New Agreement. If the Access Easement is foreclosed upon or there is an assignment in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ rights and, within ninety (90) days after such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee as of the date of such event, then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the Term of the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, without hindrance by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied with.
Appears in 1 contract
New Agreement. If (i) In the Access Easement is foreclosed upon or there is an assignment in lieu event of foreclosurea termination of this Agreement, prior to the Expiration Date, whether by summary proceedings to dispossess, service of notice to terminate, or if otherwise, due to an Event of Default, or following the Agreement is rejected or disaffirmed rejection of the Agency Lease by Lessee pursuant to bankruptcy law or Section 365 of Title 11 of the Federal Bankruptcy Code (as amended and recodified from time to time), the Agency shall serve upon each Mortgagee, written notice of such termination promptly following the same, 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 law affecting creditors’ rights andDefaults, within ninety if any, under this Agreement then known to the Agency. Subject to clause (90ii) of this Section 9.9(h), the Mortgagees shall thereupon have the option to obtain a new Agreement in accordance with and upon the following terms and conditions:
(1) Upon the written request of such Mortgagee, served upon the Agency forty-five (45) days after service upon the Mortgagee of notice of termination by the Agency, the Agency shall enter into a new Agreement with such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale its designee.
(2) The new Agreement shall have arranged to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee be effective as of the date of such event, then Grantor shall execute termination of this Agreement and deliver to Grantee or such Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the Term of term and upon all the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions covenants and limitations conditions hereof. Upon the execution of such new Agreement, the new Lessee shall pay any and all sums which would at the time of the execution thereof be due under this Agreement but for its termination, and shall otherwise with reasonable diligence commence to remedy any non-Monetary Defaults under this Agreement.
(3) As between the Agency and the new Lessee, any new Agreement, and the leasehold estate created thereby, subject to the same conditions contained in this Agreement, shall continue to maintain the same priority as this Agreement with regard to any Mortgage or PILOT Mortgage or any other lien, charge or encumbrance whether or not the Agreement same shall then be in existence.
(except for any requirements that 4) Upon the execution and delivery of a new Agreement, all Tenant Leases which theretofore may have been fulfilled assigned to or recognized by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior the Agency shall be assigned and transferred, without recourse, by the Agency to rejection or termination of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on new Lessee. Between the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions termination of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New the new Agreement, if a Mortgagee shall have requested such new Agreement as provided herein, the Agency shall not enter into any new Tenant Leases, cancel or modify in any material respect any then-existing Tenant Leases or accept any cancellation, termination or surrender thereof (unless such termination shall be effected as a matter of law on the termination of this Agreement) without the written consent of the Mortgagee, not to be unreasonably withheld or delayed, except as permitted in the Tenant Leases.
(ii) If there is more than one Mortgagee, the Agency shall enter into a new Agreement with the Mortgagee whose Mortgage is senior in lien (or other purchaser at a foreclosure sale may use and enjoy which has obtained the Access Easement, consent of any Mortgagees that are senior to such Mortgagee) as the Mortgagee entitled to the extent of its interest, without hindrance rights afforded by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied withthis Section 9.9(h).
Appears in 1 contract
Samples: Agency Lease Agreement
New Agreement. If (i) Without prejudice to the Access Easement is foreclosed upon or there is an assignment in lieu rights of foreclosurea Recognized Mortgagee under Section 89(d), or if the this Agreement is rejected or disaffirmed pursuant to any bankruptcy law or proceeding or other similar law or proceedings affecting creditors’ rights and, within ninety (90) days after such event, Grantee or any Mortgagee or other purchaser at generally with respect to a foreclosure sale shall have arranged bankruptcy proceeding relating to the reasonable satisfaction of Grantor for Lessee or otherwise, then the payment Port Authority agrees, if there are outstanding obligations to a Recognized Mortgagee (subject to the receipt of all Annual Easement Fees or other charges due and payable by Grantee as necessary Governmental Approvals, which the Port Authority agrees to use commercially reasonable efforts to obtain), to enter into a new lease of the date of such event, then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as Premises (the case may be, a new agreement ("“New Agreement"”) which with the Recognized Mortgagee (ior its designee or nominee) shall and any ancillary documents or agreements as may be necessary or desirable to give full effect to the New Agreement for a term equal to the remainder of the Term upon all of the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations of this Agreement, effective as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for such termination subject to the conditions set forth in clause (ii) below.
(ii) The Port Authority’s obligation to enter into a New Agreement pursuant to this provision, clause (i) above is subject to the satisfaction of all of the following requirements and conditions: (A) such New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien prioritybetween a Qualified Terminal Operator, as lessee, and the Port Authority, as lessor, (B) such Qualified Terminal Operator, within sixty (60) days after this Agreement is rejected or disaffirmed as a result of such bankruptcy or similar proceeding set forth in clause (i) above, provides a copy of such New Agreement, duly executed by the proposed Qualified Terminal Operator; (C) the Recognized Mortgagee (or its designee or nominee, including such Qualified Terminal Operator) has paid or has caused to be paid to the Port Authority, on a current basis as and when due under this Agreement and not paid by the Lessee, all amounts set forth in a Statement of Estimated Liabilities which are past-due or due and payable in accordance with the provisions of this Agreement; and (D) such Qualified Terminal Operator, at the time of such written request request, cures all Events of Default under this Agreement (curable by the payment of money) of which the Recognized Mortgagee has been notified by the Port Authority in writing, as set forth in a Statement of Estimated Liabilities, or, if such Events of Default cannot be cured by the payment of money, such Qualified Terminal Operator commits to the Port Authority in the New Agreement to proceed both promptly and diligently, upon the execution of the New Agreement, to cure all such other Events of Default (to the extent curable) set forth in a Statement of Estimated Liabilities and, if possession is necessary in order to cure such other Events of Default, to proceed both promptly and diligently to obtain the possession required to cure any such other Mortgagee whose lien is subordinate Events of Defaults to the extent curable (and such cure shall be void a covenant of the Qualified Terminal Operator in the New Agreement).
