Common use of Mortgagee’s Option to Cure Defaults Clause in Contracts

Mortgagee’s Option to Cure Defaults. After any breach or default referred to in Section 12.1 above, each such Mortgagee shall (insofar as the rights of the Agency are concerned) have the right, at its option, to cure or remedy such breach or default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Any rights and remedies of the Agency resulting from any such breach or default shall be suspended for such period of time as shall be reasonably necessary after notice to allow a Mortgagee to cure or remedy such breach or default (including any time reasonably necessary to obtain possession of the Building Site if possession is necessary to enable a Mortgagee to cure or remedy such breach or default), provided that the Mortgagee proceeds with all due diligence to cure or remedy such breach or default and/or obtain possession. If such breach or default is so cured or remedied the Agency shall not have any rights or remedies with regard thereto, and if such breach or default, by its nature, cannot be cured or remedied by Mortgagee, then such breach or default shall be waived by the Agency if Mortgagee shall promptly, after notice, take steps necessary to obtain possession as aforesaid, provided, that no material breach or default consisting of departure from Building Construction Plans approved by the Agency for the Private Improvements shall be considered incurable or irremediable for purposes of this Section, and provided, further, that if the breach or default is with respect to construction of Private Improvements, nothing contained in this Section 13.4 or any other provision of this Agreement shall be deemed to permit or authorize such Mortgagee, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of Private Improvements (beyond the extent necessary to conserve or protect improvements or construction already made) without first having expressly assumed the obligation to the Agency, by written agreement satisfactory to the Agency, to complete, in the manner provided in the Agreement, the Private Improvements on the Building Site. Any such Mortgagee who shall properly complete the Private Improvements on the Building Site shall be entitled, upon written request made to the Agency, to a Certificate of Completion for the Building Site, to such effect in the manner provided in Article VI of this Agreement, and any such certification shall, if so requested by such Mortgagee, mean and provide that any remedies or rights with respect to recapture of or reversion or revesting of title of the Building Site that the Agency shall have or be entitled to because of failure of the Developer or any successor in interest to the Building Site or any part thereof, to cure or remedy any default with respect to the construction of the Private Improvements on other parts of the Building Site, or because of any other default in or breach of the Agreement by the Developer or such successor, shall not apply to the Building Site.

Mortgagee’s Option to Cure Defaults. After Before or after receiving any breach or default notice of failure to cure referred to in Section 12.1 above20.4, each such Mortgagee shall (insofar as the rights of the Agency are concerned) have the rightright (but not the obligation), at its option, to cure or remedy such breach or default and to add commence within the cost thereof to the mortgage debt and the lien of its mortgage. Any rights and remedies of the Agency resulting from any such breach or default shall be suspended for such same period of time as shall be reasonably necessary after notice to allow a Mortgagee Developer to cure or remedy such breach or default cause to be cured any Event of Default, plus an additional period of (including any time reasonably necessary to obtain possession of the Building Site if possession is necessary to enable a Mortgagee a) thirty (30) days to cure or remedy such breach or default), provided a monetary Event of Default and (b) sixty (60) days to cure a non-monetary Event of Default that is susceptible of cure by the Mortgagee proceeds with all due diligence without obtaining title to cure or remedy such breach or default and/or obtain possessionthe applicable property subject to the applicable Mortgage. If such breach an Event of Default is not cured within the applicable cure period (or default is so cured or remedied the Agency shall not have any rights or remedies with regard thereto, and if such breach or default, by its nature, cannot be cured by the Mortgagee without obtaining title to the applicable property), the Agency nonetheless shall refrain from exercising any of its remedies for the Event of Default and shall permit the cure by Mortgagee of such Event of Default if, within the Mortgagee’s applicable cure period: (i) the Mortgagee has a recorded security interest in the applicable real property or remedied perfected security interest in other applicable property and notifies the Agency in writing that the Mortgagee intends to proceed with due diligence to foreclose the Mortgage or otherwise obtain title to the subject property; (ii) the Mortgagee commences foreclosure proceedings within sixty (60) days after giving such notice, and diligently pursues such foreclosure to completion; and (iii) after obtaining title, the Mortgagee diligently proceeds to cure those Events of Default: (A) that are susceptible of cure by the Mortgagee, then such breach or default shall be waived ; and (B) of which the Mortgagee has been given written notice by the Agency if under Section 20.4 or thereafter. Notwithstanding the foregoing, no Mortgagee shall promptlybe required to cure any Event of Default that is personal to the Mortgagor (by way of example and not limitation, after noticesuch Mortgagor’s