Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee. (b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 3 contracts
Samples: Base Indenture (Wendy's Co), Sixth Supplement to Base Indenture (Wendy's Co), Base Indenture (Wendy's Co)
Mortgages. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or any ground lease, and all renewals, increases and rearrangements thereof, whether or not a novation of the secured debt may occur in connection therewith (herein, a “Mortgage”); provided, however, that if the holder of any Mortgage (a “Mortgagee”) elects to have Tenant's interest in this Lease superior to any such Mortgage, then by written notice to Tenant from the Mortgagee, this Lease shall be deemed superior to the lien created by that Mortgage. In the event of any foreclosure of any such lien or mortgage, Tenant agrees to attorn to the Mortgagee or other purchaser at foreclosure, upon demand. Notwithstanding anything to the contrary contained herein, Tenant agrees that this Lease shall be subordinate to any future Mortgage placed against the Premises, and that it will attorn to the future Mortgagee, only if the Mortgagee agrees with Tenant in a subordination, non-disturbance and attornment agreement (an “SNDA Agreement”), in the Mortgagee’s then standard form, that Tenant’s right to use and occupy the Premises under the terms of this Lease will not be deprived as a result of a termination or foreclosure of such Mortgage so long as Tenant is not then in default under this Lease; provided, however, that Tenant acknowledges and agrees that such SNDA Agreement may contain, among other terms and conditions required for obtaining such Mortgage (i) any provision (or the substantial equivalent thereof) contained in any previous SNDA Agreement executed by Tenant (or any predecessor Tenant hereunder), (ii) a provision requiring that notices of Landlord default be given to the Mortgagee and the Mortgagee allowed a reasonable time in addition to Landlord’s cure period hereunder to cure such default before Tenant shall be entitled to take its remedies hereunder or by law, (iii) a provision stating that the terms of the Mortgage govern over any conflicting provision of this Lease pertaining to the Mortgagee’s obligation to make insurance or condemnation proceeds available for reconstruction of any part of the Premises, (iv) provisions by which such Mortgagee or successor-in-interest upon foreclosure is agreed not to be bound by (a) Upon any payment of rent or additional rent for more than one (1) month in advance, including prepayment in the occurrence nature of a Mortgage Preparation Eventsecurity for the performance by Tenant of its obligations under this Lease (unless actually received by such successor in interest), (b) any obligations of Landlord to construct improvements, (c) any amendment or modification of this Lease (or implied waiver of Tenant’s obligations) made without the Master Issuer written consent of such trustee or such beneficiary or such successor in interest, (d) any representations or defaults by any prior Landlord, and (e) any other matters that such Mortgagee is not directly responsible for causing, as such Mortgagee may specify, and/or (v) such other provisions and protections as such Mortgagee may request that are reasonably customary in the commercial mortgage lending community at the time. Tenant, at any time hereafter on demand by Landlord, shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets promptly execute and deliver to Landlord, in any event within ten (excluding the Contributed Restaurant Third-Party Leases). Within ninety (9010) days of such Mortgage Preparation Eventdemand, an SNDA Agreement meeting the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record above criteria or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeother commercially reasonable form.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 3 contracts
Samples: Industrial Triple Net Lease (Orbital Energy Group, Inc.), Industrial Triple Net Lease (Orbital Energy Group, Inc.), Industrial Triple Net Lease (Orbital Energy Group, Inc.)
Mortgages. The Company will use its commercially reasonable efforts to complete or cause to be completed on or prior to the Issue Date all filings and other similar actions required or desirable on its part in connection with the creation, perfection, protection and/or reaffirmation of such security interests in favor of the Notes and the Guarantees. In the case of material real property owned by the Company or a Grantor as of the Issue Date that will secure the Notes Obligations and constitute Collateral (aeach, a “Mortgaged Property”), the Company or the applicable Grantor shall deliver to the applicable Notes Collateral Agent, within 180 days after the Issue Date (or such later date that the Company delivers executed mortgage amendments and the related deliverables required pursuant to the amendment to the Credit Facilities to be entered into in connection with the Transactions, in which case the Company, prior to the expiration of such 180 day period, will provide written notice to the Trustee and the applicable Notes Collateral Agent, upon which notice the Trustee and the applicable Notes Collateral Agent may conclusively rely, that such 180 day period has been extended in accordance with this parenthetical, and will promptly notify the Trustee and the applicable Notes Collateral Agent in writing of such later date when such date is known): (A) Upon the occurrence of a Mortgage Preparation Eventon such property; (B) evidence that a counterpart of the Mortgage has been recorded or delivered to the appropriate title insurance company for recording promptly following the Issue Date, in the Master Issuer shall cause place necessary, to create a valid and enforceable first priority Lien, subject to the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days Intercreditor Agreements and Permitted Liens, in favor of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held Notes Collateral Agent for the benefit of the Indenture Secured Parties Parties; (C) American Land Title Association or other mortgagee’s title policy in form and substance reasonably satisfactory to such Notes Collateral Agent; and (D) an opinion of counsel in the event state in which such parcel of real property is located; provided that, the amount of debt secured by each Mortgage in any state that imposes a mortgage tax shall be reasonably limited to an amount not more than the sum of the Notes Obligations, Existing Secured Notes Obligations and outstanding Bank Indebtedness so as to avoid multiple mortgage tax assessments; provided further, documents required to be delivered under this Section 12.05 shall be deemed acceptable to the applicable Notes Collateral Agent if such documents are in the substantially same form as those documents delivered to the Credit Agreement Collateral Agent under the analogous provision of the Credit Agreement. Notwithstanding the foregoing, each Mortgage Recordation Event occurs (will cease to secure the Notes Obligations if the real property subject to Section 3.1(c)). Upon such Mortgage no longer secures any Senior Secured Debt (other than the occurrence of a Mortgage Recordation Event, Notes) and the Trustee shallapplicable Notes Collateral Agent, at the direction written request of the Control PartyCompany, deliver the Mortgages within twenty (20) Business Days following and upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture, the properly executed Mortgages Security Documents and the Intercreditor Agreement to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction release of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages have been complied with and that it is permitted for the Notes Collateral Agent to the applicable Governmental Authority and the Trustee release such Mortgages, shall pay all Mortgage Recordation Fees in connection with take such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant actions as reasonably required to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any release such Mortgages or to determine that the same at such time as such Mortgages are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeno longer required.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 3 contracts
Samples: Indenture (TransDigm Group INC), Indenture (TransDigm Group INC), Indenture (TransDigm Group INC)
Mortgages. Owner shall have the right to grant, either in connection with original financing and/or renewals, replacements, refinancings and extensions thereof, a Mortgage encumbering all of the assets that comprise the Managed Properties (aany part thereof or any interest therein) Upon and, in furtherance thereof, to assign to any mortgagee (as collateral security for any loan secured by a Mortgage) and/or all of Owner’s right, title, and interest in and to this Agreement. Manager’s interests hereunder (and all Management Fees and/or the occurrence Termination Fee) shall be subordinate to any Mortgage placed on the Managed Properties by Owner pursuant to any Loan Documents and to any and all advances made or to be made thereunder, to the interest thereon, all renewals, replacements, refinancings and extensions thereof. The provisions of this Section 15.1 shall be self-operative and shall not require the execution of any further documentation; provided, however, Manager shall upon the request of such holder of such Mortgage, subordinate its rights under this Agreement, including its rights to be paid the Management Fees and the Termination Fee and its rights under Sections 13.1 and 13.2 with respect to a casualty or condemnation of the Managed Properties (but expressly excluding Manager’s rights under Section 13.4 in connection therewith), respectively, to such Mortgage, and shall deliver a subordination and attornment agreement to each holder of a Mortgage Preparation Eventsatisfactory to such holder of a Mortgage. For avoidance of doubt, the Master Issuer Manager shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages not be required to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence return or reimburse Owner or any holder of a Mortgage Recordation Event, the Trustee shall, at the direction for all or any portion of the Control PartyManagement Fees, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages Termination Fees and/or Reimbursable Expenses paid to the applicable recording office for recordation (unless such recordation requirement is waived and received by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees Manager pursuant to and in accordance with the Priority terms of Payments. For the avoidance of doubtthis Agreement; provided, Wendy’s Properties however, that Manager shall not be required to, and the Trustee may not, record or cause to be recorded accept any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction payments of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf Management Fees or Termination Fees in advance of the Trustee shall be under any duty or obligation to inspectbeing earned or, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation case of Reimbursable Expenses, actually incurred; provided, further, that if any Management Fees and/or Reimbursable Expenses due and owing to Manager are withheld pursuant to the terms of any Mortgage, for the rejection of a Mortgage by Base Management Fees and/or Reimbursable Expenses due and owing, but expressly excluding any recording office or for the failure of any Mortgage Incentive Management Fees, shall accrue to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid Manager (but may remain unpaid) and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, WendyManager’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction sole recourse for any non-payment of the ManagerBase Management Fee and/or any Reimbursable Expenses shall be as provided under Section 14.2(a) (including, without limitation, the Trustee shall execute right to terminate this Agreement as provided therein and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined seek remedies against Owner in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.Section 14.3
Appears in 2 contracts
Samples: Management Agreement (Station Casinos LLC), Management Agreement (Station Casinos LLC)
Mortgages. Subject to the provisions o[_] this Sublease and Condition 21 of the Master Lease, Sublessee shall have the right, at any time during the term of this Sublease, to encumber its estate in the Subleased Premises pursuant to one or more mortgages or deeds of trust (a"Subleasehold Mortgage") Upon only to provide financing as set forth herein. Any right granted to Sublessee to encumber its estate is the occurrence Subleased Premises through grant of a Subleasehold Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages be subject to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty the maximum amount o(Pounds) any permanent or refinance Subleasehold Mortgage shall not exceed eighty percent (2080%) Business Days following delivery of a properly executed Mortgage to the Trustee appraised fair market value of the Subleased Premises; including the Facility; and (ii) the Trustee’s Actual Knowledge maximum amount of any permanent or refinance Subleasehold Mortgage on the land area of the Subleased Premises, excluding the Facility, shall not exceed one hundred percent (100%) of the total cost of any authorized capital improvements with ~ a Rapid Amortization Eventuseful life in excess of five (5) years. The Trustee may engage a third-party service provider (which No Subleasehold Mortgage shall extend to or affect the fed, the reversionary interest or the estate of Sublessor and/or the Air Force in or to any land, building or improvements existing or subsequently constructed on the Subleased Premises. No Subleasehold Mortgage shall be reasonably acceptable binding upon Sublessor and/or the Air Force in the enforcement of its rights and remedies herein and by law provided, unless, and until a copy thereof shall have been delivered to Sublessor and the Air Force and such mortgage is authorized under this Section 19.7. Sublessor and Sublessee agree that so long as any authorized Subleasehold Mortgage is a lien on Sublessee's estate in the Subleased Premises, the mortgagee or beneficiary thereunder ("Subleasehold Mortgagee") shall have all of the following rights:
(1) If Sublessee shall have delivered to Sublessor prior written notice of the address of any Subleasehold Mortgagee, Sublessor will give to the Control Party) Subleasehold Mortgagee a copy of any notice under this Sublease at the time of giving such notice to assist in delivering such Mortgages Sublessee, and will give to the applicable Governmental Authority and Subleasehold Mortgagee notice received by Sublessor of any rejection of this Sublease by the Trustee shall pay all Mortgage Recordation Fees trustee in connection with bankruptcy of Sublessee or by Sublessee as debtor-in-possession. In such recordation. The Trustee case no termination of this Sublease or termination o[_] Sublessee's right of possession of the Subleased Premises or reletting of the Subleased Premises by Sublessor predicated on the giving of any notice shall be reimbursed by effective unless Sublessor gives to the Master Issuer for any Subleasehold Mortgagee written notice oz a copy of its notice to Sublessee of such default or termination, as the case may be. Notices, demands and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant requests from Sublessor to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee Subleasehold Mortgagee shall be under any duty mailed to the address given for Sublessor by certified or obligation registered mail and notices, demands and requests from the Subleasehold Mortgagee to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf Sublessor shall in any way be liable for any delays delivered in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in manner and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held address as specified in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeArticle 23 hereof.
(b2) Notwithstanding In the event of any default by Sublessee under the provisions of this Sublease, the Subleasehold Mortgagee will have the same concurrent grace periods as are given Sublessee for remedying such default or causing it to be remedied, plus, its each case, an additional period of thirty (30) days after the expiration thereof or after Sublessor has served a notice or a copy of a notice of default upon the Subleasehold Mortgagee, whichever is later.
(3) In the event Sublessee shall default under any of the previsions of this Sublease, the Subleasehold Mortgagee, without prejudice to its rights against Sublessee, shall have the right to cure such default within the applicable grace periods provided for in the preceding paragraph of this Section 8.37(a) above whether the same consists of the failure to pay rent or anything else contained in this Base Indenture or the failure to perform any other Related Documentmatter or thing which Sublessee is hereby required to do of perform, and Sublessor shall accept such performance on the aggregate amount of all Obligations part of the Master Issuer Subleasehold Mortgagee as though the same had been done or performed by Sublessee. For such purpose Sublessor and Wendy’s Properties secured Sublessee hereby authorize the Subleasehold Mortgagee to enter upon the Subleased Premises and to exercise any of Sublessee's rights and powers under any Indenture Document by this Sublease, and subject to the Debenture Restricted Assets shall notprovisions of this Sublease, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.Subleasehold Mortgage,
Appears in 2 contracts
Samples: Sublease (Cabletron Systems Inc), Sublease (Aprisma Management Technologies Inc)
Mortgages. The Company shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) Upon (i) an amendment to each existing Mortgage (as defined in the occurrence “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage Preparation Event, granted to the Master Issuer shall cause Collateral Agent duly executed and delivered by the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days record owner of such Mortgage Preparation Event, Real Property and the Master Issuer shall deliver such Mortgages Collateral Agent sufficient to grant to the Trustee, to be held Collateral Agent for its benefit and the benefit of the Secured Parties in Trustee and the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction holders of the Control PartySecond Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the applicable recording office for recordation (unless such recordation requirement is waived by the Control PartyCollateral Agent, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the Trustee’s Actual Knowledge extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Rapid Amortization Event. The Trustee may engage Mortgage Amendment, a third-party service provider title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which shall may be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable as the title insurance company or appropriate for companies insuring the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create Mortgages in favor of the TrusteeCollateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the benefit “Description of Second Priority Notes” section of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted LiensProspectus), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Underwriting Agreement (Berry Plastics Group Inc), Underwriting Agreement (Berry Plastics Group Inc)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which This Lease shall be reasonably acceptable subordinate to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventdeed of trust, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record mortgage or cause to be recorded any Mortgage until the occurrence of other security instrument (a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any "Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens"), and security interests inany ground lease, Wendy’s Properties’ rightmaster lease, title and interest in or -------- primary lease (a "Primary Lease") that now or hereafter covers any portion of ------------- the Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee"), and to each Contributed Owned Real Property and each New Owned Real Propertyincreases, -------------------- renewals, modifications, consolidations, replacements, and the Proceeds extensions thereof. Upon However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the request case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of Wendy’s Propertiesthis Section 21 shall be self- operative, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage no further instrument shall be returned required to effect such subordination; however, Tenant shall from time to time within ten days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the escrow agent directly subordination of this Lease to the Trusteeany such Mortgage or Primary Lease.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Initial Improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of rent made more than one month in advance.
(d) Notwithstanding the provisions of this Section 21 and except as provided in the Nondisturbance, Attornment and Subordination Agreement executed by Tenant as provided below and Landlord's Mortgagee, so long as this Lease is in effect, Tenant's right of possession to the Premises and other rights arising out of this Lease shall not be affected or disturbed by any Landlord's Mortgagee in the exercise of its rights under the Mortgage, and in the event that any Landlord's Mortgagee shall agree to the sale of the Master Issuer Land pursuant to its exercise of any rights and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets remedies under the Unsecured Debenture IndentureMortgage or otherwise, determined in accordance with such sale shall be made subject to this Lease and the terms rights of the Unsecured Debenture Indenture, without requiring holders Tenant hereunder.
(e) At the closing of Landlord's acquisition of the Unsecured Debentures Land and the Building, Tenant agrees to be equally execute and ratably secured in accordance with acknowledge the terms forms of the Unsecured Debenture IndentureNondisturbance, Attornment and Subordination Agreement and Lender Estoppel attached as Exhibits C-1 and C-2 and deliver them to Landlord.
Appears in 2 contracts
Samples: Commercial Lease Agreement (Metasolv Software Inc), Commercial Lease Agreement (Metasolv Software Inc)
Mortgages. This Lease is and shall be subject and subordinate to any mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a lien or charge upon the Property, or the improvements situated thereon, provided, however, that if the mortgagee, trustee, or holder of any such mortgage or deed of trust elects to have Tenant’s interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien whether this Lease was executed before or after said mortgage or deed of trust. Tenant shall at any time hereafter on demand execute any instruments, releases or other documents which may be required by any such mortgagee for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage or for the purpose of evidencing the superiority of this Lease to the lien of any such mortgage, as may be the case, or for any other matters requested by Landlord’s mortgagee. At Tenant’s sole cost and expense, Landlord shall make reasonable and good faith efforts to obtain from its existing mortgagee a subordination, non-disturbance and attornment agreement (autilizing such mortgagee’s standard form of agreement) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets Tenant within thirty (excluding the Contributed Restaurant Third-Party Leases). Within ninety (9030) days of after mutual Lease execution. In the event that Landlord is unable to obtain such Mortgage Preparation Eventagreement from its existing mortgagee within thirty (30) days after mutual Lease execution, Tenant may, at its sole option and as its sole and exclusive remedy (it being agreed by Landlord and Tenant that the Master Issuer shall failure to deliver such Mortgages agreement shall not constitute a default by Landlord under this Lease), terminate this Lease promptly thereafter by written notice to Landlord. In the Trusteeevent that Landlord delivers such agreement to Tenant prior to receipt of Tenant’s written notice to Landlord terminating this Lease (notwithstanding the passage of thirty (30) days or more after mutual Lease execution), Tenant’s option to terminate this Lease pursuant to this Paragraph 17 shall terminate and be held of no further force and effect. Additionally, in the event Landlord has not delivered such agreement by the date that is thirty (30) days after mutual Lease execution and Tenant has not exercised its option to terminate this Lease within thirty (30) days after such date, then Tenant’s option to terminate this Lease pursuant to this Paragraph 17 shall be deemed waived and of no further force and effect. If Tenant exercises its option to terminate this Lease pursuant to this Paragraph 17, Tenant hereby acknowledges and agrees that Landlord shall have the right to use all sums paid to or provided for the benefit of Landlord as of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence date of a Mortgage Recordation Eventsuch termination, including, without limitation, the Trustee shallfirst month’s Base Rent, at the direction Security Deposit, and the Letter of Credit (as defined in Paragraph 30 below), to pay for all Improvement Costs actually incurred by Landlord. For purposes of this Lease, all costs, expenses, fees and other charges related to the approval, construction and installation of the Control PartyImprovements, deliver including, but not limited to, the Mortgages within twenty (20) Business Days following receipt matters expressly described in EXHIBIT C, shall be collectively referred to as the “Improvement Costs.” Prior to payment of the properly executed Mortgages Improvement Costs to Landlord, Tenant shall have the right to review the Improvement Costs to verify that all Improvement Costs are related to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Partyapproval, acting at the direction construction and installation of the Controlling Class Representative); provided that Improvements, including, but not limited to, the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist matters expressly described in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties EXHIBIT C. Landlord shall not be required paid or reimbursed for any costs, expenses, fees or other charges that are not related to the approval, construction and installation of the Improvements, including, but not limited to, and the Trustee may notmatters expressly described in EXHIBIT C. Upon full payment to Landlord of all Improvement Costs, record Landlord shall promptly return to Tenant the remaining balance, if any, of such sums paid to or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, provided for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereofLandlord. Upon the request The provisions of Wendy’s Properties, and at the direction this Paragraph 17 shall survive termination of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteethis Lease.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Lease Agreement (Connecture Inc), Lease Agreement (Connecture Inc)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which This Lease shall be reasonably acceptable subordinate to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventdeed of trust, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record mortgage or cause to be recorded any Mortgage until the occurrence of other security instrument (a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any "Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens"), and security interests inany ground lease, Wendy’s Properties’ rightmaster lease, title and interest in or -------- primary lease (a "Primary Lease") that now or hereafter covers any portion of ------------- the Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee"), and to each Contributed Owned Real Property and each New Owned Real Propertyincreases, -------------------- renewals, modifications, consolidations, replacements, and the Proceeds extensions thereof. Upon However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the request case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of Wendy’s Propertiesthis Section 21 shall be self-operative, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage no further instrument shall be returned required to effect such subordination; however, Tenant shall from time to time within ten days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the escrow agent directly subordination of this Lease to the Trusteeany such Mortgage or Primary Lease.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of rent made more than one month in advance.
(d) Notwithstanding the provisions of this Section 21 and except as provided in the Nondisturbance, Attornment and Subordination Agreement executed by Tenant as provided below and Landlord's Mortgagee, so long as this Lease is in effect, Tenant's right of possession to the Premises and other rights arising out of this Lease shall not be affected or disturbed by any Landlord's Mortgagee in the exercise of its rights under the Mortgage, and in the event that any Landlord's Mortgagee shall agree to the sale of the Master Issuer Land pursuant to its exercise of any rights and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets remedies under the Unsecured Debenture IndentureMortgage or otherwise, determined in accordance with such sale shall be made subject to this Lease and the terms rights of the Unsecured Debenture IndentureTenant hereunder.
(e) Within thirty (30) days following the full execution of this Lease, without requiring holders Tenant agrees to execute and acknowledge the forms of the Unsecured Debentures Nondisturbance, Attornment and Subordination Agreement and Lender Estoppel attached as Exhibits C-1 and C-2 and deliver them to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureLandlord.
Appears in 2 contracts
Samples: Commercial Lease Agreement (Metasolv Software Inc), Commercial Lease Agreement (Metasolv Software Inc)
Mortgages. (aA) Upon the occurrence Subject to Subparagraph 12.1(E) below, upon request by any holder of a Mortgage Preparation EventFirst Mortgage, Tenant shall subordinate Tenant’s rights under this Lease to such First Mortgage, and to any advances to be made thereunder and the Master Issuer interest thereon, and to all renewals, modifications, replacements and extensions thereof. Tenant’s rights under this Lease shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages not be subordinate to the Trustee, to be held for the benefit holder of the Secured Parties First Mortgage unless the holder thereof has requested that this Lease be subordinate thereto, provided that any such subordination shall be subject to Subparagraph 12.1(E) below. Any Mortgagee, whether the holder of the First Mortgage or any other Mortgage affecting the Premises, may elect to have this Lease made prior to such Mortgage, and in the event a Mortgage Recordation Event occurs of such election and upon notification by any such Mortgagee to Tenant to that effect, this Lease shall be deemed prior in lien to any such Mortgage, whether this Lease is dated or filed prior to or subsequent to the date of such Mortgage.
(subject B) Subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation EventSubparagraph 12.1(E) below, the Trustee Tenant shall, at in the direction event of exercise of the Control Partypower of sale or deed in lieu of foreclosure under any Mortgage, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages attorn to the applicable recording office for recordation (unless and recognize such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative)purchaser as landlord under this Lease; provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties said purchaser shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation act or omission of any Mortgage, for the rejection of a Mortgage prior landlord or subject to any offsets or defenses which Tenant may have against any prior landlord or be bound by any recording office amendment or for modification of this Lease made without the failure prior written consent of such Mortgagee. Should any Mortgage to create in favor Mortgagee or purchaser require a separate agreement of attornment regarding the Trusteematters covered by this Lease, for the benefit of the Secured PartiesTenant shall promptly, legalupon request, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of enter into any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeattornment agreement.
(bC) At any time and from time to time, Tenant and Landlord shall, upon request from the other, execute, acknowledge and deliver. within ten (10) days after receipt of such request, to the requesting party or any potential purchaser of the Premises, or to any Mortgagee or potential Mortgagee, an estoppel certificate or statement in writing certifying to all or any part of the following information as shall be requested, provided that such facts are true and ascertainable: (i) that this Lease constitutes the entire agreement between Landlord and Tenant, (ii) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified and stating the modification), (iii) the specific itemized amounts of Aggregate Rent under this Lease and the dates to which such amounts have been paid, (iv) that there is no prepaid Aggregate Rent, (v) the amount of the Security Deposit, (vi) that the Premises have been satisfactorily completed, (vii) that Tenant has accepted possession of the Premises, (viii) that the Lease Term has commenced, (ix) that Tenant is in possession of the Premises, (x) that the actual Rent Commencement Date has occurred, (xi) that all conditions precedent to the validity and enforceability of this Lease have been fully satisfied, and (xii) that there are no defaults or offsets which Tenant or Landlord have against enforcement of this Lease by the requesting party. Tenant’s estoppel certificate or statement shall also contain such other information as may be reasonably or customarily required by the present or potential purchaser or Mortgagee, and shall be completed and delivered by Tenant as soon as practicable, but in no event more than ten (10) days after request therefor.
(D) In the event that, in connection with obtaining financing or refinancing for the Premises, any banking, insurance or other recognized institutional lender shall request reasonable modifications in this Lease as a condition to such financing, Tenant shall not unreasonably withhold, delay or defer Tenant’s consent thereto, provided that such modifications shall be subject to Subparagraph 12.1(E) below and shall not materially increase the obligations of Tenant hereunder or materially adversely affect the interest of Tenant hereby created.
(E) Notwithstanding Section 8.37(a) above anything to the contrary contained herein, Landlord hereby represents that, as of the Effective Date, there is no existing ground or anything else contained in this Base Indenture underlying lease, mortgage or deed of trust affecting all or any other Related Document, the aggregate amount of all Obligations part of the Master Issuer Premises. Furthermore, Tenant agrees that, provided that any future ground lessor or mortgagee shall agree to honor and Wendy’s Properties secured under any Indenture Document abide by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture IndentureLease and give Tenant a non-disturbance agreement, without requiring holders in mutually agreeable form, providing in effect that Tenant’s right to use and occupy the Premises will not be deprived as a result of such termination or foreclosure, so long as Tenant shall not be in Tenant Default, then in such event, the Lease shall be subordinate to any future ground lease, mortgage or deed of trust placed against the Premises, and Tenant shall attorn to the future ground lessor or mortgagee upon termination of the Unsecured Debentures to be equally and ratably secured in accordance with the terms ground lease or foreclosure of the Unsecured Debenture Indenturemortgage or deed of trust, respectively.
Appears in 2 contracts
Samples: Industrial Lease Agreement (Premier Exhibitions, Inc.), Industrial Lease Agreement (Premier Exhibitions, Inc.)
Mortgages. (a) Upon This Lease and the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which Tenant's interest hereunder shall be reasonably acceptable subject and subordinate at all times to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs mortgages, deeds of trust, and expenses in connection with such Mortgage Recordation Eventother security instruments, including all Mortgage Recordation Fees pursuant to renewals, extensions, consolidations, assignments and refinancings of the same (collectively "Mortgage") as well as all advances made upon the security thereof, which now or hereafter become liens upon the Landlord's interest in accordance with the Priority Premises and/or the Building. Notwithstanding the foregoing, so long as no Event of Payments. For the avoidance of doubtDefault has occurred hereunder, Wendy’s Properties Tenant shall not be required disturbed in its quiet enjoyment of the Premises. In case Landlord's interest under the Mortgage shall terminate for any reason and if the holder of any such Mortgage ("Mortgagee") or if the grantee of a deed in lieu of foreclosure, or if the purchaser at any foreclosure sale or at any sale under a power of sale contained in any such Mortgage shall at its sole option so request, Tenant shall attorn to, and recognize such Mortgagee, grantee or purchaser, as the Trustee case may notbe, record as Landlord under this Lease for the balance then remaining of the term of this Lease, subject to all terms of this Lease. The aforesaid provisions shall be self-operative and no further instrument or cause document shall be necessary unless required by any such Mortgagee, grantee or purchaser. Notwithstanding anything to be recorded the contrary set forth above, any Mortgagee may at any time subordinate its Mortgage until the occurrence to this Lease, without Tenant's consent, by execution of a written document subordinating such Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee to this Lease, and thereupon this Lease shall be under any duty or obligation deemed prior to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Lease Agreement (Avax Technologies Inc), Lease Agreement (Avax Technologies Inc)
Mortgages. Grantee, and its successors, subtenants and assigns permitted hereunder shall have the right to mortgage and pledge its interest in this Agreement (a “Mortgage”) to a lender (a “Mortgagee”), in accordance with and subject to the terms, conditions, requirements and limitations of this Section 9. Grantor and Grantee expressly intend and agree that the provisions of this Section 9 and such other provisions of this Agreement which, by their terms, are for the benefit of a Mortgagee, are intended for the benefit of and enforceable by such Mortgagee and its respective nominees, designees, successors and assigns. Notwithstanding anything in this Agreement to the contrary, all Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Agreement, and at all times shall be inferior and subject to the prior right, title and interest of Grantor herein. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the fee interest in the Easement Air Space be subordinate to any Mortgage. A notice of each Mortgage shall be delivered to the Grantor specifying the name and address of such Mortgagee to which notices shall be sent. Grantor shall be furnished a copy of each such recorded Mortgage within thirty (30) days of such mortgage being recorded. If Grantee, or Grantee’s successors or assigns, shall mortgage its rights under this Agreement, then so long as any such Mortgage shall remain unsatisfied of record and Grantee shall have properly delivered notice to Grantor in compliance with Section 9(b) hereof with respect to such Mortgagee, the following provisions shall apply: Grantor, upon serving upon Grantee any notice of any default by Grantee hereunder (a “Grantee Default”) or any other notice under the provisions of this Agreement, shall also serve a copy of such notice upon Mortgagee, and no notice shall be deemed to have been duly given as to the Mortgagee unless and until a copy thereof has been so served upon the Mortgagee. Grantor’s furnishing a copy of such notice to Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Grantee, provided, that Grantor may not terminate this Agreement or exercise any remedies against Grantee without first giving Mortgagee notice and opportunity to cure as provided in this Agreement. Any Mortgagee, in case there shall be a Grantee Default under this Agreement, shall have the right to remedy such Grantee Default (or cause the same to be remedied) within thirty (30) days after notice to Mortgagee of such Grantee Default (which will be after expiration of all Grantee notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Grantee Default so long as (x) curative action reasonably satisfactory to Grantor is instituted within such period and diligently and continuously pursued to completion thereafter, and (y) periodic progress reports thereon are delivered to Grantor, and Grantor shall accept such performance by or at the instance of Mortgagee as if the same had been made by Grantee. Any provision of this Agreement to the contrary notwithstanding, no performance by or on behalf of a Mortgagee shall cause it to become a “mortgagee in possession” or otherwise cause it to be deemed to be in possession of the Easement Air Space or bound by or liable under this Agreement. The Grantor agrees that, in the event of a non-monetary Grantee Default which cannot be cured by the Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Easement Air Space, the Grantor will not terminate this Agreement without first giving to the Mortgagee reasonable time within which to obtain possession of the Easement Air Space, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Grantee’s interest under this Agreement with diligence and without unreasonable delay. The Grantor agrees that upon acquisition of Grantee’s interest under this Agreement by a Mortgagee and performance by the Mortgagee of all covenants and agreements of Grantee, except those which by their nature cannot be performed or cured by any person other than the then Grantee which has defaulted (“Incurable Defaults”), the Grantor’s right to terminate this Agreement shall be waived with respect to the matters which have been cured by the Mortgagee and with respect to the Incurable Defaults. Notwithstanding anything to the contrary set forth in this Section 9(c), Mortgagee shall have the right, but shall not be obligated, to remedy any Grantee Default under this Agreement. It shall be a condition precedent to any assignment or transfer of this Agreement by foreclosure of any Mortgagee, deed-in-lieu thereof or otherwise to any third-party (unrelated to Mortgagee or any entity or institution comprising Mortgagee) purchaser in any such foreclosure proceedings (any such transferee of the Agreement), that upon becoming the legal owner and holder of this Agreement shall execute an agreement pursuant to which such transferee agrees to assume all obligations of Grantee under this Agreement first arising from and after such foreclosure or deed-in-lieu thereof. In the event of the termination of this Agreement prior to the expiration of its term, Grantor shall serve upon Mortgagee written notice that the Agreement has been terminated together with a statement of any and all sums which would at that time be due under this Agreement but for such termination, and of all other defaults, if any, under this Agreement then known to Grantor. Mortgagee shall thereupon have the option to obtain a new easement in accordance with and upon the following terms and conditions: Upon the written request of Mortgagee, delivered to Grantor within thirty (30) days after service of such notice that the Agreement has been terminated to Mortgagee, Grantor shall enter into a new easement for the Easement Air Space with Mortgagee or its designee as follows: Such new easement shall be entered into within thirty (30) days of such Mortgagee’s written request at the sole cost of Mortgagee or such designee, shall be effective as of the date of termination of this Agreement, and shall be for the remainder of the term of this Agreement and upon all the terms, covenants and conditions hereof. Such new easement shall require the grantee to perform any unfulfilled obligation of Grantee under this Agreement which is reasonably susceptible of being performed by such grantee. If this Agreement is (a) Upon the occurrence rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving Grantee (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of a Mortgage Preparation Eventany Bankruptcy Proceeding and, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within if within ninety (90) days after such rejection or termination, the Mortgagee or its nominee(s) shall request and certify in writing to Grantor that it intends to perform the obligations of Grantee as and to the extent required hereunder, Grantor shall execute and deliver to the Mortgagee or such nominee(s) such new easement which shall be for the balance of the remaining term under the original Agreement before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Agreement (except for any requirements which have been fulfilled by Grantee prior to such rejection or termination). The new easement shall be executed by Grantor and the Mortgagee or its nominee(s) within ninety (90) days after the receipt by Grantor of such Mortgage Preparation Eventwritten notice. References herein as to this “Agreement” shall be deemed also to refer to such new easement. Any notice or other communication which Grantor shall desire or is required to give to or serve upon Mortgagee shall be in writing and shall be served by either (A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Mortgagee at its address provided to Grantor. The Grantor, acting by and through the Master Issuer shall deliver such Mortgages to the TrusteeCity Representative, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction request of the Control PartyGrantee made from time to time and at any time, deliver enter into a lender’s rights agreement with any Mortgagee identified by the Mortgages within Grantee, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to Grantor and consistent with the terms and provisions contained in this Section 9. Within twenty (20) Business Days following receipt days of the properly executed Mortgages Grantee’s request for a lender’s rights agreement pursuant to the applicable recording office for recordation (unless such recordation requirement is waived by provisions of this Section 9, time being of the Control Partyessence, the Grantor, acting at by and through the direction of the Controlling Class City Representative); provided that the Trustee , shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage execute and deliver to the Trustee and (ii) Grantee such a lender’s rights agreement benefiting the Trusteeidentified Mortgagee, which executed lender’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which rights agreement shall be in a form and substance that are reasonably acceptable to the Control Party) to assist in delivering Grantor and such Mortgages to the applicable Governmental Authority Mortgagee and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Propertiesis consistent with, and at the direction option of the Managersuch Mortgagee incorporates, the Trustee shall terms and provisions of this Section 9. Grantee agrees to pay for the Grantor’s reasonable attorneys’ fees expended in connection with any lender’s rights agreement. Grantor agrees (i) to negotiate in good faith and execute modifications to this Section 9 and deliver a release related provisions of mortgage to be held this Agreement, which Grantor has accepted in escrow pending a closing of a sale of any Contributed Owned Real Property its reasonable discretion, with each Mortgagee (or any New Owned Real Property; provided prospective Mortgagee) in the event that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly Mortgagee desires changes to the Trusteeprovisions as currently stated.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Air Rights Easement Agreement, Air Rights Easement Agreement
Mortgages. At the option of the Landlord, this Lease shall be subject and subordinate to any and all mortgages, charges and deeds of trust, which may now or at any time hereafter affect the Leased Premises in whole or in part, or the Lands, or the Building whether or not any such mortgage, charge or deed of trust affects only the Leased Premises or the Lands or the Building or affects other premises as well. On request at any time and from time to time of the Landlord or of the mortgagee, chargee or trustee under any such mortgage, charge or deed of trust, the Tenant shall promptly, at no cost to the Landlord or mortgagee, chargee or trustee:
(a) Upon the occurrence of a Mortgage Preparation Eventattorn to such mortgagee, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit chargee or trustee and become its tenant of the Secured Parties Leased Premises or the tenant of the Leased Premises of any purchaser from such mortgagee, chargee or trustee in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon of an exercise of any permitted power of sale contained in any such mortgage, charge or deed of trust for the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction then unexpired residue of the Control PartyTerm on the terms herein contained; and/or
(b) postpone and subordinate this Lease to such mortgage, deliver the Mortgages within twenty (20) Business Days following receipt charge or deed of the properly executed Mortgages trust to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided intent that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any this Lease and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest of the Tenant in the Leased Premises shall be subject to the rights of such mortgagee, chargee or trustee as fully as if such mortgage, charge or deed of trust had been executed and to each Contributed Owned Real Property and each New Owned Real Property, registered and the Proceeds money thereby secured had been advanced before the execution of this Lease (and notwithstanding any authority or consent of such mortgagee, or trustee, express or implied, to the making of this Lease), provided that the applicable mortgagee, chargee or trustee thereunder has agreed in writing with the Tenant that the Tenant shall have undisturbed possession of the Leased Premises as long as it is not in default under the Lease. Any such attornment or postponement and subordination shall extend to all renewals, modifications, consolidations, replacements and extension of any such mortgage, charge or deed of trust and every instrument supplemental or ancillary thereto or in implementation thereof. Upon the request The Tenant shall forthwith execute any instruments of Wendy’s Properties, attornment or postponement and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that subordination which may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures so requested to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturegive effect to this Section.
