Tenant’s Financing. Tenant shall have the right, at any time and from time to time, in addition to any other rights herein granted and without any requirement to obtain Landlord's consent to encumber any Excluded Property or to mortgage or grant a security interest in Tenant's leasehold interest in this Lease, any space leases and any other subleases, under one or more Leasehold Mortgages, and/or to assign this Lease and any subleases as collateral security for such Leasehold Mortgages. Tenant acknowledges that so long as any Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holder to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee notwithstanding any other provisions of this Lease to the contrary: (i) Other than a cancellation or termination of this Lease as a result of the acquisition of the Premises pursuant to Section 2.5 or Section 2.6, there shall be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of Landlord and Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises and the leasehold estate created by this Lease. Any attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) shall be of no force or effect; (ii) Each Leasehold Mortgagee shall be given notice of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee shall receive notice, and a copy, of any award, decision or judgment rendered in such arbitration, action, suit or other proceeding. (iii) If there is a condemnation or taking by eminent domain in respect of the Premises, any award of payment which are to be paid to Tenant shall, if required under any Leasehold Mortgage, be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold Mortgage. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold Mortgages. (iv) No payment made to Landlord by any Leasehold Mortgagee shall constitute agreement that such payment was, in fact, due under the terms of this Lease; and the Leasehold Mortgagee having made any payment or portion thereof to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its payment. (v) In connection with the rights of a Leasehold Mortgagee to cure Tenant's defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold Mortgagee, and agree that each Leasehold Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so. (vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such right, then in that event only the Leasehold Mortgagee holding the most senior Leasehold Mortgage among the Leasehold Mortgagees desiring to exercise such right, shall be entitled to do so. (vii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee. (viii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including the payment of past due Rent); provided, however, that any defaults by Tenant under this Lease which do not involve the payment of money and which cannot be satisfied or cured by such party shall be deemed waived. (ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims. (x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its interest in this Lease and the leasehold estate created hereby and such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in any action or proceeding brought in connection with this Lease. (xi) Notwithstanding anything to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignment; provided, however, that the assignee shall have assumed the obligations of Tenant under the Lease that accrue from and after the date of such assumption; and provided further, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date. (xii) Subject to the terms of its Leasehold Mortgage and to the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, the appointment of the Receiver for the Premises by any court at the request of a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, or the entering into possession of the Premises by such Receiver, shall not be deemed to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner with respect to the Premises and shall not, in and of itself, constitute default under this Lease. (xiii) Tenant and Landlord agree that the provisions of this Section 15.2 are for the benefit of and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply with the provisions of this Section 15.2. (xiv) Each Leasehold Mortgage shall expressly provide that, the rights granted by Tenant to the Leasehold Mortgagee respecting all rights and interests of Tenant under this Lease, other than as to the Excluded Property, are at all times subject and subordinate to the rights and interests of Landlord and to the holder of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required by Landlord and/ or its lenders to further evidence such subordination.
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Tenant’s Financing. Tenant shall have the right, at any time and from time to time, in addition to any other rights herein granted and without any requirement to obtain Landlord's consent ’s consent, to encumber any Excluded Property or to mortgage or grant a security interest in all of the improvements and Tenant's ’s leasehold interest in this Lease, any space leases and any other subleases, under one or more Leasehold Mortgages, and/or to assign this Lease and any subleases as collateral security for such Leasehold Mortgageshereunder. Tenant acknowledges and Landlord acknowledge and agree that so long as any Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holder Leasehold Lender to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee Lender notwithstanding any other provisions of this Lease to the contrary:
(i) Other than a cancellation or termination of this Lease as a result of the acquisition of the Premises pursuant to Section 2.5 or Section 2.6, there 20.1.1 There shall be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of Landlord and Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which Lender. No merger shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises Land and the leasehold estate created by this Lease. Any such attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) Lender shall be of no force or effect;.
(ii) Each 20.1.2 Leasehold Mortgagee Lender shall be given notice of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee Lender shall receive notice, and a copy, of any award, decision or judgment rendered in such arbitration, action, suit or other proceeding.
(iii) 20.1.3 If there is a condemnation or taking by eminent domain in respect of the Premises, any award of or payment which are is to be paid to Tenant shall, if required under any Leasehold Mortgage, shall be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold MortgageLender. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's ’s portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold MortgagesLender.
(iv) 20.1.4 No payment made to Landlord by any Leasehold Mortgagee Lender shall constitute agreement that such payment was, in fact, due under the terms of this Lease; and the Leasehold Mortgagee Lender having made any payment or portion thereof to Landlord pursuant to Landlord's ’s wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its paymentthereof.
(v) 20.1.5 In connection with the rights of a Leasehold Mortgagee Lender to cure Tenant's ’s defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold MortgageeLender, and agree that each Leasehold Mortgagee Lender shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold MortgageeLender, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such right, then in that event only the Leasehold Mortgagee holding the most senior Leasehold Mortgage among the Leasehold Mortgagees desiring to exercise such right, shall be entitled to do so.
