Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid provisions shall be self operative and no further instrument of subordination shall be necessary unless required by any such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request of any such mortgagee(s) or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action). 11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
Appears in 3 contracts
Samples: Lease Agreement (TBM Holdings Inc), Merger Agreement (TBM Holdings Inc), Agreement and Plan of Merger (TBM Holdings Inc)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant 8.1 This Lease is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at in all times respects to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, bona fide mortgages which may now or hereafter affect the Property, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions thereofof such mortgages irrespective of the date of the execution and/or recording thereof (provided, however, that Landlord shall use its good faith efforts to obtain from such mortgagee a non-disturbance agreement as described in the last sentence of this Section 8.1). The aforesaid provisions This Section 8.1 shall be self self-operative and no further instrument of subordination shall be necessary required. In confirmation of such subordination, Tenant agrees, without payment to Tenant of any consideration therefore, to execute and deliver any instrument that Landlord or the holder of any such mortgage or any of their respective successors in interest may request to evidence such subordination within twenty (20) days of request. Tenant may state in the subordination document any objections or issues outstanding it has relative to the Lease or the Landlord’s performance thereunder. Tenant hereby irrevocably appoints Landlord its attorney in fact to execute such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. The mortgages to which this Lease is, at the time referred to, subject and subordinate shall sometimes be collectively called "superior mortgage." Landlord shall, upon the request of Tenant, use its good faith efforts to obtain a non-disturbance agreement from the holder of any superior mortgage, to the effect that in the event of the foreclosure of the superior mortgage Tenant's possession of the Demised Premises shall not be disturbed provided that Tenant shall not be in default under this Lease, provided, however, (1) Landlord (i) shall not be required to incur any material costs or liabilities in connection therewith, and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such agreement, and (2) this Lease and the obligations of Tenant shall not be affected should Landlord fail to procure such agreement despite such good faith efforts.
8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and address shall previously have been furnished to Tenant in writing, and (ii) unless required such act or omission shall be one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice, provided such holder shall with due diligence give Tenant written notice of intention to, and commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlord's rights (“Successor Landlord”) and upon such Successor Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize Successor Landlord as Tenant's landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any instrument that such Successor Landlord may request to evidence such attornment. Tenant hereby irrevocably appoints Landlord or Successor Landlord the attorney-in-fact of Tenant to execute and deliver such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between Successor Landlord and Tenant upon all of the terms, conditions, and covenants as are set forth in this Lease and shall be applicable after such attornment, except that Successor Landlord shall not: (i) be obligated to repair, restore, replace, or rebuild the Property, in case of total or substantially total damage or destruction, beyond such repair, restoration or rebuilding as can reasonably be accomplished with the net proceeds of insurance actually received by, or made available to, Successor Landlord; (ii) be liable for any previous act or omission of Landlord; (iii) be subject to any prior defenses or offsets; (iv) be bound by any modification of this Lease not expressly provided for in this Lease or by any previous prepayment of more than one month's rent, unless such mortgagee modification or prepayment shall have been expressly approved in writing by the holder of the superior mortgage through or by reason of which Successor Landlord shall have succeeded to the rights of Landlord; or (v) be liable for the performance of Landlord's covenants and agreements contained in this Lease to any extent other than to Successor Landlord's ownership in the Property, and no other property of Successor Landlord shall be subject to levy, attachment, execution or other lenderenforcement procedure for the satisfaction of Tenant's remedies.
8.4 In the event that a bona fide institutional lender shall request reasonable modifications to this Lease, then Tenant shall not unreasonably withhold, condition or delay its written consent to such modifications provided that the same do not, in which case Tenant's reasonable judgment (and Tenant shall not demand the payment to Tenant of any consideration for consent thereto), increase the obligations of Tenant hereunder or materially adversely affect Tenant’s operations or leasehold interest hereby.
8.5 Tenant agrees, at any time, (and without payment to Tenant of any consideration therefor), upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, (i) a current certified income statement and balance sheet of Tenant and (ii) a statement in writing addressed to Landlord (and/or Landlord's designee) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent has been paid, stating such other information concerning this Lease and Tenant's tenancy as Landlord reasonably shall request, and stating whether or not there exists any requested subordination agreement within 10 days after request. If default in the performance by Landlord of any foreclosure term, covenant or power of sale proceedings are initiated condition contained in this Lease and, if so, specifying each such default, it being intended that any financial reports and such statement delivered pursuant to this Section 8.5 may be relied upon by Landlord and by any mortgagee(s) mortgagee or a deed in lieu is granted, Tenant agrees, upon written request prospective mortgagee of any such mortgagee(s) mortgage affecting the Property or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentprospective purchaser of the Property. Tenant agrees to give any mortgagee(s) When so requested by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified statement shall be submitted in writing under oath by a person or persons having knowledge of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)statements made therein.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
Appears in 2 contracts
Samples: Lease Agreement (Biolife Solutions Inc), Lease Agreement (Biolife Solutions Inc)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from (a) This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)sole option of Landlord or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interest of the holders of any notes secured by mortgages on the Project or the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this section are self-executing, Tenant shall execute such documents as may be reasonably required by Landlord or any mortgagee to affirm or give notice of such subordination. In turn for such execution of documents, Tenant shall be self operative and no further instrument of subordination shall be necessary unless required by any entitled to receive a satisfactory non-disturbance agreement from each such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any lender whereby the lender agrees to recognize Tenant’s rights under this Lease following foreclosure or power event of sale proceedings are initiated by any mortgagee(s) or a deed in lieu of foreclosure, so long as Tenant is grantednot in default hereunder. Furthermore, it is recognized that Tenant shall finance its equipment and fixtures, including bars, ovens, refrigerators, walk-in coolers, range hoods, entertainment equipment including video and acoustical equipment, and that such do not form part of the leasehold premises and are fixtures of Tenant, and are subject to the security interest by Tenant’s lender and shall not be subordinated to Landlord and any Mortgages of Landlord.
(b) At the request of Landlord, Tenant agreesshall within ten (10) days deliver to Landlord, upon written request or anyone designated by Landlord, a certificate stating and certifying as of any such mortgagee(sits date (i) or any purchaser at such sale, the date to attorn and pay Net which Rent and other amounts payable hereunder charges under this Lease have been paid; (ii) whether or not there are then existing any setoffs or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same); (iii) if such party be true, that this Lease is unmodified and in full force and effect and that Landlord is not in default under any provision of this Lease (or if modified, setting forth all modifications, and if Landlord is in default, setting forth the exact nature of such default); and (iv) such other information as Landlord may reasonably request in connection with the Landlord-Tenant relationship established by this Lease. Landlord agrees to deliver the same required statement to Tenant and anyone designated by Tenant within the same time and manner. Further, Tenant will agree to attorn to any lender or subsequent purchaser of Landlord provided that such lender or subsequent purchaser agrees not to disturb Tenant’s quiet enjoyment and to execute and deliver recognize Tenant’s rights under the Lease if Tenant is not in default beyond any instruments necessary or appropriate to effectuate such attornment. applicable cure period expressly provided for in this Lease.
