Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and the leasehold estate hereby created with liens as above provided, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply: (a) Landlord shall give to the Permitted Mortgagee a duplicate copy of any and all notices which Landlord gives to Tenant pursuant to the terms hereof, including notices of default, and no such notice shall be effective until such duplicate copy is actually received by such Permitted Mortgagee, in the manner provided in Section 13.1. (b) There shall be no cancellation, surrender, or modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee. (c) If a Default should occur hereunder, then Landlord specifically agrees that: (1) Landlord shall not enforce or seek to enforce any of its rights, recourses, or remedies, until a notice specifying the event giving rise to such Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1, and if the Permitted Mortgagee proceeds to cure the Default within a period of 30 days after receipt of such notice or, as to events of Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing such Default within such time period and thereafter diligently pursues such cure to completion within 60 days thereafter, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, or remedies by Landlord as if done by Tenant; (2) if the Default is a non-monetary default, the Permitted Mortgagee shall have a period of time in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because of the Default, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure possession of the Premises (whether by foreclosure or other procedures), Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises in order to cure such Default, which shall not exceed 180 days, and during such time Landlord shall not enforce or seek to enforce any of its rights, remedies or recourses hereunder, and (3) if the Default is a non-monetary default of such a nature that it is not reasonably susceptible of being cured by the Permitted Mortgagee (as, for example, a non-permitted assignment by Tenant), then Landlord shall not enforce or seek to enforce any of its rights, remedies, or recourses hereunder so long as Permitted Mortgagee pays all Rent then due and thereafter keeps the monetary obligations of Tenant hereunder current and complies with those other provisions of this Lease which, by their nature, Permitted Mortgagee may then reasonably comply with. (d) No Permitted Mortgagee shall be or become liable to Landlord as an assignee of this Lease until such time as such Permitted Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests of Tenant under this Lease or shall actually take possession of the Premises, and upon such Permitted Mortgagee's assigning such rights and interests to another party or upon relinquishment of such possession, as the case may be, such Permitted Mortgagee shall have no further such liability.
Appears in 4 contracts
Samples: Lease Agreement (Group 1 Automotive Inc), Lease Agreement (Group 1 Automotive Inc), Lease Agreement (Group 1 Automotive Inc)
Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and the leasehold estate hereby created with liens as above provided, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall shall, upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply:
(ai) Landlord shall give to the Permitted Mortgagee a duplicate copy of any and all notices which Landlord Xxxxxxxx gives to Tenant pursuant to the terms hereof, including notices of default, and no such notice shall be effective until such duplicate copy is actually received by such Permitted Mortgagee, in the manner provided in Section 13.116.1.
(bii) There shall be no cancellation, surrender, surrender or modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee.
(ciii) If a Tenant Default should occur hereunder, then Landlord Xxxxxxxx specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of its rights, recourses, recourses or remedies, including, but not limited to, termination of this Lease or Tenant’s right to possession hereunder, until a notice specifying the event giving rise to such Tenant Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.116.1, and if the Permitted Mortgagee proceeds to cure the Tenant Default within a period of 30 days after receipt of such notice or, as to events of Tenant Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing such Tenant Default within such time period and thereafter diligently pursues such cure to completion within 60 days thereaftercompletion, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, recourses or remedies by Landlord as if done by Tenant;Xxxxxx.
(2) if If the Tenant Default is a non-monetary default, the default that a Permitted Mortgagee shall have a period of time cannot reasonably cure without being in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because possession of the DefaultPremises, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure possession of the Premises (whether by foreclosure or other procedures), provided the Permitted Mortgagee cures any monetary Tenant Defaults as well as any other Tenant Defaults that are reasonably susceptible of then being cured by the Permitted Mortgagee, then Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises in order to cure such Tenant Default, which shall not exceed 180 days, and during such time Landlord shall not enforce or seek to enforce any of its rightsright, remedies or recourses hereunder, and.
(3) if If the Tenant Default is a non-monetary default of such a nature that it is not reasonably susceptible of being cured by the Permitted Mortgagee (as, for example, a non-permitted assignment by Tenant), then Landlord shall not enforce or seek to enforce any of its rights, remedies, remedies or recourses hereunder so long as Permitted Mortgagee pays all Rent then due and thereafter keeps the monetary obligations of Tenant hereunder current and complies with those other provisions of this Lease which, by their nature, Permitted Mortgagee may then reasonably comply with.