(vii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee.
(viii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including the payment of past due Rent); provided, however, that any defaults by Tenant under this Lease which do not involve the payment of money and which cannot be satisfied or cured by such party shall be deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims.
(x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its interest in this Lease and the leasehold estate created hereby and such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in any action or proceeding brought in connection with this Lease.
(xi) Notwithstanding anything to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignment; provided, however, that the assignee shall have assumed the obligations of Tenant under the Lease that accrue from and after the date of such assumption; and provided further, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date.
(xii) Subject to the terms of its Leasehold Mortgage and to the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, the appointment of the Receiver for the Premises by any court at the request of a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, or the entering into possession of the Premises by such Receiver, shall not be deemed to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner with respect to the Premises and shall not, in and of itself, constitute default under this Lease.
(xiii) Tenant and Landlord agree that the provisions of this Section 15.2 are for the benefit of and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply with the provisions of this Section 15.2.
(xiv) Each Leasehold Mortgage shall expressly provide that, the rights granted by Tenant to the Leasehold Mortgagee respecting all rights and interests of Tenant under this Lease, other than as to the Excluded Property, are at all times subject and subordinate to the rights and interests of Landlord and to the holder of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required by Landlord and/ or its lenders to further evidence such subordination.
Appears in 1 contract
Tenant’s Financing. Tenant shall have the right, at any time right during the Term to subject the Improvements and from time to time, in addition to any other rights herein granted and without any requirement to obtain Landlord's consent to encumber any Excluded Property or to mortgage or grant a security interest in Tenant's ’s leasehold interest in this Lease, any space leases and any other subleases, under the Premises to one or more mortgages, deeds of trust, assignments of lease, security agreements or other methods of financing or refinancing (a “Leasehold MortgagesMortgage,” any holder of which is called a “Mortgagee”), and/or or to assign this Lease and any subleases as collateral security for such Leasehold Mortgages. Tenant acknowledges that so long as any one or more extensions, modifications or renewals or replacements of a Mortgage subject, however, to the following:
15.1.1 Each Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given other security instrument acquired by the holder to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee notwithstanding any other provisions of this Lease to the contrary:
(i) Other than a cancellation or termination of this Lease as a result of the acquisition of the Premises pursuant to Section 2.5 or Section 2.6, there shall be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of Landlord and Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises and the leasehold estate created by this Lease. Any attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) shall be of no force or effect;
(ii) Each Leasehold Mortgagee shall be given notice of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee shall receive notice, and a copy, of any award, decision or judgment rendered lien only on Tenant’s interests in such arbitration, action, suit or other proceeding.
(iii) If there is a condemnation or taking by eminent domain in respect of the Premises, any award of payment which are to be paid to Tenant shall, if required under any Leasehold Mortgage, be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold Mortgage. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold Mortgages.
(iv) No payment made to Landlord by any Leasehold Mortgagee shall constitute agreement that such payment was, in fact, due under the terms of this Lease; and the Leasehold Mortgagee having made any payment or portion thereof to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its payment.
(v) In connection with the rights of a Leasehold Mortgagee to cure Tenant's defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold Mortgagee, and agree that each Leasehold Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such right, then in that event only the Leasehold Mortgagee holding the most senior Leasehold Mortgage among the Leasehold Mortgagees desiring to exercise such right, shall be entitled to do so.
(vii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee.
(viii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including the payment of past due Rent); provided, however, that any defaults by Tenant under this Lease which do not involve the payment of money and which cannot be satisfied or cured by such party shall be deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims.
(x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its interest in this Lease and the leasehold estate created hereby and shall be subject and subordinate to Landlord’s fee interest in the Premises or Landlord’s reversionary interest in the Property. Each Leasehold Mortgage shall be subject to the terms and provisions of this Lease, and the Mortgagee, or anyone claiming by, through or under the same, shall not, by virtue thereof, acquire any greater rights hereunder than Tenant has under this Lease;
15.1.2 Landlord shall not be liable for the payment of the sum secured by such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in Mortgage, nor for any action or proceeding brought expenses in connection with this Lease.the same, and neither such Leasehold Mortgage nor any instrument collateral thereto shall contain any covenant or other obligation on Landlord’s part to pay such debt, or any part thereof, or to take any affirmative action of any kind whatsoever or to perform or observe any obligation or agreement thereunder;
(xi) Notwithstanding anything 15.1.3 The loan secured by such Leasehold Mortgage shall be made by a commercial or savings bank, trust company, savings and loan institution or an insurance company authorized to do business in the State of Arizona or other institutional lender in the business of making real estate loans and shall be nonparticipating, except with another institution of the character herein set forth and such loan shall be made on the basis of prevailing market rates and terms;
15.1.4 No Leasehold Mortgage may secure any indebtedness unrelated to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignmentProperty; provided, however, that any such Leasehold Mortgage may serve as cross-collateral for any loan made to Tenant and one or more Affiliate as part of a portfolio loan transaction that is secured, in part, by real property other than the assignee Property;
15.1.5 Tenant shall have assumed deliver to Landlord copies of all documents recorded to evidence any and all Leasehold Mortgages and all notices of default received by Tenant from the obligations Mortgagee;
15.1.6 The Leasehold Mortgage shall by its terms require the Mortgagee to deliver copies of default notices to Landlord simultaneously upon mailing to Tenant under and shall grant to Landlord the Lease that accrue from and after right to cure any default if Tenant fails to do so within the date greater of (i) 30 days following the giving of such assumptionnotice; and provided furtherof (ii) such time (if any) as shall, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date.