(c) Tenant agrees to give any mortgagee(s) Mortgagee(s), by certified registered mail, return receipt requested, a copy of any notice of default served by Tenant upon the Landlord, provided that prior to such notice notice, Tenant has been notified notified, in writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of the name and address of any such mortgagee(sMortgagee(s). Tenant further agrees that if Landlord has shall have failed to cure any such default within the time permitted Landlord provided for cure under in this Lease, any such mortgagee(sthen the Mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty 30 days in within which to cure (such default or if such default cannot be cured within that time, then such additional time as may be required due necessary if within such 30 days, any Mortgagee has commenced and is diligently pursuing the remedies necessary to causes beyond cure such mortgagee's controldefault (including, including time but not limited to, commencement of foreclosure proceedings, if necessary, to obtain possession of the Demised Premises by power of sale or judicial actioneffect such cure).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to which event this Lease as Landlord may reasonably requestshall not be terminated while such remedies are being so diligently pursued.
Appears in 1 contract
Samples: Retail Center Lease (Diversified Restaurant Holdings, Inc.)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from (a) This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)sole option of Landlord or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interest of the holders of any notes secured by mortgages on the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this section are self-executing, Tenant shall execute such documents as may be self operative and no further instrument of subordination shall be necessary unless reasonably required by Landlord or any mortgagee to affirm or give notice of such mortgagee or other lendersubordination. As a condition to this subordination, in which case Tenant the lender shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any recognize Tenant's rights under this Lease following foreclosure or power event of sale proceedings are initiated by any mortgagee(s) or a deed in lieu of foreclosure, so long as Tenant is grantednot in default hereunder. Furthermore, it is recognized that Tenant shall finance its equipment and fixtures, including bars, ovens, refrigerators, walk-in coolers, range hoods, entertainment equipment including video and acoustical equipment, and that such do not form part of the leasehold premises and are fixtures of Tenant, and are subject to the security interest by Tenant’s lender and shall not be subordinated to Landlord and any Mortgages of Landlord.
(b) At the request of Landlord, Tenant agreesshall within ten (10) days deliver to Landlord, upon written request or anyone designated by Landlord, a certificate stating and certifying as of any such mortgagee(sits date (i) or any purchaser at such sale, the date to attorn and pay Net which Rent and other amounts payable hereunder to such party and to execute and deliver charges under this Lease have been paid; (ii) whether or not there are then existing any instruments necessary setoffs or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy defenses against the enforcement of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same); (iii) if such be true, that this Lease is unmodified and address in full force and effect and that Landlord is not in default under any provision of any such mortgagee(s). Tenant further agrees that this Lease (or if modified, setting forth all modifications, and if Landlord has failed to cure any is in default, setting forth the exact nature of such default within the time permitted Landlord for cure under this Lease, any default); and (iv) such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease other information as Landlord may reasonably requestrequest in connection with the Landlord-Tenant relationship established by this Lease. Landlord agrees to deliver the same required statement to Tenant and anyone designated by Tenant within the same time and manner. Further, Tenant will agree to attorn to any lender or subsequent purchaser of Landlord provided that such recognizes Tenant’s quiet enjoyment and rights under the Lease, and cures any prior existing defaults of Landlord. The Tenant shall have a right of offset and to assert any counterclaims, which shall continue until cured by the successor’s purchaser, or Lender and Tenant may exercise those rights contained within the Lease. Any amendment to the Lease shall be binding upon any subsequent purchaser or lender. Any notice and cure provisions of a lender must correspond to Landlord’s and not require any additional time period thereafter. The Subordination and Attornment Agreement shall comply with the reasonable requirements of Tenant’s lender.
Appears in 1 contract
Samples: Retail Center Lease (Diversified Restaurant Holdings, Inc.)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant 8.1 This Lease is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at in all times respects to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, bona fide mortgages which may now or hereafter affect the Property, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions thereofof such mortgages irrespective of the date of the execution and/or recording thereof (provided, however, that Landlord shall use its good faith efforts to obtain from such mortgagee a non-disturbance agreement as described in the last sentence of this Section 8.1). The aforesaid provisions This Section 8.1 shall be self self-operative and no further instrument of subordination shall be necessary unless required by any required. In confirmation of such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is grantedsubordination, Tenant agrees, upon written request without payment to Tenant of any such mortgagee(s) or any purchaser at such saleconsideration therefor, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary instrument that Landlord or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name and address holder of any such mortgagee(s)mortgage or any of their respective successors in interest may request to evidence such subordination within ten (10) days of request. Tenant further agrees that if hereby irrevocably appoints Landlord has failed its attorney in fact to cure any execute such default within instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. The mortgages to which this Lease is, at the time permitted referred to, subject and subordinate shall sometimes be collectively called "superior mortgage." Landlord for cure under this Leaseshall, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period upon the request of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's controlTenant, including time use its good faith efforts to obtain a non-disturbance agreement from the holder of any superior mortgage, to the effect that in the event of the foreclosure of the superior mortgage Tenant's possession of the Demised Premises by power shall not be disturbed provided that Tenant shall not be in default under this Lease, provided, however, (1) Landlord (i) shall not be required to incur any costs or liabilities in connection therewith, and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such agreement, and (2) this Lease and the obligations of sale or judicial action)Tenant shall not be affected should Landlord fail to procure such agreement despite such good faith efforts.
11.02 Within ten days 8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after requestlapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall execute not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and deliver address shall previously have been furnished to Tenant in writing, and (ii) unless such act or omission shall be one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice, provided such holder shall with due diligence give Tenant written notice of intention to, and commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to any the rights of Landlord, then at the request of such party designated by so succeeding to Landlord's rights ("Successor Landlord") and upon such Successor Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize Successor Landlord a so-called "estoppel certificate", in the form submitted by Landlord to as Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to 's landlord under this Lease as Landlord may reasonably request.and shall promptly, without payment to Tenant of any consideration
Appears in 1 contract
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant 8.1 This Lease is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at in all times respects to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, bona fide mortgages which may now or hereafter affect the Property, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions thereofof such mortgages irrespective of the date of the execution and/or recording thereof (provided, however, that Landlord shall use its good faith efforts to obtain from such mortgagee a non-disturbance agreement as described in the last sentence of this Section 8.1). The aforesaid provisions This Section 8.1 shall be self self-operative and no further instrument of subordination shall be necessary required. In confirmation of such subordination, Tenant agrees, without payment to Tenant of any consideration therefor, to execute and deliver any instrument that Landlord or the holder of any such mortgage or any of their respective successors in interest may request to evidence such subordination within twenty (20) days of request. Tenant may state in the subordination document any objections or issues outstanding it has relative to the Lease or the Landlord's performance thereunder. Tenant hereby irrevocably appoints Landlord its attorney in fact to execute such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. The mortgages to which this Lease is, at the time referred to, subject and subordinate shall sometimes be collectively called "superior mortgage." Landlord shall, upon the request of Tenant, use its good faith efforts to obtain a non-disturbance agreement from the holder of any superior mortgage, to the effect that in the event of the foreclosure of the superior mortgage Tenant's possession of the Demised Premises shall not be disturbed provided that Tenant shall not be in default under this Lease, provided, however, (1) Landlord (i) shall not be required to incur any material costs or liabilities in connection therewith, and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such agreement, and (2) this Lease and the obligations of Tenant shall not be affected should Landlord fail to procure such agreement despite such good faith efforts.