Appears in 2 contracts
Samples: Lease Agreement (Hydrogenics Corp), Lease (Hydrogenics Corp)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer The Borrower shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall applicable Pledged Collateral LLCs to execute and deliver such Mortgages to the Collateral Trustee, not later than 90 days after the Closing Date, Mortgages with respect to be held for the benefit real properties that constitute Credit Tenant Lease Assets owned by such Pledged Collateral LLCs comprising not less than 50% of the Secured Parties in the event a Borrowing Base Value of all Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative)Eligible Assets; provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage Mortgages shall not be required to the Trustee and be delivered with respect to any Mortgage-Exempt Asset, (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Mortgaged Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may shall be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms comprised of the Unsecured Debenture Indenture, without requiring holders highest ranked Mortgage-Eligible Assets from the Pledged Collateral List in effect at the time of the Unsecured Debentures delivery of the Mortgage in respect of each Mortgaged Property (it being understood that no Mortgage will be required to be equally and ratably secured in accordance with the terms delivered solely because of a re-ranking of the Unsecured Debenture IndentureListed Eligible Assets and/or the Pledged Collateral List), and (iii) each Mortgage required to be delivered pursuant to this Section 2.24 shall secure 50% of the undepreciated book value of the applicable Credit Tenant Lease Asset (reflecting any impairment taken by the applicable Collateral LLC but without adding back any depreciation before the most recent such impairment) at the time such Mortgage is entered in to. Following the date that is 90 days after the Closing Date, the Borrower shall cause Mortgages in compliance with this Section 2.24 to be delivered as necessary so that at all times the Mortgaged Properties shall comprise not less than 50% of the Borrowing Base Value of all Mortgage-Eligible Assets. Notwithstanding anything to the contrary in this Section 2.24, neither the Borrower nor any Grantor shall be required to deliver environmental reports, third-party reports, appraisals, surveys, title insurance policies, tract searches or legal opinions in respect of any Mortgaged Property or Mortgage thereon.
Appears in 2 contracts
Samples: Second Priority Credit Agreement (Istar Financial Inc), Second Priority Credit Agreement (Istar Financial Inc)
Mortgages. A. Tenant accepts this lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter placed upon the Premises, and to any renewals and extensions thereof. Tenant agrees that any mortgagee shall have the right at any time to subordinate its mortgage, deed of trust or other lien to this lease; provided, however, notwithstanding that this lease may be (aor made to be) Upon the occurrence superior to a mortgage, deed of a Mortgage Preparation Eventtrust or other lien, the Master Issuer mortgagee shall cause the preparation of fully executed Mortgages not be liable for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Eventprepaid rentals, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative)security deposits and claims accruing during Landlord's ownership; further provided that the Trustee provisions of a mortgage, deed of trust or other lien relative to the rights of the mortgagee with respect to proceeds arising from an eminent domain taking (including a voluntary conveyance by Landlord) and provisions relative to proceeds arising from insurance payable by reason of damage to or destruction of the Leased Premises shall be prior and superior to any contrary provisions contained in this instrument with respect to the payment or usage thereof. Landlord is hereby irrevocably vested with full power and authority to subordinate this lease to any mortgage, deed of trust or other lien hereafter placed upon the premises and Tenant agrees upon demand to execute such further instruments subordinating this lease as Landlord may request; provided, however, that Landlord shall, as a condition to this Lease, obtain from any such mortgagee a written agreement that the rights of Tenant shall remain in full force and effect during the term of this lease so long as Tenant shall continue to recognize and perform all of the covenants and conditions of this lease.
B. At any time when the holder of an outstanding mortgage, deed of trust or other lien covering Landlord's interest in the premises has given Tenant written notice of its interest in this lease, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or other lien shall have received written notice of such default and a reasonable time (not less than 30 days) shall thereafter have lapsed without the default having been cured.
C. Tenant agrees that it will from time to time but no obligation more often than semi-annually, upon request by Landlord execute and deliver to record Landlord a Mortgage until the later of written statement addressed to Landlord (i) twenty (20) Business Days following delivery of or to a properly executed Mortgage to the Trustee party designated by Landlord), which statement shall identify Tenant and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which this lease, shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to certify that this lease is unmodified and in accordance with the Priority of Payments. For the avoidance of doubtfull force and effect (or if there have been modifications, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are validname is in full force and effect as so modified), bindingshall confirm that Landlord is not in default as to any obligations of Landlord under this lease (or if Landlord is in default, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor specifying any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensdefault), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) confirm Tenant's agreements contained above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureparagraph 19.
Appears in 2 contracts
Samples: Lease Agreement (Carlyle Golf Inc), Lease Agreement (Carlyle Golf Inc)
Mortgages. A. Owner shall be permitted to encumber the Hotel and/or the Site with any Mortgage, provided that such Mortgage meets all of the following requirements:
1. The proposed Mortgage is from an Institutional Lender and is on commercially reasonable terms and conditions;
2. As of the date of the proposed financing, the aggregate principal balance of all Mortgages encumbering the Hotel, including the proposed Mortgage, shall be no greater than the lesser of: (x) seventy percent (70%) of the fair market value of the Hotel; or (y) the dollar amount obtained by (a) Upon dividing the occurrence average annual Operating Profit for the twenty-six (26) most recent full Accounting Periods by the Coverage Ratio; then (b) multiplying the result of a Mortgage Preparation Eventclause (a) by the Capitalization Multiple; and
3. Owner, Manager and the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days holder of such Mortgage Preparation Eventshall have entered into a Subordination Agreement (to be recorded in the real property records in the jurisdiction where the Site is located) as further described in Section 8.03 below.
B. For purposes of this Section 8.02, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit fair market value of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee Hotel shall have no obligation to record a Mortgage until the later of be (i) twenty (20) Business Days following delivery of as set forth in any then current appraisal obtained or accepted by an Institutional Lender in connection with a properly executed Mortgage to the Trustee and Qualified Mortgage, or (ii) in the Trustee’s Actual Knowledge absence of such an appraisal, as reasonably determined by Owner and Manager. If Owner and Manager do not agree on such fair market value, either party may request that a Rapid Amortization Event. The Trustee may engage a third-party service provider licensed appraiser (which shall be reasonably acceptable to both parties) shall determine the Control Partyfair market value of the Hotel. If the parties cannot agree on an appraiser within thirty (30) days after the date on which either party notifies the other that it wishes to assist have the fair market value of the Hotel be determined by an appraisal, either party may elect to have such fair market value determined by the Expert pursuant to Section 11.21. Any Mortgage which meets all of the requirements set forth in delivering such Mortgages this Section 8.02 shall be referred to in this Agreement as a “Qualified Mortgage.”
C. In the applicable Governmental Authority event Manager receives any reasonable request for information on the Hotel from the holder of any Qualified Mortgage (and the Trustee shall pay all Mortgage Recordation Fees including any Affiliate of Manager providing any financing in connection with the Hotel), Owner agrees that Manager is hereby authorized to provide or distribute such recordation. The Trustee information directly to such lender.
D. Without altering any of Manager’s rights under this Agreement, and provided that none of Manager’s rights under this Agreement are adversely affected, Manager shall be reimbursed by the Master Issuer for any cooperate, at no cost to Manager, in good faith with Owner and all reasonable costs and expenses its Mortgagee in connection with such any Qualified Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to the negotiation and execution of any other agreements customarily required by Institutional Lenders in accordance connection with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Qualified Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Management Agreement (Apple Reit Six Inc), Management Agreement (Apple Reit Six Inc)
Mortgages. Each Franchise Entity shall, within ninety (a90) Upon days following the occurrence of a Mortgage Preparation Event with respect to any New Owned Real Property acquired by such Franchise Entity (and to the extent necessary, any Contributed Owned Real Property), execute and deliver to the Trustee, for the benefit of the Secured Parties, a mortgage or deed of trust in substantially the form attached as Exhibit L hereto or otherwise in form reasonably acceptable to the Control Party and the Trustee and suitable for recordation under applicable law with respect to each such Contributed Owned Real Property and each such New Owned Real Property, to be held in escrow by the Trustee or its agent for the benefit of the Secured Parties and recorded by the Trustee or its agent solely upon the occurrence of a Mortgage Recordation Event (subject to Section 3.1(c) hereof). The Trustee within five (5) Business Days of receiving direction of the Control Party will be required to deliver the Mortgages to the applicable recording office for recordation in the event that any Rapid Amortization Event occurs (or is continuing) on or following the 120th day following the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of unless such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting Party (at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such the Mortgages to the applicable Governmental Authority and with respect to such Mortgage for recordation. In addition, within twenty (20) Business Days of a Mortgage Recordation Event, the Franchise Entities shall exercise commercially reasonable efforts to deliver to the Trustee shall pay all Mortgage Recordation Fees (i) updates to the Closing Title Reports, (ii) lender’s Title Policies for those properties for which Closing Title Reports were previously obtained, and (iii) local counsel enforceability opinions with respect to the Mortgages delivered on properties in connection with such recordationthose states where a material amount of Contributed Owned Real Property and New Owned Real Property is located, as reasonably determined by the Securitization Entities. The Trustee shall be reimbursed by the Master Issuer Co-Issuers for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees Fees, all premiums, fees and all other costs (including reasonable attorney’s fees) incurred in connection with delivery of the Title Policies and all fees and costs incurred in connection with local counsel enforceability opinions, pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties the Franchise Entities shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage or cause the issuance of any Title Policy or local counsel enforceability opinion until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative)Event. Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens)on, and security interests in, Wendy’s Propertiesthe Franchise Entities’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Propertiesthe applicable Franchise Entity, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Base Indenture (Dine Brands Global, Inc.), Base Indenture (Dine Brands Global, Inc.)
Mortgages. (a) Upon This Lease and Tenant's interest hereunder shall have priority over, and be senior to, the occurrence lien of any Mortgage made by Landlord after the date of this Lease. However, if at any time or from time to time during the Term, a Mortgagee or prospective Mortgagee requests that this Lease be subject and subordinate to its Mortgage, this Lease and Tenant's interest hereunder shall be subject and subordinate to the lien of such Mortgage and to all renewals, modifications, replacements consolidations and extensions thereof and to any and all advances made thereunder and the interest thereon. Tenant agrees that, within 10 days after receipt of a written request therefor from Landlord, it will, from time to time, execute and deliver any instrument or other document required by any such Mortgagee to subordinate this Lease and its interest in the Leased Premises to the lien of such Mortgage. If, at any time or from time to time during the Term, a Mortgagee of a Mortgage Preparation Eventmade prior to the date of this Lease shall request that this Lease have priority over the lien of such Mortgage, and if Landlord consents thereto, this Lease shall have priority over the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days lien of such Mortgage Preparation Eventand all renewals, modifications, replacements, consolidations and extensions thereof and all advances made thereunder and the Master Issuer shall deliver such Mortgages to the Trusteeinterest thereon, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence and Tenant shall, within 10 days after receipt of a Mortgage Recordation Eventwritten request therefor from Landlord, the Trustee shallexecute, at the direction of the Control Party, acknowledge and deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs documents and expenses in connection with such Mortgage Recordation Eventinstruments confirming the priority of this Lease. In any event, including all Mortgage Recordation Fees pursuant to and in accordance with however, if this Lease shall have priority over the Priority lien of Payments. For the avoidance of doubta Mortgage, Wendy’s Properties this Lease shall not be required tobecome subject or subordinate to the lien of any subordinate Mortgage, and Tenant shall not execute any subordination documents or instruments for any subordinate Mortgagee, without the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction written consent of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeprior Mortgagee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Deed of Lease (Icf Kaiser International Inc), Deed of Lease (Icf Kaiser International Inc)
Mortgages. (a) Upon The Borrower will, or will cause the occurrence applicable Loan Party to, provide the Collateral Agent with a Mortgage with respect to any Material Real Property that is the subject of a Mortgage Preparation Eventnotice delivered pursuant to Section 6.11(2)(a), the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets within one hundred and twenty (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90120) days of the acquisition, formation or designation of such Mortgage Preparation EventMaterial Subsidiary or the acquisition of such Material Real Property (or such longer period as the Collateral Agent may agree in its sole discretion), together with:
(i) evidence that counterparts of the Master Issuer shall deliver such Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create, except to the Trusteeextent otherwise provided hereunder, including subject to be held Liens permitted by Section 7.01, a valid and subsisting perfected Lien on such Material Real Property in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages manner reasonably satisfactory to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and Collateral Agent;
(ii) with respect to any Mortgages on real property located in the TrusteeU.S., fully paid American Land Title Association Lender’s Actual Knowledge of Extended Coverage title insurance policies or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements available in the applicable jurisdiction without surveys (it being agreed that zoning reports from a Rapid Amortization Event. The Trustee may engage a third-party service provider (which nationally recognized zoning company shall be acceptable in lieu of zoning endorsements to title policies in any jurisdiction where there is a material difference in the cost of zoning reports and zoning endorsements) and in amounts, reasonably acceptable to the Control PartyCollateral Agent (not to exceed the fair market value of the real properties covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, subject only to Liens permitted by Section 7.01 or such other Liens reasonably satisfactory to the Collateral Agent that do not have a material adverse impact on the use or value of the Mortgaged Properties, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably request and is available in the applicable jurisdiction;
(iii) customary Opinions of Counsel for the applicable Loan Parties in states in which such Material Real Properties are located, with respect to the enforceability and perfection of the Mortgage(s) and any related fixture filings and the due authorization, execution and delivery of the Mortgages, in form and substance reasonably satisfactory to the Collateral Agent;
(iv) with respect to any Mortgages on real property located in the U.S., American Land Title/American Congress on Surveying and Mapping surveys (or, if reasonably acceptable to the Collateral Agent, zip or express maps) for each Material Real Property or existing surveys together with no change affidavits, in each case certified to the Collateral Agent if deemed necessary by the Collateral Agent in its reasonable discretion, sufficient for the title insurance company issuing a Mortgage Policy to remove the standard survey exception and issue standard survey related endorsements and otherwise reasonably satisfactory to the Collateral Agent;
(v) with respect to any Mortgages on real property located in the U.S., a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Material Real Property containing improved land addressed to the Collateral Agent and otherwise in compliance with the Flood Insurance Laws, and if any such Material Real Property is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to assist in delivering such Mortgages be a special flood hazard area, the Borrower’s duly executed acknowledgement of receipt of written notification from the Collateral Agent about special flood hazard area status and flood disaster assistance and evidence that the Borrower or applicable Loan Party has obtained flood insurance reasonably satisfactory to the Collateral Agent that is in compliance with all applicable Governmental Authority requirements of the Flood Insurance Laws; and
(vi) as promptly as practicable after the reasonable request therefor by the Collateral Agent, environmental assessment reports and the Trustee shall pay all Mortgage Recordation Fees reliance letters (if any) that have been prepared in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventacquisition, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record designation or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation formation of any Mortgage, for the rejection of a Mortgage by any recording office Material Subsidiary or for the failure acquisition of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Material Real Property; provided that there shall be no obligation to deliver to the Collateral Agent any environmental assessment report whose disclosure to the Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries, where, despite the commercially reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained. Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any real property located in the U.S. acquired by any Loan Party after the Closing Date unless and until (a) if such closing shall real property is not occurlocated in a flood zone, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
date that is five (5) Business Days or (b) Notwithstanding if such real property is located in a flood zone, the date that is fourteen (14) days, in each case, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor and (ii) if such real property is located in a “special flood hazard area”, the documents referred to in clause (2)(b)(v) of this Section 8.37(a) above 6.11. The Collateral Agent may grant extensions of time for the creation and perfection of Mortgage Liens in or anything else contained the obtaining of title insurance, legal opinions or other deliverables with respect to particular Material Real Property where it determines that such action cannot be accomplished by the time periods set forth in this Base Indenture Agreement or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureCollateral Documents.
Appears in 2 contracts
Samples: Credit Agreement (Superior Industries International Inc), Credit Agreement (Superior Industries International Inc)
Mortgages. The Lease shall be subordinate to any deed of trust, mortgage, or other security instrument (aa "Mortgage"), and any ground lease, master lease, or primary lease (a "Primary Lease") Upon that now or hereafter covers any portion of the occurrence Premises and Project (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to as "Landlord's Mortgagee"), and to increases, renewals, modifications, consolidations, replacements, and extensions of same. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to the Lease by delivering written notice of such subordination to Tenant. The provisions of this paragraph shall be self- operative, and no further instrument shall be required to effect such subordination; however, Tenant shall, from time to time, within ten days after written request to do so by Landlord, execute any instruments that may be required by any Landlord's Mortgagee to evidence the subordination of the Lease to any such Mortgage or Primary Lease. If Tenant fails to execute the same within such ten-day period, Landlord may execute the same as attorney-in-fact for Tenant. Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, provided that the successor agrees to assume the obligations and liabilities of Landlord, and upon such party's request, Tenant shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been previously given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations under the Lease. Notwithstanding any such attornment or subordination of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages or Primary Lease to the TrusteeLease, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Landlord's Mortgagee shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation acts of any Mortgageprevious landlord, for the rejection of a Mortgage shall not be obligated to install any Tenant improvements, and shall not be bound by any recording office or for the failure amendment to which it did not consent in writing, nor to any payment of any Mortgage to create rent made more than one month in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeadvance.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 2 contracts
Samples: Net Lease (Ebaseone Corp), Net Lease (Ebaseone Corp)
Mortgages. (a) Grantee, and its successors, subtenants and assigns permitted hereunder shall have the right to mortgage and pledge its interest in this Agreement (a “Mortgage”) to a lender (a “Mortgagee”), in accordance with and subject to the terms, conditions, requirements and limitations of this Section 9. Grantor and Grantee expressly intend and agree that the provisions of this Section 9 and such other provisions of this Agreement which, by their terms, are for the benefit of a Mortgagee, are intended for the benefit of and enforceable by such Mortgagee and its respective nominees, designees, successors and assigns. Notwithstanding anything in this Agreement to the contrary, all Mortgages shall be expressly subordinate and subject to the terms, covenants and conditions of this Agreement, and at all times shall be inferior and subject to the prior right, title and interest of Grantor herein. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall the fee interest in the Easement Air Space be subordinate to any Mortgage.
(b) A notice of each Mortgage shall be delivered to the Grantor specifying the name and address of such Mortgagee to which notices shall be sent. Grantor shall be furnished a copy of each such recorded Mortgage within thirty (30) days of such mortgage being recorded.
(c) If Grantee, or Grantee’s successors or assigns, shall mortgage its rights under this Agreement, then so long as any such Mortgage shall remain unsatisfied of record and Grantee shall have properly delivered notice to Grantor in compliance with Section 9(b) hereof with respect to such Mortgagee, the following provisions shall apply:
i. Grantor, upon serving upon Grantee any notice of any default by Grantee hereunder (a “Grantee Default”) or any other notice under the provisions of this Agreement, shall also serve a copy of such notice upon Mortgagee, and no notice shall be deemed to have been duly given as to the Mortgagee unless and until a copy thereof has been so served upon the Mortgagee. Grantor’s furnishing a copy of such notice to Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Grantee, provided, that Grantor may not terminate this Agreement or exercise any remedies against Grantee without first giving Mortgagee notice and opportunity to cure as provided in this Agreement.
ii. Any Mortgagee, in case there shall be a Grantee Default under this Agreement, shall have the right to remedy such Grantee Default (or cause the same to be remedied) within thirty (30) days after notice to Mortgagee of such Grantee Default (which will be after expiration of all Grantee notice and cure periods), provided, however, that if such failure is of such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Grantee Default so long as (x) curative action reasonably satisfactory to Grantor is instituted within such period and diligently and continuously pursued to completion thereafter, and (y) periodic progress reports thereon are delivered to Grantor, and Grantor shall accept such performance by or at the instance of Mortgagee as if the same had been made by Grantee. Any provision of this Agreement to the contrary notwithstanding, no performance by or on behalf of a Mortgagee shall cause it to become a “mortgagee in possession” or otherwise cause it to be deemed to be in possession of the Easement Air Space or bound by or liable under this Agreement.
iii. The Grantor agrees that, in the event of a non-monetary Grantee Default which cannot be cured by the Mortgagee pursuant to paragraph (ii), above, without obtaining possession of the Easement Air Space, the Grantor will not terminate this Agreement without first giving to the Mortgagee reasonable time within which to obtain possession of the Easement Air Space, including possession by a receiver, or to institute and complete foreclosure proceedings or otherwise acquire Grantee’s interest under this Agreement with diligence and without unreasonable delay. The Grantor agrees that upon acquisition of Grantee’s interest under this Agreement by a Mortgagee and performance by the Mortgagee of all covenants and agreements of Grantee, except those which by their nature cannot be performed or cured by any person other than the then Grantee which has defaulted (“Incurable Defaults”), the Grantor’s right to terminate this Agreement shall be waived with respect to the matters which have been cured by the Mortgagee and with respect to the Incurable Defaults.
iv. Notwithstanding anything to the contrary set forth in this Section 9(c), Mortgagee shall have the right, but shall not be obligated, to remedy any Grantee Default under this Agreement. It shall be a condition precedent to any assignment or transfer of this Agreement by foreclosure of any Mortgagee, deed-in-lieu thereof or otherwise to any third-party (unrelated to Mortgagee or any entity or institution comprising Mortgagee) purchaser in any such foreclosure proceedings (any such transferee of the Agreement), that upon becoming the legal owner and holder of this Agreement shall execute an agreement pursuant to which such transferee agrees to assume all obligations of Grantee under this Agreement first arising from and after such foreclosure or deed-in-lieu thereof and shall be responsible to timely cure any then uncured continuing Grantee Default.
v. In the event of the termination of this Agreement prior to the expiration of its term, Grantor shall serve upon Mortgagee written notice that the Agreement has been terminated together with a statement of any and all sums which would at that time be due under this Agreement but for such termination, and of all other defaults, if any, under this Agreement then known to Grantor. Mortgagee shall thereupon have the option to obtain a new easement in accordance with and upon the following terms and conditions: Upon the occurrence written request of Mortgagee, delivered to Grantor within thirty (30) days after service of such notice that the Agreement has been terminated to Mortgagee, Grantor shall enter into a Mortgage Preparation Eventnew easement for the Easement Air Space with Mortgagee or its designee as follows: Such new easement shall be entered into within thirty (30) days of such Mortgagee’s written request at the sole cost of Mortgagee or such designee, shall be effective as of the Master Issuer date of termination of this Agreement, and shall cause be for the preparation remainder of fully executed Mortgages for recordation against the Real Estate Assets term of this Agreement and upon all the terms, covenants and conditions hereof. Such new easement shall require the grantee to perform any unfulfilled obligation of Grantee under this Agreement which is reasonably susceptible of being performed by such grantee.
vi. If this Agreement is (excluding the Contributed Restaurant Thirda) rejected by a trustee or debtor-Party Leases). Within in-possession in any bankruptcy or insolvency proceeding involving Grantee (such proceeding, a “Bankruptcy Proceeding”) or (b) terminated as a result of any Bankruptcy Proceeding and, if within ninety (90) days after such rejection or termination, the Mortgagee or its nominee(s) shall request and certify in writing to Grantor that it intends to perform the obligations of Grantee as and to the extent required hereunder, Grantor shall execute and deliver to the Mortgagee or such nominee(s) such new easement which shall be for the balance of the remaining term under the original Agreement before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Agreement (except for any requirements which have been fulfilled by Grantee prior to such rejection or termination). The new easement shall be executed by Grantor and the Mortgagee or its nominee(s) within ninety (90) days after the receipt by Grantor of such Mortgage Preparation Eventwritten notice. References herein as to this “Agreement” shall be deemed also to refer to such new easement.
vii. Any notice or other communication which Grantor shall desire or is required to give to or serve upon Mortgagee shall be in writing and shall be served by either
(A) certified mail, or (B) overnight delivery service, including without limitation, FedEx or UPS, in each case addressed to Mortgagee at its address provided to Grantor.
(d) The Grantor, acting by and through the Master Issuer shall deliver such Mortgages to the TrusteeCity Representative, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction request of the Control PartyGrantee made from time to time and at any time, deliver enter into a lender’s rights agreement with any Mortgagee identified by the Mortgages within Grantee, which lender’s rights agreement shall be in a form and substance that is reasonably acceptable to Grantor and consistent with the terms and provisions contained in this Section 9. Within twenty (20) Business Days following receipt days of the properly executed Mortgages Grantee’s request for a lender’s rights agreement pursuant to the applicable recording office for recordation (unless such recordation requirement is waived by provisions of this Section 9, time being of the Control Partyessence, the Grantor, acting at by and through the direction of the Controlling Class City Representative); provided that the Trustee , shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage execute and deliver to the Trustee and (ii) Grantee such a lender’s rights agreement benefiting the Trusteeidentified Mortgagee, which executed lender’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which rights agreement shall be in a form and substance that are reasonably acceptable to the Control Party) to assist in delivering Grantor and such Mortgages to the applicable Governmental Authority Mortgagee and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Propertiesis consistent with, and at the direction option of the Managersuch Mortgagee incorporates, the Trustee shall execute terms and deliver a release provisions of mortgage this Section 9. Grantee agrees to be held pay for the Grantor’s reasonable attorneys’ fees expended in escrow pending a closing of a sale of connection with any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteelender’s rights agreement.
(be) Notwithstanding Section 8.37(aGrantor agrees (i) above or anything else contained to negotiate in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer good faith and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures execute modifications to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.this
Appears in 1 contract
Samples: Air Rights Easement Agreement
Mortgages. 21.1 This Lease and all of Tenant’s rights hereunder shall be subject and subordinate at all times to any deed of trust, mortgage or ground lease which may now or hereafter affect the Premises, and to all renewals, modifications, consolidations, replacements and extensions thereof (a) Upon the occurrence of a Mortgage Preparation Eventcollectively, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases“Security Documents”). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages Subject to the Trusteeterms of this Paragraph 21.1, to such subordination shall be held effective without the necessity of the execution by Tenant of any additional document for the benefit purpose of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c))evidencing or effecting such subordination. Upon the occurrence of a Mortgage Recordation EventIf any such Security Document is foreclosed or terminated, the Trustee shallas applicable, at the direction election of the Control PartyLandlord’s successor in interest, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the TrusteeTenant agrees, for the benefit of such successor in interest, to attorn to such successor in interest and become its tenant on the Secured Parties, legal, valid terms and enforceable first priority Liens on (subject to Permitted Liens)conditions of this Lease for the remainder of the Term, and security interests inif required, Wendy’s Properties’ right, title and to enter into a new lease with such successor in interest in the form of this Lease; provided, however, that Tenant’s agreement hereunder to (a) subordinate its interest hereunder to the lien of any Security Document first becoming effective after the Effective Date (a “Future Security Document”) and (B) to each Contributed Owned Real Property attorn to and each New Owned Real Propertyrecognize as the landlord hereunder, the Holder of such Future Security Document is conditioned upon the delivery to Tenant of a subordination, non-disturbance, and attornment agreement (each, an “SNDAA”) in favor Tenant from the Proceeds thereofHolder of any such Future Security Document (on each such Holder’s standard form of SNDAA (or in any other commercially reasonable form)). Upon Landlord shall have the right to subordinate or cause to be subordinated any such Security Document to this Lease and in such case, in the event of the termination or transfer of Landlord’s estate or interest in the Premises by reason of any termination or foreclosure of any Security Document, Tenant shall, notwithstanding such subordination, attorn to and become the Tenant of the successor in interest to Landlord at the option of such successor in interest. Tenant’s agreement to attorn shall survive the termination of this Lease. At the request of WendyLandlord, the holder (“Holder”) of any Security Document, Tenant shall execute, acknowledge and deliver promptly in recordable form any instrument or SNDAA that Landlord or such Holder may request. In addition, at the request of Landlord or any Holder of any Security Document, Tenant shall execute, acknowledge and deliver promptly in recordable form any instrument that Landlord or such holder may request to make this Lease superior to such Security Document. Tenant’s Propertiesfailure to execute each instrument, release or document within fifteen (15) business days after written demand shall constitute an default by Tenant hereunder, and at the direction following expiration of the Managerapplicable notice and cure period, the Trustee shall execute and deliver a release be deemed an Event of mortgage Default hereunder.
21.2 Tenant agrees to be held in escrow pending a closing of a sale give each Holder of any Contributed Owned Real Property or Security Document, in a manner required under Paragraph 22.21, below, a copy of any New Owned Real Property; notice of default served upon the Landlord by Tenant, provided that if prior to such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained notice Tenant has been notified in this Base Indenture or any other Related Document, the aggregate amount of all Obligations writing of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notaddress of such Holder (hereafter, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturea “Notified Party”).
Appears in 1 contract
Samples: Standard Industrial Lease Agreement (Lifetime Brands, Inc)
Mortgages. This Lease and the Leasehold Estate shall have priority over, and be senior to, the lien of any Mortgage made by Landlord after the date of this Lease. However, if at any time or from time to time during the Term and any renewal periods, a Mortgagee or prospective Mortgagee requests that this Lease be sub- ject and subordinate to its Mortgage, and if (x) the Mortgagee has provided to Tenant a non-disturbance agreement consistent with paragraph (a) Upon above, and (y) Landlord consents to such subordination, this Lease and the occurrence Leasehold Estate shall be subject and subordinate to the lien of such Mortgage and to all renewals' modifications, replacements, consolidations and extensions thereof and to any and all advances made thereunder and interest thereon. Tenant agrees that, within 10 days after receipt of a request therefor from Landlord, it will, from time to time, execute and deliver any instrument or other document required by any such Mortgagee to subordinate this Lease and the Leasehold Estate to the lien of such Mortgage. If, at any time or from time to time during the Term, a Mortgagee of a Mortgage Preparation Eventmade prior to the date of this Lease shall request that this Lease have priority over the lien of such Mortgage, and if Landlord consents thereto, this Lease and the Master Issuer Leasehold Estate shall cause have priority over the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days lien of such Mortgage Preparation Eventand all renewals, the Master Issuer shall deliver such Mortgages to the Trusteemodifications, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence replacements, consolidations and extensions thereof and all advances made thereunder and interest thereon, and Tenant shall, within 10 days after receipt of a Mortgage Recordation Eventrequest therefor from Landlord, the Trustee shallexecute, at the direction of the Control Party, acknowledge and deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs documents and expenses in connection with such Mortgage Recordation Eventinstruments confirming the priority of this Lease. In any event, including all Mortgage Recordation Fees pursuant to and in accordance with however, if this Lease shall have priority over the Priority lien of Payments. For the avoidance of doubta first Mortgage, Wendy’s Properties this Lease shall not be required tobecome subject or subordinate to the lien of any subordinate Mortgage, and Tenant shall not execute any subordination documents or instruments for any subordinate Mortgagee, without the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction written consent of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeMortgagee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon 10.2.1 Although the occurrence Lessee may Mortgage its interest in this Lease without the consent of the Lessor and the Locatee, no Mortgage is valid until the proposed Mortgagee has entered into a Mortgage Acknowledgement Agreement, substantially in the form attached as Schedule D, with any changes as may be agreed to by the Parties and the Mortgagee.
