Lender Protections. 13.6.1 No voluntary cancellation, termination, surrender, acceptance of surrender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting a Lender's rights under this Article 13, shall bind a Lender (other than an Affiliated Lender) if done without notice to and the written consent of such Lender. 13.6.2 Any Lender shall have the right, but not the obligation, to take possession of the Leased Premises and to perform any obligation of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorld. 13.6.3 A Lender shall in no event be required to cure or commence to cure any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien of the Financing Encumbrance held by such Lender. 13.6.4 Any payment made by a Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice to FirstWorld's or the Lender's recovery of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneous. 13.6.5 Any Lender may exercise its rights under this Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent. 13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 2 contracts
Samples: Lease Agreement (Firstworld Communications Inc), Lease Agreement (Firstworld Communications Inc)
Lender Protections. 13.6.1 11. 6. 1. No voluntary cancellation, termination, surrender, acceptance of surrender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting a Lender's rights under this Article 1311, shall bind a Lender (other than an Affiliated Lender) if done without notice to and the written consent of such Lender.
13.6.2 11. 6. 2. Any Lender shall have the right, but not the obligation, to take possession of the Leased Premises License and to perform any obligation of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorld.
13.6.3 11. 6. 3. A Lender shall in no event be required to cure or commence to cure any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises License or this Agreement junior in priority to the lien of the Financing Encumbrance held by such Lender.
13.6.4 11. 6. 4. Any payment made by a Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice to FirstWorld's or the Lender's recovery of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneous.
13.6.5 11. 6. 5. Any Lender may exercise its rights under this Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 11. 6. 6. If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice joint written instructions of all Lenders of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 2 contracts
Samples: Telecommunications System License Agreement (Firstworld Communications Inc), Telecommunications System License Agreement (Firstworld Communications Inc)
Lender Protections. 13.6.1 No voluntary Notwithstanding anything to the contrary in this Lease or any mortgage, any party that becomes owner of the Premises as a result of (i) foreclosure under any mortgage, (ii) any other exercise by any holder of a mortgage affecting the Premises, the Building, the land beneath the Building or any interest of Landlord therein (a “Mortgagee”) of rights and remedies (whether under any mortgage or under applicable law, including bankruptcy law) as holder of a mortgage, or (iii) delivery by Landlord to a Mortgagee (or its designee or nominee) of a deed or other conveyance of Landlord’s interest in the Premises in lieu of any of the foregoing (“Successor Landlord”) shall not be liable for or bound by any of the following matters:
(i) any right of Tenant to any offset, defense, claim, counterclaim, reduction, deduction, or abatement against Tenant’s payment of rent or performance of Tenant’s other obligations under this Lease, arising (whether under this Lease or under applicable law) from Landlord’s breach or default under this Lease (“Offset Right”) that Tenant may have against Landlord or any other party that was landlord under this Lease at any time before the occurrence of any attornment by Tenant (“Former Landlord”) relating to any event or occurrence before the date of attornment, including any claim for damages of any kind whatsoever as the result of any breach by Former Landlord that occurred before the date of attornment. The foregoing shall not limit either (x) Tenant’s right to exercise against Successor Landlord any Offset Right otherwise available to Tenant because of events occurring after the date of attornment or (y) Successor Landlord’s obligation to correct any conditions that existed as of the date of attornment and violate Successor Landlord’s obligations as landlord under this Lease;
(ii) any obligation with respect to any security deposited with Former Landlord, unless such security was actually delivered to Mortgagee;
(iii) to commence or complete any initial construction of improvements in the Premises or any expansion or rehabilitation of existing improvements thereon;
(iv) to reconstruct or repair improvements following a fire, casualty or condemnation;
(v) any offset, defense, claim, counterclaim, reduction, deduction, or abatement arising from representations and warranties related to Former Landlord;
(vi) any modification or amendment of the Lease, or any waiver of the terms of the Lease, made without Mortgagee’s written consent;
(vii) any consensual or negotiated surrender, cancellation, terminationor termination of the Lease, surrenderin whole or in part, acceptance agreed upon between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to the express terms of surrenderthe Lease;
(viii) any payment of rent that Tenant may have made to Former Landlord more than thirty (30) days before the date such rent was first due and payable under the Lease with respect to any period after the date of attornment other than, or abandonmentand only to the extent that, of this Agreementthe Lease expressly required such a prepayment; and
(ix) to pay Tenant any sum(s) that any Former Landlord owed to Tenant unless such sums, nor any amendment or modification adversely affecting a Lender's rights under this Article 13if any, shall bind a Lender (other than an Affiliated Lender) if done without notice to and the written consent of such Lender.