8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and address shall previously have been furnished to Tenant in writing, and (ii) unless required such act or omission shall be one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice, provided such holder shall with due diligence give Tenant written notice of intention to, and commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlord's rights ("Successor Landlord") and upon such Successor Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize Successor Landlord as Tenant's landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any instrument that such Successor Landlord may request to evidence such attornment. Tenant hereby irrevocably appoints Landlord or Successor Landlord the attorney-in-fact of Tenant to execute and deliver such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between Successor Landlord and Tenant upon all of the terms, conditions, and covenants as are set forth in this Lease and shall be applicable after such attornment, except that Successor Landlord shall not: (i) be obligated to repair, restore, replace, or rebuild the Property, in case of total or substantially total damage or destruction, beyond such repair, restoration or rebuilding as can reasonably be accomplished with the net proceeds of insurance actually received by, or made available to, Successor Landlord; (ii) be liable for any previous act or omission of Landlord; (iii) be subject to any prior defenses or offsets; (iv) be bound by any modification of this Lease not expressly provided for in this Lease or by any previous prepayment of more than one month's rent, unless such mortgagee modification or prepayment shall have been expressly approved in writing by the holder of the superior mortgage through or by reason of which Successor Landlord shall have succeeded to the rights of Landlord; or (v) be liable for the performance of Landlord's covenants and agreements contained in this Lease to any extent other than to Successor Landlord's ownership in the Property, and no other property of Successor Landlord shall be subject to levy, attachment, execution or other lenderenforcement procedure for the satisfaction of Tenant's remedies.
8.4 In the event that a bona fide institutional lender shall request reasonable modifications to this Lease, then Tenant shall not unreasonably withhold, condition or delay its written consent to such modifications provided that the same do not, in which case Tenant's reasonable judgment (and Tenant shall not demand the payment to Tenant of any consideration for consent thereto), increase the obligations of Tenant hereunder or materially adversely affect Tenant's operations or leasehold interest hereby.
8.5 Tenant agrees, at any time, (and without payment to Tenant of any consideration therefor), upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, (i) a current certified income statement and balance sheet of Tenant and (ii) a statement in writing addressed to Landlord (and/or Landlord's designee) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent has been paid, stating such other information concerning this Lease and Tenant's tenancy as Landlord reasonably shall request, and stating whether or not there exists any requested subordination agreement within 10 days after request. If default in the performance by Landlord of any foreclosure term, covenant or power of sale proceedings are initiated condition contained in this Lease and, if so, specifying each such default, it being intended that any financial reports and such statement delivered pursuant to this Section 8.5 may be relied upon by Landlord and by any mortgagee(s) mortgagee or a deed in lieu is granted, Tenant agrees, upon written request prospective mortgagee of any such mortgagee(s) mortgage affecting the Property or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentprospective purchaser of the Property. Tenant agrees to give any mortgagee(s) When so requested by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified statement shall be submitted in writing under oath by a person or persons having knowledge of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)statements made therein.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
Appears in 1 contract
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from (a) This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)sole option of Landlord or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interest of the holders of any notes secured by mortgages on the Property or the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this section are self-executing, Tenant shall execute such documents as may be reasonably required by Landlord or any mortgagee to affirm or give notice of such subordination. In turn for such execution of documents, Tenant shall be self operative and no further instrument of subordination shall be necessary unless required by any entitled to receive a satisfactory non-disturbance agreement from each such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any lender whereby the lender agrees to recognize Tenant’s rights under this Lease following foreclosure or power event of sale proceedings are initiated by any mortgagee(s) or a deed in lieu of foreclosure, so long as Tenant is grantednot in default hereunder. Furthermore, it is recognized that Tenant shall finance its equipment and fixtures, including bars, ovens, refrigerators, walk-in coolers, range hoods, entertainment equipment including video and acoustical equipment, and that such do not form part of the leasehold premises and are fixtures of Tenant, and are subject to the security interest by Tenant’s lender and shall not be subordinated to Landlord and any Mortgages of Landlord.
(b) At the request of Landlord, Tenant agreesshall within ten (10) days deliver to Landlord, upon written request or anyone designated by Landlord, a certificate stating and certifying as of any such mortgagee(sits date (i) or any purchaser at such sale, the date to attorn and pay Net which Rent and other amounts payable hereunder to such party and to execute and deliver charges under this Lease have been paid; (ii) whether or not there are then existing any instruments necessary setoffs or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy defenses against the enforcement of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same); (iii) if such be true, that this Lease is unmodified and address in full force and effect and that Landlord is not in default under any provision of any such mortgagee(s). Tenant further agrees that this Lease (or if modified, setting forth all modifications, and if Landlord has failed to cure any is in default, setting forth the exact nature of such default within the time permitted Landlord for cure under this Lease, any default); and (iv) such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease other information as Landlord may reasonably requestrequest in connection with the Landlord-Tenant relationship established by this Lease, including but not limited to Tenant’s financial statements, in accordance with Tenant’s or its parents’ reporting requirements with the SEC. Landlord agrees to deliver the same required statement to Tenant and anyone designated by Tenant within the same time and manner. Further, Tenant will agree to attorn to any lender or subsequent purchaser of Landlord provided that such recognizes Tenant’s quiet enjoyment and rights under the Lease, and cures any prior existing defaults of Landlord. The Tenant shall have a right of offset and to assert any counterclaims, which shall continue until cured by the successor’s purchaser, or Lender and Tenant may exercise those rights contained within the Lease. Any amendment to the Lease shall be binding upon any subsequent purchaser or lender. Any notice and cure provisions of a lender must correspond to Landlord’s and not require any additional time period thereafter. The Subordination and Attornment Agreement shall comply with the reasonable requirements of Tenant’s lender.
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Subordination Attornment Estoppel Certificate. 11.01 8.1 Provided Tenant receives Landlord obtains a soNon-called non-disturbance agreement from the Lender Disturbance Agreement (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunderhereinafter defined), this Lease and all of Tenant's rights hereunder are is and shall be subject and subordinate at all times to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, mortgages which may now or hereafter affect the Premises, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions of such mortgages irrespective of the date of recording thereof. In confirmation of such subordination, Tenant agrees, without payment to Tenant of any consideration therefor, to promptly (but in any event, with ten (10) days of request) execute and deliver any Non-Disturbance Agreement that Landlord or the holder of any such mortgage or any of their respective successors in interest may request to evidence such subordination. The aforesaid provisions mortgages to which this Lease is, at the time referred to, subject and subordinate shall sometimes be collectively called "superior mortgages." Landlord shall, upon the request of Tenant, use its good faith efforts to obtain from the holder of any superior mortgage an agreement (a "Non-Disturbance Agreement") in a commercially reasonable form, to the effect that provided Tenant is not in default under this Lease Tenant's possession of the Premises shall not be disturbed in the event that the holder of a superior mortgage forecloses its superior mortgage; provided, however, Landlord (i) shall not be required to incur any costs or liabilities in connection therewith and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such Non-Disturbance Agreement.