(iii) Nothing contained in this Section 89(g) shall be deemed to limit or affect the Port Authority’s interest in and to the Premises upon the expiration of no further force or effectthe Term of the New Agreement. The provisions of this Section 8 89(g) shall survive the termination, rejection or disaffirmation termination of the this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 89(g) were a separate and independent contract made by Grantorthe Port Authority, Grantee the Lessee and each Mortgagee, the Recognized Mortgagee and, if the Recognized Mortgagee satisfies the conditions to a New Agreement from the effective date of such termination, rejection or disaffirmation termination of the this Agreement to the date of execution and delivery of such the New Agreement, such the Recognized Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, leasehold created by this Agreement (and all other rights and benefits provided to the extent of its interest, Lessee hereunder) without hindrance by Grantor the Port Authority, but only on and subject to the terms and provisions of this Agreement, including the requirement to engage a Qualified Terminal Operator to provide management services with respect to the operations of the Premises pursuant to Section 89(g).
(iv) If a New Agreement is requested by more than one Recognized Mortgagee, the Port Authority shall enter into a New Agreement with the Recognized Mortgagee (or its designee) whose mortgage is prior in lien. The Port Authority, without liability to the Lessee or any person claiming byRecognized Mortgagee with an adverse claim, through may rely upon a mortgage title insurance policy or under Grantor; provided title certificate issued by a responsible title insurance company doing business within the State of New York as the basis for determining the appropriate Recognized Mortgagee that all of the conditions for the is entitled to such New Agreement as set forth above are complied withAgreement.
Appears in 1 contract
New Agreement. (a) If this Agreement terminates because of MGE or NIW II's default, if the Access Easement is foreclosed upon or there is an assignment rights granted in lieu of foreclosurethis Agreement are foreclosed, or if the this Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ creditor's rights and, within ninety (90) days after such event, Grantee MGE, NIW II or any Mortgagee or other purchaser at a foreclosure sale Assignee shall have arranged to the reasonable satisfaction of Grantor the non-defaulting party for the payment of all Annual Easement Fees fees or other charges due and payable by Grantee MGE or NIW II as of the date of such event, then Grantor such non-defaulting party shall execute and deliver to Grantee MGE, NIW II or such Mortgagee or other purchaser at a foreclosure sale, Assignee or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") affecting the Substation Property which (i) shall be for a term equal to the remainder of the Term of the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the this Agreement (except for any requirements that have been fulfilled by Grantee MGE, NIW II or any Mortgagee or other purchaser at a foreclosure sale Assignee prior to rejection or termination of the this Agreement); and and, (iii) shall include that portion of the Access Easement Wind Farm Assets in which Grantee MGE, NIW II or such other Mortgagee or other purchaser at a foreclosure sale Assignee had an interest on the date of rejection or termination. .
(b) After the termination, rejection or disaffirmation of this Agreement and during the period thereafter during which any Mortgagee shall be entitled to enter into a new agreement affecting the Substation Property, the non-defaulting party will not terminate the rights of any Assignee unless in default under its Assignment.
(c) If more than one Mortgagee makes a written request for a New Agreement new agreement pursuant to this provision, the New Agreement new agreement shall be delivered to the Mortgagee requesting such New Agreement new agreement whose Mortgage has lien priorityis prior in lien, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. .
(d) The provisions of this Section 8 12 shall survive the termination, rejection or disaffirmation of the this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 13 were a separate and independent contract made by GrantorMGE, Grantee NIW II and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the this Agreement to the date of execution and delivery of such New Agreementnew agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, Substation Property without hindrance by Grantor the non-defaulting party or any person claiming by, through or under Grantoreither of them; provided that all of the conditions for the New Agreement new agreement as set forth above are complied with.
(e) The party requesting or receiving the new agreement shall pay the non-defaulting party's reasonable legal fees and other out of pocket expenses related to preparation, review, execution and delivery of the new agreement.