10.2.2 The Lessee will ensure that any Mortgage does not conflict with the terms of this Lease and, by complying with such Mortgage, the Lessee will not be in default of this Lease.
10.2.3 If the Lessee defaults on an obligation in a Mortgage, then the Lessor or the Locatee may cure the default under the Mortgage on the Lessee’s behalf and all expenses incurred by such Party to cure such default are payable by the Lessee as Additional Rent or Locatee Fees, as the case may be.
10.2.4 If the Lessee defaults on an obligation in this Lease, then:
10.2.4.1 any default notice issued by a Party under section 11 will not be valid for any purpose unless and until a copy of such notice is also provided to all Mortgagees of valid Mortgages; and
10.2.4.2 a Mortgagee of a valid Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record cure or cause to be recorded any Mortgage until the occurrence cured a default of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian this Lease on behalf of the Trustee shall Lessee within the time period specified in this Lease or in the applicable default notice, whichever is greater, from the date of delivery of the notice to the Mortgagee.
10.2.5 A Mortgagee may exercise all of its rights and remedies with respect to this Lease and the Lessee’s leasehold interest in the Premises, including the right to sell or assign the Lease, on the condition that the sale or assignment will not be valid without the consent of each of the Lessor and the Locatee and until the proposed assignee has entered into an Assignment Consent Agreement, substantially in the form attached as Schedule C, with any changes as may be agreed to by the Parties and the assignee.
10.2.6 If the Lessee defaults on an obligation in this Lease, then:
10.2.6.1 any default notice issued by a Party under section 11 will not be valid for any duty purpose unless and until a copy of such notice is also provided to all Mortgagees of valid Mortgages;
10.2.6.2 a Mortgagee of a valid Mortgage may cure or obligation cause to inspectbe cured a default of this Lease on behalf of the Lessee within the time period specified in this Lease or in the applicable default notice, review whichever is greater, from the date of delivery of the notice to the Mortgagee; and
10.2.6.3 if the Mortgagee notifies each of the Lessor and the Locatee within the cure period that the Mortgagee has taken or examine intends to take formal proceedings to enforce its Mortgage and protect its position, then:
10.2.6.3.1 the Mortgagee will have sufficient time to pursue such proceedings to their conclusion, acting expeditiously, to enforce its Mortgage and protect its position;
10.2.6.3.2 once such proceedings are commenced, the Lessor and the Locatee will not exercise any of their respective remedies (except for their respective rights to cure in accordance with sections 11.1.3 and 11.3.3), on the condition that the Mortgagee actively prosecutes such proceedings to their conclusion; and
10.2.6.3.3 if, upon the conclusion of such proceedings, the rights of the Lessee have been released to the Mortgagee or foreclosed or sold, then, on the condition that all previous defaults under this Lease that are capable of being cured have been fully cured, the Mortgagee or, subject to section 10.2.4.2, the purchaser will become the Lessee.
10.2.7 Notwithstanding anything contained in this Lease, all obligations to construct Improvements in this Lease will not apply to a Mortgagee of a valid Mortgage during a period in which the Mortgagee is exercising its rights under section 10.2.6.3.
10.2.8 A Mortgagee may exercise all of its rights and remedies with respect to this Lease and the Lessee’s leasehold interest in the Premises, including the right to sell or assign the Lease or to appoint a receiver of the Lessee or a receiver of the Premises (either by appointment under a security instrument or by an appointment by a court order) and take possession and administer the Premises (including with respect to the collection of rents and realizing any other rights or benefits of the Lessee in respect of the Premises), on the condition that, if the Mortgagee exercises any such Mortgages power of sale or to determine that assignment, then the same are validsale or assignment will not be valid without the consent of each of the Lessor and the Locatee and until the proposed assignee has entered into an Assignment Consent Agreement, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays substantially in the recordation form attached as Schedule C, with any changes as may be agreed to by the Parties and the assignee.
10.2.9 The Lessee will not surrender any part of any Mortgage, for this Lease or the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real PropertyPremises, and the Proceeds thereof. Upon Lessor and the request Locatee will not accept any such surrender, without the prior written consent of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing each Mortgagee of a sale valid Mortgage.
10.2.10 Notwithstanding any other provisions of this Lease, a Mortgagee will not be responsible for the Lessee’s obligations in this Lease, including any Contributed Owned Real Property requirement to take out or maintain insurance or any New Owned Real Property; provided that if such closing shall not occurrequirement to indemnify, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer unless and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.until either:
Appears in 1 contract
Samples: Lease Agreement
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a "Mortgage") and any ground lease, master lease, or primary lease (a "Primary Lease") that now or hereafter covers any portion of the occurrence Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee") and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of a Mortgage Preparation Eventthis Section 21(a) shall be self-operative, and no further instrument shall be required to effect such subordination; however, Landlord shall deliver to Tenant, and Tenant shall execute from time to time within ten days after delivery thereof to Tenant, an instrument from each Landlord's Mortgagee evidencing the Master Issuer shall cause the preparation subordination of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of this Lease to any such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider or Primary Lease (which instrument shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all include a commercially reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create non-disturbance provision in favor of the Trustee, for the benefit of the Secured Parties, legal, valid Tenant and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeon Landlord's Mortgagee's standard form).
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be bound by any amendment to which it did not consent in writing nor any payment of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Mortgages. Within 90 days (or within such longer period as agreed thereto by the Administrative Agent, in its sole discretion, but in any event no later than within 150 days) after the Restatement Effective Date, the Administrative Agent shall have received the following documents with respect to the Scheduled Mortgaged Properties:
(a) Upon the occurrence of The Administrative Agent shall have received a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and respect to each Contributed Owned Real Property and each New Owned Real Scheduled Mortgaged Property, executed and the Proceeds thereof. Upon the request delivered by a duly authorized officer of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeeach party thereto.
(b) Notwithstanding The Administrative Agent shall have received, and the title insurance company issuing the policy referred to in clause (c) of this Section 8.37(a7.20 (the “Title Insurance Company”) shall have received either (i) maps or plats of an as-built survey (each a “Survey”) of the sites of the Scheduled Mortgaged Properties certified to the Collateral Agent and the Title Insurance Company in a manner satisfactory to them, dated a date reasonably satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, or (ii) in the absence of a Survey for any Scheduled Mortgaged Property, the title insurance policy delivered pursuant to clause (c) of this Section 7.20 shall not contain a general survey exception and shall contain, to the extent available in the particular jurisdiction and applicable to the particular property, a survey endorsement, an access endorsement, a contiguity endorsement, and a comprehensive endorsement; provided, that the Borrowers shall not be in default of this clause (b) of this Section 7.20 by reason of failing to satisfy subclauses (i) or (ii) above in respect of any one or anything else contained more Scheduled Mortgaged Properties if, in this Base Indenture or any other Related Documentsuch event, the aggregate Borrower complies with the provisions of Section 7.11(f)(iii) with respect to such Scheduled Mortgaged Properties.
(c) The Collateral Agent shall have received in respect of each Scheduled Mortgaged Property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance, in each case covering such Scheduled Mortgaged Property in an amount at least equal to 110% of the Real Estate Fair Value of such Scheduled Mortgaged Property (or such other amount as shall be reasonably specified by the Collateral Agent) and otherwise in form and substance reasonably satisfactory to the Collateral Agent. Each such policy shall include such title endorsements (excluding, with respect to any Scheduled Mortgaged Property, the title endorsements referenced in subclause (ii) of Section 7.20(b) in the event that Section 7.11(f)(iii) is applicable to such Scheduled Mortgaged Property) as may be reasonably requested by the Collateral Agent, provided, however, that (1) for any jurisdiction wherein a zoning endorsement is unavailable or the cost of the issuance of the zoning endorsement for the applicable Scheduled Mortgaged Property is calculated as a percentage of the premium for the applicable title insurance policy, in lieu of such zoning endorsement, the applicable New Entity shall use commercially reasonable efforts to deliver a zoning compliance report or a letter from the applicable municipality which demonstrates that the current use of such Scheduled Mortgaged Property is in compliance with applicable zoning requirements, and (2) in no event shall the New Entity be required to obtain a new Survey in order to procure the issuance of a zoning endorsement. The Administrative Agent shall have received evidence reasonably satisfactory to it that all premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid.
(d) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Scheduled Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by each relevant Loan Party relating thereto);
(e) With respect to each Scheduled Mortgaged Property which is located in a “special flood hazard area” (A) a policy of flood insurance that (1) covers any parcel of improved Real Property that is encumbered by any Mortgage (2) is written in an amount not less than the outstanding principal amount of all Obligations the Indebtedness secured by such Mortgage that is reasonably allocable to such Real Property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, and (3) has a term ending not later than the maturity of the Master Issuer Indebtedness secured by such Mortgage and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) confirmation that may the New Entity has received the notice required pursuant to the Flood Insurance Laws.
(f) The Collateral Agent shall have received legal opinions with respect to each Mortgage, which opinions shall be secured by Debenture Restricted Assets under in form and substance, and from counsel, reasonably satisfactory to the Unsecured Debenture IndentureCollateral Agent.
(g) The Administrative Agent shall have received a copy of all recorded documents referred to, determined or listed as exceptions to title in, the title policy or policies referred to in accordance with Section 7.20(c) and a copy of all other material documents affecting the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureScheduled Mortgaged Properties.
Appears in 1 contract
Mortgages. (a) Upon the occurrence This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a Mortgage Preparation Event"Mortgage") and any ground lease, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets master lease, or primary lease (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90a "Primary Lease") days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit that now or hereafter covers any portion of the Secured Parties Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as ("Landlord's Mortgagee"), and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of this Section 20 shall be conditioned on the Landlord providing Tenant with a written nondisturbance agreement in recordable form from each person or entity ("Mortgagee") holding a mortgage, deed of trust or trust deed, ground lease or other lien now of record or recorded after the date of this Lease affecting Landlord's interest in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c))Premises or the Property. Upon Such non-disturbance agreement shall contain the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee provisions and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be in form reasonably acceptable to Landlord, Landlord's Mortgagee and Tenant: (1) so long as Tenant shall not be in default of its material obligations under this Lease, such Mortgagee shall recognize this Lease and each of Tenant's rights hereunder and shall not disaffirm the Control Party) to assist in delivering such Mortgages to Lease even if Mortgagee shall foreclose the applicable Governmental Authority and Mortgage or the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee Premises shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees sold pursuant to a foreclosure sale, or take a deed in lieu of such foreclosure sale; (2) Tenant shall be entitled to use and occupy the Premises and use the Common Areas in accordance with the Priority provisions of Payments. For the avoidance Lease; (3) Mortgagee will make insurance proceeds and condemnation awards available for restoration and repair of doubt, Wendy’s Properties the Property and Premises subject to restrictions contained in debt instruments; (4) Tenant's possession of the Premises shall not be required todisturbed by Mortgagee, its successors or assigns; and (5) the Trustee may notLease shall be subordinate to any debt instruments obtained now or in the future by Landlord subject, record or cause again to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representativethis Section 20.(a). Neither Tenant shall from time to time, within twenty days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the Trustee nor any custodian on behalf subordination of the Trustee shall be under any duty or obligation this Lease to inspect, review or examine any such Mortgages Mortgage or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteePrimary Lease.
(b) Notwithstanding Section 8.37(a) above Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure power of sale, termination of lease, or anything else contained otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in this Base Indenture or reasonable detail to any other Related DocumentLandlord's Mortgagee whose address has been given to Tenant, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures affording such Landlord's Mortgagee a reasonable opportunity to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureperform Landlord's obligations hereunder.
Appears in 1 contract
Mortgages. (a) Upon Notwithstanding anything contained in this Lease to the occurrence of contrary, Tenant is hereby given the right, without Landlord’s prior consent, to obtain a Mortgage Preparation Eventloan or loans (and to extend, renew, refinance or replace any such loan or loans and/or to negotiate and obtain a new loan or loans) secured by a mortgage on Tenant’s interest in the Premises, the Master Issuer building and improvements on the Premises, or any part thereof or property therein, and any sublease, under one or more mortgage(s) (“Mortgage”) and to assign this Lease and any sublease as collateral security for such mortgages, upon the condition that all rights acquired under such mortgages shall cause be subject to each and all of the preparation covenants, conditions and restrictions set forth in this Lease, and to all rights and interests of fully executed Mortgages for recordation against Landlord herein, none of which covenants, conditions or restrictions is or shall be waived by Landlord by reason of the Real Estate Assets right given to so mortgage such interest in this Lease, except as may be expressly provided in this Section 10.
(excluding b) If Tenant shall mortgage this leasehold pursuant to the Contributed Restaurant Third-Party Leasesprovisions hereof, and if the holder(s) of any such mortgage(s) shall send to Landlord a true copy thereof, together with written notice specifying the name and address of the mortgagee(s) and the pertinent recording data with respect to such mortgage(s). Within ninety (90, Landlord agrees that so long as any such leasehold mortgage(s) days of such Mortgage Preparation Eventshall remain unsatisfied, the Master Issuer following provisions shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of apply:
(i) twenty (20) Business Days following delivery There shall be no cancellation, surrender or modification of a properly executed Mortgage to this Lease by joint action of Landlord and Tenant without the Trustee and prior consent in writing of the leasehold mortgagee(s);
(ii) Landlord shall, upon serving Tenant with any notice of default, simultaneously serve a copy of such notice upon the Trustee’s Actual Knowledge of a Rapid Amortization EventMortgagee. The Trustee may engage a third-party Mortgagee shall thereupon have the same period, after service provider (which shall be reasonably acceptable of such notice upon it, as is allowed to the Control Party) Tenant, to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record remedy or cause to be recorded remedied the defaults complained of, and Landlord shall accept such performance by or at the instigation of the Mortgagee in response to any such notice of default as if the same had been performed by Tenant;
(iii) Anything herein contained notwithstanding, while such Mortgage remains unsatisfied, or until the occurrence written notice of a Mortgage Recordation Event that has not been waived satisfaction is given by the Control Party holder(s) thereof to Landlord, if any default shall occur, which, pursuant to any provision of this Lease, entitles Landlord to terminate this Lease, and if before the expiration of fifteen (15) business days from the date of service of notice of termination upon such leasehold mortgagee(s), such Mortgagee shall have notified Landlord of its desire to nullify such notice and shall have paid to Landlord all rent and other payments herein provided for and then in default, and shall have complied or commenced the work of complying with all of the other requirements of this Lease except as provided in subparagraph (vii) of this Section 10(b), if any are then in default, and shall prosecute the same to completion with reasonable diligence, then in such event Landlord shall not be entitled to terminate this Lease and any notice of termination theretofore given shall be void and of no effect.
(iv) If Landlord shall elect to terminate this Lease by reason of default of Tenant, the Mortgagee shall not only have the right to nullify any notice of termination by curing such default as aforesaid, but shall also have the right to postpone and extend the date for the termination of this Lease as specified by Landlord in its notice of termination for a period of not more than six (6) months, provided that such leasehold mortgagee(s) shall cure or cause to be cured any then-existing monetary defaults and meanwhile pay the rent and all other charges and comply with and perform all of the other terms, conditions and provisions of this Lease on Tenant’s part to be complied with and performed, and provided further that the Mortgagee shall forthwith take steps to acquire or sell Tenant’s interest in this Lease by foreclosure of the Mortgage or otherwise and shall prosecute the same to completion with due diligence. If at the direction end of said six (6) month period the Mortgagee shall be actively engaged in steps to acquire or sell Tenant’s interest herein, the time for such Mortgagee to comply with the provisions of this Section 10(b) shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity; provided that during such period the Mortgagee shall continue to pay the rent and other charges and perform all other terms, conditions and provisions of this Lease on Tenant’s part to be complied with and performed; provided, further, that the total period extended to the Mortgagee under this subparagraph (iv) shall not exceed twelve (12) months.
(v) Landlord agrees that the name of the Controlling Class Representative). Neither Mortgagee may be added as a loss payee to any and all insurance policies required to be carried by Tenant hereunder on condition that the Trustee nor any custodian on behalf insurance proceeds are to be applied in the manner specified in this Lease and that the Mortgage or collateral documents shall so provide.
(vi) Landlord agrees that in the event of termination of this Lease by reason of the Trustee bankruptcy or insolvency of Tenant, Landlord will enter into a new lease of the Premises with the Mortgagee or its nominee(s) or its assignee(s) for the remainder of the Term effective as of the date of such termination, at the rent and upon the terms, provisions, covenants and agreements as contained herein and subject only to the same conditions of title as this Lease is subject to on the date of execution hereof together with any exceptions to title created by or at the behest of Tenant, and to the rights, if any, of the parties then in possession of any part of the Premises, provided Landlord and Landlord’s Mortgagee approves of the financial credit standing of the new tenant, which approval shall be in its sole discretion and provided, further:
(A) said Mortgagee or its nominee(s) or assignee(s) shall make written request upon Landlord for such new lease within thirty (30) days after the date of such termination and such written request shall be accompanied by payment to Landlord of all sums due to Landlord under this Lease;
(B) said Mortgagee or its nominee(s) or assignee(s) shall pay to Landlord at the time of the execution and delivery of such new lease, any duty and all sums which would at the time of the execution and delivery thereof be due pursuant to this Lease but for such termination, and in addition thereto, any expenses, including reasonable attorney’s fees, which Landlord shall have incurred by reason of such default;
(C) said Mortgagee or obligation its nominee(s) or assignee(s) shall perform and observe all covenants herein contained on Tenant’s part to inspectbe performed and shall further remedy any other condition which Tenant under the terminated Lease was obligated to perform under the terms of this Lease; and upon execution and delivery of such new lease and any subleases which may have theretofore been assigned and transferred by Tenant to Landlord, review or examine any such Mortgages or as security under this Lease, shall thereupon be deemed to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate be held by Landlord as security for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation performance of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor all of the Trustee, for the benefit obligations of the Secured Parties, legal, valid and enforceable first priority Liens on tenant under the new lease;
(D) Landlord shall not warrant possession of the Premises to the tenant under the new lease;
(E) such new lease shall be expressly made subject to Permitted Liens)the rights, and security interests inif any, Wendy’s Properties’ of Tenant under the terminated lease;
(F) the tenant under such new lease shall have the right, title and interest in and to each Contributed Owned Real Property the buildings and each New Owned Real Property, and improvements on the Proceeds Premises as Tenant had under the terminated lease; and
(G) said Mortgagee or its nominee(s) or assignee(s) shall bear the cost of recording such new lease or short form thereof if it or Landlord desires recordation thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(bvii) Notwithstanding Section 8.37(aNothing herein contained shall require the Mortgagee or its nominee(s) or assignee(s) to cure any default of Tenant under this Lease unless such Mortgagee shall choose to do so under subparagraph (ii) above or anything else contained shall choose to nullify any notice of termination from Landlord pursuant to subparagraphs (iii) or (iv), or if such Mortgagee elects that Landlord enter into a new lease for the Premises pursuant to the provisions of subparagraph (v) above.
(viii) The proceeds from any insurance policies relating to the Premises or arising from a condemnation of the Premises are to be distributed pursuant to the provisions of this Lease; and
(c) Landlord shall, upon request, execute, acknowledge and deliver to each Mortgagee, an agreement prepared at the sole cost and expense of Tenant, in form satisfactory to such Mortgagee, between Landlord, Tenant and Mortgagee, agreeing to all of the provisions of this Section 10. The term “mortgage,” whenever used in this Base Indenture or any other Related Document, Section 10 shall include whatever security instruments are used in the aggregate amount of all Obligations locale of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notPremises, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenturesuch as, without requiring holders limitation, mortgages, deeds of trust, security deeds and conditional deeds, as well as financing statements, security agreements and other documentation required pursuant to the Unsecured Debentures to be equally Uniform Commercial Code, and ratably secured shall also include any instruments required in accordance connection with the terms a sale-leaseback (or an assignment of the Unsecured Debenture Indenturelease and sublease) transaction.
Appears in 1 contract
Mortgages. (a) Upon Tenant accepts this Lease subject to any deeds of trust, security interests or mortgages which might now or hereafter constitute a lien upon the occurrence of a Mortgage Preparation EventPremises and to deed restrictions, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages zoning ordinances and other building and fire ordinances and governmental regulations relating to the Trustee, to be held for the benefit use of the Secured Parties Premises. Provided Tenant is furnished a written non-disturbance agreement (providing, in the event a Mortgage Recordation Event occurs (subject part, that so long as Tenant shall continue to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction perform all of the Control Partycovenants and conditions of this Lease, deliver the Mortgages within twenty (20) Business Days following receipt that Tenant’s right of possession of the properly executed Mortgages Premises pursuant to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Partythis Lease will be recognized), acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of Tenant (i) twenty (20) Business Days following delivery shall at any time hereafter, on demand, execute any instruments, releases or other documents that may be required by any mortgagee for the purpose of a properly executed Mortgage subjecting and subordinating this Lease to the Trustee lien of any such deed of trust, security interest or mortgage and (ii) agrees to attorn to any mortgages, trustee under a deed of trust or purchaser at a foreclosure sale or trustee’s sale as Landlord under this Lease. With respect to any deed of trust, security interest or mortgage hereafter constituting a lien on the Trustee’s Actual Knowledge Premises, Landlord, at its sole option, shall have the right to waive the applicability of a Rapid Amortization Eventthis paragraph so that this Lease will not be subject and subordinate to any such deed of trust, security interest or mortgage. The Trustee Either Landlord or Tenant shall upon request by the other, execute and deliver from time to time, one or more instruments certifying that this Lease is in full force and unmodified (or if modified stating the date and nature of each modification), the date through which the Basic Rental has been paid, the unexpired term of this Lease, and such other matters pertaining to this Lease as may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering requested by such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in party. In connection with such recordation. The Trustee shall be reimbursed by any subsequent deeds of trust, security interests or mortgages, which Landlord desires to place upon the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation EventPremises, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Tenant shall not be required toobligated to agree to any changes to this Lease in connection therewith. Furthermore, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing Landlord shall not occur, such release of mortgage shall be returned by the escrow agent directly agree to the Trustee.
(b) Notwithstanding Section 8.37(a) above any deed restrictions or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.Initial:
Appears in 1 contract
Samples: Industrial Lease Agreement (Collegiate Pacific Inc)
Mortgages. Xxxxxx accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or the improvements situated thereon or the Building of which the Premises are a part; provided, however, that if the mortgagee, trustee, or holder of any such mortgage or deed of trust elects to have Xxxxxx’s interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Tenant, at any time hereafter within fifteen (a15) Upon days after demand therefor, shall execute any instruments, releases or other documents that may be required by any mortgagee, trustee or holder for the occurrence purpose of subjecting and subordinating this Lease to the lien of any such mortgage or deed of trust. Xxxxxxxx agrees to obtain and deliver to Tenant a Mortgage Preparation Eventsubordination non-disturbance and attornment agreement in substantially the form attached hereto as Exhibit “H” and made a part hereof (“SNDA”) executed by Xxxxxxxx’s current mortgagee with respect to the Building. Xxxxxx agrees to enter into the SNDA with such mortgagee promptly upon Xxxxxxxx’s request therefor. Notwithstanding the foregoing, the Master Issuer shall cause subordination of this Lease to any mortgage or deed of trust that is hereafter placed upon the preparation Building is expressly conditioned upon Tenant and the mortgagee or beneficiary under any such mortgage or deed of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties trust entering into an SNDA in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be form reasonably acceptable to Tenant (Tenant hereby agreeing that an SNDA substantially in the Control Party) form that is attached hereto as Exhibit “H” and made a part hereof is acceptable to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class RepresentativeTenant). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation Xxxxxx agrees to inspect, review or examine enter into such SNDA with any such Mortgages mortgagee or beneficiary promptly upon Xxxxxxxx’s request therefor. If any future mortgagee or beneficiary under a mortgage or deed of trust hereafter placed upon the Building desires to determine subordinate its mortgage or deed of trust to this Lease, Xxxxxx agrees that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf it shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall promptly execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (instrument as defined in Annex B) that may be secured reasonably required by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined such mortgagee or beneficiary in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures order to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureeffect such subordination.
Appears in 1 contract
Samples: Lease Agreement (Worldwater & Solar Technologies Corp.)
Mortgages. This Lease is subject and subordinate to all ground or underlying leases and to any mortgage, deed of trust, security interest, or title retention interest affecting the Land, Building or Project (athe "Mortgage") Upon and to all renewals, modifications, consolidations, replacements and extensions thereof; provided that as a condition to such subordination to a Mortgage, Tenant shall receive (and agrees to execute) a non-disturbance agreement reasonably acceptable to Tenant which shall provide, among other things, that in no event shall Tenant's possession of the occurrence Premises or any of its rights and privileges hereunder be disturbed or interfered with by such Mortgagee or purchaser upon foreclosure as long as Tenant is not in Default under the terms of this Lease and agrees to attorn to such Mortgagee or purchaser when requested to do so by such party. This subordination shall be self-operative; however, in confirmation thereof, Tenant shall, within ten (10) days after receipt thereof, execute any instrument reasonably acceptable to Tenant that Landlord or any holder of any note or obligation secured by a Mortgage Preparation Event(the "Mortgagee") may request confirming such subordination. Notwithstanding the foregoing, before any foreclosure sale under a Mortgage, the Master Issuer Mortgagee shall cause have the preparation of fully executed Mortgages for recordation against right to subordinate the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Eventto this Lease, the Master Issuer shall deliver such Mortgages to the Trusteeand, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventforeclosure, this Lease may continue in full force and effect and Tenant shall attorn to and recognize as its landlord the Trustee purchaser of Landlord's interest under this Lease. Tenant shall, at upon the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery request of a properly executed Mortgage to the Trustee Mortgagee or purchaser at foreclosure, execute, acknowledge and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be deliver any instrument reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event Tenant that has not been waived by for its purpose and effect the Control Party (at the direction subordination of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure lien of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject this Lease or Tenant's attornment to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereofsuch purchaser. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee Landlord shall execute obtain and deliver to Tenant a release subordination, non-disturbance and attornment agreement executed by the current Mortgagee in the form attached hereto as Exhibit F on or before thirty (30) days after the date of mortgage final execution and delivery of this Lease. In the event that Landlord fails to be held in escrow pending a closing obtain and deliver such document to Tenant on or before the expiration of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occurthirty-day period, such release of mortgage then Tenant shall be returned by the escrow agent directly entitled to the Trusteeterminate this Lease.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon Grantee, and its successors, subtenants and assigns permitted hereunder shall have the occurrence of right to mortgage and pledge its interest in this Agreement (a Mortgage Preparation Event“Mortgage”) to a lender (a “Mortgagee”), the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages in accordance with and subject to the Trusteeterms, to be held conditions, requirements and limitations of this Section 9. Grantor and Xxxxxxx expressly intend and agree that the provisions of this Section 9 and such other provisions of this Agreement which, by their terms, are for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation EventMortgagee, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, intended for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (by such Mortgagee and its respective nominees, designees, successors and assigns. Notwithstanding anything in this Agreement to the contrary, all Mortgages shall be expressly subordinate and subject to Permitted Liens)the terms, covenants and conditions of this Agreement, and security interests in, Wendy’s Properties’ at all times shall be inferior and subject to the prior right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereofof Grantor herein. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly Notwithstanding anything to the Trusteecontrary set forth in this Agreement, in no event shall the fee interest in the Easement Air Space be subordinate to any Mortgage.
(b) Notwithstanding A notice of each Mortgage shall be delivered to the Grantor specifying the name and address of such Mortgagee to which notices shall be sent. Grantor shall be furnished a copy of each such recorded Mortgage within thirty (30) days of such mortgage being recorded.
(c) If Grantee, or Xxxxxxx’s successors or assigns, shall mortgage its rights under this Agreement, then so long as any such Mortgage shall remain unsatisfied of record and Grantee shall have properly delivered notice to Grantor in compliance with Section 8.37(a9(b) above or anything else contained in this Base Indenture hereof with respect to such Mortgagee, the following provisions shall apply:
i. Grantor, upon serving upon Grantee any notice of any default by Grantee hereunder (a “Grantee Default”) or any other Related Documentnotice under the provisions of this Agreement, shall also serve a copy of such notice upon Mortgagee, and no notice shall be deemed to have been duly given as to the aggregate amount Mortgagee unless and until a copy thereof has been so served upon the Mortgagee. Grantor’s furnishing a copy of such notice to Mortgagee shall not in any way affect or become a condition precedent to the effectiveness of any notice given or served upon Grantee, provided, that Grantor may not terminate this Agreement or exercise any remedies against Grantee without first giving Mortgagee notice and opportunity to cure as provided in this Agreement.
ii. Any Mortgagee, in case there shall be a Grantee Default under this Agreement, shall have the right to remedy such Grantee Default (or cause the same to be remedied) within thirty (30) days after notice to Mortgagee of such Grantee Default (which will be after expiration of all Obligations Grantee notice and cure periods), provided, however, that if such failure is of the Master Issuer such nature that it cannot be corrected within such thirty (30) day period, such failure shall not constitute a Grantee Default so long as (x) curative action reasonably satisfactory to Grantor is instituted within such period and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notdiligently and continuously pursued to completion thereafter, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.and
Appears in 1 contract
Samples: Air Rights Easement Agreement
Mortgages. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or the improvements situated thereon; provided, however, that if the mortgagee, trustee, or holder of my such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Landlord agrees to promptly obtain and deliver to Tenant a subordination non-disturbance and attornment agreement in substantially the form attached hereto as Exhibit "G" and made a part hereof (a"SNDA") Upon executed by Landlord's current mortgagee with respect to the occurrence of a Mortgage Preparation EventLand. Tenant agrees to enter into the SNDA with such mortgagee promptly upon Landlord's request therefor. Notwithstanding the foregoing, the Master Issuer shall cause subordination of this Lease to any mortgage or deed of trust that is hereafter placed upon the preparation Land is expressly conditioned upon Tenant and the mortgagee or beneficiary under any such mortgage or deed of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties trust entering into an SNDA in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be form reasonably acceptable to Tenant (Tenant hereby agreeing that an SNDA substantially in the Control Party) form that is attached hereto as Exhibit "G" and made a part hereof is acceptable to assist in delivering Tenant). Tenant agrees to enter into such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection SNDA with any such recordationmortgagee or beneficiary promptly upon Landlord's request therefor. The Trustee Tenant shall be reimbursed by permitted to record the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays SNDA in the recordation real property records of Tarrant County, Texas. If any Mortgagefuture mortgagee or beneficiary under a mortgage or deed of trust hereafter placed upon the Land desires to subordinate its mortgage or deed of trust to this Lease, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee Tenant agrees that it shall promptly execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (instrument as defined in Annex B) that may be secured reasonably required by Debenture Restricted Assets under such mortgagee or beneficiary in order to effect such subordination (Tenant hereby agrees that an instrument in substantially the Unsecured Debenture Indenture, determined in accordance with the terms form of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures Exhibit "H" attached hereto and made a part hereof is acceptable to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureTenant).