13.6.2 Any Lender shall have the right, but not the obligation, to take possession of the Leased Premises and to perform any obligation of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorld.
13.6.3 A Lender shall in no event be required to cure or commence to cure any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien of the Financing Encumbrance held by such Lender.
13.6.4 Any payment made by a Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice actually delivered to FirstWorld's Mortgagee by way of an assumption of escrow accounts or the Lender's recovery of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneousotherwise.
13.6.5 Any Lender may exercise its rights under this Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 1 contract
Samples: Office Lease (Xactly Corp)
Lender Protections. 13.6.1 No voluntary cancellation, termination, surrender, acceptance 8.3.1 If Lessor gives written notice to Lessee of surrender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting a Lender's rights Default under this Article 13Lease by Lessee, Lessor shall bind a also give written notice of the Default to any Lenders. Such notice will be sent by certified mail to the most current name and address of the Lender (other than an Affiliated Lender) if done without notice provided to Lessor and the written consent no proof of receipt of such Lendernotice by the Lender will be required.
13.6.2 Any 8.3.2 A Lender shall will have the rightright to cure Lessee’s breach within the time periods provided to Lessee under this Lease plus forty-five (45) days, but except to the extent Lender is prevented from curing a nonmonetary breach because Lender does not the obligation, to take have possession of the Leased Premises Premises, in which case Lender will have a reasonable amount of time to cure so long as Lender is using commercially reasonable efforts to gain possession of the Leased Premises.
8.3.3 A Lender may succeed to the rights and duties of Lessee under such conditions as are provided in the agreement between Lessee and the Lender and the terms of this Lease.
8.3.4 In the event Lessor terminates this Lease Lessor shall, upon request by Lender, re-bid a lease on the Land under the same terms and conditions contained herein.
8.3.5 Lenders will be permitted to perform go upon the Leased Premises, from time to
8.3.6 So long as an approved Collateral Assignment or Leasehold Mortgage is in force, no relinquishment, assignment, modification or amendment of this Lease, or portions thereof embraced under such Collateral Assignment or Leasehold Mortgage, will be accepted or approved by Lessor without approval by Lender or release by Lender of its Collateral Assignment or Leasehold Mortgage.
8.3.7 Lender will not be liable for any obligation duties, obligations, actions or inactions of FirstWorld Lessee under this Agreement Lease prior to the date on which Lender takes possession of the Leased Premises, and in any event the Lender’s liability under this Lease is limited to
8.3.8 So long as any Collateral Assignment is in existence, unless this Lease has otherwise been terminated in accordance with its terms, the title to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorld.
13.6.3 A Lender shall in no event be required to cure or commence to cure any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to and the lien leasehold estate of Lessee therein created by this Lease will not merge but must remain separate and distinct, notwithstanding the Financing Encumbrance held acquisition of said title and said leasehold estate by such Lender.
13.6.4 Any payment made Lessor or by Lessee or by a Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice to FirstWorld's third party, by purchase or the Lender's recovery of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneousotherwise.