Appears in 1 contract
Samples: Substation and Transformer Shared Use Agreement and Easement Agreement (Mge Energy Inc)
New Agreement. (i) Notwithstanding the express provisions hereof prohibiting the termination of this Agreement including, without limitation, in connection with a default hereunder, in the event that this Agreement is terminated as a result of any default by any Party hereunder or otherwise (including, without limitation, a rejection of this Agreement by any Party's trustee in bankruptcy pursuant to 11 U.S.C.ss.365 or any equivalent provision of law, and any termination of this Agreement by any Party as a result of or in connection with the bankruptcy of any Party), the non-terminating Parties shall provide the Mortgagee of the terminating Party with written notice that this Agreement has been terminated, together with a statement of all sums which would at that time be due under this Agreement but for such termination, and of all other defaults, if any, then known to such non-terminating Parties. If the Access Easement interests of the terminating Party in all or any portion of the property which is foreclosed upon subject to this Agreement shall be transferred to Mortgagee or there is an assignment its designee or the purchaser at a foreclosure sale by reason of the exercise of the power of sale contained in any mortgage, deed of trust, deed to secure debt or other security instrument (the "Mortgage") granted to such Mortgagee, or by any foreclosure or other proceeding for enforcement of such Mortgage, or by deed in lieu of foreclosureforeclosure or such other proceeding, the non-terminating parties shall enter into a new agreement (hereinafter referred to as the "New Agreement") with such Mortgagee of the terminating party or if its designee or the purchaser at a foreclosure sale in the form of this Agreement is rejected (excluding any requirements which have been satisfied by the terminating Party prior to termination) upon receipt by the non-terminating party of a written request from such Mortgagee, its designee or disaffirmed pursuant to bankruptcy law the purchaser at a foreclosure sale on or other law affecting creditors’ rights and, within ninety before sixty (9060) days after the date such event, Grantee person acquires title to such property. The Mortgagee of the terminating party or any Mortgagee its designee or other the purchaser at a foreclosure sale shall have arranged the same rights and obligations under the New Agreement as the terminating Party had under this Agreement. The obligations of the non-terminating Parties to enter into a New Agreement shall be subject to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee as of the date of such event, then Grantor shall execute and deliver to Grantee or such following conditions:
(A) Such Mortgagee or other purchaser at a foreclosure sale, its designee or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the Term of the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior shall pay or cause to rejection or termination be paid to the non-terminating Parties at the time of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New AgreementAgreement any and all sums that are at the time of execution and delivery thereof due pursuant to this Agreement and, in addition thereto, all reasonable expenses, including reasonable attorney's fees, which the non-terminating Parties shall have incurred by reason of such termination and the execution and delivery of the New Agreement and which have not otherwise been received by the non-terminating Parties from or on behalf of the terminating Party. In the event of a controversy as to the amount to be paid to the non-terminating Parties pursuant to this subparagraph (A), the payment obligation shall be satisfied in the event that the non-terminating Parties shall be paid the amount not in controversy, and such Mortgagee or other its designee or the purchaser at a foreclosure sale may use shall agree to pay any additional sum ultimately determined to be due plus interest at the rate of eight percent (8%) per annum and enjoy such obligation shall be adequately secured; and
(B) Such Mortgagee or its designees or the Access Easement, purchaser at a foreclosure sale shall agree to the extent of its interest, without hindrance by Grantor or cure any person claiming by, through or under Grantor; provided that all defaults of the conditions for terminating Party under this Agreement of which the New Agreement as set forth above non-terminating Parties shall have notified such Mortgagee and which are complied withreasonably susceptible of being so cured by such Mortgagee. its designee or the purchaser at a foreclosure sale.
Appears in 1 contract
Samples: Agreement Regarding Killington Resort and Certain Nearby Properties (American Skiing Co /Me)
New Agreement. (a) If this Agreement terminates because of Northern or NIW II's default, if the Access Easement is foreclosed upon or there is an assignment rights granted in lieu of foreclosurethis Agreement are foreclosed, or if the this Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ creditor's rights and, within ninety (90) days after such event, Grantee Northern, NIW II or any Mortgagee or other purchaser at a foreclosure sale Assignee shall have arranged to the reasonable satisfaction of Grantor the non-defaulting party for the payment of all Annual Easement Fees fees or other charges due and payable by Grantee Northern or NIW II as of the date of such event, then Grantor such non-defaulting party shall execute and deliver to Grantee Northern, NIW II or such Mortgagee or other purchaser at a foreclosure sale, Assignee or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") affecting the Substation Property which (i) shall be for a term equal to the remainder of the Term of the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the this Agreement (except for any requirements that have been fulfilled by Grantee Northern, NIW II or any Mortgagee or other purchaser at a foreclosure sale Assignee prior to rejection or termination of the this Agreement); and and, (iii) shall include that portion of the Access Easement Wind Farm Assets in which Grantee Northern, NIW II or such other Mortgagee or other purchaser at a foreclosure sale Assignee had an interest on the date of rejection or termination. .
(b) After the termination, rejection or disaffirmation of this Agreement and during the period thereafter during which any Mortgagee shall be entitled to enter into a new agreement affecting the Substation Property, the non-defaulting party will not terminate the rights of any Assignee unless in default under its Assignment.
(c) If more than one Mortgagee makes a written request for a New Agreement new agreement pursuant to this provision, the New Agreement new agreement shall be delivered to the Mortgagee requesting such New Agreement new agreement whose Mortgage has lien priorityis prior in lien, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. .
(d) The provisions of this Section 8 12 shall survive the termination, rejection or disaffirmation of the this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 12 were a separate and independent contract made by GrantorNorthern, Grantee NIW Il and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the this Agreement to the date of execution and delivery of such New Agreementnew agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, Substation Property without hindrance by Grantor the non-defaulting party or any person claiming by, through or under Grantoreither of them; provided that all of the conditions for the New Agreement new agreement as set forth above are complied with.
(e) The party requesting or receiving the new agreement shall pay the non-defaulting party's reasonable legal fees and other out of pocket expenses related to preparation, review, execution and delivery of the new agreement.
Appears in 1 contract
Samples: Substation and Transformer Shared Use Agreement and Easement Agreement (Mge Energy Inc)
New Agreement. 13.7.1 If the Access Easement Operator Property is foreclosed upon or there is an assignment in lieu of foreclosure, or if the this Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ creditor’s rights and, within ninety (90) days after such event, Grantee Operator or any Operator Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor Owner to cure any material defaults under this Agreement, and for the payment of all Annual Easement Fees Installment Payments or other charges due and payable by Grantee Operator as of the date of such event, then Grantor Owner shall execute and deliver to Grantee Operator or such Operator Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the Term of the this Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the this Agreement (except for any requirements that have been fulfilled by Grantee Operator or any Operator Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the this Agreement); and (iii) shall include that portion of the Access Easement Operator Property in which Grantee Operator or such other Operator Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. .