bankruptcy, take steps necessary failure to obtain submit required information in the possession as aforesaidof such Mortgagor), provided, that no material breach or default consisting and the completion of departure from Building Construction Plans approved a foreclosure and acquisition of title to the applicable property by the Agency for the Private Improvements shall be considered incurable or irremediable for purposes of this Section, and provided, further, that if the breach or default is with respect to construction of Private Improvements, nothing contained in this Section 13.4 or any other provision of this Agreement Mortgagor shall be deemed to permit be a cure of such Events of Default. Although no Mortgagee is obligated to do so, any Mortgagee that directly or authorize such Mortgagee, either before indirectly obtains title and that properly Completes the Infrastructure or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of Private other Improvements (beyond the extent necessary to conserve or protect improvements or construction already made) without first having expressly assumed the obligation relating to the Agency, by written agreement satisfactory to applicable portion of the Agency, to complete, Project Site in the manner provided in the Agreement, the Private Improvements on the Building Site. Any such Mortgagee who shall properly complete the Private Improvements on the Building Site accordance with this DDA shall be entitled, upon written request made to the Agency, to a Certificate of Completion for the Building Site, to such effect in the manner provided in Article VI of this Agreement, and any such certification shall, if so requested by such Mortgagee, mean and provide that any remedies or rights with respect to recapture of or reversion or revesting of title of the Building Site that the Agency shall have or be entitled to because of failure of the Developer or any successor in interest to the Building Site or any part thereof, to cure or remedy any default with respect to the construction of the Private Improvements on other parts of the Building Site, or because of any other default in or breach of the Agreement by the Developer or such successor, shall not apply to the Building SiteCompletion.

Mortgagee’s Option to Cure Defaults. After Before or after receiving any breach or default notice of failure to cure referred to in Section 12.1 above13.4, each such Mortgagee shall (insofar as the rights of the Agency are concerned) have the rightright (but not the obligation), at its option, to cure or remedy such breach or default and to add commence within the cost thereof to the mortgage debt and the lien of its mortgage. Any rights and remedies of the Agency resulting from any such breach or default shall be suspended for such same period of time as shall be reasonably necessary after notice to allow a Mortgagee Vertical Developer to cure or remedy such breach or default cause to be cured any Vertical Developer Default, plus an additional period of (including any time reasonably necessary to obtain possession of the Building Site if possession is necessary to enable a Mortgagee a) thirty (30) days to cure or remedy such breach or default), provided a monetary Vertical Developer Default and (b) sixty (60) days to cure a non- monetary Vertical Developer Default that is susceptible of cure by the Mortgagee proceeds with all due diligence without obtaining title to cure or remedy such breach or default and/or obtain possessionthe applicable property subject to the applicable Mortgage, subject in each case to extension as provided in Section 13.4. If such breach a Vertical Developer Default is not cured within the applicable cure period (or default is so cured or remedied the Agency shall not have any rights or remedies with regard thereto, and if such breach or default, by its nature, cannot be cured by the Mortgagee without obtaining title to the applicable real property), the Agency nonetheless shall refrain from exercising any of its remedies for the Vertical Developer Default and shall permit the cure by the Mortgagee of such Vertical Developer Default if, within the Mortgagee’s applicable cure period: (i) the Mortgagee has a recorded security interest in the applicable real property (and, if applicable, a perfected security interest in other applicable property) and notifies the Agency in writing that the Mortgagee intends to proceed with due diligence to foreclose the Mortgage or remedied otherwise obtain title to the subject property; (ii) the Mortgagee commences foreclosure proceedings within sixty (60) days after giving such notice, and diligently pursues such foreclosure to completion; and (iii) after obtaining title, the Mortgagee diligently proceeds to cure those Vertical Developer Defaults: (A) that are susceptible of cure by the Mortgagee, then such breach or default shall be waived ; and (B) of which the Mortgagee has been given written notice by the Agency if Mortgagee shall promptly, after notice, take steps necessary to obtain possession as aforesaid, provided, that no material breach or default consisting of departure from Building Construction Plans approved by the Agency for the Private Improvements shall be considered incurable or irremediable for purposes of this Section, and provided, further, that if the breach or default is with respect to construction of Private Improvements, nothing contained in this under Section 13.4 or thereafter. Notwithstanding the foregoing, no Mortgagee shall be required to cure any other provision Vertical Developer Default that is specific or personal to the Mortgagor (by way of this Agreement example and not limitation, a Mortgagor bankruptcy, or the failure to submit required information in the possession of such Mortgagor), and the completion