13.6.5 Any Lender may exercise its rights under this Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 1 contract
Samples: Lease Agreement
Lender Protections. 13.6.1 No voluntary If any Lender sends to Landlord a true copy of its Lender’s Security Instrument, together with written notice specifying the name and address of the Lender and the pertinent recording data with respect to such Xxxxxx’s Security Instrument, then from and after Xxxxxxxx’s receipt of Xxxxxx’s notice and so long as any such Xxxxxx’s Security Instrument shall remain unsatisfied of record, or until written notice of satisfaction is given by Lender to Landlord, the following provisions shall apply:
11.4.1 Except as set forth with respect to a Default (beyond applicable notice and cure periods) by Tenant in the terms of this Lease, and except for Tenant’s right to terminate this Lease pursuant to Section 7 and Section 8 hereof, there shall be no cancellation, termination, surrender, acceptance of surrender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting of this Lease by joint action of Landlord and Tenant without the prior consent in writing of the Lender and except for a voluntary surrender by Tenant under Section 7 and Section 8 Landlord shall not accept Xxxxxx’s voluntary surrender of the Leasehold Estate so long as the Lender's rights ’s Security Instrument is outstanding;
11.4.2 While such Xxxxxx’s Security Instrument remains unsatisfied of record, Landlord shall simultaneously serve upon the Lender (in the manner required by the provisions of Section 13.4 hereof and any notice from Lender to Landlord will likewise be sent in the manner required by the provisions of Section 13.4 hereof) a copy of any notice of Default or other notice under this Article 13Lease served upon the Tenant. If any Default occurs pursuant to any provision of this Lease, shall bind a Lender and before the expiration of sixty (other than an Affiliated Lender60) if done without days from the date of service of notice to and the written consent of Default upon such Lender.
13.6.2 Any , if such Lender shall have notifies Landlord in writing of its desire to nullify such notice, pays to Landlord all Rent and other payments herein provided for and then in Default, complies or commences the right, but not the obligation, to take possession work of complying with all of the Leased Premises other requirements of this Lease, if any are then in Default, and to perform any obligation of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with prosecutes the same force to completion with reasonable diligence, then Landlord shall not be entitled to exercise any remedies set forth in this Lease for such Default and effect as if performed by FirstWorld.
13.6.3 A Lender any notice of Default theretofore given shall in be void and of no event be required to cure or commence effect. Landlord and Xxxxxx agree that Xxxxxx may enter upon the Property to cure any default (if such default is provided for Default of Tenant hereunder at all reasonable times, and that neither Landlord nor Tenant shall in this Agreement) consisting any way obstruct or limit Xxxxxx’s right of FirstWorld's failure to satisfy or discharge entry upon the Property. Nothing contained herein shall in any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien of the Financing Encumbrance held by such Lender.
13.6.4 Any payment made by a manner obligate Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice to FirstWorld's or the Lender's recovery Default of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneousTenant.
13.6.5 Any 11.4.3 In no event shall Landlord exercise any default remedies because of any Default by Tenant which is not susceptible of being cured by Lender may exercise or its rights assignee, so long as the following covenants of this Lease are being complied with (the “Required Covenants”): (i) Rent and other payments to be made by Tenant under this the Lease are paid current, (ii) Tenant is diligently pursuing construction of the Parking Garage, Public Space improvements and Building as required by the Development Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (aiii) the report Improvements are maintained in good repair or, in the event the circumstances set forth in Section 7 or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.Section 8 hereof are applicable, the Tenant is diligently complying with the same,
Appears in 1 contract
Samples: Ground Lease
Lender Protections. 13.6.1 No voluntary cancellation, termination, surrender, acceptance of surrender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting a Lender's rights under this Article 13, shall bind a Lender (other than an Affiliated Lendera) if done without notice to and the written consent of such Lender.
13.6.2 Any Project Lender shall have the right, but not the obligation, at any time prior to take termination of this Agreement and without payment of any penalty, to pay all of the sums due hereunder, to provide any insurance, to pay any taxes and make any other payments in connection with the OCF Plant and the Facility, to make any repairs and improvements and do any other act or thing required of APC hereunder, and to do any act or thing which may be necessary and proper to be done in the performance and observance of the covenants, conditions and agreements hereof to prevent the termination of this Agreement. All payments so made and all things so done and performed by Project Lender shall be as effective to prevent a termination of this Agreement as the same would have been if made, done and performed by APC instead of by Project Lender.
(b) Notwithstanding any Seller Event of Default by APC in the performance or observance of any covenant, condition or agreement of this Agreement on the part of APC to be performed or observed, OCF shall have no right to terminate this Agreement even though a Seller Event of Default under this Agreement shall have occurred and be continuing, unless and until OCF shall have given Project Lender written notice of such Seller Event of Default and Project Lender shall have failed to remedy such default or to acquire title to the Facility and APC's interest in this Agreement or to commence appropriate proceedings to acquire said title and interest within the time specified by Section 4.4(c). In accordance with and subject to the terms of Section 10.11, OCF shall contemporaneously give Project Lender at Project Lender's address given to OCF by Project Lender from time to time a copy of any notice OCF serves on APC under Section 4.2. Failure to provide Project Lender with such notice pursuant to Section 4.2 contemporaneously with the giving of notice to APC shall delay, for the period of time during which such failure continues, the commencement of the time provided in Section 4.4(c) during which Project Lender has to cure such default.