13.7.2 If more than one Operator Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Operator Mortgagee requesting such New Agreement whose Operator Mortgage has lien priorityis prior in time, and the written request of any other Operator Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions of this Section 8 13 shall survive the termination, rejection or disaffirmation of the this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 13 were a separate and independent contract made by GrantorOwner, Grantee Operator and each Operator Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the this Agreement to the date of execution and delivery of such New Agreement, such Operator Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, Operator Property without hindrance by Grantor Owner or any person claiming by, through or under GrantorOwner; provided that all of the conditions for the New Agreement as set forth above are complied with.
Appears in 1 contract
Samples: Solar Lease Agreement
New Agreement. If (i) In the Access Easement is foreclosed upon event of an election by Licensee under Title 11 U.S.C. Section 365 (as amended or there is replaced) to reject or terminate this Agreement (each such rejection or termination in bankruptcy being referred to herein a “Rejection”), Licensor shall provide each Secured Party that has been identified by written notice to Licensor by Licensee with a statement of all sums which would at that time be due under this Agreement but for such Rejection, and of all other defaults, if any, then known to Licensor. Licensor agrees to enter into a New Agreement (“NEW AGREEMENT”) with such Secured Party or an assignment in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ rights and, within ninety (90) days after such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor Approved Purchaser for the payment remainder of all Annual Easement Fees or other charges due and payable by Grantee the term of this Agreement, effective as of the date of Rejection and upon the terms, covenants and conditions (including all options to extend the Term of this Agreement, but excluding requirements which have already been completely fulfilled) of this Agreement, provided:
(a) Such Secured Party or Approved Purchaser shall make written request upon Licensor for such eventNew Agreement within thirty (30) days after later of (A) the date this Agreement is Rejected, then Grantor shall execute and deliver to Grantee (B) the date such Secured Party or such Mortgagee Approved Purchaser acquires the Project and Licensee’s interest in this Agreement, if any, by foreclosure, assignment in lieu of foreclosure or other purchaser appropriate means; PROVIDED, HOWEVER, THAT in any event such written request must be given within 365 days after the earlier of (x) the Licensor’s Notice, and (y) the date upon which Licensee filed (either voluntarily or involuntarily) bankruptcy.
(b) Such Secured Party or the Approved Purchaser, as applicable, shall pay or cause to be paid to Licensor at the time of the execution and delivery of such New Agreement (A) any and all sums which would at the time of execution and delivery thereof be due pursuant to this Agreement but for such Rejection, (B) all reasonable expenses, including reasonable attorney’s fees, which Licensor shall have incurred by reason of such Rejection and the execution and delivery of the New Agreement and which have not otherwise been received by Licensor from Licensee or other party in interest under Licensee, and (C) a foreclosure salenew territory fee in an amount equal to $500,000.00, Adjusted for Inflation. In the event of a controversy as to the amount to be paid to Licensor pursuant to this subsection 24(I)(i)(b), the payment obligation shall be satisfied if Licensor shall be paid the amount not in controversy, and the Secured Party or to a designee of one of these partiesthe Approved Purchaser, as the case may be, shall agree to pay any additional sum ultimately determined to be due, plus interest at a new agreement ("New Agreement") which (i) shall be for a term rate per annum equal to the remainder Interest Rate and such obligation shall be adequately secured.
(c) Such Secured Party or the Approved Purchaser, as the case may be, shall agree to remedy any of Licensee’s defaults of which said Secured Party was notified by Licensor’s Notice of Termination and which are reasonably susceptible of being so cured (it being agreed upon by the parties that all monetary defaults shall be deemed reasonably susceptible of being so cured) by Secured Party or the Approved Purchaser, as the case may be.
(d) The New Agreement is executed by the Secured Party or the Approved Purchaser, as the case may be, within ten (10) days after provision by such Person of the Term written request for the New Agreement.
(e) Such Secured Party or Approved Purchaser possesses management ability and experience and a well-established reputation for quality management in the hotel/gaming industry as determined by Licensor in its reasonable discretion, or, not more than thirty (30) days after execution of the Agreement before giving effect New Agreement, has entered into a contract for the management of the Project by a Person who possesses such ability, experience and reputation, in accordance with the standards set forth in Section 5(Q) hereof, which is reasonably acceptable to such rejection or termination; Licensor
(ii) shall contain the same covenantsSubject to Section 24(D) hereof, agreements, terms, provisions at all times after an Event of Default and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination entry of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien prioritywith the Secured Party or the Approved Purchaser, as the case may be, Licensor shall have the right to exercise any rights or remedies that it may have in connection with such default, including, but not limited to, any right it may have to cause the use of Licensed Rights and Hard Rock Marks at the written request of any other Mortgagee whose lien is subordinate shall Project to be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, without hindrance by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied withdiscontinued.
Appears in 1 contract
Samples: License Agreement (Twin River Worldwide Holdings, Inc.)