(xii) Subject pursuant to the terms of its the Leasehold Mortgage and or other documents, be given to Landlord to cure any such default. Neither Landlord’s right to cure any such default, nor any exercise of such a right by Landlord, shall constitute an assumption of liability by Landlord under the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all Mortgage or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action document executed in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, the appointment of the Receiver for the Premises by any court at the request of a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, or the entering into possession of the Premises by such Receiver, shall not be deemed to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner with respect to the Premises and shall not, in and of itself, constitute default under this Lease.connection therewith; and
(xiii) Tenant and Landlord agree that the provisions of this Section 15.2 are for the benefit of and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply with the provisions of this Section 15.2.
(xiv) Each 15.1.7 The Leasehold Mortgage shall expressly provide thatby its terms state that in the event of a casualty all insurance proceeds will be made available to Tenant for purposes of reconstructing the Improvements subject, the rights granted by Tenant however, to any conditions in the Leasehold Mortgagee respecting all rights and interests of Tenant under this Lease, other than as to the Excluded Property, Mortgage that are at all times subject and subordinate to the rights and interests of Landlord and to the holder of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required approved by Landlord and/ or in its lenders to further evidence such subordinationsole discretion.
Appears in 1 contract
Tenant’s Financing. Tenant shall have the right, at any time right during the Term to subject the Improvements and from time to time, in addition to any other rights herein granted and without any requirement to obtain Landlord's consent to encumber any Excluded Property or to mortgage or grant a security interest in Tenant's ’s leasehold interest in this Lease, any space leases and any other subleases, under the Premises to one or more mortgages, deeds of trust, assignments of lease, security agreements or other methods of financing or refinancing (a “Leasehold MortgagesMortgage,” any holder of which is called a “Mortgagee”), and/or or to assign this Lease and any subleases as collateral security for such Leasehold Mortgages. Tenant acknowledges that so long as any one or more extensions, modifications or renewals or replacements of a Mortgage subject, however, to the following:
15.1.1 Each Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given other security instrument acquired by the holder to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee notwithstanding any other provisions of this Lease to the contrary:
(i) Other than a cancellation or termination of this Lease as a result of the acquisition of the Premises pursuant to Section 2.5 or Section 2.6, there shall be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of Landlord and Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises and the leasehold estate created by this Lease. Any attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) shall be of no force or effect;
(ii) Each Leasehold Mortgagee shall be given notice of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee shall receive notice, and a copy, of any award, decision or judgment rendered lien only on Tenant’s interests in such arbitration, action, suit or other proceeding.
(iii) If there is a condemnation or taking by eminent domain in respect of the Premises, any award of payment which are to be paid to Tenant shall, if required under any Leasehold Mortgage, be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold Mortgage. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold Mortgages.
(iv) No payment made to Landlord by any Leasehold Mortgagee shall constitute agreement that such payment was, in fact, due under the terms of this Lease; and the Leasehold Mortgagee having made any payment or portion thereof to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its payment.
(v) In connection with the rights of a Leasehold Mortgagee to cure Tenant's defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold Mortgagee, and agree that each Leasehold Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such right, then in that event only the Leasehold Mortgagee holding the most senior Leasehold Mortgage among the Leasehold Mortgagees desiring to exercise such right, shall be entitled to do so.
(vii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee.
(viii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including the payment of past due Rent); provided, however, that any defaults by Tenant under this Lease which do not involve the payment of money and which cannot be satisfied or cured by such party shall be deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims.