(div) Should the Lease be terminated for any reason other than expiration of the stated Term, then the Permitted Mortgagee shall have the right and option, exercisable by delivering notice to Landlord not later than 60 days after receipt from Landlord of written notice of such termination (which notice Landlord agrees to give) to elect to receive, in its own name or in the name of its nominee or assignee, a new lease of the Premises for the unexpired balance of the Term on the same terms and conditions as herein set forth, having the same priority as this Lease, and Landlord agrees to execute such new lease provided such Permitted Mortgagee shall undertake forthwith to remedy any then uncured Tenant Default reasonably susceptible by its nature of being remedied by such Permitted Mortgagee, including the payment of any amount due hereunder.
(v) No Permitted Mortgagee shall be or become liable to Landlord as an assignee of this Lease until such time as such Permitted Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests of Tenant under this Lease or shall actually take possession of the Premises, and upon such Permitted Mortgagee's ’s assigning such rights and interests interest to another party or upon relinquishment of such possession, as the case may be, such Permitted Mortgagee shall have no further such liability. Any Permitted Mortgagee acquiring Tenant’s rights and interest in this Lease shall be free to assign such rights and interests to any person, partnership, joint venture or other entity controlling, controlled by or under common control with such Permitted Mortgagee without regard to the limitations set forth in Section 12.1, provided that the provisions of this subsection allowing such unrestricted assignment are not used by such Permitted Mortgagee in bad faith to circumvent the requirements of Section 12.1. Any other assignment shall be subject to the limitations of Section 12.1.
Appears in 1 contract
Samples: Ground Lease
Mortgagee Protective Provisions. If Tenant encumbers its interest the Leasehold Estate with a Permitted Mortgage in compliance with this Lease and the leasehold estate hereby created with liens as above providedArticle 12, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply:apply:
(a) Landlord shall give to the Permitted Mortgagee a duplicate copy of any and all notices which Landlord gives to Tenant pursuant to the terms hereof, including notices of default, and no such notice shall be effective until such duplicate copy is actually received by such Permitted Mortgagee, in the manner provided in Section 13.1.
(b) There shall be no cancellation, surrendertermination (other than termination in accordance with this Lease, including this Section 12.03, following the occurrence of an Event of Default) or material modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee. Landlord shall not accept any surrender of this Lease (other than in connection with a termination in accordance with this Lease, including this Section 12.03, following the occurrence of an Event of Default) without the prior written consent of the Permitted Mortgagee. The Permitted Mortgagee will not be bound by any such cancellation, surrender or material modifications made without its consent, other than a termination of this Lease or of Tenant’s right to possession following the occurrence of an Event of Default so long as Landlord has complied with the provisions of this Section 12.03.
(cb) If a an Event of Default should occur hereunder, then Landlord specifically agrees that:
(1i) Landlord will deliver to the Permitted Mortgagee a copy of each notice of Xxxxxx’s default under this Lease if Landlord intends that such default is to serve as the basis for an Event of Default. Landlord shall not enforce terminate this Lease or seek Tenant’s right to enforce any of its rights, recourses, or remedies, possession hereunder until a notice specifying the event giving rise to such Event of Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1, Mortgagee and if the Permitted Mortgagee proceeds has failed to cure the Event of Default within a the time periods herein provided. Any payments made and other things done by the Permitted Mortgagee to cure the Event of Default shall be fully effective to prevent termination of this Lease or termination of Tenant’s right to possession as if done by Xxxxxx. The time period of 30 for cure is twenty (20) days after the Permitted Mortgagee’s receipt of such notice orof the Event of Default; provided, as to events however, that if a non-monetary Event of Default which can be cured but by their very its nature cannot be cured within such twenty (20) day time period, and if the Permitted Mortgagee, to the extent it is able to do so, commences Mortgagee has commenced curing such Event of Default within such time period and thereafter diligently pursues such cure to completion within 60 days thereaftercompletion, then any payments made and all things done by such twenty (20) day cure period shall be extended for the period of time necessary for the Permitted Mortgagee to effect cure such cure Event of Default; provided further, that (A) the time period for curing the failure to commence and thereafter diligently pursue the Immediate Work (by commencing and thereafter diligently pursuing such work) shall be as fully effective ten (10) days after Permitted Mortgagee’s receipt of notice of such failure, and (B) the Permitted Mortgagee shall not have any right to prevent cure Tenant’s failure to perform the exercise balance of the Restoration Work if the Permitted Mortgagee has elected to apply the insurance proceeds to discharge the Permitted Mortgage rather than permitting Tenant to use the insurance proceeds for such Restoration Work. The Permitted Mortgagee has the option, but not the obligation, to cure any such Event of Default, and after commencing the cure of any rights, recourses, or remedies by Landlord as if done by Tenant;such Event of Default may cease further actions to so cure.