Appears in 1 contract
Mortgages. (a) Upon On or prior to the occurrence of a Mortgage Preparation Eventdate that is 120 days after the Closing Date, or such later date as agreed to by the Administrative Agent in its reasonable discretion, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee Administrative Agent shall have no obligation to record a Mortgage until the later of received (i) twenty (20) Business Days following delivery counterparts of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of mortgage, in a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be form reasonably acceptable to the Control PartyAdministrative Agent as negotiated with the applicable Loan Party in good faith, including only such warranties, representations, covenants and conditions as are consistent with those contained in the Credit Agreement and that do not increase the obligations or decrease the rights of the applicable Loan Party under this Credit Agreement, encumbering the Headquarters (the “Mortgaged Property”) duly executed and delivered by the applicable Loan Party that is the owner or holders of any interest in such Mortgaged Property, (ii) a completed Life-of-Loan Federal Emergency Management Agency Standard Flood Hazard Determination with respect to assist such Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower), (iii) a policy of title insurance (or marked unconditional commitment to issue such policy) in delivering an amount equal to not less than 100% of the Fair Market Value of such Mortgages Mortgaged Property, issued by a nationally recognized title insurance company insuring the Lien of the mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except and subject to Permitted Liens, together with such customary endorsements (excluding any zoning endorsement provided Borrower provides a zoning opinion of counsel or a zoning report issued by a national zoning report provider), coinsurance and reinsurance to the extent available in the applicable Governmental Authority jurisdiction at commercially reasonable rates (and the Trustee shall pay all Mortgage Recordation Fees in connection with containing no general exception for mechanic’s liens), (iv) such recordation. The Trustee shall be reimbursed owner’s affidavit and so-called “gap” indemnification as are customarily requested by the Master Issuer for any title insurance company to induce the title company to issue the title policy and endorsements contemplated above, (v) evidence of payment by the Borrower of all reasonable title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the mortgage and issuance of the title policy referred to above, except for Permitted Liens, (vi) a survey of the Mortgaged Property in connection such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policy and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vii) such legal opinions as are customarily delivered with respect to the mortgage, comprising (x) opinions as to the due authorization, execution and delivery of the mortgage by the relevant Loan Party and (y) customary opinions of local counsel for such Mortgage Recordation EventLoan Party in the state in which such Mortgaged Property is located, including all Mortgage Recordation Fees pursuant with respect to the enforceability of the mortgage, expressly excluding any opinion as to matters concerning usury, priority, the state of title, or any personal property. This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, Standard Terms and Conditions and the Trustee may notCredit Agreement, record as of the Effective Date inserted by the Administrative Agent below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or cause instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be recorded assigned under applicable law, all claims, suits, causes of action and any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction other right of the Controlling Class Representative). Neither Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Trustee nor Credit Agreement, any custodian on behalf of other documents or instruments delivered pursuant thereto or the Trustee shall be under any duty loan transactions governed thereby or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for based on or related to any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trusteeforegoing, for including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the benefit of rights and obligations sold and assigned pursuant to clause (i) above (the Secured Partiesrights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, legalexcept as expressly provided in this Assignment and Assumption, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property without representation or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned warranty by the escrow agent directly to the TrusteeAssignor.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages Subject to the Trusteelast sentence of this Section 21.(a), this Lease shall be subordinate to be held for the benefit any deed of trust, mortgage or other security instrument (a "Mortgage") and any ground lease, master lease, or primary lease (a "Primary -------- ------- Lease") that now or hereafter covers any portion of the Secured Parties in Premises (the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded mortgagee ----- under any Mortgage until or the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be lessor under any duty or obligation Primary Lease is referred to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensherein as "Landlord's Mortgagee"), and security interests into increases, Wendy’s Properties’ rightrenewals, title and interest in and to each Contributed Owned Real Property and each New Owned Real Propertymodifications, -------------------- consolidations, replacements, and the Proceeds extensions thereof. Upon However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. Except as provided in the last sentence of this Section 21.(a), no further instrument shall be required to effect such subordination; however, Tenant shall from time to time within ten days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the subordination of Wendy’s Properties, this Lease to any such Mortgage or Primary Lease. Landlord hereby represents and at warrants to Tenant that the direction Premises is not currently encumbered by a Mortgage or a Primary Lease. As a condition to the subordination of the Managerthis Lease to a Mortgage or a Primary Lease, the Trustee Landlord's Mortgagee shall execute and deliver to Tenant a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occurcommercially reasonable non-disturbance, such release of mortgage shall be returned by the escrow agent directly to the Trusteesubordination, and attornment agreement.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord (but the Landlord's Mortgagee shall be subject to the offset rights of the Master Issuer Tenant under Section 20) and Wendy’s Properties secured under shall not be bound by any Indenture Document by the Debenture Restricted Assets shall not, at amendment to which it did not consent in writing nor any time, exceed the Indenture Threshold Amount payment of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Samples: Commercial Lease Agreement (Millipore Microelectronics Inc)
Mortgages. The rights and interests of Lessee under this Lease and to the leased Premises shall be subject and subordinate to all deeds of trust, mortgages, rent assignments, and other security instruments and to all renewals, modifications, consolidations, replacements and extensions thereof (adie "Security Documents") Upon heretofore or hereafter executed by Lessor or any successor in interest of Landlord covering the occurrence Premises, the Building, the Land or any parts thereof or interest therein to the same extent as if the Security Documents had been executed, delivered and recorded prior to the execution of this Lease; provided, however, that at the option of the holder or holders of any Security Document, evidenced by written notice to such effect from such holder or holders to Lessee, this Lease shall be superior to the Security Document held by such holder or holders. After the delivery to Lessee of a Mortgage Preparation Eventnotice from Lessor that it has entered into one or more Security Documents, then during the term of such Security Documents Lessee shall deliver to the holder or holders of all Security Documents a copy of all notices to Lessor and shall grant to such holder or holders the right to cure all defaults, if any, of Lessor hereunder within the same time period provided in this Lease for curing such defaults by Lessor and, except with the prior written consent of the holder of the Security Documents, shall not (i) amend this Lease, (ii) surrender or terminate this Lease except pursuant to a right to terminate expressly set forth in this Lease, or (iii) pay any Rent or installment thereof more than one month in advance or pay any Rent or installment thereof or other amounts payable hereunder other than in strict accordance with the terms hereof or of the Security Documents. In the event of foreclosure by any lienholder of the building, Lessee shall not have a right to terminate this lease. The provisions of this section shall be self-operative and shall not require further agreement by Lessee however, at the request of Lessor, the Master Issuer holder of any Security Document or the successor in interest of Lessor pursuant to such Security Document (whether by foreclosure or conveyance in lieu of foreclosure or otherwise), Lessee shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets execute such further documents (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90including, without limitation, attornment agreements) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages as may be required or desirable to the Trustee, to be held evidence and set forth for the benefit of the Secured Parties holder of any Security Documents or such successor in interest pursuant thereto the event obligations of Lessee hereunder. At any time and from time to time upon not less than 10 days prior notice by Lessor, Lessee shall furnish a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement statement in writing certifying that this Lease is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to unmodified and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, full force and the Trustee may not, record effect (or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not if there have been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensmodifications), and security interests instating whether or not to the best knowledge of Lessee Lessor is in default in the keeping, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale observance or performance of any Contributed Owned Real Property covenant, agreement, term, provision or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else condition contained in this Base Indenture Lease and, if so, specifying each such default of which Lessee may have knowledge, it being intended that any such statement may be relied upon by any prospective purchasers, tenant, mortgagee or assignee of any other Related Document, the aggregate amount of all Obligations mortgage of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount Building or Land or of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureLessor interest therein.
Appears in 1 contract
Samples: Office Lease Agreement (Embedded Support Tools Corp)
Mortgages. This Lease and Tenant's interest hereunder shall have --------- priority over, and be senior to, the Lien of any mortgage, deed of trust or similar instrument (a"Mortgage") Upon made by Landlord after the occurrence date of this Lease. Landlord hereby represents that there is no mortgage encumbering the Building as of the date of this Lease. However, if at any time or from time to time during the Term, a holder or beneficiary under a Mortgage Preparation Event(a "Mortgagee") or a prospective Mortgagee requests that this Lease be subject and subordinate to its Mortgage, and if Landlord consents to such subordination, this Lease and Tenant's interest hereunder shall be subject and subordinate so the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days lien of such Mortgage Preparation Eventand to all renewals, the Master Issuer shall deliver such Mortgages modifications, replacements, consolidations and extensions thereof and to the Trusteeany and all advances made thereunder and interest thereon, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee Mortgagee shall have no obligation delivered to record Tenant a Mortgage until the later nondisturbance agreement as described in Section 20(c) of this Lease. Tenant agrees that, within ten (i10) twenty (20) Business Days following delivery days after receipt of a properly executed Mortgage request therefor from Landlord, it will, from time to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventtime, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release any instrument or other document required by any such Mortgagee to evidence the subordination of mortgage this Lease and its interest in the Leased Premises to be held in escrow pending a closing the lien of such Mortgage, subject to Tenant's receipt of a sale nondisturbance agreement as described in Section 20(c) of this Lease. In any event, however, if this Lease shall have priority over the lien of a first Mortgage, this Lease shall not become subject or subordinate to the lien of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing subordinate Mortgage, and Tenant shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above execute any subordination documents or anything else contained in this Base Indenture or instruments for any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenturesubordinate Mortgagee, without requiring holders a nondisturbance agreement as described in Section 20(c) of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturethis Lease.
Appears in 1 contract
Mortgages. If the Borrower or any of its Subsidiaries shall acquire (a) Upon any Real Property on or after the occurrence Restatement Effective Date individually for a purchase price or with a fair market value greater than $300,000 or (b) any Real Property on or after the Restatement Effective Date that, when taken together with all other Real Property acquired on or after the Restatement Effective Date, shall have an aggregate purchase price or fair market value greater than $2,000,000, then within 30 days after the acquisition date of a Mortgage Preparation Eventsuch Real Property or such later date as the Administrative Agent may specify in its discretion the Borrower shall, the Master Issuer or shall cause the preparation of such Subsidiary as applicable to, deliver to Administrative Agent with respect to such Real Property:
(i) fully executed counterparts of Mortgages for recordation against in form and substance satisfactory to the Collateral Agent, which Mortgages shall cover such purchased Real Estate Assets (excluding Property, and, if requested by the Contributed Restaurant Third-Party Leases). Within ninety (90) days Collateral Agent, together with evidence that counterparts of the Mortgages have been delivered to the title insurance company insuring the lien of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages for recording in all places to the Trusteeextent necessary or, in the reasonable opinion of the Collateral Agent, desirable to effectively create a valid and enforceable first priority mortgage lien on such Mortgaged Property in favor of the Collateral Agent (or such other trustee as may be held required or desired under local law) for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (Creditors, subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and Permitted Liens;
(ii) the Trustee’s Actual Knowledge of title insurance policies issued by a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable reputable title insurer satisfactory to the Control PartyCollateral Agent (“Mortgage Policies”) with respect to assist such Mortgaged Property, in delivering such Mortgages amounts satisfactory to the applicable Governmental Authority Administrative Agent and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by Required Lenders assuring the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine Collateral Agent that the same Mortgages on such Mortgaged Properties are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens mortgage liens on (subject the respective Mortgaged Properties, free and clear of all defects and encumbrances except Permitted Encumbrances and such Mortgage Policies shall otherwise be in form and substance satisfactory to Permitted Liens)the Collateral Agent and the Required Lenders and shall include, as appropriate, an endorsement for future advances under this Agreement and the Notes and for any other matter that the Collateral Agent may reasonably request, shall not include an exception for mechanics’ liens, and shall provide for affirmative insurance and such reinsurance (including direct access agreements) as the Collateral Agent may request; and
(iii) in respect of each such Mortgaged Property, an opinion from local counsel satisfactory to the Collateral Agent, which opinion shall cover the perfection of the security interests in, Wendy’s Properties’ right, title granted pursuant to such Mortgage and interest in such other matters incident to the transactions contemplated herein as the Collateral Agent may reasonably request and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly in form and substance satisfactory to the TrusteeCollateral Agent.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. Tenant accepts this Lease subject to .any deeds of trust, security interests or mortgages which might now or hereafter constitute a lien upon the Premises and to deed restrictions, zoning ordinances and other building and fire ordinances and governmental regulations relating to the use of the Premises. Tenant shall at any time hereafter, on demand, execute any instruments, releases or other documents that may be reasonably required by any mortgagee for the purpose of subjecting and subordinating this Lease to the lien of any such deed of trust, security interest or mortgage. Tenant agrees to attorn to any mortgagee, trustee under a deed of trust or purchaser at a foreclosure sale or trustee's sale as Landlord under this Lease. With respect to any deed of trust, security interest or mortgage hereafter constituting a lien on the Premises, Landlord, at its sole option, shall have the right to waive the applicability of this paragraph so that this Lease will not be subject and subordinate to any such deed of trust, security interest or mortgage. Tenant shall upon request by Landlord, execute and deliver from time to time, one or more instruments certifying that this Lease is hi full force and unmodified (a) Upon or if modified stating the occurrence date and nature of a Mortgage Preparation Eventeach modification), the Master Issuer shall cause date through which the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation EventBasic Rental has been paid, the Master Issuer shall deliver unexpired term of this Lease, and such Mortgages other matters pertaining to this Lease as may be requested by Landlord. Notwithstanding the Trusteeforegoing, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties this Lease shall not be required tosubordinate to mortgages or deeds or trust hereafter arising unless and until Landlord has provided Tenant with an agreement (herein, and "Non-Disturbance Agreement ") from the Trustee may notholder of such hen confirming that so long as Tenant is not in default in the performance of any covenants, record conditions, terms or cause to provisions of this Lease, Tenant's right of occupancy under this Lease shall not be recorded any Mortgage until the occurrence of disturbed. Landlord shall provide Tenant with a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable Non-Disturbance Agreement for any delays in mortgage now affecting the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly Premises prior to the TrusteeCommencement Date.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. This Lease shall be subordinate to any deed of trust, mortgage, or other security instrument (a) Upon a "MORTGAGE"), or any ground lease, master lease, or primary lease (a "PRIMARY LEASE"), that now or hereafter covers all or any part of the occurrence of Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGE"). However, as a Mortgage Preparation Eventcondition to such subordination, the Master Issuer Landlord's Mortgagee must execute, acknowledge, and deliver to Tenant a subordination, non-disturbance, and attornment agreement in the same form as EXHIBIT E hereto (which may have non-substantive changes thereto to reflect changes in factual matters) or, at Landlord's option, another form whose form and substance are acceptable to Tenant (an "SNDA"), Tenant shall cause execute, acknowledge, and deliver an SNDA within ten days after Landlord's request therefor. Notwithstanding the preparation subordination provided herein, any Landlord's Mortgagee may subordinate its Mortgage or Primary Lease (as the case may be) to this Lease. Tenant shall execute such documentation as the Landlord's Mortgagee may reasonably request evidencing the subordination of fully executed Mortgages for recordation against this Lease to such Landlord's Mortgagee's Mortgage or Primary Lease or, if the Real Estate Assets (excluding Landlord's Mortgagee so elects, the Contributed Restaurant Third-Party Leases). Within ninety (90) days subordination of such Landlord's Mortgagee's Mortgage Preparation Eventor Primary Lease to this Lease. If at the closing of Landlord's acquisition of the Premises ("CLOSING"), an SNDA has not deposited into escrow, whose delivery is subject only to the consummation of the Closing, then either Landlord or Tenant may terminate this Lease before Closing occurs. Landlord represents and warrants that after giving effect to Closing, the Master Issuer shall deliver such Mortgages to only Mortgage on the Trustee, to Premises will be held for by Principal Commercial Advisors, Inc. and there will be no Primary Lease affecting the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteePremises.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Commercial Lease Agreement (Alliance Data Systems Corp)
Mortgages. (a) Upon By the occurrence of date that is 90 days after the Restatement Effective Date, as such time period may be extended in the Administrative Agent’s reasonable discretion, and provided that a Mortgage Preparation EventSecurity Period shall then be in effect, the Master Issuer Borrower shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of deliver:
(i) twenty (20) Business Days following delivery of a properly executed Mortgage Amendments, supplements and restatements in form and substance satisfactory to the Trustee Collateral Agent of the existing Mortgages encumbering properties located in Illinois, Mississippi and Oklahoma (the “Mortgage Amendments”), each duly executed and acknowledged by a duly authorized officer of the applicable Loan Party party thereto, in a form suitable for filing or recording and otherwise in form and substance satisfactory to the Collateral Agent,
(ii) Evidence that all invoiced fees, costs and expenses have been paid in connection with the Trustee’s Actual Knowledge preparation, execution, filing and recordation of a Rapid Amortization Event. The Trustee may engage a third-party service provider the Mortgage Amendments, including, without limitation, reasonable attorneys’ fees (which including the reasonable fees and expenses of Shearman & Sterling LLP), filing and recording fees, title insurance company coordination fees, documentary stamp, mortgage and intangible taxes, if any, and title search charges and other charges incurred in connection with the recordation of the Mortgage Amendments, and
(iii) In addition to items listed immediately above, the Collateral Agent shall be reasonably satisfied with the advice (not a legal opinion) from local counsel acceptable to the Control PartyCollateral Agent in each state in which a Mortgage Amendment is recorded which imposes a mortgage recording (or similar) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses tax in connection with such Mortgage Recordation EventAmendment relating to the effects of the transactions contemplated herein on the Lien priority of each such Mortgage Amendment, including all the mortgage recording (or similar) taxes payable in connection with each such Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required toAmendment, and related matters. Notwithstanding anything to the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are contrary in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for upon commencement of an Investment Grade Period, and provided that no Default under Section 6.01(a) or (f) or Event of Default shall have occurred and be continuing, then, so long as such Investment Grade Period shall remain in effect, neither the rejection of a Mortgage by any recording office or for Parent nor the failure of any Mortgage Borrower shall be required to create comply with the requirements set forth in favor of this Section 5.01(j) and upon written notice from the TrusteeBorrower delivered to the Administrative Agent and the Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable first priority all Liens on (subject to Permitted Liens), and security interests ingranted pursuant to this clause (j) and the Mortgages shall automatically be terminated, Wendy’s Properties’ rightreleased and discharged and, title at the sole cost and expense of the Borrower, the Collateral Agent shall execute such UCC termination statements, STB filings, and other documents and take such other action as is reasonably requested by the Borrower to evidence such termination. Notwithstanding the foregoing, upon the commencement of a Security Period of the kind described in clause (b) of the definition thereof, each of the Parent and the Borrower shall again comply with the requirements of this Section 5.01(j) and each of the security interests that may have been terminated pursuant to the immediately preceding sentence shall be reinstated, except to the extent that the property subject to such security interest has been sold, leased, transferred or otherwise disposed of in one or more transactions permitted under Sections 5.02(e) or (h). Notwithstanding the foregoing, it is acknowledged and agreed that any security interest in any property that is reinstated pursuant to this paragraph shall (x) rank second in priority to any Lien created on any such property during an Investment Grade Period in compliance with Section 5.02(a), unless otherwise agreed by the holder of any such Lien and (y) be subject to each Contributed Owned Real Property and each New Owned Real Property, and any contractual restrictions permitted under Section 5.02(j). To effect the Proceeds thereof. Upon the request of Wendy’s Properties, foregoing and at the direction sole cost and expense of the ManagerBorrower, the Trustee shall execute Borrower and deliver a release of mortgage to be held in escrow pending a closing the Collateral Agent shall, within 90 days after the commencement of a sale Security Period of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
kind described in clause (b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document definition thereof (or such longer period as may be agreed to by the Debenture Restricted Assets shall notAdministrative Agent), at any timeexecute and/or deliver, exceed as applicable, documents substantially 91 Amended and Restated KCSR Credit Agreement similar to the Indenture Threshold Amount of Indebtedness Mortgages in effect on the date hereof (with such changes as defined in Annex B) that may be secured by Debenture Restricted Assets under agreed between the Unsecured Debenture IndentureBorrower and the Administrative Agent) and such other documents, determined including, without limitation, flood hazard determinations, evidence of flood insurance policies for Mortgaged Properties in accordance flood hazard areas, and written acknowledgments of receipt of written notification from the Collateral Agent that the Mortgaged Properties are in flood hazard areas, in each case consistent with the terms requirements of Section 5(b) of the Unsecured Debenture IndentureRestatement Agreement, without requiring holders of and take such other actions as the Unsecured Debentures Administrative Agent or the Collateral Agent may reasonably request to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureevidence such reinstatement.
Appears in 1 contract
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance Contemporaneously with the Priority execution of Payments. For the avoidance of doubtthis Lease, Wendy’s Properties shall not be required to, Tenant and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee Landlord shall execute and deliver a release of mortgage acknowledge, and Landlord shall exercise commercially reasonable efforts to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by obtain from the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness existing Mortgagee (as defined in Annex B) that may be secured by Debenture Restricted Assets under this Article XXI), an SNDA on the Unsecured Debenture Indenture, determined in accordance with existing Mortgagee’s form attached as Exhibit L and incorporated herein (“Existing Mortgage SNDA”). Subject to the terms of a fully executed SNDA, this Lease is subject and subordinate to any future ground or underlying leases (each a “Ground Lease”) and to any mortgage, deed of trust, security interest, or title retention interest now or hereafter affecting the Unsecured Debenture IndentureLand, without requiring holders Building or Project (each a “Mortgage”) and to all renewals, modifications, consolidations, replacements and extensions thereof. This subordination shall be self-operative; however, in confirmation thereof, Tenant shall, within 10 days of receipt thereof, execute any instrument that Landlord, or any ground lessor under a Ground Lease (“Ground Lessor”) or any holder of any note or obligation secured by Mortgage (“Mortgagee”) may request confirming such subordination or Tenant’s attornment to such Ground Lessor or purchaser of Landlord’s interest under this Lease, as applicable, and providing, among other things, that so long as there is no Event of Default hereunder, Tenant’s use and occupancy of the Unsecured Debentures Premises and its rights under this Lease shall not be disturbed or affected following, as applicable the termination of such Ground Lease or by any foreclosure or other action (or by the delivery or acceptance of a deed or other conveyance or transfer in lieu thereof) which may be instituted or undertaken in order to be equally and ratably secured in accordance with enforce any right or remedy available under the Mortgage (“SNDA”). Notwithstanding the foregoing, before any foreclosure sale under a Mortgage or termination of a Ground Lease, subject to the terms of any applicable SNDA, the Unsecured Debenture IndentureMortgagee or Ground Lessor, as applicable, shall have the right to subordinate the Mortgage or Ground Lease, as applicable, to this Lease, in which case, in the event of such foreclosure or termination, this Lease may continue in full force and effect and Tenant shall attorn to and recognize as its landlord, as applicable, the Ground Lessor or the purchaser at foreclosure of Landlord’s interest under this Lease.
Appears in 1 contract
Samples: Office Lease (McAfee Corp.)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which 12.1 This Lease shall be reasonably acceptable subject and subordinate to any mortgage now or hereafter on the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in entire property and to each Contributed Owned Real Property advance made or to be made under any mortgage and each New Owned Real Propertyto all renewals, modifications, consolidations, replacements, and the Proceeds thereofextensions thereof and all substitutions therefor. Upon the request This section shall be self-operative and no further instrument of Wendy’s Propertiessubordination shall be required. In confirmation of such subordination, and at the direction of the Manager, the Trustee LESSEE shall execute and deliver promptly any certificate that LESSOR or any mortgagee may request. In the event that any mortgagee or respective successor in title shall succeed to the interest of LESSOR, then, at the option of such mortgagee or successor, this Lease shall nevertheless continue in full force and effect and LESSEE shall and does hereby agree to attorn to such mortgagee or successor and to recognize such mortgagee or successor as its LESSOR. Any such mortgagee may subordinate its mortgage or encumbrance to this Lease, without LESSEE's consent, by notice in writing to LESSEE, and thereupon this Lease shall be deemed prior in lien to such mortgage or encumbrance without regard to their respective dates of execution and delivery, and such mortgagee shall have the same rights with respect to this Lease as though it had been executed and delivered prior to the execution and delivery of the mortgage and had been assigned to such mortgagee.
12.2 Notwithstanding the provisions of Section 12.1 herein, this Lease shall not be subordinated to any subsequent hereto mortgage as provided therein, unless and until the mortgagee shall have delivered to LESSEE a release standard form mortgage non-disturbance agreement which provides that such mortgagee shall not disturb LESSEE's tenancy hereunder if and so long as LESSEE shall not be in default under the Terms of mortgage this Lease.
12.3 Subject to the provisions of Section 12.2 herein, LESSEE agrees, from time to time as may be requested by LESSOR, to execute, acknowledge, and deliver to LESSOR all or any of the following documents: an agreement to recognize and attorn to any mortgagee or party holding a similar encumbrance now or hereafter placed on The Premises or any part thereof; agreement certifying to such a party as LESSOR may designate, including any mortgagee, that this Lease is in full force and effect and unmodified and that LESSEE has no defense, off-sets or counterclaim hereunder or otherwise against LESSOR, with respect to this Lease or The Premises (or if such not be the case, specifying in reasonable detail the extent and nature thereof) and the date to which Rent has been paid; and any other instrument as may be reasonably requested to be held in escrow pending a closing executed by LESSEE by any mortgagee of a sale of any Contributed Owned Real Property The Premises or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteepart thereof.
(b) Notwithstanding Section 8.37(a) above or anything else contained in 12.4 LESSOR reserves the right to assign, without notice, this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer Lease as additional security for and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount and all construction and/or permanent financing accommodations for construction of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureThe Premises.
Appears in 1 contract
Samples: Lease Agreement
Mortgages. At the option of the Landlord, this Lease shall be subject and subordinate to any and all mortgages, charges and deeds of trust, which may now or at any time hereafter affect the Premises in whole or in part, or the Lands or the Building in whole or in part, whether or not any such mortgage, charge or deed of trust affects only the Premises or the Lands or the Building or affects other premises as well, provided that, in each such case, any party being the beneficiary of any such encumbrance, grants to the Tenant a non-disturbance agreement agreeing that the interest of the Tenant pursuant to this Lease shall not be disturbed so long as the Tenant performs the covenants set forth in this Lease. The Tenant may register any such non-disturbance agreement or notice thereof. On request at any time and from time to time of the Landlord or of the mortgagee, chargee or trustee under any such mortgage, charge or deed of trust, the Tenant shall promptly, at no cost to the Landlord or mortgagee, chargee or trustee:
(a) Upon the occurrence of a Mortgage Preparation Eventattorn to such mortgagee, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit chargee or trustee and become its tenant of the Secured Parties Premises or the tenant of the Premises of any purchaser from such mortgagee, chargee or trustee in the event a Mortgage Recordation Event occurs of an exercise of any permitted power of sale contained in any such mortgage, charge or deed of trust for the then unexpired residue of the Term on the terms herein contained, and/or
(b) subject to Section 3.1(c)). Upon the occurrence proviso set forth above, postpone and subordinate this Lease to such mortgage, charge or deed of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages trust to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided intent that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any this Lease and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest of the Tenant in the Premises shall be subject to the rights of such mortgagee, chargee or trustee as fully as if such mortgage charge or deed of trust had been executed and to each Contributed Owned Real Property and each New Owned Real Property, registered and the Proceeds money thereby secured had been advanced before the execution of this Lease (and notwithstanding any authority or consent of such mortgagee, chargee or trustee, express or implied, to the making of this Lease). Provided that this Lease and the Tenant's rights hereunder shall continue undisturbed while the Tenant is not in default despite default under any such mortgage, charge or deed of trust. Any such attornment or postponement and subordination shall extend to all renewals, modifications, consolidations, replacements and extensions of any such mortgage, charge or deed of trust and every instrument supplemental or ancillary thereto or in implementation thereof. Upon the request The Tenant shall forthwith execute any instruments of Wendy’s Properties, attornment or postponement and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that subordination which may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures so requested to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturegive effect to this Article.
Appears in 1 contract
Samples: Lease Agreement (Compuflight Inc)
Mortgages. Tenant accepts this Lease subject and subordinate to any mortgages and deed of trust now or at any time hereafter constituting a lien or charge upon the Property, or the improvements situated thereon, provided, however, that if the mortgagee, trustee, or holder of any such mortgage or deed of trust (a"Mortgagee") Upon elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such Mortgagee, this Lease shall be deemed superior to such lien whether this Lease was executed before or after said mortgage or deed of trust. Tenant shall at any time hereafter on demand execute any instruments, releases or other documents which may be required by any such Mortgagee for the occurrence purpose of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages subjecting and subordinating this Lease to the Trustee, lien of any such mortgage (provided that such Mortgagee agrees to be held recognize this Lease and not disturb Tenant's possession of the Premises if Tenant is not in an uncured event of default) or for the benefit purpose of evidencing the Secured Parties superiority of this Lease to the lien of any such mortgage, as may be the case. The foregoing notwithstanding, upon Tenant's request after Lease execution, Landlord will use its commercially reasonable efforts to cause Mortgagee to deliver to Tenant a subordination, non-disturbance and attornment agreement (the "SNDA") on Mortgagee's customary form containing provisions pursuant to which Mortgagee agrees not to terminate the Lease in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventforeclosure of its mortgage or deed of trust or termination of its ground lease, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of Tenant is not in breach or default under this Lease. Tenant understands that: (i) twenty (20) Business Days following delivery of a properly executed Mortgage Landlord shall not be obligated to expend funds to procure the Trustee SNDA and if any fee is required or funds must be expended, such fees shall be paid and such funds shall be expended by Tenant, and (ii) Tenant's obligations under this Lease are not conditioned on obtaining the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeSNDA from Mortgagee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon the occurrence Conditioned upon receipt by Tenant of a Mortgage Preparation EventSubordination, Attornment and Non-Disturbance Agreement as described below, Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or the improvements situated thereon or the Building, provided, however, that if the mortgagee, trustee or holder of any such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Tenant, at any time hereafter on demand, shall execute any instruments, releases or other documents that may be required by any mortgagee, trustee or holder for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage, so long as a Subordination, Non- disturbance and Attornment Agreement has been executed by such mortgagee, trustee or holder and provided to Tenant. Tenant shall not terminate this Lease or pursue any other remedy available to Tenant hereunder for any default on the part of Landlord without first giving written notice by certified or registered mail, return receipt requested, to any mortgagee, trustee or holder of any such mortgage or deed of trust, the Master Issuer shall cause name and post office address of which Tenant has received written notice, specifying the preparation of fully executed Mortgages for recordation against the Real Estate Assets default in reasonable detail and affording such mortgagee, trustee or holder a reasonable opportunity (excluding the Contributed Restaurant Third-Party Leases). Within ninety but in no event less than thirty (9030) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages days) to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shallmake performance, at the direction of the Control Partyits election, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee Landlord. Landlord agrees that Landlord shall use reasonable diligence to obtain from each and every mortgagee or lessor that is on will be under any duty or obligation superior to inspectthis Lease a Subordination, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid Non-Disturbance and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeAttornment Agreement.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon Each Party shall have the occurrence right to collaterally assign and encumber this Agreement as security to one or more of its Mortgagees holding a Mortgage Preparation Eventso long as such Mortgagee, in writing (i) subordinates such Mortgage and the Master Issuer shall cause lien thereof to this Agreement and to the preparation rights, interests, obligations, duties, conditions, covenants and agreements granted pursuant to this Agreement or otherwise contained herein (whether such Mortgage is recorded on or after the date hereof) and (ii) agrees to be bound by the terms and conditions of fully executed Mortgages for recordation against this Agreement upon its taking title to such property (subject to the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leasesprovisions of Section 6 below). Within ninety In no event may a Mortgagee (90other than with respect to any Mortgage encumbering the Phase II Land, Phase II Mall, H/C I Space or Mall I Space) days be a Competitor of such an Owner. Notwithstanding the foregoing, regardless of whether any Mortgagee shall receive a collateral assignment of this Agreement, each Mortgage Preparation Event, (whether recorded on or after the Master Issuer date hereof) and the lien thereof shall deliver such Mortgages automatically be subject and subordinate to this Agreement and to the Trusteerights, interests, obligations, duties, conditions, covenants and agreements granted pursuant to be held this Agreement or otherwise contained herein.
(b) Each Party agrees for the benefit of the Secured other Parties and their respective Mortgagees, that wherever a Party has a right to grant or withhold its consent or approval under this Agreement, or otherwise has discretion to act or refrain from acting, such Party shall only grant its consent or approval or act or refrain from acting, as the case may be, in such a manner as a Commercially Reasonable Owner would do and so long as the event same is not likely to have a Mortgage Recordation Event occurs Material Adverse Effect.
(subject c) In any instance (other than Section 2(b) of Article XI) where a Mortgagee's consent is required under this Agreement and such Mortgagee shall be a trustee for publicly held debt under an indenture, such Mortgagee shall be deemed to Section 3.1(c)). Upon the occurrence have given its consent upon delivery to such trustee of a Mortgage Recordation Event, written statement from an Independent Expert certifying that the Trustee shall, at the direction matter proposed for consent would be consented to by a Commercially Reasonable Owner of the Control PartyLot(s) encumbered in favor of said Mortgagee and the same is not likely to have a Material Adverse Effect; provided, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided however that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties foregoing consent procedure shall not be construed as a means for satisfying any consents or approvals required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be obtained with respect to matters under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indentureindenture, without requiring holders of the Unsecured Debentures security documents and other loan documents pertaining to any such Mortgagee, it being understood that said consent or approval requirements must be equally and ratably secured satisfied in accordance with the terms of the Unsecured Debenture Indenturetheir terms.
Appears in 1 contract
Samples: Reciprocal Easement, Use and Operating Agreement (Las Vegas Sands Corp)
Mortgages. Sublessee accepts this Sublease subject and subordinate to any Master Lease, ground lease, mortgage and/or deed of trust now or at any time hereafter constituting a lien or encumbrance upon the Premises. Notwithstanding any such subordination, Sublessee's right to quiet possession of the Premises shall not be disturbed if Sublessee is not in default and so long as Sublessee shall pay the Rent and observe and perform all of its obligations hereunder, unless this Sublease is otherwise terminated pursuant to its terms. If any ground lessor, mortgagee or beneficiary under a deed of trust elects to have Sublessee's interest in this Sublease superior to any such instrument, then by notice to Sublessee from such ground lessor, mortgagee or beneficiary, this Sublease shall be deemed superior to such ground lease or lien, whether this Sublease was executed before or after said ground lease, mortgage or deed of trust. Sublessee shall at any time hereafter on demand execute any instruments, releases or other documents which may be required by any ground lessor or mortgagee for the purpose of attornment or subjecting and subordinating this Sublease to any ground lease or the lien of any such mortgage. Sublessee's failure to execute each instrument, release or document within ten (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (9010) days after written demand shall constitute an event of default by Sublessee hereunder without further notice to Sublessee, or at Sublessor's and/or Landlord's option Sublessor and/or Landlord shall execute such Mortgage Preparation Eventinstrument, the Master Issuer shall deliver such Mortgages to the Trusteerelease or document on behalf of Sublessee as Sublessee's attorney-in-fact. Sublessee does hereby make, constitute and irrevocably appoint Sublessor and/or Landlord as Sublessee's attorney-in-fact, coupled with an interest, and in Sublessee's name, place and stead, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless execute such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and documents in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteethis Paragraph 20.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Sublease (Blue Holdings, Inc.)
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a"MORTGAGE"), and any ground lease, master lease, or primary lease (a "PRIMARY LEASE") that now or hereafter covers any portion of the occurrence Premises (the mortgagee under any Mortgage or the Lessor under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGEE"), and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of a Mortgage Preparation Eventthis Section 21 shall be self-operative, and not further instrument shall be required to effect such subordination; however, Landlord shall deliver to Tenant, and Tenant shall execute from time to time within ten days after delivery thereof to Tenant, an instrument from each Landlord's Mortgagee evidencing the Master Issuer shall cause the preparation subordination of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of this Lease to any such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider or Primary Lease (which instrument shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of include a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create non-disturbance provision in favor of the Trustee, for the benefit of the Secured Parties, legal, valid Tenant and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeon Landlord's Mortgagee's standard form).
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Shell or Initial Improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a "Mortgage"), and any ground lease, master lease, or -------- primary lease (a "Primary Lease") that now or hereafter covers any portion of ------------- the occurrence Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee"), and to increases, -------------------- renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of a Mortgage Preparation Eventthis Section 21 shall be self-operative, and no further instrument shall be required to effect such subordination; however, Landlord shall deliver to Tenant, and Tenant shall execute from time to time within ten days after delivery thereof to Tenant, an instrument from each Landlord's Mortgagee evidencing the Master Issuer shall cause the preparation subordination of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of this Lease to any such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider or Primary Lease (which instrument shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of include a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create non-disturbance provision in favor of the Trustee, for the benefit of the Secured Parties, legal, valid Tenant and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeon Landlord's Mortgagee's standard form).
