted under this Lease. The granting of a Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate hereby created, and any conveyance of the leasehold estate created hereby from Company to a Leasehold Mortgagee by foreclosure or otherwise, or from Leasehold Mortgagee as attorney-in-fact of the Company to a purchaser at a foreclosure sale, shall not be deemed to constitute an assignment or transfer of this Lease or of the leasehold estate hereby created requiring the assumption of the obligations of the Company hereunder, but such purchaser or assignee of this Lease and of the leasehold estate hereby created shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of the Company to be performed hereunder from and after the date of such purchase and assignment. Upon such conveyance, the Issuer shall recognize such Leasehold Mortgagee, or any other purchaser or assignee, as the Company hereunder, from and after the date of such sale or assignment, the holder of any Leasehold Mortgage then existing or thereafter placed on the leasehold estate hereby created shall be considered a Leasehold Mortgagee as contemplated by this Lease, and the Leasehold Mortgagee thereunder shall be entitled to receive the benefit of any and all provisions of this Lease intended for the benefit of a Leasehold Mortgagee, subject to the obligations and duties of the Leasehold Mortgagee under this Lease.
(d) In the event that this Lease is terminated as a result of any default by the Company hereunder or any other cause (including, without limitation, a rejection of this Lease by the Company’s trustee in bankruptcy pursuant to II U.S.C. §365 or any equivalent provision of law), the Issuer shall provide each Leasehold Mortgagee with written notice that the Lease has been terminated, together with a statement of all sums which would at that time be due under this Lease but for such termination, and of all other defaults, if any, then known to the Issuer. At the request of the Leasehold Mortgagee, but subject to the conditions hereinafter described, the Issuer shall enter into a new lease (hereinafter referred to as the “New Lease”) of the Project with any Leasehold Mortgagee or its designee for the remainder of the term of this Lease with the same covenants, conditions and agreements (including, without limitation, any and all options to mortgage extend or renew the Lessee's interest in term of this Lease, without but excluding any requirements which have been satisfied by the Company prior consent to termination) as are contained herein, subject only to (1) the conditions of title as the Project are subject to on the date of the Portexecution of the original Lease, (2) the right, if any, of any parties then in possession of any part of the Project by, through or under Company, and to assign (3) the Lessee's lien and encumbrance of any security instrument encumbering the Issuer’s fee simple interest in this Lease as collateral security for such leasehold mortgage. All rights acquired the Project upon receipt by the holder Issuer of a written request from such Leasehold Mortgagee on or before sixty (60) days after the date of the leasehold mortgage Issuer’s notice of termination given pursuant to this subsection 9.3(d) and thereafter, the Company under the New Lease shall have the same right, title and interest in and to the Project as the Company had under this Lease. The obligations of the Issuer to enter into a New Lease shall be subject to each the following conditions:
(i) Such Leasehold Mortgagee or its designee shall pay or cause to be paid to the Issuer at the time of the execution and every term, covenant delivery of such New Lease any and condition all sums which would at the time of execution and delivery thereof be due pursuant to this Lease and to but for such termination and, in addition thereto, all rights and interests of reasonable expenses, including reasonable attorney’s fees, which the Port. None of the terms, covenants or conditions of the Lease Issuer shall be waived by the Port have incurred by reason of the right given Company’s default of which Leasehold Mortgagee has been notified and provided an opportunity to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized cure as required by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and such termination and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this New Lease and has remedied and cured which have not otherwise been received by the Issuer from the Company or has commenced and is diligently completing any other party in interest under the cure of all non-monetary defaults susceptible to cure by any party other than the original LesseeCompany. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of such New Lease, the new lease Issuer shall allow the Company named therein as an offset against the sums otherwise due under this subsection 9.3(d), an amount equal to the net income derived by the leasehold mortgagee Issuer from the Project during the period from the date of termination of this Lease to the date of beginning of the term of such New Lease; and
(ii) Such Leasehold Mortgagee or its designees shall agree to cure any defaults of the Company in the payment of Additional Rent under the terminated Lease of which the Issuer shall have notified Leasehold Mortgagee. The new Company under such New Lease shall, upon entering into such New Lease, acquire all of the right, title and interest of the PortCompany in and to any and all subleases of all or any part of the Project.
(e) So long as any Leasehold Mortgage is in existence, unless all Leasehold Mortgagees shall otherwise expressly consent in writing, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the fee title to the improvements Project and the leasehold mortgagee estate of the Company herein created shall accept not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee title and said leasehold estate by the Issuer or by the Company, or by a third party, by purchase or otherwise.
(f) Notices from the Issuer to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it Leasehold Mortgagee shall be mailed to the responsibility address furnished the Issuer pursuant to Notice of Leasehold Mortgage, and those from the leasehold mortgagee Leasehold Mortgagee to cancel the Issuer shall be mailed to the address designated pursuant to the provisions of Section 12.2 of this Lease. Such notices, demands and discharge requests shall be given in the manner described in Section 12.2 of this Lease and remove any persons occupying shall in all respects be governed by the premises. provisions of that section.
(g) The leasehold mortgagee shall indemnify Issuer shall, at the Port request of the Company, execute, acknowledge and hold it harmless from any obligationsdeliver to a Leasehold Mortgagee an agreement among the Issuer, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of Company and the Leasehold Mortgagee agreeing to all the provisions of this Section 15.69.3.
Appears in 1 contract
Samples: Lease Agreement (Carbo Ceramics Inc)
Leasehold Mortgages. Lessee Tenant shall have the absolute right during to mortgage the leasehold interest herein demised and assign this Lease and all subleases to any Leasehold Mortgagee upon such terms and conditions as the Tenant shall determine, and to enter into any extensions, modifications or amendments of any such leasehold mortgage (provided the Leasehold Mortgagee is a national banking association – like Wachovia or Regions or SouthTrust, or a regional or state bank – like First Bank or Georgia Bank & Trust, or an institutional lender – like New York Life or MONY life insurance companyor TIAA CREFF, or a mortgage securitizer – like Xxxxxx Brothers or CDC Mortgage or GMAC Financing, but not an individual). If Tenant, its successors or assigns, shall mortgage the leasehold interest herein demised, then, as long as any such leasehold mortgage shall remain unsatisfied of record, the following provisions shall apply notwithstanding anything else to the contrary contained in this Lease and any pertinent paragraphs of this Lease shall be determined to be amended so as to provide as follows:
(i) There shall be no cancellation, surrender or modification of this Lease or attornment to any subtenant without the prior written consent of the Leasehold Mortgagee.
(ii) Provided the Leasehold Mortgagee shall register with the Landlord his or its name and address, any notice of default or other material notice by Landlord to Tenant shall also be given to the Leasehold Mortgagee by registered, certified mail or receipted courier delivery.
(iii) In the event Tenant shall be in default hereunder, the Leasehold Mortgagee shall, within the period and otherwise as herein provided, have the right to remedy such default, and Landlord shall accept performance by or at the instigation of the Leasehold Mortgagee as if the same had been done by Tenant. No default on the part of the Tenant (except for non-payment of rent) shall be deemed to exist if steps shall in good faith have been commenced by Tenant or the Leasehold Mortgagee to rectify the same and shall be prosecuted to completion with diligence. Tenant hereby constitutes and appoints the Leasehold Mortgagee, its agent and attorney-in-fact with full power, in Tenant’s name, place and stead, and at Tenant’s cost and expense, to enter upon the Premises and make repairs, remove any violations of law, statutes, ordinances or rule or regulation of governing authorities, and to otherwise perform any of Tenant’s obligations under this Lease, so long as Tenant is in default.
(iv) While such leasehold mortgage remains unsatisfied of record, if an event or events shall occur which shall entitle Landlord to terminate this Lease, and if (i) before the expiration of thirty (30) days after the date of service of notice of termination under this Lease, such Leasehold Mortgagee shall have paid to Landlord all rent and other payments then in default, and (ii) before the expiration of sixty (60) days after the date of service of notice of termination under this Lease, such Leasehold Mortgagee shall have complied or shall be engaged in complying with and is diligently pursuing to completion all other requirements of this Lease, if any, then Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
(v) In the event of the termination of this Lease prior to the natural expiration of its then current term due to default of Tenant, or by operation of law, Landlord shall serve by registered mail upon the 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, then known to Landlord. So long as the Leasehold Mortgagee cures all monetary defaults within thirty (30) days of receipt of such notice or termination and continues to pay all rent and other sums which would be due under the Lease, such Leasehold Mortgagee 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 Leasehold Mortgagee made within sixty (60) days after service of such notice of termination, Landlord shall enter into a new lease of the Premises with such Leasehold Mortgagee, or its designee, as in clause (B) provided.
(B) Such new lease shall be effective as of the date of termination of this Lease, and shall be for the remainder of the term of this Lease and at the rent and upon all the agreements, terms, covenants and conditions hereof, including the covenants pertaining to mortgage Tenant’s right to extend or renew the Lessee's interest term of this Lease. Upon the execution of such new lease, the Tenant named therein shall pay any and all sums which would at the time of its execution be due under this Lease but for the termination as aforesaid, and shall remedy any existing defaults under this Lease and shall pay all expenses, including reasonable counsel fees, court 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, except that with respect to any default which cannot be cured by such Tenant until it obtains possession, such Tenant shall have a reasonable time after it obtains possession to cure such default, provided that said Tenant shall first agree in writing, to proceed diligently to remedy such default after it obtains possession of the Premises.
(vi) If Landlord shall elect to terminate this Lease by reason of default described in subdivision (iii) of Article 15, hereof, the Leasehold Mortgagee shall not only have and be subrogated to any and all rights of Tenant with respect to the curing of any default and have the right to obtain a new lease as above provided, but shall also have the right to postpone and extend the specified date for the termination of this Lease as fixed by the Landlord in a notice of termination given pursuant to the applicable provision of this Lease, without for a period of not more than six (6) months (subject to extension as provided below); provided the prior consent Leasehold Mortgagee shall (a) within thirty (30) days of receipt of notice of termination of this Lease cure all defaults which may be cured by the Portpayment of a sum of money, (b) thereafter throughout the term of said postponement or extension, pay to Landlord such amounts as are from time to time due to Landlord from Tenant pursuant to this Lease, (c) within forty-five (45) days of receipt of notice of termination of this Lease undertake to cure any other existing default of Tenant excepting a default described in subdivision (iii) of Article 15 of this Lease, and (d) forthwith initiate steps to assign the Lessee's acquire Tenant’s interest in this Lease as collateral security for such leasehold mortgageby foreclosure of its mortgage or otherwise. All rights acquired Such right shall be exercised by the holder Leasehold Mortgagee’s giving Landlord notice of the leasehold mortgage shall exercise of the same and curing all defaults which can be subject to each and every termcured by the payment of the sum of money as provided above. If, covenant and condition before the date specified for the termination of this Lease as extended by such Leasehold Mortgagee, Tenant shall be duly removed from possession, and to all rights if an assumption of performance and interests observance of the Port. None covenants and conditions herein contained on the Tenant’s part to be performed shall be delivered to the Landlord by the Leasehold Mortgagee, then and in such event the default under this Lease shall be removed; and provided, further, that if at the end of said six (6) months’ period such Leasehold Mortgagee shall be actively engaged in steps to acquire Tenant’s interest herein, the time for such Leasehold Mortgagee to comply with the provisions of this Article shall be extended for such period as shall be necessary to complete such steps with diligence and continuity, so long as Leasehold Mortgagee pays to Landlord throughout the term of said postponement or extension, such amounts as are from time to time due to Landlord from Tenant pursuant to this Lease.
(vii) Any payment to be made or action to be taken by a Leasehold Mortgagee hereunder as a prerequisite to obtaining a new lease or keeping this Lease in effect shall be deemed properly to have been made or taken by the Leasehold Mortgagee if such payment is made or action taken by a nominee or agent of such Leasehold Mortgagee.
(viii) No Leasehold Mortgagee shall become personally liable under the agreements, terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease unless and until it becomes and then only for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgageelong as it remains, the Port agrees that whenever the Port sends owner of Tenant’s leasehold estate. Upon either a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender repudiation of the Lease by the Lessee without prior written consent Leasehold Mortgagee or any assignment of this Lease by the Leasehold Mortgagee, the Leasehold Mortgagee shall be relieved of any further liability which may accrue hereunder from and after the date of such repudiation or assignment (it being the intention of the leasehold mortgagee parties that once the Leasehold Mortgagee shall succeed to Tenant’s interest hereunder, the repudiation or any and the Port will not enter into any amendments all subsequent assignments, by such Leasehold Mortgagee or its successor(s), shall effect a release of the lease which modifies any material provision liability of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the propertypreceding Leasehold Mortgagee).
15.4 In (ix) Effective upon the event commencement term of a notice any new lease executed pursuant to paragraph (v) of default from the Port this Article, all subleases, if any, shall be assigned and transferred without recourse by Landlord to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due Tenant under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 (x) The Port Leasehold Mortgagee shall be obligated named as an insured, as its interest may appear, in all policies and certificates of fire and hazard insurance carried by the Tenant pursuant to enter the provisions hereof, any anchor tenant lease or the leasehold mortgage. The Leasehold Mortgagee shall pass upon the adequacy and sufficiency of all insurance coverages carried by the Tenant and of the insurers and may require the Tenant to carry insurance in such amounts as it may reasonably require and for such coverages and with such carriers as it may reasonably approve. The originals of the policies of such insurance shall be held by the Leasehold Mortgagee. In such event, certificates thereof shall be delivered to the Landlord. The proceeds of such insurance in case of loss shall be paid to and deposited with a depository as may be agreed upon by the Tenant and Leasehold Mortgagee and any shortage of funds necessary to repair or restore shall also be deposited by Tenant. The depository shall disburse such funds as agreed by Tenant and Tenant’s anchor tenant on approval of the Leasehold Mortgagee subject to the approval of the Leasehold Mortgagee of all plans and specifications for repair and restoration. The Tenant does hereby nominate and appoint the Leasehold Mortgagee, its agent and attorney-in-fact in the Tenant’s name, place and stead, to file proofs of claim, settle and adjust any losses or claims arising under any policy of insurance carried by the Tenant pursuant to the provisions hereof, any anchor tenant lease or leasehold mortgage. All the terms and provisions of Article 11 (Insurance), and all insurance terms and provisions of any anchor tenant lease and leasehold mortgage are hereby incorporated into and made a new lease part of this Paragraph (x), by reference, except as the same are inconsistent with the leasehold mortgagee only if provisions hereof, and shall not pertain to premises liability policies or certificates naming the leasehold mortgagee has remedied Landlord as an insured.
(xi) The parties hereto shall give the Leasehold Mortgagee notice of any condemnation proceedings affecting the Premises. The Leasehold Mortgagee shall have the right to intervene and cured all monetary defaults be made a party to any such condemnation proceedings, and the parties hereto do hereby consent that the Leasehold Mortgagee may be made such party or intervenor. The Tenant’s interest as provided in Article 14 hereof in any award or damages for such taking is hereby set over, transferred and assigned by the Tenant to the Leasehold Mortgagee to the extent of the Lessee under this Lease and has remedied and cured balance of any principal, interest or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee payments due or which shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease thereafter accrue or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved become due to the Port's satisfaction within ninety (90) days of the termination of this LeaseLeasehold Mortgagee.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have the right during the term of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given 10.1 Subject to the Cities’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Lessee may, at any time, or from time to assign time, hypothecate, pledge, encumber or mortgage its interest in this Lease for security purposes.