(i) If the Seller Event of Default involves the failure to pay taxes or any other sum to be paid hereunder, then Project Lender shall have twenty (20) Days longer than the cure period given to APC pursuant to Section 4.2(a) to cure such default.
(ii) If the Seller Event of Default is a nonmonetary Seller Event of Default, under Section 4.2(b), that can be remedied by Project Lender without obtaining possession of the Leased Premises Facility, then Project Lender shall have seventy-five (75) Days longer than the cure period given to APC pursuant to Section 4.2(b) to cure such default. If the Seller Event of Default cannot be cured within such seventy-five (75) Day period, then the Seller Event of Default shall be deemed cured on completion if within said seventy-five (75) Day period, (A) Project Lender shall have commenced to cure said Seller Event of Default and thereafter diligently prosecutes such cure to completion, and (B) Project Lender shall assume and perform all other obligations of APC susceptible of performance by Project Lender.
(iii) If the Seller Event of Default is a nonmonetary default that only can be remedied by Project Lender upon obtaining possession of the Facility, then Project Lender shall have one hundred twenty (120) Days longer than the cure period given to APC under this Agreement to cure such Seller Event of Default. If the Seller Event of Default cannot be cured within such time period, then the Seller Event of Default shall be deemed cured if (A) within sixty (60) Days after the expiration of the cure period given to APC to cure such default, Project Lender shall have commenced foreclosure or other appropriate proceedings in the nature thereof, (B) Project Lender shall diligently and continuously prosecute any obligation such proceedings to completion, and (C) Project Lender shall assume and perform all other obligations of FirstWorld APC susceptible of performance by Project Lender.
(d) If Project Lender is prohibited by any process or injunction issued by any court or by reason of any action by reorganization or insolvency proceedings involving APC from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof, the times specified in this Section 4.4 for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided, however, Project Lender shall have fully cured any Seller Event of Default involving the payment of any monetary obligations of APC under this Agreement and shall continue to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld pay such monetary obligations as and with when the same force and effect as if performed by FirstWorldfall due; provided, further, that Project Lender shall diligently proceed to pursue foreclosure or other appropriate proceedings required to be commenced under this Section 4.4.
13.6.3 A Lender shall in no event (e) Should this Agreement be required to cure terminated for any reason other than a default of APC which has not been cured by APC or commence to cure any default (Project Lender, if such default is provided susceptible to cure by Project Lender, OCF shall, upon written request by Project Lender to OCF received within sixty (60) Days after such termination, execute and deliver a new Thermal Energy Sales Agreement with the Project Lender for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien remainder of the Financing Encumbrance held Term with the same covenants, conditions and agreements (except for any requirements which have been satisfied by APC prior to termination) as are contained herein. OCF's obligation to enter into such Lender.new Thermal Energy Sales Agreement with the Project Lender shall be conditioned as follows:
13.6.4 Any payment made by a (i) Project Lender to Irvine has remedied and cured all monetary defaults hereunder and has remedied and cured or has commenced and is diligently completing the cure of all nonmonetary defaults of APC susceptible to cure by any claimed default shall be deemed to have been made without prejudice to FirstWorld's or the Lender's recovery of such payment if Irvine's claim of a default shall be determined party other than by a court of competent jurisdiction to have been erroneous.
13.6.5 Any Lender may exercise its rights under this AgreementAPC, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or (ii) that if more than one Project Lender desires requests such new Thermal Energy Sales Agreement the holder of the most senior lien shall prevail, and (iii) that Project Lender pays all costs and expenses of OCF incurred in connection with the preparation and execution of such new Thermal Energy Sales Agreement and any conveyances related thereto. The obligation of OCF to exercise execute a new Thermal Energy Sales Agreement with Project Lender and to comply with all other provisions of this Section 4.4 shall also apply if this Agreement shall be rejected or disaffirmed in any other right bankruptcy, debtor rehabilitation, reorganization or privilege provided insolvency proceeding affecting APC.