(x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its interest in this Lease and the leasehold estate created hereby and shall be subject and subordinate to Landlord’s fee interest in the Premises or Landlord’s reversionary interest in the Property. Each Leasehold Mortgage shall be subject to the terms and provisions of this Lease, and the Mortgagee, or anyone claiming by, through or under the same, shall not, by virtue thereof, acquire any greater rights hereunder than Tenant has under this Lease;
15.1.2 Landlord shall not be liable for the payment of the sum secured by such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in Mortgage, nor for any action or proceeding brought expenses in connection with this Lease.the same, and neither such Leasehold Mortgage nor any instrument collateral thereto shall contain any covenant or other obligation on Landlord’s part to pay such debt, or any part thereof, or to take any affirmative action of any kind whatsoever or to perform or observe any obligation or agreement thereunder;
(xi) Notwithstanding anything 15.1.3 The loan secured by such Leasehold Mortgage shall be made by a commercial or savings bank, trust company, savings and loan institution or an insurance company authorized to do business in the State of Arizona or other institutional lender in the business of making real estate loans and shall be nonparticipating, except with another institution of the character herein set forth and such loan shall be made on the basis of prevailing market rates and terms;
15.1.4 No Leasehold Mortgage may secure any indebtedness unrelated to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignmentProperty; provided, however, that any such Leasehold Mortgage may serve as cross-collateral for any loan made to Tenant and one or more Affiliate as part of a portfolio loan transaction that is secured, in part, by real property other than the assignee Property;
15.1.5 Tenant shall have assumed deliver to Landlord copies of all documents recorded to evidence any and all Leasehold Mortgages and all notices of default received by Tenant from the obligations Mortgagee;
15.1.6 The Leasehold Mortgage shall by its terms require the Mortgagee to deliver copies of default notices to Landlord simultaneously upon mailing to Tenant under and shall grant to Landlord the Lease that accrue from and after right to cure any default if Tenant fails to do so within the date greater of: (i) 30 days following the giving of such assumptionnotice; and provided furtherof (ii) such time (if any) as shall, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date.
(xii) Subject pursuant to the terms of its the Leasehold Mortgage and or other documents, be given to Landlord to cure any such default. Neither Landlord’s right to cure any such default, nor any exercise of such a right by Landlord, shall constitute an assumption of liability by Landlord under the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all Mortgage or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action document executed in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, the appointment of the Receiver for the Premises by any court at the request of a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, or the entering into possession of the Premises by such Receiver, shall not be deemed to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner with respect to the Premises and shall not, in and of itself, constitute default under this Lease.connection therewith; and
(xiii) Tenant and Landlord agree that the provisions of this Section 15.2 are for the benefit of and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply with the provisions of this Section 15.2.
(xiv) Each 15.1.7 The Leasehold Mortgage shall expressly provide thatby its terms state that in the event of a casualty all insurance proceeds will be made available to Tenant for purposes of reconstructing the Improvements subject, the rights granted by Tenant however, to any conditions in the Leasehold Mortgagee respecting all rights and interests of Tenant under this Lease, other than as to the Excluded Property, Mortgage that are at all times subject and subordinate to the rights and interests of Landlord and to the holder of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required approved by Landlord and/ or in its lenders to further evidence such subordinationsole discretion.
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Tenant’s Financing. (a) Tenant shall have the right, at any time and from time right during the Lease Term to time, in addition to any other rights herein granted and without any requirement to obtain Landlord's consent to encumber any Excluded Property or to mortgage or grant a security subject its interest in Tenant's leasehold interest in this Lease, any space leases and any other subleases, under the Premises to one or more mortgages, deeds of trust, assignments of sublease, security agreement or other methods of financing or refinancing (hereinafter referred to as "Leasehold MortgagesMortgage", and/or to assign this Lease and any subleases holder of which is hereinafter referred to as collateral security for such "Leasehold MortgagesMortgagee"), or to anyone or more extensions, modifications or renewals or replacements thereof. Tenant acknowledges that so long as any Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holder to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee notwithstanding any other provisions of this Lease to the contrary:
(i) Other than a cancellation or termination of this Lease as a result of the acquisition of the Premises pursuant to Section 2.5 or Section 2.6, there shall be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of immediately notify Landlord and Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises name and the leasehold estate created by this Lease. Any attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) shall be of no force or effect;
(ii) Each Leasehold Mortgagee shall be given notice address of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee shall receive notice, and a copy, of any award, decision or judgment rendered in such arbitration, action, suit or other proceeding.
(iii) If there is a condemnation or taking by eminent domain in respect of the Premises, any award of payment which are to be paid to Tenant shall, if required under any Leasehold Mortgage, be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold Mortgage. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold Mortgages.
(iv) No payment made to Landlord by any Leasehold Mortgagee shall constitute agreement that such payment was, in fact, due under the terms of this Lease; and the Leasehold Mortgagee having made any payment or portion thereof to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its payment.
(v) In connection with the rights of a Leasehold Mortgagee to cure Tenant's defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold Mortgagee, and agree that each Leasehold Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such right, then in that event only the Leasehold Mortgagee holding the most senior Leasehold Mortgage among the Leasehold Mortgagees desiring to exercise such right, shall be entitled to do so.
(vii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee.