15.1 The Agreement, the leasehold estate in the Leased Premises created hereby, or any part or parts thereof or interest therein. No mortgage or other encumbrance of the leasehold that is granted by Xxxxxx may encumber the fee or reversionary interest of the Cities in the Leased Premises. So long as Lessee is in compliance with all terms, conditions, and provisions of the Lease, the right of Lessee to mortgage its leasehold estate shall be a continuing right and shall not be deemed to be exhausted by its exercise on one or more occasions. However, it shall be a further condition of Xxxxxx’s right to mortgage its leasehold estate that the mortgagee agree notwithstanding the terms of any mortgage that all insurance proceeds available to Lessee will be applied to repair and restore any damaged building(s) or other improvements located on the Leased Premises. If Lessee shall execute a Leasehold Mortgage of its leasehold estate, and if the holder of such Leasehold Mortgage shall contain provisions providing that no purchaser provide the Cities through the Commission or transferee Airport Manager with notice in the manner described in Article 23 with notice of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the such Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt together with a true copy of a written notice from the Lessee giving such Leasehold Mortgage and the name and address of the leasehold mortgageeLeasehold Mortgagee (as hereinafter defined), the Port agrees that whenever the Port sends a then following receipt of such notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the LesseeCities, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6Article 10 shall apply in respect to such Leasehold Mortgage.
Appears in 1 contract
Samples: Ground Lease Agreement
Leasehold Mortgages. Lessee (A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in the GL Property created by this Ground Lease, as well as BNPLC's rights and interests in buildings, fixtures, equipment and Improvements situated on the Land and rents, issues, profits, revenues and other income to be derived by BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease, and of the Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold 45 Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold estate created by this Ground Lease, or of any Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without the consent of Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective until it is so served. Any Leasehold Mortgagee shall have the right during to correct or cure any such default within the term same period of time after receipt of such notice as is given to BNPLC under this Ground Lease to correct or cure defaults, plus an additional period of thirty days thereafter. Lessor will accept performance by any Leasehold Mortgagee of any covenant, condition or agreement on BNPLC's part to be performed hereunder with the same force and effect as though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a disaffirmance or rejection of this Ground Lease to mortgage by BNPLC or any receiver, liquidator or trustee for the Lessee's interest in this Leaseproperty of BNPLC, without the prior consent or by any governmental authority which had taken possession of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder business or property of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port BNPLC by reason of the right given insolvency or alleged insolvency of BNPLC, then:
(1) Lessor shall give notice thereof to the Lessee to assign its interest in this Lease for security purposes.
15.1 The each Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name Mortgagee; and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment request of any money due under the lease) because the leasehold mortgagee is not in possession of the propertyLeasehold Mortgagee made within sixty days after Lessor has given such notice, the lease Lessor shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new ground lease of the GL Property with such Leasehold Mortgagee for the leasehold mortgagee under remainder of the Ground Lease Term, at the same Ground Lease Rent and on the same terms and conditions as contained in this Lease and for any unexpired term Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the new lease, shall have priority equal to the estate of BNPLC hereunder. The Port's execution and delivery That is, there shall be no charge, lien or burden upon the GL Property prior to or superior to the estate granted by such new lease which was not prior to or superior to the estate of BNPLC under this Ground Lease as of the lease shall be without any representation or warranty date immediately preceding the termination of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new leasethis Ground Lease.
15.6.1 The Port (3) Notwithstanding the foregoing, if Lessor shall be obligated receive requests to enter into a new ground lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If from more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgageeLeasehold Mortgagee, the Port Lessor shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation be required to enter into a only one new ground lease, and the new ground lease with any leasehold mortgagees unless the dispute is resolved shall be to the Portrequesting Leasehold Mortgagee who holds the highest priority lien or interest in BNPLC's satisfaction within ninety (90) days leasehold estate in the Land. If the liens or security interests of two or more such requesting Leasehold Mortgagees which shared the highest priority just prior to the termination of this Ground Lease, the new ground lease shall name all such Leasehold Mortgagees as co-tenants thereunder.
15.6.3 Upon (E) If BNPLC has agreed with any Leasehold Mortgagee that such Leasehold Mortgagee's consent will be required to any modification or early termination of this Ground Lease by BNPLC, and if Lessor has been notified of such agreement, such consent will be required.
(F) 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 execution GL Property, unless and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL Property at foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to include, in addition to the items specified in Paraxxxxx 00, confirmation of the new lease by the leasehold mortgagee and the Port, the Port will convey foregoing in any statement provided to the leasehold mortgagee by quit claim deed, title a Leasehold Mortgagee or prospective Leasehold Mortgagee pursuant to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancesParagraph 11.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall If you rent or lease your Property from someone else, you certify that: You lease your Property under a valid lease, you have given us a copy of that lease and you have good leasehold title to your Property; You have paid all rents and other payments required under the lease and you have kept all of your other promises in the lease, up to the date you sign or authorize the Mortgage. You authorize us to obtain information on the rents you paid and your promises in the lease directly from the landlord. You release to us any information or documents the landlord may have and to which you are entitled; You either have the consent of your landlord to the Mortgage, or you have the right during to charge your interest in the lease to us, without consent; If the Property is located in a national or provincial park, you have obtained consent from the appropriate government, if necessary, to the Mortgage; and There are no limitations on your interest in the lease except for any set out in the lease, or restrictions registered in the land registry office. From now on, you promise that: You will pay rents and other payments required by the lease when due; You will do everything you are required to do under the lease; You will not surrender or transfer your interest in the lease or cause it to be terminated or transferred; You will not make any change in the lease without our approval; You will immediately give us a copy of any notice or demand you receive about the lease; You will, at your expense, do anything that we think necessary to ensure that all your interest in your Property and in the lease is covered by the Mortgage and that the Outstanding Amount is adequately secured; If you default under the lease, and we pay anyone else, as required by law or to protect our security, you will pay us back. If you do not pay us back, the amount we paid will be added to the Outstanding Amount; You will hold the last day of the term of the lease or of any renewal term in trust for us and will only deal with it as we require. At our request, but at your expense, you will transfer to us the last day of the term of the lease or of any renewal; We may remove you or any other person as trustee of this Lease to trust and appoint a new trustee; You must not let any renewal or other options lapse. Unless we tell you otherwise, you must renew the lease or exercise any other option so that the lease will continue as long as the Mortgage is outstanding, and provide us with evidence as we may require; If you subsequently buy the interest of the registered owner in the Property from the owner or otherwise become the owner of it, you hereby grant a mortgage the Lessee's and charge all of your interest in this Leasethe Property to us, without the prior consent such mortgage to take effect on your acquiring ownership of the Port, and to assign Property. The mortgage will automatically become a mortgage on the Lessee's entire interest in this Lease the Property, as collateral security for such leasehold mortgageif you had owned the Property at the time that we advanced you the Principal Amount. All rights acquired by the holder of the leasehold If we ask, you agree to execute a mortgage shall be subject to each and every termany other documents we ask, covenant and condition of this Lease and to covering all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its your interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee the Property on the same terms as the Mortgage; If you fail to keep any of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default your promises under the mortgage where no foreclosure sale is required shall further assign or transfer any rightlease, title or interest in or to this Lease or we can treat that as if you had defaulted under the Mortgage and we can exercise our rights under Section 22; If the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Mortgage ceases to exist or is terminated for any reason, it will be considered a Default under Section 1522 above; If we enforce our rights under the Mortgage, after receipt of a written notice from then you will hold the Lessee giving the name and address last day of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments term of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due renewal in trust for any person to whom we sell your interest in your Property; and You irrevocably appoint us as your attorney so that we, on your behalf and in your name, may deal with the Property, enforce the lessor’s promises under the lease) because , exercise any option to renew and assign the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility last day of the leasehold mortgagee to cancel term and discharge this Lease of any renewal, and remove any persons occupying the premisestransfer your interest in your Property. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance This is a right coupled with any of the provisions of this Section 15.6an interest.
Appears in 1 contract
Samples: Mortgage Agreement
Leasehold Mortgages. Lessee (a) Tenant shall have the right during to enter into any recordable leasehold mortgage to the term 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 Tenant’s successors or assignees, mortgages or grants to mortgage the Lessee's a leasehold mortgagee or lender a security interest in this Lease, without the prior consent of the Port, and to assign the Lessee's Tenant’s interest in this Lease as collateral security for such and the Premises, and if the leasehold mortgage. All rights acquired by the holder 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 holder to Landlord, the following provisions shall apply:
(i) There shall be subject to each and every termno cancellation, covenant and condition surrender, acceptance or surrender, amendment, or modification of this Lease by joint action of Landlord and to all rights and interests of the Port. None of the termsTenant, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any rightTenant alone, title or interest without in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15each case, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into holder. Nor shall any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by by, or the devolution upon upon, any one entity of the fee and the leasehold estates in of the propertyPremises.
15.4 (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 notice upon the holder. However, Landlord’s failure to deliver such notice to the holder shall not constitute a default or breach by Landlord under this Lease. Nevertheless, Landlord may not undertake any action to enforce any of its rights under this Lease and in connection with the notice given to Tenant unless and until a copy of the same is served upon the holder.
(iii) In the event of a any default by Tenant under this Lease, the holder shall have, after service of notice of such default upon the holder, 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 from given by Landlord shall state the Port amounts of rent and whatever other payments are being claimed to be in default.
(iv) Landlord agrees that (y) the Lesseeholder shall have the right, but not the leasehold mortgagee may cure obligation, to remedy any default within by Tenant under this Lease by performing any applicable term, covenant, condition or agreement of this Lease, and (z) Landlord shall accept such performance by the time provided for in holder with the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee same force and effect as if furnished by Tenant, subject to and in accordance with the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition provisions of this Lease.
15.5 In (v) Not more than twice during any calendar year, Landlord, within ten business (10) days after a request in writing by Tenant or the event of holder, shall furnish a default written statement, duly acknowledged, that this Lease is in full force and effect and that there are no defaults thereunder by Tenant, or if there are any defaults, such statement shall specify the Lessee which defaults Landlord claims to exist, and that this Lease has not been cured 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 the Lessee judicial proceedings or by virtue of any power of sale contained in the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate mortgage, (y) any conveyance of Tenant’s interest in this Lease and the Premises from Tenant to the holder, or its nominee or designee (“Nominee”), by virtue of or in the event the leasehold mortgagee forecloses upon lieu of foreclosure or other appropriate proceedings, and (z) if holder, or its leasehold mortgage and Nominee, becomes the holder of Tenant’s interest in this Lease and the Lessee's Premises, the conveyance of such interest by holder, or its Nominee, to: (A) another creditworthy convenience store operator or other creditworthy operator of the Use 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 liabilities of the Port agrees holder, or its Nominee, 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 accept 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 ten (10) days after the date of service of notice of termination upon such leasehold mortgagee, such leasehold mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and other payments herein provided for, and then in default, and shall have complied or shall commence the work of complying with all of the 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 no effect.
(d) The proceeds from any insurance policies or arising from a condemnation of Tenant’s interest in the Premises are to be held by any leasehold mortgagee and distributed pursuant to the provisions of this Lease, but the leasehold mortgagee as may reserve rights to apply to the Lessee under this Leasemortgage debt all, provided the leasehold mortgagee performs all or any part, of the obligations and covenants Tenant’s share of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgageesuch proceeds pursuant to such mortgage.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcye) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs be given notice of any arbitration proceedings by the parties hereto, and expenses of shall have the Portright to intervene therein and be made party to such proceedings, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in parties hereto do hereby consent to such intervention. In the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and that the leasehold mortgagee shall accept the title not elect to the improvements subject intervene or become party to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvementssuch proceedings, if any, it shall be the responsibility of the leasehold mortgagee shall receive notice of, and a copy of, any award or decision made in said arbitration proceedings.
(f) The term “mortgage,” whenever used herein, shall include whatever security instruments are used in the locale of the Premises, such as, without limitation, deeds to cancel secure debt, deeds of trust, and discharge this Lease conditional deeds, as well as financing statements, security agreements, and remove any persons occupying other documentation required pursuant to the premisesUniform Commercial Code. The leasehold mortgagee term “mortgage”, whenever used herein, shall indemnify the Port and hold it harmless from also include any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance instrument required in connection with any of the provisions of this Section 15.6a sale-leaseback transaction.
Appears in 1 contract
Samples: Lease Agreement (Pantry Inc)
Leasehold Mortgages. Lessee Landlord agrees that Tenant shall have the right during the term of this Lease to mortgage the Lessee's interest and collaterally assign its interests in this Lease, including without the prior consent of the Portlimitation granting security interests for Small Business Administration loans, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. provided that:
(a) All rights acquired by the holder of the leasehold mortgage under such mortgages and assignments shall be subject to each and every termall of the conditions, covenant covenants and condition of restrictions set forth in this Lease Lease, and to all rights and interests of the Port. None Landlord herein, none of the terms, covenants or conditions of the Lease which shall be waived by the Port Landlord by reason of the Tenant's right given to the Lessee to so mortgage and assign its interest in this Lease for security purposesLease. Tenant shall promptly provide Landlord with copies of any and all leasehold mortgages and assignments and any related documents.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser (b) No modification or transferee cancellation of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the by joint action of Landlord and Tenant shall be binding upon a leasehold estate covered by the Leasehold Mortgage mortgagee unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a thirty (30) days' prior written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice thereof has been given to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the such leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into (c) Landlord shall, upon serving Tenant with any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept , also serve a tender copy of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses such notice upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the any leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lesseemortgage. The leasehold mortgagee shall pay all costs have the same length of time afforded Tenant under this Lease to remedy the default noticed, and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyancesLandlord shall accept performance by such leasehold mortgagee as if same had been performed by Tenant.
15.6.2 If more than one leasehold mortgagee requests a new lease or in (d) In the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction Tenant has not obtained its Small Business Administration loan within ninety (90) days after the Effective Date, this Lease shall terminate and the parties shall have no further liabilities or obligations hereunder, except those that have arisen or accrued.
(e) The leasehold mortgagee or its assignee shall have the right to acquire Tenant's leasehold at foreclosure sale or by an assignment in lieu thereof, and shall then have the unqualified right to reassign the leasehold estate and to exercise any options available to Tenant under this Lease; provided, however, that any subsequent assignment of the leasehold estate shall be subject to the provisions of Section 9 hereof.
(f) The leasehold mortgagee shall be bound by the terms of Sections 12 and 13 of this Lease with respect to any casualty or condemnation affecting the Premises; provided, however, that in the event of a casualty or condemnation that results in a termination of this Lease.
15.6.3 Upon the execution of the new lease Lease by the leasehold mortgagee and the PortLandlord, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title be entitled to receive from any insurance proceeds or condemnation award attributable to the Premises improvements subject (but not to any existing encumbrances.
15.6.4 Upon the execution land itself) that part of a new lease and the conveyance of title to improvementsits loan, if any, it that represents either the original cost of such Premises improvements, any expansion or renovation of such Premises improvements, or any refinancing of such costs.
(g) In no event shall be the responsibility of the leasehold mortgagee to cancel and discharge this Section 26 or anything contained elsewhere in this Lease and remove be deemed or construed to require or constitute a subordination of Landlord's fee simple interest in the Premises to any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligationsborrowings or obligations of Tenant, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6for whatever purpose they might be incurred.
Appears in 1 contract
Leasehold Mortgages. Lessee 37.1 Tenant shall at all times and from time to time have the right to encumber by mortgage, deed of trust, or security agreement (each a “Leasehold Mortgage”) Tenant’s leasehold estate in the Premises, together with Tenant’s rights and interests in all improvements, fixtures, equipment, and alterations situated thereon, and all rents, issues, profits, revenues, and other income to be derived by Tenant therefrom, to secure such loans from time to time made by any bona fide third-party lender that is unaffiliated with Tenant (a “Leasehold Mortgagee”) to Tenant; provided, however, that such Leasehold Mortgage shall in no event encumber Landlord’s fee title and interest in the Premises.