8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and address shall previously have been furnished to Tenant in writing and (ii) unless such act or omission shall be self operative one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice), provided such holder shall with due diligence give Tenant written notice of intention to, and no further commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlord's rights (herein sometimes called successor-landlord) and upon such successor-landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize such successor-landlord as Tenant's landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any commercially reasonable instrument that such successor-landlord may request to evidence such attornment. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between the successor-landlord and Tenant upon all of subordination the terms, conditions, and covenants as are set forth in this Lease and shall be necessary unless required by any applicable after such mortgagee or other lenderattornment, in which case except that the
8.4 In the event that a bona fide institutional lender shall request reasonable modifications to this Lease, then Tenant shall not unreasonably withhold or delay its written consent to such modifications provided that the same do not (and Tenant shall not demand the payment to Tenant of any consideration for consent thereto), increase in any material manner the obligations of Tenant hereunder or materially adversely affect the leasehold interest hereby created or Tenant's use and enjoyment of the Premises.
8.5 Tenant agrees, at any time, and from time to time (and without payment to Tenant of any consideration therefor), upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement in writing addressed to Landlord (and/or Landlord's designee) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent has been paid, stating such other information concerning this Lease and Tenant's tenancy as Landlord reasonably shall request, and stating whether or not there exists any requested subordination agreement within 10 days after request. If default in the performance by Landlord of any foreclosure term, covenant or power of sale proceedings are initiated condition contained in this Lease and, if so, specifying each such default, it being intended that any such statement delivered pursuant to this Section 8.5 may be relied upon by Landlord and by any mortgagee(s) mortgagee or a deed in lieu is granted, Tenant agrees, upon written request prospective mortgagee of any such mortgagee(s) mortgage affecting the Property or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentprospective purchaser of the Property. Tenant agrees to give any mortgagee(s) When so requested by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified statement shall be submitted in writing under oath by a person or persons having knowledge of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)statements made therein.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
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Samples: Lease Agreement (Vivus Inc)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (14.1 This Lease and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder), this Lease and all of Tenant's rights estate hereunder are and shall be subject and subordinate at all times Subordinate in every respect to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, Permitted Encumbrances specified in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereofSchedule "C". The aforesaid provisions This subordination shall be self operative self-operative; and no further instrument of subordination shall be necessary unless required by any party to whom (or to whose interest) this Lease and Tenant's estate are subordinate. In furtherance (and not in limitation) of the foregoing, Tenant shall execute and deliver promptly any certificate or instrument evidencing such mortgagee subordination which Landlord may request.
14.2 Upon request of any present or other lenderfuture fee owner, mortgagee, or ground lessor succeeding to the rights of Landlord hereunder (any such person, a "New Landlord"), whether through conveyance pursuant to sale, possession, foreclosure action, expiration or any earlier termination of any ground lease, or otherwise, Tenant shall attorn to and recognize New Landlord as "Landlord" under this Lease (as the same may then have been amended or modified); and Tenant shall promptly execute and deliver any instrument which New Landlord may reasonably request to evidence such attornment. Upon such attornment, this Lease (as the same may then have been amended or modified) shall continue in full force and effect as, or as it were, a direct lease between New Landlord and Tenant; except, however, that Now Landlord shall not:
(a) be liable for any previous act or omission of Landlord under this Lease, or any claim which case shall have previously accrued to Tenant against Landlord; or
(b) be bound by any prepayment to Landlord of more than one month's Fixed Rent, unless such prepayment shall have been expressly approved in writing by New Landlord.
14.3 From time to time, upon Landlord's request, Tenant shall execute, acknowledge and deliver to Landlord a written statement (each such, an "Estoppel Certificate") certifying that, except as specifically disclosed in such Estoppel Certificate and as of the date thereof:
(a) there are no agreements other than the Lease (and no modifications of the Lease) in effect between Tenant and Landlord (or any requested subordination agreement within 10 days after requestother party) with respect to the Premises;
(b) the Lease is valid and in full force and effect and Tenant has no setoffs. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request Claims for defenses of any such mortgagee(skind whatsoever to enforcement of the Lease;
(c) Tenant has no claim, demand, cause of action or right to institute any purchaser at such sale, to attorn legal proceeding against Landlord arising out of or by virtue of the Lease or by reason of Tenant's occupancy and pay Net Rent use of the Premises;
(d) Landlord is not in default in the performance of any of Landlord's obligations (if any) under the Lease; and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of has not given any notice of default served by to Landlord. In each Estoppel Certificate Tenant upon Landlordshall certify, provided that prior also, the amount of annual Fixed Rent then payable under the Lease, the amount (and elements) of Additional Rent then payable, and the dates to such notice which Tenant has been notified paid the same. Tenant acknowledges and agrees that a prospective purchaser or mortgagee of Landlord's interest in writing of this Lease or the name and address Premises (or the assignee of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(smortgagee) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgageerely upon Tenant's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)Estoppel Certificate.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
Appears in 1 contract
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from (a) This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)sole option of Landlord or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interest of the holders of any notes secured by mortgages on the Project or the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this section are self-executing, Tenant shall execute such documents as may be reasonably required by Landlord or any mortgagee to affirm or give notice of such subordination. In turn for such execution of documents, Tenant shall be self operative and no further instrument of subordination shall be necessary unless required by any entitled to receive a satisfactory non-disturbance agreement from each such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any lender whereby the lender agrees to recognize Tenant’s rights under this Lease following foreclosure or power event of sale proceedings are initiated by any mortgagee(s) or a deed in lieu of foreclosure, so long as Tenant is grantednot in default hereunder. Furthermore, it is recognized that Tenant shall finance its equipment and fixtures, including bars, ovens, refrigerators, walk-in coolers, range hoods, entertainment equipment including video and acoustical equipment, and that such do not form part of the leasehold premises and are trade fixtures of Tenant, and are subject to the security interest by Tenant’s lender and shall not be subordinated to Landlord and any Mortgages of Landlord.
(b) At the request of Landlord, Tenant agreesshall within ten (10) days deliver to Landlord, upon written request or anyone designated by Landlord, a certificate stating and certifying as of any such mortgagee(sits date (i) or any purchaser at such sale, the date to attorn and pay Net which Rent and other amounts payable hereunder charges under this Lease have been paid; (ii) whether or not there are then existing any setoffs or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same); (iii) if such party be true, that this Lease is unmodified and in full force and effect and that Landlord is not in default under any provision of this Lease (or if modified, setting forth all modifications, and if Landlord is in default, setting forth the exact nature of such default); and (iv) such other information as Landlord may reasonably request in connection with the Landlord-Tenant relationship established by this Lease. Landlord agrees to execute deliver the same required statement to Tenant and deliver anyone designated by Tenant within the same time and manner. Further, Tenant will agree to attorn to any instruments necessary lender or appropriate subsequent purchaser of Landlord provided that such recognizes Tenant’s quiet enjoyment and rights under the Lease. Any amendment to effectuate such attornmentthe Lease shall be binding upon any subsequent purchaser or lender. Any notice and cure provisions of a lender must correspond to Landlord’s and not require any more than 15 days additional time to cure thereafter. The Subordination and Attornment Agreement shall comply with the reasonable requirements of Tenant’s lender.