(viiib) In If Tenant shall be in default in the observance or performance of any covenant in this Lease, Landlord shall send a copy of the written notice of such default to the Leasehold Mortgagee at its address as provided to Landlord by Tenant. The Leasehold Mortgagee shall have thirty (30) days after delivery of such written notice from Landlord within which to cure or remove such default, and if such default cannot with diligence be cured within such thirty (30) day period, a reasonable time thereafter, provided that the Leasehold Mortgagee promptly commences to cure the same and thereafter pursues the curing of such default with diligence. Notwithstanding any other provision of this Lease, Landlord shall not have any right pursuant to this Lease or otherwise to terminate this Lease due to such default unless Landlord shall have first given a copy of the written notice thereof to the Leasehold Mortgagee and unless the Leasehold Mortgagee shall have failed to cure or remove, or cause to be cured or removed, such default within the time required by this paragraph. Landlord shall accept performance by the Leasehold Mortgagee of any covenant, agreement or obligation of Tenant contained in this Lease, with the same effect as though performed by Tenant.
(c) If this Lease is terminated for any reason, other than the Leasehold Mortgagee's failure to cure a default as permitted in paragraph (b) of this Section, or in the event of the rejection or disaffirmance of this Lease pursuant to bankruptcy law or other law affecting creditors rights generally, the Landlord will enter into a new lease of the Premises with the Leasehold Mortgagee, or any party designated by the Leasehold Mortgagee, within thirty (30) days after the request of the Leasehold Mortgagee referred to below, for the remainder of the term of this Lease, effective as of the date of such termination, rejection or disaffirmance, upon the same terms and conditions as set forth herein (including, but not limited to, the restrictions on the use of the Premises as set forth in Section 13 hereof), provided that the Leasehold Mortgagee makes a written request to the Landlord for such new lease within thirty (30) days after the effective date of such termination, rejection or disaffirmance, as the case may be, and such written request is accompanied by a copy of such new lease, duly executed and acknowledged by the Leasehold Mortgagee or its designee (the party designated by foreclosurethe Leasehold Mortgagee to be the tenant thereunder, conveyance in lieu of foreclosure or otherwise), or and the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant Leasehold Mortgagee cures all defaults under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including which can be cured by the payment of past money and pays to Landlord all rent hereunder which would at the time of such execution and delivery be due Rent); provided, however, that any defaults and payable by Tenant under this Lease which do not involve but for such rejection, disaffirmance or termination. If the payment of money and which cannot be satisfied or cured by such party shall be deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims.
(x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its interest in this Lease and the leasehold estate created hereby and such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in any action or proceeding brought in connection with this Lease.
(xi) Notwithstanding anything to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignment; provided, however, that the assignee shall have assumed the obligations of Tenant under the Lease that accrue from and after the date of such assumption; and provided further, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date.
(xii) Subject to the terms of its Leasehold Mortgage and to the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, the appointment of the Receiver for the Premises by any court at the request of a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, or the entering into possession of party so designated by the Premises by such ReceiverLeasehold Mortgagee, shall have entered into a new lease with Landlord pursuant to this paragraph, then any default under this Lease which cannot be cured by the payment of money shall be deemed cured. Any new lease made pursuant to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner this paragraph shall have the same priority with respect to other interests in the Premises and shall not, in and of itself, constitute default as this Lease. The Leasehold Mortgagee's rights under this Lease.
(xiii) Tenant and Landlord agree that the provisions of this Section 15.2 paragraph are for the benefit of and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply with the provisions of this Section 15.2.
(xiv) Each Leasehold Mortgage shall expressly provide that, the rights granted by Tenant in addition to the Leasehold Mortgagee respecting all rights and interests of Tenant Mortgagee's right to cure under this Lease, other than as to the Excluded Property, are at all times subject and subordinate to the rights and interests of Landlord and to the holder of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date paragraph (b) of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required by Landlord and/ or its lenders to further evidence such subordinationSection.