(2ii) if If the Event of Default is a non-monetary default, the Permitted Mortgagee shall have a period of time in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, or (ii) 60 days after the date default that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because cannot reasonably cure without being in possession of the DefaultPremises, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure possession of the Premises (whether by foreclosure or otherwise, but subject to the provisions of this Article 12), provided the Permitted Mortgagee cures any monetary default as well as any other procedures)defaults that are reasonably susceptible of then being cured by the Permitted Mortgagee, Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises in order to cure such Event of Default, which shall not exceed 180 days, and during such time Landlord shall not enforce terminate this Lease or seek Tenant’s right to enforce any possession of its rights, remedies or recourses hereunder, andthe Premises.
(3c) if If the Default Lease is a non-monetary default terminated for any reason other than expiration of such a nature that it is not reasonably susceptible of being cured by the stated Term, then the Permitted Mortgagee shall have the right and option, exercisable by delivering notice to Landlord not later than twenty (as20) days after receipt from Landlord of written notice of such termination (which notice Landlord agrees to give) to elect to receive, for examplein its own name or in the name of its Affiliate (which shall have an amount of equity capital no less than that of Tenant on the Effective Date), a non-permitted assignment new lease of the Premises for the unexpired balance of the Term on the same terms and conditions as herein set forth, having the same priority as this Lease, and Landlord agrees to execute such new lease provided such Permitted Mortgagee shall undertake forthwith to remedy any then uncured Event of Default reasonably susceptible by Tenant)its nature of being remedied by such Permitted Mortgagee, then including the payment of any amount due hereunder. Upon the execution of such new lease, Landlord and the new tenant named therein shall prorate income and expenses relating to the Demised Premises Improvements effective as of the date of termination of this Lease as if the tenant named in the new Lease had succeeded to the interest of Tenant under this Lease as of the effective date of such termination; provided, however, that Landlord shall not enforce be obligated to account to the tenant named in the new lease for any income or seek revenue from the Improvements not actually delivered to enforce Landlord in connection with such termination. In addition to the new lease, Xxxxxxxx shall execute and deliver to the tenant named therein such deeds, bills of sale, assignments and other instruments as may be necessary to convey, assign and otherwise transfer to the tenant under the new lease, AS IS, without warranty of title or any other warranty or representation of its rightsany type, remediesbut with confirmation of no prior conveyance or assignment by Landlord, or recourses hereunder so long as Permitted Mortgagee pays all Rent then due of Landlord’s right, title and thereafter keeps interest in and to the monetary obligations Improvements that may have reverted to Landlord on account of Tenant hereunder current and complies with those other provisions the termination of this Lease whichLease, by their nature, Permitted Mortgagee may then reasonably comply withincluding without limitation any subleases.
(d) No Permitted Mortgagee shall be or become liable to Landlord as an assignee of this Lease until such time as such Permitted Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests of Tenant under this Lease or shall actually take possession of the Premises, and upon such Permitted Mortgagee's ’s assigning such rights and interests to another party or upon relinquishment of such possession, as the case may be, such Permitted Mortgagee shall have no further such liability.
(e) Nothing contained in this Section 12.03 shall prevent Landlord’s pursuing monetary damages or injunctive relief relating to Xxxxxx’s default. The provisions of this Section 12.03 are solely for the benefit of and enforceable by the Permitted Mortgagee and are not for the benefit of, and may not be enforced by, Tenant.
Appears in 1 contract
Samples: Ground Lease
Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and the leasehold estate hereby created with liens as above provided, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply:
(a) Landlord The Agency shall give to each Mortgagee, at the Permitted address of such Mortgagee set forth in a duplicate notice from such Mortgagee or from Lessee, a copy of each notice given by the Agency to Lessee hereunder (including Default and Event of Default notices) at the same time as and whenever any and all notices which Landlord gives to Tenant pursuant such notice shall thereafter be given by the Agency to the terms hereof, including notices of defaultLessee, and no such notice by the Agency shall be effective deemed to have been duly given to the Lessee (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such duplicate copy is actually received by such Permitted Mortgagee, . Each Mortgagee (i) shall thereupon have a period of ten (10) days more in the manner case of a Default in the payment of PILOT, a Rental Payment or other monetary obligation (each, a “Monetary Default”) and thirty (30) days more in the case of any other Default (or in the case of a non-Monetary Default which shall require more than thirty (30) days to cure using due diligence, then such longer period of time as shall be necessary so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such thirty (30) day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence), after the applicable period afforded Lessee for remedying the Default or causing the same to be remedied has expired and (ii) shall, within such period and otherwise as herein provided, have the right (but not the obligation) to remedy such Default or cause the same to be remedied. The Agency shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on the Lessee’s part to be performed hereunder with the same force and effect as though performed by the Lessee, so long as such performance is made in accordance with the terms and provisions of this Agreement. The Agency shall not object to any entry onto the Facility Realty by or on behalf of a Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in Section 13.1compliance with applicable law.