New Agreement. If (i) In the Access Easement is foreclosed upon event of an election by Licensee under Title 11 U.S.C. § 365 (as amended or there is replaced) to reject or terminate this Agreement (each such rejection or termination in bankruptcy being referred to herein a "Rejection"), Licensor shall provide each Secured Party that has been identified by written notice to Licensor by Licensee with a statement of all sums which would at that lime be due under this Agreement but for such Rejection, and of all other defaults if then known to Licensor. Licensor agrees to enter Into a New Agreement ("New Agreement") with such Secured Party or an assignment in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ rights and, within ninety (90) days after such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor Approved Purchaser for the payment remainder of all Annual Easement Fees or other charges due and payable by Grantee the term of this Agreement, effective as of the date of Rejection and upon the terms, covenants and conditions (including all options to extend the Term of this Agreement. but excluding requirements which have already been completely fulfilled) of this Agreement: provided:
(a) Such Secured Party or Approved Purchaser shall make written request upon Licensor such eventNew Agreement within thirty (30) days after later of (A) the date this Agreement is Rejected, then Grantor shall execute and deliver to Grantee (B) the date such Secured Party or such Mortgagee Approved Purchaser acquires the Project and Licensee's interest in this Agreement, if any, by foreclosure, assignment in lieu of foreclosure or other purchaser appropriate means; provided, however, that in any event such written request must be given within eighteen (18) months after the earlier of (x) the Licensor's Notice, and (y) the date upon which Licensee filed (either voluntarily or involuntarily) bankruptcy.
(b) Such Secured Party or the Approved Purchaser, as applicable, shall pay or cause to be paid to Licensor at the time of the execution and delivery of such New Agreement (A) any and all sums which would at the time of execution and delivery thereof be due pursuant to this Agreement but for such Rejection, (B) all reasonable expenses, including reasonable attorney's fees, which Licensor shall have incurred by reason of such Rejection and the execution and delivery of the New Agreement and which have not otherwise been received by Licensor from Licensee or other party in interest under Licensee, and (C) a foreclosure salenew territory fee in an amount equal to $500,000.00, Adjusted for Inflation. In the event of a controversy as to the amount to be paid to Licensor pursuant to this subsection 24(I)(i)(b), the payment obligation shall be satisfied if Licensor shall be paid the amount not in controversy, and the Secured Party or to a designee of one of these partiesthe Approved Purchaser, as the case may be, shall agree to pay any additional sum ultimately determined to be due, plus interest at a new agreement ("New Agreement") which (i) shall be for a term rate per annum equal to the remainder Interest Rate and such obligation shall be adequately secured.
(c) Such Secured Party or the Approved Purchaser, as the case may be, shall agree to remedy any of Licensee's defaults of which said Secured Party was notified by Licensor's Notice of Termination and which are reasonably susceptible of being so cured (it being agreed upon by the parties that all monetary defaults shall be deemed reasonably susceptible of being so cured) by Secured Party or the Approved Purchaser, as the case may be.
(d) The New Agreement is executed by the Secured Party or the Approved Purchaser, as the case may be, within ten (10) days after provision by such Person of the Term written request for the New Agreement.
(e) Such Secured Party or Approved Purchaser possesses management ability and experience and a well-established reputation tar quality management in the hotel/gaming industry as determined by Licensor in its reasonable discretion, or, not more than thirty (30) days after execution of the Agreement before giving effect New Agreement, has entered into a contract the management of the Project by a Person who possesses such ability, experience and reputation, in accordance with the standards set forth in Section 5(Q) hereof which is reasonably acceptable to such rejection or termination; Licensor.
(ii) shall contain the same covenantsSubject to Section 24(D) hereof, agreements, terms, provisions at all times after an Event of Default and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination entry of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien prioritywith the Secured Party or the Approved Purchaser, as the case may be, Licensor shall have the right to exercise any rights or remedies that it may have in connection with such default, including, but not limited to, any right it may have to cause the use of Licensed Rights and Hard Rock Marks at the written request of any other Mortgagee whose lien is subordinate shall Project to be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, without hindrance by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied withdiscontinued.
Appears in 1 contract
Samples: License Agreement (Twin River Worldwide Holdings, Inc.)
New Agreement. 13.7.1 If the Access Easement Operator Property is foreclosed upon or there is an assignment in lieu of foreclosure, or if the this Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ creditor’s rights and, within ninety (90) days after such event, Grantee Operator or any Operator Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee as of the date of such eventOwner to cure any material defaults under this Agreement, then Grantor Owner shall execute and deliver to Grantee Operator or such Operator Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which which
(i) shall be for a term equal to the remainder of the Term of the this Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as the this Agreement (except for any requirements that have been fulfilled by Grantee Operator or any Operator Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the this Agreement); and (iii) shall include that portion of the Access Easement Operator Property in which Grantee Operator or such other Operator Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. .
13.7.2 If more than one Operator Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Operator Mortgagee requesting such New Agreement whose Operator Mortgage has lien priorityis prior in time, and the written request of any other Operator Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions of this Section 8 13 shall survive the termination, rejection or disaffirmation of the this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 13 were a separate and independent contract made by GrantorOwner, Grantee Operator and each Operator Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the this Agreement to the date of execution and delivery of such New Agreement, such Operator Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, Operator Property without hindrance by Grantor Owner or any person claiming by, through or under GrantorOwner; provided that all of the conditions for the New Agreement as set forth above are complied with.