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Samples: Ground Lease Agreement (Advanced Environmental Recycling Technologies Inc)
Tenant’s Financing. Notwithstanding anything in this Lease to the contrary, Tenant shall have the rightright during the Lease Term to subject Tenant’s leasehold interest in the Property to one or more mortgages, deeds of trust, assignments of lease, security agreements or other methods of financing or refinancing in connection with system-wide bonds issued by Xxxxxx Xxxxx & White Holdings (a “Leasehold Mortgage”), and as to which the holders of such bonds require leasehold mortgages on all or substantially all of the leasehold interests of issuer and its Affiliates with respect to leased acute care hospitals. Tenant shall not later than thirty (30) days after execution of the same notify Landlord in writing of the name and address of any Leasehold Mortgagee and deliver a true, accurate and complete copy of the Leasehold Mortgage. The holder of a Leasehold Mortgage (a “Leasehold Mortgagee”) shall be entitled to the following from and after Landlord’s receipt of notice of the applicable Leasehold Mortgage:
(a) Prior to Landlord exercising any remedy as a result of a default by Tenant under this Lease, Landlord shall send to Leasehold Mortgagee at its address as provided in writing to Landlord by Tenant written notice of such default. Leasehold Mortgagee shall have thirty (30) days after delivery of the written notice from Landlord within which to cure or remove the default, and if the default cannot with diligence be cured within the 30 day period (other than a monetary default which shall be cured within thirty (30) days), then Leasehold Mortgagee shall have a reasonable time thereafter to effect such cure, provided that Leasehold Mortgagee promptly commences to cure the same and thereafter pursues the curing of the default with diligence, but in any event cures such default within one hundred twenty (120) days after the notice of default. Notwithstanding any other provision of this Lease, Landlord shall not terminate this Lease due to Tenant’s default unless Landlord shall have first given a copy of the written notice of default to Leasehold Mortgagee and unless Leasehold Mortgagee shall have failed to cure or remove, or cause to be cured or removed, the default, within the time required by this Section; provided, however, that this sentence shall not limit Landlord’s right to pursue all other rights and remedies against Tenant.
(b) Landlord will accept performance by Leasehold Mortgagee of any covenant, agreement or obligation of Tenant contained in this Lease with the same effect as though performed by Tenant, and Tenant hereby consents to Landlord accepting such performance by Leasehold Mortgagee.
(c) If this Lease is terminated for any reason, including, but not limited to any termination as a result of default by Tenant under this Lease following Leasehold Mortgagee’s failure to cure such default as permitted in this Section 13.06 (other than a monetary default), but not including termination as a result of a monetary Event of Default, or in the event of the rejection or disaffirmance of this Lease pursuant to bankruptcy laws or other laws affecting creditors’ rights, Landlord will enter into a new lease of the Property with Leasehold Mortgagee, or any party designated by the Leasehold Mortgagee, within thirty (30) days after the request of Leasehold Mortgagee referred to below; provided, however, that all monetary defaults under this Lease shall have been cured and Leasehold Mortgagee shall pay all Rent and other amounts owed by Tenant as they become due in accordance with this Lease and shall have cured all other defaults which such Leasehold Mortgagee is reasonably able to cure. The new lease shall be effective as of the date of termination, rejection or disaffirmance of this Lease and shall be upon the same terms and provisions contained in this Lease (including the amount of the Rent and other sums due from time Tenant hereunder). In order to timeobtain a new lease, in addition Leasehold Mortgagee must make a written request to Landlord for the new lease within thirty (30) days after Leasehold Mortgagee is notified of the effective date of termination, rejection or disaffirmance of the Lease, as the case may be, and the written request must be accompanied by a copy of the new lease, duly executed and acknowledged by Leasehold Mortgagee or the party designated by Leasehold Mortgagee as tenant. In addition, Leasehold Mortgagee shall have cured all defaults under the Lease that can be cured by the payment of money or which Leasehold Mortgagee is reasonably able to cure, and shall have paid, as the same has become due, to Landlord all Rent and other sums that would have been due and payable by Tenant under this Lease but for the rejection, disaffirmance or termination. If Leasehold Mortgagee, or the party so designated by the Leasehold Mortgagee, shall have entered into a new lease with Landlord pursuant to this Section, then any default under this Lease that cannot be cured by the payment of money or which cannot reasonably be cured by Leasehold Mortgagee shall be deemed cured. Any new lease made pursuant to this Section shall be senior and superior to any other encumbrances on the Property except for Permitted Encumbrances and except for future liens subject to the terms of Section 13.02. Leasehold Mortgagee’s rights herein granted under this Section are in addition to, and without any requirement not limited by, Leasehold Mortgagee’s right to obtain Landlord's consent to encumber any Excluded Property cure. The provisions of this Section are a separate and independent contract made by Landlord and Leasehold Mortgagee. From the effective date of termination, rejection or to mortgage or grant a security interest in Tenant's leasehold interest in this Lease, any space leases and any other subleases, under one or more Leasehold Mortgages, and/or to assign this Lease and any subleases as collateral security for such Leasehold Mortgages. Tenant acknowledges that so long as any Leasehold Mortgage shall remain unsatisfied of record or until written notice of satisfaction is given by the holder to Landlord, the following provisions shall apply in respect of such Leasehold Mortgagee notwithstanding any other provisions disaffirmance of this Lease to the contrary:
(i) Other than a cancellation date of execution and delivery of such new lease or termination of this Lease as a result the expiration of the acquisition period during which Leasehold Mortgagee may make a request, Leasehold Mortgagee may, upon payment of the Premises pursuant to Section 2.5 or Section 2.6, there shall Rent and any other sums as may be no cancellation, termination, surrender, acceptance of surrender, amendment or modification of this Lease by joint action of Landlord and due from Tenant, nor shall Landlord recognize any such action by Tenant alone, without in each case the prior consent in writing of any Leasehold Mortgage (which shall not be unreasonably withheld, delayed or conditioned). Nor shall any merger result from the acquisition by, or devolution upon, any person or entity of both the fee estate in the Premises use and enjoy the leasehold estate created by this Lease. Any attempted cancellation, termination, surrender, amendment, modification or merger of this Lease without the prior written consent of all Leasehold Mortgagees (which shall not be unreasonably withheld, delayed or conditioned) shall be of no force or effect;
(ii) Each Leasehold Mortgagee shall be given notice of any arbitration or action, suit or other proceeding or dispute between the parties and shall have the right to intervene therein and be made a party thereto if Tenant fails to do so. In any event, each Leasehold Mortgagee shall receive notice, and a copy, of any award, decision or judgment rendered in such arbitration, action, suit or other proceeding.