(b) There No non-Monetary Default by Lessee shall be no cancellation, surrender, or modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee.
(c) If deemed to exist as long as a Default should occur hereunder, then Landlord specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of its rights, recourses, or remedies, until a notice specifying the event giving rise to such Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1good faith, and if the Permitted Mortgagee proceeds (i) shall have commenced to cure the Default within a period of 30 days after receipt of (or caused to be commenced such notice or, as to events of Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing cure) such Default within thirty (30) days after the expiration of the applicable period afforded to Lessee for remedying such time period Default, and thereafter diligently pursues such cure continuously prosecutes or causes to be prosecuted the same to completion within 60 days thereafter, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, or remedies by Landlord as if done by Tenant;
(2) if the Default is a non-monetary default, the Permitted Mortgagee shall have a period of time in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, with reasonable diligence or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because of the Default, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure if possession of the Premises (whether by foreclosure Facility Realty or other procedures), Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises any part thereof is required in order to cure such Default, which and Mortgagee shall have notified the Agency within thirty (30) days after the expiration of the applicable period afforded to Lessee for remedying the Default of its intention to institute foreclosure proceedings to obtain possession directly or through a receiver, and thereafter commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity and, upon obtaining such possession, commences promptly to cure the Default and prosecutes the same to completion with all reasonable diligence and continuity).
(c) A Mortgagee, successor leasehold owner, assignee or transferee gaining possession of the Facility Realty pursuant to a foreclosure or transfer in lieu of foreclosure shall not exceed 180 daysbe bound by any deadline for completion of any construction or alterations required of Lessee under this Agreement; provided, however, that such Mortgagee, successor leasehold owner, assignee or transferee shall with all reasonable diligence and during such time Landlord continuity prosecute completion of same. Notwithstanding anything in this Agreement to the contrary, a Mortgagee, successor leasehold owner, assignee or transferee shall not enforce or seek be required to enforce cure any of its rights, remedies or recourses hereunder, and
(3) if the Default is a non-monetary default Monetary Defaults of such a nature Lessee that it is are not reasonably susceptible capable of being cured by such Mortgagee, successor leasehold owner, assignee or transferee, and if any Mortgagee, successor leasehold owner, assignee or transferee shall acquire the Permitted Mortgagee (asFacility Realty pursuant to a foreclosure or transfer in lieu of foreclosure, for example, a then any such non-permitted assignment Monetary Default by Tenant), then Landlord Lessee that is not capable of being cured shall not enforce or seek to enforce any of its rights, remedies, or recourses hereunder so long as Permitted Mortgagee pays all Rent then due and thereafter keeps the monetary obligations of Tenant hereunder current and complies with those other provisions of this Lease which, by their nature, Permitted Mortgagee may then reasonably comply withno longer be deemed a Default.
(d) No Permitted With respect to any non-Monetary Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 9.9, the Agency shall not (i) re-enter the Facility Realty, (ii) serve a termination notice, or (iii) bring a proceeding on account of such Default. Nothing in the protections to Mortgagees provided in this Agreement shall be construed to require such Mortgagee to cure any non-Monetary Default by Lessee that is not capable of being cured as a condition to preserving this Agreement or to such Mortgagee obtaining a new Agreement as provided in Section 9.9(h).
(e) Notwithstanding anything to the contrary herein, the exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute a Default under this Agreement nor require the consent of the Agency.
(f) No Mortgagee shall become liable to Landlord as an assignee under the provisions of this Lease Agreement unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of a Mortgagee of the Lessee’s obligations hereunder shall cause such Permitted Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Facility Realty.
(g) If there is more than one Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests obligations afforded by this Section 9.9 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Facility Realty is senior in lien (or which has obtained the consent of Tenant under this Lease or shall actually take possession any Mortgagees that are senior to such Mortgagee). For avoidance of doubt, the holder of the Premises, and upon such Permitted Mortgagee's assigning such rights and interests to another party or upon relinquishment PILOT Mortgages shall not be deemed a Mortgagee for purposes of such possession, as the case may be, such Permitted Mortgagee shall have no further such liabilitythis Section 9.9(g).