37.2 Landlord shall deliver notice of any default by Tenant under this Lease to any Leasehold Mortgagee provided Tenant or such Leasehold Mortgagee shall have notified Landlord in writing of the existence of the Leasehold Mortgage under this Lease and the address to which notices should be delivered, and no notice of default shall be deemed effective against a Leasehold Mortgagee whose identity and address has been provided to Landlord until it is so delivered. A Leasehold Mortgagee shall have the right during (but not the term obligation) to correct or cure any such default within the same period of this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, time after receipt of a written such notice from the Lessee giving the name and address as is given to Tenant herein to correct or cure defaults, plus an additional period of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days thereafter. Landlord will accept Leasehold Mortgagee’s performance of any covenant, condition, or agreement on Tenant’s part to be performed under this Lease with the same force and effect as though performed by Tenant. Notwithstanding the foregoing, if Landlord has given such Leasehold Mortgagee more than two such default notices in any twelve (12) month period, then, with respect to any subsequent default, such Leasehold Mortgagee shall no longer have such additional time to cure a default but shall have the same (other than the payment of any money due under the leasei.e., coterminous) because the leasehold mortgagee is not in possession of the propertycure period, the lease shall not be in default if the leasehold mortgagee promptly undertakes any, available to obtain possession of the property and diligently pursues its right Tenant pursuant to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default 37.3 Leasehold Mortgagee or any purchaser in foreclosure proceedings, including any business entity formed by the Lessee which has not been cured by the Lessee Leasehold Mortgagee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the note or other obligations and covenants of the Lessee contained in this Lease which are capable of being performed secured by the leasehold mortgagee.
15.6 In Leasehold Mortgage, may become the event legal owner and holder of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and the alterations, equipment, fixtures and other property assigned as additional security for any unexpired term such Mortgage, by foreclosure of the lease. The Port's execution and delivery Mortgage or as a result of assignment or conveyance in lieu of foreclosure.
37.4 Tenant shall, promptly upon receipt of any notice of default under or acceleration of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults maturity of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible Leasehold Mortgage, deliver a copy thereof to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyancesLandlord.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Lease Agreement (Rae Systems Inc)
Leasehold Mortgages. Lessee shall have the right during the term of this Lease Landlord covenants and agrees to mortgage the Lessee's interest in this Leasecooperate with Tenant and each lender providing financing to Tenant (each, without the prior consent of the Porta “Leasehold Mortgagee”), and from time to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject time, at no out-of-pocket cost to each and every termLandlord, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee extent such financing is, or is intended to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized be, secured by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or encumbering the leasehold estate covered by of Tenant hereunder or any part thereof. Landlord acknowledges and agrees that the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address vast majority of the costs of constructing the improvements as contemplated herein will be obtained through leasehold mortgageefinancing. Accordingly, the Port Landlord covenants and agrees that whenever the Port sends to provide each Leasehold Mortgagee of which Landlord has notice with a notice reasonable means to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee protect and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee preserve its lien and leasehold estates security interest in the property.
15.4 In Premises upon the event occurrence of an Event of Default by Tenant hereunder. Landlord, Tenant and each Leasehold Mortgagee shall execute, acknowledge and deliver to one another one or more agreements, in form and substance reasonably acceptable to such Leasehold Mortgagee(s) to facilitate the closing of such leasehold mortgage financing transaction(s) (each, a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided“Recognition Agreement”); provided, however, that if it takes Landlord will not have any obligation to enter into any agreement that will affect the Term or the Rent due hereunder, or substantially increase the obligations or materially adversely affect any rights of Landlord hereunder, except as expressly set forth herein, nor shall Landlord be obligated to subordinate its fee estate to any Leasehold Mortgagee, execute any document creating personal liability on the part of Landlord or otherwise subject Landlord or its interests in the Property to liability on account of such leasehold mortgagee more than thirty financing beyond that expressly granted to Tenant pursuant to this Lease. Each such agreement shall provide, inter alia, that each Leasehold Mortgagee shall have the following rights: (30i) days copies of all notices to cure a default (other than Tenant under this Lease shall be provided contemporaneously to the payment of any money due under the lease) because the leasehold mortgagee is not in possession Leasehold Mortgagee, provided that Landlord has been provided with written notice of the propertyaddress to which such notices should be sent, (ii) Landlord’s failure to so provide each Leasehold Mortgagee with copies of notices to Tenant shall render the lease shall not be subject of such notice non-binding on such Leasehold Mortgagee, (iii) in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by Tenant hereunder, such Leasehold Mortgagee shall have the Lessee same concurrent notice and grace periods as are required to be given to Tenant to cure the same hereunder or after Landlord has provided such Leasehold Mortgagee with such notice, whichever is later, plus, in each instance, an additional ninety (90) days after the expiration of same; or where Leasehold Mortgagee’s ability to cure such Event of Default is contingent upon such Leasehold Mortgagee (or its designee) taking possession of the Premises and such Leasehold Mortgagee has commenced to take such action(s) as may be required to so take possession within such additional ninety (90) day period, such additional period of time as is reasonably required to complete such action(s), take possession of the Premises and cure such Event of Default (except in the case of a monetary default hereunder, in which has event such Leasehold Mortgagee shall not been cured have any additional cure period beyond the ninety (90) day period described above), (iv) Leasehold Mortgagee, without prejudicing any of its rights or remedies, shall have the right to cure any default or Event of Default of Tenant within the notice and cure periods set forth herein and/or the Recognition Agreement and Landlord shall be required to accept such performance and/or payment (and such Leasehold Mortgagee is and shall be authorized to enter upon the Premises for such purposes), (v) if the Lease shall be terminated due to a failure to cure an Event of Default, such Leasehold Mortgagee shall have the right, subject to approval by the Lessee or by the leasehold mortgagee and which would permit the Port applicable gaming authority, to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to require that Landlord enter into a new and separate lease with the leasehold mortgagee under such Leasehold Mortgagee or its designee on the same terms and conditions as this Lease and for any unexpired term Lease, provided that such Leasehold Mortgagee (or its designee) thereafter cures all Events of the lease. The Port's execution and delivery Defaults within ninety (90) of the lease shall be without any representation or warranty of any kindwritten notice from Landlord, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or (vi) in the event of a dispute between the Lessee and default by Tenant under a leasehold mortgageemortgage, the Port applicable Leasehold Mortgagee shall be entitled to enforce all of its rights and remedies as provided for therein (provided that no Leasehold Mortgagee shall have no duty rights in addition to determine those of Tenant hereunder other than as expressly set forth in this Section 23), (vii) this Lease may be assigned, without the relative priority consent of Landlord, but subject to approval of the leasehold mortgages and the Port shall have no obligation applicable gaming authority to enter into a new lease with any leasehold mortgagees unless the dispute is resolved such Leasehold Mortgagee or its designee, but otherwise subject to the Port's satisfaction within ninety (90) days of the termination terms and conditions of this Lease.
15.6.3 Upon , and (viii) no surrender, other than upon the execution of the new lease by the leasehold mortgagee and the PortExpiration Date, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be effective as against such Leasehold Mortgagee unless expressly consented to in "as is" condition without any warranty or representation writing by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancessuch Leasehold Mortgagee.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Ground Lease (Trump Entertainment Resorts Funding Inc)
Leasehold Mortgages. Lessee shall have the right during the term of this Lease Tenant may, from time to time, execute a mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign otherwise encumber its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized (including by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any rightsublease and sub-sublease back), title or and its leasehold interest in or to this Lease or the leasehold estate covered by Land (the “Leasehold Estate”), and, in connection therewith, assign the rents, issues and profits from the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of Estate to a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms mortgagee (“Leasehold Mortgagee”). Notwithstanding any other provisions of this Lease, the Port will contemporaneously send a copy any transfer of the notice Leasehold Estate pursuant to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender in lieu of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event foreclosure of a notice of default from leasehold mortgage (a “foreclosure”) shall not require Landlord’s consent. Upon a Leasehold Mortgagee or foreclosure purchaser acquiring the Port to the LesseeLeasehold Estate, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease such acquiring party shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee required to perform any of Tenant’s covenants or other term obligations which can be performed only by Tenant, and shall have no personal liability, direct or condition indirect, to Landlord for payment of Base Rent, Additional Rent or other charges or for satisfaction of any other claims based on events occurring prior to such party’s acquisition of the Leasehold Estate, nor for conditions existing on such date. Any such person may thereafter assign this Lease without Landlord’s consent to a person or entity meeting the transfer requirements in Article 4 of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee Lease and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee such Leasehold Mortgagee shall have no liability for any obligations under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal arise after, or relate to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgageeany period following, the Port agrees to enter into effective date of such assignment. If the Building is materially damaged before or after a new lease with Leasehold Mortgagee or its designee acquires the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the PropertyLeasehold Estate, the improvements Leasehold Mortgagee or the priority of such new lease.
15.6.1 The Port its designee shall be obligated to enter into a new lease with repair or reconstruct the leasehold mortgagee improvements only if to the leasehold mortgagee has remedied and cured all monetary defaults extent that the cost of the Lessee under this Lease repair or reconstruction can be paid from the net insurance proceeds received by the Leasehold Mortgagee or its designee by reason of such damage. Notwithstanding the foregoing, anyone who acquires the Leasehold Estate by virtue of foreclosure or assignment in lieu of foreclosure shall be subject (as between it and has remedied the City) to Tenant’s Limited Joinder to the Redevelopment Agreement and cured or has commenced and is diligently completing shall if requested by the cure of all non-monetary defaults susceptible City, executed a Limited Joinder to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or Redevelopment Agreement in the event of a dispute between same form as the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this LeaseLimited Joinder signed by Tenant.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have the right during the term of SECTION 20.1. Notwithstanding anything contained in this Lease to the contrary, Tenant is hereby given the right, without Landlord’s prior consent, to mortgage the Lessee's its interest in this Lease, without Tenant’s interest in the prior consent of Building and improvements on the PortPremises, or any part thereof or property therein, and any sublease, under one or more leasehold mortgage(s) and to assign the Lessee's interest in this Lease and any sublease as collateral security for such leasehold mortgage. All mortgages, upon the condition that all rights acquired by the holder of the leasehold mortgage under such mortgages shall be subject to each and every termall of the covenants, covenant conditions and condition of restrictions set forth in this Lease Lease, and to all rights and interests of the Port. None Landlord herein, none of the termswhich covenants, covenants conditions or conditions of the Lease restrictions is or shall be waived by the Port Landlord by reason of the right given to the Lessee to assign its so mortgage such interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any rightLease, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes except as may be expressly provided in this Section 15Article XX.
SECTION 20.2. If Tenant shall mortgage this leasehold pursuant to the provisions hereof, after receipt and if the holder(s) of any such mortgage(s) shall send to Landlord a true copy thereof, together with written notice from the Lessee giving specifying the name and address of the mortgagee(s) and the pertinent recording data with respect to such mortgage(s), Landlord agrees that so long as any such leasehold mortgageemortgage(s) shall remain unsatisfied, the Port 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 same period, after service of such notice upon it, as is allowed to Tenant, to remedy or cause to be remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of the leasehold mortgagee(s) in response to any such notice of default as if the same had been performed by Tenant;
(c) Anything herein contained notwithstanding, while such leasehold mortgage(s) remains unsatisfied, or until written notice of satisfaction is given by the holder(s) thereof 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 fifteen (15) 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 other payments herein provided for and then in default, and shall have complied or commenced the work of complying with all of the other requirements of this Lease except as provided in paragraph (g) of this Section 20.2, 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 no effect.
(d) If Landlord shall elect to terminate this Lease by reason of 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, but shall also have the right to postpone and extend the date for the termination of this Lease as specified by Landlord in its notice of termination for a period of not more than six (6) months, provided that such leasehold mortgagee(s) shall cure or cause to be cured any then-existing monetary defaults and meanwhile pay the rent and all other charges 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 leasehold mortgagee(s) shall forthwith take steps to acquire or sell Tenant’s interest in this Lease by foreclosure of the leasehold mortgage(s) or otherwise and shall prosecute the same to completion with 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 for such mortgagee(s) to comply with the provisions of this Section 20.2 shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity; provided that during such period the leasehold mortgagee(s) shall continue to pay the rent and other charges and perform all other terms, conditions and provisions of this Lease on Tenant’s part to be complied with and performed; provided, further, that the total period extended to the leasehold mortgagee(s) under this subsection (d) shall not exceed twelve (12) months.
(e) Landlord agrees that whenever the Port sends name of the leasehold mortgagee(s) may be added as a notice loss payee to 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 documents shall so provide.
(f) Landlord agrees that in the event of termination of this Lease by reason of the bankruptcy or insolvency of Tenant, Landlord will enter into a new lease of the Premises with the leasehold mortgagee(s) or its nominee(s) or its assignee(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 contained herein and subject only to the Lessee same conditions of title as this Lease is subject to on the date of execution hereof together with any exceptions to title created by or at the behest of Tenant, and to the rights, if any, of the parties then in possession of any part of the Premises, provided Landlord and Landlord’s mortgagee approves of the financial credit standing of the new tenant, which approval shall be in its sole discretion and provided, further:
(i) said leasehold mortgagee(s) or its nominee(s) or assignee(s) shall make written request upon Landlord for such new lease within thirty (30) days after the date of such termination and such written request shall be accompanied by payment to Landlord of all sums due to Landlord under this Lease;
(ii) said leasehold mortgagee(s) or its nominee(s) or assignee(s) shall pay to Landlord at the time of the execution and delivery of such new lease, any and all sums which would at the time of the execution and delivery thereof be due pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney’s fees, which Landlord shall have incurred by reason of such default;
(iii) said mortgagee(s) or its nominee(s) or assignee(s) shall perform and observe all covenants herein contained on Tenant’s part to be performed and shall further remedy any other condition 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 and 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 Port will contemporaneously send a copy performance of all of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender obligations of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due tenant under the new lease;
(iv) because the leasehold mortgagee is Landlord shall not in warrant possession of the property, Premises to the tenant under the new lease;
(v) such new lease shall not be expressly made subject to the rights, if any, of Tenant under the terminated lease;
(vi) the tenant under such new lease shall have the right, title and interest in default and to the buildings and improvements on the Premises as Tenant had under the terminated lease; and
(vii) said leasehold mortgagee(s) or its nominee(s) or assignee(s) shall bear the cost of recording such new lease or short form thereof if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee it or Landlord desires recordation thereof.
(g) Nothing herein contained shall require the leasehold mortgagee mortgagee(s) or its nominee(s) or assignee(s) to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition default of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest Tenant under this Lease has been terminated unless such leasehold mortgagee shall choose to do so under subparagraph (b) above or canceledshall choose to nullify any notice of termination from Landlord pursuant to subparagraphs (c) or (d), then at the written request of the or if such leasehold mortgagee, the Port agrees to mortgagee(s) elects that Landlord enter into a new lease with for the leasehold mortgagee under Premises pursuant to the same terms and conditions as this Lease and for provisions of subparagraph (f) above.