(iii) If there is a condemnation or taking by eminent domain in respect of the Premises, any award of payment which are to be paid to Tenant shall, if required under any Leasehold Mortgage, be paid instead to the Leasehold Mortgagees in accordance with the priority of their liens and in accordance with the terms of the applicable Leasehold Mortgage. If a condemnation or taking by eminent domain results in a termination of this Lease, Tenant's portion of the award or payment shall be paid to the Leasehold Mortgagees in accordance with the priority of their liens and the provisions of their respective Leasehold Mortgages.
(ivd) No payment made to If Landlord by any has given Leasehold Mortgagee shall constitute agreement that such payment was, in fact, due under the terms notice of this Lease; Tenant’s default and the Leasehold Mortgagee having made any payment or portion thereof to Landlord pursuant to Landlord's wrongful, improper or mistaken notice or demand shall be entitled to the return of any such payment or portion thereof provided it shall have made demand therefor not later than one (1) year after the date of its payment.
(v) In connection with the rights of a Leasehold Mortgagee to cure Tenant's defaults under this Lease and to protect its security, Landlord and Tenant hereby expressly grant to each Leasehold Mortgagee, and agree that each Leasehold Mortgagee shall have, the absolute and immediate right to enter in and upon the Premises or any part thereof to such extent and as often as the Leasehold Mortgagee, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by Tenant, without any obligation to do so.
(vi) In the event any right granted to a Leasehold Mortgagee under this Section 15.2 shall by its nature only be exercisable by one Leasehold Mortgagee and more than one Leasehold Mortgagee desires to exercise such rightcure Tenant’s default but is unable to do so while Tenant is in possession of the Property (other than any monetary default), or if Landlord has elected to terminate this Lease and Leasehold Mortgagee desires to obtain a new lease but has not yet acquired Tenant’s leasehold interest in this Lease, then in that event only the Leasehold Mortgagee holding shall have the most senior Leasehold Mortgage among right to postpone the Leasehold Mortgagees desiring specified date for effecting a cure of this Lease (provided, nothing herein shall extend the time period for curing a monetary default) or obtaining a new lease for a period reasonably sufficient to exercise such right, shall be entitled to do so.
(vii) In the event a enable Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires to acquire Tenant's interest in this Lease, the Leasehold Mortgagee or its designee shall not be bound by any modification or amendment to this Lease not otherwise previously approved by the Leasehold Mortgagee.
(viii) In the event a Leasehold Mortgagee or its designee (by foreclosure, conveyance in lieu of foreclosure or otherwise), or the purchaser at a foreclosure sale or the assignee or designee of such purchaser, acquires Tenant's interest herein, such party shall thereupon become Tenant under this Lease and hereby agrees to perform each and all of Tenant's obligations and covenants hereunder (including the payment of past due Rent); provided, however, that any defaults by Tenant under this Lease which do not involve the payment of money and which cannot be satisfied or cured by such party shall be deemed waived.
(ix) Nothing in this Section 15.2 shall be deemed or construed to create or impose any obligation, covenant or liability, whatsoever, upon a Leasehold Mortgagee: (a) for the payment of Base Rent and Additional Rent or any additional monetary sums due under this Lease; (b) for the performance of any of Tenant's covenants and agreements hereunder; or (c) to cure any default by the Tenant under this Lease, and neither Tenant nor Landlord shall have any claims against a Leasehold Mortgagee for its failure to make any payment or take any action which it is entitled to take under this Section 15.2 until such time as such Leasehold Mortgagee assumes possession of the Premises or acquires the Tenant's interest in the Lease, and then only for as long as it remains in possession or the owner of the leasehold estate created thereby, and Landlord expressly waives any and all such claims.
(x) The liability of any Leasehold Mortgagee, its successors and assigns, shall be limited in all respects to its ’s interest in this Lease and the leasehold estate created hereby and such Leasehold Mortgagee shall have no personal liability hereunder and no judgment or decree shall be enforceable beyond the interest of such Leasehold Mortgagee in the leasehold estate created under this Lease or shall be sought or entered in any action or proceeding brought in connection with this Lease.