Appears in 1 contract
Samples: Energy Storage Agreement
New Agreement. If [NTD: TO BE REVISED CONSISTENT WITH CORRESPONDING PROVISION OF FINAL GROUND LEASE] In the Access Easement is foreclosed upon or there is an assignment in lieu event of foreclosureany termination of the Project Implementation Agreement of which the Public Entities have received written notice by reason of a surrender, cancellation, or if termination by Developer, excluding any termination under Sections 5.1(d) or 5.2(b) of the Sublease, or as a result of the rejection or disaffirmance of the Project Implementation Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law Law affecting creditors’ rights andcreditors rights, then the Public Entities shall deliver notice to each Permitted Lender that the Project Implementation Agreement has been terminated or rejected, as applicable. The notice shall include a statement of all Events of Default, or breaches under the Project Implementation Agreement, that are then known to the Public Entities, without the duty of inquiry; provided that in no event shall such notice prevent or estop the Public Entities from asserting other breaches under the Project Implementation Agreement or Events of Default that become known to the Public Entities after the time the notice is sent to the Permitted Lender. The Permitted Mortgage Lender or any Permitted Mezzanine Lender or SPE Lender Affiliate (defined below) nominated by the first priority Permitted Mortgage Lender (a “New Developer”) shall then have the option, to be exercised within ninety seventy-five (9075) days after following receipt of such eventnotice of termination or rejection, Grantee or as applicable, to enter into a new project implementation agreement (“New Agreement”) [NTD: AS DISCUSSED WITH AM, THIS NEEDS TO BE FIXED HERE, AS WELL AS IN THE SUBLEASE AND GROUND LEASE SUCH THAT NEW VERSION OF ALL THREE AGREEMENTS ARE MADE AVAILABLE TO PRESERVE SINGLE OWNER] with the Public Entities (the period of time during which any Mortgagee or other purchaser at Permitted Lender may require a foreclosure sale New Agreement, the “New Lease Period”), in each case, on the following terms and conditions:
(A) The New Agreement shall have arranged to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee commence as of the date of such event, then Grantor shall execute and deliver to Grantee the termination or such Mortgagee or other purchaser at a foreclosure sale, or to a designee rejection of one of these partiesthe Project Implementation Agreement, as the case may beapplicable, a new agreement ("New Agreement") which (i) and shall be for a term equal to the remainder of the Term Term, and on the terms, covenants, and conditions as the Project Implementation Agreement.
(B) Upon execution of the Agreement before giving effect to such rejection or New Agreement, the New Developer shall pay any and all sums that would at the time of execution thereof be due under the Project Implementation Agreement, but for termination; (ii) , and shall contain pay all expenses, costs, attorneys’ fees, court costs, and disbursements incurred by the same covenants, agreements, terms, provisions Public Entities in connection with any default and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination of the Project Implementation Agreement); and (iii) shall include that portion , recovery of possession of the Access Easement Facility, and the execution, preparation and delivery of the New Agreement.
(C) Upon execution of the New Agreement, the New Developer shall cure all other defaults under the Project Implementation Agreement, which have not yet been cured (other than any Incurable Default), with due diligence in which Grantee a timely manner in accordance with the cure periods under the Project Implementation Agreement assuming such cure periods commence with the execution of the New Agreement and without additional notice (provided that the Public Entities have already provided such notice of such default to New Developer).
(D) Nothing herein shall be construed to require the Public Entities to deliver possession of the Facility to the New Developer. Upon execution and delivery of the New Agreement, the New Developer may take any and all appropriate actions as may be necessary to remove parties in possession from the Facility. The Public Entities shall not grant any interest or development rights in the Facility during the seventy-five (75) day period set forth in Section 3(b)(iv) of this Annex I. During such other Mortgagee or other purchaser at a foreclosure sale had an interest on seventy-five (75) day period and thereafter if the date Permitted Lender designated to exercise the cure rights under Section 3(b)(i) of rejection or termination. If more than one Mortgagee makes a written request for this Annex I timely accepts such offer of a New Agreement pursuant to this provision, until the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force termination or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery expiration of such New Agreement, the lien of the Permitted Mortgage Lender shall continue unaffected by the termination of the Project Implementation Agreement. . Upon the effectiveness of such Mortgagee or other purchaser at a foreclosure sale may use and enjoy New Agreement, any Incurable Defaults under the Access Easement, Project Implementation Agreement shall be deemed to be permanently waived. Should neither the extent Permitted Lender designated to exercise the cure rights under Section 3(b)(i) of its interest, without hindrance by Grantor this Annex I (or any person claiming byequivalent agreement with any such Permitted Lender) nor its Designated Nominee accept said offer for such New Agreement in writing within said seventy-five (75) day period, through or, having so accepted said offer, should it fail promptly to execute the New Agreement or under Grantor; provided that satisfy the requirements of clauses (B) and (C) of this Section above in a timely manner, then the termination of the Project Implementation Agreement shall be effective as to all of the conditions for Permitted Lenders and the New Agreement as set forth above are complied withPermitted Lenders shall have no further rights hereunder.