(h) The proceeds from any unexpired term insurance policies relating to the Premises or arising from a condemnation of the lease. The Port's execution Premises are to be held by Landlord’s mortgagee, or if none, by any leasehold mortgagee(s) and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title in either event distributed pursuant to the Propertyprovisions of this Lease; and
(i) Landlord shall, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated upon request, execute, acknowledge and deliver to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a each leasehold mortgagee, an agreement prepared at the Port shall have no duty sole cost and expense of Tenant, in form satisfactory to determine the relative priority of the such leasehold mortgages mortgagee(s), between Landlord, Tenant and the Port shall have no obligation leasehold mortgagee(s), agreeing to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any all of the provisions of this Article XX. The term “mortgage,” whenever used in this Section 15.620.2, shall include whatever security instruments are used in the locale of the Premises, such as, without limitation, mortgages, deeds of trust, security deeds and conditional deeds, as well as financing statements, security agreements and other documentation required pursuant to the Uniform Commercial Code, and shall also include any instruments required in connection with a sale-leaseback (or an assignment of lease and sublease) transaction.
Appears in 1 contract
Leasehold Mortgages. Lessee (a) Tenant may not grant a mortgage of its leasehold interest hereunder, except that Landlord will permit Tenant to grant to Pittsburgh National Bank (hereinafter referred to as "Leasehold Mortgagee") one leasehold mortgage encumbering Tenant's leasehold estate hereunder (the "PNB Leasehold Mortgage") on terms and conditions reasonably satisfactory to Landlord. If Tenant shall have mortgage its leasehold interest hereunder to Leasehold Mortgagee, and if Leasehold Mortgagee shall forward to Landlord an executed counterpart of the right during PNB Leasehold Mortgage in force proper for record, then, until the term time, if any, that the PNB Leasehold Mortgage shall be satisfied of record or Leasehold Mortgagee shall give to Landlord written notice that the PNB Leasehold Mortgage has been satisfied:
(i) No action or agreement hereafter taken or entered into by Tenant to cancel, surrender, or modify this Lease to mortgage shall be binding upon Leasehold Mortgagee or affect the Lessee's interest in this Leaselien of the PNB Leasehold Mortgage, without the prior written consent of Leasehold Mortgagee.
(ii) If Landlord shall give any notice of default (hereinafter referred to as a "Notice") to Tenant pursuant to Article 22 and 23 hereof, Landlord shall at the Portsame time give a copy of each such Notice to Leasehold Mortgagee at the address theretofore designated by Leasehold Mortgagee. Such copies of Notices shall be sent by registered or certified mail, and shall be deemed given at the time such copy is deposited in a United States Post Office with postage charges prepaid, enclosed in a securely sealed envelope addressed to assign Leasehold Mortgagee. No Notice given by Landlord to Tenant shall be binding upon or affect Leasehold Mortgagee unless a copy of said Notice shall be given to Leasehold Mortgagee pursuant to this subdivision (ii). In the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder case of an assignment of the leasehold mortgage PNB Leasehold Mortgage or change in address of Leasehold Mortgagee, said assignee or Leasehold Mortgagee, by written notice to Landlord, may change the address to which such copies of Notices are to be sent. Landlord shall not be subject bound to each and every term, covenant and condition of this Lease and to all rights and interests recognize any assignment of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the PNB Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a and until Landlord shall be given written notice from the Lessee giving of such assignment and the name and address of the leasehold mortgageeassignee, and thereafter such assignee shall be deemed to be "Leasehold Mortgagee" under this Article 7A. If the Port agrees that whenever the Port sends a notice to the Lessee under the terms PNB Leasehold Mortgage is held by more than one person, corporation or other entity, no provision of this Lease, the Port will contemporaneously send Lease requiring Landlord to give a Notice or copy of the notice a Notice to the leasehold mortgageeLeasehold Mortgagee shall be binding upon Landlord unless and until all of said holders shall designate in writing one of their number to receive all such Notices and copies of Notices and shall have given to Landlord an original executed counterpart of such designation in form proper for record.
15.3 The Port further agrees that it will not accept a voluntary cancellation (iii) Subject to subdivision (iv) of this Article 7A, Leasehold Mortgagee shall have the right to perform any term, covenant, condition or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee agreement and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure remedy any default within by Tenant hereunder, and Landlord shall accept such performance by Leasehold Mortgagee with the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee same force and effect as if the cure were tendered furnished by the Lessee. ProvidedTenant; provided, however, that if it takes Leasehold Mortgagee shall not thereby or hereby be subrogated to the leasehold mortgagee more than rights of Landlord.
(iv) If Tenant shall fail to make any payment of Basic Rent, Additional Rent or other sums due hereunder when due (a "Payment Default"), and provided that Landlord shall give notice of such default to Tenant, then Landlord shall also give notice of such default to Leasehold Mortgagee, as set forth above, and Leasehold Mortgagee shall have thirty (30) days after the date of such notice to cure such Payment Default, provided, however, that Leasehold Mortgagee shall not be permitted to cure any such Payment Default if it shall have previously cured six (6) consecutive or eight (8) total such Payment Defaults, unless Leasehold Mortgagee has initiated a foreclosure proceeding with respect to the PNB Leasehold Mortgage.
(v) In the case of a default (by Tenant in the performance or observance of any term, covenant, condition or agreement on Tenant's part to be performed under this Lease, other than a Payment Default, and provided that Landlord shall have given notice of such default to Tenant, then Landlord shall also give notice of such default to Leasehold Mortgagee, as set forth above, and if such default is of such a nature that the payment of any money due under the lease) because the leasehold mortgagee is same cannot in practicably be cured by Leasehold Mortgagee without taking possession of the propertyLeased Property, or if such default is of such a nature that the lease same in not susceptible of being cured by Leasehold. Mortgagee, then Landlord shall not be in default if serve a notice of election to terminate this Lease pursuant to Article 22 hereof, or otherwise terminate the leasehold mortgagee promptly undertakes estate of Tenant hereunder by reason of such default, if and so long as:
(1) in the case of a default which cannot practicably be cured by Leasehold Mortgagee without taking possession of the Leased Property, Leasehold Mortgagee shall deliver to Landlord, prior to the date which is thirty (30) days after the date on which Landlord shall otherwise be entitled to give notice of election to terminate this Lease, a written instrument wherein Leasehold Mortgagee gives to Landlord its unconditional, undertaking that it will cure such default and that, if this Lease thereafter is terminated prior to the curing of such default, Leasehold Mortgagee shall pay to Landlord the cost of curing such default, if Leasehold Mortgagee be other than a life insurance company, bank or trust company having a net worth in excess of $25,000,000 such undertaking shall be accompanied by security, reasonably satisfactory to Landlord, sufficient to insure payment of the cost of curing of such default, and thereafter- Leasehold Mortgagee shall proceed diligently to obtain possession of the property and Leased Property as mortgagee (including possession by a receiver), and, upon obtaining such possession, shall proceed diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by such default in accordance with the Lessee or require the leasehold mortgagee to perform any other term or condition of guaranty set forth in this Lease.clause 1; and
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or (2) in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event case of a default which is personal not susceptible of being cured by Leasehold Mortgagee, Leasehold Mortgagee shall institute foreclosure proceedings and diligently prosecute the same to completion (unless in the Lessee meantime Leasehold Mortgagee shall acquire Tenant's estate hereunder, either in its own name or through a nominee, by assignment in lieu of foreclosure). Leasehold Mortgagee shall not be required to continue to proceed to obtain possession, or to continue in possession as mortgagee, of the Leased Property pursuant to clause (1) above, or to continue to prosecute foreclosure proceedings pursuant to clause (2) above, if and when such default shall be cured. Nothing herein shall preclude Landlord from exercising any of its rights or remedies with respect to any other default by Tenant during any period of such forbearance, but in such event Leasehold Mortgagee shall have all of the rights and protections hereinabove provided for. If Leasehold Mortgagee, or its nominee, or a purchaser at a foreclosure sale, shall acquire title to Tenant's leasehold estate hereunder, and shall cure all defaults of Tenant hereunder which are susceptible of being cured by Leasehold Mortgagee, or by said purchaser, as the case may be, then the defaults of Tenant or of any prior holder of Tenant's leasehold estate hereunder which are not susceptible of being cured by Leasehold Mortgagee (or by said purchaser) shall no longer be deemed to be defaults hereunder.
(vi) During any period that Landlord is forebearing from exercising its right to terminate the Lease as herein provided for the benefit of the Leasehold Mortgagee (or earlier if a bankruptcy, insolvency, reorganization, receivership, moratorium or similar proceeding is voluntarily or involuntarily instituted by or against Tenant), Landlord and Leasehold Mortgagee shall consult with one another to determine (a) what action to take to maximize the value of (i) the equipment, fixtures, inventory and other tangible assets in which cannot be cured by Leasehold Mortgagee has a security interest (the leasehold mortgagee "PNB Collateral"), and (ii) the Lessee's interest under this Lease has been terminated or canceledLeased Property, then at and (b) the written request appropriate division of any proceeds resulting from the sale of the leasehold mortgageeLeased Property and/or the PNB Collateral. Notwithstanding the foregoing, the Port agrees Landlord, Tenant and Leasehold Mortgagee acknowledge and agree that no duty is imposed hereby on Landlord or Leasehold Mortgagee to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for agree to any unexpired term joint disposition of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements Leased Property or the priority of such new lease.
15.6.1 The Port shall PUB Collateral and that any agreement that ultimately may be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred reached in connection with the preparation disposition of the Leased Property and/or the PNB Collateral is for the sole benefit of Landlord and execution Leasehold Mortgagee. Neither Landlord nor Leasehold Mortgagee shall have any liability to Tenant for failure to agree upon a joint disposition of the Leased Property or the PNB Collateral. In the event that Leasehold Mortgagee shall acquire the interest of Tenant pursuant to a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease foreclosure of the PNB Leasehold Mortgage (or by assignment of Lease consented to be Landlord in lieu of foreclosure), Leasehold Mortgagee shall promptly undertake to obtain an assignee of its interest in the event Lease, which assignee must (i) agree to pay as rent hereunder the greater of (a) the then fair market rent 'for industrially zoned property of like size and condition in the County of York, Commonwealth of Pennsylvania and (b) the rent set forth on Schedule B hereto, (ii) have a dispute between the Lessee financial strength acceptable to Landlord, and a leasehold mortgagee, the Port (iii) be otherwise acceptable to Landlord. Landlord shall have no duty the right (but not the obligations) to determine participate in the relative priority selection of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Leasesuch assignee.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have Notwithstanding anything to the right during the term of this Lease to mortgage the Lessee's interest contrary in this Lease, Tenant may at any time execute and deliver one or more mortgages, deeds to secure debt or deeds of trust (any such mortgage, deed to secure debt or deed of trust is herein called a “Leasehold Mortgage”) granting a lien or security interest in Tenant’s leasehold estate and rights hereunder without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. ProvidedLandlord; provided, however, that Tenant shall remain liable hereunder for the payment of Rent and any additional rent payable hereunder and for performance of all the obligations of Tenant under this Lease. In no event shall any such Leasehold Mortgage encumber Landlord’s fee interest in the Premises. If either Tenant or the holder of any such Leasehold Mortgage notifies Landlord of the existence of such Leasehold Mortgage and the address of the holder thereunder for the service of notices, such holder shall be deemed to be a “Leasehold Mortgagee” as such term is used in this Lease. Landlord shall be under no obligation under this provision to any holder of a Leasehold Mortgage of whom Landlord has not received such notice.
(a) If an event of default by Tenant under this Lease occurs, Landlord shall give written notice thereof to any Leasehold Mortgagee, and Landlord shall take no action to terminate this Lease or to interfere with the occupancy, use or enjoyment of the Premises, provided that (A) if it takes such event of default is a default in the leasehold mortgagee more payment of any installment of Rent or any additional rent, such Leasehold Mortgagee cures such default not later than thirty (30) days to cure after receipt of such notice; (B) if such event of default is a default (in observing or performing any other than the payment of any money due under the lease) because the leasehold mortgagee is not in covenant or condition to be observed or performed by Tenant hereunder, and such default can be cured by such Leasehold Mortgagee without obtaining possession of the propertyPremises, such Leasehold Mortgagee remedies such default within thirty (30) days after receipt of such notice; provided, however, in the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure case of a default by that cannot with diligence be cured, or the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition curing of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured commenced, within such thirty (30) days, such Leasehold Mortgagee shall have such additional period as may be necessary to cure such default with diligence and continuity; or (C) if such event of default is a default that can only be remedied by such Leasehold Mortgagee upon obtaining possession of the leasehold mortgagee Premises, such Leasehold Mortgagee obtains such possession with diligence and continuity, through a receiver or otherwise, and cures such default within thirty (30) days after obtaining such possession; provided, however, in the Lessee's case of a default that cannot with diligence be cured, or the curing of which cannot be commenced, within such period of thirty (30) days, such Leasehold Mortgagee shall have such additional period as may be necessary to cure such default with diligence and continuity.
(b) If any Leasehold Mortgagee or a person designated by such Leasehold Mortgagee either becomes the owner of the interest under of Tenant hereunder upon the exercise of any remedy provided for in the Leasehold Mortgage, or enters into a new lease with Landlord as provided in clause (c) below, such Leasehold Mortgagee or such person shall have the right to assign to any person such interest or such new lease.
(c) If this Lease has been terminated terminates for any reason or canceledis rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ rights, then at any Leasehold Mortgagee or a person designated by such Leasehold Mortgagee shall have the written request right, exercisable by notice to Landlord, within thirty (30) days after the effective date of the leasehold mortgageesuch termination, the Port agrees to enter into a new lease of the Premises with Landlord. The term of said new lease shall begin on the leasehold mortgagee under date of the termination of this Lease and shall continue for the remainder of the Term (including the right to exercise all extension options pursuant to Section 3.2 above). Such new lease shall otherwise contain the same terms and conditions as those set forth herein, except for requirements that are no longer applicable or have already been performed, provided that such Leasehold Mortgagee shall have cured all defaults on the part of Tenant hereunder that are susceptible of being cured by the payment of money, and that such new lease shall require the tenant thereunder promptly to commence, and expeditiously to continue, to cure all other defaults on the part of Tenant hereunder to the extent susceptible of being cured. This provision shall survive the termination of this Lease and shall continue in full force and effect thereafter to the same extent as if this provision were a separate and independent contract among Landlord, Tenant and each Leasehold Mortgagee.
(d) No Leasehold Mortgagee shall become personally liable for the performance or observation of any unexpired term covenants or conditions to be performed or observed by Tenant unless and until such Leasehold Mortgagee becomes the owner of Tenant’s interest hereunder upon the leaseexercise of any remedy provided for in any Leasehold Mortgage or enters into a new lease with Landlord pursuant to clause (c) above. The Port's execution and delivery of the lease Thereafter, such Leasehold Mortgagee shall be without liable for (A) the performance and observance of such covenants and conditions only so long as such Leasehold Mortgagee owns such interest or is the lessee under such new lease, and (B) any representation defaults by such Leasehold Mortgagee occurring during the period it owned such interest or warranty of any kind, including any representations or warranties regarding title to was the Property, the improvements or the priority of lessee under such new lease.
15.6.1 The Port (e) Upon the reasonable request of any Leasehold Mortgagee, Landlord and Tenant shall be obligated cooperate in including in this Lease by suitable amendment from time to enter into time any provision for the purpose of implementing the protective provisions contained in this Lease for the benefit of such Leasehold Mortgagee in allowing such Leasehold Mortgagee reasonable means to protect or preserve the lien of its proposed Leasehold Mortgage on the occurrence of a new lease with default under the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults terms of the Lessee Lease. Landlord and Tenant shall execute, deliver and acknowledge any amendment reasonably necessary to effect any such requirement; provided, however, that any such amendment shall not in any way affect the Term or rental under this Lease and has remedied and cured or has commenced and is diligently completing the cure nor otherwise in any material respect adversely affect any rights of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of Landlord under this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee 28.1 No mortgage may be placed on the underlying fee simple interest of the City or on the Leasehold Improvements, provided, however, Xxxxxx shall have the right during to grant a mortgage on the term Leasehold Interest pursuant to the terms of this Article 28.