(c) Tenant agrees to give any mortgagee(s) Mortgagee(s), by certified registered mail, return receipt requested, a copy of any notice of default served by Tenant upon the Landlord, provided that prior to such notice notice, Tenant has been notified notified, in writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of the name and address of any such mortgagee(sMortgagee(s). Tenant further agrees that if Landlord has shall have failed to cure any such default within the time permitted Landlord provided for cure under in this Lease, any such mortgagee(sthen the Mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty (30) days in within which to cure (or such default or, if such default cannot be cured within that time, then such additional time as may be required due necessary if within such thirty (30) days, any Mortgagee has commenced and is diligently pursuing the remedies necessary to causes beyond cure such mortgagee's controldefault, including time (including, but not limited to, commencement of foreclosure proceedings, if necessary, to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", effect such cure) in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to which event this Lease as Landlord may reasonably requestshall not be terminated while such remedies are being so diligently pursued.
Appears in 1 contract
Samples: Retail Center Lease (Diversified Restaurant Holdings, Inc.)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from (a) This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)sole option of Landlord or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interest of the holders of any notes secured by mortgages on the Project or the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this section are self-executing, Tenant shall execute such documents as may be reasonably required by Landlord or any mortgagee to affirm or give notice of such subordination. In turn for such execution of documents, Tenant shall be self operative and no further instrument of subordination shall be necessary unless required by any entitled to receive a satisfactory non-disturbance agreement from each such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any lender whereby the lender agrees to recognize Tenant's rights under this Lease following foreclosure or power event of sale proceedings are initiated by any mortgagee(s) or a deed in lieu of foreclosure, so long as Tenant is grantednot in default hereunder. Notwithstanding the foregoing, and pursuant to 2.2(e), the effectiveness of this Lease is conditioned upon Landlord’s Lender entering into a Subordination and Non-Disturbance Agreement with Tenant. Furthermore, it is recognized that Tenant shall finance its equipment and fixtures, including bars, ovens, refrigerators, walk-in coolers, range hoods, entertainment equipment including video and acoustical equipment, and that such do not form part of the leasehold premises and are fixtures of Tenant, and are subject to the security interest by Tenant’s lender and shall not be subordinated to Landlord and any Mortgages of Landlord.
(b) At the request of Landlord, Tenant agreesshall within ten (10) days deliver to Landlord, upon written request or anyone designated by Landlord, a certificate stating and certifying as of any such mortgagee(sits date (i) or any purchaser at such sale, the date to attorn and pay Net which Rent and other amounts payable hereunder to such party and to execute and deliver charges under this Lease have been paid; (ii) whether or not there are then existing any instruments necessary setoffs or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy defenses against the enforcement of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same); (iii) if such be true, that this Lease is unmodified and address in full force and effect and that Landlord is not in default under any provision of any such mortgagee(s). Tenant further agrees that this Lease (or if modified, setting forth all modifications, and if Landlord has failed to cure any is in default, setting forth the exact nature of such default within the time permitted Landlord for cure under this Lease, any default); and (iv) such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease other information as Landlord may reasonably requestrequest in connection with the Landlord-Tenant relationship established by this Lease. Landlord agrees to deliver the same required statement to Tenant and anyone designated by Tenant within the same time and manner. Further, Tenant will agree to attorn to any lender or subsequent purchaser of Landlord provided that such recognizes Tenant’s quiet enjoyment and rights under the Lease, and cures any prior existing defaults of Landlord. The Tenant shall have a right of offset and to assert any counterclaims, which shall continue until cured by the successor’s purchaser, or Lender and Tenant may exercise those rights contained within the Lease. Any amendment to the Lease shall be binding upon any subsequent purchaser or lender. Any notice and cure provisions of a lender must correspond to Landlord’s and not require any additional time period thereafter. The Subordination and Attornment Agreement shall comply with the reasonable requirements of Tenant’s lender.
Appears in 1 contract
Samples: Retail Center Lease (Diversified Restaurant Holdings, Inc.)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives This Lease shall be deemed subject and subordinate to any mortgage or deed of trust (herein both referred to as a so-called "Mortgage") which may heretofore or hereafter be executed by Landlord, provided that any mortgagee or beneficiary provides a commercially reasonable "non-disturbance disturbance" agreement from to Tenant, unless the Lender mortgagee or beneficiary thereunder (both hereafter called a "mortgagee") requests that this Lease be superior to its Mortgage, in which event this Lease shall be superior. In the event any proceedings are brought for foreclosure of any Mortgage on the Premises, Tenant will attorn to the purchaser at a foreclosure sale, and further provided any assignee thereof, and recognize such purchaser, and any such assignee, as Landlord under this Lease, providing such purchaser or assignee agrees not to disturb Tenant's possession, or any rights of Tenant under this Lease or in the Premises, so long as Tenant is not in Default under the terms of this Lease. Tenant shall without charge execute, at Landlord's request, and within fifteen (15) days thereof, such instruments evidencing such attornment and the subordinate position of this Lease and related matters as Landlord or its mortgagee shall request; and, as often as requested, shall sign an estoppel certifying that furnishing this Lease is in full force and effect, and that the Minimum Rent and Additional Rent payable hereunder is unmodified and in full force and effect (or, if modified, stating the nature of such non-disturbance agreement shall not be a condition modification) and the date to which rent and other charges are paid, if any, and acknowledging that there are not, to Tenant's subordination knowledge, any uncured defaults on the part of Landlord hereunder or specifying such defaults if they are claimed and such other matters as Landlord may reasonably request. In no event shall Tenant is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times required to all mortgages, deeds of trust, ground leases execute or deliver any other method of financing such estoppel which would modify or refinancing, in amend any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid terms or provisions shall be self operative and no further instrument of subordination shall be necessary unless required by any such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request of any such mortgagee(s) or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentthis Lease. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy such mortgagee of any notice of default served by Tenant upon Landlord, provided that prior to such notice whom Tenant has been notified in writing of the name and address informed notice of any such mortgagee(s). Tenant further agrees that if default or failure to perform by Landlord has failed under this Lease, and a reasonable opportunity to cure any such Landlord default within hereunder, which shall in no event be less than thirty (30) days after written notice thereof has been delivered to said mortgagee; and Tenant agrees to accept such cure if effected by such mortgagee. Further, Tenant agrees to permit such mortgagee, or the time permitted purchaser at any foreclosure sale, and the successors and assigns thereof, on acquiring Landlord's interest in the Premises or the Lease, to become substitute Landlord hereunder, with liability only for cure such Landlord obligations under this Lease, any such mortgagee(s) whose address has been Lease as accrue after Landlord's interest is so provided acquired. Landlord agrees to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to within ten (10) Business Days of Tenant's written demand, an estoppel that this Lease is in full force and effect, and that the Minimum Rent and Additional Rent payable hereunder is unmodified and in full force and effect (or, if modified, stating the nature of such modification) and the date to which rent and other charges are paid, if any, and acknowledging that there are not, to Landlord's knowledge, any uncured defaults on the part of Tenant hereunder or specifying such defaults if they are claimed and such other matters as Landlord Tenant may reasonably request. In no event shall Landlord be required to execute or deliver any such statement which would modify or amend any of the terms or provisions of this Lease.