(f) OCF and APC shall cooperate in including in this Agreement by suitable amendment from time to time any provision which may be requested by any proposed Project Lender, for Lenders the purpose of implementing the Project Lender protection provisions of this Agreement and allowing such Project Lender reasonable means to protect or preserve the lien of any mortgage, deed of trust, or security interest on the occurrence of a default under the terms of this Agreement; provided, however, that any such amendment shall not in any way affect the Term hereby demised nor affect adversely in any material respect any rights of OCF under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 1 contract
Samples: Thermal Energy Sales Agreement (Orange Co Inc /Fl/)
Lender Protections. 13.6.1 No voluntary cancellationAs long as Lender holds any mortgage(s) or deed(s) of trust on the Leasehold Estate or Lender its designee owns the Leasehold Estate:
(a) Notwithstanding anything in the Ground Lease to the contrary, termination, surrender, acceptance if any default by the Tenant is of surrendersuch a nature that it reasonably cannot be cured by Lender, or abandonment, of this Agreement, nor any amendment or modification adversely affecting a Lender's rights under this Article 13, shall bind a reasonably cannot be cured by Lender (other than an Affiliated Lender) if done without notice to and the written consent of such Lender.
13.6.2 Any Lender shall have the right, but not the obligation, to take obtaining possession of the Leased Premises Property, Landlord will not terminate the Ground Lease as long as all rent payments are made and to perform any obligation all other defaults which reasonably can be cured by Lender without Lender obtaining possession of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorldProperty are so cured.
13.6.3 A (b) In connection with Xxxxxx’s right to a new Ground Lease contained in Section 13.7 of the Ground Lease (a “New Ground Lease”), Lender shall in no event not be required to cure any existing non-monetary Event of Default that is personal to Tenant or commence otherwise not reasonably susceptible to cure by Lender. From and after any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy termination or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien rejection of the Financing Encumbrance held by Ground Lease after which Xxxxxx has a right to a New Ground Lease, for so long as Lender has such Lender.
13.6.4 Any payment made by a Lender to Irvine to cure right, Landlord will not terminate any claimed default shall be deemed to have been made without prejudice to FirstWorld's subleases or the Lender's recovery rights of such payment if Irvine's claim any sublessee except in the case of a default under any such sublease beyond any applicable notice and cure periods. During such period Landlord shall receive all rent and other payments due from all sublessees as agent of the Lender, and shall deposit such amounts in a segregated account in trust for the Lender, and upon execution of a new lease, shall account to the sublessees thereunder for such amounts. The collection of such amounts by Landlord under this Section shall not be deemed an acceptance by Landlord for its own account of the attornment of any sublessee unless Landlord shall have agreed in writing with such sublessee that its tenancy shall be determined by continued in the event that a court of competent jurisdiction new lease is not entered into pursuant to have been erroneousthis Section. In the event a new lease is so entered into, Landlord shall not object to any requirement that all sublessees under such subleases shall attorn to the new tenant thereunder.
13.6.5 Any Lender may exercise its rights (c) The occurrence of a default or event of default under this Agreement, the Security Instrument or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right document or privilege provided for Lenders instrument evidencing or securing the Loan shall not, in and of itself constitute a default or event of default under this Agreementthe Ground Lease, then provided, however, that the Party against whom the circumstances giving rise to such rights default or privileges are to be exercised shall be required to recognize either: (a) only event of default under the Lender that desires to exercise such right Security Instrument or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances document or instrument evidencing or securing the Loan may also constitute a default or event of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilegedefault under the Ground Lease. In such casean event, Irvine except as expressly set forth herein or in the Ground Lease, Landlord shall not be provided notice prohibited from exercising its rights or remedies to address any such default or event of default pursuant to the terms and conditions of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all LendersGround Lease.