28.2 Lessee may not mortgage, pledge or encumber all or any part of the Leasehold Interest, without the prior written consent of the Lessor, except to a Leasehold Mortgagee. The provisions of this Article 28 and any other provisions contained in this Lease which benefit a Leasehold Mortgagee shall only apply to Leasehold Mortgagees under mortgages complying with the terms of this Article 28.
28.3 No Leasehold Mortgagee shall have the rights or benefits described in this Article 28, nor shall the provisions of this Article 28 be binding upon Lessor with respect to any such mortgage or any assignment thereof, unless or until such Leasehold Mortgagee shall deliver to Lessor an executed counterpart of such mortgage, together with a statement signed and acknowledged by such Leasehold Mortgagee that such mortgage will be subject and subordinate to the rights of Lessor hereunder. Nothing contained in such a mortgage or contained herein, whether express or implied, shall have the effect of subordinating any interest or estate of Lessor in and to the Leased Property, to the lien of such a mortgage.
28.4 If Lessee shall mortgage all or any part of the Leasehold Interest to a Leasehold Mortgagee(s), in compliance with Sections 28.2 and 28.3 of this Lease, the following provisions shall apply until the subject mortgage has been satisfied:
28.4.1 There shall be no cancellation or surrender of this Lease by joint action of Xxxxxx and Xxxxxx without the prior consent in writing of the Leasehold Mortgagee(s), not to mortgage be unreasonably withheld.
28.4.2 There shall be no modification of this Lease which would materially increase the Rent hereunder or shorten the Lease Term, by joint action of Lessor and Lessee's interest in this Lease, without the prior consent in writing of the PortLeasehold Mortgagee(s), not to be unreasonably withheld.
28.4.3 Provided Lessee has provided Lessor written notice of the name and notice address of its Leasehold Mortgagee, Lessor, upon serving Lessee any notice of default or any other notice or demand required under this Lease, shall also serve a copy of such notice upon such Leasehold Mortgagee, and no notice or demand by Lessor to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage Lessee shall be subject deemed to each have been duly given unless and every term, covenant and until a copy thereof has been so served.
28.4.4 Any Leasehold Mortgagee shall have the right to perform any term or condition of this Lease to be cured or performed by Xxxxxx, and Lessor shall accept such performance by such Leasehold Mortgagee with the same force and effect as if furnished by Xxxxxx, provided that such Leasehold Mortgagee remedies any monetary default no later than fifteen (15) days after same may be remedied by Lessee hereunder, and remedies any non-monetary default or performs such term or condition no later than the date that is thirty (30) days after the last date by which such default may be remedied by Lessee hereunder.
28.4.5 In the event that the Leasehold Mortgagee is unable to cure such default without first obtaining control or title to the Leasehold Interest, Lessor shall provide the Leasehold Mortgagee an extended period of time in which to obtain control or title to the Leasehold Interest and to effectuate such cure, provided that the Leasehold Mortgagee commences proceedings to obtain control or title to the Leasehold Interest within sixty (60) days of receipt of a notice called for pursuant to this Section 28.4 and diligently prosecutes such action or actions and commences to and diligently proceeds to cure such default upon obtaining possession or title to the Leasehold Interest, in its name, by its designee, or through a court appointed receiver. In the event that such proceedings are not necessary to enable the Leasehold Mortgagee to cure such default, the periods for curing the same shall not be extended as described in the preceding sentence. Nothing in this paragraph will, in any way, prevent Lessor from filing an action for non-payment of rent, subject to Leasehold Mortgagee’s right to cure after receiving notice of a default.
28.5 The leasehold mortgagee of all rights and interests or any portion of that part of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate Property covered by the Leasehold Mortgage unless Mortgagee(s) may become the Port has approved legal owner and holder of the assignee Lessee's interest, which shall not disturb any Residential Lease or transferee in writing.
15.2 In Residential Tenant, except for the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt failure to pay residential rent or other default of a written notice from Residential lease, except that such leasehold mortgagee may assign the Lessee giving Residential lease(s) to any Leasehold assignee at any time whether prior or subsequent to the name and address construction or completion of the leasehold mortgagee, Leasehold Improvements constructed or to be constructed the Port agrees Leased Property covered by the Leasehold Interest in lieu of foreclosure provided that whenever the Port sends a notice to the all obligations of Lessee under hereunder are fulfilled in accordance with the terms of this Lease, including Section 28.4 regarding the Port will contemporaneously send a copy right of the notice an Leasehold Mortgagee to the leasehold mortgageecure defaults hereunder.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 28.6 In the event of that a notice of default from Leasehold Mortgagee, or its designee, shall become the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee owner or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all by foreclosure of its mortgage or by assignment of the obligations and covenants Lease in lieu of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated foreclosure or canceledotherwise, then at the written request of the leasehold mortgagee, or its designee, shall stand in the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults shoes of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of for all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses purposes of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any payment of the provisions of this Section 15.6Rent.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have Tenant is hereby given the right during the term of this Lease right, without Landlord's prior written consent, to mortgage the Lessee's its interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease and any sublease as collateral security for such leasehold mortgage. All , upon the condition that all rights acquired by the holder of the under any such leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the termscovenants, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest and restrictions set forth in this Lease for security purposes.
15.1 The Leasehold Mortgage Lease. If Tenant shall contain provisions providing that no purchaser or transferee mortgage this leasehold, and if the holder of the Lease at any foreclosure sale or other transfer authorized by law or by reason of such leasehold mortgage shall send to Landlord a default under the mortgage where no foreclosure sale is required shall further assign or transfer any rightcertified copy thereof, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving specifying the name and address of the leasehold mortgagee, the Port Landlord agrees that whenever so long as any such leasehold mortgage shall remain unsatisfied of record, or until written notice of satisfaction is given by the Port sends a notice holder to Landlord, the Lessee under the terms following provisions shall apply:
(a) There shall be no cancellation, surrender, or modification of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by joint action of Landlord and Tenant, without the Lessee without prior written consent of the leasehold mortgagee.
(b) Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the holder of such leasehold mortgage. The leasehold mortgagee shall thereupon have the same period, after service of such notice upon it, to remedy or cause to be remedied the default(s) complained of, and Landlord shall accept such performance by or at the Port will not enter into instigation of such leasehold mortgagee as if the same had been done by Tenant.
(c) Anything herein contained to the contrary notwithstanding, if any amendments default shall occur which, pursuant to any provision of this Lease entitles Landlord to terminate this Lease, or regain possession of the lease which modifies any material provision Leased Premises, and if before the expiration of the lease without prior written approval of the leasehold mortgagee. No merger shall result thirty (30) days from the acquisition by or the devolution upon any one entity date of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the such leasehold mortgagee's receipt of the service of notice of termination or of Landlord's regaining possession of the Leased Premises, such leasehold mortgagee shall have notified Landlord of its desire to nullify such notice and shall have brought current all rent and other payments herein provided for, and then in default. The Port agrees , and shall have complied or shall commence the work of complying with all of the other requirements of this Lease, if they are then in default, and shall prosecute the same to accept a tender completion with reasonable diligence, then in such event, Landlord shall relinquish any possession thereof.
(d) If the Landlord shall elect to terminate this Lease by reason of cure any default of default from Tenant, the leasehold mortgagee shall not only have the right to nullify any notice of termination by curing such default, as if aforesaid, but shall also have the right to postpone and extend the specified date for termination of this Lease or the regaining of possession of the Leased Premises, as fixed by Landlord in its notice of termination, for a period of not more than six (6) months, provided that such leasehold mortgagee shall cure were tendered or cause to be cured any then existing monetary default and meanwhile pay the rent and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant's part to be complied with and performed, other than defaults which can only be cured by one in possession of the Lessee. Provided, however, Leased Premises; and provided further that if it takes the leasehold mortgagee more than shall forthwith take steps to acquire or sell Tenant's interest in this Lease by foreclosure of the leasehold mortgage 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 shall be actively engaged in steps to acquire or sell Tenant's interest herein, the time for said leasehold mortgagee to comply with the provisions of this Subsection (d) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity. In the event of foreclosure, provided this Lease is not then in default, the Landlord agrees that the purchaser at foreclosure sale may assume this Lease, and in the event it is purchased by the leasehold mortgagee, or acquired by assignment in lieu of foreclosure, that the leasehold mortgagee may assign its interest to a subsequent purchaser, who will also be permitted to assume this Lease.
(e) If the Tenant declines to allow the automatic renewal of any option provided to it in this Lease, Landlord agrees to notify any such leasehold mortgagee in writing of such failure, and any such leasehold mortgagee may exercise any such extension or renewal option on behalf of Tenant by notifying Landlord to this effect in writing within thirty (30) days to cure a default of receipt of such notice.
(other than the payment of any money due under the leasef) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee Nothing herein contained shall require the any leasehold mortgagee to cure any future defaults by the Lessee or require the default of Tenant.
(g) Landlord shall upon request, execute, acknowledge, and deliver to each leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then an agreement prepared at the written request sole cost and expense of the Tenant, in form satisfactory to such leasehold mortgagee, confirming the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured agreements in all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.614.01. The term "mortgage", whenever used herein, shall include whatever security instruments are used in the locale of the Leased Premises, such as, without limitation, deeds of trust, security deed and conditional deeds, as well as chattel mortgages and security agreements, and said term shall also include any instruments required in connection with a sale-leaseback transaction.
Appears in 1 contract
Samples: Ground Lease Agreement (South Alabama Bancorporation Inc /De/)
Leasehold Mortgages. Lessee Tenant shall have the right during the term of from time to time to pledge, hypothecate, encumber or mortgage this Lease (each herein referred to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such a "leasehold mortgage"). All rights acquired by Landlord hereby expressly agrees that the holder of the such leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and entitled to all rights and interests of the Port. None of the termsrights, covenants or conditions of the Lease shall be waived by the Port by reason of the right given privileges and powers afforded to the Lessee to assign its interest in holder or holders of leasehold mortgages under this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or and other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition Articles of this Lease.
15.5 In 10.2.1 Notwithstanding anything to the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest contrary contained in this Lease, if so requested by the Port agrees holder of any leasehold mortgage, any notice from Landlord to accept the Tenant shall be simultaneously delivered to such leasehold mortgagee as the Lessee under at his or its address, and no notice of default or termination of this Lease, provided the Lease given by Landlord to Tenant shall be deemed legally effective until and unless notice of such default and notice of such termination shall have been given by Landlord to such leasehold mortgagee. Such leasehold mortgagee performs entitled to such notice shall have and be subrogated to any and all rights of Tenant with respect to any default hereunder by Tenant. Without impairing the generality of the obligations foregoing right of subrogation, it is specifically agreed that any such leasehold mortgagee shall have the right to appoint an arbitrator, in case Tenant shall fail to make such appointment after written notice from Landlord as provided in Article XVI hereof (a copy of which notice shall have been simultaneously given to such leasehold mortgagee), and, for this purpose, shall have an additional period of fifteen (15) days to make such appointment, and covenants the arbitrator so appointed shall thereupon be recognized in all respects as if he or she had been appointed by Tenant.
10.2.2 Landlord will not accept any surrender, cancellation or enter into any modification of this Lease without the prior written consent thereto of the Lessee contained in holder of any leasehold mortgage who shall become entitled to notice as provided above.
10.2.3 If, by reason of any default by Tenant, this Lease which are capable shall be terminated at the election of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal Landlord prior to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceledstated expiration thereof, then at the written request of the leasehold mortgagee, the Port agrees to Landlord will enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages Demised Premises and the Port shall have no obligation to enter into a new lease Other Assets with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.such
Appears in 1 contract
Samples: Lease Agreement (Integrated Living Communities Inc)
Leasehold Mortgages. Lessee shall have the right during the term of this Lease Landlord covenants and agrees to mortgage the Lessee's interest in this Leasecooperate with Txxxxx and each lender providing financing to Tenant (each, without the prior consent of the Porta “Leasehold Mortgagee”), and from time to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject time, at no out-of-pocket cost to each and every termLandlord, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee extent such financing is, or is intended to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized be, secured by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or encumbering the leasehold estate covered by the of Tenant hereunder or any part thereof. Landlord covenants and agrees to provide each Leasehold Mortgage unless the Port Mortgagee of which Lxxxxxxx has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for notice with a reasonable means to protect and preserve its lien and security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates interest in the property.
15.4 In Premises upon the event occurrence of an Event of Default by Tenant hereunder. Landlord, Tenant and each Leasehold Mortgagee shall execute, acknowledge and deliver to one another one or more agreements, in form and substance reasonably acceptable to such Leasehold Mortgagee(s) to facilitate the closing of such leasehold mortgage financing transaction(s) (each, a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided“Recognition Agreement”); provided, however, that if it takes Landlord will not have any obligation to enter into any agreement that will affect the Term or the Rent due hereunder, or substantially increase the obligations or materially adversely affect any rights of Landlord hereunder, except as expressly set forth herein nor shall Landlord be obligated to subordinate its fee estate to any Leasehold Mortgagee, execute any document creating personal liability on the part of Landlord or otherwise subject Landlord or its interests in the Property to liability on account of such leasehold mortgagee more than thirty financing beyond that expressly granted to Tenant pursuant to this Lease. Each such agreement shall provide, inter alia, that each Leasehold Mortgagee shall have the following rights: (30i) days copies of all notices to cure a default (other than Tenant under this Lease shall be provided contemporaneously to the payment of any money due under the lease) because the leasehold mortgagee is not in possession Leasehold Mortgagee, provided that Landlord has been provided with written notice of the propertyaddress to which such notices should be sent, (ii) Landlord’s failure to so provide each Leasehold Mortgagee with copies of notices to Tenant shall render the lease shall not be subject of such notice non-binding on such Leasehold Mortgagee, (iii) in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by Tenant hereunder, such Leasehold Mortgagee shall have the Lessee which same concurrent notice and grace periods as are required to be given to Tenant to cure the same hereunder or after Landlord has not been cured by provided such Leasehold Mortgagee with such notice, whichever is later, plus, in each instance, an additional ninety (90) days after the Lessee expiration of same; or by where Leasehold Mortgagee’s ability to cure such Event of Default is contingent upon such Leasehold Mortgagee (or its designee) taking possession of the leasehold mortgagee Premises and which would permit such Leasehold Mortgagee has commenced to take such action(s) as may be required to so take possession within such additional ninety (90) day period, such additional period of time as is reasonably required to complete such action(s), take possession of the Port to forfeit or otherwise terminate this Lease or Premises and cure such Event of Default (except in the case of a monetary default hereunder, in which event such Leasehold Mortgagee shall not have any additional cure period beyond the leasehold mortgagee forecloses upon ninety (90) day period described above), (iv) Leasehold Mortgagee, without prejudicing any of its leasehold mortgage rights or remedies, shall have the right to cure any default or Event of Default of Tenant within the notice and becomes cure periods set forth herein and/or the holder of the Lessee's interest in this Lease, the Port agrees Recognition Agreement and Landlord shall be required to accept such performance and/or payment (and such Leasehold Mortgagee is and shall be authorized to enter upon the leasehold mortgagee as Premises for such purposes), (v) if the Lessee under this LeaseLease shall be terminated due to a failure to cure an Event of Default, provided such Leasehold Mortgagee shall have the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal right to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to require that Landlord enter into a new and separate lease with the leasehold mortgagee under such Leasehold Mortgagee or its designee on the same terms and conditions as this Lease and for any unexpired term Lease, provided that such Leasehold Mortgagee (or its designee) thereafter cures all Events of the lease. The Port's execution and delivery Defaults within ninety (90) of the lease shall be without any representation or warranty of any kindwritten notice from Landlord, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or (vi) in the event of a dispute between the Lessee and default by Tenant under a leasehold mortgageemortgage, the Port applicable Leasehold Mortgagee shall be entitled to enforce all of its rights and remedies as provided for therein (provided that no Leasehold Mortgagee shall have no duty rights in addition to determine those of Tenant hereunder other than as expressly set forth in this Section), (vii) this Lease may be assigned, without the relative priority consent of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved Landlord, but otherwise subject to the Port's satisfaction within ninety (90) days of the termination terms and conditions of this Lease.