Appears in 1 contract
Samples: Mortgagee Protection Agreement and Estoppel Certificate
New Agreement. If In the Access Easement is foreclosed upon event of a Permitted Mortgagee’s acquisition of Tenant’s interest in this Agreement by foreclosure, whether by power of sale or there is an otherwise or by deed or assignment in lieu of foreclosure, or if in the event this Agreement is rejected terminated for any reason, including, without limitation, the rejection or disaffirmed disaffirmation of this Agreement pursuant to bankruptcy law any bankruptcy, insolvency, or other law affecting creditors’ rights andcreditor’s rights, within ninety (90) days after and provided that such eventMortgagee has cured all of Tenant’s Defaults which are reasonably capable of being cured by Mortgagee, Grantee or any then District shall enter into a New Agreement with the Mortgagee or other purchaser at a foreclosure sale Mortgagee’s nominee (if such nominee is acceptable to District in its reasonable discretion (but in no event shall have arranged such nominee be Tenant)) covering the Property, provided that Mortgagee (a) requests such New Agreement by written notice to the reasonable satisfaction District within thirty Days after notice of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee as of the date of such eventforeclosure, then Grantor shall execute and deliver to Grantee or such Mortgagee or other purchaser at a foreclosure saletermination, or to a designee bankruptcy event described herein above, and (b) cures all prior Defaults of one Tenant that are reasonably capable of these parties, as the case may be, a new agreement ("being cured by Mortgagee. The New Agreement") which (i) Agreement shall be for a term equal to the remainder of the Term of Term, and shall only include all the Agreement before giving effect to such rejection or termination; (ii) shall contain same rents and all the same covenants, agreements, termsconditions, provisions provisions, restrictions and limitations contained in this Agreement immediately prior to the commencement of such foreclosure action, except as otherwise provided in this Agreement. In connection with a New Agreement, District shall, to the Agreement extent any subtenants have attorned to District prior to the date of the New Agreement, assign to Mortgagee or its nominee (except for any requirements that have been fulfilled by Grantee if such nominee is acceptable to District in its reasonable discretion (but in no event shall such nominee be Tenant)) all of Districts interest as sublandlord in all applicable existing subleases of all or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination part of the Agreement); Property and (iii) all attornment given by the sublessees, provided that Mortgagee assumes all of Tenant’s obligations as sublandlord under any subleases then in effect for the Property. Other than in the ordinary course of business of the Housing, District shall include that not terminate or agree to terminate any sublease or enter into any new lease or sublease for all or any portion of the Access Easement in Property without Mortgagee’s prior written consent (which Grantee shall not be unreasonably withheld, conditioned or such other delayed), unless Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written fails timely to deliver its request for a New Agreement pursuant to under this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of Section. In connection with any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New Agreement, such District shall: (i) by quitclaim deed, convey to Mortgagee or other purchaser at a foreclosure sale may use and enjoy its nominee (if such nominee is acceptable to District in its reasonable discretion (but in no event shall such nominee be Tenant)), for the Access Easementremainder of the term of the New Agreement, title to the extent Improvements, if any, which become vested in District as a result of termination of this Agreement; and (ii) by assignment, convey to Mortgagee or its interestnominee (if such nominee is acceptable to District in its reasonable discretion (but in no event shall nominee be Tenant)), without hindrance by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions rights, title and interest in and to monies (including insurance and condemnation proceeds), if any, then held by or payable to District or any other depository which Tenant would have been entitled to receive but for the New Agreement as set forth above are complied withtermination of this Agreement.
Appears in 1 contract
New Agreement. If (i) In the Access Easement is foreclosed upon or there is an assignment in lieu event of foreclosurea termination of this Agreement, prior to the Expiration Date, whether by summary proceedings to dispossess, service of notice to terminate, or if otherwise, due to an Event of Default, or following the rejection of this Agreement is rejected or disaffirmed by the Lessee pursuant to bankruptcy law or Section 365 of Title 11 of the Federal Bankruptcy Code (as amended and recodified from time to time), the Agency shall serve upon each Mortgagee, written notice of such termination promptly following the same, 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 law affecting creditors’ rights andDefaults, within ninety if any, under this Agreement then known to the Agency. Subject to clause (90ii) of this Section 9.9(h), the Mortgagees shall thereupon have the option to obtain a new Agreement in accordance with and upon the following terms and conditions:
(1) Upon the written request of such Mortgagee, served upon the Agency forty-five (45) days after service upon the Mortgagee of notice of termination by the Agency, the Agency shall enter into a new Agreement with such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale its designee.
(2) The new Agreement shall have arranged to the reasonable satisfaction of Grantor for the payment of all Annual Easement Fees or other charges due and payable by Grantee be effective as of the date of such event, then Grantor shall execute termination of this Agreement and deliver to Grantee or such Mortgagee or other purchaser at a foreclosure sale, or to a designee of one of these parties, as the case may be, a new agreement ("New Agreement") which (i) shall be for a term equal to the remainder of the Term of term and upon all the Agreement before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions covenants and limitations conditions hereof. Upon the execution of such new Agreement, the new Lessee shall pay any and all sums which would at the time of the execution thereof be due under this Agreement but for its termination, and shall otherwise with reasonable diligence commence to remedy any non-Monetary Defaults under this Agreement.
(3) As between the Agency and the new Lessee, any new Agreement, and the leasehold estate created thereby, subject to the same conditions contained in this Agreement, shall continue to maintain the same priority as this Agreement with regard to any Mortgage or PILOT Mortgage or any other lien, charge or encumbrance whether or not the Agreement same shall then be in existence.
(except for any requirements that 4) Upon the execution and delivery of a new Agreement, all Tenant Leases which theretofore may have been fulfilled assigned to or recognized by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior the Agency shall be assigned and transferred, without recourse, by the Agency to rejection or termination of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on new Lessee. Between the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien priority, and the written request of any other Mortgagee whose lien is subordinate shall be void and of no further force or effect. The provisions termination of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New the new Agreement, if a Mortgagee shall have requested such new Agreement as provided herein, the Agency shall not enter into any new Tenant Leases, cancel or modify in any material respect any then-existing Tenant Leases or accept any cancellation, termination or surrender thereof (unless such termination shall be effected as a matter of law on the termination of this Agreement) without the written consent of the Mortgagee, not to be unreasonably withheld or delayed, except as permitted in the Tenant Leases.