Appears in 1 contract
Samples: Ground Lease Agreement
Lender Protections. 13.6.1 No voluntary Notwithstanding anything to the contrary in this Lease, any party that becomes owner of the Building and/or Project ("Successor Landlord") as a result of (i) foreclosure under any Mortgage, (ii) any other exercise by Mortgagee of rights and remedies (whether under any Mortgage or under applicable law, including bankruptcy law) as holder of a Mortgage, or (iii) delivery by Landlord to a Mortgagee (or its designee or nominee) of a deed or other conveyance of Landlord's interest in the Building and/or Project in lieu of any of the foregoing, shall not be liable for or bound by any of the following matters:
(A) any right of Tenant to any offset, defense, claim, counterclaim, reduction, deduction, or abatement against Tenant's payment of rent or performance of Tenant's other obligations under this Lease, arising (whether under this Lease or under applicable law) from Landlord's breach or default under this Lease ("Offset Right") that Tenant may have against Landlord or any other party that was landlord under this Lease at any time before the occurrence of any attornment by Tenant to the Successor Landlord (each, a "Former Landlord") relating to any event or occurrence before the date of such attornment, including any claim for damages of any kind whatsoever as the result of any breach by Former Landlord that occurred before the date of such attornment. The foregoing shall not, however, limit either (1) Tenant’s right to exercise against Successor Landlord any Offset Right otherwise available to Tenant because of events occurring after the date of such attornment, or (2) Successor Landlord’s obligation to correct any conditions that existed as of the date of such attornment and violate Successor Landlord’s obligations as successor landlord under this Lease;
(B) any obligation with respect to any security deposited with Former Landlord, unless such security was actually delivered to Successor Landlord;
(C) to commence or complete any initial construction of improvements in the Premises or any expansion or rehabilitation of existing improvements thereon;
(D) to reconstruct or repair improvements to the Premises, the Building and/or the Project following a Casualty or condemnation;
(E) any offset, defense, claim, counterclaim, reduction, deduction, or abatement arising from representations and warranties by or related to Former Landlord;
(F) any modification or amendment of this Lease, or any waiver of the terms of this Lease, made without Mortgagee’s written consent;
(G) any consensual or negotiated surrender, cancellation, termination, surrender, acceptance of surrender, or abandonment, termination of this AgreementLease, nor in whole or in part, agreed upon between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to the express terms of this Lease;
(H) any amendment or modification adversely affecting a Lender's rights payment of rent that Tenant may have made to Former Landlord more than thirty (30) days before the date such rent was first due and payable under this Article 13Lease with respect to any period after the date of such attornment other than, and only to the extent that, this Lease expressly required such a prepayment; and
(I) to pay Tenant any sum(s) that any Former Landlord owed to Tenant unless such sums, if any, shall bind a Lender (other than an Affiliated Lender) if done without notice to and the written consent of such Lender.
13.6.2 Any Lender shall have the right, but not the obligation, to take possession of the Leased Premises and to perform any obligation of FirstWorld under this Agreement and to remedy any default by FirstWorld. Irvine shall accept performance by or at the instigation of a Lender in fulfillment of FirstWorld's obligations, for the account of FirstWorld and with the same force and effect as if performed by FirstWorld.
13.6.3 A Lender shall in no event be required to cure or commence to cure any default (if such default is provided for in this Agreement) consisting of FirstWorld's failure to satisfy or discharge any lien, charge, or encumbrance affecting the Leased Premises junior in priority to the lien of the Financing Encumbrance held by such Lender.
13.6.4 Any payment made by a Lender to Irvine to cure any claimed default shall be deemed to have been made without prejudice actually delivered to FirstWorld's Successor Landlord by way of an assumption of escrow accounts or the Lender's recovery of such payment if Irvine's claim of a default shall be determined by a court of competent jurisdiction to have been erroneousotherwise.
13.6.5 Any Lender may exercise its rights under this Agreement, or perform any action permitted to be taken by a Lender under this Agreement, through an agent.
13.6.6 If more than one Lender desires to exercise Lender's Cure Rights or if more than one Lender desires to exercise any other right or privilege provided for Lenders under this Agreement, then the Party against whom such rights or privileges are to be exercised shall be required to recognize either: (a) only the Lender that desires to exercise such right or privilege and whose Financing Encumbrance is most senior in lien (as against other Financing Encumbrances of Lenders desiring to exercise such rights) or (b) such other Lender, as has been designated in writing by all Lenders, to exercise such right or privilege. In such case, Irvine shall be provided notice of the priority of Financing Encumbrances, which notice shall consist of either (a) the report or certificate of a title insurance company licensed to do business in California or (b) joint written instructions of all Lenders.
Appears in 1 contract
Samples: Office Lease (Sierra Oncology, Inc.)