15.6.3 Upon , and (viii) no surrender, other than upon the execution of the new lease by the leasehold mortgagee and the PortExpiration Date, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be effective as against such Leasehold Mortgagee unless expressly consented to in "as is" condition without any warranty or representation writing by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancessuch Leasehold Mortgagee.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee Tenant shall have be responsible for funding the right during entire cost of, and securing all financing required, in order to complete Relocation Process and the term Pre-Occupancy Work in accordance with the Architectural Plans and the Site Plan. Landlord hereby consents to the encumbrance of this Lease to mortgage the Lessee's interest in Tenant’s leasehold estate created under this Lease, without provided, however, that the prior consent fee simple ownership interest of Landlord to the PortLeased Premises shall be prior, superior and paramount to the lien of any mortgage which may now or hereafter affect the leasehold interest of Tenant in and to assign the Lessee's interest Leased Premises, or any part thereof (a “Leasehold Mortgage”). Tenant acknowledges and understands that, under no circumstances, will any party providing financing for the Pre-Occupancy Work or any Post-Occupancy Work be permitted to encumber in this Lease as collateral any manner by lien of a mortgage, security for such leasehold mortgageagreement or other encumbrance, Landlord’s fee simple title to the Leased Premises. All rights acquired by the holder of the leasehold mortgage under any Leasehold Mortgage shall be subject and subordinate to each and every term, covenant and condition the terms of this Lease and to all rights and interests of Landlord hereunder, and shall incorporate all relevant terms and requirements contained herein, including, without limitation, a statement that the Port. None lender disclaims any interest or lien against Landlord’s fee simple interest in the Leased Premises thereon, a statement that insurance proceeds from casualty or proceeds from condemnation or payments in lieu thereof shall be used for the repair or rebuilding of the termsHouse and Site Improvements if so required by this Lease and not to the repayment of Lender (except as expressly set forth in this Lease), covenants and a statement that Landlord shall have no liability whatsoever in connection with the financing under the agreement, notes, and security instruments executed, delivered and/or recorded in connection with such financing. If Tenant, or conditions Tenant’s permitted successors or assigns enter into a Leasehold Mortgage, and Tenant provides Landlord with Notice of the Lease shall be waived by Leasehold Mortgage, and the Port by reason Notice includes a copy of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless or other security instrument recorded on the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving Land Records and the name and address of the leasehold mortgageeholder of the Leasehold Mortgage, then so long as the Leasehold Mortgage remains unsatisfied of record, the Port agrees following provisions shall apply, notwithstanding anything to the contrary set forth in this Lease, and any pertinent provisions of this Lease shall be deemed to be amended and modified to the extent necessary so as to provide as follows.
(a) Landlord, upon serving upon Tenant any notice of default pursuant to the provisions of Article XIV, or any other notice under the provisions of or with respect to this Lease, shall also serve a copy of such notice on the holder of the Leasehold Mortgage, at the address provided for Section 10.01(c)(iii), and no notice by Landlord to Tenant hereunder shall be deemed to have been duly given unless and until a copy thereof has been so served; provided, however, that whenever Landlord’s obligation to give or provide the Port sends a holder of any leasehold mortgage with any notice shall be contingent upon such holder providing written notice to Landlord of its existence and setting forth the Lessee address to which all such notices are to be delivered.
(b) The holder of a Leasehold Mortgage, upon the occurrence of an Event of Default (defined in Section 14.01), shall have the right, within the period and otherwise as herein provided, to remedy or cause to be remedied the default, and Landlord shall accept such performance by or at the instigation of the Leasehold Mortgage holder as if the same had been performed by Tenant. No Event of Default by Tenant in performing work required to be performed, acts to be done, or conditions to be remedied, shall be deemed to exist, if steps, in good faith, have been properly commenced by Tenant or by the Leasehold Mortgage holder, or by any other party, person, or entity to rectify the same no more than two (2) months from Landlord’s initial notice thereof to the Leasehold Mortgage holder and prosecuted to completion with reasonable diligence and continuity. Tenant constitutes and appoints the Leasehold Mortgage holder as Tenant’s agent and attorney-in-fact with full power, and in Tenant’s name, place and stead, and at Tenant’s cost and expense, to enter upon the Leased Premises and make repairs thereto, maintain the same, remove any violations of law, or of the rules and regulations of governing authorities and to otherwise perform any of Tenant’s obligations according to the provisions of this Lease as to the care, maintenance, or preservation of the House and Site Improvements.
(c) In the event of the termination of this Lease prior to the expiration of the Term, whether by summary process, service of notice to terminate, or otherwise, due to an Event of Default by Tenant, or any other default of Tenant, Landlord shall serve upon the holder of the Leasehold Mortgage written notice that the Lease has been terminated together with a statement of any and all sums that would at that time be due under this Lease but for such termination, and of all other defaults, if any, under this Lease then known to Landlord. The Leasehold Mortgage holder shall thereupon have the option to obtain a new or direct lease in accordance with and upon the following terms and conditions.
(i) On the written notice of the holder of the Leasehold Mortgage, within sixty (60) days after service of the aforementioned notice of termination, Landlord shall enter into a new or direct lease of the Leased Premises with the holder of the Leasehold Mortgage, or its designee, as provided in the following clause (ii), provided, however, Tenant shall not be released of any liability arising under this Lease prior to its termination.
(ii) Such new or direct lease shall be entered into at the reasonable cost of the tenant thereunder, shall be effective as of the date of termination of this Lease, and shall be for the Port will contemporaneously send a copy remainder of the notice Term of this Lease (including all extension options, to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of extent exercised) and at the Lease by Rent and upon all the Lessee without prior written consent of the leasehold mortgagee agreements, terms, covenants and the Port will not enter into any amendments of the conditions hereof. Such new lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee tenant to perform any other term or condition unfulfilled obligation of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate Tenant under this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are that is reasonably capable of being performed by such tenant if such tenant has been given notice of such unfulfilled obligation. Upon the leasehold mortgagee.
15.6 In execution of such new lease, the event tenant named therein shall pay any and all sums that would at the time of a default which is personal to the Lessee (such as a bankruptcy) and which cannot execution thereof be cured by the leasehold mortgagee and the Lessee's interest due under this Lease has been terminated or canceledbut for such termination, then at the written request of the leasehold mortgageeand shall pay all expenses, including reasonable counsel fees, court costs and disbursements incurred by Landlord in connection with such defaults and termination, the Port agrees to enter into a new lease with recovery of possession of said Leased Premises, and the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's preparation, execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port (iii) Any notice or other communication that Landlord shall desire or is required to give to or serve upon the holder of a Leasehold Mortgage shall be obligated in writing and shall be served by certified or overnight mail, addressed to enter into a new lease with the leasehold mortgagee only if Leasehold Mortgage holder at its address as set forth in the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the PortLeasehold Mortgage, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event last assignment thereof delivered to Landlord, or at such other address as shall be designated by the Leasehold Mortgage holder by notice in writing given to Landlord by certified or overnight mail. Any notice or other communication that the holder of a dispute between the Lessee and a leasehold mortgagee, the Port Leasehold Mortgage shall desire or is required to give to or serve upon Landlord shall be deemed to have no duty been duly given or served if sent in duplicate by certified or overnight mail addressed to determine the relative priority of the leasehold mortgages and the Port Landlord at Landlord’s Notice Address or at such other addresses as shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved be designated by Landlord by notice in writing given to the Port's satisfaction within ninety Leasehold Mortgage holder by certified or overnight mail.
(90iv) days of Notwithstanding anything to the termination of contrary set forth in this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Article shall inure only to the benefit of the holders of Leasehold Mortgages which shall be, respectively, a first and second lien. If the holders of more than one Leasehold Mortgage make written requests upon Landlord for a new lease in accordance with the provisions of Section 15.610.01(c)(i), the new lease shall be entered into pursuant to the request of the holder whose Leasehold Mortgage is prior in lien thereto and thereupon the written requests for a new lease of a holder of a Leasehold Mortgage junior in lien shall be and be deemed to be void and of no force or effect.
(d) Landlord shall not exercise any default remedies due to a Tenant default which is not susceptible to being cured by the holder of the Leasehold Mortgage.
(e) Until the loan obligations under the Leasehold Mortgage shall have been completely paid and performed, and the Leasehold Mortgage shall have been discharged, neither Landlord nor Tenant shall terminate, amend or modify this Lease, or exclude any parcel from this Lease, without the prior written consent of the holder of the Leasehold Mortgage. Any such termination, amendment, modification or exclusion without the prior written consent of the holder of the Leasehold Mortgage shall not be binding upon such holder, its successors or assigns. The Leasehold Mortgage shall not be terminated under this Section 10(e) unless the holder of the Leasehold Mortgage has complied with Section 10(c) (new lease).
(f) In the event the ownership of the fee and leasehold become vested in the same person or entity, then as long as the Leasehold Mortgage shall remain outstanding, such occurrence shall not result in a merger of title. Rather, the Lease and the Leasehold Mortgage lien thereon shall remain in full force and effect.
(g) Landlord consents to any subsequent sale or transfer of the leasehold estate hereunder as permitted in the Leasehold Mortgage, in any such case without requirement of any further consent or other action of Landlord (but if any such further written consent to same is, nonetheless, requested by the Leasehold Mortgagee, Landlord agrees to provide same promptly upon request) .
(h) If the holder of the Leasehold Mortgage determines to foreclose or cause its designee to foreclose the Leasehold Mortgage or to acquire or cause its designee to acquire the leasehold estate or to succeed or cause its designee to succeed to Tenant’s possessory rights with respect to the leasehold estate or to appoint a receiver before it effectuates the cure of any non-monetary breach or default by Tenant hereunder, the cure periods hereunder shall be tolled for any period during which foreclosure proceedings, or legal proceedings to succeed to Tenant’s possessory rights, or proceedings to appoint the receiver are conducted, as the case may be. Any such proceedings shall be commenced promptly after the notice of default is delivered to the holder of the Leasehold Mortgage and shall be diligently prosecuted. Promptly after the holder of the Leasehold Mortgage or a designee of such holder acquires the Leasehold estate pursuant to foreclosure proceedings or otherwise or succeeds to Tenant’s possessory rights or promptly after a receiver is appointed, as the case may be, the holder of the Leasehold Mortgage or its designee shall cure said breach or default.
(i) Any and all buildings and improvements owned by Tenant prior to any termination of this Lease after a default of Tenant shall automatically pass to, vest in and belong to the holder of the Leasehold Mortgage, and shall not become the property of Landlord unless and until the final expiration or sooner termination of this Lease not followed by a new Lease as provided herein.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. a. If Lessee mortgages or provides a deed of trust encumbering its leasehold estate (a “Mortgage”), the Lessee shall notify Lessor in the manner provided for the giving of notice, of the execution of such Mortgage and name the place for service of notice upon the mortgagees, beneficiaries or holders of indebtedness (the “Leasehold Mortgagee”). In such event, Lessor agrees, subject to the provisions of the Estoppel Certificate, for the benefit of such mortgagees or holders of indebtedness:
(i) That Lessor will give to Leasehold Mortgagee simultaneously with service on Lessee, a duplicate of any and all default notices given by Lessor to Lessee. Such notices shall be given in the manner and be subject to the terms of the notice provisions of this Lease.
(ii) That such Leasehold Mortgagee shall have the right during the term privilege of performing any of Lessee’s covenants under this Lease to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired curing any default of Lessee or of exercising any election option or privilege conferred upon Lessee by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will (iii) That Lessor shall not accept a voluntary cancellation or surrender of the terminate this Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure for any default of Lessee if, within the time provided for in the lease after the leasehold mortgagee's receipt a period of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days after the expiration of the period of time within which Lessee might cure such default under the provisions of this Lease, provided the Leasehold Mortgagee has received notice of default, and the Leasehold Mortgagee commences to eliminate the cause of such default and proceeds diligently and with reasonable dispatch to so cure and Leasehold Mortgagee provides Lessor with adequate assurance, as determined by Lessor, that Leasehold Mortgagee has the ability and will cure the default within a default reasonable amount of time, as determined by Lessor.
(other than iv) That no rights, privilege or option to cancel or terminate this Lease, available to Lessee, shall be deemed to have been exercised effectively unless joined in by the Leasehold Mortgagee.
(v) That no liability for the payment of rental or the performance of any money due under of Lessee’s covenants and agreements shall attach to or be imposed upon the lease) because the leasehold mortgagee is not in possession of the propertyLeasehold Mortgagee, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues unless such Leasehold Mortgagee forecloses its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage interest and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Lease Agreement (Intrepid Technology & Resources, Inc.)
Leasehold Mortgages. Lessee (A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in the GL Property created by this Ground Lease, as well as BNPLC's rights and interests in buildings, fixtures, equipment and Improvements situated on the Land and rents, issues, profits, revenues and other income to be derived by BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease, and of the Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold estate created by this Ground Lease, or of any Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without the consent of Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective until it is so served. Any Leasehold Mortgagee shall have the right during to correct or cure any such default within the term same period of time after receipt of such notice as is given to BNPLC under this Ground Lease to correct or cure defaults, plus an additional period of thirty days thereafter. Lessor will accept performance by any Leasehold Mortgagee of any covenant, condition or agreement on BNPLC's part to be performed hereunder with the same force and effect as though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a disaffirmance or rejection of this Ground Lease to mortgage by BNPLC or any receiver, liquidator or trustee for the Lessee's interest in this Leaseproperty of BNPLC, without the prior consent or by any governmental authority which had taken possession of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder business or property of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port BNPLC by reason of the right given insolvency or alleged insolvency of BNPLC, then:
(1) Lessor shall give notice thereof to the Lessee to assign its interest in this Lease for security purposes.
15.1 The each Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name Mortgagee; and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment request of any money due under the lease) because the leasehold mortgagee is not in possession of the propertyLeasehold Mortgagee made within sixty days after Lessor has given such notice, the lease Lessor shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new ground lease of the 5 40 GL Property with such Leasehold Mortgagee for the leasehold mortgagee under remainder of the Ground Lease Term, at the same Ground Lease Rent and on the same terms and conditions as contained in this Lease and for any unexpired term Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the new lease, shall have priority equal to the estate of BNPLC hereunder. The Port's execution and delivery That is, there shall be no charge, lien or burden upon the GL Property prior to or superior to the estate granted by such new lease which was not prior to or superior to the estate of BNPLC under this Ground Lease as of the lease shall be without any representation or warranty date immediately preceding the termination of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new leasethis Ground Lease.