(ii) If there is more than one Mortgagee, the Agency shall enter into a new Agreement with the Mortgagee whose Mortgage is senior in lien (or other purchaser at a foreclosure sale may use and enjoy which has obtained the Access Easement, consent of any Mortgagees that are senior to such Mortgagee) as the Mortgagee entitled to the extent of its interest, without hindrance rights afforded by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied withthis Section 9.9(h).
Appears in 1 contract
Samples: Agency Lease Agreement
New Agreement. If (i) In the Access Easement is foreclosed upon event of an election by Licensee under Title 11 U.S.C. Section 365 (as amended or there is replaced) to reject or terminate this Agreement (each such rejection or termination in bankruptcy being referred to herein a "Rejection"), Licensor shall provide each Secured Party that has been identified by written notice to Licensor by Licensee with a statement of all sums which would at that time be due under this Agreement but for such Rejection, and of all other defaults, if any, then known to Licensor. Licensor agrees to enter into a New Agreement ("NEW AGREEMENT") with such Secured Party or an assignment in lieu of foreclosure, or if the Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditors’ rights and, within ninety (90) days after such event, Grantee or any Mortgagee or other purchaser at a foreclosure sale shall have arranged to the reasonable satisfaction of Grantor Approved Purchaser for the payment remainder of all Annual Easement Fees or other charges due and payable by Grantee the term of this Agreement, effective as of the date of Rejection and upon the terms, covenants and conditions (including all options to extend the Term of this Agreement, but excluding requirements which have already been completely fulfilled) of this Agreement, provided:
(a) Such Secured Party or Approved Purchaser shall make written request upon Licensor for such eventNew Agreement within thirty (30) days after later of (A) the date this Agreement is Rejected, then Grantor shall execute and deliver to Grantee (B) the date such Secured Party or such Mortgagee Approved Purchaser acquires the Project and Licensee's interest in this Agreement, if any, by foreclosure, assignment in lieu of foreclosure or other purchaser appropriate means; PROVIDED, HOWEVER, THAT in any event such written request must be given within 365 days after the earlier of (x) the Licensor's Notice, and (y) the date upon which Licensee filed (either voluntarily or involuntarily) bankruptcy.
(b) Such Secured Party or the Approved Purchaser, as applicable, shall pay or cause to be paid to Licensor at the time of the execution and delivery of such New Agreement (A) any and all sums which would at the time of execution and delivery thereof be due pursuant to this Agreement but for such Rejection, (B) all reasonable expenses, including reasonable attorney's fees, which Licensor shall have incurred by reason of such Rejection and the execution and delivery of the New Agreement and which have not otherwise been received by Licensor from Licensee or other party in interest under Licensee, and (C) a foreclosure salenew territory fee in an amount equal to $500,000.00, Adjusted for Inflation. In the event of a controversy as to the amount to be paid to Licensor pursuant to this subsection 24(I)(i)(b), the payment obligation shall be satisfied if Licensor shall be paid the amount not in controversy, and the Secured Party or to a designee of one of these partiesthe Approved Purchaser, as the case may be, shall agree to pay any additional sum ultimately determined to be due, plus interest at a new agreement ("New Agreement") which (i) shall be for a term rate per annum equal to the remainder Interest Rate and such obligation shall be adequately secured.
(c) Such Secured Party or the Approved Purchaser, as the case may be, shall agree to remedy any of Licensee's defaults of which said Secured Party was notified by Licensor's Notice of Termination and which are reasonably susceptible of being so cured (it being agreed upon by the parties that all monetary defaults shall be deemed reasonably susceptible of being so cured) by Secured Party or the Approved Purchaser, as the case may be.
(d) The New Agreement is executed by the Secured Party or the Approved Purchaser, as the case may be, within ten (10) days after provision by such Person of the Term written request for the New Agreement.
(e) Such Secured Party or Approved Purchaser possesses management ability and experience and a well-established reputation for quality management in the hotel/gaming industry as determined by Licensor in its reasonable discretion, or, not more than thirty (30) days after execution of the Agreement before giving effect New Agreement, has entered into a contract for the management of the Project by a Person who possesses such ability, experience and reputation, in accordance with the standards set forth in Section 5(Q) hereof, which is reasonably acceptable to such rejection or termination; Licensor
(ii) shall contain the same covenantsSubject to Section 24(D) hereof, agreements, terms, provisions at all times after an Event of Default and limitations as the Agreement (except for any requirements that have been fulfilled by Grantee or any Mortgagee or other purchaser at a foreclosure sale prior to rejection or termination entry of the Agreement); and (iii) shall include that portion of the Access Easement in which Grantee or such other Mortgagee or other purchaser at a foreclosure sale had an interest on the date of rejection or termination. If more than one Mortgagee makes a written request for a New Agreement pursuant to this provision, the New Agreement shall be delivered to the Mortgagee requesting such New Agreement whose Mortgage has lien prioritywith the Secured Party or the Approved Purchaser, as the case may be, Licensor shall have the right to exercise any rights or remedies that it may have in connection with such default, including, but not limited to, any right it may have to cause the use of Licensed Rights and Hard Rock Marks at the written request of any other Mortgagee whose lien is subordinate shall Project to be void and of no further force or effect. The provisions of this Section 8 shall survive the termination, rejection or disaffirmation of the Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 8 were a separate and independent contract made by Grantor, Grantee and each Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of the Agreement to the date of execution and delivery of such New Agreement, such Mortgagee or other purchaser at a foreclosure sale may use and enjoy the Access Easement, to the extent of its interest, without hindrance by Grantor or any person claiming by, through or under Grantor; provided that all of the conditions for the New Agreement as set forth above are complied withdiscontinued.
Appears in 1 contract