Appears in 1 contract
Samples: Lease Agreement (OMNICELL, Inc)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from A. This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)option of Supermarket or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to all mortgagesthe interests of the holders of any notes secured by mortgages on the Property or the Leased Premises, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of in the Demised Premises by Landlordfuture, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this Section 29 are self-executing, Bank shall execute such documents as many reasonably be desired by Supermarket or any mortgagee to affirm or give notice of such subordination. In turn, Bank shall be self operative entitled to receive the customary non-disturbance agreement from each such lender in form and no further instrument substance satisfactory to Bank whereby the lender agrees to recognize Bank's rights under this Lease following foreclosure so long as Bank is not in material default hereunder.
B. Bank shall attorn to any foreclosing mortgagee, or to any purchaser of subordination shall be necessary unless required by any such mortgagee the Property or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If the Leased Premises at any foreclosure sale, or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is grantedof foreclosure, Tenant agrees, upon written for the balance of the Original Term or applicable Renewal Term on all the terms and conditions herein contained.
C. At the request of Supermarket, Bank shall within ten (10) days deliver to Supermarket, or anyone designated by Supermarket, a certificate stating and certifying to such information as may reasonably be requested to verify the state of the Supermarket-Bank relationship established by this Lease.
D. Notwithstanding any such mortgagee(s) provisions with respect to the subordination of the Lease to any superior lease or any purchaser at such salesuperior mortgage which may hereafter be made or to any renewal, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary modification, replacement or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy extension hereafter of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name and address of superior lease or any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Leasesuperior mortgage, any such mortgagee(ssubordination is subject to the express conditions that so long as the Lease is in full force and effect:
(i) whose address has been so provided to Tenant Bank shall have an additional period of thirty days not be joined as a party defendant (a) in any action or proceeding which to cure (or such additional time as may be required due to causes beyond instituted or taken by the lessor of such mortgagee's controlsuperior lease for the purpose of terminating such superior lease by reason of any default thereunder, including time to obtain possession or (b) in any foreclosure action or proceeding which may be instituted or taken by the holder of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.superior mortgage;
Appears in 1 contract
Samples: Lease Agreement (Commercial National Financial Corp /Mi)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from A. This Lease shall, at the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder)option of Supermarket or its lenders, this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to all mortgagesthe interests of the holders of any notes secured by mortgages on the Property or the Leased Premises, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of in the Demised Premises by Landlordfuture, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid While the provisions of this Section 29 are self-executing, Bank shall execute such documents as many reasonably be desired by Supermarket or any mortgagee to affirm or give notice of such subordination. In turn, Bank shall be self operative entitled to receive the customary non-disturbance agreement from each such lender in form and no further instrument substance satisfactory to Bank whereby the lender agrees to recognize Bank's rights under this Lease following foreclosure so long as Bank is not in material default hereunder.
B. Bank shall attorn to any foreclosing mortgagee, or to any purchaser of the Property or the Leased Premises at any foreclosure sale, or sale in lieu of foreclosure, for the balance of the Original Term or applicable Renewal Term on all the terms and conditions herein contained.
C. At the request of Supermarket, Bank shall within ten (10) days deliver to Supermarket, or anyone designated by Supermarket, a certificate stating and certifying to such information as may reasonably be requested to verify the state of the Supermarket-Bank relationship established by this Lease.
D. Notwithstanding any provisions with respect to the subordination of the Lease to any superior lease or any superior mortgage which may hereafter be made or to any renewal, modification, replacement or extension hereafter of any superior lease or any superior mortgage, any such subordination is subject to the express conditions that so long as the Lease is in full force and effect:
(i) Bank shall not be joined as a party defendant (a) in any action or proceeding which may be instituted or taken by the lessor of such superior lease for the purpose of terminating such superior lease by reason of any default thereunder, or (b) in any foreclosure action or proceeding which may be instituted or taken by the holder of such superior mortgage;
(ii) Bank shall not be evicted from the Leased Premises, nor shall Bank's continuing use and occupancy of the Leased Premises be interrupted, restricted or impaired, nor shall any of Bank's rights under the Lease be affected in any way be reason of any default under such superior lease or such superior mortgage; and
(iii) Bank's leasehold estate under the Lease shall not be terminated or disturbed by reason of any default under such superior lease or such superior mortgage and this Lease and Bank's rights hereunder, including any rights of offset, shall be necessary unless required recognized by the lessor under any such mortgagee superior lease or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request the holder of any such mortgagee(s) superior mortgage. Supermarket represents that there are the following superior leases and superior mortgages existing at the date of the Lease: Rays Food Fair Supermarket further represents that there are not existing defaults by Supermarket under any such superior lease or any purchaser at such salesuperior mortgage, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentnor shall there be as of the Commencement Date. Tenant Supermarket agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute procure and deliver to Landlord Bank, with reasonable promptness after the date of the Lease, written agreements of the lessors of the aforesaid superior leases and the holders of the aforesaid mortgages. If all such agreements shall not be tendered to Bank within ten (10) days after the date of the Lease, Bank may, at Bank's option (a) delay the Commencement Date of the Lease and the payment of Rent until Supermarket procures such agreements, or (b) cancel the Lease on the date set forth in such notice, which shall not be less than ten (10) nor more then sixty (60)) days after the date of such notice, and the Lease and the terms and estate hereby granted shall then terminate at noon of such cancellation date as if such cancellation date were the expiration date, unless all of such agreements shall have been tendered meanwhile. Upon any such cancellation Supermarket shall have no further obligation to Bank hereunder except to return any party designated monies theretofore paid by Landlord a so-called "estoppel certificate", in Bank to Supermarket on account of Rent under the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably requestLease.
Appears in 1 contract
Samples: Lease Agreement (Commercial National Financial Corp /Mi)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (14.1 This Lease and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder), this Lease and all of Tenant's rights estate hereunder are and shall be subject and subordinate at all times Subordinate in every respect to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, Permitted Encumbrances specified in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereofSchedule "C". The aforesaid provisions This subordination shall be self operative self-operative; and no further instrument of subordination shall be necessary unless required by any party to whom (or to whose interest) this Lease and Tenant's estate are subordinate. In furtherance (and not in limitation) of the foregoing, Tenant shall execute and deliver promptly any certificate or instrument evidencing such mortgagee subordination which Landlord may request.
14.2 Upon request of any present or other lenderfuture fee owner, mortgagee, or ground lessor succeeding to the rights of Landlord hereunder (any such person, a "New Landlord"), whether through conveyance pursuant to sale, possession, foreclosure action, expiration or any earlier termination of any ground lease, or otherwise, Tenant shall attorn to and recognize New Landlord as "Landlord" under this Lease (as the same may then have been amended or modified); and Tenant shall promptly execute and deliver any instrument which New Landlord may reasonably request to evidence such attornment. Upon such attornment, this Lease (as the same may then have been amended or modified) shall continue in full force and effect as, or as it were, a direct lease between New Landlord and Tenant; except, however, that New Landlord shall not:
(a) be liable for any previous act or omission of Landlord under this Lease, or any claim which case shall have previously accrued to Tenant against Landlord; or
(b) be bound by any prepayment to Landlord of more than one month's Fixed Rent, unless such prepayment shall have been expressly approved in writing by New Landlord.