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install any improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Mortgages. (a) Upon Each Party shall have the occurrence right to collaterally assign and encumber this Agreement as security to one or more of its Mortgagees holding a Mortgage Preparation Eventso long as such Mortgagee, in writing (i) subordinates such Mortgage and the Master Issuer shall cause lien thereof to this Agreement and to the preparation rights, interests, obligations, duties, conditions, covenants and agreements granted pursuant to this Agreement or otherwise contained herein (whether such Mortgage is recorded on or after the date hereof) and (ii) agrees to be bound by the terms and conditions of fully executed Mortgages for recordation against this Agreement upon its taking title to such property (subject to the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leasesprovisions of Section 6 below). Within ninety Notwithstanding the foregoing, regardless of whether any Mortgagee shall receive a collateral assignment of this Agreement, each Mortgage (90whether recorded on or after the date hereof) days of such Mortgage Preparation Event, and the Master Issuer lien thereof shall deliver such Mortgages automatically be subject and subordinate to this Agreement and to the Trusteerights, interests, obligations, duties, conditions, covenants and agreements granted pursuant to be held this Agreement or otherwise contained herein.
(b) Each Party agrees for the benefit of the Secured other Parties and their respective Mortgagees, that wherever a Party has a right to grant or withhold its consent or approval under this Agreement, or otherwise has discretion to act or refrain from acting, such Party shall only grant its consent or approval or act or refrain from acting, as the case may be, in such a manner as a Commercially Reasonable Owner would do and so long as the event same is not likely to have a Mortgage Recordation Event occurs Material Adverse Effect.
(subject c) In any instance (other than Section 2(b) of Article XI) where a Mortgagee's consent is required under this Agreement and such Mortgagee shall be a trustee for publicly held debt under an indenture, such Mortgagee shall be deemed to Section 3.1(c)). Upon the occurrence have given its consent upon delivery to such trustee of a Mortgage Recordation Event, written statement from an Independent Expert certifying that the Trustee shall, at the direction matter proposed for consent would be consented to by a Commercially Reasonable Owner of the Control PartyLot(s) encumbered in favor of said Mortgagee and the same is not likely to have a Material Adverse Effect; provided, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Partyhowever, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties foregoing consent procedure shall not be construed as a means for satisfying any consents or approvals required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be obtained with respect to matters under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indentureindenture, without requiring holders of the Unsecured Debentures security documents and other loan documents pertaining to any such Mortgagee, it being understood that said consent or approval requirements must be equally and ratably secured satisfied in accordance with the terms of the Unsecured Debenture Indenturetheir terms.
Appears in 1 contract
Samples: Reciprocal Easement, Use and Operating Agreement (Las Vegas Sands Corp)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Each Real Estate Assets Holder shall, within one hundred and eighty (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90180) days after the Closing Date with respect to each Existing Owned Real Property owned by such Real Estate Holder and within one hundred and twenty (120) days after the acquisition of any New Owned Real Property acquired by such Mortgage Preparation EventReal Estate Holder on or after the Closing Date, the Master Issuer shall execute and deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties Parties, a mortgage or deed of trust in substantially the event form attached as Exhibit L hereto or otherwise in form reasonably acceptable to the Control Party and the Trustee and suitable for recordation under applicable law with respect to each such Existing Owned Real Property and each such New Owned Real Property, to be held in escrow by the Trustee or its agent and recorded by the Trustee or its agent solely upon the occurrence of a Mortgage Recordation Event occurs (subject to Section 3.1(c)) hereof). Upon the occurrence of a Mortgage Recordation Event, unless such Mortgage Recordation Event is waived by the Control Party (at the direction of the Controlling Class Representative), the Trustee or its agent shall, at the direction of the Control Party, deliver the Mortgages record promptly within twenty (20) Business Days following receipt of the properly executed occurrence of such Mortgage Recordation Event all such Mortgages to with the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization EventGovernmental Authority. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such the Mortgages to the applicable Governmental Authority with respect to such Mortgage for recordation and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties the Real Estate Holders shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Propertiesthe Real Estate Holders’ right, title and interest in and to each Contributed Existing Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Propertiesthe applicable Real Estate Holder, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Existing Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon the occurrence This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a Mortgage Preparation Event"MORTGAGE"), the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets and any ground lease, master lease, or primary lease (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90a "PRIMARY LEASE") days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit that now or hereafter covers any portion of the Secured Parties in Premises (the event a mortgagee under any Mortgage Recordation Event occurs or the lessor under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGEE"), and to increases, renewals, modifications, consolidations, replacements and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (subject as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of this Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event21 shall be self-operative, the Trustee shalland no further instrument shall be required to effect such subordination; however, at the direction of the Control Party, deliver the Mortgages Tenant shall from time to time within twenty (20) Business Days following receipt days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the subordination of the properly executed Mortgages this Lease to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventor Primary Lease. If Tenant fails to execute the same within such 20-day period, including all Mortgage Recordation Fees pursuant Landlord may execute the same as attorney-in-fact for Tenant. Tenant also agrees to and modify this Lease as reasonably requested by Landlord's Mortgagee which does not cause increased expense to Tenant, a decrease in accordance with the Priority of Payments. For the avoidance of doubtTenant's rights under this Lease, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause otherwise materially adversely affect Tenant's interest under this Lease.
(b) With respect to be recorded any Mortgage until or Primary Lease to which this Lease is now or shall hereafter become subordinate, Landlord shall use commercially reasonable efforts to obtain from the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the TrusteeLandlord's Mortgagee, for the benefit of Tenant, a non-disturbance agreement, in the Secured Partiesusual form of such Landlord's Mortgagee, legalproviding generally that as long as Tenant is not in default under this Lease, valid and enforceable first priority Liens on (subject this Lease will not be terminated if such Landlord's Mortgagee acquires title to Permitted Liens)the Project by reason of foreclosure proceedings, and security interests inacceptance of a deed in lieu of foreclosure, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction or termination of the Managerleasehold interest of Landlord, provided that Tenant attorns to such Landlord's Mortgagee in accordance with its requirements. Except for making such commercially reasonable efforts, Landlord will be under no duty or obligation hereunder with respect to any Mortgage or Primary Lease, nor will the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale failure or refusal of any Contributed Owned Real Property Landlord's Mortgagee(s) to grant a non-disturbance agreement render Landlord liable to Tenant, or affect this Lease, in any New Owned Real Property; provided that if such closing shall not occur, such release manner. Tenant will bear all costs and expenses (including attorneys' fees) of mortgage shall be returned by the escrow agent directly Landlord Mortgagee(s) in connection with Landlord's reasonable efforts to the Trusteeobtain a non-disturbance agreement.
(bc) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations thereunder.
(d) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Initial Improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Samples: Lease Agreement (Bebe Stores Inc)
Mortgages. (a) Upon 9.2.1 Although the occurrence Lessee may Mortgage its interest in this Lease without the consent of the Lessor and the First Nation, no Mortgage is valid until the proposed Mortgagee has entered into a Mortgage Acknowledgement Agreement, substantially in the form attached as Schedule D, with any changes as may be agreed to by the Parties and the Mortgagee.137
9.2.2 The Lessee will ensure that any Mortgage does not conflict with the terms of this Lease and, by complying with such Mortgage, the Lessee will not be in default of this Lease.
9.2.3 If the Lessee defaults on an obligation in a Mortgage, then the Lessor or the First Nation may cure the default under the Mortgage on the Lessee’s behalf and all expenses incurred by such Party to cure such default are payable by the Lessee as Additional Rent or First Nation Fees, as the case may be.
9.2.4 If the Lessee defaults on an obligation in this Lease, then: 135 Section 54 of the Indian Act allows for an assignment of a Mortgage Preparation Eventleasehold interest in designated lands with the “approval of the Minister”. As such, the Master Issuer shall cause Lessor’s consent to any assignment of a Lease on designated lands is required. The First Nation’s consent is not statutorily required, so it can negotiate with the preparation of fully executed Mortgages for recordation Lessee if it will have a consent requirement or not. The Lessee and the assignee will execute an assignment agreement assigning the Lessee’s interest in the Lease to the assignee, which is not valid until consent has been obtained and an Assignment Consent Agreement is executed. This agreement is necessary to ensure that the Lessor and the First Nation will be able to enforce in personam (see introduction) obligations against the Real Estate Assets assignee. 136 Under the common law, a tenant remains responsible for every obligation in a lease for the entire term of the lease, even when it assigns its leasehold estate to another person. A landlord’s consent does not relieve a tenant from its lease obligations; instead, the assignment gives the landlord two parties (excluding the Contributed Restaurant Third-tenant and the assignee) against which the landlord may enforce the lease obligations. For this reason, original tenants often want to be relieved from any further obligations after the date of assignment, but landlords are often reluctant to provide such relief. This is a choice completely within the discretion of the landlord. The common law situation is reiterated here in this template Lease, but also provides a similar situation (by way of contract rather than by the common law) for the First Nation to the extent that it is possible to do so by contract. 137 The Mortgage Acknowledgement Agreement establishes a contractual relationship between the Mortgagee, the Lessor and the First Nation that recognizes the Mortgagee’s right to take over the Lessee’s interest in the Lease under certain circumstances.
9.2.4.1 any default notice issued by a Party Leases). Within ninety (90) days under section 10 will not be valid for any purpose unless and until a copy of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages notice is also provided to the Trustee, to be held for the benefit all Mortgagees of the Secured Parties in the event valid Mortgages;
9.2.4.2 a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence Mortgagee of a valid Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record cure or cause to be recorded any Mortgage until the occurrence cured a default of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian this Lease on behalf of the Trustee shall Lessee within the time period specified in this Lease or in the applicable default notice, whichever is greater, from the date of delivery of the notice to the Mortgagee; and
9.2.4.3 if the Mortgagee notifies each of the Lessor and the First Nation within the cure period that the Mortgagee has taken or intends to take formal proceedings to enforce its Mortgage and protect its position, then:
9.2.4.3.1 the Mortgagee will have sufficient time to pursue such proceedings to their conclusion, acting expeditiously, to enforce its Mortgage and protect its position;
9.2.4.3.2 once such proceedings are commenced, the Lessor and the First Nation will not exercise any of their respective remedies (except for their respective rights to cure in accordance with sections 10.2.4 and 10.5.3), on the condition that the Mortgagee actively prosecutes such proceedings to their conclusion; and138
9.2.4.3.3 if, upon the conclusion of such proceedings, the rights of the Lessee have been released to the Mortgagee or foreclosed or sold, then, on the condition that all previous defaults under this Lease that are capable of being cured have been fully cured, the Mortgagee or, subject to section 9.2.6, the purchaser will become the Lessee.139
9.2.5 Notwithstanding anything contained in this Lease, all obligations to construct Improvements in this Lease will not apply to a Mortgagee of a valid Mortgage during a period in which the Mortgagee is exercising its rights under section 9.2.4.3.
9.2.6 A Mortgagee may exercise all of its rights and remedies with respect to this Lease and the Lessee’s leasehold interest in the Premises, including the right to sell or assign the Lease or to appoint a receiver of the Lessee or a receiver of the Premises (either by appointment under a security instrument or by an 138 This clause gives comfort to a Mortgagee that a Lease will not be cancelled without any notice to it so that it will have time to protect its interests. If contemplating terminating a Lease, consider delivery dates under this subsection and the Mortgage Acknowledgement Agreement to determine the date upon which termination is first available. 139 No matter how a new entity comes to take over the Xxxxxx’s interest in the leasehold, the consent of the Lessor and the First Nation will be required. appointment by a court order) and take possession and administer the Premises (including with respect to the collection of rents and realizing any duty other rights or obligation to inspectbenefits of the Lessee in respect of the Premises), review or examine on the condition that, if the Mortgagee exercises any such Mortgages power of sale or assignment, then the sale or assignment will not be valid without the consent of each of the Lessor and the First Nation and until the proposed assignee has entered into an Assignment Consent Agreement, substantially in the form attached as Schedule C, with any changes as may be agreed to determine that by the same are validParties and the assignee.140
9.2.7 The Lessee will not surrender any part of this Lease or the Premises, bindingand the Lessor and the First Nation will not accept any such surrender, legally effectivewithout the prior written consent of each Mortgagee of a valid Mortgage.141
9.2.8 Notwithstanding any other provisions of this Lease, properly endorsed, genuine, enforceable or appropriate a Mortgagee will not be responsible for the represented purpose Lessee’s obligations in this Lease, including any requirement to take out or that they are maintain insurance or any requirement to indemnify, unless and until either:
9.2.8.1 the Mortgagee becomes the Lessee by obtaining an order absolute of foreclosure in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation respect of any Mortgagethis Lease or by taking an assignment of this Lease, and then only for the rejection of a Mortgage by any recording office or for period in which the failure of any Mortgage to create Mortgagee is the Lessee; or
9.2.8.2 the Mortgagee is in favor possession of the Trustee, for Premises (through the benefit exercise of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensits default remedies or otherwise), and security interests in, Wendy’s Properties’ right, title and interest then only for the period in and to each Contributed Owned Real Property and each New Owned Real Propertywhich the Mortgagee is in possession of the Premises, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction Mortgagee will not be considered to be in possession of the ManagerPremises as a result of the appointment of a receiver of the Lessee by a court or with court approval of the actions of such a receiver.142
9.2.9 The Lessee will give each Mortgagee of a valid Mortgage reasonable notice of a dispute commenced in court under section 14.1.
9.2.10 The First Nation and the Lessee will give each Mortgagee of a valid Mortgage reasonable notice of an arbitration of a dispute under section 14.2 and each such Mortgagee will have the option of participating in the arbitration proceedings if such Mortgagee, acting reasonably, considers that such proceedings may affect the Trustee shall execute and deliver security of its Mortgage or the value of such security. 140 This clause reiterates the Mortgagee’s common law rights to the Premises but requires the Mortgagee to comply with the assignment provisions (section 9.1) in the Lease. 141 The surrender of the leasehold would negate the Mortgagee’s security, which is the Xxxxxx’s interest in the leasehold, so the Mortgagee would want to ensure that the Lease is not surrendered while any debts remain outstanding. 142 This clause ensures that the Mortgagee only has Lessee obligations when in possession or when it has foreclosed the Lessee’s interest.
9.2.11 For greater certainty, this section 9.2 does not apply to a release mortgage of mortgage a Sublease, which does not require consent of the Lessor or the First Nation, or entering into a Mortgage Acknowledgment Agreement, to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteevalid.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Lease Agreement
Mortgages. (a) Upon the occurrence The Parent Disclosure Letter sets forth a list of all loans under which Parent or any of its subsidiaries is an obligor or borrower, which are secured by a Mortgage Preparation Eventmortgage, the Master Issuer shall cause the preparation deed of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Eventtrust, the Master Issuer shall deliver such Mortgages deed to the Trustee, to be held for the benefit secure debt or other similar instrument encumbering any of the Secured Parties in Parent Properties or any part thereof (the event "Parent Mortgages") and sets forth a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction complete and accurate description of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of following:
(i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and Parent Property encumbered by each Parent Mortgage;
(ii) the Trustee’s Actual Knowledge name of a Rapid Amortization Event. The Trustee may engage a third-party service provider the obligor, and any guarantor, of each Parent Mortgage;
(which shall be reasonably acceptable to iii) the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority priority of each Parent Mortgage and the Trustee shall pay all identity (and relative priority) of any mortgage, deed of trust, deed to secure debt or other similar instrument that is either prior to or subordinate to each Parent Mortgage;
(iv) the date of each Parent Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed and of any amendment or modification thereof;
(v) the original principal amount of the debt secured by each Parent Mortgage, the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventcurrent rate of interest thereunder, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority required rate of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required toprincipal amortization thereunder, and the Trustee may notcurrent outstanding principal balance thereof;
(vi) the maturity date of each Parent Mortgage, record and whether any balloon payment will be due at the maturity thereof (and, if so, the amount of such balloon payment assuming minimum required payments of principal and interest are made through the maturity date);
(vii) the amount of the current monthly payment of interest, principal or cause other amounts due under each Parent Mortgage and the amount of any other mandatory principal or other payments due thereunder prior to be recorded the maturity date of the debt secured thereby;
(viii) any Mortgage until the occurrence of a Mortgage Recordation Event amount that has not been waived disbursed or advanced to Parent by the Control Party holder of a Parent Mortgage that such holder is obligated to disburse or advance;
(at ix) any premium or penalty payable in connection with the direction prepayment (full or partial) of the Controlling Class Representative). Neither debt secured by each Parent Mortgage; and
(x) the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation amount of any Mortgage, for the rejection of a escrow deposits or other deposits or payments held under each Parent Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds holder thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(aAll payments, installments and charges due and payable under a Parent Mortgage have been paid in full. Neither Parent nor any of its subsidiaries has received any notice of default by Parent or such subsidiary (which default has not previously been cured) above from the holder of a Parent Mortgage nor, to the Parent's knowledge, does any condition or anything else contained in this Base Indenture event exist which with the giving of notice or the passage of time, or both, would constitute a default by Parent or any other Related Documentof its subsidiaries under a Parent Mortgage. Except as set forth in the Parent Disclosure Letter, the aggregate amount occurrence of all Obligations any of the Master Issuer transactions contemplated by this Agreement will not require the consent or approval of the holder of a Parent Mortgage and Wendy’s Properties secured will not violate, conflict with or constitute a default by Parent or any of its subsidiaries under any Indenture Document by a Parent Mortgage or result in a condition or event which with the Debenture Restricted Assets shall not, at any giving of notice or the passage of time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured or both, would constitute a default by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureParent.
Appears in 1 contract
Mortgages. (a) Upon 11.5.1 Although the occurrence Lessee may Mortgage its interest in this Lease without the consent of either the Lessor or the Locatee, no Mortgage is valid until the proposed Mortgagee has entered into a Mortgage Preparation EventAcknowledgement Agreement, substantially in the Master Issuer shall cause form attached as Schedule E.
11.5.2 The Lessee will be in default of this Lease if it does not perform or comply with any of the preparation obligations, covenants and agreements in a Mortgage Acknowledgement Agreement.
11.5.3 The Lessee will ensure that any Mortgage will provide that the proceeds of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages all property insurance policies with respect to the Trustee, to Premises will be held used solely for repairing or replacing the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided Premises as set out under this Lease.
11.5.4 The Lessee will ensure that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has does not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance conflict with the terms of this Lease, and by complying with such Mortgage, the Unsecured Debenture IndentureLessee will not be in default of this Lease.
11.5.5 If the Lessee defaults on any obligation, without requiring holders covenant or agreement in a Mortgage, then the Locatee may cure the default under the Mortgage on the Lessee’s behalf and any expenses incurred by the Locatee to cure such default are payable to the Locatee as Additional Fees promptly upon notice from the Locatee.
11.5.6 Any default notice issued by the Lessor under article 12 will not be valid for any purpose unless and until a copy of such notice is also provided to all Mortgagees of valid Mortgages.
11.5.7 For greater certainty, this section 11.5 does not apply to a mortgage of a Sublease or any tenancy derived from a Sublease, none of which require consent of the Unsecured Debentures Lessor or the Locatee or execution of a Mortgage Acknowledgment Agreement to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturevalid.
Appears in 1 contract
Samples: Lease of Locatee Lands
Mortgages. (a) Upon 11.5.1 Although the occurrence Lessee may Mortgage its interest in this Lease without the consent of either the Lessor or the First Nation, no Mortgage is valid until the proposed Mortgagee has entered into a Mortgage Preparation EventAcknowledgement Agreement, substantially in the Master Issuer shall cause form attached as Schedule E.
11.5.2 The Lessee will be in default of this Lease if it does not perform or comply with any of the preparation obligations, covenants and agreements in a Mortgage Acknowledgement Agreement.
11.5.3 The Lessee will ensure that any Mortgage will provide that the proceeds of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages all property insurance policies with respect to the Trustee, to Premises will be held used solely for repairing or replacing the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided Premises as set out under this Lease.
11.5.4 The Lessee will ensure that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has does not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance conflict with the terms of this Lease, and by complying with such Mortgage, the Unsecured Debenture IndentureLessee will not be in default of this Lease.
11.5.5 If the Lessee defaults on any obligation, without requiring holders covenant or agreement in a Mortgage, then the Lessor or the First Nation may cure the default under the Mortgage on the Lessee’s behalf and any expenses incurred by such Party to cure such default are payable as Additional Rent or Additional Fees, as the case may be, promptly upon notice from such Party.
11.5.6 Any default notice issued by the Lessor under article 12 will not be valid for any purpose unless and until a copy of such notice is also provided to all Mortgagees of valid Mortgages.
11.5.7 For greater certainty, this section 11.5 does not apply to a mortgage of a Sublease or any tenancy derived from a Sublease, none of which require consent of the Unsecured Debentures Lessor or the First Nation or execution of a Mortgage Acknowledgment Agreement to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturevalid.
Appears in 1 contract
Samples: Lease Agreement
Mortgages. (a) Upon The Landlord, upon mortgaging the occurrence Shopping Centre or any part thereof, where this Lease does not enjoy priority of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or registration will cause to be recorded inserted in such Mortgage provisions such that if any Mortgage until default occurs under such Mortgage, the occurrence Mortgagee will give the Tenant notice of a Mortgage Recordation Event that has not been waived by such default, and if such default is with respect to the Control Party (at payment of any monies due under such Mortgage, the direction Tenant will be subrogated to the rights of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty Landlord to remedy such default, or obligation if such default is with respect to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of the Landlord to perform any other of its covenants in such Mortgage the Tenant will have the right, after notice to create in favor the Landlord, to remedy such default, and if such default is remedied within a reasonable time the Mortgagee will not by reason of such default exercise any right or remedy which it might have as Mortgagee which would entitle it to possession of the Trustee, for the benefit whole or any part of the Secured Parties, legal, valid and enforceable first priority Liens on (subject Shopping Centre. The Tenant shall have a right of set off under this Lease for any monies paid by it to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and the Mortgagee under the Mortgage pursuant to each Contributed Owned Real Property and each New Owned Real Property, this Section and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction Landlord hereby consents to a judgment in favour of the Manager, Tenant for any shortfall between the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned payment made by the escrow agent directly Tenant to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, Mortgagee under the aggregate amount of all Obligations Mortgage and the financial obligations of the Master Issuer and Wendy’s Properties secured Tenant under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (this Lease. THIS AGREEMENT made as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders day of (hereinafter called the Unsecured Debentures to be equally and ratably secured in accordance with “Tenant”) (hereinafter called the terms of the Unsecured Debenture Indenture“Chargee”) OF THE SECOND PART.
Appears in 1 contract
Mortgages. (a) Upon The Agent shall have received the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed and notarized Mortgages for recordation against each of the Real Estate Assets real property assets designated on Schedule 1 (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90Mortgaged Property) days of attached hereto and incorporated herein by reference, each such Mortgage Preparation Event, being substantially in the Master Issuer form of the corresponding mortgage or deed of trust form for the respective State as contained in Exhibit A to this Agreement. Each such Mortgage shall deliver such Mortgages grant and convey to the Trustee, to be held Agent for the benefit of the Secured Parties Lenders (or as applicable, to a trustee for the benefit of the Agent and the Lenders) a valid first priority lien on the corresponding Mortgaged Property and shall be in recordable form, subject only to (a) Liens securing taxes, assessments, and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA) which are not yet due and payable; (b) Liens or claims of materialmen and mechanics, incurred in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction ordinary course of the Control PartyCredit Parties business, deliver payment of which is not yet due; (c) Liens constituting encumbrances in the Mortgages within twenty (20) Business Days following receipt nature of zoning restrictions, easements, and rights or restrictions of record on the use of the properly executed Mortgages to Mortgaged Property, which do not materially detract from the applicable recording office for recordation (unless value of such recordation requirement is waived Mortgaged Property as used by the Control Party, acting at the direction any of the Controlling Class Representative)Credit Parties or impair the use thereof in the business of any of the Credit Parties; provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (iid) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which such other Liens as shall be reasonably acceptable to the Control PartyAgent and the Majority Lenders. With respect to any Mortgaged Property that is a leasehold estate, unless in any such case the Credit Parties are unable after good faith efforts to obtain the same, the Agent shall have received (a) to assist such estoppel letters, consents, and waivers from the landlords on such real property as may be reasonably required by the Agent, which estoppel letters shall be in delivering such Mortgages form and substance reasonably satisfactory to the Agent and (b) evidence that the applicable Governmental Authority lease, a memorandum of lease with respect thereto, or other evidence of such lease in form and substance reasonably satisfactory to the Trustee shall pay Agent has been recorded in all Mortgage Recordation Fees places to the extent necessary or desirable, in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction judgment of the Controlling Class Representative). Neither Agent, so as to enable the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any Mortgage encumbering such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage leasehold interest to create a valid and enforceable first priority lien on such leasehold interest in favor of the Trustee, Agent for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeLenders.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Amendment and Waiver Agreement (Delta Woodside Industries Inc /Sc/)
Mortgages. a. Lessee acknowledges that Lessor shall execute and deliver one or more mortgages with respect to its interest in the Premises and Ground Lease Property (aeach a "Mortgage") Upon in order to secure Permitted Financing and, in connection therewith, shall assign its interest in and to this Lease. If either Lessor or the occurrence mortgagee, grantee or trustee under any such Mortgage provides written notice to Lessee of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days existence of such Mortgage Preparation Eventand the address of the mortgagee, grantee or trustee thereunder for the Master Issuer service of notices, such mortgagee, grantee or trustee, or a shareholder, director, officer, partner (general or limited) or member of any of the foregoing, shall deliver such Mortgages be deemed to be a "Mortgage Lender" hereunder and entitled to the Trusteerights and protections afforded a Mortgage Lender in this Lease.
b. If any Mortgage Lender or a person designated by such Mortgage Lender shall either become the owner of the Property upon the exercise of any remedy provided for in the Mortgage, such Mortgage Lender or such person shall have the right to assign to any person this Lease or such new lease upon notice to Lessee, without obtaining the consent or approval of Lessee.
c. No surrender (except a surrender upon the expiration of the Term) by Lessee to Lessor of this Lease, or of the Premises and Ground Lease Property or any part thereof, or of any interest therein, and no termination of this Lease, may occur, nor shall any of the terms hereof be amended, modified, changed or cancelled, without the prior written consent of the Mortgage Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
d. No Mortgage Lender shall become personally liable for the performance or observance of any covenants or conditions to be held performed or observed by Lessor.
e. In the event Mortgage Lender imposes a written condition to closing on a loan secured by a Mortgage that the Lease be amended in one or more specific respects and Lessor determines to so amend this Lease, Lessee shall promptly execute an amendment to this Lease in the form required by Lessor, provided such amendment does not increase any of the financial or other obligations of Lessee or materially reduce the obligations of Lessor hereunder.
f. Lessee covenants and agrees to furnish to Mortgage Lender as soon as practicable after the end of each fiscal quarter of Lessee, and in no event later than forty-five (45) days thereafter, internally prepared financial statements of Lessee for such quarter consisting of the balance sheets of Lessee as of the end of such quarter and the related statements of income and cash flows for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventquarter, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived accompanied by the Control Partycertificate of Lessee's chief financial officer (or equivalent), acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of certifying (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee that such financial statements were prepared in accordance with generally accepted accounting principles; and (ii) that no Event of Default has occurred and is continuing under this Lease, or if such Event of Default is continuing, how Lessee proposes to cure the Trustee’s Actual Knowledge same.
g. Lessee covenants and agrees to furnish to Mortgage Lender as soon as practicable after the end of each fiscal year, and in no event later than one hundred twenty (120) days thereafter, audited financial statements of Lessee for such fiscal year consisting of the balance sheets of Lessee as of the end of such fiscal year and the related statements of income and cash flows for the fiscal year then ended, setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared by a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be certified public accountant reasonably acceptable to Mortgage Lender, accompanied by such accountant's unqualified opinion as to such financial statements and a copy of the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees management letter issued in connection with such recordation. The Trustee shall be reimbursed accountant's audit thereof, and accompanied by the Master Issuer certificate of the chief financial officer of Lessee (or the equivalent) that such statements fairly present the financial position, results of operations and cash flows of Lessee as of such date and for any such fiscal year and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and were prepared in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, generally accepted accounting principles.
h. Lessee covenants and the Trustee may not, record or cause agrees to be recorded any promptly notify Mortgage until Lender with respect to (i) the occurrence of a Mortgage Recordation Event any event that materially adversely affects Lessee, its properties, financial position or ability to conduct its business operations in substantially the manner and level contemplated to be conducted as of the date of this Lease, (ii) any modification of any law, regulation or ordinance of the State of Indiana, or any agency or political subdivision thereof, that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian a material adverse effect on behalf of the Trustee shall be under any duty or obligation Lessee's ability to inspect, review or examine any such Mortgages maintain its gaming license or to determine that conduct its gaming business at its present location, and (iii) the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation commencement of any Mortgageaction, for the rejection of a Mortgage by suit or proceeding before any recording office court or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property arbitrator or any New Owned Real Property; provided that if such closing shall not occurgovernmental department, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above board, agency or anything else contained in this Base Indenture other instrumentality affecting Lessee or any other Related Documentproperty of Lessee in which an adverse determination or result would have a material adverse effect on the business, operations, property or condition (financial or otherwise) of Lessee or on the aggregate amount ability of all Obligations Lessee to perform its obligations under this Lease, stating the nature and status of the Master Issuer such event, amendment, action, suit or proceeding and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (providing such additional information as defined in Annex B) that Mortgage Lender may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturereasonably request.
Appears in 1 contract
Mortgages. Redhook shall have the right, at any time during the term of this Sublease, to encumber its estate in the Subleased Premises pursuant to one or more mortgages or deeds of trust (a"Subleasehold Mortgage") Upon only to provide financing for the occurrence cost of any authorized capital improvements with a useful life in excess of five years. No Subleasehold Mortgage shall extend to or affect the fee, the reversionary interest or the estate of PDA and/or the Air Force in or to any land, building or improvements existing or subsequently constructed on the Subleased Premises and all such mortgages shall be subordinate to any security interest in the Subleased Premises or any property of Redhook at the Subleased Premises granted to FDA or the State of New Hampshire in conjunction with any financing assistance under Section 4A.1. No Subleasehold Mortgage shall be binding upon PDA arid/or the Air Force in the enforcement of its rights and remedies herein and by law provided, unless, and until a copy thereof shall have been delivered to PDA and the Air Force and such mortgage is authorized under this Section 19.7. PDA and Redhook agree that so long as any authorized Subleasehold Mortgage is a lien on Redhook's estate in the Subleased Premises, the mortgagee or beneficiary thereunder ("Subleasehold Mortgagee") shall have all of the following rights:
(1) If Redhook shall have delivered to PDA prior written notice of the address of any Subleasehold Mortgagee, PDA will give to the Subleasehold Mortgagee a copy of any notice under this Sublease at the time of giving such notice to Redhook, and will give to the Subleasehold Mortgagee notice received by PDA of any rejection of this Sublease by the trustee in bankruptcy of Redhook or by Redhook as debtor-in-possession. In such case no termination of this Sublease or termination of Redhook's right of possession of the Subleased Premises or reletting of the Subleased Premises by PDA predicated on the giving of any notice shall be effective unless PDA gives to the Subleasehold Mortgagee written notice or a copy of its notice to Redhook of such default or termination, as the case may be. Notices, demands and requests from PDA to the Subleasehold Mortgagee shall be mailed to the address given to PDA by certified or registered mail and notices, demands and requests from the Subleasehold Mortgagee to PDA shall be delivered in the manner and to the address as specified in Article 23 hereof.
(2) In the event of any default by Redhook under the provisions of this Sublease, the Subleasehold Mortgagee will have the same concurrent grace periods as are given Redhook for remedying such default or causing it to be remedied, plus, in each case, an additional period of thirty (30) days after the expiration thereof or after FDA has served a notice or a copy of a Mortgage Preparation Eventnotice of default upon the Subleasehold Mortgagee, whichever is later.
(3) In the event Redhook shall default under any of the provisions of this Sublease, the Master Issuer Subleasehold Mortgagee, without prejudice to its rights against Redhook, shall have the right to cure such default within the applicable grace periods provided for in the preceding paragraph of this Section whether the same consists of the failure to pay rent or the failure to perform any other matter or thing which Redhook is hereby required to do or perform, and PDA shall accept such performance on the part of the Subleasehold Mortgagee as though the same had been done or performed by Redhook. For such purpose PDA and Redhook hereby authorize the Subleasehold Mortgagee to enter upon the Subleased Premises and to exercise any of Redhook's rights and powers under this Sublease, and subject to the provisions of this Sublease, under the Subleasehold Mortgage.