15.6.1 The Port (3) Notwithstanding the foregoing, if Lessor shall be obligated receive requests to enter into a new ground lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If from more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgageeLeasehold Mortgagee, the Port Lessor shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation be required to enter into a only one new ground lease, and the new ground lease with any leasehold mortgagees unless the dispute is resolved shall be to the Portrequesting Leasehold Mortgagee who holds the highest priority lien or interest in BNPLC's satisfaction within ninety (90) days leasehold estate in the Land. If the liens or security interests of two or more such requesting Leasehold Mortgagees which shared the highest priority just prior to the termination of this Ground Lease, the new ground lease shall name all such Leasehold Mortgagees as co-tenants thereunder.
15.6.3 Upon (E) If BNPLC has agreed with any Leasehold Mortgagee that such Leasehold Mortgagee's consent will be required to any modification or early termination of this Ground Lease by BNPLC, and if Lessor has been notified of such agreement, such consent will be required.
(F) 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 execution GL Property, unless and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL Property at foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to include, in addition to the items specified in Paragraph 11, confirmation of the new lease by the leasehold mortgagee and the Port, the Port will convey foregoing in any statement provided to the leasehold mortgagee by quit claim deed, title a Leasehold Mortgagee or prospective Leasehold Mortgagee pursuant to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancesParagraph .
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee (A) By Leasehold Mortgage BNPLC may encumber BNPLC's leasehold estate in the GL Property created by this Ground Lease, as well as BNPLC's rights and interests in buildings, fixtures, equipment and Improvements situated on the Land and rents, issues, profits, revenues and other income to be derived by BNPLC therefrom.
(B) Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease, and of the Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold estate created by this Ground Lease, or of any Improvements, equipment, fixtures and other property assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without the consent of Lessor.
(C) Lessor shall serve notice of any default by BNPLC hereunder upon any Leasehold Mortgagee. No notice of a default by BNPLC shall be deemed effective until it is so served. Any Leasehold Mortgagee shall have the right during to correct or cure any such default within the term same period of time after receipt of such notice as is given to BNPLC under this Ground Lease to correct or cure defaults, plus an additional period of thirty days thereafter. Lessor will accept performance by any Leasehold Mortgagee of any covenant, condition or agreement on BNPLC's part to be performed hereunder with the same force and effect as though performed by BNPLC.
(D) If this Ground Lease should terminate by reason of a disaffirmance or rejection of this Ground Lease to mortgage by BNPLC or any receiver, liquidator or trustee for the Lessee's interest in this Leaseproperty of 37 BNPLC, without the prior consent or by any governmental authority which had taken possession of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder business or property of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port BNPLC by reason of the right given insolvency or alleged insolvency of BNPLC, then:
(1) Lessor shall give notice thereof to the Lessee to assign its interest in this Lease for security purposes.
15.1 The each Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name Mortgagee; and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment request of any money due under the lease) because the leasehold mortgagee is not in possession of the propertyLeasehold Mortgagee made within sixty days after Lessor has given such notice, the lease Lessor shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new ground lease of the GL Property with such Leasehold Mortgagee for the leasehold mortgagee under remainder of the Ground Lease Term, at the same Ground Lease Rent and on the same terms and conditions as contained in this Lease and for any unexpired term Ground Lease.
(2) The estate of the Leasehold Mortgagee, as lessee under the new lease, shall have priority equal to the estate of BNPLC hereunder. The Port's execution and delivery That is, there shall be no charge, lien or burden upon the GL Property prior to or superior to the estate granted by such new lease which was not prior to or superior to the estate of BNPLC under this Ground Lease as of the lease shall be without any representation or warranty date immediately preceding the termination of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new leasethis Ground Lease.
15.6.1 The Port (3) Notwithstanding the foregoing, if Lessor shall be obligated receive requests to enter into a new ground lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If from more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgageeLeasehold Mortgagee, the Port Lessor shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation be required to enter into a only one new ground lease, and the new ground lease with any leasehold mortgagees unless the dispute is resolved shall be to the Portrequesting Leasehold Mortgagee who holds the highest priority lien or interest in BNPLC's satisfaction within ninety (90) days leasehold estate in the Land. If the liens or security interests of two or more such requesting Leasehold Mortgagees which shared the highest priority just prior to the termination of this Ground Lease, the new ground lease shall name all such Leasehold Mortgagees as co-tenants thereunder.
15.6.3 Upon (E) If BNPLC has agreed with any Leasehold Mortgagee that such Leasehold Mortgagee's consent will be required to any modification or early termination of this Ground Lease by BNPLC, and if Lessor has been notified of such agreement, such consent will be required.
(F) 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 execution GL Property, unless and until the Leasehold Mortgagee acquires BNPLC's leasehold estate in the GL Property at foreclosure or by deed in lieu of foreclosure.
(G) Although the foregoing provisions concerning Leasehold Mortgages and Leasehold Mortgagees will be self operative, Lessor agrees to include, in addition to the items specified in Paragraph 11, confirmation of the new lease by the leasehold mortgagee and the Port, the Port will convey foregoing in any statement provided to the leasehold mortgagee by quit claim deed, title a Leasehold Mortgagee or prospective Leasehold Mortgagee pursuant to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrancesParagraph 11.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee 17.1 Tenant shall have the right during the term of this Lease right, in addition to any other rights granted and without any requirement to obtain Landlord’s consent, to mortgage the Lessee's or grant a security interest in Tenant’s interest in this LeaseLease and the Premises and the Improvements and any subleases, without the prior consent of the Portunder one or more leasehold mortgages or trust deeds to one or more Lending Institutions, as defined below, and to assign the Lessee's interest in this Lease and any subleases as collateral security for such leasehold mortgage. All mortgages or trust deeds, on the condition that all rights acquired by the holder of the under such leasehold mortgage mortgages or trust deeds shall be subject to each and every termall of the covenants, covenant conditions, and condition of restrictions set forth in this Lease and to all rights and interests of the Port. None Landlord, none of the termswhich covenants, covenants conditions, restrictions, rights, or conditions of the Lease interests is or shall be waived by the Port Landlord by reason of the right given to the Lessee to assign its mortgage, grant a trust deed, or grant a security interest in Tenant’s interest in this Lease for security purposes.
15.1 The Leasehold Mortgage and the Premises and the Improvements, except as expressly provided otherwise herein. Tenant shall contain provisions providing not have any right or power to incur any encumbrance that no purchaser shall constitute in any way an encumbrance on the Landlord’s fee interest in the Premises or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default Landlord’s reversionary interest under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of 17.2 Any mortgage or trust deed made pursuant to this section is referred to as a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee “Permitted Leasehold Mortgage,” and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of or secured party under a Permitted Leasehold Mortgage is referred to as a “Permitted Leasehold Mortgagee.” The Permitted Leasehold Mortgage that is prior in lien or interest among those in effect is referred to as the Lessee's interest “First Leasehold Mortgage,” and the holder of or secured party under the First Leasehold Mortgage is referred to as the “First Leasehold Mortgagee.” A “Permitted Leasehold Mortgage” includes mortgages and trust deeds. The words Lending Institution, as used in this Lease, mean any commercial, national, or savings bank, savings and loan association, trust company, pension trust, foundation, or insurance company making a loan on the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all security of the obligations and covenants of the Lessee contained Tenant’s interest in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request all or any part of the leasehold mortgagee, the Port agrees Improvements. Any Permitted Leasehold Mortgage shall at all times be subordinate to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or Landlord’s fee interest in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this LeasePremises.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Ground Lease
Leasehold Mortgages. Lessee Tenant may, with Landlord’s prior consent, execute and deliver Leasehold Mortgages to Leasehold Mortgagees (as those terms are defined in Paragraph 9 hereof). No Leasehold Mortgage shall have extend to or affect the right during fee, the term reversionary interest, or the estate of Landlord in and to the Premises. The remaining terms and conditions of this paragraph shall not be binding upon Landlord, unless (i) a complete copy of the Leasehold Mortgage is delivered to the Landlord, and (ii) the Leasehold Mortgagee gives Landlord a written notice containing the name and current address of the Leasehold Mortgagee. If such notice is delivered to the Landlord before a Tenant’s Default, the Landlord agrees to give the Leasehold Mortgagee a copy of each notice of a Tenant’s Default at the same time that Landlord gives such notice to Tenant. Such notice shall be deemed duly given to the Leasehold Mortgagee when mailed to the Leasehold Mortgagee at its last address furnished to Landlord. Landlord shall accept performance by the Leasehold Mortgagee of any obligation of this Lease that Tenant is required to mortgage perform, with the Lessee's same force and effect as if performed by Tenant, provided that at the time of such performance the Landlord is furnished with satisfactory evidence that the person or firm tendering such performance or payment has a claimed interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition of this Lease and to all rights and interests of the Port. None of the terms, covenants or conditions of the Lease shall be waived by the Port by reason of the right given Premises pursuant to the Lessee to assign its interest in this Lease for security purposes.
15.1 Leasehold Mortgage. The Leasehold Mortgage Mortgagee shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to this Lease or the leasehold estate covered by the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, have twenty (20) days after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a such notice of default from the Port to the Lessee, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease shall not be in default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee which to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder Tenant’s Default consisting of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee non-payment of rent or additional rent under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained a reasonable time in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for cure any unexpired term of the leaseother Tenant’s Default. The Port's execution and delivery of the lease Leasehold Mortgagee shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of also have such new leaserights as set forth in Paragraph 9 hereof.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Leasehold Mortgages. Lessee shall have Notwithstanding anything to the right during the term of this Lease to mortgage the Lessee's interest contrary ------------------- contained in this Lease, Tenant may execute, deliver and perform one or more mortgages, deeds of trust or other leasehold security agreements ("Leasehold Indentures") without the prior consent of Landlord in connection with an overall financing of Advance Stores Company, Incorporated or a successor to substantially all of its assets ("ASCI"). If either Tenant or the Portmortgagee, and to assign the Lessee's interest in this Lease as collateral security for grantee or trustee under any such leasehold mortgage. All rights acquired by the holder Leasehold Indenture sends Landlord a notice advising of the leasehold mortgage existence of such Leasehold Indenture and the address of the mortgagee, grantee or trustee thereunder for the service of such notices, such mortgagee, grantee or trustee shall be subject deemed to be a "Leasehold Lender." Landlord shall be under no obligation under this paragraph to any mortgagee, grantee or trustee under a Leasehold Indenture who is not a Leasehold Lender. Anything to the contrary herein notwithstanding, there shall only be one Leasehold Lender with respect to the Leased Premises at any time.
A. Upon the occurrence of any default hereunder by Tenant, written notice to that effect shall be sent by Landlord to each and every term, covenant and condition Leasehold Lender at the same time notice of this Lease and such default is sent to all rights and interests of the PortTenant. None of the terms, covenants or conditions of the Lease Landlord shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to not terminate this Lease or the leasehold estate covered by exercise any other right or remedy hereunder unless it first gives notice of such default to each Leasehold Lender, and:
(1) If such default is a failure to pay a monetary obligation of Tenant, the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice Lender shall fail to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any such default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a of receipt of notice thereof from Landlord; or
(2) If such default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession a failure to pay a monetary obligation of the propertyTenant, the lease Leasehold Lender shall not be in fail within forty-five (45) days of receipt of said written notice to remedy such default; or
(3) If any such default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the Leasehold Lender by payment of money and without the Leasehold Lender obtaining possession of the Leased Premises by appropriate proceedings and/or title to Tenant's leasehold mortgagee estate by judicial or non-judicial foreclosure proceedings or by deed in lieu thereof, then any such default shall be remedied or deemed remedied if the Leasehold Lender shall have complied with the following provisions:
(i) Within thirty (30) days after receiving notice from Landlord setting forth the nature of such default, or prior thereto, the Leasehold Lender shall have acquired Tenant's leasehold estate or within fifteen (15) days shall have commenced judicial or non-judicial foreclosure proceedings or appropriate proceedings to obtain possession of the Leased Premises;
(ii) The Leasehold Lender shall diligently prosecute any such proceedings to completion;
(iii) The Leasehold Lender shall have fully cured and continue to cure any default arising from failure to pay or perform any monetary obligations in accordance with the Lessee's terms of this Lease; and
(iv) After gaining possession of the Leased Premises, the Leasehold Lender shall perform all other obligations of Tenant as and when the same are due in accordance with the terms of this Lease.
B. If any Leasehold Lender or a person designated by a Leasehold Lender shall either become the owner of the interest of Tenant hereunder upon the exercise of any remedy provided for in the Leasehold Indenture or shall enter into a new Lease with Landlord as provided in paragraph (d), then, notwithstanding anything to the contrary contained in this Lease, such Leasehold Lender or such person shall have the right to assign such interest or such new Lease to any person without obtaining the consent or approval of Landlord, provided, however, that following such assignment, the Landlord?s consent shall be required with respect to any subsequent tenants to the extent required under this Lease.
C. If this Lease has been terminated is terminated, rejected or canceleddisaffirmed for any reason pursuant to bankruptcy law or other law affecting creditors' rights, then at any Leasehold Lender, or a person designated by any Leasehold Lender, shall have the written request right, exercisable by notice to Landlord within thirty (30) days after the effective date of the leasehold mortgageetermination, the Port agrees rejection or disaffirmance, to enter into a new lease Lease of the Leased Premises with Landlord to the leasehold mortgagee extent enforceable under law. The term of the new Lease shall begin on the date of the termination of this Lease and shall continue for the remainder of the term of this Lease (including any options to renew if the right thereto is exercised by such Leasehold Lender or its assignee). Such new Lease shall otherwise contain the same terms and conditions as those set forth herein, except for requirements which are no longer applicable or have already been performed, provided that all defaults which are susceptible of being remedied by the payment of money shall have been cured, and provided further that such new lease shall require the Tenant thereunder promptly to commence and expeditiously continue to remedy all other defaults on the part of Tenant thereunder to the extent reasonably possible. It is the intention of the parties hereto that such new Lease shall have the same priority relative to other rights or interests to or in the fee estate in the land covered by this Lease. The provisions of this paragraph shall survive the termination of this Lease and for shall continue in full force and effect thereafter to the same extent as if this paragraph (d) were a separate and independent contract by and among Landlord, Tenant and each Leasehold Lender. From the date on which any unexpired term Leasehold Lender shall serve upon Landlord the aforesaid notice of the lease. The Port's execution and delivery exercise of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated its rights to enter into a new lease Lease, such Leasehold Lender may use and enjoy the Leased Premises without hindrance or interference by Landlord.
D. Subject to the cure rights set forth herein, no Leasehold Lender shall become liable for the performance or observance of any covenants or conditions to be performed or observed by Tenant unless and until such Leasehold Lender becomes the owner of Tenant's interest hereunder upon the exercise of any remedy provided for in any Leasehold Indenture or occupies the Leased Premises or enters into a new Lease with Landlord as herein provided. Thereafter, such Leasehold Lender shall be liable for the leasehold mortgagee performance and observance of such covenants and conditions only if until such Leasehold Lender assigns such interest or assigns the leasehold mortgagee has remedied and cured new Lease as permitted hereby whereupon all monetary defaults obligations of the Lessee such Leasehold Lender under this Lease and has remedied and cured or has commenced and is diligently completing such new Lease arising subsequent to such assignment shall terminate.
E. Landlord agrees that the cure exercise of all non-monetary defaults susceptible to cure its rights under this Lease in case of a default by any party other than Tenant shall not, without the original Lessee. The leasehold mortgagee shall pay all costs and expenses prior written consent of each Leasehold Lender, result in the merger of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection estate of the subtenant under any sublease with the preparation and execution estate of a new lease and any related conveyancesthe sublandlord thereunder.