of a foreclosure and acquisition of title to the applicable property by the Mortgagor shall be deemed to permit be a cure of such Vertical Developer Defaults; provided the foregoing shall not excuse a Mortgagee’s failure to cure any continuing default that is curable by Mortgagee. Although no Mortgagee is obligated to do so, any Mortgagee that directly or authorize such Mortgagee, either before or after foreclosure or action in lieu thereof, indirectly obtains title to undertake or continue and that properly Completes Construction of the construction or completion of Private Improvements (beyond the extent necessary to conserve or protect improvements or construction already made) without first having expressly assumed the obligation relating to the Agency, by written agreement satisfactory to applicable portion of the Agency, to complete, Property in the manner provided in the Agreement, the Private Improvements on the Building Site. Any such Mortgagee who shall properly complete the Private Improvements on the Building Site accordance with this Agreement shall be entitled, upon written request made to the Agency, to a Certificate of Completion for the Building Site, to such effect in the manner provided in Article VI of this Agreement, and any such certification shall, if so requested by such Mortgagee, mean and provide that any remedies or rights with respect to recapture of or reversion or revesting of title of the Building Site that the Agency shall have or be entitled to because of failure of the Developer or any successor in interest to the Building Site or any part thereof, to cure or remedy any default with respect to the construction of the Private Improvements on other parts of the Building Site, or because of any other default in or breach of the Agreement by the Developer or such successor, shall not apply to the Building SiteCompletion.

Mortgagee’s Option to Cure Defaults. After any default in or breach of this Agreement by the Redeveloper or default referred to its successor in Section 12.1 aboveinterest, each such Mortgagee holder of any mortgage permitted under this Agreement shall (insofar as the rights of the Agency are concerned) have the rightright after the failure of the Redeveloper to cure or remedy said default or breach, at its option, to cure or remedy such breach or default (or such breach or default to the extent that it relates to the part of the Building and Garage Sites covered by its mortgage) within sixty (60) days and if permitted by its loan documents to add the cost thereof to the mortgage debt and the lien of its mortgage. Any rights and remedies of the Agency resulting from any such breach or default shall be suspended for such period of time as shall be reasonably necessary after notice to allow a Mortgagee to cure or remedy such breach or default (including any time reasonably necessary to obtain possession of the Building Site if possession is necessary to enable a Mortgagee to cure or remedy such breach or default), provided that the Mortgagee proceeds with all due diligence to cure or remedy such breach or default and/or obtain possession. If such breach or default is so cured or remedied the Agency shall not have any rights or remedies with regard thereto, and if such breach or default, by its nature, cannot be cured or remedied by Mortgagee, then such breach or default shall be waived by the Agency if Mortgagee shall promptly, after notice, take steps necessary to obtain possession as aforesaid, provided, that no material breach or default consisting of departure from Building Construction Plans approved by the Agency for the Private Improvements shall be considered incurable or irremediable for purposes of this Section, and provided, further, that if the breach or of default is with respect to construction of Private Improvementsthe improvements, nothing First Amended and Restated DDA – One Waterfront Place v8 January 4, 2008 contained in this Section 13.4 or any other provision Section of this Agreement shall be deemed to permit or authorize prohibit such Mortgageeholder, either before or after foreclosure or action in lieu thereof, to undertake from undertaking or continue continuing the construction or completion of Private Improvements (beyond the extent necessary to conserve or protect improvements or construction already made) without first having expressly assumed improvements, provided that the obligation to the Agency, by written agreement satisfactory to the Agency, holder notifies Agency in writing of its intention to complete, in the manner provided in the this Agreement, the Private Improvements improvements on the Building Siteand Garage Sites. Any such Mortgagee holder who shall properly complete the Private Improvements on improvements relating to the Building Site and Garage Sites shall be entitled, upon written request made to the Agency, to a the Certificate of Completion for by the Building Site, Agency to such effect in the manner provided in Article VI Section 3.8 of this Agreement, and any such certification Certificate of Completion shall, if so requested by such Mortgageeholder, mean and provide that any remedies or rights with respect to recapture of or reversion or revesting of title of to the Building Site and Garage Sites that the Agency shall have or be entitled to because of failure of Redeveloper to complete the Developer Project or any successor in interest to the Building Site or any part thereof, to cure or remedy any default with respect to the construction of the Private Improvements on other parts of the Building Site, or because of any other default in or breach of the Agreement by the Developer or such successor, Redeveloper shall not apply to the Building Siteand Garage Sites after such Certificate of Completion has been issued.