(4) The term "incurable default" as used herein means any default which cannot be cured by a Subleasehold Mortgagee. The term "curable default" means any default under this Sublease which is not an incurable default. In the event of any curable default under this Sublease, and if prior to the expiration of the applicable grace period specified in subparagraph (2) of this Section, the Subleasehold Mortgagee shall give PDA written notice that it intends to undertake the curing of such default, or to cause the preparation same to be cured, or to exercise its rights to acquire the leasehold interest of fully executed Mortgages for recordation against Redhook by foreclosure or otherwise, and shall immediately commence and then proceed with all due diligence to do so, whether by performance on behalf of Redhook of its obligations under this Sublease, or by entry on the Real Estate Assets (excluding Subleased Premises by foreclosure or otherwise, then PDA will not terminate or take any action to effect a termination of this Sublease or re-enter, take possession of or relet the Contributed Restaurant Third-Party Leases). Within ninety (90) days Subleased Premises or similarly enforce performance of this Sublease so long as the Subleasehold Mortgagee is, with all due diligence and in good faith, engaged in the curing of such Mortgage Preparation Eventdefault, the Master Issuer shall deliver or effecting such Mortgages to the Trusteeforeclosure, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventprovided, the Trustee shallhowever, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Subleasehold -42- Mortgagee shall not be required to, and the Trustee may not, record to continue such possession or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee continue such foreclosure proceedings if such default shall be under cured. Nothing herein shall preclude PDA from terminating this Sublease with respect to any duty or obligation additional default which shall occur during the aforesaid period of forbearance and not be remedied within the period of grace, if any, applicable to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeadditional default.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. (a) Upon This Lease and Tenant’s interest hereunder shall have priority over, and be senior to, the occurrence lien of any Mortgage made by Landlord after the date of this Lease. However, if at any rime or from time to time during the Term, a Mortgagee or prospective Mortgagee requests that this Lease be subject and subordinate to its Mortgage, this Lease and Tenant’s interest hereunder shall be subject and subordinate to the lien of such Mortgage and to all renewals, modifications, replacements consolidations and extensions thereof and to any and all advances made thereunder and the interest thereon. Tenant agrees that, within 10 days after receipt of a written request therefor from Landlord, it will, from time to time, execute and deliver any instrument or other document required by any such Mortgagee to subordinate this Lease and its interest in the Leased Premises to the lien of such Mortgage. If, at any time or from time to time during the Term, a Mortgagee of a Mortgage Preparation Eventmade prior to the date of this Lease shall request that this lease have priority over the lien of such Mortgage, and if Landlord consents thereto, this Lease shall have priority over the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days lien of such Mortgage Preparation Eventand all renewals, modifications, replacements, consolidations and extensions thereof and all advances made thereunder and the Master Issuer shall deliver such Mortgages to the Trusteeinterest thereon, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence and Tenant shall, within 10 days after receipt of a Mortgage Recordation Eventwritten request therefor from Landlord, the Trustee shallexecute, at the direction of the Control Party, acknowledge and deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs documents and expenses in connection with such Mortgage Recordation Eventinstruments confirming the priority of this Lease. In any event, including all Mortgage Recordation Fees pursuant to and in accordance with however, if this Lease shall have priority over the Priority lien of Payments. For the avoidance of doubta Mortgage, Wendy’s Properties this Lease shall not be required tobecome subject or subordinate to the lien of any subordinate Mortgage, and Tenant shall not execute any subordination documents or instruments for any subordinate Mortgagee, without the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction written consent of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeprior Mortgagee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. On or prior to the Initial Borrowing Date (a) Upon or such later date to which the occurrence of a Mortgage Preparation EventCollateral Agent shall agree), the Master Issuer Collateral Agent shall cause the preparation of have received:
(i) fully executed counterparts of Mortgages (or assignments and amendments satisfactory to the Collateral Agent to the Mortgages granted pursuant to the Existing Credit Agreement), in the form of Exhibit L, which Mortgages shall cover such of the Real Property owned by the Credit Parties and listed on Part B of Schedule IV, together with evidence that counterparts of each of the Mortgages (and the aforesaid assignments and amendments, if any) have been delivered to the title company insuring the Lien of the Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages recording in all places to the Trusteeextent necessary or desirable, in the judgment of the Collateral Agent, to effectively create a valid and enforceable first priority mortgage lien (subject to Permitted Encumbrances relating thereto) on the Mortgaged Properties in favor of the Collateral Agent (or such other trustee as may be held required or desired under local law) for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative)Creditors; provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and and
(ii) Mortgage Policies on the Trustee’s Actual Knowledge of Mortgages for the Mortgaged Properties issued by a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be title insurance company reasonably acceptable satisfactory to the Control Party) to assist Collateral Agent and in delivering such Mortgages amounts satisfactory to the applicable Governmental Authority Collateral Agent and assuring the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event Collateral Agent that has not been waived by the Control Party (at the direction each of the Controlling Class Representative). Neither the Trustee nor any custodian Mortgages on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of Mortgaged Properties is a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens mortgage lien on (subject to such Mortgaged Properties, free and clear of all defects and encumbrances except Permitted Liens)Encumbrances, and security interests insuch Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to the Collateral Agent and shall include, Wendy’s Propertiesas appropriate, an endorsement for future advances under this Credit Agreement and the Notes and for any other matter that the Collateral Agent in its discretion may reasonably request, shall not include an exception for mechanics’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Propertyliens, and shall provide for affirmative insurance and such reinsurance as the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held Collateral Agent in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeits discretion may reasonably request.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Credit Agreement (Williams Scotsman International Inc)
Mortgages. On or prior to the New Mortgage Deadline or, if requested by the Borrower and agreed to by the Agent in its reasonable discretion with respect to one or more New Mortgage Properties that do not exceed in value (as determined on the basis of the "2003 Budget EBITDA with Cliff" assigned to each New Mortgage Property in the Strategic Review) 40% of the aggregate value (so determined) of all New Mortgage Properties, such other date or dates (which shall not, except in the case of New Mortgage Properties that do not exceed in value (so determined) 15% of the aggregate value (so determined) of all New Mortgage Properties, be later than the ninetieth day after the Amendment No. 4 Effective Date) (each, an "EXTENDED NEW MORTGAGE DEADLINE") as the Borrower and the Agent shall agree:
(a) Upon the occurrence owner of each New Mortgage Property shall have delivered to the Agent duly executed counterparts of a New Mortgage Preparation Eventin respect of each New Mortgage Property owned by it;
(b) the Borrower shall deliver, or cause to be delivered, to the Agent legal opinions of local counsel reasonably satisfactory to the Agent with respect to each of the New Mortgages, which legal opinion shall be in form and substance reasonably satisfactory to the Agent;
(c) the Borrower shall deliver, or cause to be delivered, to the Agent evidence satisfactory to the Agent that such action (including, without limitation, the Master Issuer filing of appropriately completed Uniform Commercial Code financing statements and the recording of Mortgages) as may be necessary or as the Agent shall have reasonably requested to perfect the Liens created pursuant to the New Mortgages shall have been taken, or that arrangements therefor satisfactory to the Agent shall have been made;
(d) the Borrower shall deliver, or cause to be delivered, to the preparation Agent policies of fully executed title insurance (or commitments therefor with all conditions marked satisfied), in form and substance satisfactory to the Agent and issued by an insurance company or companies as are acceptable to the Agent (the "TIC"), insuring the perfection, enforceability and priority of the Liens on the New Mortgage Property created under the New Mortgages for recordation against in amounts not less than 110% of the Real Estate Assets product of 5 multiplied by the "2003 Budget EBITDA with Cliff" assigned to such New Mortgage Property in the Strategic Review, subject only to such exceptions as are reasonably satisfactory to the Agent, containing such endorsements (excluding other than endorsements that would require a new survey or survey update) and affirmative assurances as have been previously agreed to by, or are otherwise satisfactory to, the Contributed Restaurant Third-Party Leases). Within ninety (90) days Agent, and reinsured in amounts and under reinsurance agreements in form and substance satisfactory to the Agent; and the Borrower shall have paid or made arrangements satisfactory to the Agent to pay to the TIC all expenses and premiums of the TIC in connection with the issuance of such Mortgage Preparation Event, the Master Issuer policies and in addition shall deliver such Mortgages have paid or made arrangements satisfactory to the TrusteeAgent to pay to the TIC an amount equal to the recording and stamp taxes payable in connection with recording the New Mortgages in the appropriate county land offices; provided that, if with respect to be held for the benefit any New Mortgage Property there are encumbrances of record, as of the Secured Parties New Mortgage Deadline (or, in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence case of a New Mortgage Recordation EventProperty as to which the Agent shall have consented to an Extended New Mortgage Deadline, the Trustee shall, at the direction as of the Control Party, deliver the Mortgages within twenty (20Extended New Mortgage Deadline in respect of such New Mortgage Property) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be are not reasonably acceptable to the Control Party) to assist Administrative Agent, then unless the Administrative Agent, in delivering its reasonable discretion, enters into a letter agreement with the Borrower, the owner of the New Mortgaged Property and the TIC setting forth such Mortgages encumbrances and providing for the removal of such encumbrances and the execution and delivery of documentation evidencing such removal by the applicable Cure Date, the Administrative Agent shall accept a New Mortgage on a substitute property as described in the proviso to the applicable Governmental Authority definition of New Mortgage Property set forth in Section 1.01 hereof (and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance title insurance complying with the Priority provisions of Payments. For this clause (d)) in lieu of such New Mortgage Property;
(e) the avoidance of doubtBorrower shall deliver, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded delivered, to the Agent copies of file search reports from the Uniform Commercial Code filing office in each jurisdiction (i) in which is located any Mortgage until Collateral (other than Pledged Stock) subject to a New Mortgage, (ii) in which is located the occurrence chief executive office of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction any Subsidiary of the Controlling Class Representative). Neither the Trustee nor Borrower that owns or holds any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and or interest in any property that constitutes Collateral (other than the Pledged Stock) subject to a New Mortgage or (iii) in which any such Subsidiary is located (within the meaning of Section 9-307 of the UCC), setting forth the results of Uniform Commercial Code file searches conducted in the name of the Borrower or such Subsidiary, as the case may be;
(f) the Borrower shall deliver, or cause to be delivered, to the Agent all documents the Agent may reasonably request relating to the existence of each Subsidiary of the Borrower party to any New Mortgage, the corporate authority for and to each Contributed Owned Real Property and each the validity of the New Owned Real PropertyMortgages, and the Proceeds thereof. Upon the request of Wendy’s Propertiesany other matters relevant thereto, all in form and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly substance satisfactory to the Trustee.Agent; and
(bg) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any the Borrower shall have paid all other Related Documentcosts, the aggregate amount of all Obligations of the Master Issuer fees and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness expenses (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indentureincluding, without requiring holders of limitation, mortgage recording, intangibles or documentary stamp on similar taxes, reasonable legal fees and expenses) payable to the Unsecured Debentures Agent with respect to be equally and ratably secured the New Mortgages, in accordance with each case invoiced prior to the terms of New Mortgage Deadline or the Unsecured Debenture IndentureExtended New Mortgage Deadline, as applicable.
Appears in 1 contract
Mortgages. Tenant accepts this Lease subject and subordinate to all Ground Leases now or hereafter existing and all renewals, modifications, consolidations, replacements and extensions thereof, and any mortgages and/or deed(s) of trust now or at any time hereafter constituting a lien or charge upon the Premises and/or the Complex (aeach a “Security Instrument”) Upon and all renewals, modifications, consolidations, replacements and extensions thereof; provided, however, that the occurrence foregoing subordination in respect of any Security Instrument placed upon the Premises after the date hereof shall not become effective until and unless the applicable ground lessor or holder delivers to Tenant a Mortgage Preparation Eventnon-disturbance agreement (a “Non-Disturbance Agreement”) in recordable form which provides that if no Event of Default has occurred and is continuing, the Master Issuer shall cause the preparation such Lender will not disturb Tenant’s right of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit occupancy of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined Premises in accordance with the terms and provisions of this Lease in the event of a foreclosure or termination, as applicable, of any such Security Instrument (a Non-Disturbance Agreement may also include Tenant’s agreement to attorn as set forth below and will contain such other provisions as the applicable ground lessor or holder shall require in connection therewith provided that such provisions will not in any way materially change the rights and obligations of Tenant under this Lease or materially reduce the obligations of Landlord under this Lease). Although the subordination in the immediately preceding sentence shall be self-operating (subject to the delivery of the Unsecured Debenture Indenturerequired Non-Disturbance Agreement), without requiring holders Tenant, or its successors in interest, shall, within ten (10) business days after its receipt of Landlord’s request, execute and deliver any and all Non-Disturbance Agreements delivered to Tenant by Landlord. If any ground lessor or the Unsecured Debentures mortgagee, trustee or holder of any such Security Instrument elects to have Tenant’s interest in this Lease superior to the applicable Ground Lease or Security Instrument, then by notice to Tenant from such ground lessor, mortgagee, trustee or holder, this Lease shall be equally deemed superior to the applicable Ground Lease or the applicable Security Instrument and ratably secured in accordance with the terms lien and/or security interest evidenced thereby, whether this Lease was executed before or after such Ground Lease or Security Instrument. Tenant shall, within ten (10) business days after its receipt thereof, execute any instruments, releases or other documents or agreements which may be required by any Mortgagee for the purpose of subjecting and subordinating any Ground Lease or Security Instrument and the Unsecured Debenture Indenturelien and/or security interest evidenced thereby to this Lease.
Appears in 1 contract
Samples: Lease Agreement (Aquilex Corp)
Mortgages. (a) Upon the occurrence Section 11.01. This Lease and all rights of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Landlord and Tenant are subject and subordinate to any Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages and to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs renewals, replacements, extensions, modifications, consolidations and expenses in connection with refinancings thereof, subject to the execution, acknowledgment and delivery to the Tenant by the Mortgagee of each such Mortgage Recordation Eventof an agreement of such Mortgagee substantially as set forth in Section 11.02.
Section 11.02. Landlord and Tenant agree that the execution of a Non- disturbance Agreement by the Mortgagee is a requirement to any re- financing by Landlord. Landlord will use its best efforts to cause any Mortgagee to enter into an agreement with Tenant, including all substantially as follows, and Tenant agrees to enter into such an agreement to the extent obtainable from such Mortgagee:
1. Tenant agrees that the Lease is and shall be subordinate to the Mortgage.
2. Mortgagee agrees that unless there shall then be an Event of Default under the Lease which remains uncured neither Tenant nor any Leasehold Mortgagee shall be named or joined as a party defendant in any action, suit or proceeding to foreclose the Mortgage Recordation Fees or to collect the debt secured thereby nor shall Tenant's rights of possession be disturbed pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeAgreement.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not3. If, at any time, exceed Mortgagee (or any person, or such person's successors or assigns, who acquires the Indenture Threshold Amount interest of Indebtedness Landlord in the Lease through foreclosure of any Mortgage or deed in lieu of foreclosure of such Mortgage or through any assignment of Landlord's interest in the Lease given as collateral for a Mortgage or the debt secured thereby) (herein sometimes called the "Successor Lessor") shall succeed to the interest of Landlord in the Lease, then at Successor Lessor's election Tenant shall attorn to and recognize such person so succeeding to Landlord's rights as defined in Annex B) that may be secured by Debenture Restricted Assets Tenant's Landlord under the Unsecured Debenture IndentureLease. Upon such attornment and recognition, determined the Lease shall continue in accordance with full force and effect as, or as if it were, a direct lease between the Successor Lessor and Tenant upon all of the then terms, conditions and covenants of the Lease, except as set forth below, and Tenant and the Successor Lessor shall promptly execute and deliver any instrument in recordable form, that either party may reasonably request to evidence such attornment and recognition.
4. Landlord and any Leasehold Mortgagee (or its nominee) upon becoming the Tenant under Article 18 hereof shall execute an agreement containing the terms of the Unsecured Debenture Indentureparagraphs in this Section 11.02.
5. No Successor Lessor shall be liable for any claimed default of Landlord or be deemed to have assumed obligations of Landlord with respect to the period prior to the effective date on which the Successor Lessor shall have succeeded to the interest of Landlord hereunder.
Section 11.03. If, without requiring holders in connection with Landlord's obtaining financing or refinancing for the Premises or this Lease, a lender shall request minor modifications to this Lease as a condition to such financing or refinancing, neither Landlord nor Tenant will withhold, delay or defer its consent provided that such modifications: (i) do not diminish either party's obligations or increase the rights of Landlord or Tenant under this Lease; (ii) do not change any substantive provisions of this Lease; (iii) do not add any substantive burden or obligation to Landlord or Tenant under the Unsecured Debentures to be equally and ratably secured Lease; (iv) would not put Landlord or Tenant in accordance with the terms of the Unsecured Debenture Indenturedefault under any Leasehold Mortgage or Landlord in default under any Mortgage.
Appears in 1 contract
Samples: Lease Agreement (Dionics Inc)
Mortgages. (a) Upon Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the occurrence Premises or the improvements situated thereon or the Building, provided, however, that if the mortgagee, trustee or holder of a Mortgage Preparation Eventany such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Tenant, at any time hereafter on demand, shall execute any instruments, releases or other documents that may be required by any mortgagee for the Master Issuer shall cause the preparation purpose of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages subjecting and subordinating this Lease to the Trusteelien of any such mortgage; provided that (i) such instruments, to be held for the benefit of the Secured Parties releases or other documents shall contain a written agreement that, in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventforeclosure sale or conveyance in lieu of foreclosure, the Trustee shall, purchaser at the direction foreclosure shall not disturb Tenant's possession of the Control PartyPremises and shall recognize Tenant's rights under the Lease so long as Tenant is not in default under the Lease (or the holder of such mortgage has delivered such non-disturbance agreement to Tenant in a separate instrument), deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventinstruments, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties releases or other documents shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with modify the terms of the Unsecured Debenture IndentureLease or increase Tenant's obligations or liabilities under the Lease and (iii) so long as Landlord is not in default under such Mortgage and Tenant is not in default under the Lease, without requiring holders such instrument will provide that insurance proceeds will be applied to restoration of the Unsecured Debentures Premises as required under this Lease. Tenant shall not terminate this Lease or pursue any other remedy available to be equally Tenant hereunder for any default on the part of Landlord without first giving written notice by certified or registered mail, return receipt requested, to any mortgagee, trustee or holder of any such mortgage or deed of trust, the name and ratably secured post office address of which Tenant has received written notice, specifying the default in accordance with reasonable detail and affording such mortgagee, trustee or holder the terms same opportunity given to Landlord hereunder to make performance, at its election, for and on behalf of the Unsecured Debenture IndentureLandlord.
Appears in 1 contract
Samples: Lease Agreement (Xetel Corp)
Mortgages. (a) Upon The Company shall use its best efforts to deliver to Purchasers as promptly as possible within 120 days of the occurrence Closing Date:
(i) Fully executed and acknowledged counterparts of Mortgages, in the form of Exhibit E in the case of a Mortgage Preparation Eventleasehold mortgage or in the form of Exhibit F in the case of a mortgage on the Denmark Owned Real Property, which Mortgages shall cover such of the Master Issuer shall cause Real Property or Leased Real Property as Purchasers may require (the preparation "Mortgaged Properties"), together with evidence that counterparts of fully executed each of the Mortgages have been delivered to the title company insuring the Liens of the Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages recording in all places to the Trusteeextent necessary or desirable, in the judgment of Purchasers, to effectively create a valid or enforceable first priority mortgage lien (subject only to Permitted Encumbrances relating thereto) on the Mortgaged Properties in favor of Purchasers (or such other trustee as may be held required or desired under local law) and for the benefit of Purchasers, together with the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence payment of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable any recording office for recordation (unless such recordation requirement is waived taxes or charges required by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and law.
(ii) Mortgage Policies insuring the Trustee’s Actual Knowledge lien of the Mortgages issued by a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be title insurance company reasonably acceptable satisfactory to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to Purchasers and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, amounts satisfactory to Purchasers and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event assuring Purchasers that has not been waived by the Control Party (at the direction each of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of is a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens mortgage lien on (subject to the applicable Mortgaged Properties, free and clear of all defects and encumbrances except for Permitted Liens)Encumbrances, and such Mortgage Policies shall otherwise be in form and substance reasonably satisfactory to Purchasers and shall include endorsements for any matter that Purchasers in their discretion may reasonably request, shall not include an exception for mechanics' liens and shall provide for affirmative insurance and such reinsurance as Purchasers may reasonably request.
(iii) Surveys of the Mortgaged Properties that are also Real Estate, in form and substance reasonably satisfactory to Purchasers, certified by a licensed professional surveyor reasonably satisfactory to Purchasers and of a date reasonably acceptable to Purchasers.
(iv) The opinions of counsel in the jurisdiction in which the Mortgaged Properties are respectively located relating to the creation and enforceability of the security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, created by the Mortgages and the Proceeds thereof. Upon other matters and in form, scope and substance reasonably acceptable to Purchasers.
(v) Any other documents that are reasonably requested by Purchasers and are required to create a valid and enforceable first priority mortgage lien on the request of Wendy’s Mortgaged Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above The Company shall use its reasonable best efforts to deliver to Purchasers a fully executed Landlord's Consent to Mortgage and Leasehold Mortgagee Protection Agreement in substantially the form attached hereto as Exhibit G for each property making up the Leased Real Estate, together with a fully executed Memorandum of Lease in form required by applicable law and otherwise satisfactory to Purchasers in their reasonable discretion for each property making up the Leased Real Estate. Such Memorandum of Lease shall be recorded in the recorder's office in the jurisdiction in which the Mortgaged Property is located for property in the United States or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of comparable local equivalent if the Master Issuer and Wendy’s Properties secured under any Indenture Document by Mortgaged Property is not located in the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureUnited States.
Appears in 1 contract
Samples: Senior Note and Warrant Purchase Agreement (Cardiac Science Inc)
Mortgages. This Lease is subject and subordinated to any mortgages, deed to secure debt, deeds of trust or underlying leases, as well as to any extensions or modifications thereof (a) Upon hereinafter collectively referred to as “Mortgages”), now of record or hereafter placed of record. In the occurrence of a Mortgage Preparation Eventevent Landlord exercises its option to further subordinate this Lease, Tenant shall at the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit option of the Secured Parties in the event a holder of said Mortgage Recordation Event occurs (subject attorn to Section 3.1(c))said holder. Upon the occurrence of a Mortgage Recordation EventAny subordination shall be self-executing, the Trustee but Tenant shall, at the direction written request of Landlord, execute such further assurances as Landlord deems desirable to confirm such subordination. In the Control Partyevent Tenant should fail or refuse to execute any instrument required under this Paragraph, deliver within fifteen (15) days after Xxxxxxxx’s request, Landlord shall be granted a limited power of attorney to execute such instrument in the Mortgages within twenty (20) Business Days following receipt name of Tenant. In the properly executed Mortgages event any existing or future lender, holding a Mortgage, deed of trust or other commercial paper, requires a modification of this Lease which does not increase Tenant’s Rent hereunder, or does not materially change any obligation of Tenant hereunder, Xxxxxx agrees to execute appropriate instruments to reflect such modification, upon request by Landlord. Notwithstanding the applicable recording office foregoing, upon written request by Xxxxxx, Landlord will use reasonable efforts to obtain a subordination, non-disturbance and attornment agreement from Landlord’s then current mortgagee on such mortgagee’s then current standard form of agreement. “Reasonable efforts” of Landlord shall not require Landlord to incur any cost, expense or liability to obtain such agreement, it being agreed that Tenant shall be responsible for recordation (unless such recordation requirement is waived any fee or review costs charged by the Control Partymortgagee. Upon request of Landlord, acting at Xxxxxx will execute the direction mortgagee’s form of subordination, non-disturbance and attornment agreement and return the Controlling Class Representative); provided that same to Landlord for execution by the Trustee mortgagee. Xxxxxxxx’s failure to obtain a subordination, non-disturbance and attornment agreement for Tenant shall have no obligation to record a Mortgage until effect on the later rights, obligations and liabilities of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee Landlord and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall Tenant or be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause considered to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived default by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeLandlord hereunder.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Industrial Lease (Sow Good Inc.)
Mortgages. Upon Collateral Agent’s request,No later than (ax) Upon the occurrence of a Fifth Amendment Effective Date, with respect to the AFI Australia Mortgaged Property, and (y) the Fifth Amendment Mortgage Preparation EventOutside Date with respect to the Fifth Amendment Mortgaged Property, the Master Issuer Loan Parties shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Eventexecute, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of executed, and delivered a Mortgage Recordation Event that has not been waived by pursuant to which the Control applicable Loan Party shall grant second priority (at subject only to the direction of Term Loan Agent’s Liens) Liens to the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the TrusteeCollateral Agent, for the benefit of the Secured Parties, legalin the AFI Australia Real Property now or hereafter owned by each Loan Party, valid andand the Fifth Amendment Mortgaged Property, and, if requested by the Collateral Agent, each of the other Mortgaged Property Support Documents, which Mortgages and enforceable first priority Liens on other Mortgaged Property Support Documents (subject to Permitted Liensthe limitations expressly provided in the definition thereof) shall not be required to be delivered prior to the date required by the last sentence of this clause (d), and security interests in, Wendy’s Properties’ right, title and . If at any time after the Fifth Amendment Effective Date any Loan Party shall acquire at any time or times hereafter any fee simple interest in and to each Contributed Owned other Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction that becomes Term Loan Priority Collateral subject to a mortgage in favor of the ManagerTerm Loan Agent and/or Term Loan Lenders, the Trustee shall such Loan Party agrees promptly to execute and deliver to the Collateral Agent, for its benefit and the benefit of the Lenders, as additional security and Collateral for the Obligations, a release of mortgage Mortgage in form and substance reasonably satisfactory to the Collateral Agent covering such Real Property. All Mortgages shall be held duly recorded (at Borrower’s expense) in escrow pending each office where such recording is required to constitute a closing of a sale of any Contributed Owned valid Lien on the Real Property or covered thereby. In respect to any New Owned Mortgage, the Loan Parties shall deliver to the Collateral Agent, at Borrowers’ expense, all Mortgaged Property Support Documents requested by the Collateral Agent. Without limiting the foregoing, no Real Property; provided that if such closing shall not occur, such release of mortgage Property shall be returned Mortgaged Property or otherwise be taken as Collateral unless Lenders receive forty-five (45) days advance notice and each Lender confirms to the Administrative Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the escrow agent directly Flood Laws or as otherwise satisfactory to the Trusteesuch Lender.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. Within 30 days of the Closing Date (i) Borrowers shall execute and deliver, or cause to be executed and delivered, to Lender, Mortgages in recordable form and such other agreements, instruments and documents as Lender may require, all in form and substance satisfactory to Lender, covering the Mortgaged Properties and (ii) Borrowers shall deliver to Lender, an ALTA lender's title insurance policy or other form of policy satisfactory to Lender (``Lender's Policy'') issued by a company or companies satisfactory to Lender, in an amount satisfactory to Lender, with all premiums paid thereon, and which shall insure that (x) the Obligations are secured by a valid first Lien on the Mortgaged Property subject only to the title exceptions approved by Lender, and (y) Borrowers are current in the payment of all applicable state and local taxes, charges and assessments affecting the Mortgaged Property. The Lender's Policy shall contain, to the extent available, (a) Upon the occurrence of a Mortgage Preparation Eventcomprehensive lender's endorsement, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Thirdb) a broad form zoning endorsement, including parking, (c) a survey accuracy endorsement, (d) a usury endorsement, (e) appropriate encroachment endorsements, (f) a tie-Party Leases). Within ninety in endorsement, (90g) days of such Mortgage Preparation Eventa last-dollar endorsement, the Master Issuer shall deliver such Mortgages to the Trustee(h) a variable rate endorsement, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty a revolving loan endorsement, and (20j) Business Days following such other endorsements as Lender may deem necessary or advisable, all in form and substance satisfactory to Lender. No title indemnities shall be established in connection with the issuance of the Lender's Policy. Concurrently with the delivery of the Mortgage on any Mortgaged Property, Lender shall have received evidence satisfactory to it as to whether (i) such Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a properly executed Mortgage to the Trustee ``Flood Hazard Property'') and (ii) the Trustee’s Actual Knowledge community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program; and, if such Mortgaged Property contains any Flood Hazard Property, Lender shall have received Borrower's written acknowledgement of a Rapid Amortization Event. The Trustee may engage a third-party service provider receipt of written notification from Lender (which shall be reasonably acceptable x) as to the Control Partyexistence of such Flood Hazard Property and (y) as to assist whether the community in delivering which such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays Flood Hazard Property is located is participating in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeNational Flood Insurance Program.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Fruehauf Trailer Corp)
Mortgages. (a) Upon Promptly after the occurrence acquisition of a Mortgage Preparation Eventany real property by any Loan Party, such Loan Party will furnish the Master Issuer shall cause the preparation of fully executed Mortgages Agent, for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for its benefit and the benefit of the Secured Parties Lenders, with a Mortgage covering each parcel of real property acquired by such Loan Party (the “Mortgaged Property”), together with an ALTA extended coverage lender’s policy of title insurance in a policy amount equal to one hundred percent (100%) of the greater of (x) the purchase price of such acquired property (including any liabilities assumed in connection with the acquisition) or (y) the fair market value of such property, insuring such Mortgage as a valid, enforceable first Lien on the Loan Party’s interest in the event a Mortgage Recordation Event occurs (Mortgaged Property covered thereby, subject only to Permitted Liens and to such other exceptions as are reasonably satisfactory to the Agent, together with an ALTA survey with respect to each parcel of the Mortgaged Property acquired, in form and substance reasonably satisfactory to the Agent, and legible copies of all documents affecting title, which shall show all recording information. The policy, including each of the exceptions to coverage contained therein, shall be subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction approval of the Control PartyAgent, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably issued by a title company acceptable to the Control Party) to assist in delivering such Mortgages Agent. Attached to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee policy shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventendorsements reasonably required by the Agent, including all Mortgage Recordation Fees pursuant to (a) a comprehensive endorsement (ALTA 100 or equivalent) covering restrictions and in accordance with the Priority of Payments. For the avoidance of doubtother matters, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(aa broad form zoning endorsement, which specifically ensures that applicable parking requirements, if any, have been satisfied, (c) above an endorsement ensuring that the lien of each Mortgage is valid against any applicable usury laws or anything else contained other laws prohibiting the charging of interest on interest in this Base Indenture or any other Related Documentthe state(s) where such Mortgaged Property is located, (d) an endorsement ensuring that the aggregate amount of all Obligations of Mortgaged Property has access to a dedicated public street, (e) a Revolving Loan endorsement (if available in such state), (f) a contiguity endorsement, (g) a survey and “same as” endorsement and (h) an endorsement deleting the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureso-called “doing business” exclusion.
Appears in 1 contract
Mortgages. (a) Upon On the occurrence of Closing Date, Borrowers will, or will cause the applicable Credit Party to, provide Administrative Agent with a Mortgage Preparation Eventwith respect to all owned Eligible Real Property, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets together with (excluding the Contributed Restaurant Third-Party Leases). Within ninety as applicable):
(90i) days evidence that counterparts of such Mortgage Preparation Eventhave been duly executed, the Master Issuer shall deliver acknowledged and delivered and are in a form suitable for filing or recording in all filing or recording offices that Administrative Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on such Mortgages to the Trustee, to be held owned Real Estate in favor of Administrative Agent for the benefit of the Secured Parties and that all filing and recording Taxes and fees have been paid or are otherwise provided in a manner reasonably satisfactory to Administrative Agent;
(ii) a Mortgage Policy or signed commitments in respect thereof together with such affidavits, certificates, and instruments and indemnification (including a so-called “gap indemnification”) as shall be required to induce the title insurance company to issue such Mortgage Policy and endorsements reasonably required by Administrative Agent and evidence of payment of title insurance premiums and expenses and all recording, mortgage, transfer and stamp Taxes and fees payable in connection with recording the Mortgage and issuing the Mortgage Policy;
(iii) a customary opinion of local counsel for such Credit Party in the state or jurisdiction in which each such parcel of owned Real Estate is located, with respect to the enforceability of the Mortgage and any related fixture filings and such other matters as are customary and as Administrative Agent may reasonably request and, where the applicable Credit Party granting the Mortgage on said Mortgaged Property is organized in such jurisdiction, and opinion regarding the due authorization, execution and delivery of such Mortgage;
(iv) an ALTA survey in respect of each such parcel of owned Real Estate (or existing survey or similar documentation together with a no change affidavit of such Mortgage Property) certified to Administrative Agent in form reasonably satisfactory to Administrative Agent and otherwise sufficient for the title insurance company to remove the standard survey exception form the Mortgage Policy and issue survey related endorsements thereto (if reasonably requested by Administrative Agent);
(v) zoning report from The Planning & Zoning Resource Corporation or equivalent zoning report or municipal zoning letter disclosing no current material building or zoning violations for such Mortgaged Property, providing that the continued operation of the properties and assets as currently conducted conforms (or is legal non-conforming) with all applicable zoning and building laws, rules or regulations or a zoning endorsement to the applicable Mortgage Policy;
(vi) to the extent an appraisal is required under the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”), an appraisal complying with FIRREA;
(vii) a Phase I environmental site assessment reports prepared by a qualified firm reasonably satisfactory to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent; and
(viii) a completed standard “life of loan” federal Emergency Management Agency Standard Flood Hazard Determination indicating whether any owned Real Estate is located in an area determined by the Federal Emergency Management Agency (or any successor agency) to be located in a special flood hazard area, and evidence of such flood insurance as may be required under applicable law; provided, however, that in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless any improvement on such recordation requirement property is waived located in an area determined by the Control PartyFederal Emergency Management Agency (or any successor agency) to be located in a special flood hazard area and Borrowers have not obtained flood insurance as required under Section 8.3, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which property shall be reasonably acceptable to the Control Party) to assist in delivering such excluded, treated as an Excluded Asset and any Mortgages to the applicable Governmental Authority and the Trustee thereon shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall automatically be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.released;
Appears in 1 contract
Samples: Credit Agreement (BRC Inc.)
Mortgages. (a) Upon Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the occurrence Premises or the improvements situated thereon or the building of which the Premises are a Mortgage Preparation Eventpart, provided, however, that if the Master Issuer shall cause the preparation mortgagee, trustee, or holder of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days any such mortgage or deed of trust elects to have Tenant’s interest in this Lease superior to any such Mortgage Preparation Eventinstrument, the Master Issuer shall deliver then by notice to Tenant from such Mortgages to the Trusteemortgagee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Eventtrustee or holder, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which this Lease shall be reasonably acceptable deemed superior to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordationlien, whether this Lease was executed before or after said mortgage or deed of trust. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notTenant, at any timetime hereafter upon ten (10) days request, exceed shall execute a commercially reasonable subordination, nondisturbance agreement, Commencement Date Agreement or estoppel certificate (certifying that the Indenture Threshold Amount of Indebtedness (as defined Lease is in Annex B) that may be secured by Debenture Restricted Assets under full force and effect, the Unsecured Debenture Indenture, determined in accordance with date the rent is paid and such other pertinent matters relating to the terms of the Unsecured Debenture IndentureLease. If in connection with obtaining financing for the Building, without requiring holders or for any ground or underlying lease(s), a recognized institutional lender shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its consent, provided such modifications do not increase the obligations of Tenant or decrease the obligations of Landlord hereunder or adversely affect, to a material extent, Tenant’s leasehold interest or Tenant’s use and enjoyment of the Unsecured Debentures Premises. After written request, should Tenant fail to deliver such documents as provided herein within the aforementioned period, Tenant hereby irrevocably appoints Landlord as attorney-in-fact for the Tenant with full power and authority to execute and deliver in the name of Tenant such documents if Tenant fails to deliver the same within such ten (10) day period and such documents as signed by Landlord or Landlord’s beneficiary, as the case may be, shall be equally and ratably secured in accordance with the terms fully binding on Tenant, if Tenant fails to delivery contrary documents within five (5) days after receipt by Tenant of a copy of the Unsecured Debenture Indenturedocuments by Landlord or Landlord’s beneficiary, as the case may be, on behalf of Tenant. Tenant agrees to provide Landlord, upon fifteen (15) days written request, annual financial statements should such statements be a requirement of any mortgagee or if required by a recognized institutional lender for the purpose of obtaining financing for the Premises or any project or building of which the Premises are a part.