Appears in 1 contract
Samples: Agency Lease Agreement
Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and the leasehold estate hereby created with liens as above provided, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply:
(a) Landlord The Agency shall give to each Mortgagee, at the Permitted address of such Mortgagee set forth in a duplicate notice from such Mortgagee or from Lessee, a copy of each notice given by the Agency to Lessee hereunder (including Default and Event of Default notices) at the same time as and whenever any and all notices which Landlord gives to Tenant pursuant such notice shall thereafter be given by the Agency to the terms hereof, including notices of defaultLessee, and no such notice by the Agency shall be effective deemed to have been duly given to the Lessee (and no grace or cure period shall be deemed to have commenced) unless and until a copy thereof shall have been given to each such duplicate copy is actually received by such Permitted Mortgagee, . Each Mortgagee (i) shall thereupon have a period of ten (10) days more in the manner case of a Default in the payment of PILOT, a Rental Payment or other monetary obligation (each, a “Monetary Default”) and thirty (30) days more in the case of any other Default (or in the case of a non-Monetary Default which shall require more than thirty (30) days to cure using due diligence, then such longer period of time as shall be necessary so long as such Mortgagee shall have commenced to cure (or caused to be commenced such cure) within such thirty (30) day period and continuously prosecutes or causes to be prosecuted the same to completion with reasonable diligence), after the applicable period afforded Lessee for remedying the Default or causing the same to be remedied has expired and (ii) shall, within such period and otherwise as herein provided, have the right (but not the obligation) to remedy such Default or cause the same to be remedied. The Agency shall accept performance by or on behalf of a Mortgagee of any covenant, condition or agreement on the Lessee’s part to be performed hereunder with the same force and effect as though performed by the Lessee, so long as such performance is made in accordance with the terms and provisions of this Agreement. The Agency shall not object to any entry onto the Facility Realty by or on behalf of a Mortgagee to the extent necessary to effect such Mortgagee’s cure rights, provided such entry is in Section 13.1compliance with applicable law.
(b) There No non-Monetary Default by Lessee shall be no cancellation, surrender, or modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee.
(c) If deemed to exist as long as a Default should occur hereunder, then Landlord specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of its rights, recourses, or remedies, until a notice specifying the event giving rise to such Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1good faith, and if the Permitted Mortgagee proceeds (i) shall have commenced to cure the Default within a period of 30 days after receipt of (or caused to be commenced such notice or, as to events of Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing cure) such Default within thirty (30) days after the expiration of the applicable period afforded to Lessee for remedying such time period Default, and thereafter diligently pursues such cure continuously prosecutes or causes to be prosecuted the same to completion within 60 days thereafter, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, or remedies by Landlord as if done by Tenant;
(2) if the Default is a non-monetary default, the Permitted Mortgagee shall have a period of time in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, with reasonable diligence or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because of the Default, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure if possession of the Premises (whether by foreclosure Facility Realty or other procedures), Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises any part thereof is required in order to cure such Default, which and Mortgagee shall have notified the Agency within thirty (30) days after the expiration of the applicable period afforded to Lessee for remedying the Default of its intention to institute foreclosure proceedings to obtain possession directly or through a receiver, and thereafter commences such foreclosure proceedings, prosecutes such proceedings with all reasonable diligence and continuity and, upon obtaining such possession, commences promptly to cure the Default and prosecutes the same to completion with all reasonable diligence and continuity.
(c) A Mortgagee, successor leasehold owner, assignee or transferee gaining possession of the Facility Realty pursuant to a foreclosure or transfer in lieu of foreclosure shall not exceed 180 daysbe bound by any deadline for completion of any construction or alterations required of Lessee under this Agreement; provided, however, that such Mortgagee, successor leasehold owner, assignee or transferee shall with all reasonable diligence and during such time Landlord continuity prosecute completion of same. Notwithstanding anything in this Agreement to the contrary, a Mortgagee, successor leasehold owner, assignee or transferee shall not enforce or seek be required to enforce cure any of its rights, remedies or recourses hereunder, and
(3) if the Default is a non-monetary default Monetary Defaults of such a nature Lessee that it is are not reasonably susceptible capable of being cured by such Mortgagee, successor leasehold owner, assignee or transferee, and if any Mortgagee, successor leasehold owner, assignee or transferee shall acquire the Permitted Mortgagee (asFacility Realty pursuant to a foreclosure or transfer in lieu of foreclosure, for example, a then any such non-permitted assignment Monetary Default by Tenant), then Landlord Lessee that is not capable of being cured shall not enforce or seek to enforce any of its rights, remedies, or recourses hereunder so long as Permitted Mortgagee pays all Rent then due and thereafter keeps the monetary obligations of Tenant hereunder current and complies with those other provisions of this Lease which, by their nature, Permitted Mortgagee may then reasonably comply withno longer be deemed a Default.
(d) No Permitted With respect to any non-Monetary Default, so long as a Mortgagee shall be diligently exercising its cure rights under this Section 9.9, the Agency shall not (i) re-enter the Facility Realty, (ii) serve a termination notice, or (iii) bring a proceeding on account of such Default. Nothing in the protections to Mortgagees provided in this Agreement shall be construed to require such Mortgagee to cure any non-Monetary Default by Lessee that is not capable of being cured as a condition to preserving this Agreement or to such Mortgagee obtaining a new Agreement as provided in Section 9.9(h).