14.3 From time to time, upon Landlord's request, Tenant shall execute, acknowledge and deliver to Landlord a written statement (each such, an "Estoppel Certificate") certifying that, except as specifically disclosed in such Estoppel Certificate and as of the date thereof:
(a) there are no agreements other than the Lease (and no modifications of the Lease) in effect between Tenant and Landlord (or any requested subordination agreement within 10 days after requestother party) with respect to the Premises;
(b) the Lease is valid and in full force and effect and Tenant has no setoffs. If any foreclosure or power of sale proceedings are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request Claims for defenses of any such mortgagee(skind whatsoever to enforcement of the Lease;
(c) Tenant has no claim, demand, cause of action or right to institute any purchaser at such sale, to attorn legal proceeding against Landlord arising out of or by virtue of the Lease or by reason of Tenant's occupancy and pay Net Rent use of the Premises;
(d) Landlord is not in default in the performance of any of Landlord's obligations (if any) under the Lease; and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of has not given any notice of default served by to Landlord. In each Estoppel Certificate Tenant upon Landlordshall certify, provided that prior also, the amount of annual Fixed Rent then payable under the Lease, the amount (and elements) of Additional Rent then payable, and the dates to such notice which Tenant has been notified paid the same. Tenant acknowledges and agrees that a prospective purchaser or mortgagee of Landlord's interest in writing of this Lease or the name and address Premises (or the assignee of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(smortgagee) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgageerely upon Tenant's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)Estoppel Certificate.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
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Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant 8.1 This Lease is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at in all times respects to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, bona fide mortgages which may now or hereafter affect the Property, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions thereofof such mortgages irrespective of the date of the execution and/or recording thereof (provided, however, that Landlord shall use its good faith efforts to obtain from such mortgagee a non-disturbance agreement as described in the last sentence of this Section 8.1). The aforesaid provisions This Section 8.1 shall be self self-operative and no further instrument of subordination shall be necessary required. In confirmation of such subordination, Tenant agrees, without payment to Tenant of any consideration therefore, to execute and deliver any instrument that Landlord or the holder of any such mortgage or any of their respective successors in interest may request to evidence such subordination within twenty (20) days of request. Tenant may state in the subordination document any objections or issues outstanding it has relative to the Lease or the Landlord’s performance thereunder. Tenant hereby irrevocably appoints Landlord its attorney in fact to execute such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. The mortgages to which this Lease is, at the time referred to, subject and subordinate shall sometimes be collectively called "superior mortgage." Landlord shall, upon the request of Tenant, use its good faith efforts to obtain a non-disturbance agreement from the holder of any superior mortgage, to the effect that in the event of the foreclosure of the superior mortgage Tenant's possession of the Demised Premises shall not be disturbed provided that Tenant shall not be in default under this Lease, provided, however, (1) Landlord (i) shall not be required to incur any material costs or liabilities in connection therewith, and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such agreement, and (2) this Lease and the obligations of Tenant shall not be affected should Landlord fail to procure such agreement despite such good faith efforts.
8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and address shall previously have been furnished to Tenant in writing, and (ii) unless required such act or omission shall be one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice, provided such holder shall with due diligence give Tenant written notice of intention to, and commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlord's rights (“Successor Landlord”) and upon such Successor Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize Successor Landlord as Tenant's landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any instrument that such Successor Landlord may request to evidence such attornment. Tenant hereby irrevocably appoints Landlord or Successor Landlord the attorney-in-fact of Tenant to BioLife lease 4/1/2008 execute and deliver such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between Successor Landlord and Tenant upon all of the terms, conditions, and covenants as are set forth in this Lease and shall be applicable after such attornment, except that Successor Landlord shall not: (i) be obligated to repair, restore, replace, or rebuild the Property, in case of total or substantially total damage or destruction, beyond such repair, restoration or rebuilding as can reasonably be accomplished with the net proceeds of insurance actually received by, or made available to, Successor Landlord; (ii) be liable for any previous act or omission of Landlord; (iii) be subject to any prior defenses or offsets; (iv) be bound by any modification of this Lease not expressly provided for in this Lease or by any previous prepayment of more than one month's rent, unless such mortgagee modification or prepayment shall have been expressly approved in writing by the holder of the superior mortgage through or by reason of which Successor Landlord shall have succeeded to the rights of Landlord; or (v) be liable for the performance of Landlord's covenants and agreements contained in this Lease to any extent other than to Successor Landlord's ownership in the Property, and no other property of Successor Landlord shall be subject to levy, attachment, execution or other lenderenforcement procedure for the satisfaction of Tenant's remedies.
8.4 In the event that a bona fide institutional lender shall request reasonable modifications to this Lease, then Tenant shall not unreasonably withhold, condition or delay its written consent to such modifications provided that the same do not, in which case Tenant's reasonable judgment (and Tenant shall not demand the payment to Tenant of any consideration for consent thereto), increase the obligations of Tenant hereunder or materially adversely affect Tenant’s operations or leasehold interest hereby.
8.5 Tenant agrees, at any time, (and without payment to Tenant of any consideration therefor), upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, (i) a current certified income statement and balance sheet of Tenant and (ii) a statement in writing addressed to Landlord (and/or Landlord's designee) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent has been paid, stating such other information concerning this Lease and Tenant's tenancy as Landlord reasonably shall request, and stating whether or not there exists any requested subordination agreement within 10 days after request. If default in the performance by Landlord of any foreclosure term, covenant or power of sale proceedings are initiated condition contained in this Lease and, if so, specifying each such default, it being intended that any financial reports and such statement delivered pursuant to this Section 8.5 may be relied upon by Landlord and by any mortgagee(s) mortgagee or a deed in lieu is granted, Tenant agrees, upon written request prospective mortgagee of any such mortgagee(s) mortgage affecting the Property or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentprospective purchaser of the Property. Tenant agrees to give any mortgagee(s) When so requested by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified statement shall be submitted in writing under oath by a person or persons having knowledge of the name and address of any such mortgagee(s)statements made therein. Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.BioLife lease 4/1/2008
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Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant is in default hereunder), this This Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at all times to the interests of the holders of any notes secured by mortgages on the Premises, now or in the future, and to all mortgages, deeds of trust, ground or underlying leases or any other method of financing or refinancing, in any amount, and all advances thereon, which may now or hereafter be placed against or affect any or all of the Demised Premises by Landlord, and to all renewals, modifications, consolidations, replacements and extensions thereof. The aforesaid , and while the provisions shall be self operative and no further instrument of subordination shall be necessary unless required by any such mortgagee or other lender, in which case Tenant shall execute, acknowledge and deliver any requested subordination agreement within 10 days after request. If any foreclosure or power of sale proceedings this section are initiated by any mortgagee(s) or a deed in lieu is granted, Tenant agrees, upon written request of any such mortgagee(s) or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornment. Tenant agrees to give any mortgagee(s) by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified in writing of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action).