Appears in 1 contract
Mortgages. Subject to the provisions of this Sublease and Condition 21 --------- of the Master Lease, Sublessee shall have the right, at any time during the term of this Sublease, to encumber its estate in the Subleased Premises pursuant to one or more mortgages or deeds of trust (a"Subleasehold Mortgage") Upon only to provide financing as set forth herein. Any right granted to Sublessee to encumber its estate in the occurrence Subleased Premises through grant of a Subleasehold Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages be subject to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty the maximum amount of any permanent or refinance Subleasehold Mortgage shall not exceed eighty percent (2080%) Business Days following delivery of a properly executed Mortgage to the Trustee appraised fair market value of the Subleased Premises, including the Facility; and (ii) the Trustee’s Actual Knowledge maximum amount of any permanent or refinance Subleasehold Mortgage on the land area of the Subleased Premises, excluding the Facility, shall not exceed one hundred percent (100%) of the total cost of any authorized capital improvements with a Rapid Amortization Eventuseful life in excess of five (5) years. The Trustee may engage a third-party service provider (which No Subleasehold Mortgage shall extend to or affect the fee, the reversionary interest or the estate of Sublessor and/or the Air Force in or to any land, building or improvements existing or subsequently constructed on the Subleased Premises. No Subleasehold Mortgage shall be reasonably acceptable binding upon Sublessor and/or the Air Force in the enforcement of its rights and remedies herein and by law provided, unless, and until a copy thereof shall have been delivered to Sublessor and the Air Force and such mortgage is authorized under this Section 19.7. Sublessor and Sublessee agree that so long as any authorized Subleasehold Mortgage is a lien on Sublessee's estate in the Subleased Premises, the mortgagee or beneficiary thereunder ("Subleasehold Mortgagee") shall have all of the following rights:
(1) If Sublessee shall have delivered to Sublessor prior written notice of the address of any Subleasehold Mortgagee, Sublessor will give to the Control Party) Subleasehold Mortgagee a copy of any notice under this Sublease at the time of giving such notice to assist in delivering such Mortgages Sublessee, and will give to the applicable Governmental Authority and Subleasehold Mortgagee notice received by Sublessor of any rejection of this Sublease by the Trustee shall pay all Mortgage Recordation Fees trustee in connection with bankruptcy of Sublessee or by Sublessee as debtor-in-possession. In such recordation. The Trustee case no termination of this Sublease or termination of Sublessee's right of possession of the Subleased Premises or reletting of the Subleased Premises by Sublessor predicated on the giving of any notice shall be reimbursed by effective unless Sublessor gives to the Master Issuer for any Subleasehold Mortgagee written notice or a copy of its notice to Sublessee of such default or termination, as the case may be. Notices, demands and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant requests from Sublessor to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee Subleasehold Mortgagee shall be under any duty mailed to the address given to Sublessor by certified or obligation registered mail and notices, demands and requests from the Subleasehold Mortgagee to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf Sublessor shall in any way be liable for any delays delivered in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in manner and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held address as specified in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeArticle 23 hereof.
(b2) Notwithstanding In the event of any default by Sublessee under the provisions of this Sublease, the Subleasehold Mortgagee will have the same concurrent grace periods as are given Sublessee for remedying such default or causing it to be remedied, plus, in each case, an additional period of thirty (30) days after the expiration thereof or after Sublessor has served a notice or a copy of a notice of default upon the Subleasehold Mortgagee, whichever is later.
(3) In the event Sublessee shall default under any of the provisions of this Sublease, the Subleasehold Mortgagee, without prejudice to its rights against Sublessee, shall have the right to cure such default within the applicable grace periods provided for in the preceding paragraph of this Section 8.37(a) above whether the same consists of the failure to pay rent or anything else contained in this Base Indenture or the failure to perform any other Related Documentmatter or thing which Sublessee is hereby required to do or perform, and Sublessor shall accept such performance on the aggregate amount of all Obligations part of the Master Issuer Subleasehold Mortgagee as though the same had been done or performed by Sublessee. For such purpose Sublessor and Wendy’s Properties secured Sublessee hereby authorize the Subleasehold Mortgagee to enter upon the Subleased Premises and to exercise any of Sublessee's rights and powers under any Indenture Document by this Sublease, and subject to the Debenture Restricted Assets shall notprovisions of this Sublease, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureSubleasehold Mortgage.
Appears in 1 contract
Mortgages. (a) Upon Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the occurrence of a Mortgage Preparation EventPremises or the improvements situated thereon or the Building, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation foregoing subordination in respect to record a Mortgage until any mortgage or deed of trust placed on the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to Project after the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties date hereof shall not be required tobecome effective until and unless the holder of such mortgage or deed of trust delivers to Tenant a non-disturbance agreement permitting Tenant, if Tenant is not then in default under this Lease after the expiration of all applicable notice and the Trustee may notcure periods, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction remain in occupancy of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined Premises in accordance with the terms of this Lease in the Unsecured Debenture Indentureevent of a foreclosure of any such mortgage or deed of trust; and further provided, however, that if the mortgagee, trustee or holder of any such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Tenant, at any time hereafter within fifteen (15) days after receipt of a request therefor, shall execute a commercially reasonable instrument or other document that may be reasonably requested by any mortgagee, trustee or holder for the purpose of evidencing the foregoing subordination. Tenant shall not terminate this Lease or pursue any other remedy available to Tenant hereunder for any default on the part of Landlord without requiring holders first giving written notice by certified or registered mail, return receipt requested, to any mortgagee, trustee or holder of any such mortgage or deed of trust, the name and post office address of which Tenant has received written notice, specifying the default in reasonable detail and affording such mortgagee, trustee or holder a reasonable opportunity (but in no event less than thirty (30) days) to make performance, at its election, for and on behalf of Landlord. Landlord represents that the current holder of a mortgage on the Building is Nationwide Life Insurance Company and Landlord shall deliver a subordination, non- disturbance and attornment agreement from the current mortgage holder in the form of Exhibit "B" attached hereto prior to the Commencement Date. In the event Landlord fails to deliver such subordination, non-disturbance and attornment agreement prior to the Commencement Date, Tenant shall be entitled to terminate this Lease by delivering written notice of such termination to Landlord prior to Landlord's delivery of the Unsecured Debentures same to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureTenant.
Appears in 1 contract
Samples: Lease Agreement (Active Power Inc)
Mortgages. Each Franchise Entity shall, within one hundred and eighty (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90180) days after the Closing Date with respect to each Contributed Owned Real Property owned by such Franchise Entity and within one hundred and twenty (120) days after the acquisition of any New Owned Real Property acquired by such Mortgage Preparation EventFranchise Entity on or after the Closing Date, the Master Issuer shall execute and deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties Parties, a mortgage or deed of trust in substantially the event form attached as Exhibit L hereto or otherwise in form reasonably acceptable to the Control Party and the Trustee and suitable for recordation under applicable law with respect to each such Contributed Owned Real Property and each such New Owned Real Property, to be held in escrow by the Trustee or its agent and recorded by the Trustee or its agent solely upon the occurrence of a Mortgage Recordation Event occurs (subject to Section 3.1(c)) hereof). Upon the occurrence of a Mortgage Recordation Event, unless such Mortgage Recordation Event is waived by the Control Party (at the direction of the Controlling Class Representative), the Trustee or its agent shall, at the direction of the Control Party, deliver the Mortgages record promptly within twenty (20) Business Days following receipt of the properly executed occurrence of such Mortgage Recordation Event all such Mortgages to with the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization EventGovernmental Authority. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such the Mortgages to the applicable Governmental Authority and with respect to such Mortgage for recordation. In addition, within twenty (20) Business Days of a Mortgage Recordation Event, the Franchise Entities shall exercise commercially reasonable efforts to deliver to the Trustee shall pay all Mortgage Recordation Fees (i) updates to the Closing Title Reports, (ii) lender’s Title Policies for those properties for which Closing Title Reports were previously obtained, and (iii) local counsel enforceability opinions with respect to the Mortgages delivered on properties in connection with such recordationthose states where a material amount of Contributed Owned Real Property and New Owned Real Property is located, as reasonably determined by the Securitization Entities. The Trustee shall be reimbursed by the Master Issuer Co-Issuers for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees Fees, all premiums, fees and all other costs (including reasonable attorney’s fees) incurred in connection with delivery of the Title Policies and all fees and costs incurred in connection with local counsel enforceability opinions, pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties the Franchise Entities shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage or cause the issuance of any Title Policy or local counsel enforceability opinion until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative)Event. Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens)on, and security interests in, Wendy’s Propertiesthe Franchise Entities’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Propertiesthe applicable Franchise Entity, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Base Indenture (DineEquity, Inc)
Mortgages. (a) Upon A. Lessee accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the occurrence Premises or the Improvements; provided, however, that if the mortgagee, trustee, or holder of a Mortgage Preparation Eventany such mortgage or deed of trust elects to have Lessee's interest in this Lease superior to any such instrument, then by notice to Lessee from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. In the Master Issuer event any mortgage and/or deed of trust is filed against the Premises, Lessor shall cause the preparation such mortgagee, trustee or holder of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Thirdany such mortgage or deed of trust to execute a subordination and non-Party Leases). Within ninety (90) days of such Mortgage Preparation Eventdisturbance agreement which Lessee shall execute, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee Lessee shall have no obligation agree to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee attornment provisions and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee other commercially reasonable terms, as Lessor's mortgagee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees require in connection with such recordationagreement. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notLessee, at any timetime hereafter on demand, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) shall execute any instruments, releases or other documents that may be required by any mortgagee for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage.
B. At any time when the holder of an outstanding mortgage, deed of trust or other lien covering Lessor s interest in the Premises has given Lessee written notice of its interest in this Lease, Lessee may not exercise any remedies for default by Lessor hereunder unless and until the holder of the indebtedness secured by Debenture Restricted Assets under such mortgage, deed of trust or other lien shall have received written notice of such default and the Unsecured Debenture Indenture, determined in accordance same time period afforded Lessor to cure such default shall thereafter have elapsed without the default having been cured. Opportunity to cure extended to Lessor's mortgagee may be coincident with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures cure period referred to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureparagraph 19G for defaults by Lessor.
Appears in 1 contract
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a "Mortgage") and any ground lease, master lease, or primary lease (a "Primary Lease") that now or hereafter covers any portion of the occurrence Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee") and to increases, renewals, modifications, consolidations, replacements, and extensions thereof; provided, however; so long as Tenant is the sole tenant of the Building the foregoing automatic subordination shall be conditioned on Tenant’s receipt of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets subordination non-disturbance and attornment agreement (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90“SNDA”) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee on terms and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be conditions reasonably acceptable to Tenant and any Landlord’s Mortgagee. Tenant agrees to execute and return any such SNDA with ten (10) days after written request provided the Control Partyterms and conditions thereof are reasonably acceptable to Tenant. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to assist in this Lease by delivering such Mortgages written notice thereof to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeTenant.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee the same opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations of any previous landlord, shall not be obligated to furnish the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness Construction Allowance (as defined in Annex Exhibit B) that may and shall not be secured bound by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined any amendment to which it did not consent in accordance with the terms writing nor any payment of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured rent made more than one month in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Samples: Lease Agreement (Luminex Corp)
Mortgages. The Lease shall be subordinate to any deed of trust, mortgage, or other security instrument (aa "Mortgage"), and any ground lease, master lease, or primary lease (a "Primary Lease") Upon that now or hereafter covers any portion of the occurrence Premises and Building (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to as "Landlord's Mortgagee"), and to increases, renewals, modifications, consolidations, replacements, and extensions of same. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to the Lease by delivering written notice of such subordination to Tenant. The provisions of this paragraph shall be self-operative, and no further instrument shall be required to effect such subordination; however, Tenant shall, from time to time, within ten (10) days after requested to do so by Landlord, execute any instruments that may be required by any Landlord's Mortgagee to evidence the subordination of the Lease to any such Mortgage or Primary Lease. If Xxxxxx fails to execute the same within such ten (10)-day period, Landlord may execute the same as attorney-in-fact for Xxxxxx. Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, and upon such party's request, Tenant shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been previously given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations under the Lease. Notwithstanding any such attornment or subordination of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages or Primary Lease to the TrusteeLease, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Landlord's Mortgagee shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation acts of any Mortgageprevious landlord, for the rejection of a Mortgage shall not be obligated to install any Tenant improvements, and shall not be bound by any recording office or for the failure amendment to which it did not consent in writing, nor to any payment of any Mortgage to create rent made more than one (1) month in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeadvance.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Standard Industrial Net Lease (Power Solutions International, Inc.)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages Subject to the Trusteelast sentence of this Section 21.(a), to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which this Lease shall be reasonably acceptable subordinate to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventdeed of trust, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record mortgage or cause to be recorded any Mortgage until the occurrence of other security instrument (a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens"MORTGAGE"), and security interests inany ground lease, Wendy’s Properties’ rightmaster lease, title and interest in or primary lease -------- (a "PRIMARY LEASE") that now or hereafter covers any portion of the Premises ------------- (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "LANDLORD'S MORTGAGEE") and to each Contributed Owned Real Property and each New Owned Real Propertyincreases, renewals, -------------------- modifications, consolidations, replacements, and the Proceeds extensions thereof. Upon However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. Except as provided in the last sentence of this Section 21.(a), no further instrument shall be required to effect such subordination; however, Tenant shall from time to time within ten days after request therefor, execute any instruments that may be required by any Landlord's Mortgagee to evidence the subordination of Wendy’s Properties, this Lease to any such Mortgage or Primary Lease. Landlord hereby represents and at warrants to Tenant that the direction Premises is not currently encumbered by a Mortgage or a Primary Lease. As a condition to the subordination of the Managerthis Lease to a Mortgage or a Primary Lease, the Trustee Landlord's Mortgagee, shall execute and deliver to Tenant a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occurcommercially reasonable non- disturbance, such release of mortgage shall be returned by the escrow agent directly to the Trusteesubordination, and attornment agreement.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord (but the Landlord's Mortgagee shall be subject to the offset rights of the Master Issuer Tenant under Section 20) and Wendy’s Properties secured under shall not be bound by any Indenture Document by the Debenture Restricted Assets shall not, at amendment to which it did not consent in writing nor any time, exceed the Indenture Threshold Amount payment of Indebtedness (as defined rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Mortgages. (a) Upon On the occurrence date hereof, Borrower and the Joining NY Guarantors have caused the holders of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Assigned Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of to irrevocably assign in full such Mortgage Preparation Event, the Master Issuer shall deliver such Assigned Mortgages to the Trustee, to be held Agent and such Assigned Mortgages are now owned by Agent for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c))Lenders. Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, Each Joining NY Guarantor shall concurrently herewith execute and deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the TrusteeAgent, for the benefit of the Secured PartiesLenders, legalan Amended and Restated Mortgage, valid Assignment of Leases and enforceable first priority Liens on Rent, Security Agreement and Fixture Filing dated as of even date herewith (subject to Permitted Liens)each, an “Amended and Restated Mortgage”, and security interests incollectively, Wendy’s Properties’ rightthe “Amended and Restated Mortgages”) in form and substance acceptable to the Agent, title which Amended and interest in Restated Mortgages shall amend, restate and supersede the Assigned Mortgages with respect to each Contributed Owned Real Property of the New York Mortgaged Properties and each shall be “Mortgages” under the Credit Agreement. Notwithstanding anything to the contrary contained herein or in the Amended and Restated Mortgages, it is the express intent of the parties that the Assigned Indebtedness evidenced by the Assigned Notes as secured by the Assigned Mortgages and the liens of said Assigned Mortgages shall continue in full force and effect and unimpaired by the consolidation and modifications set forth in this Amendment, the New Owned Real PropertyRevolving Credit Notes and/or the Amended and Restated Mortgages, and the Proceeds thereof. Upon the request of Wendy’s Properties, Amended and at the direction of the Manager, the Trustee Restated Mortgages shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if continue as security for such closing shall not occur, such release of mortgage shall be returned continuing obligations hereafter evidenced by the escrow agent directly to the TrusteeNew Revolving Credit Notes.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Credit Agreement (GTJ Reit, Inc.)
Mortgages. Subject to Tenant receiving a non-disturbance agreement from the mortgagee of the Property, Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or the improvements situated thereon or the Building, provided, however, that if the mortgagee, trustee or holder of any such mortgage or deed of trust elects to have Tenant's interest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this lease was executed before or after said mortgage or deed of trust. If any mortgage, deed of trust or security agreement is enforced by the mortgagee, the trustee, or the secured party, Tenant shall, upon request, attorn to the mortgagee or purchaser at such foreclosure sale, or any person or party succeeding to the interest of Landlord as a result of such enforcement, as the case may be, and execute instrument(s) confirming such attornment. In the event of such enforcement and upon Tenant's attornment as aforesaid, Tenant will automatically become the tenant of the successor to Landlord's interest without change in the terms or provisions of this Lease; provided, however, that such successor to Landlord's interest shall not be bound by (a) Upon any payment of Rent for more than one month in advance (except prepayments for security deposits, if any), or (b) any amendments or modifications of this Lease made without the occurrence prior written consent of such Lessor or mortgagee. Tenant, at any time hereafter on demand, shall execute any instruments, releases or other documents that may be required by any mortgagee, trustee or holder for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage or to confirm Tenant's agreement of attornment. In consideration of Tenant's subordination and attornment agreements set forth above, Landlord shall provide Tenant with a Mortgage Preparation Eventnon-disturbance agreement from its lender. Tenant shall not terminate this Lease or pursue any other remedy available to Tenant hereunder for any default on the part of Landlord without first giving written notice by certified or registered mail, return receipt requested, to any mortgagee, trustee or holder of any such mortgage or deed of trust, the Master Issuer shall cause name and post office address of which Tenant has received written notice, specifying the preparation of fully executed Mortgages for recordation against the Real Estate Assets default in reasonable detail and affording such mortgagee, trustee or holder a reasonable opportunity (excluding the Contributed Restaurant Third-Party Leases). Within ninety but in no event less than thirty (9030) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages days) to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shallmake performance, at the direction of the Control Partyits election, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeLandlord.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. The Lessee shall have the unrestricted right to mortgage, pledge or hypothecate this Lease and/or the Lessee’s interest herein, provided, however, any such mortgage, pledge or hypothecation shall be subject to the terms of this Lease and the rights of the Lessor hereunder. If the Lessee shall mortgage this Lease, and if the holder of such mortgage shall—
(i) be a recognised institutional lender; and
(ii) notify the Lessor in writing of its interest (a “Qualifying Mortgage”), the Lessor agrees that the following provisions shall apply—
(a) Upon the occurrence Lessor shall not accept a surrender by the Lessee of this Lease, or consent to a Mortgage Preparation Eventmodification thereof, without the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit prior written consent of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction holder of the Control Party, deliver the Mortgages within twenty Qualifying Mortgage (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative“Holder”); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.;
(b) Notwithstanding Section 8.37(athe Lessor shall, upon giving the Lessee any notice under this Lease, give a copy of such notice to the Holder, and such Holder shall, if the notice relates to a default of the Lessee, thereupon have the same period as the Lessee to remedy the default complained of, and the Lessor shall accept such performance by the Holder as if the same had been performed by the Lessee. If the nature of the default does not involve the payment of rent and is such that it cannot be cured by a Holder within the period provided to the Lessee, the Lessor will not exercise its right to terminate this Lease by reason of the default specified so long as the Holder shall have commenced to cure the default complained of and is diligently and continuously prosecuting the cure thereof;
(c) above The Lessor agrees that, in the event of a termination of this Lease, the Lessor shall give the Holder written notice that the Lease has been terminated, together with a statement of all sums due to the Lessor at that time under the Lease, but for such termination, and all other defaults, if any, under this Lease then known to the Lessor. The Lessor shall, upon request of the Holder, enter into a new lease of the premises with the Holder or anything else contained its designee for a term equal to what would have been the remainder of the term of this Lease if this Lease had not been terminated, which new lease shall be effective as of the date of such termination, and shall be at the same Rent and upon the same unfulfilled terms, provisions, covenants and agreements as are herein contained, provided that the Holder—
(i) shall make written request upon the Lessor for such new lease within forty-five (45) days after the termination of this Lease,
(ii) executes and delivers such new lease in its own name or that of its designee within forty-five (45) days after the execution and delivery of the new lease by the Lessor,
(iii) shall pay to the Lessor at the time of the execution and delivery of said new lease any and all sums which would at the time of the execution and delivery thereof be due pursuant to this Base Indenture Lease but for such termination, and
(iv) upon the execution of such new lease, cures within thirty (30) days thereof (unless such default requires work to be performed, acts to be done, or conditions to be removed which cannot by their nature reasonably be performed, done or removed, as the case may be, within such thirty (30) day period, in which case no default shall be deemed to exist so long as the Holder shall have commenced curing the same within such thirty (30) day period and shall diligently and continuously prosecute the same to completion) all non-monetary defaults of which it has notice (and which are susceptible of cure by such Holder) remaining uncured under this Lease as of the date of execution and delivery of the new lease;
(d) so long as any leasehold mortgage is in existence, the Lessor’s estate in the Premises and the estate of the Lessee in the Premises shall not merge, but shall remain separate and distinct, notwithstanding the acquisition of both estates by the Lessor, or by the Lessee, or by any leasehold mortgagee, or by any other Related Documentparty;
(e) anything herein contained to the contrary notwithstanding, if the Holders of more than one leasehold mortgage shall make written request for a new lease or shall request to be granted any other rights under this paragraph 12, the aggregate amount Lessor shall enter into the new lease with, or grant such rights, to the Holder whose lien is prior in right;
(f) notwithstanding the provisions of all Obligations this Lease restricting the right of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall notLessee to assign this Lease, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that this Lease may be secured by Debenture Restricted Assets under assigned, without the Unsecured Debenture Indenture, determined in accordance with the terms consent of the Unsecured Debenture IndentureLessor, without requiring holders to or by a Holder, or its nominee, or pursuant to foreclosure or similar proceedings or the sale, assignment or other transfer in lieu thereof or the exercise of any right, power of remedy of the Unsecured Debentures Holder under its leasehold mortgage. No such assignment shall release the Lessee of any of its obligations under this Lease; provided, however, that if the Holder, or its nominee, shall for any period of time succeed to the Lessee’s interest under this Lease, then the Holder, or its nominee, as the case may be, shall upon making an assignment of their interest under this Lease, be equally and ratably secured in accordance released from all obligations thereunder, except with respect to the terms of the Unsecured Debenture Indenturerent for such period.
Appears in 1 contract
Samples: Lease Agreement
Mortgages. Tenant accepts this Lease subject and subordinate to any mortgages and/or deeds of trust now or at any time hereafter constituting a lien or charge upon the Premises or the improvements situated thereon; provided, however, that if the mortgagee, trustee, or holder of any such mortgage or deed of trust elects to have Tenaxx'x xnterest in this Lease superior to any such instrument, then by notice to Tenant from such mortgagee, trustee or holder, this Lease shall be deemed superior to such lien, whether this Lease was executed before or after said mortgage or deed of trust. Tenant, at any time hereafter on demand, shall execute any instruments, releases or other documents that may be required by any mortgagee, trustee or holder for the purpose of subjecting and subordinating this Lease to the lien of any such mortgage or deed of trust. If any future mortgagee or beneficiary under a mortgage or deed of trust hereafter placed upon the Premises desires to subordinate its mortgage or deed of trust to this Lease, Tenaxx xxxees that it shall promptly execute such instruments as may be reasonably required by such mortgagee or beneficiary in order to effect such subordination (aTenant agreeing that an instrument in substantially the form of Exhibit "I" attached hereto and made hereof is acceptable to Tenant). Landxxxx xxxees to obtain and deliver to Tenant a subordination non-disturbance and attornment agreement in substantially the form attached hereto as Exhibit "H" and made a part hereof ("SNDA") Upon executed by Landxxxx'x xurrent mortgagee with respect to the occurrence of a Mortgage Preparation EventBuilding. Tenaxx xxxees to enter into the SNDA with such mortgagee promptly upon Landxxxx'x xequest therefor. Notwithstanding the foregoing, the Master Issuer shall cause subordination of this Lease to any mortgage or deed of trust that is hereafter placed upon the preparation Building is expressly conditioned upon Tenant and the mortgagee or beneficiary under any such mortgage or deed of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties trust entering into an SNDA in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be form reasonably acceptable to Tenant (Tenant hereby agreeing that an SNDA substantially in the Control Party) form that is attached hereto as Exhibit "H" and made a part hereof is acceptable to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class RepresentativeTenant). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation Tenaxx xxxees to inspect, review or examine enter into such SNDA with any such Mortgages mortgagee or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteebeneficiary promptly upon Landxxxx'x xequest therefor.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Lease Agreement (Advancepcs)
Mortgages. (a) Upon BUYER agrees to purchase the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (property subject to Section 3.1(c)any existing mortgages disclosed on Appendix A and deducted in determining SELLER’s Equity (“Disclosed Mortgages”). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction sale of the Control Partyproperty by BUYER to a third party buyer, deliver the BUYER must either satisfy any Disclosed Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages on or prior to the applicable recording office for recordation (unless closing date of such recordation requirement is waived by sale or obtain the Control Party, acting at the direction unconditional release of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs liability of SELLER and expenses in connection EMPLOYER with respect to such Mortgage Recordation EventDisclosed Mortgages. BUYER may pay off and satisfy the Disclosed Mortgage(s) on the property on or after the Possession Date, including or it may continue to maintain the Disclosed Mortgage(s) and make all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage payments due until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspectDisclosed Mortgages are paid off and satisfied, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occurSELLER so requests in writing, such release BUYER, with EMPLOYER’s agreement will pay off any Veterans Administration mortgage in order to enable SELLER to retain its Veterans Administration mortgage eligibility, provided that SELLER refunds any portion of mortgage BUYER’s offer attributable to the assumability of the Veterans Administration mortgage. When BUYER pays off any Disclosed Mortgage, SELLER shall be returned responsible for obtaining from the mortgage lender any deposit or escrow fund held by the lender for real estate taxes, insurance or other items, but if the BUYER continues to maintain the mortgage after the Possession Date, SELLER will receive credit for any escrow agent directly funds, will assign its right to receive such amounts to BUYER and will otherwise cooperate in having any such amounts paid to BUYER when the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related DocumentDisclosed Mortgage is paid off including, the aggregate amount of all Obligations if necessary, SELLER’S authorization of the Master Issuer and Wendy’s Properties secured under BUYER to endorse any Indenture Document by checks in your name for money properly due the Debenture Restricted Assets shall notBUYER. In the event that the said loans are not paid off prior to June 1, 2008, BUYER agrees to pay said loans at any that time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Relocation Real Estate Purchase and Sale Agreement (Vertis Inc)
Mortgages. 21.1 Landlord will provide Tenant with an SNDAA (adefined below) Upon from all lenders and ground lessors having an interest in the occurrence Premises promptly following the execution of a Mortgage Preparation Eventthis Lease. This Lease and all of Tenant's rights hereunder shall be subject and subordinate at all times to any deed of trust, mortgage or ground lease which may now or hereafter affect the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets Premises, and to all renewals, modifications, consolidations, replacements and extensions thereof (excluding the Contributed Restaurant Third-Party Leasescollectively, "SECURITY DOCUMENTS"). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages Subject to the Trusteeterms of this Paragraph 21.1, to such subordination shall be held effective without the necessity of the execution by Tenant of any additional document for the benefit purpose of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c))evidencing or effecting such subordination. Upon the occurrence of a Mortgage Recordation EventIf any such Security Document is foreclosed or terminated, the Trustee shallas applicable, at the direction election of the Control PartyLandlord's successor in interest, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the TrusteeTenant agrees, for the benefit of such successor in interest, to attorn to such successor in interest and become its tenant on the Secured Parties, legal, valid terms and enforceable first priority Liens on (subject to Permitted Liens)conditions of this Lease for the remainder of the Term, and security interests inif required, Wendy’s Properties’ right, title and to enter into a new lease with such successor in interest in the form of this Lease; provided, however, that Tenant's agreement hereunder to (a) subordinate its interest hereunder to the lien of any Security Document and (B) to each Contributed Owned Real Property attorn to and each New Owned Real Propertyrecognize as the landlord hereunder, the Holder of such Security Document is conditioned upon the delivery to Tenant of a subordination, non-disturbance, and attornment agreement (each, an "SNDAA") in favor Tenant (on each such Holder's standard form of SNDAA (or in any other commercially reasonable form)). Landlord or any Holder shall have the Proceeds thereofright to subordinate or cause to be subordinated any such Security Document to this Lease and in such case, in the event of the termination or transfer of Landlord's estate or interest in the Premises by reason of any termination or foreclosure of any Security Document, Tenant shall, notwithstanding such subordination, attorn to and become the Tenant of the successor in interest to Landlord at the option of such successor in interest. Upon At the request of Wendy’s PropertiesLandlord or the holder ("HOLDER") of any Security Document, Tenant shall, within ten (10) business days, execute, acknowledge and deliver promptly in recordable form any commercially reasonable instrument or SNDAA that Landlord or such Holder may request. In addition, at the direction request of Landlord or any Holder of any Security Document and subject to reimbursement as provided above, Tenant shall, within ten (10) business days, execute, acknowledge and deliver promptly in recordable form any instrument that Landlord or such holder may request to make this Lease superior to such Security Document.
21.2 Tenant agrees to give each Holder of any Security Document, in a manner required under Paragraph 22.21, below, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant has been notified in writing of the Manageraddress of such Holder (hereafter, a "NOTIFIED PARTY"). Tenant further agrees that if Landlord shall have failed to cure such default within thirty (30) days after such notice to Landlord (or if such default cannot be cured or corrected within that time, then within such additional time as may be necessary if Landlord has commenced such cure within such thirty (30) days and is diligently pursuing the remedies or steps necessary to cure or correct such default), then prior to Tenant pursuing any remedy for such default provided hereunder, at law or in equity, the Trustee Notified Party shall execute and deliver a release of mortgage have an additional thirty (30) days to be held in escrow pending a closing of a sale of any Contributed Owned Real Property attempt to cure or any New Owned Real Property; provided that correct such default (or if such closing shall default cannot occur, such release of mortgage shall reasonably be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above cured or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any corrected within that time, exceed the Indenture Threshold Amount of Indebtedness (then such additional time as defined in Annex B) that may be secured by Debenture Restricted Assets under necessary if the Unsecured Debenture Indenture, determined in accordance with Notified Party has commenced within such thirty (30) days and is diligently pursuing the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures remedies or steps necessary to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturecure or correct such default).
Appears in 1 contract
Samples: Lease Agreement (Emerson Radio Corp)
Mortgages. Tenant accepts this Lease subject to any deeds of trust, security interests or mortgages which might now or hereafter constitute a lien upon the Premises and to deed restrictions, zoning ordinances and other building and fire ordinances and governmental regulations relating to the use of the Premises. Tenant shall at any time hereafter, on demand, execute any instruments, releases or other documents that may be reasonably required by any mortgagee for the purpose of subjecting and subordinating this Lease to the lien of any such deed of trust, security interest or mortgage. Tenant agrees to attorn to any mortgagee, trustee under a deed of trust or purchaser at a foreclosure sale or trustee's sale as Landlord under this Lease. With respect to any deed of trust, security interest or mortgage hereafter constituting a lien on the Premises, Landlord, at its sole option, shall have the right to waive the applicability of this paragraph so that this tease will not be subject and subordinate to any such deed of trust, security interest or mortgage. Tenant shall upon request by Landlord, execute and deliver from time to time, one or more instruments certifying mat this Lease is in full force and unmodified (a) Upon or if modified stating the occurrence date and nature of a Mortgage Preparation Eventeach modification), the Master Issuer shall cause date through which the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation EventBasic Rental has been paid, the Master Issuer shall deliver unexpired term of this Lease, and such Mortgages other matters pertaining to this Lease as may be requested by Landlord. Notwithstanding the Trusteeforegoing, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties this Lease shall not be required tosubordinate to mortgages or deeds or trust hereafter arising unless and until Landlord has provided Tenant with an agreement (herein,, and "Non-Disturbance Agreement") from the Trustee may notholder of such lien confirming that so long as Tenant is not in default in the performance of any covenants, record conditions, terms or cause to provisions of this Lease, Tenant's right of occupancy under this Lease shall not be recorded any Mortgage until the occurrence of disturbed. Landlord shall provide Tenant with a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable Non-Disturbance Agreement for any delays in mortgage now affecting the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly Premises prior to the TrusteeCommencement Date.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Mortgages. Tenant hereby agrees that this Lease shall be subject and subordinate to any deed of trust, mortgage or other security instrument (a) Upon each, a “Mortgage”), or any master lease or primary lease (each a “Primary Lease”), that now or hereafter covers the occurrence of a Mortgage Preparation EventPremises and to all renewals, modifications, consolidations, replacements and extensions thereof and to each advance made or hereafter to be made thereunder, provided the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days holder of such Mortgage Preparation Eventor the lessor under such Primary Lease (and any of their respective successors) (collectively, the Master Issuer shall deliver such Mortgages “Landlord’s Mortgagee”) delivers to the Trustee, to be held for the benefit of the Secured Parties Tenant a Non-disturbance Agreement in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be form reasonably acceptable to the Control Party) Tenant whereby the Landlord’s Mortgagee agrees not to assist disturb Tenant’s possession of the Premises so long as Tenant is not in delivering such Mortgages default under this Lease and further agrees to continue to recognize the applicable Governmental Authority interest of Tenant under this Lease and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance that this Lease will continue with the Priority same force and effect, without the necessity of Payments. For the avoidance of doubtexecuting any new or amended lease, Wendy’s Properties shall not be required to, and the Trustee may not, record as if such holder or cause to be recorded any Mortgage until the occurrence of lessor (or its successor) had entered into a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian lease on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid terms and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else conditions as those contained in this Base Indenture Lease. In confirmation of such subordination, Tenant shall, at Landlord’s request, execute promptly any appropriate certificate or any other Related Document, instrument that Landlord may request. In the aggregate amount of all Obligations event of the Master Issuer and Wendy’s Properties secured under any Indenture Document enforcement by the Debenture Restricted Assets shall notLandlord’s Mortgagee of the remedies provided for by law or by any such Mortgage or Primary Lease, at Tenant will, upon request of any timeperson or party succeeding to the interest of said trustee, exceed beneficiary or landlord as a result of such enforcement, automatically become the Indenture Threshold Amount of Indebtedness (as defined tenant of, and attorn to, such successor in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined interest without change in accordance with the terms or provisions of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturethis Lease.