15.6.2 If more than one leasehold mortgagee requests F. Without the prior written consent of each Leasehold Lender, Landlord will not accept a new lease voluntary surrender of this Lease or in the estate created hereby and will not consent to any amendment of this Lease that adversely affects the rights of the Leasehold Lender hereunder.
G. In the event of a dispute between any default by Tenant under the Lessee Lease or the Leasehold Indenture, Landlord will allow the Leasehold Lender to enforce its lien and a leasehold mortgagee, security interest on Tenant's assets located at the Port Leased Premises and Landlord will allow the Leasehold Lender to assemble and remove all of Tenant's assets located on the Leased Premises (provided that (i) the Leasehold Lender shall have no duty only be permitted to determine remove assets which Tenant would be entitled to remove pursuant to the relative priority terms of Paragraph 5 of the leasehold mortgages Lease, and (ii) the Port shall have no obligation to enter into a new lease with Leasehold Lender promptly repairs all material damage resulting from such removal) without the Leasehold Lender assuming any leasehold mortgagees unless of Tenant's obligations under the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
Appears in 1 contract
Samples: Lease Agreement (Laralev Inc)
Leasehold Mortgages. Lessee shall have the right during the term Section 23.1 Granting of this Lease Tenant Mortgages Subject to mortgage the Lessee's interest in this Lease, without the prior consent of the Port, and to assign the Lessee's interest in this Lease as collateral security for such leasehold mortgage. All rights acquired by the holder of the leasehold mortgage shall be subject to each and every term, covenant and condition all provisions of this Lease and only in compliance with Section 22.1 of this Lease, Tenant may mortgage, pledge or otherwise encumber this Lease and the Improvements from time to all rights and interests of time only after first obtaining Landlord's consent, which shall not be unreasonably withheld, Financially Conditioned or delayed; provided that Landlord's consent shall not be required in connection with a Financing, or the PortLeasehold Mortgage as security therefor, in which each lender is a Suitable Lender. None of the termsSubject to Section 23.12, covenants any such mortgage, pledge or conditions of the Lease encumbrance shall be waived by the Port by reason in a form that requires any Person, including any Leasehold Mortgagee, that acquires ownership of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to either this Lease or the leasehold estate covered Improvements by the Leasehold Mortgage unless the Port has approved the assignee virtue of such mortgage, pledge or transferee in writingencumbrance (whether by foreclosure, other enforcement proceeding or otherwise) to perform or cause to be performed all of Tenant's obligations under this Lease.
15.2 In Section 23.2 Granting of Subtenant Mortgages
(a) Following the event consummation of the Lessee assigns VICI Sale-Leaseback Transaction, subject to all provisions of this Lease for security purposes as provided and only in this compliance with Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice to the Lessee under the terms 22.1 of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation Casino Subtenant may mortgage, pledge or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates otherwise encumber its interest in the property.
15.4 In the event of a notice of default VICI Sublease from the Port time to the Lesseetime only after first obtaining Landlord's consent, the leasehold mortgagee may cure any default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession of the property, the lease which shall not be unreasonably withheld, Financially Conditioned or delayed; provided that Landlord's consent shall not be required in default if connection with a Financing, or the leasehold mortgagee promptly undertakes Leasehold Mortgage as security therefor, in which each lender is a Suitable Lender. Subject to obtain possession Section 23.12, any such mortgage, pledge or encumbrance shall be in a form that requires any Person that acquires ownership of the property and diligently pursues its right to possession. No tender VICI Sublease by virtue of cure of a default such mortgage, pledge or encumbrance (whether by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee foreclosure, other enforcement proceeding or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the leasehold mortgagee and the Lessee's interest under this Lease has been terminated or canceled, then at the written request of the leasehold mortgagee, the Port agrees to enter into a new lease with the leasehold mortgagee under the same terms and conditions as this Lease and for any unexpired term of the lease. The Port's execution and delivery of the lease shall be without any representation or warranty of any kindotherwise), including any representations Leasehold Mortgagee, to perform or warranties regarding title cause to be performed all of Casino Subtenant's obligations under the Property, the improvements or the priority of such new leaseVICI Sublease.
15.6.1 The Port shall be obligated to enter into a new lease with the leasehold mortgagee only if the leasehold mortgagee has remedied and cured all monetary defaults of the Lessee under this Lease and has remedied and cured or has commenced and is diligently completing the cure of all non-monetary defaults susceptible to cure by any party other than the original Lessee. The leasehold mortgagee shall pay all costs and expenses of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection with the preparation and execution of a new lease and any related conveyances.
15.6.2 If more than one leasehold mortgagee requests a new lease or in the event of a dispute between the Lessee and a leasehold mortgagee, the Port shall have no duty to determine the relative priority of the leasehold mortgages and the Port shall have no obligation to enter into a new lease with any leasehold mortgagees unless the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
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Leasehold Mortgages. Lessee shall have Notwithstanding anything to the right during the term of this Lease to mortgage the Lessee's interest contrary ------------------- contained in this Lease, Tenant may execute, deliver and perform one or more mortgages, deeds of trust or other leasehold security agreements ("Leasehold Indentures") without the prior consent of Landlord in connection with an overall financing of Advance Stores Company, Incorporated or a successor to substantially all of its assets ("ASCI"). If either Tenant or the Portmortgagee, and to assign the Lessee's interest in this Lease as collateral security for grantee or trustee under any such leasehold mortgage. All rights acquired by the holder Leasehold Indenture sends Landlord a notice advising of the leasehold mortgage existence of such Leasehold Indenture and the address of the mortgagee, grantee or trustee thereunder for the service of such notices, such mortgagee, grantee or trustee shall be subject deemed to be a "Leasehold Lender." Landlord shall be under no obligation under this paragraph to any mortgagee, grantee or trustee under a Leasehold Indenture who is not a Leasehold Lender. Anything to the contrary herein notwithstanding, there shall only be one Leasehold Lender with respect to the Leased Premises at any time.
A. Upon the occurrence of any default hereunder by Tenant, written notice to that effect shall be sent by Landlord to each and every term, covenant and condition Leasehold Lender at the same time notice of this Lease and such default is sent to all rights and interests of the PortTenant. None of the terms, covenants or conditions of the Lease Landlord shall be waived by the Port by reason of the right given to the Lessee to assign its interest in this Lease for security purposes.
15.1 The Leasehold Mortgage shall contain provisions providing that no purchaser or transferee of the Lease at any foreclosure sale or other transfer authorized by law or by reason of a default under the mortgage where no foreclosure sale is required shall further assign or transfer any right, title or interest in or to not terminate this Lease or the leasehold estate covered by exercise any other right or remedy hereunder unless it first gives notice of such default to each Leasehold Lender, and:
(1) If such default is a failure to pay a monetary obligation of Tenant, the Leasehold Mortgage unless the Port has approved the assignee or transferee in writing.
15.2 In the event the Lessee assigns this Lease for security purposes as provided in this Section 15, after receipt of a written notice from the Lessee giving the name and address of the leasehold mortgagee, the Port agrees that whenever the Port sends a notice Lender shall fail to the Lessee under the terms of this Lease, the Port will contemporaneously send a copy of the notice to the leasehold mortgagee.
15.3 The Port further agrees that it will not accept a voluntary cancellation or surrender of the Lease by the Lessee without prior written consent of the leasehold mortgagee and the Port will not enter into any amendments of the lease which modifies any material provision of the lease without prior written approval of the leasehold mortgagee. No merger shall result from the acquisition by or the devolution upon any one entity of the fee and leasehold estates in the property.
15.4 In the event of a notice of default from the Port to the Lessee, the leasehold mortgagee may cure any such default within the time provided for in the lease after the leasehold mortgagee's receipt of the notice of default. The Port agrees to accept a tender of cure of default from the leasehold mortgagee as if the cure were tendered by the Lessee. Provided, however, that if it takes the leasehold mortgagee more than thirty (30) days to cure a of receipt of notice thereof from Landlord; or
(2) If such default (other than the payment of any money due under the lease) because the leasehold mortgagee is not in possession a failure to pay a monetary obligation of the propertyTenant, the lease Leasehold Lender shall not be in fail within forty-five (45) days of receipt of said written notice to remedy such default; or
(3) If any such default if the leasehold mortgagee promptly undertakes to obtain possession of the property and diligently pursues its right to possession. No tender of cure of a default by the leasehold mortgagee shall require the leasehold mortgagee to cure any future defaults by the Lessee or require the leasehold mortgagee to perform any other term or condition of this Lease.
15.5 In the event of a default by the Lessee which has not been cured by the Lessee or by the leasehold mortgagee and which would permit the Port to forfeit or otherwise terminate this Lease or in the event the leasehold mortgagee forecloses upon its leasehold mortgage and becomes the holder of the Lessee's interest in this Lease, the Port agrees to accept the leasehold mortgagee as the Lessee under this Lease, provided the leasehold mortgagee performs all of the obligations and covenants of the Lessee contained in this Lease which are capable of being performed by the leasehold mortgagee.
15.6 In the event of a default which is personal to the Lessee (such as a bankruptcy) and which cannot be cured by the Leasehold Lender by payment of money and without the Leasehold Lender obtaining possession of the Leased Premises by appropriate proceedings and/or title to Tenant's leasehold mortgagee estate by judicial or non-judicial foreclosure proceedings or by deed in lieu thereof, then any such default shall be remedied or deemed remedied if the Leasehold Lender shall have complied with the following provisions:
(i) Within thirty (30) days after receiving notice from Landlord setting forth the nature of such default, or prior thereto, the Leasehold Lender shall have acquired Tenant's leasehold estate or within fifteen (15) days shall have commenced judicial or non-judicial foreclosure proceedings or appropriate proceedings to obtain possession of the Leased Premises;
(ii) The Leasehold Lender shall diligently prosecute any such proceedings to completion;
(iii) The Leasehold Lender shall have fully cured and continue to cure any default arising from failure to pay or perform any monetary obligations in accordance with the Lesseeterms of this Lease; and
(iv) After gaining possession of the Leased Premises, the Leasehold Lender shall perform all other obligations of Tenant as and when the same are due in accordance with the terms of this Lease.
B. If any Leasehold Lender or a person designated by a Leasehold Lender shall either become the owner of the interest of Tenant hereunder upon the exercise of any remedy provided for in the Leasehold Indenture or shall enter into a new Lease with Landlord as provided in paragraph (d), then, notwithstanding anything to the contrary contained in this Lease, such Leasehold Lender or such person shall have the right to assign such interest or such new Lease to any person without obtaining the consent or approval of Landlord, provided, however, that following such assignment, the Landlord's interest consent shall be required with respect to any subsequent tenants to the extent required under this Lease.
C. If this Lease has been terminated is terminated, rejected or canceleddisaffirmed for any reason pursuant to bankruptcy law or other law affecting creditors' rights, then at any Leasehold Lender, or a person designated by any Leasehold Lender, shall have the written request right, exercisable by notice to Landlord within thirty (30) days after the effective date of the leasehold mortgageetermination, the Port agrees rejection or disaffirmance, to enter into a new lease Lease of the Leased Premises with Landlord to the leasehold mortgagee extent enforceable under law. The term of the new Lease shall begin on the date of the termination of this Lease and shall continue for the remainder of the term of this Lease (including any options to renew if the right thereto is exercised by such Leasehold Lender or its assignee). Such new Lease shall otherwise contain the same terms and conditions as those set forth herein, except for requirements which are no longer applicable or have already been performed, provided that all defaults which are susceptible of being remedied by the payment of money shall have been cured, and provided further that such new lease shall require the Tenant thereunder promptly to commence and expeditiously continue to remedy all other defaults on the part of Tenant thereunder to the extent reasonably possible. It is the intention of the parties hereto that such new Lease shall have the same priority relative to other rights or interests to or in the fee estate in the land covered by this Lease. The provisions of this paragraph shall survive the termination of this Lease and for shall continue in full force and effect thereafter to the same extent as if this paragraph (d) were a separate and independent contract by and among Landlord, Tenant and each Leasehold Lender. From the date on which any unexpired term Leasehold Lender shall serve upon Landlord the aforesaid notice of the lease. The Port's execution and delivery exercise of the lease shall be without any representation or warranty of any kind, including any representations or warranties regarding title to the Property, the improvements or the priority of such new lease.
15.6.1 The Port shall be obligated its rights to enter into a new lease Lease, such Leasehold Lender may use and enjoy the Leased Premises without hindrance or interference by Landlord.
D. Subject to the cure rights set forth herein, no Leasehold Lender shall become liable for the performance or observance of any covenants or conditions to be performed or observed by Tenant unless and until such Leasehold Lender becomes the owner of Tenant's interest hereunder upon the exercise of any remedy provided for in any Leasehold Indenture or occupies the Leased Premises or enters into a new Lease with Landlord as herein provided. Thereafter, such Leasehold Lender shall be liable for the leasehold mortgagee performance and observance of such covenants and conditions only if until such Leasehold Lender assigns such interest or assigns the leasehold mortgagee has remedied and cured new Lease as permitted hereby whereupon all monetary defaults obligations of the Lessee such Leasehold Lender under this Lease and has remedied and cured or has commenced and is diligently completing such new Lease arising subsequent to such assignment shall terminate.
E. Landlord agrees that the cure exercise of all non-monetary defaults susceptible to cure its rights under this Lease in case of a default by any party other than Tenant shall not, without the original Lessee. The leasehold mortgagee shall pay all costs and expenses prior written consent of each Leasehold Lender, result in the merger of the Port, including, but not limited to, attorney fees, real property transfer taxes, escrow fees and recording fees incurred in connection estate of the subtenant under any sublease with the preparation and execution estate of a new lease and any related conveyancesthe sublandlord thereunder.
15.6.2 If more than one leasehold mortgagee requests F. Without the prior written consent of each Leasehold Lender, Landlord will not accept a new lease voluntary surrender of this Lease or in the estate created hereby and will not consent to any amendment of this Lease that adversely affects the rights of the Leasehold Lender hereunder.
G. In the event of a dispute between any default by Tenant under the Lessee Lease or the Leasehold Indenture, Landlord will allow the Leasehold Lender to enforce its lien and a leasehold mortgagee, security interest on Tenant's assets located at the Port Leased Premises and Landlord will allow the Leasehold Lender to assemble and remove all of Tenant's assets located on the Leased Premises (provided that (i) the Leasehold Lender shall have no duty only be permitted to determine remove assets which Tenant would be entitled to remove pursuant to the relative priority terms of Paragraph 5 of the leasehold mortgages Lease, and (ii) the Port shall have no obligation to enter into a new lease with Leasehold Lender promptly repairs all material damage resulting from such removal) without the Leasehold Lender assuming any leasehold mortgagees unless of Tenant's obligations under the dispute is resolved to the Port's satisfaction within ninety (90) days of the termination of this Lease.
15.6.3 Upon the execution of the new lease by the leasehold mortgagee and the Port, the Port will convey to the leasehold mortgagee by quit claim deed, title to any improvements on the Property by the Lessee in which the leasehold mortgagee has a recorded mortgage or other security interest. The conveyance of the improvements shall be in "as is" condition without any warranty or representation by the Port concerning the condition of the improvements. The Port will not warrant the title to the improvements and the leasehold mortgagee shall accept the title to the improvements subject to any existing encumbrances.
15.6.4 Upon the execution of a new lease and the conveyance of title to improvements, if any, it shall be the responsibility of the leasehold mortgagee to cancel and discharge this Lease and remove any persons occupying the premises. The leasehold mortgagee shall indemnify the Port and hold it harmless from any obligations, claims, actions, damages, costs or expense, including attorney fees, which may arise from such action or from the Port's compliance with any of the provisions of this Section 15.6.
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Samples: Lease Agreement (Laralev Inc)