Mortgagee’s Option to Cure Defaults. After Notwithstanding the provisions of Section 9.5 above, after any breach or default referred to in Section 12.1 aboveunder this Agreement, each such Mortgagee shall (insofar as the rights of the Agency are concerned) have the right, at its optionbut not the obligation, to cure or remedy any breach or default under this Agreement (or such breach or default to the extent that it relates to the particular Parcel covered by the Mortgage) within the same period of time to cure which is provided to the Developer hereunder following receipt of notice by such Mortgagee, except that in the event that any such Mortgagee must take any judicial or nonjudicial foreclosure action or other proceeding in order to effect any such cure or remedy, then such Mortgagee shall have such additional period of time to cure or remedy a default as may be necessary in order to permit Mortgagee to complete such foreclosure or other legal proceeding, including, without limitation, resuming or recommencing the construction of any Improvements permitted under this Agreement in order to complete said Improvements and to add the cost thereof to the mortgage Mortgage debt and the lien of its mortgageMortgage. In the event that any Mortgagee cures any default or breach hereunder, the City shall accept such performance by Mortgagee as if the same had been made by the Developer and shall thereupon rescind the notice of default. Any rights and remedies of the Agency resulting from any such breach or default shall be suspended for such period of time as shall be reasonably necessary after notice to allow a Mortgagee to cure or remedy such breach or default (including any time reasonably necessary to obtain possession of the Building Site if possession is necessary to enable a Mortgagee to cure or remedy such breach or default), provided that the Mortgagee proceeds with all due diligence to cure or remedy such breach or default and/or obtain possession. If such breach or default is so cured or remedied the Agency shall not have any rights or remedies with regard thereto, and if such breach or default, by its nature, cannot be cured or remedied by Mortgagee, then such breach or default shall be waived by the Agency if Mortgagee shall promptly, after notice, take steps necessary to obtain possession as aforesaid, provided, that no material breach or default consisting of departure from Building Construction Plans approved by the Agency for the Private Improvements shall be considered incurable or irremediable for purposes of this Section, and provided, further, that if the breach or default is with respect to construction of Private Improvements, nothing contained in this Section 13.4 or any other provision of this Agreement shall be deemed to permit or authorize such Mortgagee, either before or after foreclosure or action in lieu thereof, to undertake or continue the construction or completion of Private Improvements (beyond the extent necessary to conserve or protect improvements or construction already made) without first having expressly assumed the obligation to the Agency, by written agreement satisfactory to the Agency, to complete, in the manner provided in the Agreement, the Private Improvements on the Building Site. Any such Mortgagee who shall properly complete any Improvements within the Private Improvements on Property pursuant to the Building Site terms of this Agreement shall be entitled, upon written request made to the AgencyCity, to a Certificate of Completion for issued by the Building Site, City. Any such Certificate of Completion shall have the same effect as if it had been delivered to such effect in the manner provided in Article VI of this Agreement, Developer and any such certification shall, if so requested by such Mortgagee, shall mean and provide that any rights or remedies or rights which the City has with respect to recapture the Property covered by the Certificate of Completion due to a default by Developer or reversion a successor-in-interest to Developer, or revesting of title of the Building Site that the Agency City shall have or be have been entitled to because of due to the failure of the Developer or any successor in successor-in-interest to the Building Site or any part thereof, to cure or remedy any default with respect to the construction of the Private Improvements on other parts of the Building Site, or because of any other default in or breach of the Agreement by the Developer or such successordefault, shall not apply to the Building SiteParcel as to which such Certificate of Completion relates. In the event that Developer or any Mortgagee disputes whether a default has occurred, such dispute shall be subject to mediation as provided for in Section 10.3 of this Agreement.