Appears in 1 contract
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a "Mortgage"), and any ground lease, master lease, or primary lease (a "Primary Lease") that now or hereafter covers any portion of the occurrence Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord’s Mortgagee"), and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord’s Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the case may be) to this Lease by delivering written notice thereof to Tenant. The provisions of this Section 21 shall be self-operative, and no further instrument shall be required to effect such subordination; however, Tenant shall from time to time within ten days after request therefor, execute any instruments that may be required by any Landlord’s Mortgagee to evidence the subordination of this Lease to any such Mortgage or Primary Lease. If Tenant fails to execute the same within such ten-day period, Landlord may execute the same as attorney-in-fact for Tenant. Notwithstanding the foregoing, the subordination of this Lease to future Mortgages shall be subject to Tenant’s receipt of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Thirdnon-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be disturbance agreement reasonably acceptable to Tenant which provides in substance that so long as Tenant is not in default under the Control Party) to assist in delivering such Mortgages to Lease past applicable cure periods, its use and occupancy of the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Premises shall not be required to, and the Trustee may not, record or cause to be recorded disturbed notwithstanding any Mortgage until the occurrence default of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be Landlord under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Tenant shall attorn to any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party’s request, and shall execute such agreements confirming such attornment as such party may reasonably request. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord’s Mortgagee whose address has been given to Tenant, and affording such Landlord’s Mortgagee an opportunity to perform Landlord’s obligations hereunder during any period expressly allowed Landlord hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord’s Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Initial Improvements, and shall not be bound by any amendment to which it did not consent in writing nor any payment of rent made more than one month in advance.
(d) Tenant agrees to execute a Subordination, Non-Disturbance and Attornment Agreement in the Master Issuer and Wendyform of Exhibit "F" attached hereto at the time of execution of this Lease. Landlord agrees that it will use good faith efforts to cause Landlord’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures Mortgagee to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureexecute such SNDA.
Appears in 1 contract
Mortgages. (a) Upon This Lease shall be subordinate to any deed of trust, mortgage or other security instrument (a "Mortgage") that now or hereafter covers any portion of the occurrence Premises (the mortgagee under any Mortgage is referred to herein as "Landlord's Mortgagee") and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage to this Lease by delivering written notice thereof to Tenant. The provisions of this Section 21 shall be self-operative, and no further instrument shall be required to effect such subordination; however, Landlord shall use commercially reasonable efforts to deliver to Tenant, and Tenant shall execute from time to time within ten days after delivery thereof to Tenant, an instrument from each Landlord's Mortgagee evidencing the subordination of this Lease to any such Mortgagee or Primary Lease (which instrument shall include a Mortgage Preparation Event, the Master Issuer commercially reasonable non-disturbance provision in favor of Tenant and shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leasesbe on Landlord's Mortgagee's standard form). Within ninety (90) days of such Mortgage Preparation EventNotwithstanding the foregoing, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Tenant shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation subordinate to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by nor shall this Lease be subordinate to any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Managerfuture Mortgage, the Trustee shall execute and deliver a release proceeds of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property which were not used for acquisition of, or any New Owned Real Property; provided that if such closing shall not occurimprovements to, such release of mortgage shall be returned by the escrow agent directly to the TrusteePremises.
(b) Notwithstanding Section 8.37(a) above Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or anything else contained otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. If requested by Landlord's Mortgagee in this Base Indenture or writing, Tenant shall not seek to enforce any other Related Documentremedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the aggregate amount of all Obligations of default in reasonable detail to the Master Issuer Mortgagee whose address has been given to Tenant, and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures affording such Landlord's Mortgagee a reasonable opportunity to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureperform Landlord's obligations hereunder.
Appears in 1 contract
Samples: Lease Agreement (Grande Communications Holdings, Inc.)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance Contemporaneously with the Priority execution of Payments. For the avoidance of doubtthis Lease, Wendy’s Properties shall not be required to, Tenant and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee Landlord shall execute and deliver a release of mortgage acknowledge, and Landlord shall exercise commercially reasonable efforts to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by obtain from the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness existing Mortgagee (as defined in Annex B) that may be secured by Debenture Restricted Assets under this Article XXI), an SNDA on the Unsecured Debenture Indenture, determined in accordance with existing Mortgagee's form attached as Exhibit J and incorporated herein (“Existing Mortgage SNDA”). Subject to the terms of a fully executed SNDA, this Lease is subject and subordinate to any future ground or underlying leases (each a “Ground Lease”) and to any mortgage, deed of trust, security interest, or title retention interest now or hereafter affecting the Unsecured Debenture IndentureLand, without requiring holders Building or Project (each a “Mortgage”) and to all renewals, modifications, consolidations, replacements and extensions thereof. This subordination shall be self-operative; however, in confirmation thereof, Tenant shall, within 10 business days of receipt thereof, execute any commercially reasonable instrument (“SNDA”) that Landlord, any ground lessor under a Ground Lease (“Ground Lessor”) or any holder of any note or obligation secured by a Mortgage (“Mortgagee”) may request confirming such subordination or Tenant’s attornment to such Ground Lessor or purchaser of Landlord’s interest under this Lease, as applicable, and providing, among other things, that so long as there is no Event of Default hereunder, Tenant’s use and occupancy of the Unsecured Debentures Premises and its rights under this Lease shall not be disturbed or affected following, as applicable, the termination of such Ground Lease or by any foreclosure or other action (or by the delivery or acceptance of a deed or other conveyance or transfer in lieu thereof) which may be instituted or undertaken in order to be equally and ratably secured in accordance with enforce any right or remedy available under the Mortgage. Notwithstanding the foregoing, before any foreclosure sale under a Mortgage or termination of a Ground Lease, subject to the terms of any applicable SNDA, the Unsecured Debenture IndentureMortgagee or Ground Lessor, as applicable, shall have the right to subordinate the Mortgage or Ground Lease, as applicable, to this Lease, in which case, in the event of such foreclosure or termination, this Lease may continue in full force and effect and Tenant shall attorn to and recognize as its landlord, as applicable, the Ground Lessor or the purchaser at foreclosure of Landlord’s interest under this Lease.
Appears in 1 contract
Mortgages. (a) Upon As soon as available after the occurrence of a Mortgage Preparation EventFirst Amendment Date, but in any event by not later than February 10, 1999, the Master Issuer Borrower shall deliver or cause to be delivered to the preparation Collateral Agent, in respect of fully executed Mortgages for recordation against that portion of the Aggregate Real Estate Assets Properties as are owned by the Obligors on the First Amendment Date on which any manufacturing facilities (excluding the Contributed Restaurant Third-Party Leases). Within ninety whether open or closed) are situated, and all contiguous, adjacent and related real property, including, in Pike County, Georgia, all timberland, consisting of 900 acres, more or less (90) days of such Mortgage Preparation Eventherein, the Master Issuer shall deliver such Mortgages "Mortgaged Real Property"), the following:
(i) a mortgage, deed to secure debt, deed of trust or similar instrument of conveyance (herein, a "Mortgage"), conveying to the Trustee, to be held Collateral Agent for the benefit of all Agents and Lenders a first priority Lien on the Secured Parties Mortgaged Real Property, free and clear of all other Liens and encumbrances excepting only those which are approved in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived writing by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and Collateral Agent;
(ii) a mortgagee's title insurance policy (or binder committing to issue same), in customary ALTA form, from a title insurer selected by the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably Borrower, at its expense, but acceptable to the Control Party) to assist Collateral Agent, insuring the Collateral Agent's interest as mortgagee in delivering such Mortgages the Mortgaged Real Property in an amount of coverage acceptable to the applicable Governmental Authority Collateral Agent and containing only such exceptions and limitations as shall be acceptable to the Trustee shall pay all Mortgage Recordation Fees Collateral Agent;
(iii) a current, as-built boundary line survey of the Mortgaged Real Property from a registered land surveyor, selected by the Borrower, at its expense, but acceptable to the Collateral Agent in customary ALTA form;
(iv) as appropriate, a lessor's acknowledgment and consent in respect of any Mortgaged Real Property which is leased; and
(v) such other, similar or related requirements as the Collateral Agent may require in connection with such recordationthe foregoing. The Trustee shall be reimbursed by Additionally, the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant Lenders reserve the right to and in accordance require that Borrower comply with the Priority foregoing requirements as to any one or more or all other parcels of Payments. For the avoidance of doubtreal property, Wendy’s Properties whether now owned or hereafter acquired, which Borrower shall not be required todo as soon as possible after, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall but in any way be liable for any delays in the recordation event within thirty (30) days after, receipt of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the written request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided therefor from Agent that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteeit do so.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Credit and Security Agreement (Thomaston Mills Inc)
Mortgages. (a) Upon the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases)Attached hereto as Exhibit "H" is Landlord's Mortgagee form. Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which This Lease shall be reasonably acceptable subordinate to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventdeed of trust, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record mortgage or cause to be recorded any Mortgage until the occurrence of other security instrument (a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens"Mortgagee"), and security interests inany ground lease, Wendy’s Properties’ rightmaster lease, title and interest in or primary lease (a "Primary Lease") that now or hereafter covers any portion of the Premises (the mortgagee under any Mortgage or the lessor under any Primary Lease is referred to herein as "Landlord's Mortgagee"), and to each Contributed Owned Real Property and each New Owned Real Propertyincreases, renewals, modifications, consolidations, replacements, and the Proceeds extensions thereof. Upon However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (as the request case may be) to this Lease by delivering written notice thereof to Tenant. Subject to Tenant's receipt of Wendy’s Propertiesa commercially reasonable non-disturbance agreement from Landlord's Mortgagee, the provisions of this Section 21 shall be self-operative, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage no further instrument shall be returned required to effect such subordination; however, Tenant shall from time to time within ten business days after request therefor, execute any instruments that may be reasonably required by any Landlord's Mortgagee to evidence the escrow agent directly subordination of this Lease to the Trusteeany such Mortgage or Primary Lease.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request, provided such party assumes the obligations of Landlord under this Lease. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(c) Notwithstanding Section 8.37(a) above any such attornment or anything else contained in subordination of a Mortgage or Primary Lease to this Base Indenture or any other Related DocumentLease, the aggregate amount Landlord's Mortgagee shall not be liable for any acts of all Obligations any previous landlord, shall not be obligated to install the Building Shell, and shall not be bound by any amendment to which it did not consent in writing nor any payment of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined Rent made more than one month in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indentureadvance.
Appears in 1 contract
Mortgages. (a) Upon 9.2.1 Although the occurrence Lessee may Mortgage its interest in this Lease without the consent of the Lessor and the Locatee, no Mortgage is valid until the proposed Mortgagee has entered into a Mortgage Acknowledgement Agreement, substantially in the form attached as Schedule D, with any changes as may be agreed to by the Parties and the Mortgagee.
9.2.2 The Lessee will ensure that any Mortgage does not conflict with the terms of this Lease and, by complying with such Mortgage, the Lessee will not be in default of this Lease.
9.2.3 If the Lessee defaults on an obligation in a Mortgage, then the Lessor or the Locatee may cure the default under the Mortgage on the Lessee’s behalf and all expenses incurred by such Party to cure such default are payable by the Lessee as Additional Rent or Locatee Fees, as the case may be.
9.2.4 If the Lessee defaults on an obligation in this Lease, then:
9.2.4.1 any default notice issued by a Party under section 10 will not be valid for any purpose unless and until a copy of such notice is also provided to all Mortgagees of valid Mortgages;
9.2.4.2 a Mortgagee of a valid Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record cure or cause to be recorded any Mortgage until the occurrence cured a default of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian this Lease on behalf of the Trustee shall be Lessee within the time period specified in this Lease or in the applicable default notice, whichever is greater, from the date of delivery of the notice to the Mortgagee; and
9.2.4.3 if the Mortgagee notifies each of the Lessor and the Locatee within the cure period that the Mortgagee has taken or intends to take formal proceedings to enforce its Mortgage and protect its position, then:
9.2.4.3.1 the Mortgagee will have sufficient time to pursue such proceedings to their conclusion, acting expeditiously to enforce its Mortgage and protect its position;
9.2.4.3.2 once such proceedings are commenced, the Lessor and the Locatee will not exercise any of their respective remedies (except for their respective rights to cure in accordance with sections 10.2.4 and 10.5.3), on the condition that the Mortgagee actively prosecutes such proceedings to their conclusion; and
9.2.4.3.3 if, upon the conclusion of such proceedings, the rights of the Lessee have been released to the Mortgagee or foreclosed or sold, then, on the condition that all previous defaults under this Lease that are capable of being cured have been fully cured, the Mortgagee or, subject to section 9.2.6, the purchaser will become the Lessee.
9.2.5 Notwithstanding anything contained in this Lease, all obligations to construct Improvements in this Lease will not apply to a Mortgagee of a valid Mortgage during a period in which the Mortgagee is exercising its rights under section 9.2.4.3.
9.2.6 A Mortgagee may exercise all of its rights and remedies with respect to this Lease and the Lessee’s leasehold interest in the Premises, including the right to sell or assign the Lease or to appoint a receiver of the Lessee or a receiver of the Premises (either by appointment under a security instrument or by an appointment by a court order) and take possession and administer the Premises (including with respect to the collection of rents and realizing any duty other rights or obligation to inspectbenefits of the Lessee in respect of the Premises), review or examine on the condition that, if the Mortgagee exercises any such Mortgages power of sale or assignment, then the sale or assignment will not be valid without the consent of each of the Lessor and the Locatee and until the proposed assignee has entered into an Assignment Consent Agreement, substantially in the form attached as Schedule C, with any changes as may be agreed to determine that by the same are validParties and the assignee.
9.2.7 The Lessee will not surrender any part of this Lease or the Premises, bindingand the Lessor and the Locatee will not accept any such surrender, legally effectivewithout the prior written consent of each Mortgagee of a valid Mortgage.
9.2.8 Notwithstanding any other provisions of this Lease, properly endorsed, genuine, enforceable or appropriate a Mortgagee will not be responsible for the represented purpose Lessee’s obligations in this Lease, including any requirement to take out or that they are maintain insurance or any requirement to indemnify, unless and until either:
9.2.8.1 the Mortgagee becomes the Lessee by obtaining an order absolute of foreclosure in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation respect of any Mortgagethis Lease or by taking an assignment of this Lease, and then only for the rejection of a Mortgage by any recording office or for period in which the failure of any Mortgage to create Mortgagee is the Lessee; or
9.2.8.2 the Mortgagee is in favor possession of the Trustee, for Premises (through the benefit exercise of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensits default remedies or otherwise), and security interests in, Wendy’s Properties’ right, title and interest then only for the period in and to each Contributed Owned Real Property and each New Owned Real Propertywhich the Mortgagee is in possession of the Premises, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction Mortgagee will not be considered to be in possession of the ManagerPremises as a result of the appointment of a receiver of the Lessee by a court or with court approval of the actions of such a receiver.
9.2.9 The Lessee will give each Mortgagee of a valid Mortgage reasonable notice of a dispute commenced in court under section 15.1.
9.2.10 The Locatee and the Lessee will give each Mortgagee of a valid Mortgage reasonable notice of an arbitration of a dispute under section 15.2.3 and each such Mortgagee will have the option of participating in the arbitration proceedings if such Mortgagee, acting reasonably, considers that such proceedings may affect the Trustee shall execute and deliver security of its Mortgage or the value of such security.
9.2.11 For greater certainty, this section 9.2 does not apply to a release mortgage of mortgage a Sublease, which does not require consent of the Lessor or the Locatee, or entering into a Mortgage Acknowledgment Agreement, to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trusteevalid.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Lease Agreement
Mortgages. (a) Upon With respect to each Existing Owned Property, ADR or the occurrence of a Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the SRI Real Estate Assets (excluding Holder, as the Contributed Restaurant Third-Party Leases). Within case may be, shall have, within ninety (90) days of such Mortgage Preparation EventClosing, the Master Issuer shall deliver such Mortgages executed and delivered to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on a Mortgage in a form suitable for recordation under applicable law (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and including an Assignment of Rents) with respect to each Contributed such Existing Owned Real Property to be held in escrow by the Trustee or its agent and recorded by the Trustee or its agent solely upon the occurrence of a Mortgage Recordation Event. With respect to each New Owned Property, ADR or the SRI Real PropertyEstate Assets Holder, as the case may be, shall execute and deliver promptly to the Trustee, for the benefit of the Secured Parties, a Mortgage (which shall include an Assignment of Rents with respect to any lease of such New Owned Property whether pursuant to a Company-owned Drive-In Master Lease, a Post-Securitization Franchise Drive-In Lease or otherwise) with respect to each such New Owned Property upon the purchase of such New Owned Property to be held in escrow by the Trustee or its agent and recorded by the Trustee or its agent solely upon the occurrence of a Mortgage Recordation Event. In connection with any Company-owned Drive-In Master Lease or any Post-Securitization Franchise Drive-In Lease, upon the request of ADR or the SRI Real Estate Assets Holder, as the case may be, prior to the recording of any mortgage following the occurrence of a Mortgage Recordation Event, the Trustee will enter into a Subordination, Nondisturbance and Attornment Agreement with ADR or the SRI Real Estate Assets Holder, as the case may be, and the Proceeds thereoftenant of such Company-owned Drive-In Master Lease or Post- Securitization Franchise Drive-In Lease, in the form attached as Exhibit F, so long as such Subordination, Non-Disturbance and Attornment Agreement does not impose or purport to impose obligations or liabilities upon the Trustee or the Secured Parties. Upon the request of Wendy’s PropertiesADR or the SRI Real Estate Assets Holder, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the Trustee.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Base Indenture (Sonic Corp)
Mortgages. (a) Upon the occurrence This Lease shall he subordinate to any deed of trust, mortgage or other security instrument (a Mortgage Preparation Event“Mortgage”), the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets and any ground lease, master lell9e, or primary lease (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90a “Primary Lease”) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages to the Trustee, to be held for the benefit that now or hereafter covers any portion of the Secured Parties in Premises (the event a mortgagee under any Mortgage Recordation Event occurs or the lessor under any Primary Lease is referred to herein as “Landlord's Mortgagee”), and to increases, renewals, modifications, consolidations, replacements, and extensions thereof. However, any Landlord's Mortgagee may elect to subordinate its Mortgage or Primary Lease (subject as the case may he) to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages this Lease by delivering written notice thereof to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization EventTenant. The Trustee may engage a third-party service provider (which provisions of this Section 20 shall be self-operative, and no further instrument shall be required to effect such subordination; however, Tenant shall from time to time within ten business days after request therefor, execute any instruments that may be reasonably required by any Landlord's Mortgagee and reasonably acceptable to Tenant to evidence the Control Party) subordination of this Lease to assist in delivering any such Mortgages to the applicable Governmental Authority Mortgage or Primary Lease, and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee Tenant shall be reimbursed by entitled to negotiate the Master Issuer for terms and conditions of the same with Landlord's Mortgagee. Notwithstanding the foregoing, the subordination of this Lease and Tenant's obligation to subordinate to any Mortgage or Primary Lease shall be subject to receipt of a Nondisturbance and all reasonable costs Attornment Agreement, reasonably acceptable to Tenant, and expenses in connection with such Mortgage Recordation Event, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Tenant shall not be required to, and the Trustee may not, record or cause obligated to be recorded execute any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction document which alters any material provision of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly to the TrusteeLease.
(b) Tenant shall attorn to any party succeeding to Landlord's interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party's request, and shall execute such agreements confirming such attornment as such party may reasonably request. Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or the foregoing, Tenant shall not be obligated to execute any other Related Document, the aggregate amount of all Obligations document which alters any material provision of the Master Issuer Lease. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail to any Landlord's Mortgagee whose address has been given to Tenant, and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets affording such Landlord's Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder, which shall not, at any time, not exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets cure periods provided to Landlord under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenturethis Lease.
Appears in 1 contract
Mortgages. (aA) Upon the occurrence request by any holder of a Mortgage Preparation EventFirst Mortgage, --------- Tenant shall subordinate Tenant's rights under this Lease to such First Mortgage, and to any advances to be made thereunder and the Master Issuer interest thereon, and to all renewals, modifications, replacements and extensions thereof. Tenant's rights under this Lease shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages not be subordinate to the Trustee, to be held for the benefit holder of the Secured Parties First Mortgage unless the holder thereof has requested that this Lease be subordinate thereto. Any Mortgagee, whether the holder of the First Mortgage or any other Mortgage affecting the Development, may elect to have this Lease made prior to such Mortgage, and in the event a Mortgage Recordation Event occurs of such election and upon notification by any such Mortgagee to Tenant to that effect, this Lease shall be deemed prior in lien to any such Mortgage, whether this Lease is dated or filed prior to or subsequent to the date of such Mortgage.
(subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee B) Tenant shall, at in the direction event of exercise of the Control Partypower of sale or deed in lieu of foreclosure under any Mortgage, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages attorn to the applicable recording office for recordation (unless and recognize such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative)purchaser as landlord under this Lease; provided that said purchaser shall not be liable for any act or omission of any prior landlord or subject to any offsets or defenses which Tenant may have against any prior landlord or be bound by any amendment or modification of this Lease made without the Trustee prior written consent of such Mortgagee. Should any Mortgagee or purchaser require a separate agreement of attornment regarding the matters covered by this Lease, Tenant shall have no obligation promptly, upon request, enter into any such attornment agreement.
(C) At any time and from time to record a Mortgage until time, Tenant shall, upon request from Landlord, execute, acknowledge and deliver to Landlord or any potential purchaser of the later Development, or to any Mortgagee or potential Mortgagee, an estoppel certificate or statement in writing certifying to all or any part of the following information as Landlord shall request, provided such facts are true and ascertainable: (i) twenty that this Lease constitutes the entire agreement between Landlord and Tenant and is unmodified and in full force and effect (20) Business Days following delivery of a properly executed Mortgage to or if there have been modifications, that same is in full force and effect as modified and stating the Trustee and modification), (ii) the Trustee’s Actual Knowledge amounts of a Rapid Amortization EventMinimum Rent, additional rent and other charges under this Lease and the dates to which same have been paid, and that there are no prepaid rents or other sums hereunder, and the amount of Security Deposit, (iii) that the Premises have been satisfactorily completed, and that all conditions precedent to this Lease taking effect have been carried out, (iv) that Tenant has accepted possession of the Premises, that the Lease Term has commenced, that Tenant is occupying the Premises and operating Tenant's business full-time therefrom, and there are no defaults or offsets which Tenant has against enforcement of this Lease by Landlord, and (v) the actual Commencement Date and Termination Date. The Trustee Tenant's certificate or statement shall also contain such other information as may engage a third-party service provider (which shall be reasonably acceptable to or customarily required by the Control Partypresent or potential purchaser or Mortgagee.
(D) to assist in delivering such Mortgages to In the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees event that, in connection with obtaining financing or refinancing for the Development, any banking, insurance or other recognized institutional lender shall request reasonable modifications in this Lease as a condition to such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventfinancing, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties Tenant shall not be required tounreasonably withhold, and the Trustee may notdelay or defer Tenant's consent thereto, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liens), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall modifications do not occur, such release materially increase the obligations of mortgage shall be returned by Tenant hereunder or materially adversely affect the escrow agent directly to the Trusteeinterest of Tenant hereby created.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture.
Appears in 1 contract
Samples: Commercial Lease Agreement (Bioshield Technologies Inc)
Mortgages. (a) Upon As soon as is practicable, but in any event within 90 days after the occurrence of a Mortgage Preparation EventIncremental Facility Closing Date (or such longer period as agreed by the Collateral Agent), the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation EventBorrower, the Master Issuer at its sole cost and expense, shall deliver such Mortgages or cause to be delivered to the Trustee, to be held for the benefit of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of Collateral Agent (i) twenty either (201) Business Days following delivery an amendment to each Fee Mortgage and Material Leasehold Mortgage or (2) an opinion of a properly executed Mortgage to the Trustee and (ii) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which shall be local counsel in form reasonably acceptable to the Control Party) to assist Collateral Agent (or substantive equivalent in delivering such Mortgages form reasonably acceptable to the applicable Governmental Authority and Collateral Agent, which for the Trustee shall pay all avoidance of doubt may include an email confirmation from local counsel) in the jurisdiction that the property covered by such Fee Mortgage Recordation Fees or Material Leasehold Mortgage is located to the effect that the recordation of an amendment to such mortgage is not necessary in connection with this Agreement in order to assure the continued effectiveness of the lien created by such recordation. The Trustee shall be reimbursed mortgage or to confirm that the Commitment Increase is secured by the Master Issuer for such mortgage, (ii) with respect to any and all reasonable costs and expenses in connection with such Fee Mortgage Recordation Event, including all Mortgage Recordation Fees of owned real property that is amended pursuant to and clause (i), a modification endorsement to the title insurance policy with respect thereto (or new title policy in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall jurisdictions where such endorsements are not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until the occurrence of a Mortgage Recordation Event that has not been waived by the Control Party (at the direction of the Controlling Class Representative). Neither the Trustee nor any custodian on behalf of the Trustee shall be under any duty or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall in any way be liable for any delays in the recordation of any Mortgage, for the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor of the Trustee, for the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on (subject to Permitted Liensavailable), and security interests in(iii) with respect to any owned real property in the Borrowing Base, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned Phase I environmental report prepared by the escrow agent directly an environmental engineering firm reasonably acceptable to the TrusteeCollateral Agent, in each case in form and substance reasonably satisfactory to the Collateral Agent.
(b) Notwithstanding Section 8.37(a) above To the extent that the applicable law of a jurisdiction in which a Mortgaged Property is located requires the recordation in the appropriate real property records of an amendment to a Fee Mortgage or anything else contained in this Base Indenture Material Leasehold Mortgage and the failure to record such amendment would render the Borrower or any of the other Related DocumentCredit Parties to not be in compliance with any of the representations, warranties, covenants and other provisions of the Credit Agreement and the other Financing Documents (including in connection with the entry into and effectiveness of this Agreement), the aggregate amount of Borrower and the other Credit Parties shall during the period set forth above be deemed to have complied with all Obligations of the Master Issuer and Wendy’s Properties secured under foregoing requirements of Section 4(a) above.
(c) As soon as is practicable, but in any Indenture Document event within 90 days after the Incremental Facility Closing Date (or such longer period as agreed by the Debenture Restricted Assets shall notCollateral Agent), the Borrower, at any timeits sole cost and expense, exceed shall deliver to the Indenture Threshold Amount Collateral Agent appraisals (performed by a certified or licensed appraiser and otherwise conforming to the requirements of Indebtedness Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and the regulations thereunder) with respect to such Eligible Real Estate as is necessary to demonstrate an aggregate appraised value for such Eligible Real Estate of not less than (x) the product of (A) the aggregate Commitments as defined in Annex effect on the date of delivery of such appraisals and (B) that may be secured 25%, plus (y) to the extent not already reflected in the appraised value, any expected environmental remediation costs, as determined by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined Administrative Agent in accordance with the terms its reasonable discretion based on its review of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures Phase I environmental reports delivered pursuant to be equally and ratably secured in accordance with the terms of the Unsecured Debenture IndentureSection 4(a) above.
Appears in 1 contract
Samples: Amendment No. 2 and Joinder Agreement (Kindred Healthcare, Inc)
Mortgages. On or prior to the date (the "MORTGAGE DUE DATE") that is on or prior to October 31, 1999,
(a) Upon the occurrence of a each party to any Mortgage Preparation Event, the Master Issuer shall cause the preparation of fully executed Mortgages for recordation against the Real Estate Assets (excluding the Contributed Restaurant Third-Party Leases). Within ninety (90) days of such Mortgage Preparation Event, the Master Issuer shall deliver such Mortgages have delivered to the Trustee, to be held for the benefit Agent duly executed counterparts of the Secured Parties in the event a Mortgage Recordation Event occurs (subject to Section 3.1(c)). Upon the occurrence of a Mortgage Recordation Event, the Trustee shall, at the direction of the Control Party, deliver the Mortgages within twenty (20) Business Days following receipt of the properly executed Mortgages to the applicable recording office for recordation (unless such recordation requirement is waived by the Control Party, acting at the direction of the Controlling Class Representative); provided that the Trustee shall have no obligation to record a Mortgage until the later of (i) twenty (20) Business Days following delivery of a properly executed each Mortgage to the Trustee and which it is a party;
(iib) the Trustee’s Actual Knowledge of a Rapid Amortization Event. The Trustee may engage a third-party service provider (which Borrower shall be reasonably acceptable to the Control Party) to assist in delivering such Mortgages to the applicable Governmental Authority and the Trustee shall pay all Mortgage Recordation Fees in connection with such recordation. The Trustee shall be reimbursed by the Master Issuer for any and all reasonable costs and expenses in connection with such Mortgage Recordation Eventdeliver, including all Mortgage Recordation Fees pursuant to and in accordance with the Priority of Payments. For the avoidance of doubt, Wendy’s Properties shall not be required to, and the Trustee may not, record or cause to be recorded any Mortgage until delivered, to the occurrence Agent legal opinions of a Mortgage Recordation Event local counsel reasonably satisfactory to the Agent with respect to each of the Mortgages, which legal opinions shall be in form and in substance reasonably satisfactory to the Agent;
(c) the Borrower shall deliver, or cause to be delivered, to the Agent evidence satisfactory to the Agent that has not such action (including, without limitation, the filing of appropriately completed and duly executed Uniform Commercial Code financing statements and the recording of Mortgages) as may be necessary or as the Agent shall have reasonably requested to perfect the Liens created pursuant to the Mortgages shall have been waived taken, or that arrangements therefor satisfactory to the Agent shall have been made;
(d) the Borrower shall deliver, or cause to be delivered, to the Agent policies of title insurance (or commitments therefor with all conditions marked satisfied), in form and substance satisfactory to the Agent and issued by an insurance company or companies as are acceptable to the Agent (the "TIC"), insuring the perfection, enforceability and priority of the Liens created under the Mortgages in amounts acceptable to the Agent, subject only to prior liens permitted by the Control Party (at applicable Mortgage and to such exceptions as are satisfactory to the direction Agent, containing such endorsements and affirmative assurances as have been previously agreed to by, or are otherwise satisfactory to, the Agent, and reinsured in amounts and under reinsurance agreements in form and substance satisfactory to the Agent; and the Borrower shall have paid or made arrangements satisfactory to the Agent to pay to the TIC all expenses and premiums of the Controlling Class Representative). Neither TIC in connection with the Trustee nor issuance of such policies and in addition shall have paid or made arrangements satisfactory to the Agent to pay to the TIC an amount equal to the recording and stamp taxes payable in connection with recording the Mortgages in the appropriate county land offices;
(e) the Borrower shall deliver, or cause to be delivered, to the Agent copies of file search reports from the Uniform Commercial Code filing office in each jurisdiction (i) in which is located any custodian on behalf Collateral (other than Pledged Stock) or (ii) in which is located the chief executive office of any Subsidiary of the Trustee shall be under Borrower that owns or holds any duty right, title or obligation to inspect, review or examine any such Mortgages or to determine that the same are valid, binding, legally effective, properly endorsed, genuine, enforceable or appropriate for the represented purpose or that they are in recordable form. Neither the Trustee nor any agent on its behalf shall interest in any way be liable for any delays property that constitutes Collateral (other than the Pledged Stock), setting forth the results of Uniform Commercial Code file searches conducted in the recordation name of the Borrower or such Subsidiary, as the case may be;
(f) the Borrower shall deliver, or cause to be delivered, to the Agent all documents the Agent may reasonably request relating to the existence of each Subsidiary of the Borrower party to any Mortgage, the corporate authority for and the rejection of a Mortgage by any recording office or for the failure of any Mortgage to create in favor validity of the TrusteeMortgages, for and any other matters relevant thereto, all in form and substance satisfactory to the benefit of Agent; and
(g) the Secured PartiesBorrower shall have paid all other costs, legalfees and expenses (including, valid without limitation, reasonable legal fees and enforceable first priority Liens on (subject to Permitted Liensexpenses), and security interests in, Wendy’s Properties’ right, title and interest in and to each Contributed Owned Real Property and each New Owned Real Property, and the Proceeds thereof. Upon the request of Wendy’s Properties, and at the direction of the Manager, the Trustee shall execute and deliver a release of mortgage to be held in escrow pending a closing of a sale of any Contributed Owned Real Property or any New Owned Real Property; provided that if such closing shall not occur, such release of mortgage shall be returned by the escrow agent directly other compensation payable to the TrusteeAgent with respect to the Mortgages, in each case invoiced prior to the Mortgage Due Date.
(b) Notwithstanding Section 8.37(a) above or anything else contained in this Base Indenture or any other Related Document, the aggregate amount of all Obligations of the Master Issuer and Wendy’s Properties secured under any Indenture Document by the Debenture Restricted Assets shall not, at any time, exceed the Indenture Threshold Amount of Indebtedness (as defined in Annex B) that may be secured by Debenture Restricted Assets under the Unsecured Debenture Indenture, determined in accordance with the terms of the Unsecured Debenture Indenture, without requiring holders of the Unsecured Debentures to be equally and ratably secured in accordance with the terms of the Unsecured Debenture Indenture".
Appears in 1 contract