(e) Notwithstanding anything to the contrary herein, the exercise of any rights or remedies of a Mortgagee under a Mortgage, including the consummation of any foreclosure or transfer in lieu of foreclosure, shall not constitute a Default under this Agreement nor require the consent of the Agency.
(f) No Mortgagee shall become liable to Landlord as an assignee under the provisions of this Lease Agreement unless and until such time as it becomes, and then only for so long as it remains, the owner of the leasehold estate created hereby and no performance by or on behalf of a Mortgagee of the Lessee’s obligations hereunder shall cause such Permitted Mortgagee to be deemed to be a “mortgagee in possession” unless and until such Mortgagee shall take control or possession of the Facility Realty.
(g) If there is more than one Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests obligations afforded by this Section 9.9 to a Mortgagee shall be exercisable only by the party whose collateral interest in the Facility Realty is senior in lien (or which has obtained the consent of Tenant under this Lease or shall actually take possession any Mortgagees that are senior to such Mortgagee). For avoidance of doubt, the holder of the Premises, and upon such Permitted Mortgagee's assigning such rights and interests to another party or upon relinquishment PILOT Mortgages shall not be deemed a Mortgagee for purposes of such possession, as the case may be, such Permitted Mortgagee shall have no further such liabilitythis Section 9.9(g).
Appears in 1 contract
Samples: Agency Lease Agreement
Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and Sublessor hereby agrees to the leasehold estate hereby created with liens as above providedfollowing for the benefit of any Permitted Mortgagee, then Tenant shall notify Landlord thereof, providing with provided that Notice of such notice the Permitted Mortgagee’s name and mailing address of the Permitted Mortgagee is set forth in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall applySection 27.21 hereof or given to Sublessor by Subtenant:
(a) Landlord A Mortgagee in Possession of the Improvements shall give have, in addition to its rights hereunder as a Mortgagee, all of the rights under the provisions of this Sublease and the Master Ground Lease and applicable law which would otherwise be held by any such Owner or other Responsible Person, subject to the Permitted Mortgagee a duplicate copy operation and effect of any and all notices which Landlord gives to Tenant pursuant anything to the terms hereof, including notices of defaultcontrary contained in its Mortgage, and no such notice Sublessor, Landlord, and the Board shall be effective until such duplicate copy is actually received by such Permitted Mortgageeentitled, in any matter arising under the manner provided provisions of this Sublease or involving the exercise of such rights, to deal with such Mortgagee in Section 13.1Possession as if it were the Owner or Responsible Person.
(b) There Sublessor shall be no cancellationnot terminate this Sublease (or Subtenant’s rights hereunder) for any Event of Default without first advising such Permitted Mortgagee in writing, surrenderof such Event of Default and permitting such Permitted Mortgagee to cure such Event of Default on behalf of Subtenant within sixty (60) days after Sublessor has given Notice to such Permitted Mortgagee; provided, however, that during such sixty (60) day period, Permitted Mortgagee takes action to cure such Event of Default but is unable, by reason of the nature of the remedial action involved, to cure such Event of Default within such period, Sublessor shall not terminate this Sublease for so long as Permitted Mortgagee continues in good faith with due diligence and without unnecessary delays to cure such Event of Default. Further, if any Event of Default is not cured within such sixty (60) day period, or modification of this Lease such longer period as provided in the immediately preceding sentence, or any extension thereof agreed to by joint action of Landlord Sublessor, and Tenant without the prior written consent of the Permitted Mortgagee.
(c) If a Default should occur hereunder, then Landlord specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of its rights, recourses, or remedies, until a notice specifying the event giving rise to such Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1, and if the Permitted Mortgagee proceeds to cure the Default within a period of 30 days after receipt of such notice or, as to events of Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing such Default within such time period and thereafter diligently pursues such cure to completion within 60 days thereafter, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, or remedies by Landlord as if done by Tenant;
(2) if the Default is a non-monetary default, the Permitted Mortgagee shall have given the Notices necessary to commence Foreclosure of the liens of its Permitted Mortgage prior to the expiration of such sixty (60) day period (unless the Permitted Mortgagee is enjoined or stayed from giving such Notices or exercising its right of Foreclosure, in which event such sixty (60) day period shall be extended by the period of such injunction or stay, but such sixty (60) day period shall not be extended for a period of time in which to cure such Default equal to the greater excess of 270 days), and (i2) the time period for such curing that is applicable to Tenant under purchaser at the terms Foreclosure fully cures any Event of this Lease, or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because of the Default, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure possession of the Premises (whether by foreclosure or other procedures), Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises in order to cure such Default, which shall not exceed 180 days, and during such time Landlord shall not enforce or seek to enforce any of its rights, remedies or recourses hereunder, and
(3) if the Default is a non-monetary default of such a nature that it is not reasonably susceptible of being cured by the purchaser at the Foreclosure within sixty (60) days after such Foreclosure, then Sublessor will not terminate this Sublease (or Subtenant’s rights hereunder) because of the occurrence of such Event of Default provided that Foreclosure is diligently prosecuted. Sublessor shall accept amounts paid or actions taken by or on behalf of any Permitted Mortgagee to cure any Event of Default. Nothing under this Section 8.03(a) shall be construed to obligate a Permitted Mortgagee to either cure any Event of Default or Foreclose the liens and security interests under its Permitted Mortgage as a consequence of an Event of Default, regardless of whether such Event of Default or Incipient Default, is subsequently cured. If the Permitted Mortgagee or the purchaser at Foreclosure cures all defaults reasonably susceptible of being cured by such Permitted Mortgagee or purchaser, then all other defaults shall no longer be deemed to be Events of Default hereunder.