(xi) Notwithstanding anything to the contrary contained in this Lease, if a Leasehold Mortgagee or its designee shall acquire title to Tenant's interest in this Lease, by foreclosure of its Leasehold Mortgage thereon or by assignment in lieu otherwise, but not to exceed a period of foreclosure, such Leasehold Mortgagee or designee may freely assign this Lease and shall thereupon be released ninety (90) days from all liability for the performance or observance of the covenants and conditions in this Lease contained on tenant's part to be performed and observed from and after the date of such assignment; providedthe Postponement Notice (as hereinafter defined), howeveras long as all monetary defaults have been cured within the time period provided herein and Leasehold Mortgagee pays Landlord the Rent and any other sums due under this Lease as they become due during the postponement. Leasehold Mortgagee shall exercise the right to extend the cure period or the date for obtaining a new lease by giving Landlord notice (a “Postponement Notice”) prior to the last date that Leasehold Mortgagee would otherwise be entitled to elect a cure or obtain a new lease and by tendering to Landlord any Rent and other charges or other sums then in default.
(e) If any Leasehold Mortgage is in effect, that Landlord will not accept a voluntary surrender of this Lease. If any Leasehold Mortgage is in effect, the assignee rent amount and the term of, this Lease shall have assumed not be modified or amended without the prior written consent of Leasehold Mortgagee, which consent shall not be unreasonably withheld, conditioned or delayed.
(f) The provisions of this Section are for the benefit of Leasehold Mortgagee and may be relied upon and shall be enforceable by Leasehold Mortgagee. Neither Leasehold Mortgagee nor any other holder or owner of the indebtedness secured by the Leasehold Mortgage or otherwise shall be liable upon the covenants, agreements or obligations of Tenant under the Lease that accrue from and after the date of such assumption; and provided further, however, that such assignee shall have a "net worth" which is no less than the "net worth" of Tenant as of the Commencement Date.
(xii) Subject to the terms of its Leasehold Mortgage and to the extent permitted therein, should a Leasehold Mortgagee be entitled to the appointment of a receiver for all or any part of the Premises (a "Receiver"), without regard to whether such Leasehold Mortgagee has commenced an action to foreclose the lien of its Leasehold Mortgage and without regard to the nature of the action in which the appointment of a receiver is sought, Landlord agrees that it will not oppose any such appointment, whether or not entitled by the terms of this Lease to do so. Notwithstanding anything to the contrary contained in this Lease, unless and until Leasehold Mortgagee or that holder or owner acquires the appointment interest of Tenant.
(g) Nothing contained in this Lease shall be construed as a subordination of Landlord’s fee interest in the Property to any Leasehold Mortgage. Upon the expiration or termination of this Lease, except as specifically otherwise provided in this Section, any Leasehold Mortgage of Tenant’s interest in the Property shall be null and void. Landlord shall not be liable for the payment of the Receiver for the Premises sum secured by any court at Leasehold Mortgage, nor for any expenses in connection with the request same, and Landlord shall not be required to take any affirmative action of any kind whatsoever with respect to such Leasehold Mortgage except as otherwise provided in this Section. All costs and expenses incurred by Landlord in connection with any Leasehold Mortgage, any dealings with a Leasehold Mortgagee or by agreement between Tenant and such Leasehold Mortgagee, actions taken as a result of or the entering into possession of the Premises by such Receiver, shall not be deemed to make such Leasehold Mortgagee a It mortgagee-in-possession" or otherwise liable in any manner connection with respect to the Premises and shall not, in and of itself, constitute default under this Lease.
(xiii) Tenant and Landlord agree that the provisions of this Section 15.2 are for 13.06 shall be at the benefit sole cost and expense of Tenant and shall be enforceable by each Leasehold Mortgagee, its respective successors and assigns who comply reimbursed to Landlord within thirty (30) days of Tenant’s receipt of request for reimbursement together with the provisions of this Section 15.2.
(xiv) Each Leasehold Mortgage shall expressly provide that, the rights granted by Tenant to the Leasehold Mortgagee respecting all rights and interests of Tenant under this Lease, other than as to the Excluded Property, are at all times subject and subordinate to the rights and interests of Landlord and to the holder evidence of the First Deed of Trust and any renewals, modifications, replacements, and extensions of such First Deed of Trust thereof and to any future Landlord Mortgage after the date of this Deed of Trust. Further, each Leasehold Mortgage shall provide that the Leasehold Mortgagee will execute such reasonable agreements and instruments as may be required by Landlord and/ or its lenders to further evidence such subordinationcosts incurred.
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Samples: Master Lease Agreement (MedEquities Realty Trust, Inc.)