11.02 Within ten days after requestself-executing, Tenant shall execute such documents as may be necessary to affirm or give notice of such subordination. Upon request of the holder of any note secured by a mortgage on the building or the Premises, Tenant shall agree in writing that no action taken by such holder to enforce said mortgage shall terminate this Lease or invalidate or constitute a breach of any of its provisions, and deliver Tenant shall attorn to Landlord such mortgagee, or to any party purchaser of the building or the Premises at any foreclosure sale, or sale in lieu of foreclosure, for the balance of the Term on all the terms and conditions herein contained. While the provisions of this section are self-executing, all persons affected thereby shall execute such documents necessary to affirm or give notice off such attornment. At the request of Landlord, Tenant shall within ten (10) days deliver to Landlord, or anyone designated by Landlord landlord, a so-called "estoppel certificate", in certificate stating and certifying as of its date (a) the form submitted by Landlord date to Tenant, whereby Tenant represents which Rent and certifies as to such various facts and matters relating to other charges under this Lease as have been paid, (b) whether or not there are then existing any setoffs or defenses against the enforcement of any of the agreements, terms, covenants or conditions hereof on the part of Tenant to be performed or complied with (and, if so, specifying the same), and (c) if such be true, that this Lease is unmodified and in full force and effect and Landlord may reasonably requestis not in default under any provision of this Lease.
Appears in 1 contract
Samples: Lease (Obsidian Enterprises Inc)
Subordination Attornment Estoppel Certificate. 11.01 Provided Tenant receives a so-called non-disturbance agreement from the Lender (and further provided that furnishing such non-disturbance agreement shall not be a condition to Tenant's subordination if Tenant 8.1 This Lease is in default hereunder), this Lease and all of Tenant's rights hereunder are and shall be subject and subordinate at in all times respects to all mortgages, deeds of trust, ground leases or any other method of financing or refinancing, in any amount, and all advances thereon, bona fide mortgages which may now or hereafter affect the Property, to each and every advance made or hereafter to be placed against or affect any or all of the Demised Premises by Landlordmade under such mortgages, and to all renewals, modifications, consolidations, replacements replacements, and extensions thereofof such mortgages irrespective of the date of the execution and/or recording thereof (provided, however, that Landlord shall use its good faith efforts to obtain from such mortgagee a non-disturbance agreement as described in the last sentence of this Section 8.1). The aforesaid provisions This Section 8.1 shall be self self-operative and no further instrument of subordination shall be necessary required. In confirmation of such subordination, Tenant agrees, without payment to Tenant of any consideration therefor, to execute and deliver any instrument that Landlord or the holder of any such mortgage or any of their respective successors in interest may request to evidence such subordination within ten (10) days of request. Tenant hereby irrevocably appoints Landlord its attorney in fact to execute such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. The mortgages to which this Lease is, at the time referred to, subject and subordinate shall sometimes be collectively called “superior mortgage .” Landlord shall, upon the request of Tenant, use its good faith efforts to obtain a non-disturbance agreement from the holder of any superior mortgage, to the effect that in the event of the foreclosure of the superior mortgage Tenant’s possession of the Demised Premises shall not be disturbed provided that Tenant shall not be in default under this Lease, provided, however, (1) Landlord (i) shall not be required to incur any costs or liabilities in connection therewith, and (ii) shall not have any liability to Tenant if Landlord shall fail to procure such agreement, and (2) this Lease and the obligations of Tenant shall not be affected should Landlord fail to procure such agreement despite such good faith efforts.
8.2 In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of such act or omission to the holder of each superior mortgage whose name and address shall previously have been furnished to Tenant in writing, and (ii) unless required such act or omission shall be one which is not capable of being remedied by Landlord or such mortgage holder within thirty (30) days, until a thirty (30) day period for remedying such act or omission shall have elapsed following the giving of such notice, provided such holder shall with due diligence give Tenant written notice of intention to, and commence and continue to, remedy such act or omission.
8.3 If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlord’s rights (“Successor Landlord”) and upon such Successor Landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize Successor Landlord as Tenant’s landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any instrument that such Successor Landlord may request to evidence such attornment. Tenant hereby irrevocably appoints Landlord or Successor Landlord the attorney-in-fact of Tenant to execute and deliver such instrument on behalf of Tenant, should Tenant refuse or fail to do so promptly after request. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between Successor Landlord and Tenant upon all of the terms, conditions, and covenants as are set forth in this Lease and shall be applicable after such attornment, except that Successor Landlord shall not: (i) be obligated to repair, restore, replace, or rebuild the Property, in case of total or substantially total damage or destruction, beyond such repair, restoration or rebuilding as can reasonably be accomplished with the net proceeds of insurance actually received by, or made available to, Successor Landlord; (ii) be liable for any previous act or omission of Landlord; (iii) be subject to any prior defenses or offsets; (iv) be bound by any modification of this Lease not expressly provided for in this Lease or by any previous prepayment of more than one month’s rent, unless such mortgagee modification or prepayment shall have been expressly approved in writing by the holder of the superior mortgage through or by reason of which Successor Landlord shall have succeeded to the rights of Landlord; or (v) be liable for the performance of Landlord’s covenants and agreements contained in this Lease to any extent other than to Successor Landlord’s ownership in the Property, and no other property of Successor Landlord shall be subject to levy, attachment, execution or other lenderenforcement procedure for the satisfaction of Tenant’s remedies.
8.4 In the event that a bona fide institutional lender shall request reasonable modifications to this Lease, then Tenant shall not unreasonably withhold, condition or delay its written consent to such modifications provided that the same do not, in which case Tenant’s reasonable judgment (and Tenant shall not demand the payment to Tenant of any consideration for consent thereto), increase the obligations of Tenant hereunder or materially adversely affect Tenant’s operations or leasehold interest hereby.
8.5 Tenant agrees, at any time, (and without payment to Tenant of any consideration therefor), upon not less than ten (10) days’ prior notice by Landlord, to execute, acknowledge and deliver to Landlord, (i) a current certified income statement and balance sheet of Tenant and (ii) a statement in writing addressed to Landlord (and/or Landlord’s designee) certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the dates to which the rent has been paid, stating such other information concerning this Lease and Tenant’s tenancy as Landlord reasonably shall request, and stating whether or not there exists any requested subordination agreement within 10 days after request. If default in the performance by Landlord of any foreclosure term, covenant or power of sale proceedings are initiated condition contained in this Lease and, if so, specifying each such default, it being intended that any financial reports and such statement delivered pursuant to this Section 8.5 may be relied upon by Landlord and by any mortgagee(s) mortgagee or a deed in lieu is granted, Tenant agrees, upon written request prospective mortgagee of any such mortgagee(s) mortgage affecting the Property or any purchaser at such sale, to attorn and pay Net Rent and other amounts payable hereunder to such party and to execute and deliver any instruments necessary or appropriate to effectuate such attornmentprospective purchaser of the Property. Tenant agrees to give any mortgagee(s) When so requested by certified mail, return receipt requested, a copy of any notice of default served by Tenant upon Landlord, provided that prior to such notice Tenant has been notified statement shall be submitted in writing under oath by a person or persons having knowledge of the name and address of any such mortgagee(s). Tenant further agrees that if Landlord has failed to cure any such default within the time permitted Landlord for cure under this Lease, any such mortgagee(s) whose address has been so provided to Tenant shall have an additional period of thirty days in which to cure (or such additional time as may be required due to causes beyond such mortgagee's control, including time to obtain possession of the Demised Premises by power of sale or judicial action)statements made therein.
11.02 Within ten days after request, Tenant shall execute and deliver to Landlord or to any party designated by Landlord a so-called "estoppel certificate", in the form submitted by Landlord to Tenant, whereby Tenant represents and certifies as to such various facts and matters relating to this Lease as Landlord may reasonably request.
Appears in 1 contract