(c) Those Events of Default, which by their very nature, may not be cured by the Permitted Mortgagee shall not constitute grounds of enforcement of rights, recourse, or remedies hereunder by Sublessor including termination of this Sublease, if a Permitted Mortgagee either before or after a Foreclosure of its Permitted Mortgagee (as, for example, a non-permitted assignment 1) makes all payments and performs all obligations hereunder capable of being performed by Tenant), then Landlord shall not enforce or seek to enforce any of its rights, remedies, or recourses hereunder so long as the Permitted Mortgagee pays all Rent then due and (2) thereafter keeps the monetary obligations of Tenant hereunder current and complies continues to comply with those other provisions of this Lease Sublease with which, by their very nature, the Permitted Mortgagee may then reasonably comply withcomply. Notwithstanding anything to the contrary contained in this Sublease, the Permitted Mortgagee shall not be responsible for or obligated to cure any Event of Default or Incipient Default of Subtenant for which the Permitted Mortgagee was not provided Notice within thirty (30) days after the occurrence of such Event of Default or Incipient Default.
(d) No If a Permitted Mortgagee enforces the rights and remedies pursuant to the terms of its Permitted Mortgage (including Foreclosure of any liens or security interests encumbering the estates and rights of Subtenant under this Sublease) such enforcement shall not constitute an Event of Default or an Incipient Default by Subtenant hereunder.
(e) In the event a Permitted Mortgagee should foreclose the liens and security interests of its Permitted Mortgage and should, as a result of such foreclosure, succeed to the rights of Subtenant hereunder, then such Permitted Mortgage shall be subject to all the terms and conditions of this Sublease and shall be entitled to all rights and benefits of this Sublease; provided, however, that (1) such Permitted Mortgagee shall not be liable for any act or become liable omission of Subtenant; (2) such Permitted Mortgagee shall not be subject to Landlord as an assignee any offsets or defenses which Sublessor has or might have against Subtenant; (3) such Permitted Mortgagee shall not be bound by any amendment, modification, alteration, approval, consent, surrender, or waiver under the terms of this Lease until Sublease made without the prior written consent of such time as Permitted Mortgagee; (4) provided that nothing in the foregoing provisions of this subsection shall be deemed in any way to relieve any other Owner or Responsible Person of any such obligation, or of any liability to such Mortgagee in Possession; and (5) upon the written request of such Permitted Mortgagee, Sublessor shall reaffirm, in writing, the validity of this Sublease, and that this Sublease is in full force and effect. Sublessor acknowledges and agrees for itself and its successors and assigns that this Sublease does not constitute a waiver by foreclosure any such Permitted Mortgage of any of its rights under any Permitted Mortgage or in any way release Subtenant from its obligations to comply with the terms, provisions, conditions, representations, warranties, agreements or clauses of such Permitted Mortgage or any other proceduressuch security interest.
(f) Sublessor will not agree to a material modification, alteration, amendment or the release or surrender of this Sublease without the prior written consent of any Permitted Mortgagee.
(g) In the event of the termination of this Sublease prior to the Expiration Date, except by a Taking pursuant to Article XVIII hereof, Sublessor will serve upon any Permitted Mortgagees Notice that this Sublease has been terminated together with a statement of any and all sums which would have at that time been due under this Sublease but for such termination and of all other Events of Default or Incipient Defaults, if any, under this Sublease then known to Sublessor, whereupon the Permitted Mortgagee holding the most senior Permitted Mortgage shall either acquire have the option to obtain a new Sublease of the Premises by giving Notice to Sublessor to such effect within sixty (60) days after receipt by such Permitted Mortgagee of Notice of such termination, which new Sublease shall be (1) effective as of the date of termination of this Sublease, (2) for the remainder of the Term, and (3) at the same Rent and upon all of the agreements, terms, covenants and conditions hereof. Upon the execution of such new Sublease, the Subtenant named therein shall pay any and all sums which at the time of the execution thereof would be due under this Sublease but for such termination and shall pay all unpaid expenses, including reasonable attorneys’ fees, court costs and disbursements incurred by Sublessor in connection with the Event of Default and such termination, the recovery of possession of the Premises and the preparation, execution and delivery of such new Sublease.
(h) All Notices required to be given hereunder by Sublessor to Subtenant shall also be given concurrently to each Permitted Mortgagee, at the address designated in writing to Sublessor.
(i) The liability of the Permitted Mortgagee under this Sublease shall be limited to the period during which the Permitted Mortgagee may own the interest of the Subtenant hereunder. Upon the Permitted Mortgagee’s assignment or transfer of its rights and interests of Tenant under in and to this Lease or shall actually take possession of Sublease to a third party, the Premises, and upon such Permitted Mortgagee's assigning such rights and interests to another party or upon relinquishment of such possession, as the case may be, such Permitted Mortgagee shall have no further liability for any obligations arising after such liabilitytransfer date, which liability shall be borne by the assignee or transferee.
Appears in 1 contract
Samples: Office Lease (Spherix Inc)
Mortgagee Protective Provisions. If Tenant encumbers its interest in this Lease and the leasehold estate hereby created with liens as above provided, then Tenant shall notify Landlord thereof, providing with such notice the name and mailing address of the Permitted Mortgagee in question, Landlord shall upon request, acknowledge receipt of such notice, and for so long as the Permitted Mortgage in question remains in effect the following shall apply:
(a) Landlord shall give to the Permitted Mortgagee a duplicate copy of any and all notices which Landlord gives to Tenant pursuant to the terms hereof, including notices of default, and no such notice shall be effective until such duplicate copy is actually received by such Permitted Mortgagee, in the manner provided in Section 13.1.
(b) There shall be no cancellation, surrender, or modification of this Lease by joint action of Landlord and Tenant without the prior written consent of the Permitted Mortgagee.
(c) If a Default should occur hereunder, then Landlord specifically agrees that:
(1) Landlord shall not enforce or seek to enforce any of its rights, recourses, or remedies, until a notice specifying the event giving rise to such Default has been received by the Permitted Mortgagee, in the manner provided in Section 13.1, and if the Permitted Mortgagee proceeds to cure the Default within a period of 30 days after receipt of such notice or, as to events of Default which by their very nature cannot be cured within such time period, the Permitted Mortgagee, to the extent it is able to do so, commences curing such Default within such time period and thereafter diligently pursues such cure to completion within 60 days thereafter, then any payments made and all things done by the Permitted Mortgagee to effect such cure shall be as fully effective to prevent the exercise of any rights, recourses, or remedies by Landlord as if done by Tenant;
(2) if the Default is a non-monetary default, the Permitted Mortgagee shall have a period of time in which to cure such Default equal to the greater of (i) the time period for such curing that is applicable to Tenant under the terms of this Lease, or (ii) 60 days after the date that the Permitted Mortgagee has been notified of such Default, provided that the Permitted Mortgagee cures all defaults relating to the payment of Base Rent and neither Landlord nor the Premises is or would be liable or subject to any lien, tax, penalty, expense, liability, or damages because of such Default. If Landlord or the Premises is or will be liable or subject to any such lien, tax, penalty, expense, liability or damages because of the Default, then for so long as the Permitted Mortgagee is diligently and with continuity attempting to secure possession of the Premises (whether by foreclosure or other procedures), Landlord shall allow the Permitted Mortgagee such time as may be reasonably necessary under the circumstances to obtain possession of the Premises in order to cure such Default, which shall not exceed 180 days, and during such time Landlord shall not enforce or seek to enforce any of its rights, remedies or recourses hereunder, and
(3) if the Default is a non-monetary default of such a nature that it is not reasonably susceptible of being cured by the Permitted Mortgagee (as, for example, a non-permitted assignment by Tenant), then Landlord shall not enforce or seek to enforce any of its rights, remedies, or recourses hereunder so long as Permitted Mortgagee pays all Rent then due and thereafter keeps the monetary obligations of Tenant hereunder current and complies with those other provisions of this Lease which, by their nature, Permitted Mortgagee may then reasonably comply with.
(d) No Permitted Mortgagee shall be or become liable to Landlord as an assignee of this Lease until such time as such Permitted Mortgagee, by foreclosure or other procedures, shall either acquire the rights and interests of Tenant under this Lease or shall actually take possession of the Premises, and upon such Permitted Mortgagee's ’s assigning such rights and interests to another party or upon relinquishment of such possession, as the case may be, such Permitted Mortgagee shall have no further such liability.
Appears in 1 contract
